Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge Samuel Der-Yeghiayan Sitting Judge if Otherthan Assigned Judge

CASE NUMBER 12 C 565 DATE 8/8/2012

CASE

TITLE

The Hanover Insurance Group, et al. Vs. DNH Business Consultants, P.C., et al.

DOCKET ENTRY TEXT

For the reasons stated below, Plaintiff’s motion to vacate judgment [23] is denied. Plaintiff’s motion for

leave to file an amended complaint [23] is improper at this juncture and is denied since a final judgment has

been entered in this case. 

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

This matter is before the court on Plaintiff The Hanover Insurance Group’s (Hanover) motion to

vacate judgment and motion for leave to file an amended complaint. On May 23, 2012, the court granted

Defendants’ motion to dismiss and, in accordance with Federal Rule of Civil Procedure 58(b), the Clerk of

Court promptly entered judgment on the same day. Hanover now moves to vacate the May 23, 2012 ruling

and for leave to file an amended complaint.

Pursuant to Federal Rule of Civil Procedure 59(e) (Rule 59(e)), a party can file a motion to alter or

amend a judgment within 28 days after the entry of judgment. Rule 59(e) motions do not give a party the

opportunity to rehash old arguments or to present new arguments or evidence “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)(citing LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995)). Rather, for a

Rule 59(e) motion, the movant “must clearly establish either a manifest error of law or fact or must present

newly discovered evidence” in order to be successful. LB Credit Corp., 49 F.3d at 1267 (quoting Federal

Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)). The decision of whether to grant or deny

a motion brought pursuant to Rule 59(e) “is entrusted to the sound judgment of the district court. . . .” In re

12C565 The Hanover Insurance Group, et al. Vs. DNH Business Consultants, P.C., et al. Page 1 of 3
STATEMENT

Prince, 85 F.3d 314, 324 (7th Cir. 1996).

Hanover argues that the court erred by dismissing the instant action without giving Hanover an

opportunity to file an amended complaint to correct the deficiencies in its complaint. The court, in granting

Defendants’ motion to dismiss, was not required to provide Hanover with an opportunity to file an amended

complaint before dismissing the action. See, e.g., Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 512 (7th

Cir. 2007). It was incumbent upon Hanover to plead the necessary facts for a negligent misrepresentation

claim in accordance with the Seventh Circuit’s ruling in Tricontinental Industries, Ltd. v.

PricewaterhouseCoopers, LLP, 475 F.3d 824 (7th Cir. 2007). Hanover was given ample notice of the

deficiencies in its complaint. Defendants, in their memorandum in support of their motion to dismiss,

pointed to the holding in Tricontinental, and explained the related deficiencies in the complaint filed by

Hanover in this action. Hanover, when faced with Defendants’ motion to dismiss and legal arguments, could

have elected to move for leave to file an amended complaint, which would have not risked any prejudice to

Hanover. Instead, Hanover opted to oppose the motion to dismiss, resulting in the additional expenditure of

Defendants’ resources and judicial resources. Hanover has not shown that after failing in its chosen path, it

is entitled to go back to square one and take another bite at the apple by filing an amended complaint, which

could then potentially lead to yet another round of briefing on a motion to dismiss. 

Hanover also argues that Federal Rule of Civil Procedure 15 (Rule 15) provides that a court should

give leave to amend a complaint when justice so requires. (Reply 4). However, Rule 15 provides the

applicable standard for seeking leave to file an amended complaint in a live case. See, e.g., Sigsworth, 487

F.3d at 512. Hanover chose not to file such a motion for leave to amend, and instead litigated the motion to

dismiss and waited until the motion to dismiss was briefed and ruled upon and a final judgment had been

entered in this case. Hanover has not presented any new arguments or evidence or shown that the court erred

in dismissing the instant action, nor has Hanover shown that the judgment in this case should be vacated

pursuant to Rule 59(e). In addition, to the extent that Hanover moves to vacate the judgment pursuant to

Federal Rule of Civil Procedure 60(b), Hanover has not pointed to any extraordinary circumstances that

would warrant granting the motion to vacate. Therefore, the motion to vacate is denied. The motion for

leave to file an amended complaint is improper at this juncture and is denied since a final judgment has been

12C565 The Hanover Insurance Group, et al. Vs. DNH Business Consultants, P.C., et al. Page 2 of 3
STATEMENT

entered in this case. 

12C565 The Hanover Insurance Group, et al. Vs. DNH Business Consultants, P.C., et al. Page 3 of 3