United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. Lee United States District Judge
SMK Associates, Inc. (“SMK”), brought suit
against Sutherland Global Services, Inc.
(“Sutherland”) and its former CFO, Michael
Bartusek (“Bartusek”), alleging that Sutherland
breached two contracts to sell SMK $84 million in tobacco
products. Sutherland moved for summary judgment, arguing in
part that SMK had not produced evidence from which a
reasonable jury could find that it was ready, willing, and
able to purchase the tobacco products. For this reason,
Sutherland argued that SMK could not make out a prima
facie case of breach of contract. The Court disagreed,
finding that SMK had produced such evidence, and denied
Sutherland's motion in this and all other respects .
Sutherland has moved the Court to reconsider its ruling in
respect to SMK's readiness, willingness, and ability to
perform. For the reasons that follow, Sutherland's motion
for reconsideration  is denied.
Illinois limited liability company, is comprised of one
member: Martin Borg (“Borg”). SMK Assocs.,
LLC v. Sutherland Glob. Servs., Inc., No. 14 C 284, 2016
WL 5476256, at *1 (N.D. Ill. Sept. 29, 2016). In early 2012,
Borg began working on a deal with Bartusek in which SMK would
purchase $84 million in tobacco products (specifically,
cigarettes). Id. Believing the parties had a deal,
SMK submitted two purchase orders for cigarettes totaling $84
million to Bartusek at his Sutherland office in June and July
2012. Id. SMK never received the cigarettes and sued
for breach of contract. See Pl.'s LR
56.1(b)(3)(C) Stmt. ¶ 52, ECF No. 116; 2d Am. Compl.
¶ 2, ECF No. 40.
motion for summary judgment, Sutherland argued that SMK
needed to prove that it was ready, willing, and able to
perform its obligations under the purported contract in order
to sue for breach and recover damages. See SMK
Assocs., 2016 WL 5476256, at *3. SMK disputed whether
this requirement exists under Illinois law. Id. The
Court declined to resolve whether Illinois law imposes such a
requirement. Id. Instead, the Court explained that,
even if SMK had to prove that it was ready, willing, and able
to perform under the contract, it had offered evidence from
which a reasonable jury could rule in its favor. Id.
Specifically, the Court noted that “Borg's
testimony suggests that he did in fact have buyers to whom he
could have sold the tobacco.” Id. The Court
further reasoned as follows:
During Borg's deposition he is asked who wo1uld have
purchased the tobacco had Sutherland delivered it-in other
words, who would have given SMK the funds necessary to turn
around and pay Sutherland what it was owed. Borg explained
that he had compiled a list of people he had spoken to who
were willing to buy the tobacco. And although Borg did not
have contracts with these individuals and had not previously
sold tobacco to any of them, he was confident that the
product would have sold. Sutherland calls this testimony
speculation, suggesting that it is somehow inadmissible. But
on summary judgment, such credibility determinations are
impermissible. Even assuming that SMK has a duty to prove
that it could have performed, Borg's testimony is enough
at this stage to withstand Sutherland's motion for
summary judgment on this issue.
Id. (internal citations omitted).
courts have discretion to entertain motions to reconsider
prior decisions. See Patrick v. City of Chi., 103
F.Supp.3d 907, 911 (N.D. Ill. 2015); Fed.R.Civ.P. 54(b);
see also Moses H. Cone Mem'l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 12 (1983) (“[E]very order short
of a final decree is subject to reopening at the discretion
of the district judge.”). But while motions for
reconsideration are permitted, “they are
disfavored.” Patrick, 103 F.Supp.3d at 911.
They serve a very limited purpose: correcting manifest errors
of law or fact and presenting newly discovered evidence.
Id. (citations omitted). This is a heavy burden for
the moving party and makes a motion for reconsideration an
inappropriate medium to “rehash” past arguments,
id. at 912 (citations omitted), or revisit
improvident strategic decisions made earlier, Birdo v.
Dave Gomez, No. 13 C 6864, 2016 WL 6070173, at *1 (N.D.
Ill. Oct. 17, 2016) (citation omitted). Motions for
reconsideration will be granted only where “the Court
has patently misunderstood a party, or has made a decision
outside the adversarial issues presented to the Court by the
parties, or has made an error not of reasoning but of
apprehension.” Bank of Waunakee v. Rochester Cheese
Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990)
(citation omitted). Given these exacting standards, issues
appropriate for reconsideration “rarely arise and the
motion to reconsider should be equally rare.”
Id. (citation omitted).
has moved the Court to reconsider its conclusion that SMK
produced evidence from which a reasonable jury could conclude
it was ready, willing, and able to perform under the
parties' purported contract. It asserts that the Court
made an error of law in determining that Borg's
deposition testimony was not speculative and interpreting
Sutherland's arguments as going to Borg's
credibility. Def.'s Mem. Supp. Mot. Recons. 1, 7-9, ECF
precisely the argument that Sutherland made and the Court
rejected on summary judgment, rendering Sutherland's
argument inappropriate to raise in a motion to reconsider.
Birdo, 2016 WL 6070173, at *1. As the Court
explained in its previous opinion, “Borg's
testimony suggests that he did in fact have buyers to whom he
could have sold the tobacco.” See SMK Assocs.,
2016 WL 5476256, at *3. Specifically, Borg testified at his
deposition as follows:
The purchase orders that we issued were specifically for the
products that we believe that we had accumulated enough
clients to sell to. . . . [W]e had a group of clients that
had indicated that they were ready, willing, and able to
purchase this product. We had full faith and belief in our
research that they would be able to buy this product. I
believe that in our estimation we had customers that at that
point in time could purchase 30 to 40 containers worth of
product a month, and we decided we could issue a purchase
order for ten containers a month.
Def.'s LR 56.1(a)(3) Stmt., Ex. 5 (“Borg
Dep.”), at 231:2-17, ECF No. 101-5. As the Court then
elaborated, “Borg explained that he had compiled a list
of people he had spoken to who were willing to buy the
tobacco. And although Borg did not have contracts with these
individuals and had not previously sold tobacco to any of
them, he was confident that the product would have
sold.” See ...