concerning the refusal of the partial payment by check and in regard to the promises
allegedly made to Johnson by PSI employees while she was in route on the day of

the sale.

A. Refusal of Partial Payment by Check

PSI continues to argue that PSI acted appropriately by refusing Johnson’s
partial payment by check offered the day before the sale, arguing that “there can be
no dispute that plaintiff understood she could not pay by check.” (Mem. 3). As the
court made clear in its prior ruling, we granted PSI’s motion for summary judgment
on the negligence and breach of contract claims (Counts II and IV) “‘to the extent
that they are based upon the refusal of Johnson’s payment check.” (8/17/05 Op. 22).
Thus, we found that, based upon the terms of the written contract, Johnson did not as
a matter of law have the right to pay by check. However, in our prior ruling we also
denied the motion for summary judgment on the breach of contract claim only to the
extent that it is “based upon the sale of Johnson’s personal property.” (8/17/05 Op.
22). We noted that although the refusal of partial payment by check was clearly
proper, it is unclear whether Johnson realized that she could not pay by check and
whether the refusal unfairly contributed to the series of events that led to the sale of
Johnson’s property before she was able to arrive at the PSI facility. If, for example,
Johnson was led to believe that she could make payment by check, depending on all

of the facts and circumstance, PSI may have been obligated to delay the sale if


4 forfeiture because the Storage Act provided that property could be sold. However,
PSI fails to cite any authority that specifies that the Storage Act was intended to
make such a statement concerning public policy in Illinois. While the Storage Act
provides a mechanism for the sale of property under certain circumstances after
appropriate procedures are followed, nothing precludes a conclusion that the Act
exists in unison with the competing public policy that such sales do constitute
forfeitures, which are generally disfavored. Therefore, PSI’s arguments in regard to
the Fraud Act claim are entirely without merit as well and, based upon all of the

above, we deny PSI’s motion for reconsideration in its entirety.

CONCLUSION
Based on the foregoing analysis, we deny PSI’s motion for reconsideration in

its entirety.

Samuel Der-Yeghiayan 5 ; 0

United States District Court Judge

Dated: October 26, 2005

10


itself admits that its manager had discretion at the moment of payment to accept
payment by check thereby negating any conclusion that the decision to refuse a
payment by check was preordained. The fact that the check payment issue was not
clearly resolved is further reinforced by the fact that Johnson bothered to travel to
PSI, expecting to make partial payment by check. Johnson also correctly points out
that, although PSI now cites case law that shows that specifying the methods of
payment in the letter legally excluded other possible methods, Johnson as a
layperson could not have been expected to understand that legal effect. PSI does not
assert that the letter stated that no payment, or even a part of a payment could be
made by check, which was a method of payment that PSI had accepted on a prior
occasion from Johnson. Therefore, PSI’s arguments in the instant motion pertaining
to the refusal of partial payment by check are entirely without merit.

We also note that there is a lack of detailed facts in the record regarding the
refusal of the partial payment by check. Thus, the undisputed facts regarding
Johnson’s attempted payment by check have not been laid before the court. PSI as
the movant had an obligation to acquire such facts during discovery and present
them to the court, and PSI has failed to do so. Instead PSI refers to the refusal in
only the most general terms and fills in the remaining facts with inferences in PSI’s
favor. Such a tactic and lack of proper arguments prevents PSI from prevailing on

its motion for summary judgment or its motion for reconsideration.


Johnson was only first informed that she could not pay by check the day before the
sale. We also found that, in regard to the propriety of the sale of Johnson’s property
at the time the property was sold, PS! had not presented its arguments in a timely
fashion.

Only by making all inferences in its favor and by ignoring contrary facts is
PSI able to hold to its position that it was entirely clear prior to Johnson’s attempted
partial payment by check that Johnson knew that the check would not be accepted.
For instance, PSI acknowledged that it had accepted checks from Johnson in the past
and acknowledges that the decision of whether or not to accept a check payment is
made by the manager on duty at the time of payment. (SAF Ex. 3)(SF 14). PSI
doggedly points in the abstract to the contract and a letter sent to Johnson prior to the
sale and PSI maintains that it was set in stone that Johnson could not make any more
payments by check. However, PSI fails to acknowledge the fact that, according to
Johnson, when she attempted to make the partial payment by check the initial person
at the counter actually completed the transaction and handed her a receipt stating
“paid in full.” (Johnson Dep. 113-15). Johnson’s partial payment by check was
only rejected when the manager on duty stepped in and, exercising her discretion
under the PSI policy decided not to accept the check. (Johnson Dep. 113-15).

PSI claims that Johnson should have not had any misapprehension
because she received a letter requesting payment in “cash or by money order” four

weeks before she attempted to make partial payment. (Mem. 4). However, PSI


you get here, it’s Okay.” (Johnson Dep. 123). PSI has not pointed to any part of the
record that indicates that its employees gave Johnson any specific deadline for an
arrival while she was in route. PSI argues that its employees specified to Johnson on
the phone that Johnson needed to be present by the scheduled time of the sale, and
not one minute later, or her property would be sold. These are not the undisputed
facts in the record before us. It shall be up to the trier of fact to conclude exactly
what was told to Johnson on the phone by PSI employees while in route. It shall
also be up to the trier of fact to determine whether the employees specified a time
when Johnson had to arrive and, if so, whether she arrived in timely fashion.
Therefore, PSI’s argument that it is entitled to prevail because Johnson did not arrive

in a “timely” manner is without merit.

Ill. Fraud Act Claim (Count V)

PSI also challenges the court’s prior ruling denying the motion for
reconsideration on the Fraud Act claim. We noted in our prior ruling that the Fraud
Act protects against certain unfair conduct as well as deceptive conduct and that
PSI’s sale of Johnson’s property amounted to a forfeiture, which is disfavored under
the law. PSI simply presents in its instant motion the same arguments that it made in
its motion for summary judgment. PSI continues to argue that its conduct was not
unfair and does so only by gathering the facts in its favor and by making inferences

in its favor. PSI also argues that the sale of Johnson’s property could not be deemed


IN THE UNITED STATES DISTRICT COURT

AG

FOR THE NORTHERN District or muNnos FILED

EASTERN DIVISION

OCT 2 6 2005
JONYSE JOHNSON, ) sis 5c? >
Plaintiff, ) US. District Court
v. No. 03 C 6517
PS ILLINOIS TRUST,
Defendant.

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant PS Illinois Trust’s (“PSI”)
motion for reconsideration of this court’s order granting in part and denying in part
PSI’s motion for summary judgment. For the reasons stated below, we deny the

motion for reconsideration.

BACKGROUND
Plaintiff Jonyse Johnson ("Johnson") alleges that in July 2001, she entered
into a contract with PSI for the storage of her possessions in a storage locker.
Johnson alleges that in 2001 she made monthly payments to PSI until the end of the

year, when she missed two payments. Johnson claims that on December 5, 2001, she


B. Promises by PSI Employees

PSI also argues that even if its employees had told Johnson that her property
would not be sold if she arrived in a timely fashion, PSI is entitled to prevail as a
matter of law because it is undisputed that Johnson did not arrive in a timely fashion.
As was mentioned in our prior ruling, what was untimely were PSI’s arguments
concerning the propriety of the sale of Johnson’s property. PSI improperly
introduced such arguments for the first time in its reply brief for its summary
judgment motion and PSI’s instant motion is merely an attempt to present further
arguments that could and should have been included in PSI’s motion for summary
judgment. For that reason alone, PSI’s motion for reconsideration of the ruling
concerning the propriety of the sale of Johnson’s property is improper and is a basis
for the denial of the motion for reconsideration of the court’s ruling concerning the
breach of contract claim.

Also, PSI’s untimely arguments lack any merit. PSI supports its arguments
with facts that are not in the record, and by resolving disputed facts in its favor and
making inferences in its favor. PSI argues that it is entitled to prevail even if
“Johnson was told her ‘timely arrival’ would prevent a sale.” (Mem. 3). Nowhere in
our prior ruling, or in Johnson’s deposition is there any allegation that Johnson was
told that her property would be saved by a “timely arrival.” As is indicated in our
prior ruling, Johnson testified at her deposition that while she was in route to the PSI

facility on the day of the sale, she was told by PSI employees: “Oh well as long as


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. . . “Inve

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

DISCUSSION

I, Negligence Claim (Count III)

PSI argues that the court erred by concluding that there were genuinely
disputed material facts concerning the negligence claim included in Johnson’s
second amended complaint (Count III). PSI claim that sometime prior to the filing
of PSI’s summary judgment motion, Johnson had indicated that she was not
intending to pursue her negligence claim. In Johnson’s answer to the motion for
reconsideration, Johnson acknowledges that she has “abandoned her claim for
negligence.” (Ans. 2). Based upon that representation by Johnson in her answer, we
dismiss the negligence claim (Count III) and deny PSI’s motion for reconsideration

as moot.

IL Breach of Contract Claim (Count lV)

PSI also requests that the court reconsider its ruling on the breach of contract

claim (Count IV). PSI argues that the court erred in regard to its analysis


("Fraud Act")(Count V), and an Intentional Infliction of Emotional Distress claim
("IIED")(Count VI). PSI now moves for summary judgment on all claims.

On August 17, 2005, we granted PSI’s motion for summary judgment on the
Storage Act claims (Counts I and Il), the JIED claim (Count VJ), and the negligence
and breach of contract claims (Counts II and IV) to the extent that they are based
upon the refusal of Johnson’s payment check. We also denied PSI’s motion for
summary judgment on the negligence and breach of contract claims (Counts III and
IV) to the extent that they are based upon the sale of Johnson’s property. We also
denied PS!’s motion for summary judgment on the Fraud Act claim (Count V). PSI
now moves for reconsideration of our prior ruling to the extent that it denied the

motion for summary judgment.

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


received a letter from PSI informing her that she had until January 3, 2002, to make
her payment in full and to prevent PSI from auctioning off Johnson's possessions in
the storage locker. Johnson further alleges that on January 2, 2002, she paid part of
her past due payments in cash and tried to pay the other portion by check, but the
PSI property manager refused to take the check. According to Johnson, she was told
to return on the morning of January 3, 2002, and pay the remainder of the past due
payments. Johnson claims that on the morning of January 3, 2002, she was on her
way to the PSI facility and that she called a couple of times while in route and spoke
with the PSI property manager and other PSI employees. Johnson claims that the
PSI employees indicated that PSI would delay the sale of her property until she
arrived. Johnson also contends that the PSI employees made certain representations
to her while she was in route that indicated that PSI would delay the sale until
Johnson arrived. Johnson claims that she arrived at 11:10 a.m. and was told that her
possessions had already been auctioned off.

In Johnson's second amended complaint, she includes two claims for
declaratory and injunctive relief under the declaratory judgment act, 28 U.S.C. §
2201, in which Johnson seeks a declaration that the Illinois Self-Service Storage
Facility Act ("Storage Act"), 770 ILCS 95/1, et seq. is unconstitutional (Counts I and
II). The second amended complaint also includes a negligence claim (Count III), a
breach of contract claim (Count IV), a claim alleging a violation of the Illinois

Consumer Fraud and Deceptive Business Practices Act, Act, 815 ILCS 505/1 et seq.