Lucken et al v. Heritage Bank National Association et al

Filing 119

OPINION and ORDER: Denying in its entirety 117 Motion to Set Aside 116 Order: See text of Order for further information. Signed by Judge Mark W Bennett on 03/01/18. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
THE JOHN ERNEST LUCKEN
REVOCABLE TRUST, and JOHN
LUCKEN and MARY LUCKEN,
Trustees,
No. C16-4005-MWB
Plaintiffs,
vs.
HERITAGE BANCSHARES GROUP,
INC., HERITAGE BANK NATIONAL
ASSOCIATION, THOMAS GEIGER
and GARY GEIGER, directors of
Heritage Bank, ROBERT MATHIASEN,
Chief Credit Officer of Heritage Bank,
and DOES 1-100,

OPINION AND ORDER
REGARDING DEFENDANTS’
MOTION FOR RERECONSIDERATION

Defendants.
___________________________
This case is before me on the defendants’ February 12, 2018, Motion For
Reconsideration Re: Opinion And Order Dated January 23, 2018. In their Motion, the
defendants ask me to reconsider my ruling on the plaintiffs’ September 18, 2017, Motion
For Reconsideration; hence, their Motion is a Motion For Re-Reconsideration. The
plaintiffs filed their Resistance on February 26, 2018.
In their Motion For Re-Reconsideration, the defendants seek reconsideration of
my conclusion, on reconsideration, that summary judgment for the defendants should be
set aside on the plaintiffs’ “bank tying claim” pursuant to § 1972(1)(C) in Count II as it
relates to the claimed “tie” between Heritage Bank’s promise, on January 19, 2012, to
provide floor plan financing to Dirks Motor conditioned upon the additional requirement
that Lucken execute the “Lucken line of credit” and other contemporaneous documents,

which Lucken believed pledged his CD as “backup collateral” for the promised floor
plan loan. I reached that conclusion based on my view that the plaintiffs had clearly
relied on two “tying arrangements” in their Resistance to the defendants’ Motion For
Summary Judgment, but there was no indication in the defendants’ original brief or their
reply brief in support of their Motion For Summary Judgment that they understood the
plaintiffs to be relying on two alleged “tying arrangements”; the plaintiffs reiterated—
unmistakably—in their Motion For Reconsideration that they were relying on two “tying
arrangements,” but the defendants still did not address the second alleged “tying
arrangement” in their Resistance to the Motion For Reconsideration; and, under these
circumstances, the defendants had never met their responsibility as the movants for
summary judgment, to “‘inform[] the district court of the basis for [their] motion,’
and . . . identify ‘those portions of [the record] . . . which [they] believe[] demonstrate
the absence of a genuine issue of material fact,’” but the plaintiffs had met their burden
to generate genuine issues of material fact on the second alleged “tying arrangement.”
Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43 (8th Cir. 2011) (en banc)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
In their Motion For Re-Reconsideration, the defendants contend that, in their
Summary Judgment Motion, they did address both “tying arrangements” alleged by the
plaintiffs, but because both related to paying off Ford Credit, they analyzed them
together. The defendants also argue that, in the plaintiffs’ Motion For Reconsideration,
the plaintiffs’ second alleged “tying arrangement” is different from the one on which the
plaintiffs previously relied; that no evidence supports that different second alleged “tying
arrangement”; and that the second alleged “tying arrangement,” even as reformulated, is
barred by the applicable statute of limitations. Thus, the defendants seek reinstatement
of summary judgment in their favor on the entirety of the plaintiffs’ “bank tying claim”
pursuant to § 1972(1)(C). In their Resistance, the plaintiffs point out that all of the
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arguments the defendants now offer could and should have been made, at the latest, in
the defendants’ Resistance to the plaintiffs’ Motion For Reconsideration; that the second
alleged “tying arrangement” they asserted in their Motion For Reconsideration is not
“new” or “different”; that they have generated genuine issues of material fact on their
second alleged “tying arrangement”; and that the claim based on that second alleged
“tying arrangement” is timely.
As both parties recognize, and I pointed out in my ruling on the plaintiffs’ Motion
For Reconsideration, “[a] motion for reconsideration is not a vehicle to identify facts or
legal arguments that could have been, but were not, raised at the time the relevant motion
was pending.” Julianello v. K-V Pharm. Co., 791 F.3d 915, 923 (8th Cir. 2015).
Notwithstanding that the plaintiffs plainly set out (and numbered) the two “tying
arrangements” on which they were relying in their Motion For Reconsideration, the
defendants never asserted in their Resistance that the second alleged “tying arrangement”
was “new” or “different” or “redefined” from the “tying arrangement” on which the
plaintiffs had previously relied; never challenged that second alleged “tying arrangement”
on the basis of lack of evidentiary dispute, as required to meet their responsibility at
summary judgment, see Torgerson, 643 F.3d at 1042-43; and did not argue that the
second alleged “tying arrangement” was untimely, except to suggest, in a footnote, that
the second alleged “tying arrangement” had been “concocted” to avoid the statute of
limitations. The defendants’ failure to do so at the proper time is fatal to their request
for relief in their Motion For Re-Reconsideration. Julianello, 791 F.3d at 923. Indeed,
it is difficult to imagine that, if the defendants truly believed that the plaintiffs had
redefined their second alleged “tying arrangement” in their Motion For Reconsideration,
or that the claim was “different” from the second alleged “tying arrangement” on which
the plaintiffs had previously relied, that the defendants would not have complained

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bitterly about that in their Resistance to the plaintiffs’ Motion For Reconsideration, rather
than simply ignoring it.
Moreover, as I concluded in my ruling on the plaintiffs’ Motion For
Reconsideration, the plaintiffs’ second alleged “tying arrangement” in their Motion For
Reconsideration is not inconsistent with the pleading of the § 1972(1)(C) claim in their
Amended Complaint or their arguments against summary judgment on that claim, and
they have pointed to sufficient evidence from which a rational trier of fact could find for
them on the part of their § 1972(1)(C) claim based on the second alleged “tying
arrangement.” Torgerson, 643 F.3d at 1043. I now add that the plaintiffs have also
pointed to sufficient evidence from which a rational trier of fact could conclude that the
last overt act of the defendants in imposing the second alleged “tying arrangement” was
within the statute of limitations period. See Kabealo v. Huntington National Bank, 17
F.3d 822, 828 (6th Cir. 1994) (stating, in a case relied on by both parties, here, that it is
“the last overt act of the defendant, not any act of the plaintiff, that triggers the statute
of limitations.”).
THEREFORE, the defendants’ February 12, 2018, Motion For Reconsideration
Re: Opinion And Order Dated January 23, 2018 (docket no. 117) is denied in its
entirety.
IT IS SO ORDERED.
DATED this 1st day of March, 2018.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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