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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

JEREMIAH PATRICK, ) 

 ) 

 Plaintiff ) 

 ) 

 vs. ) CAUSE NO. 3:14-CV-782 RLM 

 ) 

OSCAR COWEN, JR., individually and ) 

as Sheriff of Starke County, Indiana ) 

and STARKE COUNTY SHERIFF’S ) 

DEPARTMENT, ) 

 ) 

 Defendants ) 

OPINION and ORDER 

Defendants Oscar Cowen and the Starke County Sheriff’s Department ask 

the court to reconsider this court’s April 2016 order denying in part and granting 

in part their summary judgment motion [Doc. No. 72]. They request that the 

court reconsider that order with respect to plaintiff Jeremiah Patrick’s FMLA 

claim (Count IV) and enter summary judgment on behalf of the defendants on 

that claim. The court’s April 2016 order includes a presentation of the relevant 

facts in this case, which needn’t be repeated here. [Doc. No. 67 at 2-6]. For the 

reasons that follow, the court denies the motion to reconsider. 

Federal Rule of Civil Procedure 54(b) provides that a court may alter or 

amend an interlocutory order any time before entry of final judgment. See Moses 

H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983) (“[E]very 

order short of a final decree is subject to reopening at the discretion of the district 

judge.”). Unlike a motion to reconsider a final judgment, which must meet the 

requirements of Federal Rules of Civil Procedure 59 or 60, “a motion to 
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reconsider an interlocutory order may be entertained and granted as justice 

requires.” Akzo Coatings, Inc. v. Aigner Corp., 909 F.Supp. 1154, 1160 (N.D. Ind. 

1995). 

Reconsideration of an interlocutory order may be appropriate when the 

facts or law on which the decision was based change significantly after issuance 

of the order, or when “the [c]ourt has patently misunderstood a party, or has 

made a decision outside the adversarial issues presented to the [c]ourt by the 

parties, or has made an error not of reasoning but of apprehension.” Bank of 

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

“These grounds represent extraordinary circumstances, and the granting of a 

motion to reconsider is to be granted only in such extraordinary circumstances 

. . . Indeed, the court's orders are not mere first drafts, subject to revision and 

reconsideration at a litigant's pleasure.” United States Securities and Exch. 

Comm'n v. National Presto Indus., Inc., No. 02–C–5027, 2004 WL 1093390, at 

*2 (N.D. Ill. Apr. 28, 2004) (internal quotations omitted). Motions to reconsider 

serve a limited function: “to correct manifest errors of law or fact or to present 

newly discovered evidence.” Caisse Nationale de Credit Agricole v. CBI Indus., 

Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). A party seeking reconsideration can't 

introduce new evidence or legal theories that could have been presented earlier 

or simply rehash previously rejected arguments. Id. 

The defendants present three arguments in their motion to reconsider: (1) 

Mr. Patrick’s FMLA claim was significantly reconfigured during a hearing on the 

defendants’ summary judgment motion, (2) any inadequacies with the notice 
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provided by the defendants weren’t the cause of Mr. Patrick’s failure to return to 

work when his FMLA leave expired, and (3) there is no evidence to support Mr. 

Patrick’s FMLA retaliation claim. 

The defendants first argue that “the issues as understood between the 

parties with respect to [Mr. Patrick’s] FMLA claims were dramatically altered at 

the [summary judgment hearing] . . . result[ing] in an [o]rder which adjudicated 

these claims rather than the claims briefed by the parties and evaluated through 

the discovery process.” The defendants contend that Mr. Patrick’s FMLA claim 

in his second amended complaint was based “entirely on the premise that [he] 

was terminated prior to the conclusion of his FMLA leave,” but at the hearing the 

court elicited new FMLA retaliation and notice claims. 

Mr. Patrick raised these claims before the hearing in his second amended 

complaint and his briefing in response to the defendants’ summary judgment 

motion. Mr. Patrick’s FMLA retaliation claim can be found in paragraph 34 of his 

second amended complaint, where he describes his termination “as retaliatory 

in nature” as part of his FMLA claim. [Doc. No. 42 at ¶ 34]. Mr. Patrick didn’t 

address this claim in his response to the defendants’ summary judgment motion, 

but, as the court noted in its April 2016 order, he was under no obligation to do 

so because the defendants’ didn’t move for summary judgment on that claim. 

[Doc. No. 67 at 16]. 

Mr. Patrick presented his deficient notice theory in paragraph twelve of his 

second amended complaint. [Doc. No. 42 ¶ 12]. He also presented his theory that 

the defendants’ allegedly deficient notice constituted interference, restraint, or 
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denial of his FMLA rights in his brief responding to the defendants’ summary 

judgment motion. [Doc. No. 52 at 6–10]. Because the issues of retaliation and 

notice were properly before the court before the hearing, reconsideration of those 

issues isn’t appropriate. 

Next, the defendants argue that the court should reconsider its ruling on 

Mr. Patrick’s deficient notice theory for his FMLA interference claim because “it 

was not previously identified as a separate claim until the March 2nd hearing.” 

As noted previously, Mr. Patrick didn’t wait until the hearing to raise his notice 

theory for his FMLA interference claim; he raised it in his response brief and 

raised the factual basis for it in his second amended complaint. 

Any argument that Mr. Patrick raised a new claim not pleaded in his 

second amended complaint is unavailing. “[It] is factual allegations, not legal 

theories, that must be pleaded in a complaint.” Whitaker v. Milwaukee Cty., 

Wisconsin, 772 F.3d 802, 808 (7th Cir. 2014). New legal theories can be 

articulated in response to a summary judgment motion without seeking leave to 

amend the complaint. Id. 

The defendants next contend that Mr. Patrick’s notice theory fails because 

any notice deficiencies weren’t the cause of Mr. Patrick’s failure to return to work; 

they claim Mr. Patrick’s health condition, as determined by his doctor, wouldn’t 

have allowed him to return to work. But the court can’t consider this new legal 

argument that could have been argued earlier because it goes beyond the limited 

purpose of a motion to reconsider. Caisse Nationale de Credit Agricole v. CBI 

Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). 
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Finally, the defendants argue that this court should reconsider its April 

2016 order because there is no evidence to support Mr. Patrick’s FMLA 

retaliation claim. In support, the defendants cite this court’s order, which noted 

that the evidence in the record wouldn’t support a finding of retaliation. [Doc. 

No. 67 at 16]. But the defendants don’t claim that they moved for summary 

judgment on this claim, and as already noted, “Mr. Patrick [was]n’t required to 

come forth with evidence on a claim as to which summary judgment wasn’t 

sought.” Id. 

The defendants’ motion to reconsider included an attached Second Motion 

for Summary Judgment. [Doc No. 73-1]. This summary judgment motion was 

filed without leave of the court after the January 15, 2016 dispositive motion 

deadline. The defendants noted in their reply brief that the court shouldn’t 

consider this Second Motion for Summary Judgment unless it granted the 

motion to reconsider. 

 Based on the foregoing, the court DENIES the defendants’ motion to 

reconsider [Doc. No. 72] and DECLINES to consider defendants’ Second Motion 

for Summary Judgment [Doc No. 73-1]. 

 SO ORDERED. 

ENTERED: March 15, 2017 

 /s/Robert L. Miller, Jr. 

 Judge, United States District Court