Right Field Rooftops, LLC et al

Filing 97

MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 9/1/2016. The Court denies the Rooftops' Motion to Amend Judgment and for Leave to File and Amended Complaint 78 . Mailed notice(lk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RIGHT FIELD ROOFTOPS, LLC, d/b/a
SKYBOX ON SHEFFIELD; RIGHT FIELD
PROPERTIES,
LLC;
3633
ROOFTOP
MANAGEMENT, LLC, d/b/a LAKEVIEW
BASEBALL
CLUB;
and
ROOFTOP
ACQUISITION, LLC,
Plaintiffs,
v.
CHICAGO BASEBALL HOLDINGS, LLC;
CHICAGO CUBS BASEBALL CLUB, LLC;
WRIGLEY FIELD HOLDINGS, LLC; and
THOMAS S. RICKETTS,
Defendants.

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No. 15 C 551
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Plaintiffs Right Field Rooftops, LLC; Skybox on Sheffield; Right Field Properties, LLC;
3633 Rooftop Management, LLC; Lakeview Baseball Club; and Rooftop Acquisition, LLC (the
“Rooftops”) filed this action against Defendants Chicago Baseball Holdings, LLC; Chicago Cubs
Baseball Club, LLC; Wrigley Field Holdings, LLC; and Thomas S. Ricketts (the “Cubs”)
alleging that the Cubs engaged in anti-competitive behavior and breached a contract under which
the Rooftops would pay 17% of their profits to the Cubs in exchange for the Cubs’ promise to
not block the view of Wrigley Field from the rooftops (the “License Agreement”).
The Court previously grouped the Rooftops’ nine claims as follows: (1) attempted
monopolization (Counts I and II); (2) false and misleading commercial representations,
defamation, false light, and breach of the non-disparagement clause of the License Agreement
(Counts III–VII and IX); and (3) breach of contract (Count VIII). The Court dismissed all nine
counts with prejudice. The Rooftops, having retained new counsel, attempt one more time to file
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a new complaint with another argument and now move the Court to amend its judgment pursuant
to Federal Rule of Civil Procedure 59(e) and to grant them leave to amend the Complaint
pursuant to Federal Rule of Civil Procedure 15(a). (Dkt. No. 78). For the following reasons, the
Court denies the Rooftops’ motion.
BACKGROUND
The facts underlying the Complaint are set forth in the Court’s order denying Plaintiffs’
motion for preliminary injunction. See Right Field Rooftops, LLC v. Chicago Baseball Holdings,
LLC, 87 F. Supp. 3d 874, 878–83 (N.D. Ill. 2015). The dispute arose from the Cubs’ construction
of a video board in Wrigley Field that blocks the view into the stadium from the surrounding
rooftops, the Cubs’ acquisition of some rooftop properties, and the Cubs’ attempts to control
minimum ticket pricing for the rooftops. The Rooftops filed their initial Complaint on January
20, 2015. Three weeks later, the Rooftops sought a temporary restraining order and preliminary
injunction to enjoin the Cubs from constructing the video board.
The Court held a TRO hearing on February 18, 2015 and denied the Rooftops’ motion for
TRO the following day. On April 2, 2015, the Court denied the Rooftops’ motions for
preliminary injunction because: (1) the exemption of Major League Baseball teams forecloses
antitrust claims; (2) live Cubs games are not a relevant market; (3) plans to construct the video
board did not constitute anticipatory repudiation; (4) the Rooftops failed to establish that they
would suffer irreparable harm and had no adequate remedy at law besides injunctive relief; and
(5) a balance of hardships weighed in favor of denying injunctive relief.
On February 17, 2015, the Cubs filed a motion to dismiss all nine counts pursuant to
Federal Rule of Civil Procedure 12(b)(6). On September 30, 2015, the Court granted the Cubs’
motion to dismiss. See Right Field Rooftops, LLC v. Chicago Cubs Baseball Club, LLC, No. 15

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C 551, 2015 WL 5731736 at *4 (N.D. Ill. Sep. 30, 2015). The Court dismissed the
monopolization claims (Counts I and II) because Major League Baseball’s antitrust exemption
applies to the Cubs, the Rooftops failed to establish a plausible relevant market, and the Cubs
cannot be limited by antitrust law from distributing their own product. Id. at *5–6. The Court
dismissed the false and misleading commercial representations, defamation, false light, and
breach of the non-disparagement clause claims (Counts III–VII and IX) because the statements
made by Defendant Ricketts on which the Rooftops relied to demonstrate these various causes of
action were nonactionable statements of opinion by Ricketts that no reasonable person could
interpret to be statements of fact or accusations of criminal activity in the context in which
Ricketts made them. Id. at *6–8. Finally, the Court dismissed the breach of contract claim (Count
VIII) because the plain language of the contract allowing the Cubs to conduct any expansion that
was approved by the City of Chicago was not limited to expansions to the seating capacity of
Wrigley Field, but rather allowed the Cubs to make any expansion including the construction of
the video board at issue in this case. Id. at *8–9.
The Rooftops did not appeal the dismissal. Instead, on October 28, 2015, the Rooftops
filed this motion seeking to amend or alter the Court’s judgment and to obtain leave to amend the
Complaint. (Dkt. No. 78.) On the same day, the Rooftops’ counsel filed a motion to withdraw,
(Dkt. No. 76.), which the Court granted on October 29, 2015. (Dkt. No. 84.) In their motion to
alter or amend the judgment and allow the Rooftops to amend their Complaint, the Rooftops
contend that their recent discovery of the corporate structure of the entities acquiring some of the
rooftop businesses at issue requires the Court to reconsider and alter its September 30th Order.
(Dkt. No. 80 at 2–3.) Specifically, the Rooftops argue that this new information requires the

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Court to alter its judgment with regards to Count II, under which the Rooftops allege attempted
monopolization in violation of the Sherman Act. Id.
DISCUSSION
I. Rule 59(e) Motion to Amend or Alter Judgment
“Once judgment has been entered, there is a presumption that the case is finished, and the
burden is on the party who wants to upset that judgment to show the court that there is good
reason to set it aside.” Hecker v. Deere & Co., 556 F.3d 575, 591 (7th Cir. 2009). Under Rule
59(e), the Court may alter or amend its judgment if the movant “clearly establish[es] (1) that the
court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded
entry of judgment.” Blue v. Hartford Life & Accident Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012).
This rule “enables the court to correct its own errors and thus avoid unnecessary appellate
procedures.” Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir. 2012). However, such
motions are not appropriate vehicles for relitigating arguments that the district court previously
rejected, or for arguing issues or presenting evidence that could have been raised during the
pendency of the motion presently under reconsideration. Sigworth v. City of Aurora, 487 F.3d
506, 512 (7th Cir. 2007). The decision to grant a Rule 59(e) motion lies in the sound discretion
of this Court, and its ruling is reviewed deferentially and will only be disturbed upon a showing
that the Court abused that discretion. See Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996);
Billups v. Methodist Hosp., 922 F.2d 1300, 1305 (7th Cir. 1991).
The Rooftops contend that the Court should grant their motion because newly discovered
evidence precludes entry of the prior judgment and because the Court committed manifest errors
of law. The Rooftops also submit that because the Rule 59(e) motion is accompanied by a
motion to amend pursuant to Rule 15, the Court should apply the more liberal amendment

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standard to determine if it is appropriate to alter the judgment. See Runnion v. Girl Scouts of
Greater Chicago, 786 F.3d 510, 520–22 (7th Cir. 2015). Even applying this more liberal
standard, the motion to amend or alter the judgment must still be denied because the proposed
First Amended Complaint is futile, as discussed in greater length in Section II.
A. Newly Discovered Evidence
To support a motion for reconsideration based on newly discovered evidence, the moving
party must “show not only that this evidence was newly discovered or unknown to it until after
the hearing, but also that it could not with reasonable diligence have discovered and produced
such evidence [during the pendency of the motion].” Caisse Nationale de Credit Agricole v. CBI
Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996); see also Cincinnati Life Ins. Co. v. Beyrer, 722
F.3d 939, 955 (7th Cir. 2013) (movant must have been unable to discover information despite
exercise of due diligence). In this case, the new evidence set forth by the Rooftops concerns the
relationships between entities named in the original Complaint, Defendant Ricketts, and entities
that have acquired other rooftop properties. Specifically, the Rooftops have provided
documentation showing that the holding companies that acquired six of the rooftop properties
were owned by Greystone, LLC, which in turn was owned by Northside Entertainment Holdings,
LLC. (See Dkt. No. 78 Exs. A–C). Northside Entertainment Holdings, of which Ricketts is the
executive vice president, owns and operates the Chicago Cubs. (Dkt. No. 78-2 at 41.) The
Rooftops have also provided the declaration of an advisor to two of the Plaintiff Rooftops
explaining why the Rooftops believed the Cubs were the entity acquiring the rooftop properties,
as opposed to Northside Entertainment Holdings, which owns the entities that own and operate
the Chicago Cubs and Wrigley Field. (Dkt. No. 78-2 at 2–4.)

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All of this information, however, was then and is now a matter of public record and
cannot be considered “newly discovered” for purposes of Rule 59(e). See, e.g., APC Filtration,
Inc. v. Becker, 646 F. Supp. 2d 1000, 1007 (N.D. Ill. 2009) (evidence not newly discovered
under Rule 59(e) where previously available as public record); Duffin v. Exelon Corp., No. 06 C
1382, 2007 WL 1385369, at *2 (N.D. Ill. May 4, 2007) (same); Entm’t, Inc. v. City of Northlake,
No. 03 C 692, 2004 WL 1243972, at *2 (N.D. Ill. June 3, 2004) (same). The alleged new
documentation was obtained either through the Cook County Recorder of Deeds or the Illinois
Secretary of State website and even the declarant averred that he was able to obtain some of the
information through mere internet searches. Moreover, all of this information was available to
the Rooftops prior to this Court’s order of September 30. The purchasing entities recorded the
deed for one of the properties on January 12, 2015, (Dkt. No. 78-2 at 19); three others on January
15, 2015, (Dkt. No. 78-2 at 23, 25); and two others on May 15, 2015, (Dkt. No. 78-2 at 6, 12.)
Thus, all of the “newly discovered evidence” was available on the public record well before the
Court’s dismissal of this case. The Rooftops’ allegation that their lack of actual knowledge was
based in part on the participation of officers of the Cubs in negotiations for acquisition of the
rooftop properties is immaterial to the analysis of whether the evidence was newly discovered
within the meaning of Rule 59(e), as the information was a matter of public record. Accordingly,
the Court will not amend or alter the judgment based on the Rooftops’ discovery of new
evidence.
B. Manifest Error of Law or Fact
The Rooftops next claim that this Court erred in its determinations of whether: (1) Major
League Baseball’s Antitrust exemption applies to the rooftop businesses; (2) a plausible relevant
market exists with respect to the rooftop businesses; and (3) the monopolization of the rooftop

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businesses is nothing more than the Cubs taking over the distribution of their own product. A
manifest error of law or fact occurs where “the district court commits a wholesale disregard,
misapplication, or failure to recognize controlling precedent.” Burritt v. Ditlefsen, 807 F.3d 239,
253 (7th Cir. 2015) (internal quotations omitted) (citing Oto v. Metro Life Ins. Co., 224 F.3d 601,
606 (7th Cir. 2000). A motion to reconsider cannot, however, “be used to rehash previously
rejected arguments. Vesely v. Armlist LLC, 762 F.3d 661, 666 (7th Cir.2014) (internal quotations
omitted) (citing Oto, 224 F.3d at 606).
The Rooftops begin by arguing that the Major League Baseball Antitrust Exemption does
not apply in this case. They maintain that the monopolization claim does not concern the
business of the Chicago Cubs, but concerns “the market for the sale of views of live Cubs games
from Rooftop Businesses outside of Wrigley Field, by independent competitors, who historically
have had no involvement with the Chicago Cubs…” (See Dkt. No. 80, 7). The Court properly
considered this argument in issuing its first three orders in this case. As stated in its dismissal
order, this Court has “already held, the exemption applies to the ‘business of baseball’ in general,
not solely those aspects related to baseball’s unique characteristics and needs.” (See Dkt. Not. 74,
4 (citing Charles O. Finley & Co., Inc. v. Kuhn, 569 F.2d 527, 541 (7th Cir. 1978) (despite
references to the player reserve system in Supreme Court precedent, “it appears clear from the
entire opinions . . . that the Supreme Court intended to exempt the business of baseball, not any
particular facet of that business, from the federal antitrust laws”)). The Cubs are engaged in the
business of publicly displaying baseball games, which is “integral” to the business of baseball.
(See id. at 5).
Plaintiffs’ attempt to circumvent the baseball exemption by now arguing that it is not
solely live Cubs game that the Cubs are trying to monopolize, but rather “Live Views of Wrigley

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Field Events, which do not consist solely of baseball games” is inappropriate under Rule 59(e).
(See Dkt. No. 80 at 7). This new argument, is not new at all in that it was actually conceded by
Plaintiffs’ counsel at oral argument. Yet, it was not raised in the Plaintiffs’ previous motions and
was not alleged in the Complaint. Raising this argument at this stage is “too little too late” and it
is waived for purposes of appeal. See Wilson v. Wilson, 46 F.3d 660, 667 (7th Cir. 1995) (citing
Laserage Tech. v. Laserage Labs., 972 F.2d 799, 804 (7th Cir. 1992)). And, regardless, even if it
had been addressed appropriately, the amendment is futile.
Next, the Rooftops move the Court to reconsider whether a plausible relevant market
exists with respect to the rooftop businesses. The Rooftops contend that the Court incorrectly
held that the Rooftops cannot plead any plausible relevant market, given the fact that the
Rooftops were given no opportunity to amend the Complaint. As to the Rooftops’ assertion that
they were not given an opportunity to amend the Complaint, the instant motion is the Rooftops’
first attempt to seek leave to amend. This is despite the fact that they were given ample notice of
the deficiencies in their Complaint based on the Court’s denial of their TRO request on February
19, 2015, as well as their preliminary injunction request on April 2, 2015. Additionally, the
motion to dismiss that the Court ultimately granted was filed on February 17, 2015; at no point
during the pendency of that motion did the Rooftops seek to amend their Complaint. The
Rooftops’ argument that they were not given opportunity to amend the Complaint is untrue; they
have only just requested such an opportunity. Moreover, as discussed below, the proposed
amendment is futile.
The Rooftops also argue that the Court incorrectly determined that a single brand cannot
be a relevant market because the Rooftops are not defining the relevant market on a single brand
and there is no rule precluding a market from being comprised of a single brand. As with the

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antitrust exemption for Major League Baseball, the Rooftops offer no new case law nor any new
facts tending to show a manifest error of law or fact; again, they merely contend that the Court
incorrectly applied the law and attempt to argue the Court’s September 30th Order was
erroneous. This is not appropriate grounds for a Rule 59(e) motion.
Lastly, the Rooftops contend that the Court incorrectly held that that the Cubs’ attempt to
monopolize the rooftop businesses is no more than the Cubs taking over distribution of their own
product. In their motion, not only did the Rooftops fail to identify any precedential decision the
Court ignored, they did not cite to any case law at all. In sum, the Rooftops failed to offer any
controlling law or material facts that the Court ignored prior to the September 30th Order.
Accordingly, the Rooftops failed to establish a manifest error of law or fact. Coupled with their
failure to establish that the discovery of new evidence requires the Court to alter its judgment,
the Rooftops’ motion to alter or amend the judgment is denied.
II. Rule 15 Motion to Amend
The fact that the Rooftops are simultaneously seeking leave to amend their Complaint
under Rule 15(a) does nothing to save their motion. Even applying the liberal standard of Rule
15(a), the Rooftops’ motion still fails. See Gonzalez-Koeneke v. West, 791 F.3d 801, 807 (7th
Cir. 2015) (evaluating motion to reconsider and leave to amend under the Rule 15(a) standard);
Runnion v. Girl Scouts of Greater Chi. & NW Ind., 786 F.3d 510, 521 (7th Cir. 2015) (same).
Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “[a] district court may deny leave
to file an amended complaint in the case of ‘undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of
amendment.’ ” Childress v. Walker, 787 F.3d 433, 441 (7th Cir. 2015) (quoting Bausch v.

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Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010) (internal quotation marks and citations
omitted)).
This Court’s denial of a motion for leave to amend is reviewed under an abuse of
discretion standard and will not be reversed “when the court provides a reasonable explanation
for why it denied the proposed amendment.” See Gonzalez-Koeneke v. West, 791 F.3d 801, 808
(7th Cir. 2015). “A district court acts within its discretion in denying leave to amend, either by
dismissing a complaint with prejudice or by denying a post-judgment motion, when the plaintiff
fails to demonstrate how the proposed amendment would cure the deficiencies in the prior
complaint.” See id. (citing Indep. Tr. Corp. v. Stewart Inf. Serv’s Corp., 665 F.3d 930, 943–44
(7th Cir. 2012) (district court did not abuse its discretion by dismissing a complaint without
allowing an opportunity to amend because the plaintiff “did not offer any meaningful indication
of how it would plead differently”); Hecker v. Deere & Co., 556 F.3d 575, 591 (7th Cir. 2009)
(district court did not abuse its discretion by denying a motion for reconsideration requesting
leave to amend the complaint “because the plaintiff did not attach an amended complaint and did
not indicate the ‘exact nature of the amendments proposed’ ” (quoting Twohy v. First Nat'l Bank,
758 F.2d 1185, 1189 (7th Cir.1985)).
Here, the Rooftops’ proposed amendments are futile. First, the Rooftops seek to include
Northside Entertainment Holdings, LLC and other entities involved in the purchase of the
rooftops that are found to be necessary parties as defendant(s). (See Dkt. No. 80, 5). Adding
these “non-Cub” entities to the complaint will not save Count II from the baseball exemption. In
its original order dismissing this case, the Court considered and dismissed the individual
defendant, Thomas Ricketts. In so doing, the Court recognized that the proper inquiry with
respect to the baseball exemption is the type of conduct at issue. (See Dkt. No. 69, Prelim. Inj.

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Order at 13) (noting that the “Toolson defendants themselves included . . . both the owner and
general manager of the Cincinnati club”). Specifically, the issue is whether the conduct is the
business of baseball, regardless of whether that business is conducted by a team or owner or
separate corporation. See Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 772 n.19 (1984)
(internal quotation marks and citation omitted) (refusing to apply heightened antitrust scrutiny in
case where parent “availed [itself] of the privilege of doing business through separate
corporations”).
The Rooftops also move to amend Count II and clarify that the relevant market is not a
single brand, but “Live Views or Wrigley Field Events.” (See Dkt. No. 80, 11.) As already
mentioned, the Plaintiffs conceded at oral argument that—contrary to their new position—the
“very purpose of one of these clubs is to sell admissions to watch a Cubs game.” See TRO Tr. at
20; see also McCaskill v. SCI Mgmt. Corp., 298 F.3d 677, 680 (7th Cir. 2002) (an admission “at
oral argument is a binding judicial admission, the same as any other formal concession made
during the course of proceedings.”). Moreover, this proposed amendment does not render the
relevant market allegations plausible. As the Court previously stated, “[t]he use or uses to which
a product is put controls the boundaries of the relevant market. The outer boundaries of a product
market are determined by the reasonable interchangeability of use or the cross-elasticity of
demand between the product itself and substitutes for it.” (See Dkt. No. 69, 16) (internal citations
and quotation marks omitted). Events other than live Cubs games, such as concerts, are
reasonably interchangeable with substitutes. Yes, Wrigley Field may be a popular venue to
watch a concert, but the “relevant market should be expanded to all other comparable places…”
such as other music venues in this case. See Elliott v. United Ctr., 126 F.3d 1003, 1005 (7th Cir.
1997). Plaintiffs’ proposed amendment fails to allege a plausible relevant market.

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Lastly, the Rooftops seek to amend their Complaint to clarify that “Plaintiffs do not
concede that the attempt to monopolize the Rooftop Businesses by the Ricketts family, through
Defendant Northside Entertainment Holdings, LLC, constitutes the ‘takeover’ of the distribution
of Cubs baseball by the supplier, Chicago Cubs Baseball Club, LLC.” (See Dkt. No. 80, 12.) The
Rooftops maintain that Northside Entertainment, which is invested in by the Ricketts family, is
one of the investors in both Chicago baseball Holdings, LLC and Wrigley Field Holdings, LLC;
and that it is the Ricketts family and Northside Entertainment, not the Cubs, that are investing in
the Rooftops Businesses. The Rooftops, however, have failed to provide any case law
demonstrating why this “clarification” would allow the Amended Complaint to survive a second
motion to dismiss. See Weinstein v. Schwartz, 422 F.3d 476, 477 n. 1 (7th Cir. 2005) (internal
quotation marks and citation omitted) (“We have repeatedly made clear that perfunctory and
undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived
....”). This lack of supporting case law is especially problematic with respect to this argument
because the Court’s holding that the Cubs cannot monopolize their own product was merely used
in this Court’s September 30th order as an “additional reason” for dismissal beyond the fact that
there is no plausible relevant market for the presentation of live Cubs games. The argument is
deemed waived. See id. The Court notes, however, that merely because an entity with ownership
interest in the Cubs—and not the Cubs themselves—purchased the Rooftop Businesses, does not
render this additional reason for dismissal any less valid. See, e.g., S.W.B. New England, Inc. v.
R.A.B. Food Grp., LLC., No. 06 Civ. 15357(GEL), 2008 WL 540091, at *1 (S.D.N.Y. Feb. 27,
2008) (rejecting a vertical-integration-as monopoly theory where the vertical integration
occurred between two “affiliated” but separate businesses “under common ownership and
control”). Because Plaintiffs’ proposed amendments would still be subject to the baseball

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exemption and because they have failed to allege a plausible relevant market, the Court denies
the Rooftops’ Motion to Amend the Complaint. See Foster v. Deluca, 545 F.3d 582, 584 (7th
Cir. 2008) (internal quotations and citations omitted) (a motion for leave to amend may be
denied where “the proposed amendment fails to cure the deficiencies in the original pleading, or
could not survive a second motion to dismiss.”).
CONCLUSION
For the reasons stated, the Court denies the Rooftops’ Motion to Amend Judgment and
for Leave to File an Amended Complaint. (Dkt. No. 78).

Date: __8/31/2016_

________________________________________
Virginia M. Kendall
United States District Court Judge
Northern District of Illinois

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