Plaintiffs first argue that this court should reconsider its ruling because the
agreements signed by some of the Plaintiffs did not contain the precise language
referred to by the court in its prior ruling. In our prior ruling, we granted
Defendants’ motion to dismiss the remaining three claims of Plaintiffs that have
allegedly sustained damages of more than $100,000. In making our ruling, we noted
that in the Associate Agreements signed by plaintiffs, the forum selection clause
stated the following: “Jurisdiction and venue over any disputes arising out of this
agreement shall be proper only in the federal or state courts in Dallas County,
Texas.” (Agr. Par. 24). We held that such language clearly indicates that the clause
is mandatory and that it provides for exclusive jurisdiction in Texas courts.

Plaintiffs now contend that the agreements signed by some of Plaintiffs did
not contain the above quoted forum selection clause. Plaintiffs admit in their motion
for reconsideration that they made an error in the representations that they made to
the court concerning the terms of the agreements signed by some of Plaintiffs.
(Recon. 4n.5). We cannot be certain as to which Plaintiffs are the subject of
Plaintiffs’ motion for reconsideration since Plaintiffs make vague references to the
agreements signed by “the Rashid and Khan plaintiffs.” (Recon. 1, 2). Although, it
is not entirely clear, it appears that Plaintiffs are referring to Abdul Rashid and
Shaheen Rashid. It also appears that Plaintiffs are referring to Waqar Kahn, and
Shafqut Kahn, although the reference to the “Khan plaintiffs” might also refer to

Hamid Kahn and Maimoona Kahn who signed a separate agreement. (Recon. 1, 2).


to the court. Therefore, we deny Plaintiffs’ motion for reconsideration.

CONCLUSION
Based on the foregoing analysis, we deny Plaintiffs’ motion for

reconsideration in its entirety.

Dome Dur Yeghairer

Samuel Der-Yeghiayan
United States District Court Judge

Dated: May 10, 2005

10


pages of the two documents are the same page with the same handwritten
information on them, but that the second pages for each document are not the same.
One document contains a second page with the above quoted forum selection clause
and one document does not contain the clause. Although the original complaint has
been incorporated into a consolidated complaint, the Exhibits attached to the original
complaint are still part of the official record and there is nothing in the official
record that explains the mysterious transformation of the agreement signed by Abdul
Rashid and Shaheen Rashid as these proceedings progressed.

Plaintiffs also contend that “the Kahn plaintiffs” did not sign an agreement
with the above venue selection clause. If Plaintiffs are referring to Waqar Kahn and
Shafqut Kahn, there is another inconsistency in the official record filed by Plaintiffs.
A review of Exhibit 1(H) attached to the original August 15, 2002, complaint reveals
that the first page of the document signed by Wagar Kahn and Shafqut Kahn is
identical to Exhibit lof Plaintiffs’ response to Defendants’ memorandum regarding
the arbitrability of Plaintiffs’ claims, but that the second page of Exhibit 1H is not
the same as the second page now included in Exhibit 1. One document includes the
above quoted forum selection clause on the second page and one document does not.
If, on the other hand, Plaintiffs intend by their reference to “the Kahn plaintiffs” to
refer to Hamid Kahn and Maimoona Kahn, Exhibit 1J of the consolidated complaint
contains an agreement signed by them and the agreement includes the above quoted

forum selection clause.


Plaintiffs argue thatthe Rashid and Khan plaintiffs” signed an agreement that is
separate from the one signed by other Plaintiffs. (Recon. 1, 2). However, the
official record does not match up with the revelations that Plaintiffs now present to
the court regarding the terms of the agreements each Plaintiff signed. Plaintiffs
argue that the court was confused regarding the terms of the agreements signed by
each Plaintiff, but the official record and Plaintiffs’ own briefs filed in this action
unequivocally show that it is Plaintiffs that are not being consistent and clear.

For instance, Plaintiffs now contend that neither Abdul Rashid nor Shaheen
Rashid signed an agreement with the above quoted forum selection clause and
Plaintiffs point as evidence of the agreement signed by Abdul Rashid and Shaheen
Rashid to Exhibit 1 of Plaintiffs’ response to Defendants’ memorandum regarding
the arbitrability of Plaintiffs’ claims (“Exhibit 1"). However, the official record in
this action also contains the original complaint filed by Plaintiffs on August 15,
2002, in case number 02 C 5801 which is now consolidated in this action with case
number 02 C 5801. Attached to the original complaint, as Exhibit 1(I) is an
agreement signed by Abdul Rashid and Shaheen Rashid. The second page of this
document contains the precise language of the forum selection clause that is quoted
above, which Plaintiffs now claims was not in the agreement signed by Abdul
Rashid and Shaheen Rashid. A review of the documents included as Exhibit 1(I) to
the original complaint and Exhibit 1 to Plaintiffs’ response to Defendants’

memorandum regarding the arbitrability of Plaintiffs’ claims, reveals that the first


terms signed by the above named Plaintiffs and Plaintiffs’ prior representations were
inaccurate, the language alleged by Plaintiffs in their latest version of the agreements
contains language indicating that the proper venue “shall be proper” in Dallas
County, Texas. (Agr. Par. 19). The reference in the clause to “non-exclusive
jurisdiction” is merely surplusage and does not overcome the clearly mandatory

language set forth in the clauses.

IL Regurgitation of Prior Arguments

Plaintiffs include within their motion for reconsideration several arguments
that they previously presented to the court. As indicated above, a motion for
reconsideration is not the proper vehicle to present the same arguments to the court
and see if the court will change its mind the second time around, Moro, 91 F.3d at
876. Plaintiffs disguise the fact that they are simply bombarding the court with
many of the same arguments by contending that the court “apparently overlooked”
some of Plaintiffs’ arguments that were included in Plaintiffs’ response to
Defendants’ memorandum regarding the arbitrability of Plaintiffs’ claims. (Recon.4)
However, the court did not overlook any of Plaintiffs’ arguments previously
presented to the court. We found none of the arguments presented in Plaintiffs’
response to Defendants’ memorandum regarding the arbitrability of Plaintiffs’ claims
to be persuasive. The arguments now presented to the court in Plaintiffs’ motion for

reconsideration are not any more meritorious than they were before when presented


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICHARD and SOUZAN SHARIF,
Plaintiffs,

No. 02 C 3047
WELLNESS INTERNATIONAL
NETWORK, LTD., A/K/A WIN, et al.,

Defendants.

ROSEE TORRES, et al,
Plaintiffs,
No. 02 € 5801“

Vv.

WELLNESS INTERNATIONAL
NETWORK, LTD., A/K/A WIN, et al.,

Defendants.

wwe rw SS SS SS SS Seer reve eee en

MEM' DUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Plaintiffs’ motion for reconsideration
pursuant to Federal Rule of Civil Procedure 59(e). For the reasons stated below, we

deny the motion for reconsideration in its entirety.


Finally, in Plaintiffs’ response to Defendants’ memorandum regarding the
arbitrability of Plaintiffs’ claims, Plaintiffs represented to the court, when referring
to the above quoted forum selection clause, that Abdul Rashid, Shaheen Rashid,
Wagar Kahn, and Shafqut Kahn signed the same agreement as Plaintiffs Richard
Sharif and Souzan Sharif. (Ans. 3 n.2). This representation to the Court was a
further indication to the court by Plaintiffs that Abdul Rashid, Shaheen Rashid,
Wagar Kahn, and Shafqut Kahn signed an agreement with the above quoted forum
selection clause since Plaintiffs have indicated since the inception of the litigation,
and still acknowledge in their motion for reconsideration, that Richard Sharif and
Souzan Sharif signed an agreement with the above quoted forum selection clause.
Plaintiffs now make the following admission in a footnote in their motion for
reconsideration: “In footnote 2 we stated that the Sharifs signed the same agreement
as the Rashids and Khans. That was an error. The Sharifs signed the Associate
Agreement.” (Recon 4 n. 5). Thus, although Plaintiffs now stand accusing the Court
of making a manifest error in regards to the terms of the agreements signed by the
above mentioned Plaintiffs, Plaintiffs have now hidden away in a footnote an
admission of their error. It was Plaintiffs’ obligation to present the correct facts to
the court and the court ruled upon the facts presented. It is now too late for Plaintiffs
to attempt to engage in a wholesale revision of Plaintiffs’ past filings and get a
second opportunity to respond to Defendants’ motion to dismiss.

We also note that even if Plaintiffs are correct as to their current version of the


party does not file the motion for reconsideration within ten business days “after
entry of judgment, it] automatically becomes a Rule 60(b) motion." Talano v.
Northwestern Medical Faculty Foundation, Inc., 273 F.3d 757, 762 7" Cir.
2001)(quoting Hope v. United States, 43 F.3d 1140, 1143 (7" Cir. 1994)); U.S. v.
Deutsch, 981 F.2d 299, 301 (7" Cir. 1992)(holding that “motions to alter or amend a
judgment served more than ten days after the entry of judgment are to be evaluated
under Rule 60(b).”). Defendants contend that Plaintiffs did not file their motion for
reconsideration until after ten days after the entry of judgment in this action.
However, Defendants fail to recognize that the ten day limitations period is ten
business days because pursuant to Federal Rule of Civil Procedure 6(a), “[w]hen the
period of time prescribed or allowed is less than 11 days, intermediate Saturdays,
Sundays, and legal holidays shall be excluded in the computation.” Fed. R. Civ. P.
6(a). Defendants also incorrectly concluded that judgment was entered in this action
on December 1, 2004. The official court record indicates that although the court
issued its memorandum opinion on December 1, 2004, judgment was not entered in
this action until December 2, 2004. Plaintiffs filed their motion for reconsideration
on December 16, 2005, which is exactly 10 business days after the entry of
judgment. Therefore, Plaintiffs are entitled to proceed pursuant to Federal Rule of

Civil Procedure 59(e).

I. Terms of Agreements Signed by Certain Plaintiffs



LEGAL STANDARD

Federal Rule of Civil Procedure 59(e) (“Rule 59(e)”) permits parties to file,
within ten days of the entry of a judgment, a motion to alter or amend the judgment.
Fed. R. Civ. P. 59(e). 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

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

DISCUSSION

I. Appropriate Motion for Reconsideration Standard

Defendants argue that Plaintiffs did not file their motion for reconsideration in
a timely manner and therefore, Plaintiffs will need to proceed pursuant to Federal

Rule of Civil Procedure 60(b) rather than Federal Rule of Civil Procedure 59(e). Ifa


BACKGROUND

Plaintiffs entered into agreements with Defendants to sell Defendants’ health
and personal care products. Plaintiffs allege that Defendants’ business was actually
an illegal pyramid scheme and that Defendants engaged in fraud. Plaintiffs brought
the instant action seeking to have their agreements with Defendants declared null
and void as contrary to Illinois law and public policy, and to recover for loss and
damage to Plaintiffs’ businesses and property. On October 20, 2003, Defendants
filed a motion to compel arbitration, asserting that the agreements signed by
Plaintiffs contained a clause that provided that disputes between Plaintiffs and
Defendants would be referred to arbitration. On October 23, 2003, we denied the
motion to compel arbitration and Defendants appealed the ruling.

On appeal the Seventh Circuit reversed this court, remanded the case back to
this court, and ordered the court to vacate the denial of Defendants’ motion to
compel arbitration and to “order arbitration on those claims subject to arbitration.”
Sharif v. Wellness Intern. Network, Ltd., 376 F.3d 720, 727 (7" Cir. 2004). On
December 1, 2004, we vacated our denial of Defendants’ motion to compel
arbitration, granted Defendants’ motion to compel arbitration, and granted
Defendants’ motion to dismiss. Plaintiffs have filed the instant motion seeking a

reconsideration of the December 1, 2004, rulings.