judgment was entered on the record on June 18, 2004, On July 2, 2004, Plaintiffs

filed a motion to alter and vacate the June 18, 2004, judgment.

LEGAL STANDARD

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); Fed, R. Civ. P. 6(a).
Rule 59(e) motions do not give a party the Opportunity to rehash old arguments or to
Present new arguments “that could and should have been presented to the district
court prior to the judgment." Moro y, 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, a Rule $9(e) motion "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 Rule 59(e) motion "is entrusted to the sound judgment of the district court. . .

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


party can file a motion to strike or otherwise state an evidentiary objection if
evidence is raised by the opposing side in summary judgment motion briefs that
would not be admissible. We considered all evidentiary objections made by
Plaintiffs in their summary judgment briefs. If Plaintiffs chose not to offer other
evidence because Plaintiffs thought it inadmissible, then that was their own doing,
but to suggest that we should have considered what Plaintiffs admit to be
“inadmissible testimony” is completely without merit. These arguments are yet
another example of Plaintiffs’ attempts to remedy the perceived mistakes made by
them the first time around in regards to Defendants’ summary judgment motions
which is not the proper basis for a motion for reconsideration.

Finally, Plaintiffs argue that we erred in finding that Russ had formed a new
family unit because of the holding in Hewitt v. Hewitt, 394 N.E.2d 1204 (Ill. 1979),
However, as indicated in our prior opinion, our ruling was based specifically on the
standard elucidated in Bell v. Wilwaukee, 746 F.2d 1205 (7" Cir, 1983). Hewitt was
decided before Bell and Hewitt addressed the issue of property rights between co-
habitants under [llinois state law, 394 N.E.2d at 52-55, whileBell addressed the
scope of standing to bring suits under Section 1983, a federal statute, and the events
in question in Bell occurred in Wisconsin. 746 F.2d at 1244-45, Thus, theHewitt

holding pertaining to co-habitation and property rights under Illinois law is not on


present new arguments "that could and should have been presented to the district
court prior to the judgment."),

Plaintiffs have inappropriately raised arguments that they raised in their
response to the motions for summary judgment and arguments that they could have
raised in response to the motions for summary judgment. For instance, Plaintiffs
argue that there is sufficient evidence to dispute Watts’ and Banaszkiewicz’s
statement of fact number 13. However, Plaintiffs fail to address the analysis in our
prior ruling and Plaintiffs attempt to point to evidence that Plaintiffs did not refer to
in their answer briefs to Defendants’ motions for summary judgment.

Plaintiffs fail to address Local Rule 56.1 and the effects of Plaintiffs’ 56.1
response under that rule which we discussed in our prior ruling. We explained in
our prior ruling that we were not merely making findings based upon meaningless
procedural technicalities because a court is not “obliged in our adversary system to
scour the record looking for factual disputes and may adopt local rules reasonably
designed to streamline the resolution of summary judgment motions.” Waldridge v.
American Hoechst Corp., 24 F.3d 918, 922 (7 Cir, 1994). Statement of fact 13
reads as follows: “Robert Russ and Erin Lewis discussed moving into [sic] together
to raise their son.” In their 56.1 response to statement of fact 13 Plaintiffs merely

pointed to Vera Love’s (“Love”) claim that Russ only had sexual relations with


DISCUSSION

1. Motion For Clarification

Plaintiffs seek clarification of our ruling on June 17, 2004, granting summary
judgment in favor of the remaining defendants on claims brought by Russ’ parents.
Plaintiffs contend that when Judge Gettleman dismissed the claims brought by Russ’
siblings, Judge Gettleman did not make a determination regarding whether or not
Russ’ siblings could bring an immediate appeal. Plaintiffs argue that there is
technically not a final judgment as defined under Federal Rule of Civil Procedure
54(b). To the extent that there is not a final and appealable judgment dismissing the

claims brought by Russ’ siblings we enter final judgment at this juncture.

IL_Motion To Reconsider

Plaintiffs do not base their motion for reconsideration upon any of the
acceptable bases for a motion for reconsideration. Plaintiffs argue merely that this
court should re-evaluate its prior ruling. However, a motion for reconsideration is
not a vehicle that can be used to take a second pass at a ruling to see if the court will
rule differently the second time around. See Moro, 91 F.3d at 876(stating that Rule

59(e) motions do not give a party the opportunity to rehash old arguments or to


judgment briefs, Plaintiffs argue that some of Defendants’ statement should be
stricken because Defendants failed to provide transcript testimony to Plaintiffs as is
required under Federal Rule of Civil Procedure 26(a)(1). (Mot. Recon. 8).
However, Plaintiffs could have filed a motion to strike prior to the summary
judgment ruling and have provided no justification for the delay. Again, the court
rejected Plaintiffs’ first set of arguments, and Plaintiffs are merely attempting to
proffer new arguments to try and get the court to take a second look at the summary
judgment issue.

Plaintiffs also complain that Defendants only cited selective portions of
testimony, but Plaintiffs were given every opportunity in their answer briefs to
Defendants’ motions for summary judgment to point to the portions of the testimony
that Plaintiffs thought pertinent. Plaintiffs also argue that “the court was deprived of
the benefit of other incompetent evidence that would have disputed the defendants’
proffered ‘facts’” (Mot Recon. 9\(emphasis added), Plaintiffs argue that we should
have allowed Plaintiffs to offer “inadmissible testimony” in response to Defendants’
motions for summary judgments. (Mot. Recon. 9), Such an argument is
nonsensical. A court can only base a summary judgment ruling on evidence that
would be admissible at trial, See Smith v. Lamz, 321 F.3d 680, 682 (7" Cir.

2003)(stating that Local Rule 56.1 requires citations to admissible evidence). A


rr

Minute Order Form (06/97)

United States District Court, Northern District of Minois

Ni f Assigned Jud: _ i Sitting Judge if Other
L mor Magitrate Judge | __ Samuel Der-Yeghiayan than Asalgned Judge
CASE NUMBER 01 C 4098 DATE 9/9/2004
CASE Russ vs, Watts
TITLE

[In the following box (a) indicate the party filing the motion, e,g., plaintiff, defendant, 3rd party plaintiff, and (b) state brictly the nature

of the motion being presented]

())

MOTION:
DOCKET ENTRY:
—
a5) QO Filed motion of [ use listing in “Motion” box above.]
(2) Q Brief in support of motion due
(3) a Answer briefto motion due___. Reply to answer briefdue
(4) Oo Ruling/Hearingon__ssetfor_ at.
(5) a Status hearing[held/continued to] [sct for/re-set for]on____setfor__ ss at__.
(6) QO Pretrial conference[held/continued to] [set for/re-set for]on ss _setfor at
(7 oO Trial[set for/te-set for}on__—_sat
(8) o (Bench/Jury trial] [Hearing] held/continuedto_ at.
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) ClLocal Rule 41.1 COFRCP41(a\(1) [J FRCP41(a)(2).
(0) +f [Other docket entry] For the reasons stated in the attached memorandum opinion, the plaintiffs’

motion for clarification is granted and plaintiffs’ motions to alter and vacate judgment are denied. Enter

Memorandum Opinion.

| {For further detail see order attached to the original minute order.)

No notices required, advised in apen court,
No notices required.

Notices mailed by judge's staff.

‘Notified counset by telephone.

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Mail AO 450 form, rs

Copy to judge/magistrute judge.

. hao ae
courtroom: re aan Sale
MW6 deputy’s .
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point and Plaintiffs have only made arguments by quoting out of context portions of
Hewitt regarding families, Also, once again, Plaintiffs are presenting arguments that
they failed to present in response to Defendants’ summary judgment motions.
Defendants Watts and Banaszkiewicz argued specifically in their memorandum in
support of summary judgment that Russ had formed a new family unit. (W & B
Mot. 9-10). However, Plaintiffs never raised the holding inHewitt in their answer
brief and never cited Hewitt, Only now are Plaintiffs seeking to remedy their

perceived deficiencies in regards to Defendants’ motions for summary judgment.

CONCLUSION
Based on the foregoing analysis we deny Plaintiffs’ motion for
reconsideration and we enter final judgment dismissing all claims brought by Russ’

siblings.

wes fo does 5 ’

United States District Court Judge

Dated: September 9, 2004

10


Lewis once and Russ was not sure if Lewis’ child was his own. Plaintiffs also state
in their 56.1 response to statement of fact 13 that Russ never indicated that he was
going to move in with Lewis. Whether or not Russ thought Lewis was carrying his
child, the frequency of sexual relations between Russ and Lewis, and whether or not
Russ indicated he was going to move in with Lewis, do not in any way address
statement of fact 13 which indicates that Russ and Lewis discussed moving in
together. Thus, Plaintiffs’ response does not directly respond to the asserted fact.

Plaintiffs also contend that they provided sufficient citations simply because
they made reference to “Exhibit 22" and Plaintiffs now attempt to cite pertinent
portions of the exhibit such as pages 73, 79 and 80 of the exhibit in response to the
allegations regarding Russ and Lewis moving in together. (Mot. Recon. 7). Such
citations could have and should have been provided in Plaintiffs 56.1 response and
the court was not obligated to scour Exhibit 22 to find out whether or not a portion
created a legitimate dispute, Absent justification for Plaintiffs’ delay, a motion for
reconsideration is not the proper juncture to raise these points and citations. Also,
Plaintiffs’ citation to Exhibit 22 was merely in support of Plaintiffs conclusory 56.1
response, which as explained above was evasive and did not directly respond to
statement of fact 13.

Plaintiffs also now object to statements made by Defendants in their summary


behalf of Russ’ son, Robert Russ Jr., and the child’s mother Erin Lewis (“Lewis”) in
Illinois state court for wrongful death and survival. A jury awarded Russ’ estate
$9.6 million. In the instant case, the Plaintiffs are Russ’ parents and siblings who
brought claims against the City, Watts, Banaszkiewicz, and Helson. Plaintiffs
include in their amended complaint two substantive due process claims alleging
violations of 42 U.S.C. § 1983 (“Section 1983") based on a severance of family
relationships between Russ and his parents and Russ and his siblings (Counts I and
Il). Plaintiffs also brought a Section 1983 failure to prevent the use of excessive
force claim (Count ILI), a Section 1983 conspiracy claim (Count IV), and a Section
1983 Monell claim against the City. Russ’ siblings also allege violations of 42
US.C, § 1985 (“Section 1985") involving an alleged conspiracy to deny Russ’
siblings access to the court system (Count VI). On March 15, 2002, Judge
Gettleman, the prior judge in this case, granted Defendants’ motion to dismiss all of
the Section 1983 claims brought by Russ’ siblings because his siblings did not have
standing (Count II). Judge Gettleman also granted Defendants’ motion to dismiss
Russ’ siblings’ Section 1985 claims (Count VI). On April 30, 2004, Plaintiffs
voluntarily dismissed the Monell claim against the City (Count V). The remaining
defendants filed motions for summary judgment and on June 17, 2004, we granted

the remaining defendants’ motions for summary judgment in their entirety and



nearly collided with two motorcyclists. Banaszkiewicz claims that he pulled behind
Russ’ car and turned on his blue lights, According to Banaszkiewicz, Russ did not
stop until he reached a red light. Banaszkiewicz claims that he was wearing his
uniform and that he exited his vehicle and knocked on the driver's side window of
Russ’ car, but Russ ignored him and when the light changed to green, Russ
proceeded onward, Helson, who was driving home from a part-time security job,
claims that he saw Russ start off with the green light, leaving Banaszkiewicz behind.
Banaszkiewicz called for backup and Watts was called in to assist in the pursuit. A
chase ensued and Russ finally stopped when he collided with other Chicago Police
vehicles,

Banaszkiewicz and Helson approached the passenger’s side window and
Watts approached the driver’s side of the car. Heison claims that he managed to
crack open the passenger’s side door and was able to calmly tell Russ that he was
surrounded and that “he was not helping himself.” Watts then broke the rear
driver’s side window of the car. Defendants claim that Russ reacted by reaching for
Watts’ gun. Defendants claim that Russ grabbed Watts’ gun and after a few seconds
of a struggle the gun discharged, killing Russ. At the time of his death Russ was
twenty-two years old and was a student at Northwestern University.

The administrator of Russ’ estate brought a suit against Watts and the City on


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

EASTERN DIVISION .
DOCKETED

CHRISTOPHER RUSS, et al., ) Sep 10 2004

Plaintiffs, }

ve } No. 01 € 4098

VAN WATTS, et al.,

Defendants, )

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Plaintiffs’ motion for clarification and
motion for reconsideration. For the reasons stated below, we enter final judgment
dismissing the claims brought by Russ’ siblings and deny the motion for

reconsideration.

BACKGROUND
Watts, Banaszkiewicz, and Helson are police officers that work for the City of
Chicago (“City”). On June 5, 1999, Banaszkiewicz claims that he spotted a car

being driven by Robert Russ (“Russ”) which cut across two lanes of traffic and