ELDER CARE PROVIDERS OF INDIANA, INC. v. HOME INSTEAD, INC.

Filing 347

ORDER - Denying Motion for Reconsideration and Motion for Summary Judgment on Punitive Damages; We DENY Elder Care's Limited Motion for Reconsideration of our Order on Cross Motions for Summary Judgment Dkt. No. 339 and we DENY as moot Home Instead's Motion for Partial Summary Judgment Regarding Punitive Damages Dkt. No. 312 . Signed by Judge Sarah Evans Barker on 9/26/2017. *** SEE ORDER *** (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ELDER CARE PROVIDERS OF INDIANA,
INC.,
Plaintiff,

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)
)
)
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vs.
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HOME INSTEAD, INC.,
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Defendant.
______________________________________ )
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HOME INSTEAD, INC.,
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Counter Claimants,
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vs.
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ANTHONY SMITH,
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GEORGETTE SMITH,
PURPOSE HOME HEALTH, INC f/k/a Home )
)
Again Senior Care, Inc.,
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ELDER CARE PROVIDERS OF INDIANA,
)
INC.,
)
Counter Defendants.

No. 1:14-cv-01894-SEB-MJD

ORDER DENYING MOTION FOR RECONSIDERATION AND
MOTION FOR SUMMARY JUDGMENT ON PUNITIVE DAMAGES
This Order resolves two pending motions. Plaintiff Elder Care Providers of Indiana,
Inc. (“Elder Care”) filed a Limited Motion for Reconsideration of our Order on Cross
Motions for Summary Judgment [Dkt. No. 338 (“SJ Order”)]. [Dkt. No. 339 (“Motion for
Reconsideration”).] The Limited Motion for Reconsideration is directed towards our entry
of summary judgment in favor of Home Instead on Elder Care’s claim for discrimination
under the Indiana Deceptive Franchise Practices Act (“IDFPA”) which addressed only the

merits based issues and no damages claims. Home Instead, Inc. had also filed a Motion
for Partial Summary Judgment Regarding Punitive Damages [Dkt. No. 312], which we
have not previously addressed. For the following reasons, we DENY Elder Care’s Motion
for Reconsideration and DENY AS MOOT Home Instead’s Punitive Damages Motion for
Summary Judgment.
Background
The facts of this case are explicated in great detail in our Preliminary Injunction
Order [Dkt. No. 165] and our Order on Cross Motions for Summary Judgment [Dkt. No.
328]. We dispense with a full recitation of the facts here and include only the facts as
necessary below.
Discussion
A.

Motion for Reconsideration
Motions to reconsider a summary judgment ruling are brought under Federal Rule

of Civil Procedure 54(b), which permits revision of non-final orders. Galvan v. Norberg,
678 F.3d 581, 587 n.3 (7th Cir. 2012). “[M]otions to reconsider an order under Rule 54(b)
are judged by largely the same standards as motions to alter or amend a judgment under
Rule 59(e).” Woods v. Resnick, 725 F.Supp.2d 809, 827 (W.D. Wis. 2010). The Seventh
Circuit has summarized the role of motions to reconsider as follows:
A motion for reconsideration performs a valuable function where the Court
has patently misunderstood a party, or has made a decision outside the
adversarial issues presented to the Court by the parties, or has made an error
not of reasoning but of apprehension. A further basis for a motion to
reconsider would be a controlling or significant change in the law or facts
since the submission of the issue to the Court.

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Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990)
(citations omitted). In other words, “Motions to reconsider ‘are not replays of the main
event’” and “are not at the disposal of parties who want to ‘rehash’ old arguments ... and
such motions are not appropriate vehicles for introducing evidence that could have been
produced prior to the entry of judgment or for tendering new legal theories for the first
time.” Dominguez v. Lynch, 612 Fed.Appx. 388, 390 (7th Cir. 2015) (quoting Khan v.
Holder, 766 F.3d 689, 696 (7th Cir. 2014)); Wagner v. Nutrasweet Co., 873 F.Supp. 87,
101–02 (N.D. Ill. 1994), rev’d in part and aff’d in part on other grounds, 95 F.3d 527 (7th
Cir. 1996) (citations omitted). Motions to reconsider “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 Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). A motion to
reconsider “is not an appropriate forum for rehashing previously rejected arguments or
arguing matters that could have been heard during the pendency of the previous motion.”
Id. at 1270.
Home Instead as franchisor terminated the franchise agreement with Elder Care for
three stated reasons, roughly summarized as: operating a competitor business (Home
Again), diverting business to a competitor (Home Again), and adopting the confusing name
Home Again. [Dkt. No. 1-3.] In response, Elder Care filed an IDFPA claim against Home
Instead alleging that Home Instead had discriminated against Elder Care by terminating
Elder Care’s franchise agreement by wrongfully claiming that the Smiths’ medical home
health agency, Home Again, competed against Home Instead. According to the Smiths,
Home Instead never terminated the franchise agreements of other franchisees who operated
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businesses that provided services overlapping with those provided by Home Instead (e.g.,
transportation services and housekeeping services).
Home Instead moved for summary judgment on Elder Care’s IDFPA discrimination
claim. We granted that motion, concluding that Elder Care had failed to make a prima
facie case of discrimination when it failed to identify a similarly-situated franchisee who
both used a name confusingly similar to Home Instead and received more favorable
treatment. [Order at 54 (citing Canada Dry Corp. v. Nehi Bev. Co., 723 F.2d 512, 521 (7th
Cir. 1983)) (“Thus, proof of ‘discrimination’ requires a showing of arbitrary disparate
treatment among similarly situated individuals or entities.”).] One of the three stated
reasons that Home Instead terminated Elder Care’s franchise agreement was its use of the
confusing name “Home Again” (the “naming issue”). [See Dkt. No. 1-3 (Notice of
Termination).]
In our Order, we held that it was improper for Home Instead to use the “name issue”
as a basis to terminate the Franchise Agreement without notice and an opportunity to cure,
given its delay of more than 20 months before terminating the Franchise Agreement. From
that ruling, Elder Care extrapolates:
From a discrimination standpoint, the court’s summary judgment ruling on
the contract claim confirms the Smith Parties’ position that the Smiths’ use
of the “Home Again Senior Care” name was not a material violation of the
Franchise Agreement that allowed Home Instead to summarily terminate
their franchise, but instead was only used as a contrived distinction so that
Home Instead could terminate the Agreement without notice and an
opportunity to cure.
[Dkt. No. 339 at ¶ 3 (emphasis added).] Elder Care’s conclusion, however, goes well
beyond the scope of our Order.
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Elder Care’s argument that Home Instead “should not be allowed to treat Elder Care
dissimilarly than other franchisees solely on [the basis of the name issue]” misconstrues
our Order. Our conclusion that it was improper for Home Instead to terminate the
Franchise Agreement without notice or opportunity to cure based on the naming issue says
nothing of whether Home Instead could have terminated the Franchise Agreement based
on the naming issue or could have terminated the Franchise Agreement without notice and
opportunity to cure had it not allowed 20 months to pass before terminating. As stated in
our Order, a comparator for purposes of an IDFPA claim must, in some way, involve a
franchisee that used a name similar to “Home Instead” and was treated dissimilarly from
Elder Care. Elder Care failed to identify any such franchisee and thus, its claim of
discrimination under the IDFPA failed as a matter of law. We therefore granted summary
judgment in favor of Home Instead. We see no reason to retreat from or modify this
conclusion. 1
In its Motion for Reconsideration, Elder Care does not present any new facts that
were not available at the time of the summary judgment briefing nor any new controlling
law 2 announced since our Order that would justify reconsideration of our decision. Nor

1

In their briefing, the parties extensively discuss whether Elder Care puts the “pretext cart
in front of the horse” because it contends that Home Instead’s justification for terminating the
Franchise Agreement was a pretext for the allegedly true reason for termination (the Smiths’
operation of a home health care agency). We see no reason to address this argument because
controlling authority requires Elder Care to identify a similarly situated franchisee that was treated
more advantageously than Elder Care. It would be inappropriate for us to engage in a pretext
analysis in the absence of a key element of Elder Care’s IDFPA claim, to wit, the identification of
a similarly situated franchisee receiving favorable treatment as compared to Elder Care.
2

Following the Seventh Circuit’s decision in Andy Mohr Truck Ctr., Inc. v. Volvo Trucks
N.A., 2017 WL 3695355 (Aug. 28, 2017), Elder Care submitted the decision for our consideration.

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has Elder Care shown that we patently misunderstood its arguments, made a decision
outside the adversarial issues presented by the parties, or that we failed to apprehend their
legal authorities. Accordingly, we DENY Elder Care’s Motion for Reconsideration.
B.

Motion for Partial Summary Judgment as to Punitive Damages
In response to Elder Care’s Notice of its intent to seek punitive damages, Home

Instead filed a Motion for Partial Summary Judgment seeking a ruling that Elder Care is
not entitled to recover an award of punitive damages. [Dkt. No. 312.] Elder Care’s request
for punitive damages relates only to its IDFPA claims. [See id. at 2 (“This Motion is limited
solely to the issue of whether Elder Care is legally entitled to seek punitive damages in
connection with claims brought pursuant to the [IDFPA].”; Dkt. No. 315 (Elder Care
Response) at 16 (“At trial, Elder Care intends to seek punitive damages on its claims for
unlawful conversion, discrimination and bad faith termination under the IDFPA.”).] Home
Instead’s Summary Judgment Motion is now moot primarily because we granted summary
judgment in Home Instead’s favor on Elder Care’s IDFPA claims [SJ Order at 55]. Further,
as explained above, we have denied Elder Care’s request that we reconsider our decision

[Dkt. No. 342.] The Andy Mohr decision does not change the law with respect to the IDFPA or
the requirement that to make a prima facie claim for discrimination under the IDFPA a plaintiff
must identify a similarly situated franchisee. Elder Care points to the Court’s statement that
“[whether comparators are similarly situated is] usually is a question of fact for the jury,” [Dkt.
No. 342 at 2], but that sentence goes on to say “assuming that the plaintiff has produced enough
evidence to reach trial and survive judgment as a matter of law.” 2017 WL 3695355 at *4. We
have found that Elder Care did not produce enough evidence of a similarly situated comparator, to
wit, it did not identify any franchisee who used a name substantially similar to “Home Instead.”
Ours is not a case where the jury must weigh the qualities of the identified comparators. Here, the
unauthorized use of the name “Home Instead” was a stated reason for termination. As we have
said, Elder Care must provide a comparator whose franchise agreement was terminated due to the
use of a name substantially similar to Home Again. It did not. The Andy Mohr decision does not
change this result.

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on its IDFPA claim. Having granted summary judgment in favor of Home Instead as to
Elder Care’s IDFPA claim, Home Instead’s Punitive Damages Motion for Summary
Judgment is now moot and is therefore DENIED.
Conclusion
For the foregoing reasons, we DENY Elder Care’s Limited Motion for
Reconsideration of our Order on Cross Motions for Summary Judgment [Dkt. No. 339]
and we DENY as moot Home Instead’s Motion for Partial Summary Judgment Regarding
Punitive Damages [Dkt. No. 312].

9/26/2017
Dated: _____________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution: All CM/ECF counsel

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