United States District Court, N.D. Illinois, Eastern Division
U.S. COMMODITY FUTURES TRADING COMMISSION, Plaintiff,
GRACE ELIZABETH REISINGER and ROF CONSULTING, LLC, Defendants.
MEMORANDUM AND ORDER
B. GOTTSCHALL, UNITED STATES DISTRICT JUDGE
than three years ago a jury returned a verdict for the U.S.
Commodity Futures Trading Commission (“CFTC”) and
against defendant Grace Elizabeth Reisinger
("Reisinger") in this enforcement action. Verdict,
ECF No. 171. Reisinger moves the court to reconsider and
amend the court's findings made in the September 19,
2017, memorandum opinion and order (“slip op.” or
“September 2017 opinion”) resolving the
parties' post-trial motions. For the following reasons,
the court grants the motion to reconsider in part and denies
it in part.
addition to Reisinger, the CFTC named ROF Consulting, LLC
(“ROF”) as a defendant. The complaint charged the
defendants with violating the anti-fraud and commodity pool
operator registration and exemption provisions of the
Commodity Exchange Act ("Act") and associated
Regulations. The facts have been discussed in detail in the
court's prior opinions in this case and will not be
covered again here except as necessary to resolve the pending
defaulted before trial. The court entered a permanent
injunction barring it from future violations of the Act and
of the Regulations, from acting in any capacity that requires
registration with the CFTC, and from trading any commodity
interests on its own or others' behalf. ECF No. 102. The
CFTC and Reisinger agreed to submit questions of liability to
a jury but reserve remedies for the court. After a week-long
trial, a jury returned a verdict for the CFTC on September
13, 2016. ECF No. 171.
came post-trial motions. Reisinger moved for entry of
judgment notwithstanding the verdict or for a new trial
("motion for new trial, " ECF No. 200). The CFTC
moved for an order requiring Reisinger, inter alia,
to disgorge her ill-gotten gains, pay restitution, pay a
civil monetary penalty, and impose a trading prohibition.
Those motions were resolved in the opinion issued September
19, 2017. ECF No. 230. The court denied Reisinger’s
motion and granted the CFTC’s motion in part. See
CFTC v. Reisinger, 2017 WL 4164197, at *12 (N.D. Ill.
Sept. 19, 2017).
court directed the CFTC to submit a proposed form of judgment
by a certain date, id. at *13, which it did. On the
assumption that the CFTC had circulated the proposed judgment
and that there was therefore no objection to the
judgment’s form, the court entered the judgment in
substantially the same form proposed by the CFTC shortly
thereafter. ECF No. 231. The assumption that the CFTC had
circulated the judgment was apparently incorrect. Reisinger
filed a motion to alter or amend the judgment under Federal
Rule of Civil Procedure 59(e) and to amend findings of fact
under Rule 52(b). She contended that the judgment contained
numerous errors, awarded more relief than the CFTC sought (or
at least was litigated before judgment), and was based on
erroneous legal and factual conclusions made in the September
court vacated the judgment by order entered September 25,
2018 ("September 2018 order"). ECF No. 245. The
court did not resolve all of the parties' arguments.
See Id . at 2–6. The court explained that it
was "clear from the briefing that the judgment awards
relief on matters that were not substantively litigated and
on which the court made no findings before judgment."
Id. at 2. The order cited the example of Reisinger
and ROF's joint and several liability for disgorgement
and monetary penalties, which was not litigated pre-judgment.
Id. at 2–3. "Nor did the parties litigate
in any meaningful way the appropriateness of awarding
pre-judgment interest on some or all of the sums
awarded." Id. at 4. The court also found that
the judgment included enforcement language that could be read
as prejudging questions the court expressly reserved in the
September 2017 opinion. Id. at 4. Finally, the
parties agreed that in the September 2017 opinion the
"court mischaracterized the settlement [in CFTC v.
New World Holdings, LLC, No. 10-cv-4557, available in
this record at ECF No. 215-2 Ex. B] as applicable to
Reisinger when it applied to ROF." Id. at 5.
The September 2018 order stated that the New World
Holdings "analysis undergirded the court’s
award of injunctive relief and its analysis of the
sufficiency of the evidence to support the fraud
claims." Id. (citing Reisinger, 2017
WL 4164197, at *11). After considering these issues and
errors cumulatively, the court vacated the judgment,
Those are not all of the issues briefed in the pending
motions. The state of the briefing leaves the court with a
herculean task if it is to even determine whether some of
Reisinger’s arguments truly rehash issues argued and
resolved in the September 2017 opinion and decided by the
jury. The court would have to sift through the prior briefs,
the opinion, and the mountain of trial transcripts. That is
not the court’s job. All issues raised in the present
briefing remain open to the parties in future proceedings
(subject to the usual reconsideration standards, of course),
and the parties better cite the briefs, the trial
transcripts, and the record precisely in the future.
. . .
With the judgment vacated, Reisinger will have 28 days in
which to move for reconsideration or to set aside findings
under Rule 52(b). Any such motion should cite the record
precisely and in detail, and a motion that fails to do that
and present the issues fully will be summarily stricken. The
court expects the parties to circulate a proposed judgment
when it comes time to enter one and litigate issues of form
before its entry.
Id. at 5–6. Reisinger then filed the motion to
reconsider and to amend findings presently before the court.
cites Federal Rules of Civil Procedure 59(e) (motion for new
trial) and 52(b) (setting aside court-made findings of fact)
in her opening motion. Mot. Reconsider 1, ECF No. 246;
see also Mem. Supp. Mot. Reconsider 1, ECF No. 247.
However, Reisinger "acknowledges" in her reply that
"the applicable legal standard for Reisinger’s
motion is that it must be based on manifest errors of fact or
law." ECF No. 254 at 2. Reisinger and the CFTC therefore
agree that the standard for an interlocutory motion for
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, 1270 (7th Cir. 1996)
(quoting Keene Corp. v. Int'l Fid. Ins. Co., 561
F.Supp. 656, 665 (N.D. Ill. 1982)). Because
“‘manifest error’ is not demonstrated by
the disappointment of the losing party, ” Oto v.
Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)
(quoting Sedrak v. Callahan, 987 F.Supp. 1063, 1069
(N.D. Ill. 1997)), a motion for reconsideration cannot be
used for “rehashing previously rejected arguments or
arguing matters that could have been heard during the
pendency of the previous motion, ” Ahmed v.
Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004) (quoting
Caisse Nationale de Credit Agricole, 90 F.3d at
1270) (internal quotation marks omitted). Consequently,
“[t]he repetition of previous arguments is not
sufficient to prevail” on a motion to reconsider,
id (quoting United States v. $23, 000 in U.S.
Currency, 356 F.3d 157, 165 n.9 (1st Cir. 2004)), unless
the court misunderstood the argument in the first place,
see Bank of Waunakee v. Rochester Cheese Sales,
Inc., 906 F.2d 1185, 1191–92 (7th Cir. 1990)
(quoting Above the Belt, Inc. v. Mel Bohannan Roofing,
Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983) (holding that a
motion to reconsider lies 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”)). The party seeking reconsideration
bears the burden of explaining why the court should change
its mind. Ahmed, 388 F.3d at 249.
identifies six allegedly erroneous factual findings in the
September 2017 opinion. See Mem. Supp. Mot.
Reconsider 3–8, ECF No. 247. These errors, she argues,
should cause the court to: (1) vacate the disgorgement award
against Reisinger; (2) reduce her amount of civil monetary
penalties to approximately $25, 000; (3) vacate the
injunction barring Reisinger from trading futures; (4) enter
judgment notwithstanding the verdict dismissing the fraud
claims in Counts I– III of the complaint; (5) find that
the CFTC is not entitled to pre-judgment interest; and (6)
find that Reisinger should not be held jointly and severally
liable for ROF's ...