-4-
undo its own procedural failures. The Rule “is not appropriately
used to advance arguments or theories that could and should have
been made before the district court rendered a judgment, or to
present evidence that was available earlier.” See LB Credit Corp.
v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995).
Whether to grant or deny a motion to reconsider under Rule 59(e) is
“entrusted to the sound judgment of the district court.” Matter of
Prince, 85 F.3d 314, 324 (7th Cir. 1996).

Plaintiffs also seek to amend their complaint. Rule
15(a) provides a plaintiff, as a matter of right, one opportunity
to. amend the complaint before a responsive pleading is filed.
Fed.R.Civ.P. 15(a). However, if a final judgment dismissing the
complaint has been entered, the plaintiff's right to amend is
forfeited, and amendment will be allowed only if the judgment is
set aside or vacated pursuant to Rule 59(e) or 60(b). See Car
Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1111-12 (7th Cir.
1984).

DISCUSSION

By their motion to reconsider, plaintiffs seek to
“clarify” certain allegations in the complaint regarding when, and
even whether, All Stars was subject to Northlake’s zoning and
liquor license ordinances. With respect to the zoning ordinances,
the complaint’s averment that “All Stars has been re-zoned into the

City of Northlake in the most restrictive R-1 single family



-7-
of Northlake city hall to determine whether a re-zoning ordinance,
a matter of public record, had been passed. In other words, all
the evidence underlying plaintiffs’ new allegations was available
to them through the exercise of reasonable (or more likely, any)
diligence before they even filed their complaint, let alone before
this court entered judgment.

Plaintiffs’ motion is not about “manifest error” or
“newly discovered evidence.” It is simply plaintiffs’ attempt to
use Rule 59(e) as a means to resuscitate their claims with evidence
and allegations that were readily available long before judgment
was entered. But it is black-letter law that the Rule cannot be
used for such purposes. See Moro v. Shell Oil Co., 91 F.3d 872
876 (7th Cir. 1996) (“The Rule does not provide a vehicle for a
party to undo its own procedural failures, and it certainly does
not allow a party to introduce new evidence or advance new
arguments that could and should have been presented to the district
court prior to the judgment.”); 11 Charles Wright, Arthur Miller &
Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2810.1,
at 127-28 (2d ed. 1995) (same); 12 Moore’s Federal Practice § 59.30
[6] (3d ed. 1998) (Martin H. Redish, ch. ed.) (same). In sum,

relief under Rule 59 is unavailable to these plaintiffs.°

3In a proper case, the maxim controlling here - that a party
may not raise matters that could and should have been raised
during resolution of the prior motion - might yield were that
party to offer a compelling reason for failing to do so.
Plaintiffs do not even attempt any such justification.



-3-
LEGAL STANDARDS

The Federal Rules of Civil Procedure do not recognize

a motion to reconsider in haec verba, but the Seventh Circuit has

made clear that a motion to reconsider a dispositive pretrial order

is evaluated under either Rule 59(e) or Rule 60(b). See United

States v. Deutsch, 981 F.2d 299, 300-01 (7th Cir. 1992). And, at

least in this circuit, which rule applies depends entirely on when

the motion is filed. See Romo v. Gulf Stream Coach, 250 F.3d
1119, 1121 n. 3 (7th cir. 2001). If filed within ten days of the
entry of judgment, it is deemed a Rule 59(e) motion; if filed more
than ten days after judgment, it is characterized as a Rule 60(b)
motion. See id, Plaintiffs’ motion was filed within ten days of
our entry of judgment, excluding weekend days and legal holidays

(see Fed.R.Civ.P. 6(a); Cange v. Stotler and Co., 913 F.2d 1204,

1212-13 (7th Cir. 1990)), so we evaluate it under Rule 59(e).
Motions to reconsider brought under Rule 59(e) serve the
limited functions of correcting manifest errors of law, presenting
newly discovered evidence, or alerting the court to an intervening
change in the law. See Cosgrove v., Bartolotta, 150 F.3d 729, 732
(7th Cir. 1998). The Rule is designed to nip legal errors in the
bud, thereby sparing the parties and the courts of appeal the
burden of unnecessary appellate proceedings. See Russell v. Delco

Remy Div. of Gen. Motors Corp,, 51 F.3d 746, 749 (7th Cir. 1995).

However, Rule 59(e) is not a mechanism through which a party may


-5-
residential use classification” (Compl., 1 14) was, according to

plaintiffs, “pled in error.” See Counsel Aff., filed in support of

Mot, to Recon, p. 1, 71 4. Plaintiffs’ counsel now states: “Based
on the research I have conducted to date, it appears that no

“

rezoning, in fact, has taken place.” See id., p. 2, 91 5. As for
Northlake’s liquor license ordinance, the complaint alleged that
“Plaintiffs business hours were limited upon incorporation into the
Village from 4:00 a.m. to 2:00 a.m., upon all days but Friday and
Saturday, and then to 3:00 a.m.” See Compl., @ 41 (emphasis
added). Plaintiffs now maintain this allegation was “inartfully
drafted,” and proffer that their business hours actually did not
change upon incorporation in August 2000, but rather eight months
later, when All Stars received its liquor license from Northlake on
April 27, 2001. See Counsel Aff., p. 3, 9 12.

Plaintiffs therefore seek reconsideration of this
court’s decision on the ground that, when viewed in the light of

their newly-minted allegations, it was based on “a manifest error

of fact and law.”* See Romo, 250 F.3d at 1121 n. 3 (“Rule 59(e)

requires that the moving party clearly establish a manifest error

of law or an intervening change in the controlling law or present

Plaintiffs contend, under their “clarified” submissions
that their liquor ordinance claim did not accrue until April
2001, and therefore was timely, and that their zoning ordinance
claim never accrued at all. (Of course, this also would mean that
the zoning ordinance “claim” has not ripened into a justiciable
controversy.)



-8-
Finally, because we decline to reopen our final

judgment under Rule 59(e), plaintiffs’ motion for leave to amend

their complaint is likewise denied. See Helm v. Resolution Trust
Corp., 84 F.3d 874, 879 (7th Cir. 1996); Vicom, Inc. v. Harbridge
Merchant Services, 20 F.3d 771, 784 (7th Cir. 1994).4

CONCLUSION

For the foregoing reasons, plaintiffs’ motions to alter

or amend the judgment and to amend the complaint are both denied.

DATE: June 2, 2004

John /F. Grady, United States Distri udge——-

‘Even if plaintiffs had established a basis for relief under
Rule 59(e), their motion for leave to amend would still be denied
under Rule 15(a) on the ground of undue delay, i.e., failing,
without reasonable justification, to assert their amendments
prior to judgment. See Figgie Int'l v. Miller, 966 F.2d 1178,
1180-81 (7th Cir. 1992) (“In a post-judgment situation, delay
without explanation is sufficient reason to deny a motion to
amend. . . . [L]ack of diligence in bringing the claim pre-
judgment constitutes undue delay.”



‘Minote Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge If Other
or Magistrate Judge John F. Grady than Assigned Judge
CASE NUMBER 03 C 692 DATE 6/2/2004
CASE Entertainment, Inc. d/b/a All Stars and Michael Michals vs. City of Northlake, et al.
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented, ]
DOCKET ENTRY:
qa a Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) Oo Answer brief to motion due. . Reply to answer brief due. .
(4) o Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] (set for/re-set for] on set for at
(6) im Pretrial conference[held/continued to] [set for/re-set for] on set for at
” Oo Trial(set for/re-set for] on at
(8) im [Bench/Jury trial] [Hearing] held/continued to at
(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to)
DERCP4(m) OLocal Rule 41.1 CFRCP41(a)(1) OO FRCP41(a)(2).
ao) =o [Other docket entry] For the foregoing reasons, plaintiff's motions to alter or amend the judgment
[25-1] and to amend the complaint [25-2] are both denied.
qal) a [For further detail see order (on reverse side offattached to) the original minute order.]
No notices required, advised in open court.
No notices required.
x | Notices mailed by judge’s staff.
Notified counsel by telephone.
Docketing to mail notices.
Mail AO 450 form. wae
; cate G's‘n
Copy to judge/magistrate judge.
Ge .
courtroom a 19
AWM | sum =
initials
Date/time received in
central Clerk's Office mailing deputy inte



&

-6-
newly discovered evidence.”). Plaintiffs misapprehend the
“manifest error” basis for relief. In determining whether we
committed error, we evaluate our opinion on the record as it
existed at the time of the decision, and do not, as plaintiffs
suggest, consider asserted facts in addition to or different from
those then before us. And plaintiffs do not argue, and we do not
find, that our decision was incorrect based on the record at the
time our decision-was rendered. In short, we find no “manifest
error.”

Plaintiffs also argue, if implicitly, that we should
consider their post-judgment submissions because they are newly
discovered. See Reply Br., p. 6 (“Plaintiffs’ fault can be
explained by unfortunate drafting and the fact that [plaintiffs’]
have not yet conducted discovery.”) (emphasis added). “Newly
discovered evidence” will be received on a motion to reconsider
only if the movant shows that he could not with reasonable

diligence have discovered and produced the evidence during the

pendency of the prior motion. See Caisse Nationale de Credit

Agricole v. CBI Indus., 90 F.3d 1264, 1269-70 (7th Cir. 1996). We
need not tarry long here. On the question of when All Stars’ hours
of operation were actually impacted by Northlake’s liquor license
ordinance, plaintiffs’ counsel simply had to pick up the telephone
and ask his client. Regarding whether All Stars had been re-zoned

into a more restrictive classification, counsel needed only inquire


03-0692.042-TCM June 2, 2004

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

ENTERTAINMENT, INC. d/b/a ALL
STARS and MICHAEL MICHALS,

eo esrep
poe sTEO
JUN 08 2004
No. 03 C 692

Plaintiffs,
v.

CITY OF NORTHLAKE, an Illinois
Municipal Corporation, and JEFFREY
SHERWIN, Mayor of Northlake, in
his Official and Individual
Capacities,

Defendants.

MEMORANDUM OPINION

Before the court are defendants’ motions to alter or
amend the judgment pursuant to Fed.R.Civ.P. 59(e) and to amend the
complaint under Fed.R.Civ.P. 15(a). For the reasons stated below,
both motions are denied.

BACKGROUND

We presume familiarity with the facts, which are set
out in detail in our December 29, 2003 opinion. Nonetheless, we
briefly recap those relevant to our discussion here. All Stars, a
nightclub, and its owner, Michael Michals, brought this 42 U.S.C.
§ 1983 action against the City of Northlake and its mayor, Jeffrey
Sherwin, alleging that Northlake’s annexation of All Stars’
‘property, and the resulting subjection of All Stars to Northlake'’s

zoning and liquor license ordinances, violates plaintiffs’ First

%



-2-

and Fourteenth Amendment rights. The complaint states that in
August 2000, Northlake passed an ordinance annexing All Stars’
property, which previously was located in unincorporated Cook
County. Plaintiffs averred two injuries from the annexation.
First, Northlake’s zoning ordinances prohibited All Stars from
structurally altering or improving its facilities, thereby
thwarting All Stars’ expansion and remodeling plans. Second,
Northlake’s liquor license ordinance, a more restrictive law than
its Cook County counterpart, required All Stars to cut back its
hours of operation. The restricted hours “severely reduced” All
Stars’ revenue. According to the complaint, these legislative
measures were part of a larger scheme by defendants to put All
Stars out of business.

Defendants moved to dismiss the complaint and argued,
among other things, that the complaint was barred by the statute of
limitations. We agreed, and on December 29, 2003, entered a
judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) in favor
of defendants.’ On January 12, 2004, plaintiffs filed a motion to

reconsider and a motion for leave to amend the complaint.

'More specifically, we held that plaintiffs’ injuries
accrued (put another way, the statute of limitations began to
run) when All Stars’ property was annexed in August 2000.
Therefore, under the two-year limitations period applicable to
section 1983 claims arising in Illinois, plaintiffs’ January 30,
2003 complaint was untimely.