Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 81 C 5581.

• Decision Date: 16 December 1983
• Docket Number: No. 81 C 5581.,81 C 5581.
• Citation: 605 F. Supp. 6
• Parties: REFRIGERATION SALES CO., INC., Plaintiff, v. MITCHELL-JACKSON, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

605 F. Supp. 6

REFRIGERATION SALES CO., INC., Plaintiff, v. MITCHELL-JACKSON, INC., et al., Defendants.

No. 81 C 5581.

United States District Court, N.D. Illinois, E.D.

December 16, 1983.

Mark K. Schoenfield, Jerome H. Torshen, Ltd., Chicago, for plaintiff.

John F. Horvath, Conklin & Adler, Peter A. Quilici, Chicago, for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

On November 18¹ this Court's memorandum opinion and order (the "Opinion") granted summary judgment under Fed.R. Civ.P. ("Rule") 56 in favor of defendants and against Refrigeration Sales Co., Inc. ("Refrigeration"), consequently dismissing Refrigeration's Complaint with prejudice. 575 F.Supp. 971. Refrigeration has now filed two motions to set aside that judgment:

1. Its Motion for Reconsideration was filed November 28 and entered and continued December 5.

2. Its Motion for New Hearing, filed December 8, 1983, is nearly identical to the Motion for Reconsideration, except that it includes two affidavits in support of Refrigeration's estoppel defense to the Rule 56 motion.

Both current motions are wholly without merit for the reasons stated in this memorandum opinion and order.

Motion for Reconsideration

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 function of motions for reconsideration and concludes:

The motion to reconsider would be appropriate where, for example, 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.

Refrigeration's first three asserted grounds do not fall into any of those categories. Instead they contend this Court was in error on the issues it had considered fully and spoken to in detail in the Opinion. Those arguments should of course be directed to the Court of Appeals.

Refrigeration's fourth ground for reconsideration asserts this Court's misunderstanding of Refrigeration's estoppel argument. Apparently Refrigeration's current position is that defendants are estopped to assert the limitations period in their warehouse receipts because defendants procured a delay in the filing of this action. By contrast, this Court had understood Refrigeration's position to be that defendants were estopped to assert the limitations provision because of actions occurring before the limitations time period began to run. That contention was rejected on the ground that acts giving rise to an estoppel must occur during the time period in which a plaintiff claims he relied on those acts to his detriment.

Reexamination of Refrigeration's summary judgment memorandum reconfirms this Court was wholly justified in its understanding of Refrigeration's argument, as originally posed on the summary judgment motion. Refrigeration's Mem. 10-11 specifically identified the following alleged facts in support of its contention the six elements of estoppel under Illinois law were satisfied:

1. The defendants repeatedly misrepresented their inventory of Refrigeration's goods and the amounts of storage charges to which M-J was entitled;

2. The defendants knew since 1977 that their inventory records were incorrect and that their monthly invoices misstated the actual inventory of Refrigeration's goods beyond any minor fluctuations normally caused by the lag-time introduced by paperwork;

3. Refrigeration was not aware that M-J was misstating its actual inventory of Refrigeration's goods;

4. The defendants fully expected Refrigeration to pay the storage charges assessed by M-J;

5. In reliance on the amounts stated in M-J's monthly storage bills, Refrigeration paid all such amounts to M-J. Additionally, Refrigeration marketed its products and promised shipments to its Chicago-area customers in reliance on the misstated figures in M-J's inventory reports;

6. Thus, Refrigeration paid storage charges on merchandise that was not actually in storage at the M-J warehouse, and Refrigeration lost customers in the Chicago area when M-J was unable to ship Refrigeration's goods to such customers, because the quantities stated in M-J's inventory reports were not actually in stock.

Thus Refrigeration is not really clarifying its original position. It is rather asserting a new position as a purported basis for "reconsideration." That kind of afterthought, or shifting of ground, is also not one of the circumstances in which a motion for reconsideration is appropriate. As the next section demonstrates, with the most limited of exceptions (none of which applies here) a party gets one chance to try its case—and for that purpose summary judgment is the equivalent of trial.

Motion for New Hearing

Refrigeration's motion for new hearing suffers from two defects. Either would be fatal. Together they are compellingly so.

First, Refrigeration's newly-tendered submission of two affidavits in support of its position that defendants procured the late filing of its action constitutes an impermissible piecemeal presentation of evidence.² In resisting defendants' summary judgment motion, Refrigeration presented no evidence and relied on the evidence submitted by defendants. Summary judgment motions are intended to take the place of trials, and Refrigeration's total failure to produce evidence in its own defense is no different from the failure to produce evidence at trial. What this Court wrote in Keene Corp. v. International Fidelity Insurance Co., 561 F.Supp. 656, 665-66 (N.D.Ill.1983) (footnote omitted) might well have been written for this case:

Such motions for reconsideration or, as in this case, for new hearing cannot in any case be employed as a vehicle to introduce new evidence that could have been adduced during pendency of the summary judgment motion. See Walker v. Hoffman, 583 F.2d 1073, 1075 (9th

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