United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge, United States District Court
Oscar Cowen and the Starke County Sheriff’s Department
ask the court to reconsider this court’s April 2016
order denying in part and granting in part their summary
judgment motion [Doc. No. 72]. They request that the court
reconsider that order with respect to plaintiff Jeremiah
Patrick’s FMLA claim (Count IV) and enter summary
judgment on behalf of the defendants on that claim. The
court’s April 2016 order includes a presentation of the
relevant facts in this case, which needn’t be repeated
here. [Doc. No. 67 at 2-6]. For the reasons that follow, the
court denies the motion to reconsider.
Rule of Civil Procedure 54(b) provides that a court may alter
or amend an interlocutory order any time before entry of
final judgment. See Moses H. Cone Mem. Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 12 (1983) (“[E]very
order short of a final decree is subject to reopening at the
discretion of the district judge.”). Unlike a motion to
reconsider a final judgment, which must meet the requirements
of Federal Rules of Civil Procedure 59 or 60, “a motion
to reconsider an interlocutory order may be entertained and
granted as justice requires.” Akzo Coatings, Inc.
v. Aigner Corp., 909 F.Supp. 1154, 1160 (N.D. Ind.
of an interlocutory order may be appropriate when the facts
or law on which the decision was based change significantly
after issuance of the order, or when “the [c]ourt has
patently misunderstood a party, or has made a decision
outside the adversarial issues presented to the [c]ourt by
the parties, or has made an error not of reasoning but of
apprehension.” Bank of Waunakee v. Rochester Cheese
Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990).
“These grounds represent extraordinary circumstances,
and the granting of a motion to reconsider is to be granted
only in such extraordinary circumstances . . . Indeed, the
court's orders are not mere first drafts, subject to
revision and reconsideration at a litigant's
pleasure.” United States Securities and Exch.
Comm'n v. National Presto Indus., Inc., No.
02–C–5027, 2004 WL 1093390, at *2 (N.D. Ill. Apr.
28, 2004) (internal quotations 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
party seeking reconsideration can't introduce new
evidence or legal theories that could have been presented
earlier or simply rehash previously rejected arguments.
defendants present three arguments in their motion to
reconsider: (1) Mr. Patrick’s FMLA claim was
significantly reconfigured during a hearing on the
defendants’ summary judgment motion, (2) any
inadequacies with the notice provided by the defendants
weren’t the cause of Mr. Patrick’s failure to
return to work when his FMLA leave expired, and (3) there is
no evidence to support Mr. Patrick’s FMLA retaliation
defendants first argue that “the issues as understood
between the parties with respect to [Mr. Patrick’s]
FMLA claims were dramatically altered at the [summary
judgment hearing] . . . result[ing] in an [o]rder which
adjudicated these claims rather than the claims briefed by
the parties and evaluated through the discovery
process.” The defendants contend that Mr.
Patrick’s FMLA claim in his second amended complaint
was based “entirely on the premise that [he] was
terminated prior to the conclusion of his FMLA leave,”
but at the hearing the court elicited new FMLA retaliation
and notice claims.
Patrick raised these claims before the hearing in his second
amended complaint and his briefing in response to the
defendants’ summary judgment motion. Mr.
Patrick’s FMLA retaliation claim can be found in
paragraph 34 of his second amended complaint, where he
describes his termination “as retaliatory in
nature” as part of his FMLA claim. [Doc. No. 42 at
¶ 34]. Mr. Patrick didn’t address this claim in
his response to the defendants’ summary judgment
motion, but, as the court noted in its April 2016 order, he
was under no obligation to do so because the
defendants’ didn’t move for summary judgment on
that claim. [Doc. No. 67 at 16].
Patrick presented his deficient notice theory in paragraph
twelve of his second amended complaint. [Doc. No. 42 ¶
12]. He also presented his theory that the defendants’
allegedly deficient notice constituted interference,
restraint, or denial of his FMLA rights in his brief
responding to the defendants’ summary judgment motion.
[Doc. No. 52 at 6–10]. Because the issues of
retaliation and notice were properly before the court before
the hearing, reconsideration of those issues isn’t
the defendants argue that the court should reconsider its
ruling on Mr. Patrick’s deficient notice theory for his
FMLA interference claim because “it was not previously
identified as a separate claim until the March 2nd
hearing.” As noted previously, Mr. Patrick didn’t
wait until the hearing to raise his notice theory for his
FMLA interference claim; he raised it in his response brief
and raised the factual basis for it in his second amended
argument that Mr. Patrick raised a new claim not pleaded in
his second amended complaint is unavailing. “[It] is
factual allegations, not legal theories, that must be pleaded
in a complaint.” Whitaker v. Milwaukee Cty.,
Wisconsin, 772 F.3d 802, 808 (7th Cir. 2014). New legal
theories can be articulated in response to a summary judgment
motion without seeking leave to amend the complaint.
defendants next contend that Mr. Patrick’s notice
theory fails because any notice deficiencies weren’t
the cause of Mr. Patrick’s failure to return to work;
they claim Mr. Patrick’s health condition, as
determined by his doctor, wouldn’t have allowed him to
return to work. But the court can’t consider this new
legal argument that could have been argued earlier because it
goes beyond the limited purpose of a motion to reconsider.
Caisse Nationale de Credit Agricole v. CBI Indus.,
Inc., 90 F.3d 1264, 1269 (7th Cir. 1996).
the defendants argue that this court should reconsider its
April 2016 order because there is no evidence to support Mr.
Patrick’s FMLA retaliation claim. In support, the
defendants cite this court’s order, which noted that
the evidence in the record wouldn’t support a finding
of retaliation. [Doc. No. 67 at 16]. But the defendants
don’t claim that they moved for summary judgment on
this claim, and as already noted, “Mr. Patrick
[was]n’t required to come forth with evidence on a
claim as to which summary judgment wasn’t
defendants’ motion to reconsider included an attached
Second Motion for Summary Judgment. [Doc No. 73-1]. This
summary judgment motion was filed without leave of the court
after the January 15, 2016 dispositive motion deadline. The
defendants noted in their reply brief that the court
shouldn’t consider this Second Motion for Summary
Judgment unless it granted the motion to reconsider.
on the foregoing, the court DENIES the defendants’
motion to reconsider [Doc. No. 72] and DECLINES to consider