United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. DARRAH United States District Court Judge.
November 16, 2015, Plaintiff Nalco Company
(“Nalco”) filed a Fourth Amended Complaint
(“4AC”) against Defendants Chem-Mod, LLC; Arthur
J. Gallagher & Co.; Gallagher Clean Energy, LLC; AJG
Coal, Inc.; and 21 limited-liability companies named: AJG
Iowa Refined Coal LLC; Mansfield Refined Coal LLC; Cope
Refined Coal LLC; Cross Refined Coal LLC; Jefferies Refined
Coal LLC; Joppa Refined Coal LLC; Thomas Hill Refined Coal
LLC; Wagner Coaltech LLC; Walter Scott Refined Coal LLC;
Winyah Refined Coal LLC; Bedford Mix LLC; Brandon Shores
Coaltech LLC; Canadys Refined Coal, LLC; Coronado Refined
Coal LLC; FRM Trona Fuels LLC; FRM Virginia Fuels LLC; George
Neal North Refined Coal LLC; George Neal Refined Coal LLC;
Louisa Refined Coal, LLC; Refined Fuels of Illinois, LLC; and
Belle River Fuels Company, LLC (collectively,
“Defendants”). The 4AC alleges patent
infringement of United States Patent No. 6, 808, 692 (the
“‘692 Patent”), entitled “Enhanced
Mercury Control in Coal-Fired Power Plants.” Defendants
filed a Motion to Dismiss the 4AC, pursuant to Federal Rule
of Civil Procedure 12(b)(6), for failure to state a claim;
and Defendants requested that the 4AC be dismissed with
prejudice. On April 20, 2016, Defendants' Motion was
granted, and the 4AC was dismissed with prejudice. On May 18,
2016, Nalco filed a Motion for Reconsideration  pursuant
to Federal Rule of Civil Procedure 59(e). For the reasons set
forth below, the Motion is denied.
the course of this litigation, Defendants have moved three
times to dismiss Nalco's pleadings. On February 4,
2015, Defendants' Motion to Dismiss Nalco's First
Amended Complaint was granted, and Nalco's First Amended
Complaint was dismissed without prejudice. On October 15,
2015, Defendants' Motions to Dismiss Nalco's Third
Amended Complaint (“TAC”) were granted.
Nalco's TAC was dismissed without prejudice.
filed a Motion to Dismiss Nalco's 4AC pursuant to Federal
Rule of Civil Procedure 12(b)(6) for failure to state a
claim; and Defendants sought dismissal of the 4AC with
prejudice, arguing that Nalco failed to state a claim for
direct or indirect infringement because Defendants'
Chem-Mod Solution is different from the method claimed in the
‘692 Patent. On April 20, 2016, Defendants' Motion
to Dismiss Nalco's Fourth Amended Complaint was granted,
and Nalco's 4AC was dismissed with prejudice.
18, 2016, Nalco filed a Motion for Reconsideration 
pursuant to Federal Rule of Civil Procedure 59(e). For the
reasons set forth below, the Motion is denied.
for reconsideration serve a limited function: to correct
manifest errors of law or fact or to present newly discovered
evidence.” Caisse Nationale de Credit Agricole v.
CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir.1996)
(internal citation omitted). Under Federal Rule of Civil
Procedure 59(e), a motion to alter or amend a judgment is
permissible when there is newly discovered evidence or there
has been a manifest error of law or fact. Harrington v.
City of Chi., 433 F.3d 542, 546 (7th Cir. 2006).
manifest error of law is the “disregard,
misapplication, or failure to recognize controlling
precedent, ” and a manifest error of law is not
demonstrated by the disappointment of the losing party.
Oto v. Metro. Life Ins., 224 F.3d 601, 606 (7th Cir.
2000) (quoting Sedrak v. Callahan, 987 F.Supp. 1063,
1069 (N.D. Ill. 1997)). To succeed on a Rule 59(e) motion,
the movant must “clearly establish one of the
aforementioned grounds for relief.”
Harrington, 433 F.3d at 546. “Reconsideration
is not appropriate where a party seeks to raise arguments
that could have been raised in the original briefing.”
Wiegel v. Stork Craft Mfg., Inc., 891 F.Supp.2d 941,
944 (N.D. Ill. 2012).
Motion for Reconsideration requests that the Court reconsider
its judgment granting Defendants' Motion to Dismiss
Nalco's 4AC under Rule 59(e). Nalco argues that the third
ruling dismissing one of Nalco's amended pleadings, the
4AC, should be changed from a dismissal with
prejudice to a dismissal without prejudice.
contends that in the briefing on the Motion to Dismiss the
4AC, Defendants did not demonstrate that it was
“certain” that Nalco could not in the future make
a pleading that stated a claim or that any amendment would be
futile. Nalco argues that it should be allowed to re-plead
because it could incorporate intrinsic and extrinsic evidence
to a “proper” claim construction that would
explain the relevant technology and provide a basis for
concluding how a person of ordinary skill would understand
Claim 1 of the ‘692 Patent. Thus, Nalco argues that any
dismissal at this stage only should be without
correctly point out that Nalco's Motion fails to cite to
the standard for Rule 59(e), and Nalco makes no argument in
the Motion that it has met the standard such that a Motion to
Reconsider would be appropriate. Nalco eventually states in
its Reply brief, at p. 7, that the basis of the Motion is
that the Court made a manifest error of law in dismissing the
4AC with prejudice.
argues that the specification of the ‘692 Patent
supports at least an argument that its claim construction is
at least possible because Nalco could incorporate a plethora
of intrinsic and extrinsic evidence that has been in its