Opinion
No. 97 C 5514
January 26, 2001
MEMORANDUM OPINION AND ORDER
On November 20, 2000, following the completion of the jury trial in this action, the jury returned verdicts in favor of defendant-counter plaintiff Daniels Food Equipment, Inc. ("Daniels") and against plaintiff counter defendant Hollymatic Corporation ("Hollymatic")
1. on all of Hollymatic's claims against Daniels and
2. on Daniels' counterclaim for unpaid goods sold and delivered having a stipulated value of $190,719.25.
Postjudgment Daniels has filed a motion under Fed.R.Civ.P. ("Rule") 59(e) to amend the judgment on its counterclaim to include prejudgment interest, and each side has objected in part to the other side's bill of costs. With those motions now having been finally briefed by the parties, they are ripe for decision.
Daniels' Rule 59(e) Motion
Although there is no question as to Daniels' Rule 59(e) motion's timeliness, Hollymatic quarrels vigorously with its scope. This opinion will first address each of the claimed defects in Daniels' postjudgment request for prejudgment interest.
Despite the November 20 date on which the jury ruled, the Clerk's Office failed to make its docket entry reflecting that outcome until November 27. Accordingly Daniels' December 8 filing of its motion came well within the 14-day period provided by Rule 59(e) as impacted by Rule 6(a)
In doing so this Court will not follow the more logical approach of addressing first things first (in this instance that would call for initially looking at Hollymatic's contention that Daniels has waivedmesh or more accurately forfeited — right to recover prejudgment interest on the theory that Daniels has now advanced for the first time), because Daniels has surprisingly not responded at all to that basic issue of its belated shift in the theory on which it pegs its interest claim to begin with. Instead the issue that Daniels has addressed — of the potential applicability or inapplicability of 815 ILCS 205/2 (Daniels' new theory of recovery) — be dealt with first.
Further citations to the Illinois statutes will take the form "Section ___," omitting the reference to 815 ILCS.
On that score this Court rejects at the outset Hollymatic's argument that the monies that were due and owing were not pursuant to an "instrument of writing." Although the long-term contract between the parties may not have been implicated in the sales in question, each shipment was made pursuant to a separate written agreement (an accepted purchase order). Accordingly if Section 205/2 were to be potentially available to Daniels, the "instrument of writing" precondition to such applicability would pose no difficulty.
Nor are a few other technical arguments advanced by -Hollymatic persuasive. For example, given the parties' stipulation as to the unpaid amount, there was no need for Daniels to offer into evidence (or for this Court to admit) the purchase orders in order to confirm the existence of the written agreements. Nor do Hollymatic's objections as to the asserted difficulty of making the interest calculation appear persuasive.
Even so, what the parties really have not addressed is the entire notion of introducing, after completion of the trial, any evidence that could have been adduced during the trial. This is not simply a matter of whether the prejudgment interest determination is for the court rather than the jury to make (a subject on which the parties' submissions are also silent), for it also poses the basic question whether the entire record in a case has to be developed before the case goes to judgment (subject to such obvious exceptions as a claim for attorneys' fees, which by definition cannot be quantified until after completion of the underlying case).
In sum, if Daniels were indeed entitled to prejudgment interest under Section 205/2, the quantification of that recovery would seem to present no problem. But Daniels faces a more basic difficulty: Hollymatic has pointed out correctly that Daniels' current position involves a postjudgment shift in its legal theory. Its Amended Counterclaim was silent as to the predicatefor such a recovery (even apart from the difference between the then-claimed amount and the amount stipulated to at trial) and in the parties' jointly tendered final pretrial order ("FPTO")-which the caselaw treats as the equivalent of a pleading, including the amendment of earlier-filed pleadings — daniels identified its claimed right to such interest as recoverable not under Section 205/2, but under Section 205/(see FPTO Section (g)).
In that respect Hollymatic has cited the holding in this Court's opinion in Keene Corp. v. International Fid. Ins. Co., 561 F. Supp. 656, 665-66 (N.D.Ill. 1982), which was not only affirmed but was expressly adopted by our Court of Appeals ( 736 F.2d 388, 393 (7th Cir. 1984)), that a Rule 59 postjudgment motion cannot serve as the occasion for tendering new legal theories for the first time. That doctrine has since been adhered to regularly by our Court of Appeals, frequently quoting the Keene languagemdash, e.g., such cases as Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996) and cases cited there, including Ballv Export Corp. v. Balicar Ltd., 804 F.2d 398, 404 (7th Cir. 1986), which was characterized in Caisse Nationale as having held that "a motion to reconsider is not the appropriate vehicle to introduce new legal theories, " and Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir. 1985), which not only quoted Keene but in doing so also specially emphasized this portion of the quotation, which is squarely applicable to the present case:
Nor should a motion for reconsideration serve as the occasion to tender new legal theories for the first time.
For its part, Daniels has been worse than silent on that subject. Not only did its recently-filed Final Brief fail to respond to Hollymatic's argument directly, but its sparse treatment (or lack of treatment) of any basis for its prejudgment interest claim actually dissembled by stating (Final Brief ¶ 1)
Daniels asserts that it has cited 815 ILCS 205 [sic] as a basis for interest and presently asserts that 815 ILCS 205/2 is the basis for entry of judgment in this regard.
That reference to "205" rather than to Daniels' FPTO citation of "205/1" is of course an impermissible effort to finesse rather than to face the issue posed by Hollymatic's objection. With no showing having been made by Daniels that the provisions of Section 205/1 create any predicate for an award of prejudgment interest, and with Daniels having failed to provide any response whatever to support the advancement of its new legal theory via a Rule 59(e) motion, its request for such prejudgment interest on that theory must be viewed as having been forfeited. Its Rule
That term is used because "waiver" in the classic sense connotes the voluntary surrender of a right, rather than a procedural default or something similar to that. 59(e) motion is therefore denied.
Daniels' Bill of Costs
In response to Hollymatic's particularized objections to Daniels' bill of costs, Daniels makes the blanket assertion that it "is the prevailing party" in the litigation (Final Brief ¶ 10) That global position is simplistic, because Hollymatic did prevail on Daniels' defamation counterclaim, although Daniels prevailed on the other claims in the litigation. For purposes of awarding costs, it makes good sense to treat that defamation claim as if it were a separate action, with Rule 54(d) (1)'s allowances of costs to be viewed from that perspective.
In that regard it would appear that Hollymatic is correct in opposing the taxing of costs in Daniels' favor as to the depositions of Dean Schlichting and Richard Biro, which Hollymatic says related to its defense of Daniels' unsuccessful defamation claim (Daniels' Final Brief ¶ 9 really does not answer that position in any satisfactory way). What is less clear is Hollymatic's objection that other depositions included in Daniels' bill of costs were utilized both in Hollymatic's defense of the defamation claim and in connection with the claims on which Daniels prevailed. Daniels' Final Brief casts no light on that contention, and this Court is therefore unable to evaluate the parties' positions.
Hollymatic's final objection targets Daniels' claim for reimbursement of costs for copying, to which Daniels offers up only a generalized response. This Court has no problem with Daniels' per-page copying rate of $.10, but in light of the mixed outcome of the litigation it cannot automatically grant a wholly nonparticularized request for more than 6,000 pages of copying.
Accordingly no final ruling can be made on Daniels' bill of costs. Further input is needed from the litigants.
Hollymatic's Bill of Costs
To the extent that Daniels similarly objects to Hollymatic's costs request attributable to depositions, the prior section of this opinion has dealt (Or, more accurately, has not dealt) with that issue. Again more is needed from the parties on that score.
Another item to which Daniels objects is Hollymatic's attempted recovery of the expense of Peter Tolley in renting a Cessna plane to be piloted to Chicago. That request is totally inappropriate, and Daniels' objection is sustained.
Daniels also objects to part of Hollymatic's request that is at odds with an agreement of the parties to split those expenses. That objection by Daniels is also sustained.
Finally, as to Hollymatic's request for exhibit blowups for demonstrative purposes, this Court finds Daniels' position entirely persuasive. Even apart from the question whether such usage is appropriately taxable to begin with, Daniels points out that fair is fair: It had comparable expenses for which it did not seek recovery. Here too Daniels' objection is sustained.
Conclusion
As indicated earlier in this opinion, Daniels' Rule 59(e) motion for the award of prejudgment interest is denied. As to the costs disputes (running in both directions), full information to enable the resolution of those quarrels is lacking. As a matter of sheer economics, it would no doubt occupy more lawyer time (and hence more client expense) to get those items fine-tuned than the issues would merit. Accordingly this Court urges the parties to seek to resolve those issues based on the principles set out in this opinion. If they are unable to do so, this Court will await further submissions consistent with what has been said here.