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Wallace Stilz Iii v. Banco Popular North America

February 23, 2011

WALLACE STILZ III, PLAINTIFF,
v.
BANCO POPULAR NORTH AMERICA, DEFENDANT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Plaintiff Wallace Stilz III's (Stilz) motion for reconsideration. For the reasons stated below, the court denies the motion for reconsideration.

BACKGROUND

On April 1, 2010, Stilz allegedly withdrew funds from an automated teller machine operated by Defendant Banco Popular North America (Banco) located on E. Erie Street in Chicago, Illinois (ATM1). Stilz contends that he was charged a $2.00 fee to withdraw funds from ATM1. According to Stilz, there was no notice posted on ATM1 that disclosed that users could be charged a fee to conduct an electronic fund transfer on ATM1. Stilz also contends that there was no notice posted on ATM1 indicating that funds deposited might not be available for immediate withdrawal. Stilz further alleges that on April 17, 2010, he withdrew funds from an automated teller machine operated by Banco located on North Avenue in Chicago, Illinois (ATM2). Stilz contends that he was charged a $2.00 fee to withdraw funds from ATM2. According to Stilz, the notice posted on the outside of ATM2 incorrectly stated that he could be charged a $1.50 fee to conduct an electronic fund transfer on ATM2. Stilz included in his amended complaint a claim alleging a violation of the Electronic Fund Transfers Act (EFTA), 15 U.S.C. § 1693, et seq., for the absence of a fee notice on ATM1 (Count I), an EFTA claim based on an improper fee notice on ATM2 (Count II), and an EFTA claim based on the improper deposit notice on ATM1 (Count III).

On October 25, 2010, the court granted Banco's motion to dismiss based on mootness since Banco had extended an offer of judgment (Offer of Judgment) to Stilz pursuant to Federal Rule of Civil Procedure 68 (Rule 68), which was not accepted by Stilz, and Stilz had failed to file a timely motion for class certification. Stilz requests that the court reconsider its ruling granting the motion to dismiss.

LEGAL STANDARD

Federal Rule of Civil Procedure 59(e) (Rule 59(e)) permits parties to file, within 28 days of the entry of a judgment, a motion to alter or amend the judgment. Fed. R. Civ. P. 59(e). Rule 59(e) motions do not give a party the opportunity to rehash old arguments or to present new arguments or evidence "that could and should have been presented to the district court prior to the judgment." Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996)(citing LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995)). Rather, for a Rule 59(e) motion, the movant "must clearly establish either a manifest error of law or fact or must present newly discovered evidence" in order to be successful. LB Credit Corp., 49 F.3d at 1267 (quoting Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)). The decision of whether to grant or deny a motion brought pursuant to Rule 59(e) "is entrusted to the sound judgment of the district court. . . ." In re Prince, 85 F.3d 314, 324 (7th Cir. 1996).

DISCUSSION

I. Court Scheduling Order

Stilz contends that, in delaying the filing of his motion for class certification, he justifiably relied on the court's July 28, 2010 scheduling order (Scheduling Order). On July 28, 2010, the court entered the Scheduling Order, which stated, in part, the following: "Plaintiff to file its motion for class certification by 12/01/10. Response to Plaintiff's motion for class certification, if any, shall be filed by 12/15/10 and reply, if any, to be filed by 12/22/10." (DE 18). Stilz argues that when the court set the Scheduling Order, the court extended the timeframe during which Stilz could file a motion for class certification without having the action rendered moot. As the court indicated in its prior ruling, some courts have held that a plaintiff could avoid mootness of an action if the plaintiff filed a motion for class certification within a limited period after the defendant's offer of judgment. See Stilz v. Global Cash Network, Inc., 2010 WL 3975588, at *3 (N.D. Ill. 2010)(indicating that "some courts in this district have" declined to dismiss a case as moot when "the plaintiff seeks class certification within the [set period] following a Rule 68 offer of judgment"). Stilz contends that when the court entered the Scheduling Order in the instant action, the court further extended that deadline relating to the mootness issue. However, as the court explained in its prior ruling, the court set a schedule for the filing of a motion for class certification because Stilz indicated an intention to file such a motion. At that time, Banco had not filed a motion to dismiss based on a rejection of its Offer of Judgment. Nothing prohibited Stilz from filing his motion for class certification timely to avoid the mootness issue. Even if the filing of the motion for class certification can be extended for a brief period after an offer of judgment, as has been ruled by some courts, the record does not reflect that Stilz attempted to file a motion for class certification as soon as possible after Banco extended the Offer of Judgment to Stilz. To the contrary, Stilz affirmatively rejected the Offer of Judgment.

II. Consideration of Certain Factors

Stilz contends that the court considered two issues that are not properly considered for addressing the mootness issue. The court indicated in its prior ruling that a dismissal would be warranted in light of the fact that Stilz was offered all relief that he could have received in this action. (10/25/10 MO 9). The court also indicated that Stilz had not shown that a dismissal would result in an inequitable result to him or to the proposed class members. (10/25/10 MO 9). Stilz argues that neither of those factors should have been considered by the court.

However, whether Stilz was offered full relief was a key issue that had to be resolved in assessing whether the action was moot. See Holstein v. City of Chicago, 29 F.3d 1145, 1147 (7th Cir. 1994)(stating that a case can become moot when "'the defendant offers to satisfy the plaintiff's entire demand, there is no dispute over which to litigate, and a plaintiff . . . has no remaining stake'")(quoting Rand v. Monsanto Co., 926 F.2d 596, 598 (7th Cir. 1991)). Thus, the court properly considered whether Stilz was offered full relief. Since Stilz was given the opportunity to obtain full relief, whether or not he chose to take advantage of that opportunity, he lost his stake in this action and his claim was moot.

In regard to the equities in this case, Stilz raised the equities issue with the court. In his opposition to the motion to dismiss, Stilz requested as an alternative argument that the court exercise its inherent power to ensure fairness and deny the motion to dismiss because, according to Stilz, "it would [have been] patently inequitable for [Stilz's] action to be dismissed. . . ." (Ans. Dis. 11). Stilz, in fact, continues to indicate in his instant motion that he is presenting an "equitable argument" to the court. (Recon. 3). In addressing the equities issue in its prior ruling, the court addressed Stilz's argument that despite the law relating to Rule 68, the court could exercise its inherent equitable powers and deny the motion ...


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