DEB v. SIRVA INC. et al

Filing 87

ORDER ON DEFENDANTS' MOTION FOR RECONSIDERATION - For the above reasons, the Court GRANTS Defendants' Motion to Reconsider (Filing No. 82 .), and grants in part and denies in part Deb's Motion to Strike Declaration of Abigail Jones. ( Filing No. 80.) Jones' declaration is permitted to resolve factual questions regarding Defendants' Motion to Dismiss pursuant to 12(b)(7), 12(b)(3), principles of forum non conveniens and international comity. Jones declaration is stricken from consideration regarding Defendants' Motion to Dismiss pursuant to Rule 12(b)(6). Signed by Judge Tanya Walton Pratt on 1/11/2017. (JLS) Modified on 1/11/2017 (JLS).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ASHOKE DEB,
Plaintiff,
v.
SIRVA INC.,
ALLIED VAN LINES, INC.,
Defendants.

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Case No. 1:13-cv-01245-TWP-DML

ORDER ON DEFENDANTS’ MOTION FOR RECONSIDERATION
This matter is before the Court on a Motion for Reconsideration filed by Defendants Sirva
Inc., and Allied Van Lines, Inc. (collectively “Defendants”). (Filing No. 82.) On November 17,
2016, Defendants relied on the Declaration of Abigail Jones when moving to dismiss Plaintiff
Ashoke Deb’s (“Deb”) Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6),
12(b)(7), 12(b)(3), principles of forum non conveniens and international comity. (Filing No. 77;
Filing No. 78-1.) Thereafter, on November 29, 2016, Deb filed a Motion for Extension of Time to
Respond to Renewed Motion to Dismiss and Motion to Strike or Exclude Declaration of Abigail
Jones (“Jones”). (Filing No. 80.) The following day, on November 30, 2016, the Court granted
Deb’s Motion in its entirety. (Filing No. 81.) Defendants now ask the Court to reconsider its Order
granting Deb’s Motion to Strike or Exclude Declaration of Jones (“Order”), arguing among other
things that the Court failed to allow Defendants time to respond. (Filing No. 82.) For the following
reasons, the Court GRANTS Defendants’ Motion for Reconsideration. Having considered
Defendants Response and Deb’s Reply, the Court grants in part and denies in part Deb’s Motion
to Strike.

I.

LEGAL STANDARD

The purpose of a motion to alter or amend judgment under Rule 59(e) is to ask the Court
to reconsider matters properly encompassed in a decision on the merits. Osterneck v. Ernst &
Whinney, 489 U.S. 169, 174 (1989). A Rule 59(e) motion will be successful only where the movant
clearly establishes: (1) that the court committed a manifest error of law or fact, or (2) that newly
discovered evidence precluded entry of judgment. Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d
939, 954 (7th Cir. 2013); United States v. Resnick, 594 F.3d 562, 568 (7th Cir. 2010). Relief
pursuant to a Rule 59(e) motion to alter or amend is an “extraordinary remed[y] reserved for the
exceptional case.” Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008). In this regard, a manifest
error is not demonstrated by merely presenting “the disappointment of the losing party.” Oto v.
Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (a manifest error is “the wholesale
disregard, misapplication, or failure to recognize controlling precedent.”). Further, a motion to
alter or amend a judgment is not an opportunity to “relitigate motions or present arguments, issues,
or facts that could and should have been presented earlier.” Brownstone Publ’g, LLC v. AT&T,
Inc., No. 1:07-CV-1630-SEB, 2009 WL 799546, at *3 (S.D. Ind. Mar. 24, 2009). See also
Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 512 (7th Cir. 2007).
II.

DISCUSSION

Defendants request the Court to reconsider its Order for three reasons. Defendants first
argue that the Court did not afford them time to respond to Deb’s Motion to Strike as required by
Local Rule 7-1(c)(2)(A) and Federal Rule of Civil Procedure 6(d). Defendants next contend that
the Seventh Circuit permits consideration of Jones’ declaration when resolving factual questions
supporting grounds for dismissal under 12(b)(7), 12(b)(3), principles of forum non conveniens

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and international comity. Defendants lastly assert that Deb failed to follow Local Rule 7-1(a) when
filing the Motion to Strike.
A. Opportunity to Respond
Defendants argue that the Court failed to afford them time to respond to Deb’s Motion to
Strike. On November 29, 2016, Deb filed a Motion for Extension of Time to Respond to Renewed
Motion to Dismiss and Motion to Strike or Exclude Declaration of Abigail Jones. (Filing No. 80.)
On November 30, 2016, less than twenty-four hours after Deb’s request, the Court issued an Order
granting the Motion in its entirety. The Court agrees that it failed to allow Defendants time to
respond pursuant to Local Rule 7-1. Accordingly, the Court will consider Defendants’ response to
Deb’s Motion to Strike.
B. Local Rule 7-1(a)
The Defendants also argue that the Court should reconsider its Order because Deb failed
to follow proper procedures when moving to strike Jones’ declaration. Deb filed a motion to strike
in the same pleading as a motion for enlargement of time for responding to Defendants’ renewed
motion to dismiss. “Motions must be filed separately, but alternative motions may be filed in a
single document if each is named in the title.” Local Rule 7-1(a). Defendants contend that a motion
to strike is not alternative to seeking additional time to respond to a motion to dismiss. In response,
Deb argues that he fully complied with the local rules because he identified both requests— motion
for extension of time and motion to strike— in the title of the Motion. The Court concludes that,
the Motion to Strike is not an alternative to the motion for enlargement of time and the motions
should have been filed separately. However, this issue is no longer of consequence because the
Court has determined that it will consider Defendants’ response to Deb’s Motion to Strike.

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C. Jones Declaration
Defendants contend that the Court should reconsider its Order and, rather than strike Jones’
declaration in its entirety, the Court should strike only references to Jones’ declaration from
Defendants’ argument for dismissal under Rule 12(b)(6). Defendants assert that the Court should,
however, consider Jones’ declaration when deciding whether to dismiss Deb’s Amended
Complaint pursuant to 12(b)(7), 12(b)(3), principles of forum non conveniens and international
comity. When ruling on a motion to dismiss, “a court may consider matters outside of the pleadings
to resolve factual questions pertaining to jurisdiction, process, or indispensable parties.” Deb v.
SIRVA, Inc., 832 F.3d 800, 809 (7th Cir. 2016) (citing English v. Cowell, 10 F.3d 434, 437 (7th Cir.
1993)). However, Federal Rule of Civil Procedure 12(d) provides that “[i]f, on a motion under Rule
12(b)(6)…, matters outside the pleadings are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d).
In response, Deb contends that the Court should deny Defendants’ motion to reconsider
because Defendants cite to and rely on Jones’ declaration only in connection with their Rule
12(b)(6) argument. Deb also argues that Defendants failed to explain how Jones’ declaration has
any bearing on the remaining grounds for dismissal.
The Court finds that references to Jones’ declaration are permitted to resolve factual
questions pertaining to jurisdiction, process, or indispensable parties pursuant to 12(b)(7), 12(b)(3),
principles of forum non conveniens and international comity. See Deb, 832 F.3d at 809. The
Court concludes, and the parties do not dispute, that any reference to Jones’ declaration regarding
Defendants’ 12(b)(6) argument is stricken. Accordingly, the Defendants’ Motion for
Reconsideration is granted and Deb’s Motion to Strike Jones’ declaration is granted in part and
denied in part.

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III.

CONCLUSION

For the above reasons, the Court GRANTS Defendants’ Motion to Reconsider (Filing No.
82.), and grants in part and denies in part Deb’s Motion to Strike Declaration of Abigail Jones.
(Filing No. 80.) Jones’ declaration is permitted to resolve factual questions regarding Defendants’
Motion to Dismiss pursuant to 12(b)(7), 12(b)(3), principles of forum non conveniens and
international comity. Jones declaration is stricken from consideration regarding Defendants’
Motion to Dismiss pursuant to Rule 12(b)(6).

SO ORDERED.

Date: 1/11/2017

Distribution:
Eric L. Zalud
BENESCH FRIEDLANDER COPLAN & ARONOFF LLP
[e-mail]
Stephanie Sackellares Penninger
BENESCH, FRIEDLANDER, COPLAN & ARONOFF, LLP
[e-mail]
David E. Wright
KROGER GARDIS & REGAS LLP
[e-mail]
Kevin Dale Koons
KROGER GARDIS & REGAS LLP
[e-mail]

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