Refrigeration Sales v. Mitchell-Jackson 605 F.supp. 6

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Westlaw Delivery Summary Report for PATRON ACCESS,Date/Time of Request: Client Identifier: Database: Citation Text: Lines: Documents: Images: Monday, November 28, 2011 09:15 Eastern PATRON ACCESS FSFIND 605 F.Supp. 6 211 1 0 Civil. Illinois. Refrigeration Sales Co., Inc. v. Mitchell-Jackson, Inc. The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters, West and their affiliates. Page 1 605 F.Supp. 6 (Cite as: 605 F.Supp. 6) United St
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  Westlaw Delivery Summary Report for PATRON ACCESS,- Date/Time of Request: Monday, November 28, 2011 09:15 EasternClient Identifier: PATRON ACCESSDatabase: FSFINDCitation Text: 605 F.Supp. 6Lines: 211Documents: 1Images: 0 Civil. Illinois. Refrigeration Sales Co., Inc. v. Mitchell-Jackson, Inc. The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters,West and their affiliates.  United States District Court, N.D. Illinois, EasternDivision.REFRIGERATION SALES CO., INC., Plaintiff,v.MITCHELL–JACKSON, INC., et al., Defendants.No. 81 C 5581.Dec. 16, 1983.Upon plaintiff's motion for reconsideration of order granting summary judgment in favor of de-fendants,575 F.Supp. 971,and its motion for a new hearing, the District Court, Shadur, J., held that: (1)plaintiff could not assert a new position as a pur-ported basis for reconsideration of granting of sum-mary judgment in favor of defendants, and (2) mo-tion for new hearing could not be employed as avehicle to introduce new evidence that could havebeen adduced during pendency of summary judg-ment motion.Motions denied.West Headnotes [1]Federal Civil Procedure 170A 2641 170AFederal Civil Procedure170AXVIIJudgment170AXVII(G)Relief from Judgment 170Ak2641k. In General.Most CitedCasesMotion to reconsider is appropriate where courthas patently misunderstood a party, or has made adecision outside the adversarial issues presented tothe court by the parties or has made an error not of reasoning but of apprehension; a further basis formotion to reconsider would be a controlling or sig-nificant change in the law or facts since submissionof the issue to the court. [2]Federal Civil Procedure 170A 2559 170AFederal Civil Procedure170AXVIIJudgment170AXVII(C)Summary Judgment 170AXVII(C)3Proceedings170Ak2559k. Subsequent Proceed-ings.Most Cited CasesPlaintiff could not assert a new position as apurported basis for reconsideration of granting of summary judgment in favor of defendants. [3]Federal Civil Procedure 170A 2559 170AFederal Civil Procedure170AXVIIJudgment170AXVII(C)Summary Judgment 170AXVII(C)3Proceedings170Ak2559k. Subsequent Proceed-ings.Most Cited CasesMotion for new hearing could not be employedas a vehicle to introduce new evidence that couldhave been adduced during pendency of summary judgment motion. [4]Federal Civil Procedure 170A 2559 170AFederal Civil Procedure170AXVIIJudgment170AXVII(C)Summary Judgment 170AXVII(C)3Proceedings170Ak2559k. Subsequent Proceed-ings.Most Cited CasesAffidavits introduced in support of motion fornew hearing on motion for summary judgment didnot satisfy requirement of trial-type testimony.Fed.Rules Civ.Proc.Rule 56(e), 28 U.S.C.A. *6 Mark K. Schoenfield, Jerome H. Torshen, Ltd.,Chicago, for plaintiff.John F. Horvath, Conklin & Adler, Peter A. Quilici,Chicago, for defendant.MEMORANDUM OPINION AND ORDERSHADUR, District Judge.Page 1605 F.Supp. 6 (Cite as: 605 F.Supp. 6) © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.  On November 18FN1this Court's memor-andum opinion and order (the “Opinion”) grantedsummary judgment under Fed.R.Civ.P. (“Rule”) 56in favor of defendants and against RefrigerationSales Co., Inc. (“Refrigeration”), consequently dis-missing Refrigeration's Complaint with prejudice.575 F.Supp. 971.Refrigeration has now filed twomotions to set aside that judgment:FN1.All relevant dates are in 1983.1. Its Motion for Reconsideration was filedNovember 28 and entered and continued Decem-ber 5.2. Its Motion for New Hearing, filed December8, 1983, is nearly identical to the Motion for Re-consideration, except that it includes two affi-davits in support of Refrigeration's estoppel de-fense to theRule 56motion. *7 Both current motions are wholly withoutmerit for the reasons stated in this memorandumopinion and order.  Motion for Reconsideration [1]Three of Refrigeration's four grounds for“reconsideration” merely rehash its old arguments.  Above the Belt, Inc. v. Mel Bohannan Roofing, Inc. , 99 F.R.D. 99, 101 (E.D.Va.1983)explains the func-tion of motions for reconsideration and concludes:The motion to reconsider would be appropriatewhere, for example, the Court has patently mis-understood a party, or has made a decision out-side the adversarial issues presented to the Courtby the parties or has made an error not of reason-ing but of apprehension. A further basis for a mo-tion to reconsider would be a controlling or signi-ficant change in the law or facts since the submis-sion of the issue to the Court. Such problemsrarely arise and the motion to reconsider shouldbe equally rare.Refrigeration's first three asserted grounds donot fall into any of those categories. Instead theycontend this Court was in error on the issues it hadconsidered fully and spoken to in detail in theOpinion. Those arguments should of course be dir-ected to the Court of Appeals.[2]Refrigeration's fourth ground for reconsid-eration asserts this Court's misunderstanding of Re-frigeration's estoppel argument. Apparently Refri-geration's current position is that defendants are es-topped to assert the limitations period in their ware-house receipts because defendants procured a delayin the filing of this action. By contrast, this Courthad understood Refrigeration's position to be thatdefendants were estopped to assert the limitationsprovision because of actions occurring before thelimitations time period began to run. That conten-tion was rejected on the ground that acts giving riseto an estoppel must occur during the time period inwhich a plaintiff claims he relied on those acts tohis detriment.Reexamination of Refrigeration's summary judgment memorandum reconfirms this Court waswholly justified in its understanding of Refrigera-tion's argument, as originally posed on the sum-mary judgment motion. Refrigeration's Mem.10–11 specifically identified the following allegedfacts in support of its contention the six elements of estoppel under Illinois law were satisfied:1. The defendants repeatedly misrepresentedtheir inventory of Refrigeration's goods and theamounts of storage charges to which M–J was en-titled;2. The defendants knew since 1977 that theirinventory records were incorrect and that theirmonthly invoices misstated the actual inventoryof Refrigeration's goods beyond any minor fluc-tuations normally caused by the lag-time intro-duced by paperwork;3. Refrigeration was not aware that M–J wasmisstating its actual inventory of Refrigeration'sgoods;4. The defendants fully expected RefrigerationPage 2605 F.Supp. 6 (Cite as: 605 F.Supp. 6) © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.  to pay the storage charges assessed by M–J;5. In reliance on the amounts stated in M–J'smonthly storage bills, Refrigeration paid all suchamounts to M–J. Additionally, Refrigeration mar-keted its products and promised shipments to itsChicago-area customers in reliance on the mis-stated figures in M–J's inventory reports;6. Thus, Refrigeration paid storage charges onmerchandise that was not actually in storage atthe M–J warehouse, and Refrigeration lost cus-tomers in the Chicago area when M–J was unableto ship Refrigeration's goods to such customers,because the quantities stated in M–J's inventoryreports were not actually in stock.Thus Refrigeration is not really clarifying itssrcinal position. It is rather asserting a new posi-tion as a purported basis for “reconsideration.” Thatkind of afterthought, or shifting of ground, is alsonot one of the circumstances in which a motion forreconsideration is appropriate. As the *8 next sec-tion demonstrates, with the most limited of excep-tions (none of which applies here) a party gets one chance to try its case—and for that purpose sum-mary judgment is the equivalent of trial.  Motion for New Hearing Refrigeration's motion for new hearing suffersfrom two defects. Either would be fatal. Togetherthey are compellingly so.[3]First, Refrigeration's newly-tendered sub-mission of two affidavits in support of its positionthat defendants procured the late filing of its actionconstitutes an impermissible piecemeal presentationof evidence.FN2In resisting defendants' summary judgment motion, Refrigeration presented no evid-ence and relied on the evidence submitted by de-fendants. Summary judgment motions are intendedto take the place of trials, and Refrigeration's totalfailure to produce evidence in its own defense is nodifferent from the failure to produce evidence at tri-al. What this Court wrote in Keene Corp. v. Inter -national Fidelity Insurance Co., 561 F.Supp. 656,665–66 (N.D.Ill.1983)(footnote omitted) mightwell have been written for this case:FN2.That would be the case even had Re-frigeration really identified and presentedthat version of its estoppel argument thefirst time around—that is, were this Courtto have reached a different result on the is-sue discussed in the preceding section. In-deed, there would be even less excuse forRefrigeration's posing the issue and failingto offer the allegedly relevant evidencewhen the srcinal summary judgment mo-tion was presented for decision.Such motions [for reconsideration or, as in thiscase, for new hearing] cannot in any case be em-ployed as a vehicle to introduce new evidencethat could have been adduced during pendency of the summary judgment motion. SeeWalker v. Hoffman, 583 F.2d 1073, 1075 (9th Cir.1978),quoting Donnelly v. Guion, 467 F.2d 290, 293(2d Cir.1972):The non-movant has an affirmative duty tocome forward to meet a properly supportedmotion for summary judgment:A party opposing a motion for summary judgment simply cannot make a secret of hisevidence until the trial, for in doing so he risksthe possibility that there will be no trial. Asummary judgment motion is intended to“smoke out” the facts so that the judge can de-cide if anything remains to be tried.  Accord, W.A. Krueger Co. v. Northern Trust Co., No. 81 C 6064, slip op. at 7 n. 7 (N.D.Ill. Jan. 7,1983) (“a litigant cannot ‘hold back’ evidence ona summary judgment motion”).Just this month our Court of Appeals dealt withthe related issue of a failure to present evidentiarymatters during trial in Canada Dry Corp. v. Nehi Beverage Co., Inc., 723 F.2d 512 (7th Cir.1983). Itheld such failures to act constitute a trial strategy toPage 3605 F.Supp. 6 (Cite as: 605 F.Supp. 6) © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
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