IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NANCY TRUMBULL, )

)

Plaintiff, )

) Case No. 12 C 0321

v. )

)

) Judge Amy J. St. Eve

SCI ILLINOIS SERVICES, d/b/a/ )

ROSEHILL CEMETERY, )

)

Defendant. ) 

ORDER

The Court, in its discretion, denies Plaintiff’s motion for relief from judgment and to alter

or amend the judgment [96].

STATEMENT

On May 30, 2012, Plaintiff Nancy Trumbull (“Trumbull”) filed a Second Amended

Complaint against her former employer, SCI Illinois Services, Inc., d/b/a Rosehill Cemetery

(“SCI”), alleging race and sex discrimination claims and a retaliation claim pursuant to Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. On

September 10, 2013, the Court granted SCI’s motion for summary judgment and dismissed this

lawsuit in its entirety.1 On October 8, 2013, Trumbull filed the present motion to alter or amend

the judgment pursuant to Federal Rule of Civil Procedure 59(e). For the following reasons, the

Court, in its discretion, denies Trumbull’s motion because she has not established that the Court

committed a manifest error of law or fact. See Blue v. Hartford Life & Acc. Ins. Co., 698 F.3d

587, 598 (7th Cir. 2012).

LEGAL STANDARD

Because Trumbull filed the present motion within twenty-eight days of the entry of

judgment — excluding the day the judgment was entered — the Court construes this motion

under Rule 59(e). See Fed.R.Civ.P. 6(a)(1)(A). To succeed on a Rule 59(e) motion to alter or

amend the judgment, a party must clearly establish: (1) that the Court committed a manifest

error of law or fact; or (2) that newly discovered evidence. See Blue, 698 F.3d at 598; see also

Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (“A ‘manifest error’ is not

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 The Court presumes familiarity with its September 10, 2013, Memorandum, Opinion,

and Order. (R. 94.)

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demonstrated by the disappointment of the losing party,” instead it “is the ‘wholesale disregard,

misapplication, or failure to recognize controlling precedent.’ ”) (citation omitted). Rule 59(e)

“motions are ‘not appropriately used to advance arguments or theories that could and should

have been made before the district court rendered a judgment, or to present evidence that was

available earlier.’” Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir. 2012) (citation

omitted); see also Edgewood Manor Apt. Homes, LLC v. RSUI Indem. Co.,___F.3d. ___ 2013

WL 5764664 (7th Cir. Oct. 25, 2013) (“a Rule 59(e) motion is not a fresh opportunity to present

evidence that could have been presented earlier.”). Whether to grant a Rule 59(e) motion “is

entrusted to the sound judgment of the district court.” Matter of Prince, 85 F.3d 314, 324 (7th

Cir. 1996); see also Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 953 (7th Cir. 2013)

(appellate court reviews denial of Rule 59(e) motion for abuse of discretion). 

BACKGROUND

After the parties briefed Defendant’s motion for summary judgment, on September 5,

2013, the Court’s law clerk called SCI’s counsel, Jonathan Minus, and left a voicemail in

relation to SCI General Manager Leonard Hayes’ deposition transcript because SCI did not

attach Hayes’ complete deposition transcript to SCI’s Local Rule 56.1(a)(3) Statement of Facts. 

In response to Trumbull’s present motion, Defendant transcribed the September 5, 2013,

voicemail as follows: 

Hi Jon, my name is Suzanne Strater. I’m calling from Judge St. Eve’s chambers

in the Northern District of Illinois, calling concerning a Case No. 12-C-321. It’s

Trumbull v. SCI and it is the case in which you have filed a Motion for Summary

Judgment. In relation to that Motion for Summary Judgment, you referred to the

deposition of Leonard Hayes. It’s your Exhibit J and you don’t give us the entire

deposition and I can’t find it anywhere else in total in the record. So, the judge

would like for you to file the entire Leonard Hayes deposition on the docket and

that’s for case No. 12-321 and also to send us over a courtesy copy to Room 1260

at the Dirksen Building. Again, my name is Suzanne. My number is [redacted]

and this considers, this is concerning Trumbull v. SCI doing business as Rosehill

Cemetery and the Motion for Summary Judgment. Thank you. 

(R. 106, at 2.) 

After the law clerk left this message, SCI filed Leonard Hayes’ entire deposition

transcript, along with the four deposition exhibits, on the Court’s docket that same day. (R. 91.) 

When counsel filed the entire Hayes’ transcript and deposition exhibits, he did not make any

arguments or comments — he simply filed the documents. The Northern District of Illinois’

electronic case management system then notified Trumbull that SCI had filed the entire Hayes

deposition on the docket. (R. 96-1.) Notably, Trumbull’s counsel took Hayes’ deposition. Later

that day, Trumbull’s counsel emailed SCI’s counsel asking why SCI had filed the entire Hayes

deposition transcript to which SCI counsel informed Trumbull that “[c]hambers called and asked

me to file it.” (R. 96-2, 96-3.) 

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ANALYSIS

Trumbull bases her Rule 59(e) motion on the communication in which the Court’s law

clerk left a voicemail for SCI’s counsel asking that counsel file the entire Hayes transcript on the

docket. Assuming a voicemail message is a communication, Trumbull bases the present motion

on this ex parte communication arguing that the Court should allow her to file a Second

Amended Response to Defendants’ Rule 56.1 Statement of Facts in opposition to SCI’s summary

judgment motion.

Although courts disfavor most ex parte communications, under the Code of Conduct for

United States Judges, Cannon 3(A)(4)(b), a judge may “when circumstances require it, permit ex

parte communication for scheduling, administrative, or emergency purposes, but only if the ex

parte communication does not address substantive matters and the judge reasonably believes that

no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte

communication[.]” Indeed, it is often necessary for the daily operation of chambers for the

Court, through its staff, to contact parties concerning setting dates, general scheduling, and for

other administrative purposes, just as counsel and parties contact the Court’s staff for these

similar purposes.

Here, the Court’s communication with SCI’s counsel concerned an administrative

purpose, namely, the Court — through chambers staff — requested that counsel file an entire

deposition transcript on the record — a deposition that Trumbull’s counsel took. There was no

discussion concerning any substantive matters in the voicemail message at issue. In fact, there

was no discussion given that the law clerk simply left a voicemail. Furthermore, when SCI’s

counsel docketed the transcript, he did not make any comments, arguments, or cite additional

authority. Under these circumstances, no advantage was conferred to either party as a result of

the ex parte communication. See Code of Conduct for United States Judges, Cannon 3(A)(4)(b).

Further, Trumbull has failed to establish that the Court’s ex parte voicemail prejudiced

her. See Drobny v. C.I.R. 113 F.3d 670, 680 (7th Cir. 1997) (“[n]ot every ex parte

communication is a procedural defect so substantial and so likely to cause prejudice that it

entitles the claimant to an entirely new ... proceeding.”) (citation omitted). Instead, Trumbull

maintains that the error lies in the fact that her counsel was not given an opportunity to respond

to the Court’s request for Hayes’ entire deposition transcript. At the motion hearing on October

15, 2013, when the Court asked Trumbull’s counsel how counsel would have acted differently,

counsel stated that she would have asked to supplement Trumbull’s motion. Counsel, however,

did not explain how the lack of opportunity to supplement prejudiced Trumbull. Without more,

the Court would be hard-pressed to conclude that the voicemail communication caused Trumbull

any harm. 

Next, Trumbull argues that the Court should alter or amend the summary judgment ruling

because the Court made an improper credibility assessment regarding Chicago Managing

Director Larry Michael’s honest belief that Trumbull was untruthful. Trumbull maintains that

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the Court should have afforded Leonard Hayes’ testimony equal weight. To clarify, in the

summary judgment order, the Court stated that there was undisputed evidence in the record that

Michael, the final decision maker, believed that Trumbull was untruthful. Despite Trumbull’s

argument to the contrary, under the relevant inquiry, whether Hayes, who was not the final

decision maker, thought Trumbull was truthful is not at issue. See Hill v. Tangherlini, 724 F.3d

965, 968 (7th Cir. 2013) (“An inquiry into pretext requires that we evaluate the honesty of the

employer’s explanation, rather than its validity or reasonableness”). Instead, Michael’s opinion,

as the final decision maker, is what mattered. See Smiley v. Columbia Coll. Chicago, 714 F.3d

998, 1002 (7th Cir. 2013) (“Pretext does not exist if the decision-maker honestly believed the

nondiscriminatory reason for its employment action.”); see also Perez v. Thorntons, Inc., ___

F.3d ___, 2013 WL 5420979 (7th Cir. Sept. 30, 2013). Moreover, Trumbull’s argument based

on Hayes’ testimony simply rehashes her arguments made at summary judgment, as does her

repeated argument that SCI treated similarly situated comparators more favorably. See Miller,

683 F.3d at 813; Musch v. Domtar Indus., Inc., 587 F.3d 857, 861 (7th Cir. 2009). These

arguments fail to establish that the Court committed a manifest error of law or fact. See Blue,

698 F.3d at 598.

Finally, Trumbull contends that the Court erroneously “discarded” many of her facts for

violating Local Rule 56.1. As the Court discussed in the September 10, 2013, Memorandum,

Opinion, and Order, the Court did not consider many of Trumbull’s facts because: (1) she set

forth additional facts in her Local Rule 56.1(b)(3)(B) Responses; (2) many of her responses

contained factual and legal arguments; and (3) in her responses, Trumbull often denied facts, but

did not cite to the record in support of her denial. The Court did not err in disregarding these

facts, rather, the Court expected compliance with the Local Rules. See Modrowski v. Pigatto,

712 F.3d 1166, 1169 (7th Cir. 2013) (The Seventh Circuit has “consistently and repeatedly

upheld a district court’s discretion to require strict compliance with its local rules governing

summary judgment.”) (citation omitted). As the Court explained in its summary judgment order,

“[e]mployment discrimination cases are extremely fact-intensive, and neither appellate courts

nor district courts are obliged in our adversary system to scour the record looking for factual

disputes....” Yancick v. Hanna Steel Corp., 653 F.3d 532, 543-44 (7th Cir. 2011) (internal

quotation marks and citation omitted). In short, Trumbull’s failure to abide by the Local Rules

was not Court error. Therefore, this basis for Trumbull’s Rule 59(e) motion is without merit. 

Dated: October 29, 2013 ______________________________

AMY J. ST. EVE

United States District Court Judge

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