Holmes v. BACK DOCTORS, LTD.

Decision Date12 March 2010
Docket NumberCivil No. 09-540-GPM.
Citation695 F. Supp.2d 843
CourtU.S. District Court — Southern District of Illinois
PartiesCynthia S. HOLMES, P.C., a Missouri professional corporation, individually and as the representative of a class of similarly situated persons, Plaintiff, v. BACK DOCTORS, LTD., d/b/a Fairview Heights Spine & Injury Center, Defendant.

Phillip A. Bock, Bock & Hatch, LLC, Chicago, IL, Robert J. Sprague, Sprague & Urban, Belleville, IL, for Plaintiff.

Brian T. Kreisler, Kevin T. Hoerner, Becker, Paulson et al., Belleville, IL, Richard J. Burke, Jr., Richard J. Burke LLC, St. Louis, MO, for Defendant.

MEMORANDUM AND ORDER

MURPHY, District Judge:

I. INTRODUCTION

This matter is before the Court on the motion to alter or amend the judgment in this case brought by Plaintiff Cynthia S. Holmes, P.C. ("Holmes") (Doc. 13). The procedural history of this case and the events leading to the judgment as to which Holmes seeks relief do not require extensive recitation here, as they have been recounted already in prior orders entered in this case. See Holmes v. Back Doctors, Ltd., Civil No. 09-540-GPM, 2009 WL 3425961 (S.D.Ill. Oct. 21, 2009); Cynthia L. Holmes, P.C. v. Back Doctors, Ltd., Civil No. 09-540-GPM, 2009 WL 2930634 (S.D.Ill. Sept. 10, 2009). In this case, Holmes alleges that Defendant Back Doctors, Ltd. ("Back Doctors"), sent Holmes unsolicited advertisements via facsimile transmission ("fax"), in violation of the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227; Holmes also asserts against Back Doctors pendent state-law claims for conversion and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/1 et seq. On October 21, 2009, the Court granted summary judgment for Back Doctors on Holmes's TCPA claim, finding that the faxes at issue were informational and thus not advertising under rules and regulations promulgated by the Federal Communications Commission ("Commission") pursuant to the TCPA. See Holmes, 2009 WL 3425961, at **3-4 (citing Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25967-01, 25973 (May 3, 2006) (to be codified at 47 C.F.R. § 64.1200)). After dismissing Holmes's TCPA claim, the Court declined to exercise supplement jurisdiction over Holmes's claims for conversion and violation of the ICFA and dismissed Holmes's state-law claims without prejudice. See id. at *5. Finally, in the October 21 order the Court noted also that there appeared from the record to be a question about whether false evidence concerning Holmes's consent to receive faxes from Back Doctors had been submitted to the Court on summary judgment, and advised the parties and their counsel that this issue would be explored further by the Court. See id. at *6. Judgment was entered in this case on October 21, 2009. On November 4, 2009, Holmes moved to vacate the judgment in this case, citing newly-discovered evidence and manifest errors of law by the Court in its order granting summary judgment. On February 8, 2010, the Court conducted a hearing in this case. At the hearing the Court heard oral argument on Holmes's motion to vacate the judgment in this case. Additionally, the Court heard evidence in the form of testimony by Cynthia Holmes and Pamela Ramkissoon about the issue of whether false evidence regarding Holmes's consent to receive faxes from Back Doctors had been submitted to the Court on summary judgment. The Court also has permitted Holmes to make certain filings to supplement the record, including an affidavit from Steven C. Mandlman and an amended affidavit from Cynthia Holmes, as well as a filing concerning the average length of telephone calls made by Ramkissoon to various attorneys, including Holmes. The Court has considered all of the arguments and evidence of the parties, and it now rules as follows.

II. ANALYSIS

As an initial matter, the Court notes the legal standard under which it must evaluate Holmes's motion to vacate the judgment in this case. Holmes seeks relief from the judgment on the basis of what it claims is newly discovered evidence that Back Doctors's faxes to Holmes are indeed advertising for purposes of the TCPA. Also, Holmes, which alleged in its complaint and its brief in opposition to summary judgment only that Back Doctors sent Holmes unsolicited advertising faxes, now asserts that the Court committed a manifest error of law in granting summary judgment for Back Doctors because the Court overlooked certain other violations by Back Doctors of the TCPA and regulations promulgated thereunder by the Commission. Because Holmes's motion for relief from the judgment in this case is premised on newly discovered evidence and manifest errors of law, the Court construes the motion as being brought, as Holmes asserts that it is, under Rule 59 of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 59(e); Osterneck v. Ernst & Whinney, 489 U.S. 169, 174, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989) (Rule 59(e) encompasses reconsideration of matters decided on the merits); Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir.2008) (it is "the substance, rather than the form, of a post-judgment motion" that determines whether a motion for relief from a judgment is deemed to be brought under Rule 59 or Rule 60 of the Federal Rules of Civil Procedure); Ware v. Love, Civil No. 07-cv-727-GPM, 2009 WL 393777, at *1 (S.D.Ill. Feb. 17, 2009) (when a motion to alter or amend a judgment is filed within ten days of entry of the judgment, "whether the motion is analyzed under Rule 59(e) or Rule 60(b) depends upon the substance of the motion, not on the timing or label affixed to it.").1

A motion to alter or amend a judgment brought under Rule 59(e) serves the limited function of alerting a court to matters such as newly discovered evidence or manifest errors of law or fact. See Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1121 n. 3 (7th Cir.2001); LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir.1995); Publishers Res., Inc. v. Walker-Davis Publ'ns, Inc., 762 F.2d 557, 561 (7th Cir.1985); Brown v. Alter Barge Line, Inc., 461 F.Supp.2d 781, 783-84 (S.D.Ill.2006). However, Rule 59(e) does not give a party the opportunity to undo its own procedural failures or present new evidence or arguments "that could and should have been presented to the district court prior to the judgment." Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir.1996). See also County of McHenry v. Insurance Co. of W., 438 F.3d 813, 819 (7th Cir.2006); Divane v. Krull Elec. Co., 194 F.3d 845, 850 (7th Cir.1999); Ledbetter v. Jackson County Ambulance Serv., Civil No. 05-4190-GPM, 2007 WL 4226071, at *3 (S.D.Ill. June 12, 2007). The decision to grant or deny a Rule 59(e) motion is entrusted to a district court's discretion. See Andrews v. E.I. Du Pont De Nemours & Co., 447 F.3d 510, 515 (7th Cir.2006); Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir.2000); In re Prince, 85 F.3d 314, 324 (7th Cir.1996); Wheeler v. Pension Value Plan for Employees of Boeing Co., No. 06-cv-500-DRH, 2007 WL 2608875, at *3 (S.D.Ill. Sept. 6, 2007). With the foregoing standard in mind, the Court turns to evaluation of Holmes's Rule 59(e) motion.

A. Newly Discovered Evidence

In this instance, as noted, Holmes seeks Rule 59(e) relief on the basis of what it claims is newly discovered evidence that Back Doctors's faxes to Holmes in fact are advertising for purposes of the TCPA. Specifically, Holmes relies upon materials gleaned from the Internet that suggest that a company called CMCS Management, Inc. ("CMCS"), may have been involved in the faxes sent by Back Doctors to Holmes. According to Holmes's motion to vacate the judgment in this case, an Internet search by Holmes's counsel after entry of the judgment disclosed the existence of a class action settlement in a state court in Washington between CMCS and recipients of unsolicited advertising faxes designed on behalf of chiropractors by CMCS. Apparently notice of the settlement led Holmes's counsel to CMCS's website (http://www.cmcsmanagement. com/db/), which advertises a "Lawyers Marketing Program" designed to help chiropractors attract customers from personal injury lawyers. For a fee of $199 per month, CMCS's website promises chiropractors participating in the "Lawyers Marketing Program" to "send 2 educational pieces to as many as 500-600 personal injury attorneys offices in your area per month." Doc. 13-4 at 1. Exemplar CMCS faxes accompanying the notice of the Washington class action settlement and available on CMCS's website strongly resemble the faxes sent to Holmes by Back Doctors. See Doc. 2-2 at 14-15; Doc. 13-2 at 1; Doc. 13-8 at 1-2. Also attached to Holmes's Rule 59(e) motion are documents from the website of Business Link International, a company that broadcasts faxes for CMCS on behalf of chiropractors participating in the "Lawyers Marketing Program." According to Holmes, because the avowed purpose of the CMCS program is to help participating chiropractors "build a huge . . . practice," Doc. 13-3 at 1, the faxes sent to Holmes by Back Doctors in fact constitute advertising within the meaning of the TCPA.

As Holmes concedes, it is not altogether clear that the faxes sent to Holmes by Back Doctors in fact were transmitted as part of the "Lawyers Marketing Program." As Holmes also concedes, the evidence it submits in support of its Rule 59(e) motion could have been adduced while Back Doctors's summary judgment motion was pending; in this connection, for example, the Court notes that the notice of the Washington class settlement involving CMCS is dated September 2009, well before the Court granted summary judgment in this case. Holmes contends that it was Back Doctors's burden to submit evidence regarding CMCS's "Lawyers Marketing Program" to the Court on summary judgment, so that the Court could make an informed decision about...

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