The opinion of the court was delivered by: Herndon, Chief Judge
This matter is before the Court pursuant to Plaintiff's Motion to Reconsider pursuant to Federal Rule of Civil Procedure 59(e). (Doc. 33). On February 23, 2009, the Court dismissed this case, without prejudice, for Plaintiff's failure to timely serve the Defendants. (Doc. 30). Plaintiff timely moved for reconsideration of that order pursuant to Rule 59(e). (Doc. 33). Defendants Southern Illinois Riverboat Casino Cruises, Inc., Robert Simpson and Dale Sellers timely filed a Response arguing that the Motion to Reconsider be denied. (Doc. 34). Defendant Mark Calvin timely filed a Response also arguing that the Motion to Reconsider be denied. (Doc. 37). For the reasons stated herein, the Court denies Plaintiff's Motion to Reconsider.
Federal Rule of Civil Procedure 59(e) provides that "[a]ny motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." A Rule 59(e)motion "must clearly establish either a manifest error of law or fact or must present newly discovered evidence." LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995)(citing FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986)). To support a motion for reconsideration based on newly discovered evidence, the moving party must show it did not know and reasonably could not have discovered with reasonable diligence the evidence proffered in the motion for reconsideration until after judgment was rendered. Caisse Nationale de Credit v. CBI Industries, 90 F.3d 1264,1269 (7th Cir. 1996). Therefore, a motion made pursuant to Rule 59(e) cannot be used as "a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to judgment." Moro v. Shell Oil Co., 91 F.3d 872, 875 (7th Cir. 1996).
Determining whether to grant a Rule 59(e) motion is at a district court's discretion. See Pickett v. Prince, 207 F.3d 402, 407 (7th Cir. 2000)(stating "[A] motion to reconsider a ruling is constrained only by the doctrine of the law of the case. And that doctrine is highly flexible, especially when a judge is being asked to reconsider his own ruling.")(citations omitted). "The rule essentially enables a district court to correct its own errors, sparing the parties and the appellate courts the burden of unnecessary appellate proceedings." Russell v. Delco Remy Div. of General Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995) (citation omitted). The function of a motion to reconsider a judgment is not to serve as a vehicle to re-litigate old matters or present the case under a new legal theory. Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000)(citing Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996)). Moreover, the purpose of such a motion "is not to give the moving party another 'bite of the apple' by permitting the arguing of issues and procedures that could and should have been raised prior to judgment." Yorke v. Citibank, N.A. (In re BNT Terminals, Inc.), 125 B.R. 963, 977 (N.D. Ill.1990) (citing F.D.I.C. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986)(other citations omitted)). "A Rule 59(e) motion is not a procedural folly to be filed by a losing party who simply disagrees with the decision; otherwise, the Court would be inundated with motions from dissatisfied litigants." Id.
In the first place, the Court did not enter final judgment in this case. Rather, the Court entered an order dismissing the case, without prejudice. Thus, Rule 59(e) technically does not apply. Regardless, however, even if Rule 59(e) does apply, Plaintiff fails to present either a manifest error of law or fact or newly discovered evidence.Rather, in large part Plaintiff attempts to use this motion as a vehicle to re-argue issues that were already raised prior to dismissal.
A. Plaintiff's First Argument
Plaintiff's first argument focuses upon the Court's use of the word "waited" in two sentences in the Order dismissing the case. (Doc. 30., p. 8-10). The relevant sentences of the Order to which Plaintiff now cites error were as follows:
(1) "Plaintiff's counsel offers no justifiable explanation as to why he waited nearly four months after filing this suit to send out the waiver of service forms to Defendants." (Doc. 30, p.8).
(2) "Rather than acting expeditiously, Plaintiff's counsel waited until the "11th hour" to attempt to obtain Defendants' waiver of service." (Doc. 30, pp. 9-10).
Plaintiff argues that if the Court's use of the term "waited" implies that the Court based its decision dismissing the case on Plaintiff's counsel's "conscious, intentional decision,"to delay mailing the waiver of service forms, then the Court committed a manifest error. (Doc. 33, pp. 1-2). Plaintiff's foray into semantics is of no avail.
To be clear, the Court did not base its decision on the belief that Plaintiff willfully delayed service. As part of Plantiff's argument against dismissal of the case, Plaintiff's counsel swore in an affidavit that the delay was not due to intentional delay. (Doc. 7-2-Affidavit of Richard J. Whitney). However, the record undisputably reflects that Plaintiff's counsel failed to mail or otherwise effectuate sending out the waiver of service documents until nearly four months after the lawsuit was filed. (Doc 7-2). Plaintiff's counsel admits that fact. (Doc. 7-2). The reasons Plaintiff's counsel gave for the delay in effectuating delivery of the waiver of service forms boils down to that ...