Kiss. Pharm LLC v. Becker Professional Development Corp.

Decision Date29 July 2021
Docket Number18 C 7848
PartiesKISS PHARM LLC, Plaintiff, v. BECKER PROFESSIONAL DEVELOPMENT CORP, et al., Defendants.
CourtU.S. District Court — Northern District of Illinois
MEMORANDUM OPINION AND ORDER

Jeffrey Cole, Magistrate Judge.

‘A motion for reconsideration performs a valuable function where the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension. A further basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the issue to the Court. Such problems rarely arise and the motion to reconsider should be equally rare.'

Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 -1192 (7th Cir. 1990).

A.

Plaintiff has filed a Motion for Reconsideration of my Order of July 23, 2021. Even though the validity of a conclusion largely depends on the mode by which it was reached and the sources that sustain it, Joint Anti-facist Refugee Committee v McGrath, 341 U.S. 123, 171 (1951)(Frankfurter, J concurring), the motion cites absolutely no case law: no case law about the standards pertaining to motions for reconsideration or extensions for time sought after a deadline has passed.[1] For decades, in case after case, the Seventh Circuit and the district courts have refused to consider motions and arguments that are unsupported by citations to pertinent authority. See, e.g., Castelino v. Rose-Hulman Inst. of Tech., 999 F.3d 1031 (7th Cir. 2021); Williams v. Bd. of Educ. of City of Chicago, 982 F.3d 495, 511 (7th Cir. 2020); Johnson v. Ne. Sch. Corp., 972 F.3d 905, 911 (7th Cir. 2020); United States v. Barr, 960 F.3d 906, 916 (7th Cir. 2020); Schaefer v. Universal Scaffolding & Equip., LLC, 839 F.3d 599, 607 (7th Cir. 2016); Bretford Mfg., Inc. v. Smith Sys. Mfg. Corp., 419 F.3d 576, 581 (7th Cir. 2005); United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991); Moehrl v. Nat'l Ass'n of Realtors, 492 F.Supp.3d 768, 782 n.6 (N.D. Ill. 2020); Naturalock Sols., LLC v. Baxter Healthcare Corp., 2016 WL 2958374, at *2 n.1 (N.D. Ill. 2016). Indeed, it has to be said so often that one might simply say that counsel here has committed an error no worse than that repeatedly committed by counsel in scores of other cases. But, what has been done here is worse. Just three weeks ago, plaintiff was taken to task for the same lack of legal analysis and case citation and directed to the foregoing cases. [Dkt. #126]. That was a waste of time, as plaintiff simply ignored the Order and did the same thing again.

Requiring attorneys to perform legal research to support their motions is not a make-work demand. It is, of course, improper for a court to perform legal research on the behalf of one side. See, e.g., United States v. Sineneng-Smith, ___ U.S. ___, 140 S.Ct. 1575, 1579, 206 L.Ed.2d 866 (2020); Fednav Int'l Ltd. v. Cont'l Ins. Co., 624 F.3d 834, 842 (7th Cir. 2010)(We will not fill th[e] void by crafting arguments and performing the necessary legal research . . . .”). See also United States v. Gustin, 642 F.3d 573, 575 (7th Cir. 2011)([I]t is not a judge's job to assist one advocate at another's expense.”); Lee v. Chicago Youth Centers, 69 F.Supp.3d 885, 889 (N.D.Ill. 2014)(collecting cases). Moreover, the requirement forces attorneys to focus on the issues their motion raises - and the flaws that might make it inadvisable. In this case, for example, plaintiff ignores basic principles and long standing consistent case law covering motions for reconsideration and fails to make the showing required under that consistent body of case law.

B.

Motions for reconsideration serve a limited function; to correct manifest errors of law or fact or to present newly discovered evidence.” Hicks v. Midwest Transit, Inc., 531 F.3d 467, 474 (7th Cir. 2008). Motions for reconsideration are generally looked at with disfavor, see, e.g., Goplin v. WeCONNECT, Inc., 893 F.3d 488 (7th Cir. 2018); Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990); Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 4478 (2d ed.2002), and often for the very reason that attorneys filing them ignore the applicable case law limiting their purpose and seek to correct, not the errors of the court, but neglect of counsel. But, this approach of asking for a “do-over”, see, e.g., Vann-Foreman v. Illinois Cent. R.R. Co., 2021 WL 1209154, at *2 (N.D. Ill. 2021); Terese F. v. Saul, 396 F.Supp.3d 793, 795 (N.D. Ill. 2019); Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir. 1995)(“Were such a procedure to be countenanced, some lawsuits really might never end, rather than just seeming endless.”), as plaintiff has done here, serves only to take limited judicial resources away from litigants who are not looking for a second bite of the apple. A court's orders are “not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure.” Quaker Alloy Casting Co. v. Gulfco. Industries, Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988); see also Owens Trophies, Inc. v. Bluestone Designs & Creations, Inc., 2014 WL 5858261, at *3 (N.D. Ill. 2014); On Command Video Corp. v. Roti, 2010 WL 2740309, at *1 (N.D. Ill. 2010).

The plaintiff's dispute with the defendant over the purported misappropriation of portions of a nursing license review course is not the only case on the court's docket, and is certainly not more important that any other case. Briefing schedules are set to allow for the efficient and timely resolution of many discovery disputes ongoing in many cases. As such, while the parties' agreement on an extension can be helpful, it is not dispositive. And it is not helpful at all where, as here, it is not even reported to the court. Litigants do not own briefing or discovery schedules. Velez v. City of Chicago, 2021 WL 1978364, at *2 (N.D. Ill. 2021)(collecting cases); Lawrence v. United States, 2021 WL 601718, at *1 (N.D. Ill. 2021). There is an overriding public interest in prompt resolution of legal disputes. Gray v. Schaub, 182 F.3d 921 (7th Cir. 1999); Fort Howard Paper Co. v. Standard Havens, Inc., 901 F.2d 1373, 1380 (7th Cir. 1990). There is not only a cost to the public at large, which is subsidizing a dispute resolution service, but to the other litigants waiting in the queue for the court's attention. See Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015); Fort Howard, 901 F.2d at 1380; G & G Closed Cir. Events, LLC v. Castillo, 2016 WL 3551634, at *8 (N.D. Ill. 2016). Unfortunately the plaintiff's motion selfishly and self-defeatingly ignores all these considerations and interests.

All of the foregoing provides reason enough to deny the plaintiff's motion; still it is worthwhile to examine the motion for an extension of time plaintiff claims he was going to file on July 22nd, the day his response brief was due. Again, it has to be remembered that “my scheduling order allowed plaintiff an additional two weeks to respond to a four-month-old motion regarding discovery responses and objections . . . that were due, under Fed.R.Civ.P. 33 and 34 on April 30, 2020.” [Dkt. #138]. Yet, according to plaintiff's motion for reconsideration, after all that time, plaintiff's counsel let it go until the eleventh hour. The Seventh Circuit has warned, time and again, that when attorneys “wait until the last minute to comply with a deadline, they are playing with fire.” Spears v. City of Indianapolis, 74 F.3d 153, 157 (7th Cir.1996); see also Flint v. City of Belvidere, 791 F.3d 764, 768 (7th Cir. 2015); Calhoun v. Myatt, 499 Fed.Appx. 604, 606 (7th Cir. 2013); Elda Arnhold &Byzantio, L.L.C. v. Ocean Atl. Woodland Corp., 284 F.3d 693, 708 (7th Cir. 2002). Indeed, the Seventh Circuit has held that even a day's delay can be fatal. Brosted v. Unum Life Ins. Co. of Am., 421 F.3d 459, 464 (7th Cir. 2005); Tuke v. United States, 76 F.3d 155, 157 (7th Cir. 1996). Mishaps may be unavoidable, but dire consequences can be avoided or at least efficiently dealt with if things are taken care of ahead of time. Again, in this case, with a motion pending for months, there was plenty of time to be fully prepared or at least nearly fully prepared.

Because, as is inevitable, in litigation more so than even in life, things did not go smoothly. Plaintiff's counsel says that he forwarded a draft of the parties' joint proposed scheduling order to defense counsel the day before it and his response motion were due. Of course, defense counsel disagreed and made changes that plaintiff's counsel had to review. [Dkt. #140, Pars. 3-4]. For some reason, despite the history of the parties being unable to conduct Rule 37.2 negotiations in good faith with much success [Dkt. ## 103, 112, 124 ], plaintiff's counsel somehow failed to anticipate that there would be a disagreement and changes to address. [Dkt. #140, ¶. 5]. But, despite getting defendant's consent to an extension of time for filing his response brief, plaintiff's counsel failed to file the motion for an extension - which he claims he had completed on July 22nd - on the date the brief was due or even the day after. Why he was unable to file the purportedly completed motion for an extension of time at some point after my Order of July 23rd (entered at 3:41 p.m.) gave notice of his failure is left unexplained. He does explain that overall, his failure to comply with the scheduling order was due to dealing with the defendant's changes to his draft of the joint proposed discovery schedule, other matters on his schedule, and the fact that he is a sole practitioner. [Dkt. #140, Pars. 4-7].

Obviously as already indicated, that's not a manifest error by the court. But let's...

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