Case 3:21-cv-00807-MAB Document 74 Filed 05/05/22 Page 1 of 7 Page ID #220
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ILLINOIS
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`VILLAGE OF SHILOH,
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`Plaintiff,
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`vs.
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`NETFLIX, INC., et al.
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`Defendants.
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`Case No. 3:21-CV-00807-MAB
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`PLAINTIFF VILLAGE OF SHILOH’S MEMORANDUM IN OPPOSITION TO DISH
`DEFENDANTS’ AMENDED MOTION TO RECONSIDER REMAND ORDER
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`Defendant Dish has always been aware that it is being sued by multiple Illinois
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`municipalities for failing to pay fees owed by video service providers pursuant to 220 ILCS
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`5/21/-801. Despite that knowledge, Dish – and the other defendants in this matter – never moved
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`to consolidate the two actions. Instead, they chose to litigate each case on its own. That was a
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`tactical decision they made and with which they must live. Dish is not entitled to a mulligan.1
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`A motion for reconsideration is not an opportunity to escape the consequences of prior
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`litigation decisions or to get a do-over. The Court did not misapprehend anything in ruling on the
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`motion to remand, there has been no intervening change in the law. Dish’s motion should be
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`denied. Furthermore, as all defendants have filed motions to dismiss in state court rather than
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`move for a stay, the renewed argument to maintain the removal has been waived.
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`I.
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`Dish ignores the standard for motions to reconsider.
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`Motions to reconsider are rarely granted. They are only appropriate where the court failed
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`to apprehend an issue, decided an issue not presented, or if there has been a material intervening
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`1 Dish concedes that a remand on the basis of comity abstention is discretionary. Doc. 73, p. 9.
`Certainly, the fact that only Dish of the four Defendants is seeking reconsideration of this
`Court’s remand order is a factor that militates against this Court’s recall of its remand letter.
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`Case 3:21-cv-00807-MAB Document 74 Filed 05/05/22 Page 2 of 7 Page ID #221
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`change in law. Dunmore v. Shicker, No. 3: 16-CV-171-MAB, 2020 U.S. Dist. LEXIS 87713, at
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`*2 (S.D. Ill. May 19, 2020):
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`Reconsideration of an interlocutory order is only appropriate when a court has
`misunderstood a party, made a decision outside the adversarial issues presented to
`the court by the parties, made an error not of reasoning but of apprehension, or
`where a significant change in the law or the facts has occurred since the submission
`of the issue to the court.
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`The only possible way to fit the pending motion into this framework is that the Court
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`failed to apprehend that Dish wanted to consolidate this case with the East St. Louis case. But the
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`Court clearly addressed this issue to the extent it was mentioned in Dish’s briefing. See Order
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`granting remand dated March 24, 2022 (Doc. 68) at 12-13. There was no misapprehension or
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`misunderstanding. And at any rate, because Dish never presented a motion to consolidate, that
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`“adversarial issue” was never “presented to the court by the parties.”
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`Dish’s motion reflects a misunderstanding of the purpose of a motion for reconsideration
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`as the majority of its motion (pp. 5-11) simply reargues against remand based on comity interests
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`or makes a legal argument in favor of consolidation (Point Heading II.C, “The factors favoring
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`consolidation outweigh the factors favoring remand.”).
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`Dish’s attempt to escape the consequences of its own litigation decisions should be
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`rejected and the motion should be denied.
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`II.
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`Because not all the defendants seek reconsideration, removal is impossible.
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`It is controlling Circuit and Supreme Court precedent that “each non-nominal defendant”
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`join in seeking removal from state to federal court. See Hummel v. Surgitek/Medical Eng'g
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`Corp., Case No. 91 C 3510, 1991 U.S. Dist. LEXIS 11453, at *1-2 (N.D. Ill. Aug. 16, 1991)
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`(citing cases); 28 U.S.C. § 1446(b)(2)(A). While it is true that all defendants originally sought
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`removal, and originally opposed remand, it is only Dish that seeks reconsideration. Because, as
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`Case 3:21-cv-00807-MAB Document 74 Filed 05/05/22 Page 3 of 7 Page ID #222
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`argued infra, each of the other defendants has abandoned efforts to maintain removal. Dish may
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`not unilaterally do so and the motion must be denied.
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`III. Dish has waived reconsideration by seeking a dispositive ruling from the state
`court.
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`With this case having been remanded to state court, Dish apparently regrets its earlier
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`litigation decisions and wants a do-over. Dish wants to pull this case back from the state court
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`and combine it with the East St. Louis action, which is currently in the midst of a pending motion
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`to dismiss.
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`But Dish – and the other defendants in the action – have all submitted to the jurisdiction
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`of the state court and have all moved to dismiss. Rather than move that court of general
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`jurisdiction for some stay of proceedings, each defendant – including Dish – elected to seek a
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`ruling from that court.2 Exhibit A (Dish Motion to Dismiss), Group Exhibit B (other
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`defendants’ motions to dismiss). By seeking a dispositive ruling from the state court, Dish has
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`waived any right to seek reconsideration. See Ellis v. Coventry Capital I LLC, No. 08 cv 3083,
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`2008 U.S. Dist. LEXIS 76450, at *10 (N.D. Ill. Sep. 24, 2008)(“A defendant may waive the right
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`to seek removal where the defendant takes action in state court that evinces an intent by the
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`defendant to have the state court decide the case on the merits, such as by filing a motion to
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`dismiss or asserting a counterclaim.”). And because the other defendants have also moved to
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`dismiss the state court action and waived the right to seek remand, there can be no unanimity as
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`required to maintain removal. 28 U.S.C. § 1446(b)(2)(A).
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`2 This Court specifically highlighted the option to ask the state court for a stay when it ordered
`remand: “Perhaps [defendants] will ask the state court judge to stay this case once it is
`remanded.” Order of March 24, 2022 [Doc. 68] at 14. No defendant acted on that option.
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`Case 3:21-cv-00807-MAB Document 74 Filed 05/05/22 Page 4 of 7 Page ID #223
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`IV. Dish has never – to this day – moved for consolidation and cannot do so by way
`of a motion to reconsider.
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`Whatever remains of this Court’s jurisdiction following remand, it does not extend to
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`entertaining new motions to consolidate.
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`Dish now says it “stands ready” to move to consolidate, and begs this Court to vacate its
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`remand so that (presumably) such a motion can be filed. Motion to Reconsider at 2. But Dish
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`waited until it lost the motion for remand to “stand up.” That is not how federal litigation works.
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`To restate the obvious, Dish never moved to consolidate. It cannot drop possibilities as to
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`how the case could be managed into a brief and hope the Court sua sponte decides to act upon
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`one of many possible case management decisions absent a motion. And as clear proof that the
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`Court did not “misapprehend” anything, the Court clearly engaged with the case management
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`suggestion casually dropped into Dish’s earlier briefing. See Order granting remand dated March
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`24, 2022 (Doc. 68) at 12-13. The Court’s prior analysis shows the importance of filing a written
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`motion when a party seeks an order from the Court.
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`To the extent this Court could have sua sponte consolidated the two cases, it did not. Nor
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`was it an abuse of discretion to fail to take sua sponte action on a hypothetical case management
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`suggestion dropped in a brief contesting a motion to remand. None of Dish’s cases cited for the
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`proposition that a “de facto request” suffices for relief are on point or support reconsideration.
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`See Amended Motion for Reconsideration (Doc. 73) at 4-5. Goka v. Bobbitt, 862 F. 2d 646, 648
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`(7th Cir. 1998) does indicate that the District Court used the phrase de facto motion to dismiss.
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`However, the District Court’s Memorandum and order makes clear that it ruled on quite definite
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`requests filed by the Defendants. It used that phrase to indicate its belief that, although the
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`subject document raised substantive reasons to oppose the Plaintiff’s motion for leave to amend
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`his complaint, it would treat that opposition as a motion to dismiss. Goka v. Bobbitt, 625 F.
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`Case 3:21-cv-00807-MAB Document 74 Filed 05/05/22 Page 5 of 7 Page ID #224
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`Supp. 319, 324 & n. 1. (N.D. Il. 1985). Thus Goka, is entirely inapposite. And in U.S. v. Jones,
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`369 F. 2d 217 (7th Cir. 1966), the opinion makes it evident that the movant made a verbal request
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`to continue a trial setting for one day because “he would have his evidence” then. Id. at 220.
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`Dish made no such clear request for relief, whether verbal or written. Finally, Midwest
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`Community v. Chicago Park, 98 F.R.D. 491 (N.D. Il. 1983) involved a spontaneous suggestion
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`by the District Court as to whether two lawsuits should be consolidated. The parties then briefed
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`the issue but there simply was disagreement among the parties as to the scope of consolidation
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`that should occur. Id. at 492, 500. It is apparent that Midwest Community involved a robust and
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`fully briefed suggestion of consolidation broached by the District Court; thus, that case provides
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`no support for the notion that a vague reference in a brief to the possibility of consolidation can
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`somehow be treated as a motion.
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`A litigant must take a position—it cannot ride the fence. By not moving to consolidate
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`but instead briefing the motion to remand and then filing a motion to dismiss in state court, Dish
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`made tactical decisions and now must live with the results.
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`V.
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`The case for remand remains compelling.
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`There is no compelling reason to disturb or revisit this Court’s remand order.
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`First, there can be no argument on reconsideration that factors favoring consolidation
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`under Fed. R. Civ. P. 42 can trump the Seventh Circuit’s ruling in City of Fishers, as applied by
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`this Court, using its discretion. To the extent Dish does argue this, it is simply rehashing
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`arguments already made and rejected, and the issue is not appropriately brought under a motion
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`to reconsider.
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`Second, there is no compelling reason to disturb this Court’s comity analysis. From a
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`practical view, in interpreting Illinois law, all federal courts from this Court to the Supreme
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`Court must be guided by how the Illinois Supreme Court would interpret Illinois law. The best
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`Case 3:21-cv-00807-MAB Document 74 Filed 05/05/22 Page 6 of 7 Page ID #225
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`way to do that is to remand the case – which turns on the interpretation of Illinois law – to
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`Illinois courts. See, e.g., Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144, 1156 (2017)
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`(“Given a constitutional challenge that turned on the interpretation of an ambiguous
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`state statute not yet definitively interpreted by the state courts, the Second Circuit faced a
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`problem. Any interpretation it gave §518 would not be authoritative since state courts, not
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`federal courts, have the final word on the interpretation of state statutes. But it had before it two
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`routes—abstention and certification—to a solution.”). Here, this Court lacks the power to certify
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`questions of law to the Illinois Supreme Court and is left with only one option—abstention. That
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`step will allow Illinois courts to give an interpretation of Illinois law that has not been
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`“definitively interpreted by the state courts.” Expressions Hair Design, 137 S. Ct. 1156.
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`Going forward, if the defendants in this suit seek to avoid duplicative litigation they can
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`move this Court to stay the East St. Louis case under the Colorado River doctrine so that Illinois
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`courts can interpret Illinois law.3 That is the most direct and sensible solution, as shown by
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`United States Supreme Court precedent. But somehow, Plaintiff does not believe Defendants will
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`take that action, which should make clear this motion is not about consolidation or preservation
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`of judicial resources.
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`Conclusion
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`Like so many other Hail Marys, Dish’s motion falls short of the end zone and should be
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`denied.
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`3 The Court has authority to sua sponte seek briefing on that issue (stay of federal proceedings
`under the Colorado River doctrine) from the parties in the East St. Louis case and to take Dish up
`on its argument that the Court has broad authority to decide how cases on its docket are to be
`managed or tried. See also Fed. R. Civ. P. 40, 42; Link v. Wabash R. Co., 370 U.S. 626, 630-32
`(1962) (describing court’s inherent authority to control its own docket); Chambers v. NASCO,
`Inc., 501 U.S. 32 (1991) (expounding on court’s inherent authority).
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`Case 3:21-cv-00807-MAB Document 74 Filed 05/05/22 Page 7 of 7 Page ID #226
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`/s/ Thomas H. Geoghegan
`By:
`One of Plaintiff’s Attorneys
`Thomas H. Geoghegan
`Michael P. Persoon
`Will Bloom
`Despres, Schwartz & Geoghegan, Ltd.
`77 West Washington Street, Suite 711
`Chicago, Illinois 60602
`(312) 372-2511
`tgeoghegan@dsgchicago.com
`mpersoon@dsgchicago.com
`wbloom@dsgchicago.com
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`By: /s/ Elkin L. Kistner
`One of Plaintiff’s Attorneys
`Elkin L. Kistner, MO Bar No. #35287
`KISTNER, HAMILTON, ELAM & MARTIN, LLC
`1406 North Broadway
`St. Louis, MO 63102
`Telephone: (314) 783-9798
` Facsimile: (314) 944-0950
` E-mail: elkinkis@law-fort.com
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`CERTIFICATE OF SERVICE
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`I hereby certify that on May 5, 2022, a true and correct copy of the foregoing was filed
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`electronically. Service of this filing will be made on all ECF-registered counsel by operation of
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`the Court’s electronic filing system.
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`/s/ Elkin L. Kistner
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