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Nalco Co. v. Chem-Mod, LLC

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

September 14, 2016

NALCO COMPANY, Plaintiff,
v.
CHEM-MOD, LLC; ARTHUR J. GALLAGHER & CO.; GALLAGHER CLEAN ENERGY, LLC; AJG COAL, INC.; 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, Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN W. DARRAH United States District Court Judge.

         On 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 [129] pursuant to Federal Rule of Civil Procedure 59(e). For the reasons set forth below, the Motion is denied.

         BACKGROUND

         Over the course of this litigation, Defendants have moved three times to dismiss Nalco's pleadings.[1] 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.

         Defendants 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.

         On May 18, 2016, Nalco filed a Motion for Reconsideration [129] pursuant to Federal Rule of Civil Procedure 59(e). For the reasons set forth below, the Motion is denied.

         LEGAL STANDARD

         “Motions 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).

         A 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).

         ANALYSIS

         Nalco's 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.

         Nalco 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 prejudice.

         Defendants 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.

         Nalco 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 ...


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