Court granted summary judgment on Count VI. Put differently, these cases are part of the “line
of cases dating back more than twenty-five years hold[ing] that civil liability under the Odometer
Act is limited to mileage fraud and odometer tampering.” Hamilton, 2004 WL 1403711, at *9.
In this regard, Defendant cited Mayberry v. Ememessay, 201 F. Supp. 2d 687 (W.D. Va. 2002),
and Compton v. Altavista Motors, Inc., 121 F. Supp. 2d 932 (W.D.Va. 2000). (See D.E. 35 at
11.) In Mayberry, the “[p]laintiff contend[ed] that the only violation of the [Odometer] Act is the
fact that the dealership disclosed the mileage in a separate odometer statement and not on the title
document itself, as required by the C.F.R. regulations.” Mayberry, 201 F. Supp. 2d at 694.
Mayberry held that “[bJecause [the] [p]laintiff concede[d] that she was not defrauded as to the
mileage of the car, her claim under the Odometer Act must fail.” /d. at 695. Similarly, in
Compton, the plaintiff claimed “that [the defendant] violated the Odometer Act by using the
odometer disclosure statement to indicate the mileage on the title, instead of placing the mileage
disclosure on the title itself.” Compton, 121 F. Supp. 2d at 941. Compton granted summary
judgment in favor of the defendant “because [the plaintiff] ha{d] set forth no evidence that [the
defendant’s] alleged violation of the [Odometer] Act’s on-the-title disclosure requirement was in
any way motivated by an intent to defraud [the plaintiff] with regard to the accuracy of the
mileage of [the plaintiff's] automobile.” Jd. at 942.

Even if this argument and this line of authority had not been raised in Defendant’s
opening brief (which they were), the Court finds that Plaintiff waived any argument that
Defendant improperly argued these points in its reply brief for two independent and alternative
reasons. First, the Plaintiffs neither moved to strike the portions of Defendant’s reply brief that

purportedly raised the issues for the first time, nor did Plaintiffs move to file a sur-reply to


CONCLUSION

For the foregoing reasons, the Reconsideration Motion (D.E. 54) is denied.

Med bi

Mark Filip
United States District Judge
Northern District of Illinois

Dated: Marek 23 Qoos—

a consumer’s favor under the Odometer Act . . ., finding that prohibiting the plaintiff from
signing the title form constituted a statutory violation.” (D.E. 54 at 9.) The Court disagrees.
Judge Kocoras held that “[b]y knowingly disclosing an inaccurate odometer reading, [the
defendants] . . . violated the Federal Odometer Act.” Decos, 2002 WL 598520, at *2. Plaintiffs,
unlike the plaintiff in Decos, “concede{d] that the mileage was accurately disclosed, and they
also expressly acknowledge[d] that do not allege odometer tampering.” Hamilton, 2004 WL
1403711, at *10 (citing D.E. 43 at 7-8).


of caselaw that was mentioned only in passing during the summary judgment briefing cycle.
This also is not a proper use of a reconsideration motion.

1. Plaintiffs Have Waived Any Objections to the Manner in Which Defendant’s Arguments
Were Presented

As explained, the following issue was presented by the summary judgment briefing:
whether civil liability under the Odometer Act is limited to claims of mileage fraud and odometer
tampering. As explained, the Court held that it is. See Hamilton, 2004 WL 1403711, at *8.

Although this issue was not the focus of the parties’ respective opening and response
briefs, Defendant presented its position and cited from the line of cases supporting the position in
its opening summary judgment brief. Defendant also continued to advance this argument in its
reply.

The Reconsideration Motion contends “that this argument and line of cases [in support of
it] was not raised by [Defendant] in its opening motion for summary judgment.” (D.E. 54 at 1
n.1) The Court respectfully disagrees. In this regard, Defendant argued in its opening brief that
“Plaintiffs have not claimed that the odometer reading that was provided to them was false.”
(D.E. 35 at 10-11.) Defendant argued that Plaintiffs “admit [that] they have no evidence that
anyone affiliated with [Defendant] or anyone else tampered with the odometer on the vehicle or
provided an inaccurate statement.” (/d. at 11.) Defendant also argued that because “there is no
evidence that [Defendant] in any way provided a false odometer statement, much less a false
statement made with intent to defraud,” Defendant was entitled to summary judgment on Count
VI. (id)

Defendant also cited cases in its opening brief that stand for the proposition on which the


address the arguments. See generally Cent. States, Southeast and Southwest Areas Pension Fund
y. Reimer Express World Corp., 230 F.3d 934, 946 n.6 (7th Cir. 2000). Second, the
Reconsideration Motion does not argue that the Defendant’s alleged failure to raise certain
arguments and cases in its opening summary judgment brief is grounds for reconsideration or
somehow requires a different outcome.
2. Plaintiffs’ Arguments Are Not Appropriate for a Motion to Reconsider in Any Event

In addressing reconsideration motions, judges in the Northern District of Illinois have
applied the standard established by the Seventh Circuit in Bank of Waunakee v. Rochester Cheese
Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990). See, e.g., United States S.E.C. v. Nat'l Presto
Indus., Inc., No. 02-5027, 2004 WL 1093390, at *2 (N.D. Ill. Apr. 28, 2004) (applying Bank of
Waunakee); Neal v. Honeywell, Inc., No. 93-1143, 1996 WL 627616, at *3-6 (N.D. Ill. Oct. 25,
1996) (same), aff'd, 191 F.3d 827 (7th Cir.1999); Young v. Murphy, 161 F.R.D. 61, 62 (N.D. Ill.
1995) (citing Bank of Waunakee). Bank of Waunakee teaches that a reconsideration motion is
appropriate where: (1) the court has patently misunderstood a party; (2) the court has made a
decision outside the adversarial issues presented to the court by the parties; (3) the court has
made an error not of reasoning but of apprehension; (4) there has been a controlling or significant
change in the law since the submission of the issue to the court; or (5) there has been a
controlling or significant change in the facts since the submission of the issue to the court. See
Bank of Waunakee, 906 F.2d at 1191.

The arguments in the Reconsideration Motion do not fall into any of these categories. As
noted above, the Reconsideration Motion raises a number of arguments, based on disparate

grounds, that never were advanced in the summary judgment briefing, notwithstanding that the


gt

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

O’CONNOR CHEVROLET, INC.,

DEBORAH AND KWANZA HAMILTON, )
on behalf of themselves and all others )
similarly situated, )
)
Plaintiffs, ) Case No. 02 C 1897
)
v. ) Hon. Mark Filip
)
)
)
)

Defendant.
MEMORANDUM OPINION AND ORDER

Plaintiffs, Deborah and Kwanza Hamilton (“Plaintiffs”), have filed a motion to
reconsider. (D.E. 54 (“Reconsideration Motion”).) The Reconsideration Motion requests that
the Court revisit its order of June 22, 2004. (D.E. 50 (“Order”).) Among other things, that Order
granted summary judgment on Count VI of Plaintiffs Second Amended Complaint (D.E. 26),
which was a claim under the federal Odometer Act, in favor of O’Connor Chevrolet, Inc.
(“Defendant”). For the following reasons, the Reconsideration Motion is denied.

BACKGROUND

The following brief procedural history is relevant to the disposition of the
Reconsideration Motion.’ In August 2003, Plaintiffs asserted claims which included, among
others, a putative claim under what Plaintiffs referred to as the “Federal Motor Vehicle
Information and Cost Savings Act.” (D.E. 26 § 103.) As previously explained in the Court’s

Order, this claim (Count VJ) actually was potentially brought under the successor to that statute,

' The facts of this case, at least as they relate to the Court’s Order granting summary

judgment on Count VI, are set forth in Hamilton v. O'Connor Chevrolet, Inc., No. 02-1897, 2004
WL 1403711, at *1-3 (N.D. Ill. June 23, 2004).


bases for the belated arguments clearly were available. Perhaps Plaintiffs did not advance the
arguments because Plaintiffs believed other arguments were stronger and therefore should be the
focus of their brief. Perhaps Plaintiffs did not assiduously research the issues—although that
appears unlikely from the obvious efforts that went into the Plaintiffs’ response brief and the
preparation Plaintiffs’ counsel have displayed during their efforts in the case to date. In any
event, reconsideration motions are not properly employed to present new arguments that
previously were available. See, e.g., Neal, 1996 WL 627616, at *4. Nor are reconsideration
motions properly employed to effectively double page limits presumptively set by local rule.

A small portion of the Reconsideration Motion also rehashes cases, principally from the
District of New Mexico, that were referenced in passing in the summary judgment briefing cycle.
These cases, as Plaintiffs concede, do not represent the majority view in the applicable precedent.
(See D.E. 54 at 9.20.) Just as it is generally inappropriate to advance new arguments in a
reconsideration motion, it is also inappropriate to rehash old ones. See, e.g., Smithkline Beecham
Corp. v. Apotex Corp., 194 F.R.D. 624, 625 (N.D. Ill. 2000). Accordingly, this argument is also
procedurally flawed.

The Reconsideration Motion is not well taken. The Court respectfully declines the
procedurally defective invitation to revisit its Order siding with the majority view of applicable

precedent.

3 In the Reconsideration Motion, Plaintiffs reference Salmeron v. Highlands Ford Sales,

Inc., 223 F. Supp. 2d 1238 (D.N.M. 2002), and Yazzie v. Amigo Chevrolet, Inc., 189 F. Supp. 2d
1245 (D.N.M. 2001). The Order noted that these cases “have been criticized and/or expressly
rejected in some of the cases” cited in the Court’s opinion. Hamilton v. O'Connor Chevrolet,
Inc., No. 02-1897, 2004 WL 1403711, at *10 n.8 (N.D. Ill. June 23, 2004). In the
Reconsideration Motion, Plaintiffs also contend that in Decos vy. JoJo Motors, Inc., No. 01-6646,
2002 WL 598520 (N.D. Ill. Apr. 18, 2002), “Chief Judge Kocoras entered summary judgment in

7


which is known as the “Odometer Act,” 49 U.S.C. § 32701 er seq? In the Odometer Act claim,
Plaintiffs alleged, inter alia, that “[b}y not disclosing the car’s title and the information contained
therein to the Plaintiffs, and by failing to disclose the car’s milage on the title that should have
been tendered to the Plaintiffs for their signature, Defendant violated the disclosure requirements
of the Act .. . and the regulations promulgated thereunder.” (D.E. 26 § 110.) As noted in the
Order, “Plaintiffs concede[d] that the mileage was accurately disclosed, and they also expressly
acknowledge[d] that they do not allege odometer tampering.” Hamilton v. O'Connor Chevrolet,
No. 02-1897, 2004 WL 1403711, at *10 (N.D. Ill. June 23, 2004) (citing D.E. 43 at 7-8).

In February 2004, Defendant filed a summary judgment motion (D.E. 35), and in June
2004, the Court granted summary judgment in favor of Defendant on Count VI. See Hamilton,
2004 WL 1403711, at *8. The Court held that the “Defendant is entitled to summary judgment
on [Count VI] because Plaintiffs have presented no evidence that Defendant intended to defraud

them with respect to the car’s mileage or its odometer reading.” /d. In so holding, this Court

As the Court pointed out in the Order, the Plaintiffs incorrectly described

the statute they [we]re seeking relief under in Count VI as the ‘Motor Vehicle and
Information Cost Savings Act.’ (D.E. 44 at 12.) The ‘Motor Vehicle Information
and Cost Savings Act,’ which was codified at 15 U.S.C. §§ 1981-1991, was
repealed by Pub. L. No. 103-272, § 7(b), 108 Stat. 1379 (1994). Its successor, the
statute at issue in Count VI, 49 U.S.C. § 32701 ef seq., is located in Chapter 32 of
Title 49 of the United States Code, which is titled ‘Odometers.’ Accordingly, this
statute is properly referred to as the ‘Odometer Act.’ Szwebel v. Pap’s Auto Sales,
Inc., No. 02-7797, 2003 WL 2175084 1[,] at *2 (N.D. Ill. July 29, 2003)
(‘Presuming that the Szwebels intended to assert a claim under the Federal
Odometer Act, 49 U.S.C. § 32701 ef seq., rather than the repealed Motor Vehicle
Information and Cost Saving Act, 15 U.S.C. § 1981 er seq....’).

Hamilton v. O'Connor Chevrolet, Inc., No. 02-1897, 2004 WL 1403711, at *8 n.6 (N.D. IL. June
23, 2004).


“[jloin{ed] with the majority of courts that have considered the issue,” id., and, as discussed
below, expressly relied on “a line of cases dating back more than twenty-five years hold[ing] that
civil liability under the Odometer Act is limited to mileage fraud and odometer tampering.” /d.,
at *9 (collecting cases).

On July 21, 2004, approximately one month after the Court’s Order, Plaintiffs filed a
motion to “Reconsider the Grant of Summary Judgment to Defendant Under Count VI.” (D.E.
54.) The ten-page Reconsideration Motion principally advances lengthy and previously unraised
arguments that refer to: principles of administrative agency deference (id. at 7); Plaintiffs’ view
of the legislative history (id. at 5-6); the Odometer Act regulations (id. at 4, 6); the purported
plain meaning of the statute (id. at 7); and a variety of previously uncited cases. The
Reconsideration Motion also discusses two or three cases that were previously cited in small part
in the Plaintiffs’ prior briefing. (Plaintiffs’ prior summary judgment briefing spanned some
twenty-two pages, well in excess of the presumptive page limits set under Local Rule 7.1.) The
Reconsideration Motion contends that, notwithstanding the weight of authority that the Court
identified and followed in its Order, Defendant is liable under the Odometer Act.

ANALYSIS

The Reconsideration Motion is procedurally improper. The Reconsideration Motion
principally advances new arguments, based on previously available law and facts, which were not
raised in the (over-sized) brief that Plaintiffs filed during the summary judgment phase.
Reconsideration motions are not vehicles to reargue points that could have been advanced, but
were not advanced, during the briefing leading up to the disposition of issues.

The Reconsideration Motion also, in small part, engages ina re-citation and discussion