Opinion
No. 00 C 191.
July 1, 2004
Wismarq's Motion for Reconsideration is DENIED.
Wismarq moves for reconsideration of my order denying its motion for summary judgment. "Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence." Caisee Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996) (quoting Keene Corp. v. Int'l Fid. Ins. Co., 561 F. Supp. 656, 665 (N.D. Ill. 1982), aff'd, 736 F.2d 388 (7th Cir. 1984)). "Reconsideration is not an appropriate forum for rehashing previously rejected arguments." Caisse Nationale, 90 F.3d at 1270.
Wismarq first argues that I erred in failing to strike the affidavit of Ken Minor as untimely. I considered this argument when Wismarq first offered it in its motion to strike the same affidavits, and after doing so rejected the argument. Accordingly, this basis for reconsideration is nothing more than "rehashing previously rejected arguments." Id. If Wismarq thinks that I have erred, there are courts of appeals established for this very purpose. Regardless, upon further consideration, I am still convinced that my initial decision was correct legally and practically. Wismarq asserts that Minor's affidavit presents "new evidence," but I fail to see how this is so. At the least, Wismarq has done a poor job of making this point, and perhaps they can do better on appeal. Even if Minor has presented new evidence and conceding that his affidavit was untimely, I granted leave to Wismarq to re-depose him on the limited issue of the alleged "new opinions" contained in the affidavit. I consider this a fair resolution. As for its request for costs associated with re-deposing him, this request is reasonable and I will thus entertain such a motion after the deposition. Finally, if Wismarq re-deposes Minor and believes that summary judgment is still appropriate, it is further granted for leave to file such a motion. But for what it is worth, I believe that this case is best suited for either settlement or trial.
If Wismarq ultimately prevails on another summary judgment motion, then I will entertain a separate motion for the costs of preparing its first motion for summary judgment.
Wismarq next argues that I erred in failing to strike the affidavit of Michael Clinton as untimely. Once again, this basis for reconsideration is nothing more than "rehashing previously rejected arguments." Id. Moreover, Clinton is not presented as an expert so I fail to see how Rule 26(a)(2) applies. Furthermore, the "new evidence" allegedly offered by Clinton is actually good evidence for Wismarq because he has reduced Holden's claim for damages by almost 88%. I can see how time was arguably wasted by Wismarq filing a summary judgment motion on the basis of speculative damages, but I fail to see how this severe reduction in damages constitutes an "ambush" of Wismarq. Baker v. Indian Prairie Cmty. Unit School Dist. No. 204, No. 96 C 3927, 1999 WL 988799, at *3 (N.D. Ill. Oct. 27, 1999). Nonetheless, I also granted Wismarq leave to re-depose Clinton as a result of allegedly "new evidence," and as with Minor, I will entertain a motion for costs and related expenses of conducting this second deposition after it has occurred.
Wismarq's final basis for reconsideration is that I "misapprehended a fact critical" to my ruling. However, there is no fact that I misapprehended. The so-called "fact" is actually an "inference" which Wismarq believes that I should have drawn based on alleged inconsistencies between Minor's expert opinions and statements in his deposition. However, summary judgment on the basis of an inference is rarely, if ever, appropriate. Wismarq may very well be correct that Minor has been inconsistent or that certain inferences should be drawn based on his testimony, but these are arguments for a jury, not for summary judgment.
For the reasons above, Wismarq's Motion for Reconsideration is DENIED.