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Martha Schilke, Both Individually and As ) A Representative of All v. Wachovia Mortgage

December 14, 2010


The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge


On March 30, 2010, this Court issued a memorandum opinion and order ("Opinion") [51] dismissing Plaintiff's first amended class action complaint, and entered judgment for Defendants and against Plaintiff [52]. In the Opinion, the Court concluded that Plaintiff's claims against Defendant Wachovia were expressly preempted by the Home Owners Loan Act ("HOLA"), 12 U.S.C. §§ 1461 et seq., and the implementing regulations promulgated by the Office of Thrift Supervision ("OTS"), 12 C.F.R. §§ 560.1 et seq. The Court further concluded that all of Plaintiff's claims against Defendant American Security Insurance Company ("ASI") -- apart from her claim for injunctive relief under the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS § 505/1, et seq. -- were barred by the filed rate doctrine. The Court determined that Plaintiff's ICFA claim against ASI failed because Plaintiff was unable to establish the element of proximate causation. Plaintiff has filed a motion for leave to file a second amended complaint pursuant to Federal Rules of Civil Procedure 15(a)(2) and to vacate the judgment pursuant to Rule 60(b)(6) [54] and a motion to alter or amend the judgment pursuant to Rule 59(e) [56].*fn1 For the reasons set forth below, the Court grants Plaintiff's motion to alter or amend the judgment [56] and vacates the judgment entered on March 30, 2010 [52]. The Court denies Plaintiff's motion for leave to file a second amended complaint [54].

I. Background*fn2

In March 2006, Plaintiff entered into a home mortgage agreement with World Savings Bank FSB, now known as Wachovia Mortgage FSB. The mortgage agreement required Plaintiff to maintain hazard insurance for the mortgaged property. The agreement provided that if Plaintiff failed to maintain hazard insurance, Wachovia could "do and pay for whatever it deems reasonable or appropriate to protect [its] rights in the Property," including "purchasing [the] insurance required." Ex. 1 to [13] at ¶ 7. The mortgage agreement further advised Plaintiff that insurance purchased by Wachovia "may cost more and provide less coverage than the insurance [Plaintiff] might purchase." Id. When Plaintiff failed to provide Wachovia with proof of insurance, Wachovia purchased insurance from ASI to cover Plaintiff's mortgaged property -- a type of insurance transaction known as "lender-placed insurance" or "LPI." Wachovia informed Plaintiff both prior to and upon purchasing the insurance that the premium on the LPI "may include compensation to the insurer and Wachovia Mortgage." Ex. D to [31].

Plaintiff brought a putative class action against Wachovia and ASI invoking this Court's diversity jurisdiction. Plaintiff's complaint alleged that the insurance premium that she was charged for the ASI policy included undisclosed fees, or so-called "kickbacks," paid to Wachovia for the placement, maintenance, and servicing of the insurance. [1] The complaint asserted claims against both Defendants for violations of the ICFA (Counts I and V), common law fraud (Counts II and VI), conversion (Counts III and VII), and unjust enrichment (Counts IV and VIII). Plaintiff filed a first amended complaint [13] that differed from her original complaint only in that it made technical corrections to Defendants' names.

Defendants filed separate motions to dismiss Plaintiff's complaint. [27, 29] The Court entered a memorandum opinion and order [51] granting both Defendants' motions to dismiss, and entered judgment [52] for Defendants and against Plaintiff. The Court ruled that the state and common law claims against Wachovia were preempted by federal regulations. The Court also ruled that the filed rate doctrine barred Plaintiff's claims against ASI for money damages and that Plaintiff had failed to allege proximate cause to support her claim for injunctive relief against ASI under the ICFA. Plaintiff now asks the Court to reconsider its judgment and permit Plaintiff to file an amended complaint.

II. Legal Standard

A motion for reconsideration may be brought "to correct manifest errors of law or fact or to present newly discovered evidence." Murray v. GMAC Mortgage Corp., 2005 WL 3088435, *1 (N.D. Ill. Nov. 15, 2005) (quoting Caisse Nationale de Credit Agricole v. CBI Indus., 90 F.3d 1264, 1269-70 (7th Cir. 1996)); see also Telewizja Polska USA, Inc. v. Echostar Satellite Corp., 2005 WL 289967, *1 (N.D. Ill. Feb. 4, 2005). Thus, a motion to reconsider is appropriate where "a court has patently misunderstood a party, made a decision outside the adversarial issues presented, [or] made an error not of reasoning but of apprehension * * *." Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990)). A motion to reconsider also may be appropriate if there has been "a controlling or significant change in the law or facts since the submission of the issue to the Court." Id. at 1191. However, because judicial opinions "are not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure" (Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988)), "motions to reconsider are not appropriate vehicles to advance arguments already rejected by the Court or new legal theories not argued before the ruling" (Zurich Capital Mkts., Inc. v. Coglianese, 383 F. Supp. 2d 1041, 1045 (N.D. Ill. 2005)).

Under Federal Rule of Civil Procedure 15(a), leave to amend a complaint "shall be freely given when justice so requires." However, it is appropriate to deny a motion for leave to amend when an amendment would be futile because it could not withstand a motion to dismiss. See, e.g., Arazie v. Mullane, 2 F.3d 1456, 1464 (7th Cir. 1993); Moore v. Indiana, 999 F.2d 1125, 1128 (7th Cir. 1993). The Seventh Circuit teaches that leave to amend should be given unless the party has engaged in "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of amendment, etc." Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Futility, in the context of Rule 15, refers to the inability to state a claim, not the inability of the plaintiff to prevail on the merits. See Bower v. Jones, 978 F.2d 1004, 1008 (7th Cir. 1992) (holding that "an amendment may be futile when it fails to state a valid theory of liability or could not withstand a motion to dismiss" (citations omitted)).

III. Analysis

Plaintiff has filed a motion to alter or amend the judgment pursuant to Federal Rules of Civil Procedure 59(e) [54] and a motion to vacate the judgment pursuant to Rule 60(b) and file an amended complaint pursuant to Rule 15(a)(2), along with a proposed second amended complaint [56]. Defendants suggest in their responses and sur-reply briefs that the Court lacks jurisdiction to entertain Plaintiff's motion for leave to file an amended complaint simultaneous with the motions for reconsideration.Therefore, the Court first addresses the procedural and jurisdictional aspects of Plaintiff's motions before turning to the merits.

Generally, a court's dismissal of a complaint does not terminate the litigation. See Paganis v. Blonstein, 3 F.3d 1067, 1070 (7th Cir. 1993). By contrast, a court's "dismissal of the entire action ends the litigation and forces the plaintiff to choose between appealing the judgment or moving to reopen the judgment and amend the complaint pursuant to Fed. R. Civ. P. 59 or Rule 60." Id. (citations omitted). When a district court simultaneously issues a final judgment with its order dismissing a complaint, the court leaves the plaintiff "with little recourse but to file a motion under Rules 59(e) and 60(b)." Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008). Indeed, "[o]nce final judgment has been entered in a case, 'the district court lacks jurisdiction to entertain a motion for leave to amend the complaint unless the plaintiff also moves for relief from the judgment.'" Id. (quoting Camp v. Gregory, 67 F3.d 1286, 1289-90 (7th Cir. 1995) (emphasis added)). By contrast, when a plaintiff simultaneously files a motion to reconsider and a motion for leave to amend -- as happened here -- jurisdiction is conferred on the district court to review the motion for leave to amend. Paganis, 3 F.3d at1073 (citing cases).

When a party files simultaneous motions for reconsideration and for leave to amend the complaint, the district court generally must examine the merits of the motion to amend before it decides whether or not to grant the plaintiff's Rule 59(e) or 60(b) motion. Paganis, F.3d at 1073 n.7. Only in exceptional cases should the district court notconsider the merits of the motion to amend before deciding the motion for reconsideration. Id.; see also Helm v. Resolution Trust Corp., 84 F.3d 874, 879 (7th Cir. 1996) (holding that a district court may disregard the merits of the motion to amend when it will not affect the court's decision with respect to the motion for reconsideration because the latter is "doomed to denial"). Upon reviewing the merits of the motion to amend, the court may deny both the motion to amend and the motion for reconsideration, or it may grant the motion to amend, in which case it must grant the Rule 59(e) or 60 motion "because a plaintiff may not amend unless the judgment is set aside or vacated." Paganis, 3 F.3d at 1073 n. 7 & n.8; see also Helm, 84 F.3d at 879.

As set forth in greater detail below, Plaintiff's motions for reconsideration under Rules 59(e) and 60(b) are not inevitably "doomed to denial," but instead plausibly allege manifest errors of law in the Court's Opinion. See Helm, 84 F.3d at 879. The exceptions to the general rule set forth in Paganis therefore do not apply, and the Court follows the general rule calling for a review on the merits of the proposed amended complaint before deciding the motions for leave to amend and leave to reconsider. See Paganis, 3 F.3d at 1073 n.7.

A. Proposed Second Amended Complaint

Plaintiff's proposed second amended complaint [see Ex. A to 54]asserts new claims against both Wachovia and ASI for breach of contract (Counts V and X) and alleges new grounds in support of the previously dismissed ICFA claims. In addition, Plaintiff's reply brief in support of the motion to amend asserts ...

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