United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. Gettleman, United States District Judge
Kurt Horvath alleges that oxygen tanks were negligently
delivered to his home, injuring him. In state court,
plaintiff sued three companies allegedly responsible for
delivering the tanks: (1) Apria Healthcare, LLC; (2) Apria
Healthcare Group, Inc.; and (3) Apria Healthcare, Inc. The
first two Apria companies ("Apria") removed to this
court based on diversity jurisdiction. Apria now moves to
compel arbitration. In the alternative, Apria moves to
dismiss based on claim preclusion. Both motions are denied.
Motion to compel arbitration
should compel arbitration when there is "a written
agreement to arbitrate, a dispute within the scope of the
arbitration agreement, and a refusal to arbitrate."
Zurich American Insurance Co. v. Watts Industries,
Inc., 417 F.3d 682, 687 (7th Cir. 2005), citing 9 U.S.C.
§ 4. Courts review a motion to compel arbitration under
a summary judgment standard. Tinder v. Pinkerton
Security, 305 F.3d 728, 735-36 (7th Cir. 2002). To avoid
arbitration, a party "must identify a triable issue of
fact concerning the existence of the agreement."
Id. at 735.
is no evidence that plaintiff agreed to arbitrate disputes
with Apria. He signed a rental agreement authorizing various
payment terms. That twelve-page rental agreement has no
arbitration clause. It never once uses the word
"arbitration." Apria nonetheless asserts that the
rental agreement "contained" an arbitration clause.
But if the agreement incorporated some other document by
reference, Apria must show "an intention to incorporate
th[at] document and make it a part of the contract."
188 LLC v. Trinity Industries. Inc.. 300 F.3d 730,
737 (7th Cir. 2002), quoting Arneson v. Board of
Trustees, McKendree College, 210Ill.App.3d 844, 850-51
(111. App. 1991). Apria has not tried to make that showing.
Apria points to nothing in the rental agreement that even
refers to an arbitration clause-much less to a "clear
and specific" incorporation, which Illinois law demands.
188 LLC, 300 F.3d at 736.
instead points to a separate form titled, "Terms and
Conditions / Authorizations / Consents." That form has
no signature and no date. It does not mention plaintiffs
name. But unlike the rental agreement, the form has an
arbitration clause. Apria proclaims that this three-page form
"appeared on the back" of the signed rental
agreement. Apria argues that by signing the rental agreement,
plaintiff agreed to the terms-and-conditions form-and thus to
the arbitration clause.
argument is procedurally inappropriate. It relies on two
affidavits submitted with Apria's reply. In those
affidavits, Apria's employees state that: (1) the
terms-and-conditions form "appeared on the back" of
plaintiff's rental agreement; and (2) Apria retains only
the first and last pages of signed rental agreements-and
those pages do not include the terms-and-conditions form. The
affidavits are untimely. They were not served with
Apria's motion to compel arbitration. See
Fed.R.Civ.P. 6(c)(2) ("Any affidavit supporting a motion
must be served with the motion.").
worse, by waiting until its reply to submit new evidence and
new arguments based on that evidence, Apria denied plaintiff
a fair chance to respond. "A reply brief is for
replying"- not for sandbagging. Hussein v. Oshkosh
Motor Truck Co.. 816 F.2d 348, 360 (7th Cir. 1987)
(Posner, J., concurring); Murphy v. Village of Hoffman
Estates, No. 95 C 5192, 1999 WL 160305, at *2 (N.D. 111.
Mar. 17, 1999) ("[I]t is established beyond peradventure
that it is improper to sandbag one's opponent by raising
new matter in reply"). A lawyer who plays dirty by
sneaking in new evidence disserves his clients and tarnishes
his credibility. As a sanction, the court strikes not only
Apria's belated affidavits, but Apria's reply brief
in its entirety.
a reasonable jury could find that the terms-and-conditions
form lacks any connection to the rental agreement plaintiff
signed, Apria's motion to compel arbitration is denied.
Plaintiffs motion to strike Apria's reply is granted.
Plaintiff is granted leave to file an amended complaint that
adds a spoliation claim for any evidence that Apria may have
Motion to dismiss based on claim preclusion
Apria moves to dismiss based on res judicata-or, more
precisely, claim preclusion. Dookeran v. Cook County,
Illinois, 719 E3d 570, 574 n.2 (7th Cir. 2013). Claim
preclusion is a doctrine that bars people from litigating a
claim more than once. Plaintiff filed an earlier suit against
Apria that was involuntarily dismissed for want of
prosecution. Horvath v. Apria Healthcare, LLC et al,
18 CV 6726, Docs. 26-27 (N.D. 111. Jan. 15, 2019) (Weisman,
common law governs the claim-preclusive effect of a dismissal
by a federal court sitting in diversity." CFE Group,
LLC v. Firstmerit Bank, N.A., 809 E3d 346, 351 (7th Cir.
2015) (citation and quotation marks omitted). Under federal
common law, a federal court exercising diversity jurisdiction
applies the preclusion principles of the state. Id.
Claim preclusion under Illinois law requires a court to have
entered a "final judgment on the merits." Nowak
v. St. Rita High School 197 Ill.2d 381, 390 (111. 2001).
argues that two of Judge Weisman's orders operate as
final judgments on the merits: (1) a minute entry dismissing
plaintiffs suit without prejudice for want of prosecution;
and (2) a subsequent order denying plaintiffs Fed. R. Civ. R
60(b) motion to reinstate the case. Those arguments are
frivolous. Apria's motion to dismiss based on claim
preclusion is denied.
Preclusive effect of minute entry dismissing plaintiffs ...