United States District Court, N.D. Illinois, Western Division
ORDER
Philip
G. Reinhard Judge.
For the
reasons stated below, Tri-Dim's motion [170] to
reconsider or in the alternative to grant Tri-Dim leave to
file a motion for summary judgment is denied.
STATEMENT-OPINION
On
April 12, 2019, the court entered an order [158] granting in
part the motion of third-party plaintiff FCA, US, LLC
(”FCA”) for summary judgment [135] against
third-party defendant Tri-Dim Filter Corporation
(“Tri-Dim”). In its summary judgment order, the
court found Tri-Dim was obligated under its contract with FCA
to insure, indemnify, and defend FCA against the claims
brought in this case by plaintiff, Jeffrey Curtis. Tri-Dim
moves [170] to reconsider the grant of partial summary
judgment to FCA. Tri-Dim asks the court to vacate the order
granting partial summary judgment because the portions of the
contract between Tri-Dim and FCA on which summary judgment
was granted for FCA are void under the statute of frauds.
Having lost on FCA's motion for summary judgment, Tri-Dim
now argues it did not sign the contract under which it had
been performing work for FCA and, therefore, that the
indemnity and duty to defend obligations set forth in
Tri-Dim's contract with FCA are void In the alternative,
Tri-Dim asks leave to file its own motion for summary
judgment to present the statute of frauds defense.
Fed. R.
Civ. P. 54(b) provides “any order or other decision,
however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the
parties, does not end the action as to any of the claims or
parties and may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties'
rights and liabilities.” Thus, a court has
“discretion to reconsider an interlocutory judgment or
order at any time prior to final judgment.” Mintz
v. Caterpillar, Inc., 788 F.3d 673, 679 (7th
Cir. 2015) (quotation marks and citation omitted). Such a
reconsideration “is governed by the doctrine of the law
of the case, which authorizes such reconsideration if there
is a compelling reason, such as a change in, or clarification
of, law that makes clear the ruling was erroneous.”
Santamarina v. Sears, Roebuck & Co., 466 F.3d
570, 572 (7th Cir. 2006). A motion to reconsider
is not an appropriate forum for “arguing matters that
could have been heard during the pendency of the previous
motion.” Sanchelima Int'l, Inc. v. Walker
Stainless Equipment Co., LLC, 920 F.3d 1141, 1146
(7th Cir. 2019).
Tri-Dim
does not argue there has been a change in, or clarification
of law that makes clear the court's prior ruling was
erroneous. It argues the Michigan statute of frauds, Mich.
Comp. Laws § 566.132, requires the voiding of the
contract.[1] Tri-Dim does not argue this statute was
recently enacted or amended in a way to provide a defense to
Tri-Dim that previously did not exist.
A
statute of frauds defense is an affirmative defense which
must be affirmatively stated in responding to a pleading.
Fed.R.Civ.P. 8(c)(1). Tri-Dim did not state this affirmative
defense in its answer to FCA's third-party complaint, nor
did it ever seek leave to amend its answer to raise this
defense, nor did it raise this defense in its opposition to
FCA's motion for summary judgment. This is the epitome of
a matter that could have been raised during the pendency of
the previous motion.
Tri-Dim
argues the court should consider the belated statute of
frauds argument anyway because requiring a party to indemnify
another for the other's own negligence is strongly
disfavored under Michigan law and the issue is easily
resolved in Tri-Dim's favor because it is undisputed that
the contract was not signed and the law is clear that the
statute of frauds voids the challenged contract provisions.
In its prior order, the court found that under Michigan law a
contract to indemnify an indemnitee for its own negligence
was enforceable citing Daimler Chrysler Corp. v. Process
Development Corp., No. 234827, 235741, 2003 WL 21715874
(Mich. Ct. App. July 24, 2003), in which the Michigan Court
of Appeals held indemnification was required under contract
language very similar to the contract language here and on
legally indistinguishable facts. The court found the
interpretation and application of the contract language by
the Process Development court persuasive and
predicted the Michigan Supreme Court, if faced with the
FCA/Tri-Dim contract, would enforce it.
In its
brief, Tri-Dim states “having to indemnify FCA for its
own negligence is a substantial judgment that is strongly
disfavored by both Michigan and Illinois law.” In its
reply brief, it argues the court “should take into
account public policy considerations against allowing a party
obtaining indemnity for its own negligence when deciding
whether to declare the indemnity provision void under the
Statute of Frauds.” However, Tri-Dim cites Gartside
v. Young Men's Christian Ass'n of Metro. Chicago
Found., 274 N.W.2d 58, 60 (Mich. App. 1978) in its reply
brief. Gartside expressly states “[c]ontracts
to indemnify the indemnitee for damages caused by the
indemnitee's sole negligence are not unenforceable or
contrary to the public policy of this state.”
Id. There are no Michigan public policy
considerations weighing in Tri-Dim's favor on the issue
of indemnifying a party for its own negligence.
In its
response [143] to FCA's LR56.1(a)(3) statement of facts
[137], Tri-Dim did not contest that on the date of
plaintiff's injury Tri-Dim was providing janitorial
services to FCA pursuant to a purchase order (response to
¶ 28), that all services Tri-Dim was to provide under
that purchase order were to be in accordance with the General
Terms and Conditions (response to ¶ 29), that the
General Terms and Conditions were part of the agreement
between the parties (response to ¶ 30), that the General
terms and Conditions applied to all contracts for services
including the purchase order between Tri-Dim and FCA
(response to ¶ 31), and that the General Terms and
Conditions included the language which the court found in its
summary judgment order [158] established the duty to defend
and indemnify (response to ¶ 32). By not controverting
these facts, Tri-Dim admitted them. LR56.1(b)(3)(B)
(“All material facts set forth in the statement
required of the moving party will be deemed to be admitted
unless controverted by the statement of the opposing
party.”) Having admitted it was a party to this
contract and to all the terms of the contract, Tri-Dim cannot
now claim some of the terms it admitted were part of the
contract were, in fact, not terms of the contract at all.
Tri-Dim
asserts in its reply brief that it is not attempting to
change the undisputed facts. It attacks FCA's response
brief statement that “Tri-Dim submitted the affidavit
of Jay Burzynski, its regional manager, attesting to the
validity of the Purchase Order.” Tri-Dim argues
Burzynski's affidavit “simply attested “that
‘true and accurate copies' of the written
agreements in dispute were attached to his affidavit, ”
that he “did not provide any testimony indicating that
Tri-Dim waived its statute of frauds argument. Moreover, FCA
has not provided this Court with a signed copy of the
Purchase Order, or any facts that could be used as a basis
for arguing that the unsigned Purchase Order is exempt from
the statute of frauds. The undisputed facts therefore support
Trim-Dim.” This argument totally ignores the factual
admissions in Tri-Dim's response [143] to FCA's
LR56.1(a)(3) statement of facts discussed in the previous
paragraph. Tri-Dim admitted the duty to defend and indemnify
provisions were part of the contract. In opposing summary
judgment, it argued those terms did not require it to
indemnify FCA for FCA's own negligence, but the court
found Michigan law to hold otherwise. Tri-Dim chose not to
raise the statute of frauds as a defense in favor of arguing
the contract's indemnification terms did not require it
to indemnify FCA for FCA's own negligence. Nothing in
Tri-Dim's motion to reconsider persuades the court
Tri-Dim now should be allowed to make a different choice.
As
noted above, the court has discretion under Rule 54(b) to
reconsider a non-final order at any time. Mintz, 788
F.3d at 679. The court has reviewed Tri-Dim's arguments,
the court's summary judgment ruling, and the record in
this case. In exercising its discretion, the court has
weighed all these factors and declines to vacate its grant of
partial summary judgment in favor of FCA.
Alternatively,
Tri-Dim asks leave to file its own motion for summary
judgment in order to raise the statute of frauds defense.
Tri-Dim did not file a motion for summary judgment
previously. The deadline for such a motion was August 31,
2018. Tri-Dim filed its motion for leave to file a motion for
summary judgment on June 17, 2019, more than nine months
after the deadline.
Fed. R.
Civ. P. 16(b)(1) requires the court to enter a scheduling
order. Rule 16(b)(3)(A) requires a scheduling order to
“limit the time to . . . file motions.” Rule
16(b)(4) allows modification of deadlines set by a scheduling
order “only for good cause and with the judge's
consent.” The primary consideration in making a
good-cause determination under Rule 16(b)(4) is the diligence
of the party ...