United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE United States District Judge.
bring this action against Defendants E.T. Simonds
Construction Company (“ETS”) and Southern
Illinois Asphalt Company (“SIAC”), alleging that
Defendants committed fraud by misrepresenting their insurance
coverage in an underlying action which sought damages for
injuries sustained by Plaintiffs following a single vehicular
accident. On January 31, 2017, the Court granted in part
Plaintiffs' motion for summary judgment (Doc. 199). The
Court denied Defendants' motions for summary judgment on
February 3, 2017 (Docs. 200, 201). Now pending before the
Court is SIAC's Motion for Review (Doc. 208) in which
SIAC seeks reconsideration of the Court's determination
that no joint venture existed between SIAC and ETS. For the
following reasons, the motion is DENIED.
to reconsider should rarely be granted. Bank of Waunakee
v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191
(7th Cir. 1990). A court should grant such a motion only in
two extraordinary situations: where the court's
misapprehension has produced a manifest error of fact or law,
or where a controlling or significant change in fact or law
has materialized since the court issued its initial ruling.
Id.; Rothwell Cotton Co. v. Rosenthal &
Co., 827 F.2d 246, 251 (7th Cir. 1987). An error of
misapprehension occurs where the court patently
misunderstands the issue or decides the matter based on
considerations beyond the issues presented by the parties for
review. See Bank of Waunakee, 906 F.2d at 1191.
motion to reconsider is not an opportunity for a party whose
position has been rejected to try a different approach.
See Bank of Waunakee, 906 F.2d at 1192
(distinguishing between “a misunderstood
litigant” and “an irresolute litigant that was
uncertain what legal theory it should pursue”).
Evidence is not “new” if the movant could have
offered it the first time he was before the court, and the
movant may not advance legal theories that-although they were
available-he declined or neglected to raise in the first
instance. See Granite State Ins. Co. v. Degerlia,
925 F.2d 189, 192 n. 7 (7th Cir.1991).
asserts that this Court made an improper sua sponte
ruling in finding that, as a matter of law, a joint venture
did not exist between SIAC and ETS. SIAC further asserts that
it was not given notice or a reasonable time to respond to
the contention that a joint venture did not exist.
Additionally, SIAC maintains that the Court made factual
determinations without considering all of the evidence and
that if given the opportunity, SIAC could have provided
“significant evidence” establishing that a joint
existence of the joint venture between SIAC and ETS has been
a contentious issue since the inception of this case.
Plaintiffs have persistently asserted that Defendants were
not sued as a joint venture in the underlying action.
Defendants have maintained that they were acting as a joint
venture and, thus, properly produced the only relevant
insurance policy - the joint venture policy - in the
underlying action. Moreover, the joint venture issue was
raised either directly or indirectly in each of the
parties' summary judgment briefings. ETS specifically
moved for the Court to find as a matter of law that
Defendants were acting as a joint venture:
[A]ny notion by the plaintiffs that ETS and SIAC did not form
a joint venture and did not perform their work pursuant to
IDOT Contract No. 98836 as a joint venture is wholly without
factual support. Because there is no genuine triable issue of
material fact as to whether ETS and SIAC were acting as a
joint venture in performing their work pursuant to IDOT
Contract No. 98836, summary judgment should be entered in
favor of ETS as to this issue.
(See Doc. 118). Thus, SIAC's contention that it
was “taken by surprise” with the Court's
ruling is not well taken. The Court's determination that
a joint venture did not exist was neither improper nor
Court also rejects SIAC's argument that it could have
provided “significant evidence” establishing the
existence of a joint venture. SIAC has not provided any newly
discovered facts or evidence. Whether by strategic choice or
neglect, SIAC failed to provide this alleged
“significant evidence” establishing the existence
of a joint venture during the summary judgment briefings.
Instead, Defendants relied almost exclusively on the language
in the Joint Venture Agreement to assert that as a matter of
law they formed a joint venture - language the Court found
clearly did not support Defendant's contentions.
event, SIAC's alleged “significant evidence”
- several cobbled together pages of deposition testimony from
Bill Simonds and Jim McPhail - do not create an issue of fact
regarding the joint venture status of Defendants. Rather both
Simonds and McPhail testified consistent with the Agreement,
that SIAC and ETS kept their work separate (see
Docs. 202-1, 202-2). The testimony also does not negate the
crucial fact that neither contractor could control the other
in performing their portion of the work.
review of the record, the Court remains persuaded that its
ruling was correct and that, as a matter of law, a joint
venture did not exist between ETS and SIAC with respect ...