at 3-5, or the Rules that define nonhearsay, or both.’ This
Court has made it clear that it will apply Rule 801(d) (2) (D)
faithfully at trial, and it adheres to that position. That facet
of Madden’s motion is also denied.

As for so-called “stray remarks,” the matters included in
the listing that Order at 3-4 copied from Madden’s own original
supporting Mem. 2 simply do not fit that label. If anyone has
“strayed” on the operative principles of admissibility in that
respect, it is not this Court. That aspect of Madden’s motion is
denied as well.

Request for Depositions

As a final fallback position, Madden’s counsel request leave
to depose ex-employees Jastrowski, Lydon and Zloch. Any such
request is totally out of order, and it must be denied out of
hand.

This Court never sets a close-of-discovery date without the
concurrence of counsel for both sides, and this case was no
exception to that. Indeed, the originally set date to which both
counsel had agreed was extended not once but twice when counsel
represented (and this is not said by way of criticism) that they

had originally been unable to complete discovery within the time

2 Madden’s Motion at 10, invoking the term “double

hearsay,” betrays a basic misunderstanding of the distinction
between hearsay and nonhearsay as the latter is represented by
Rule 801(d) (2) (D).


Ex-Employees Jastrowski, Lydon and Zloch

Madden initially urges that evidence should be excluded at
trial as to the charges and lawsuits filed against it by the
three above-listed ex-employees and as to the settlement of those
claims (in the latter respect, see, €.gJ-, Fed. R. Evid. (“Rule”)
408). But the Order can be searched in vain for any ruling as to
the admissibility of such evidence. What then is there to
“reconsider”?

Next, counsel disagrees with what Order at 5-7 held as to
other evidence regarding the age discrimination claims made by
those ex-employees, even though this Court grounded such
admissibility squarely within Rule 404(b) and rejected
excludability under Rule 403. This time the motion is thus
accurately characterized as seeking reconsideration, but the
earlier-stated principles call for its rejection as well.

Ex-Employee Willie Wright

What has just been said in the preceding paragraph applies
with equal force (or perhaps with greater force, see Order at 8)
as to this ex-employee. Again denial of the motion is called
for.

“Stray Remarks” and Hearsa

This time it seems that defense counsel have not read Order


frame they had originally contemplated. When the third time
proved the charm, counsel jointly submitted what became the FPTO
on September 20, 2005, after which this Court held its invariable
conference with counsel and entered the FPTO on September 22.

Well before that date defense counsel had been fully aware
that Gagner proposed to offer evidence in the respects that
Madden’s counsel now seek to explore, for Gagner expressly
referred to those matters during his deposition (once again, a
good deal of such testimony was specifically listed in Madden’s
Mem. 2 supporting its motion in jimine). Madden was free to take
the depositions it now seeks during the long time period that
discovery was open, but it chose not to do so. And having taken
that calculated risk, it cannot now ask in good conscience to
reopen discovery just because this Court has not bought its legal
position.

To be sure, the case has not yet been set for trial, but
that is the inevitable result of this Court’s consistent practice
of accommodating the schedules of both sets of lawyers after an
FPTO is issued and any motions in limine are resolved. In that
respect, although there is no need for counsel to appear at the
December 19 presentment date that Madden had specified to deal
with the motion to reconsider, counsel for both sides will still
be expected to appear in court at that time--fully armed with

information as to their (and their witnesses’) prospective


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

SCOTT GAGNER,

)
)
Plaintiff, )
)
v. ) No. 04 ¢ 1152
)
AUTONATION, INC., et al., }
)
Defendants. )

MEMORANDUM OPINION AND ORDER

On November 30, 2005 this Court issued its memorandum order
(“Order”), ruling on the motions in limine that defendants
(referred to here collectively for convenience as “Madden,”
treated as a singular noun) had filed following this Court’s
entry of the Final Pretrial Order (“FPTO”) that had brought the
case to trial readiness.' Now Madden’s defense counsel have
submitted a motion seeking reconsideration of the Order’s
rulings.

This Court is of course no stranger to the operative
principles for addressing such motions. Indeed, the quotation
from the first of the two cases cited in Madden’s current motion
as setting out such principles (the Publishers Resource case) was
taken directly from one of this Court’s own earlier opinions that
had not only been affirmed but also expressly adopted by our

Court of Appeals, while the second of those Seventh Circuit case

1 As always, the proposed FPTO had been submitted jointly
by counsel for Madden and for plaintiff Scott Gagner (“Gagner”).


unavailability for trial, so that this Court can set the earliest
feasible date for trial.

= Cables Mevrabe

Milton I. Shadur

Senior United States District Judge

Date: December 14, 2005


quotations came from the same Above the Belt opinion by the late
Judge Dortch Warriner that this Court has consistently relied
on--with full attribution, of course--for fully two decades.

But then, having paid lip service to those cited and quoted
principles, the current motion proceeds to flout them, reflecting
only defense counsel’s disagreement with this Court rather than
in any way demonstrating that this Court had “patently
misunderstood” defense counsel or “made an error not of reasoning
but of apprehension.” It has done neither--it had fully
recognized and then rejected the Madden arguments. Thus the
situation is one that calls to mind another opinion of this Court
that was written under similar circumstances and that has been
cited and quoted by other courts around the country: Quaker

Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288

(N.D. Tll. 1988) (as adapted to this case):

Despite what [Madden] appears to think, this Court's

opinions are not intended as mere first drafts, subject

to revision and reconsideration at a litigant's

pleasure. Motions such as this reflect a fundamental

misunderstanding of the limited appropriateness of

motions for reconsideration.

Under the circumstances here, then, the motion for
reconsideration merits no more than short shrift. Because the
Order fully explained the reasons for this Court’s rulings, this

opinion will swiftly dispatch counsel’s unhappiness with those

rulings.

N


Ex-Employees Jastrowski, Lydon and Zloch

Madden initially urges that evidence should be excluded at
trial as to the charges and lawsuits filed against it by the
three above-listed ex-employees and as to the settlement of those
claims (in the latter respect, see, ©-9., Fed. R. Evid. (“Rule”)
XxxxX). But the Order can be searched in vain for any ruling as
to the admissibility of such evidence. What then is there to
“reconsider”?

Next, counsel disagrees with what Order at 5-7 held as to
other evidence regarding the age discrimination claims made by
those ex-employees, even though this Court grounded such
admissibility squarely within Rule 404(b) and rejected
excludability under Rule 403. This time the motion is thus
accurately characterized as seeking reconsideration, but the
earlier-stated principles call for its rejection as well.

Ex-Employee Willie Wright

What has just been said in the preceding paragraph applies
with equal force (or perhaps with greater force, see Order at 8)
as to this ex-employee. Again denial of the motion is called
for.

“Stray Remarks” and Hearsay

This time it seems that defense counsel have not read Order