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HCP of Illinois, Inc. v. Farbman Group I, Inc.

United States District Court, N.D. Illinois, Eastern Division

October 23, 2013

HCP OF ILLINOIS, INC., d/b/a NAI PARTNERS OF ILLINOIS, Plaintiff,
v.
THE FARBMAN GROUP I, INC., a/k/a NAI FARBMAN, 216 JAX LLC, Defendants

For HCP of Illinois, Inc., doing business as Housing Choice Partners of Illinois, Plaintiff: Elizabeth Shuman Moore, Chicago Lawyers' Committee for Civil Rights, Chicago, IL; Jessica Marie Jax, Matthew C. Wolfe, Grippo & Elden Llc, Chicago, IL; Laura K McNally, Grippo & Elden, Chicago, IL.

For The Farbman Group I, Inc., also known as NAI Farbman, Defendant: Brian Witus, Jaffe, Raitt, Heuer & Weiss, P.C., Southfield, MI; David W Williams, Kevin B. Hirsch, Michael F. Jacobson, PRO HAC VICE, Jaffe Raitt Heuer & Weiss, P.c., Southfield, MI; Howard L. Teplinsky, Mark Louis Evans, Stefania Pialis, Beermann Pritikin Mirabelli Swerdlove LLP, Chicago, IL.

For 216 JAX LLC, Defendant: Brian Witus, Jaffe, Raitt, Heuer & Weiss, P.C., Southfield, MI; David W Williams, Michael F. Jacobson, PRO HAC VICE, Jaffe Raitt Heuer & Weiss, P.c., Southfield, MI; Howard L. Teplinsky, Mark Louis Evans, Stefania Pialis, Beermann Pritikin Mirabelli Swerdlove LLP, Chicago, IL.

OPINION

Page 1000

MEMORANDUM OPINION AND ORDER

Jeffrey Cole, UNITED STATES MAGISTRATE JUDGE.

The Farbman defendants have moved for reconsideration of the September 10, 2013 Memorandum Opinion and Order (the " Opinion" ) denying their motion for summary judgment. See HCP of Illinois, Inc. v. Farbman Group I, Inc., __ F.Supp.2d __, 2013 WL 4846331 (N.D.Ill. 2013). The Plaintiff, of course, opposes the Motion.

INTRODUCTION

" Confirmation bias" -- " the well-documented tendency, once one has made up one's mind, to search harder for evidence that confirms rather than contradicts one's initial judgment," Richard Posner, How Judges Think, 111 (2008) -- may partly account for judicial resistance to motions for reconsideration. But that does not tell the whole story. Sound institutional considerations ultimately underlie the rule that motions for reconsideration are viewed with disfavor. See, e.g., Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990); 18B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 4478 (2nd ed.2002). Spiraling dockets and limited judicial resources necessarily preclude a permissive attitude toward attempts by losing parties to have another go at it. If the rule were otherwise, the urgent interests of other litigants in prompt resolution of their cases would be seriously compromised. Cf. United States v. Underwood, 130 F.3d 1225, 1227 (7th Cir.1997).

But " [b]eing manned by humans, the courts are not perfect and are bound to make some errors." Pruitt v. Mote, 503 F.3d 647 (7th Cir.2007)( en banc ). " [I]n any given opinion, [a court] can misapprehend the facts...or even overlook important facts or controlling law." Olympia Equipment v. Western Union, 802 F.2d 217, 219 (7th Cir.1986). And so a court must have the power to redress " '[a] grievous wrong [resulting from] some misapprehension or inadvertence by the judge....'" Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990).

But that power is to be exercised only in the rarest of circumstances and where there is a compelling reason. And so, the undeviating rule has evolved that a motion for reconsideration does not allow a party to revisit strategic decisions that prove to be improvident, to reargue the evidence, to make new arguments, or to introduce new evidence that could have been presented earlier. Cincinnati Life Insurance. Co. v. Beyrer, 722 F.3d 939, 956 (7th Cir.2013); Mungo v. Taylor, 355 F.3d 969, 978 (7th Cir.2004); Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 368 (7th Cir. 2003); Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000).

The defendant's Motion for Reconsideration suffers from all of the ills commonly associated with such motions. Apart from essentially rehashing the arguments in the original motion and drawing inferences in its favor no matter how debatable, the Motion impermissibly relies on evidence that was not offered in the summary judgment proceedings. Cincinnati Life Insurance. Co., 722 F.3d at 956;

Page 1001

Massey v. Helman, 259 F.3d 641, 648 (7th Cir. 2001). See, e.g., Motion for Reconsideration, at 4, 8, 9, 10). Of the 12 exhibits attached to the Motion for Reconsideration, 11 were not cited in or attached to the Local Rule 56.1 Statement of Facts, and to the one exhibit that was part of the original summary judgment presentation, the defendants have added 136 new pages from Mr. Gutman's deposition. But " [i]t is not the purpose of . . . a motion for reconsideration to enable a party to complete presenting his case after the court has ruled against him." Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir. 1995).

The Opinion emphasized repeatedly that it was not attempting to express a view on the merits of the case or to predict the outcome. That caution is repeated here. The only question is whether the Opinion erred in concluding that there are genuine, disputed issues of material fact regarding Mr. Gutman's decision not to allow HCP to become a tenant at 216 W. Jackson. The Motion for Reconsideration has made even clearer than it was before that there are. [1]

ANALYSIS

A.

The July 10th Rejection of HCP at 205 W. Randolph and The " Friends/Family" Deal

This case turns on whether Mr. Gutman's rejection of HCP at 216 W. Jackson on June 25th was based on considerations relating to ethnicity rather than legitimate business considerations. We begin with a brief review of the pertinent facts. On June 25, 2012, Mr. DeMoss -- the Farbman Group's broker -- emailed Mr. Gutman about HCP's interest in the space at 216 W. Jackson:

The brokers in our office believe . . . they have a subtenant ready to move forward. The subtenant would also be interested in a 2yr extension past the sublease expiration without needing any work. After finding out who it is, I want to make sure the use is acceptable before they move forward....

(Emphasis supplied).

Asking no questions about the meaning of the statement, " after finding out who it is, I want to make sure the use is acceptable before they move forward," Mr. Gutman rejected HCP as a tenant in a terse email: " not a use for the building we would want." HCP of Illinois, 2013 WL 4846331, 4. [2] Mr. Gutman would later explain that his rejection of HCP was based on his desire that it be a lessee at the Farbman Group's building at 205 W. Randolph. Unlike the 216 W. Jackson space -- which was a sublease -- the 205 W. Randolph space would be a new lease, and, he would later claim, generate a new stream

Page 1002

of revenue. [3] But he never told DeMoss or anyone else of his plan. [4] Nor did he make any attempt to steer HCP to 205 W. Randolph or to try in any way to interest HCP in that building.

On June 29th, four days after it was rejected by Mr. Gutman at the 216 W. Jackson building, HCP expressed interest in Suite 1040 at 205 W. Randolph Street. Jonathan Zimmerman, the Farbman Group's broker, emailed Mr. Gutman that HCP had been negotiating a sublease at 216 Jackson and that HCP had been rejected because its " use not being acceptable [to the landlord]." Gutman, of course, knew that. Zimmerman asked whether, " [g]iven Farbman Group's involvement at 216 W. Jackson, would the same hold true at 205 W. Randolph?" The email concluded ...


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