Stueve Construction LLC v. Weber Plumbing and Heating Inc

Filing 88

ORDER entered by Judge Colin Stirling Bruce on 7/19/2021. The Defendant's Motion to Reconsider 78 is DENIED. The Report and Recommendation 84 by Magistrate Judge Long is ADOPTED in its entirety. Plaintiff's Motion to Amend Complaint [ 80], Supplemental Submission in Support of Motion to Amend Complaint 82 , and Appeal of Magistrate Judge's Report and Recommendation 85 are DENIED. Case remains set for Final Pretrial Conference on November 1, 2021 at 1:30 PM and Jury Trial on December 7, 2021 at 9:00 AM. See written Order.(BMG)

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E-FILED

Monday, 19 July, 2021 10:52:42 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
____________________________________________________________________________
STUEVE CONSTRUCTION, LLC,

)
)
Plaintiff,
)
)
v.
)
)
WEBER PLUMBING AND HEATING, INC., )
)
Defendant.
)

Case No. 19-CV-2072

ORDER
Several motions are currently pending before the court.
First, Defendant filed a Motion to Reconsider Parts of the December 21, 2020,
Order [Dkt. 77] Denying Summary Judgment on Counts II, III, and IV of the Complaint
(#78) on January 19, 2021, to which Plaintiff filed a Memorandum in Opposition (#79)
on January 29, 2021.
Second, Plaintiff filed a Motion to Amend Complaint (#80) on January 29, 2021,
to which Defendant filed a Response (#81) on February 12, 2021. In response to a text
order by Magistrate Judge Eric I. Long entered April 14, 2021, Plaintiff filed a
Supplemental Submission in Support of its Motion to Amend Complaint (#82) on April
28, 2021, to which Defendant filed a Response (#83) on May 12, 2021. Magistrate Judge
Long entered a Report and Recommendation (#84) on June 9, 2021, recommending that
Plaintiff’s Motion to Amend Complaint and Supplemental Submission in support

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thereof be denied. Plaintiff filed an Appeal of Magistrate Judge’s Report and
Recommendation (#85) on June 23, 2021. In response, Defendant filed a Memorandum
of Law in Opposition to Plaintiff’s Objection and Appeal (#87) on July 7, 2021.
For the following reasons, the court DENIES Defendant’s Motion to Reconsider
(#78), ADOPTS Magistrate Judge Long’s Report and Recommendation (#84) in full, and
DENIES Plaintiff’s Motion to Amend Complaint (#80), Supplemental Submission (#82),
and Appeal of Magistrate Judge’s Report and Recommendation (#85).
I. MOTION TO RECONSIDER
On December 21, 2020, this Court entered an Order (#77) granting Defendant’s
Motion for Summary Judgment (#69) as to Count I of Plaintiff’s Complaint (#1) and
denying summary judgment as to Counts II, III, and IV of the Complaint. Defendant
asks the court to reconsider its ruling on Counts II, III, and IV.
Specifically, Defendant asks the court to reconsider its holding that there is a
genuine issue of material fact as to whether Defendant breached an implied warranty of
workmanlike performance (Count II) when it did not add glycol to the in-floor heating
system. Counts III and IV also survived summary judgment, to the extent they relied
upon the allegations in Count II.
“Motions for reconsideration serve a limited function: to correct manifest errors
of law or fact or to present newly discovered evidence.” Caisse Nationale de Credit
Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). Reconsideration is
“inappropriate where a party seeks to raise arguments that could have been raised in

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the original briefing.” Netherlands Insurance Company v. Knight, 2014 WL 3376873, at *1
(C.D. Ill. July 10, 2014).
Defendant’s Motion to Reconsider is based upon the deposition testimony of
Thomas Marshino and a discussion of Meyers v. Woods, 871 N.E.2d 160 (Ill. App. Ct.
2007). The deposition testimony was available and cited by the parties in their original
summary judgment briefings. Similarly, Plaintiff cited and discussed Meyers v. Woods in
response to Defendant’s summary judgment motion, and Defendant could have raised
the present arguments in its reply prior to this court’s ruling on the summary judgment
motion.
Consequently, because Defendant seeks to raise arguments now that could have
been raised in its original summary judgment motion and reply in support thereof,
reconsideration of the court’s Order (#77) denying summary judgment on Counts II, III,
and IV is inappropriate. Defendant’s Motion for Reconsideration (#78) is DENIED.
II. MOTION TO AMEND COMPLAINT
As indicated above, on December 21, 2020, the court granted summary judgment
in favor of Defendant and against Plaintiff on Count I for breach of contract. On
January 29, 2021, in response to that summary judgment order, Plaintiff moved to
amend its complaint to add a new cause of action for breach of a different, modified
contract. The Report and Recommendation entered by Magistrate Judge Long
recommended that Plaintiff’s motion to amend be denied.

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A motion to amend complaint is a non-dispositive motion. See Hall v. Norfolk
Southern Railway Co., 469 F.3d 590, 594-95 (7th Cir. 2006). In Hall, the Seventh Circuit
held that a magistrate judge’s denial of the plaintiff’s motion to amend complaint was
non-dispositive, both pursuant to the magistrate judge’s statute, 28 U.S.C. § 636, and
because the denial of leave to amend complaint in that case “did not terminate
[plaintiff’s] existing lawsuit against [defendant], it merely prevented him from adding
[a proposed party] as a defendant.” 469 F.3d at 595. So too, here, Magistrate Judge
Long’s recommendation to deny Plaintiff’s motion to amend complaint would not
terminate Plaintiff’s lawsuit, as the court has already concluded that Counts II, III, and
IV survive summary judgment.
Pursuant to Federal Rule of Civil Procedure 72(a), the court should not modify or
set aside a magistrate judge’s ruling on a non-dispositive motion unless its factual
findings are “clearly erroneous or [the order] is contrary to law.”
A factual finding is clearly erroneous when, after considering the record, the
reviewing court is left with “the definite and firm conviction that a mistake has been
committed.” Reynolds v. Tangherlini, 737 F.3d 1093, 1104 (7th Cir. 2013) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
Here, upon review of the factual findings in the Report and Recommendation,
this court finds no mistake has been committed. The factual findings rely primarily on
the undisputed facts as described in this court’s summary judgment order, as well as
the undisputed procedural history evident from the docket. Most noteworthy, for
purposes of the motion to amend complaint, the Report and Recommendation correctly
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indicates that Plaintiff’s motion to amend was filed four months after Defendant’s
motion for summary judgment was filed, five months after discovery had closed, and
approximately nineteen months after the deadline to amend pleadings.
An order is “contrary to law” when it “fails to apply or misapplies relevant
statutes, case law or rules of procedure.” Henry v. Centeno, 2011 WL 3796749 (N.D. Ill.
Aug. 23, 2011).
Here, the court finds that the Report and Recommendation is not contrary to law.
The Magistrate Judge reviewed and carefully applied relevant case law. Specifically,
the Report and Recommendation discussed the requirement that Plaintiff both (1) show
“good cause” for the amendment under Federal Rule of Civil Procedure 16 and (2)
obtain leave of the court, which has “broad discretion to deny leave to amend where
there is undue delay[.]” Trustmark Insurance Co. v. General & Cologne Life Re of America,
424 F.3d 542, 553 (7th Cir. 2005); Gonzalez-Koeneke v. West, 791 F.3d 801, 807 (7th Cir.
2015).
The Report and Recommendation also reviewed relevant Seventh Circuit case
law consistently upholding denial of leave to amend both when amendment is sought
months after the deadline to amend pleadings, see Trustmark, 424 F.3d at 553, Carroll v.
Stryker Corp., 658 F.3d 675, 684 (7th Cir. 2011), Alioto v. Town of Lisbon, 651 F.3d 715, 720
(7th Cir. 2011), and when amendment is sought even before the filing of a summary

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judgment motion, 1 see Thomas v. Mashak, 743 Fed. Appx. 702, 703-04 (7th Cir. Nov. 26,
2018), Johnson v. Cypress Hill, 641 F.3d 867, 871-73 (7th Cir. 2011), Feldman v. American
Memorial Life Insurance Co., 196 F.3d 783, 793 (7th Cir. 1999).
Because the Report and Recommendation is not clearly erroneous or contrary to
law, the court ADOPTS the Report and Recommendation (#84) in its entirety.
IT IS THEREFORE ORDERED:
(1)

Defendant’s Motion to Reconsider (#78) is DENIED.

(2)

The Report and Recommendation (#84) by Magistrate Judge Long is

ADOPTED in its entirety. Plaintiff’s Motion to Amend Complaint (#80), Supplemental
Submission in Support of Motion to Amend Complaint (#82), and Appeal of Magistrate
Judge’s Report and Recommendation (#85) are DENIED.
(3)

This case remains set for a Final Pretrial Conference on November 1, 2021,

at 1:30 PM and Jury Trial on December 7, 2021, at 9:00 AM.
ENTERED this 19th day of July, 2021.
s/Colin Stirling Bruce
COLIN S. BRUCE
U.S. DISTRICT COURT

As indicated above, here Plaintiff did not move to amend until January 29, 2021, which
was after both the filing of Defendant’s summary judgment motion on September 21,
2020, and the court’s ruling on that motion on December 21, 2020.
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