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Guaranteed Rate, Inc. v. Barr

United States District Court, Seventh Circuit

June 5, 2013

GUARANTEED RATE, INC., Plaintiff,
v.
WARREN BARR, ANTHONY LUPESCU, 13th & STATE, LLC, RENAISSANT DEVELOPMENT GROUP, LLC, RENAISSANT MANAGEMENT GROUP, INC., RICHARD BORKOWSKI, JOHN BORKOWSKI, EDWARD BORKOWSKI, RJE INVESTMENTS, LLC, JIM CARROL, VASILE SAVA, GLOBAL FINANCING INVESTMENTS, CORP., ASIF ASLAM, ASLAM GROUP, INC., JEFFREY BUDZIK, BUDZIK & DYNIA, LLC, TRACY CAGALA, STEWART TITLE GUARANTY COMPANY, ROBERT LATTAS, LATTAS LAW, LLC, a/k/a the LAW OFFICES OF ROBERT D. LATTAS, HYUN SOOK KIM, ABDUR RAHMAN, IQBAL WASEEM, MICHELLE DRUSKA, ROBERT J. JILEK, and SOUTHWEST APPRAISAL & CONSULTING, INC. Defendants.

MEMORANDUM OPINION AND ORDER

VIRGINIA M. KENDALL, District Judge.

Last year, Guaranteed Rate, Inc. filed a lawsuit in this Court alleging that twenty-six individuals and entities (collectively, "Defendants") conspired to defraud it in connection with the sale of real estate in a condominium development in Chicago, Illinois. Guaranteed Rate now moves pursuant to Federal Rule of Civil Procedure 59(e) to alter or amend this Court's December 12, 2012 Memorandum Opinion and Order dismissing Count I of its Amended Complaint and relinquishing supplemental jurisdiction over the its remaining state law claims. For the reasons stated below, Guaranteed Rate's Motion to Alter or Amend this Court's December 12, 2012 Order is denied.

BACKGROUND FACTS

On September 25, 2012, Guaranteed Rate filed an Amended Complaint alleging that various individuals and entities conspired to defraud Guaranteed Rate in connection with the sale of real estate in a condominium development ("the Development") in Chicago, Illinois. A full description of the claims therein and the facts giving rise to the Amended Complaint are set forth in the Court's previous opinion. Guaranteed Rate, Inc. v. Barr, ___ F.Supp.2d ___, 2012 WL 6189013 (N.D. Ill.Dec. 12, 2012). The Court assumes familiarity with those facts. On December 12, 2012, the Court issued a Memorandum and Opinion Order (the "Dismissal Order") dismissing Count I of the Amended Complaint, finding that Guaranteed Rate had failed to state a claim upon which relief could be granted under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq., and specifically 18 U.S.C. § 1962(c). Because Guaranteed Rate's RICO claim was the sole basis for the Court's federal subject matter jurisdiction, the Court declined to exercise supplemental jurisdiction over Guaranteed Rate's nineteen remaining state law claims.

On January 1, 2013, Guaranteed Rate timely filed a motion pursuant to Federal Rule of Civil Procedure 59(e) to Alter or Amend this Court's Dismissal Order. Guaranteed Rate argues that (1) it can cure the deficiencies in its Amended Complaint as identified in the Court's Dismissal Order based on newly discovered evidence that could not have been presented prior to the entry of judgment, and (2) the Court must retain supplemental jurisdiction over its state law claims because it cannot re-file those claims in state court and those claims arise out of the same nucleus of operative facts as Guaranteed Rate's RICO claim.

STANDARD OF REVIEW

"Once judgment has been entered, there is a presumption that the case is finished, and the burden is on the party who wants to upset that judgment to show the court that there is good reason to set it aside." Hecker v. Deere & Co., 556 F.3d 575, 591 (7th Cir. 2009). However the Court may grant a Rule 59(e) motion to alter or amend judgment if the movant "clearly establish[es]' (1) that the court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded entry of judgment." Blue v. Hartford Life & Acc. Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012) (quoting Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006)); see also Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir. 2012) (motion to amend or alter judgment appropriate where movant "presents newly discovered evidence that was not available at the time of trial or if the movant points to evidence in the record that clearly establishes a manifest error of law or fact") (quoting In re Prince, 85 F.3d 314, 324 (7th Cir. 1996)). This rule "enables the court to correct its own errors and thus avoid unnecessary appellate procedures." Miller, 683 F.3d at 813 (quoting Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996)). However, such motions are not appropriate vehicles for relitigating arguments that the district court previously rejected, or for arguing issues or presenting evidence that could have been raised during the pendency of the motion presently under reconsideration. Sigworth v. City of Aurora, 487 F.3d 506, 512 (7th Cir. 2007). Whether to grant a motion to alter or amend judgment under Rule 59 is squarely within the Court's discretion and will only be disturbed for an abuse of discretion. Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996); LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995) (citations omitted).

DISCUSSION

I. Guaranteed Rate's Motion to Alter or Amend Judgment on Count I (RICO)

Count I of Guaranteed Rate's Amended Complaint alleged RICO violations against the following defendants: Robert D. Lattas; Lattas Law, LLC d/b/a Law Offices of Robert D. Lattas; 13th & State, LLC; RJE Investments, LLC; Richard Borkowski; John Borkowski; Edward Borkowski; and Warren Barr (collectively, "the RICO Defendants"). The Court found that Guaranteed Rate's Amended Complaint failed to allege the existence of a RICO enterprise or a pattern of racketeering activity and thus failed to state a RICO claim upon which relief could be granted.

Guaranteed Rate states in its Motion that on October 25, 2012, it received from Defendant James Carrol 7, 399 individual documents pertaining to the Development and 6.75 gigabytes of electronically stored information composed of 9, 775 individual files. (Cunningham Decl. ¶ 3, Ex. 1.) These documents, according to Guaranteed Rate, cover the time period from 2005 through October 2012 and consist of contracts, e-mails, marketing materials, spreadsheets, tax information, and financial information for Defendants 13th & State, Renaissant Development Group, LLC, Renaissant Management Group, Inc. and other entities used by certain individual defendants during the last seven years. ( Id. ¶ 4.) Guaranteed Rate states it began review of the materials immediately upon receipt but was not able to complete its review and assess the new evidence prior to this Court's ruling on the pending motions to dismiss due to the number of files and documents and the intricacy, complexity, and relationship of the transactions. ( Id. ¶ 5.) Guaranteed Rate states that it in fact has still not completed its review of the October 25 document production and has continued to review the documents after the Court's December 12, 2012 ruling. ( Id. ¶¶ 5-6.) Guaranteed Rate maintains that evidence contained within these documents will allow it to cure the deficiencies noted in its Amended Complaint.

Guaranteed Rate's Motion to Alter or Amend Judgment must be denied because the documents produced on October 25, 2012 do not constitute "newly discovered" evidence and because Guaranteed Rate has failed to show that it could not with reasonable diligence have obtained the evidence prior to this Court's December 12 ruling. In order to prevail on a Rule 59(e) motion based on newly discovered evidence, the movant must "show not only that [the] evidence was newly discovered or unknown to it until after the hearing, but also that it could not with reasonable diligence have discovered and produced such evidence during the pendency of the motion." Caisse Nationale de Credit Agricole, 90 F.3d at 1269 (quoting Engelhard Indus., Inc. v. Research Instrumental Corp., 324 F.2d 347, 352 (9th Cir. 1963), cert. denied, 377 U.S. 923 (1964)); see, e.g., Figgie Intern. Inc. v. Miller, 966 F.2d 1178, 1180 (7th Cir. 1992) (denying plaintiff's Rule 59(e) motion because plaintiff did not meet its burden of showing how the alleged new evidence was previously unavailable nor offer anything more than hearsay in an affidavit as "new evidence"). Thus evidence available to a movant prior to judgment and during the pendency of a motion is not "newly discovered" for the purposes of Rule 59(e). See id; LB Credit Corp., 49 F.3d at 1267 (motion to alter or amend a judgment not appropriately used to present evidence that was available prior to judgment); Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008) ("As for the new evidence, motions under Rule 59(e) cannot be used to present evidence that could have been presented before judgment was entered."); see also see also Sigworth, 487 F.3d at 512 ("[I]t is well-settled that a Rule 59(e) motion is not properly utilized to advance arguments or theories that could and should have been made before the district court rendered a judgment...."); Wainwright v. Doria, 65 F.3d 171, at *2 (7th Cir. 1995) (unpublished) (denying Rule 59(e) motion because movant admitted that "new evidence" was discovered before the court ruled on its motion to dismiss).

In this case, Guaranteed Rate admits that it gained possession of the documents it claims constitute "new evidence" on October 25, 2012. The Court did not issue its Dismissal Order until nearly seven weeks after that date. Thus, it is undisputed that Guaranteed Rate had both knowledge and possession of the October 25 document production almost seven weeks before this Court's entry of judgment against it. "In order to keep litigation costs down, " however, Guaranteed Rate "did not ask its [sic] co-counsel, Seyfarth Shaw LLP, to assist in [the] review" of the documents. (Cunningham Decl. ¶ 5.)

As an initial matter, the Court is aware of no exception to the "newly discovered" requirement that allows litigants to belatedly present previously discovered evidence in an effort to keep litigation costs low. Such an exception would shift costs, not reduce them. Defendants would find themselves expending valuable time, energy, and resources litigating dispositive motions only to learn later that it was all for naught - that they had been wasting their time arguing over the sufficiency of dated pleadings. Then Defendants would, as in this case, find themselves expending additional resources litigating motions to alter or amend the court's ruling, which, if granted under a "previously discovered yet not-fully-reviewed" exception, would bring everyone back to square one. "Were such a procedure to be countenanced, some lawsuits really might never end, rather than just seeming endless." Frietsch, 56 F.3d at 828. Plaintiffs would reap the benefit of being able to wait and see if a second bite at the apple is necessary while everyone ...


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