McNamee v. Family Focus Inc

Filing 22

OPINION AND ORDER: DENYING 18 Motion for Reconsideration titled as, "NOTICE OF APPEAL by Corey McNamee as to 17 Opinion and Order granting in part and denying in part 9 Motion to Dismiss for Failure to State a Claim". Signed by Senior Judge James T Moody on 8/14/2015. (lhc)(cc: Pla and USCA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
COREY MCNAMEE,

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Plaintiff,
v.
FAMILY FOCUS INC.,
Defendant.

No. 2:14 CV 260

OPINION and ORDER
On July 30, 2015, this court granted defendant’s unopposed motion to dismiss
plaintiff’s complaint, in part, and dismissed plaintiff’s discrimination claims as
untimely. (DE # 17.) Plaintiff now asks the court to reconsider that decision, citing
evidence that he believes warrants tolling the statute of limitations. (DE # 18.)
Strictly speaking, a “motion for reconsideration” does not exist under the
Federal Rules of Civil Procedure. Hope v. United States, 43 F.3d 1140, 1142 n. 2 (7th Cir.
1994); see also Talano v. Nw. Med. Faculty Found., Inc., 273 F.3d 757, 760 n. 1 (7th Cir.
2001). However, this type of motion is frequently entertained when it is “a request that
the court reexamine its decision in light of additional legal arguments, a change of law,
or perhaps an argument or aspect of the case which was over-looked.” Ahmed v.
Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004) (internal quotation omitted). Nonetheless, the
Seventh Circuit Court of Appeals has stated:
It is not the purpose of allowing motions for reconsideration to enable a
party to complete presenting his case after the court has ruled against
him. Were such a procedure to be countenanced, some lawsuits really
might never end, rather than just seeming endless.

Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir. 1995); see also Oto v. Metro. Life Ins. Co.,
224 F.3d 601, 606 (7th Cir. 2000) (“A party may not use a motion for reconsideration to
introduce new evidence that could have been presented earlier.”); Divane v. Krull Elec.
Co., 194 F.3d 845, 850 (7th Cir. 1999); LB Credit Corp. v. Resolution Trust Corp., 49 F.3d
1263, 1267 (7th Cir. 1995). In other words, a motion for reconsideration is “not intended
to routinely give litigants a second bite at the apple, but to afford an opportunity for
relief in extraordinary circumstances.” First Nat’l Bank in Manitowoc v. Cincinnati Ins.
Co., 321 F. Supp. 2d 988, 992 (E.D. Wis. 2004).
Plaintiff had an opportunity to respond to defendant’s motion to dismiss, but he
failed to file anything at all. See N.D. IND. L. R. 7-1 (requiring a response to a motion to
dismiss within 14 days after date of service). Perhaps plaintiff was unaware of the local
rules governing responses, but ignorance of procedural deadlines does not excuse a
litigant’s untimeliness, even when the litigant is proceeding pro se. See Members v. Paige,
140 F.3d 699, 702 (7th Cir. 1998) (quoting McNeil v. United States, 508 U.S. 106 (1993),
“[R]ules apply to uncounseled litigants and must be enforced.”); see also Downs v.
Westphal, 78 F.3d 1252, 1257 (7th Cir. 1996). The time to offer argument and evidence
regarding tolling the statute of limitations was within 14 days after the date of service
of the motion to dismiss, not now, and plaintiff has offered no justification for his
failure to file a response to defendant’s motion to dismiss. No “extraordinary
circumstances” appear to exist. First Nat’l Bank, 321 F. Supp. 2d at 992.

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Given the circumstances, the court declines to afford plaintiff “a second bite at
the apple,” id., and turn this case into one that “might never end.” Frietsch, 56 F.3d at
828. Plaintiff’s motion for reconsideration (DE # 18) is DENIED.
SO ORDERED.
Date: August 14, 2015
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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