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Foodworks Usa, Inc v. Foodworks of Arlington Heights

December 3, 2012


The opinion of the court was delivered by: Magistrate Judge Mary M. Rowland


Defendant has filed a Petition for Attorneys' Fees. Each party also has filed a motion to reconsider the Court's opinions and orders issued on August 14, 2012. For the reasons stated below, the petition and requests are granted in part and denied in part.


Defendant Foodworks of Arlington Heights, LLC, operates a Mexican-themed restaurant in Arlington Heights, Illinois, known as the Fuego Mexican Grill and Margarita Bar. Plaintiff Foodworks USA, Inc.'s Complaint and Defendant's Counterclaim deal with intellectual property issues relative to the name of the restaurant and the trade dress used at the restaurant. The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c).

On June 5, 2012, Defendant filed a Motion for Involuntary Dismissal for Failure to Prosecute, for Sanctions, and Other Relief. On August 14, 2012, the Court grant- ed the motion in part and denied it in part. The Court found that Plaintiff and its counsel have not complied with Court orders and Court-imposed deadlines.

Plaintiff was first served with discovery requests in June 2010. Over the subsequent 23 months, Plaintiff kept ignoring deadlines to respond to Defendant's discovery, despite the Court granting several extensions. Finally, in late April and early May 2012, Plaintiff sent two email messages and a CD containing documents that were purportedly responsive to Defendant's discovery requests. However, the discovery responses were grossly deficient. While the interrogatories were responded to without objections, the responses contained few, if any, facts or details as requested. For example, despite filing a Complaint alleging various intellectual property violations, Plaintiff's interrogatory responses, unsigned in violation of Rule 33, provided no information about the trademark and trade dress Defendant is alleged to have infringed. It has produced a total of 13 documents which consisted entirely of Defendant's financial records.

Dilatory conduct with respect to discovery was not the only problem. Despite being granted two extensions, Plaintiff failed to respond to Defendants' Motion for Voluntary Dismissal. Plaintiff's response to the Motion was due on June 26, 2012, and later extended until July 17, 2012. However, the due date passed with no response or request for additional time. See Lopez v. Catholic Charities of the Archdiocese of N.Y., No. 00 Civ. 1247, 2001 WL 50896, at *4 (S.D.N.Y. Jan. 22, 2001) (ruling that Plaintiff's failure to respond to motion to dismiss for failure to prosecute favors dismissal); Betancourt v. Toledo, 199 F.R.D. 447, 447 (D.P.R. 2001) (same).

Plaintiff's conduct led the Court to conclude that Plaintiff never had a serious intention to prosecute this case, which has wasted the Court's time and clogged the Court's calendar. Defendant has also been prejudiced by Plaintiff's dilatory conduct. Defendant has had to file several motions and attend many status hearings in an unsuccessful effort to get Plaintiff to respond to discovery requests that were first served over two years ago. Moreover, the merits of Plaintiff's case are seriously in doubt. Ayad Nahlawi, Plaintiff's principal owner and Defendant's former manager, surely must be in possession and control of relevant information relating to the trademark and trade dress claims that form the basis for Plaintiff's lawsuit. Yet, after numerous delays and missed deadlines, Plaintiff has produced little, if any, information that supports its claims.

Further, Plaintiff received "due warning" that its case was subject to dismissal. Defendant filed a motion to dismiss for failure to prosecute on two separate occasions. See Lopez, 2001 WL 50896, at *4 (noting that a Rule 41(b) motion places the plaintiff on notice of possible dismissal for failure to prosecute). Moreover, on several occasions, the Court warned both Plaintiff and its counsel in open court and in written orders that further delays could result in sanctions, including dismissal of Plaintiff's lawsuit. (See Dkt. 43, 84); see also Aura Lamp & Lighting v. Int'l Trading Corp., 325 F.3d 903, 908 (7th Cir. 2003) (finding plaintiff on due notice by court's warnings at status conference). As far back as March 2011, after the Court granted Plaintiff's counsel's motion to withdraw, in the four months it took Plaintiff to re- tain new counsel, the Court warned Plaintiff that its claims could be dismissed if it failed to timely retain new counsel. (Dkt. 43.)

In sum, the Court found that the balance of factors governing dismissal under Rule 41(b) clearly favor dismissal for failure to prosecute. Accordingly, the Court dismissed the complaint with prejudice and denied Defendant's Motion to Compel and Plaintiff's Motion to Extend Deadline for Completion of Written Discovery as moot.*fn1


The parties have each filed a motion to reconsider the August 14, 2012 Order. In Defendant's motion, it seeks (1) to clarify whether the Counterclaim has been dismissed and whether denial of its motion to compel and termination of the full case is appropriate; and (2) to reconsider the Court's denial of Defendant's request for a default judgment against Plaintiff on Defendant's Counterclaim. (Def.'s Mot. 3.) Despite being given an opportunity to do so, Plaintiff did not respond to Defendant's motion for reconsideration.*fn2 Instead, Plaintiff filed its own motion to reconsider. In Plaintiff's motion, it contends that the Court did not have a full record and requests the opportunity to present its opposition to Defendant's Motion for Involuntary Dismissal. (Pl.'s Mot. ¶ 15.)

"Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence." Keene Corp. v. Int'l Fid. Ins. Co., 561 F. Supp. 656, 665 (N.D. Ill. 1982), aff'd, 736 F.2d 388 (7th Cir. 1984). "To be within a mile of being granted, a motion for reconsideration has to give the tribunal to which it is addressed a reason for changing its mind." Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004). "Reconsideration is not an appropriate forum for re-hashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion." Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1270 (7th Cir. 1996); see Keene Corp., 561 F. Supp. at 665 ("Such motions cannot in any case be employed as a vehicle to introduce new evidence that could have been adduced during pendency of the summary judgment motion."). "A motion that merely republishes the reasons that had failed to convince the tribunal in the first place gives the tribunal no reason to change its mind." Ahmed, 388 F.3d at 249 ("It's as if the movant, when he appealed, had filed two copies of his appeal brief, and when his appeal was rejected asked us to read the second copy.").

"But, judges are not omniscient, and even the most gifted make mistakes." Mosley v. City of Chicago, 252 F.R.D. 445, 446 (N.D. Ill. 2008); see, e.g., Willy v. Coastal Corp., 503 U.S. 131, 139 (1992). The Seventh Circuit has observed that "in any given opinion, [a court] can misapprehend the facts . . . or even overlook important facts or controlling law." Olympia Equip. v. Western Union, 802 F.2d 217, 219 (7th Cir. 1986). "Thus, motions for reconsideration can serve a ...

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