Cincinnati Life Insurance Comp v. Marjorie Beyrer , 722 F.3d 939 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2365
C INCINNATI L IFE INSURANCE C OMPANY,
Plaintiff,
v.
M ARJORIE B EYRER, individually and as
Executrix of the Estate of Kevin Beyrer, and
E STATE OF K EVIN B EYRER,
Defendants-Cross-Plaintiffs-
Third Party Plaintiffs-Appellants,
v.
S TANTON W. G ROTENHUIS and C ASEY S TATE B ANK,
Defendants-
Cross-Defendants-Appellees,
and
M ARK S AVOREE,
Third Party Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 10-cv-00205—Larry J. McKinney, Judge.
A RGUED F EBRUARY 14, 2013—D ECIDED JULY 8, 2013
2 No. 12-2365
Before K ANNE and W ILLIAMS, Circuit Judges, and
Z AGEL, District Judge.Œ
K ANNE, Circuit Judge. In 2006, Kevin Beyrer (“Kevin”)
and his wife Marjorie Beyrer (“Marjorie”) moved to
Terre Haute, Indiana, to manage several car dealerships
owned by Mark Savoree. The next year, Savoree pro-
posed selling the dealerships to the Beyrers through a
series of stock purchases to be financed by a $3.5 million
loan from Casey State Bank (“CSB”). The Beyrers ac-
cepted and began the process of acquiring the dealer-
ships. Soon after negotiating the loan with CSB, Kevin
took out a life insurance policy with Cincinnati Life
Insurance Co. that named Marjorie as the beneficiary.
Two months later, in July 2007, Kevin assigned that life
insurance policy to CSB.
The dealership purchase began to fall apart almost
immediately, however. Eventually the Beyrers declared
bankruptcy, and multiple rounds of litigation between
each of the aforementioned parties ensued. During all
of this, Kevin was diagnosed with terminal cancer.
He passed away in June 2010, which set the stage for an
additional fight over the insurance policy proceeds.
Cincinnati Life deposited the proceeds, some $3 million,
with the Clerk of the Superior Court of Vigo County,
Indiana, and sought judicial determination of the
rightful owner. This appeal represents a culmination of
that quest, including various cross- and third party
claims that have been filed along the way.
Œ
The Honorable James B. Zagel of the United States District
Court for the Northern District of Illinois, sitting by designation.
No. 12-2365 3
I. B ACKGROUND
Presented with a business opportunity for which he
was apparently ill-prepared, Kevin Beyrer decided to
take a chance. Having operated car dealerships for
others, Kevin accepted Mark Savoree’s February 2007
offer to sell several dealerships, primarily Ford, that
Savoree owned in the Terre Haute area. Kevin had, in
fact, been managing these very dealerships for the
better part of the previous year. Kevin and Marjorie did
not have the money on-hand to meet the $5 million pur-
chase price for the dealerships and related assets, so
they arranged to finance the purchase through a series
of loans from Casey State Bank. The loans, totaling over
$3.5 million, were made to Ronin Automotive, Inc., a
company controlled by the Beyrers. The Beyrers closed
on the purchase and the loans in early March 2007.
Soon thereafter—on March 8, 2007—Kevin Beyrer
applied for a life insurance policy with Cincinnati Life
Insurance Company. Cincinnati Life approved Kevin’s
application on April 30, and, by May 8, he had purchased
the policy and named his wife the primary beneficiary.
Later that summer, however, Kevin executed an assign-
ment of the policy to CSB. The assignment stated that
it was made “for [v]alue [r]eceived.” (R. 58-1.) Among
the rights not assigned was the right “to receive . . . any
disability income.” (Id.) Cincinnati Life recorded the
assignment in its corporate records on August 4, 2007.
Although each party paints the picture slightly dif-
ferently, it is apparent that the sale of the dealerships was
troubled from the beginning. For instance, because the
4 No. 12-2365
dealerships were part of the Ford network, Ford had to
approve the Beyrers and the franchise transfer. Though
sought, this approval was never obtained. Further, despite
the loans having been signed in March, it seems that
the terms—particularly who would or should guarantee
the loans—continued to be disputed throughout 2007.
Eventually, CSB restructured the original loans. These
restructured loans, made in January 2008, were in the
name of the Beyrers individually and in companies
they controlled. Very shortly after the restructure, how-
ever, the loans went into default. On March 3, 2008, CSB
called in the loans and began seizing money in the
Beyrers’ personal and corporate accounts. On March 10,
2008, CSB obtained judgments on the restructured loans
against the Beyrers and entities they controlled. On
March 26, CSB assigned its interest in these judgments
and the life insurance policy to Stan Grotenhuis (whom
Marjorie characterizes as the “Founder and . . . owner”
of CSB (Appellant’s Br. at 13)). In the midst of what
was already a difficult time period, Kevin Beyrer was
diagnosed with terminal cancer on May 25, 2008. On
September 11, 2008, the Beyrers filed for Chapter 7 bank-
ruptcy. They were discharged on December 24, 2008.
During most of 2008, there were ongoing court pro-
ceedings involving these same parties (CSB, Savoree, the
dealerships, the Beyrers, and the Beyrers’ companies) in
Clark County, Illinois, based on the March 10 judgment
(Circuit Court of Clark County, Illinois, Case No. 08-L-04).
Although the Beyrers were dismissed from the litiga-
tion by virtue of their bankruptcy filing in Septem-
No. 12-2365 5
ber 2008, the state court continued to sort out the rami-
fications of the failed dealership sale. This process in-
cluded liquidating assets of the dealerships and deposing
various people in an attempt to parse out blame. There
also appears to have been a separate, though related,
fraudulent transfer case brought by CSB against Savoree
in Illinois state court. (R. 154 at 1-2) (referencing Circuit
Court of Clark County, Illinois, Case No. 2010-CH-17).
On May 14, 2010, Kevin Beyrer applied for benefits
under the Cincinnati Life insurance policy. Although
Marjorie described these in an affidavit as “disability
benefits,” (R. 72 at 2), they are more aptly described
as an advance on the standard proceeds of the policy.
The “Accelerated Benefit Rider” allowed an insured
to receive “part of the policy’s death benefit” if a doctor
diagnosed him with a terminal illness that would result
in death within the next twenty-four months. (Id. at 5.)
While this money is likely intended to help cover end-of-
life healthcare costs, it is not separate from the overall pay-
out of the policy. Cincinnati Life refused to release
any part of the proceeds to Kevin because neither CSB
nor Grotenhuis, who now owned the assignment, would
consent.
Kevin Beyrer died on June 17, 2010, triggering the
life insurance policy’s death benefit and a dispute
between the parties over its true owner. Cincinnati
Life filed a Complaint for Interpleader and Declaratory
Judgment in the Superior Court of Vigo County, Indiana,
to determine the proper owner of the funds. On an order
of that court, Cincinnati Life deposited the policy pro-
ceeds with the Clerk of Court.
6 No. 12-2365
Grotenhuis answered the complaint, but Marjorie
removed the case to the U.S. District Court for the
Southern District of Indiana. Once there, she filed her
“Answer and Cross Claim and Third Party Claim”
on August 5, 2010. (R. 6.) This filing attempted to state
Marjorie’s claim for the policy proceeds, as well as
allege various causes of action against CSB, Grotenhuis,
and Savoree. For the next year, the defendants re-
peatedly pointed out the flaws in Marjorie’s filing, she
repeatedly requested leave of the court to amend it, and
the district court granted those requests.
Eventually, in March 2011, Grotenhuis filed a motion
for summary judgment with respect to the policy pro-
ceeds. (R. 54.) Marjorie filed a cross-motion for sum-
mary judgment the next month. (R. 79.) On September 22,
2011, the court granted summary judgment in favor of
Grotenhuis on the limited issue of entitlement to the
policy proceeds (“Proceeds Order”). (R. 127.) Immediately
after the court entered the Proceeds Order, Marjorie
moved to modify the order to award her $250,000, which
she claimed was due her under the “Accelerated Benefit
Rider.” (R. 129.) The next month, Marjorie filed a motion
to reconsider the judgment in its entirety based on
what she claimed was newly discovered evidence.
(R. 149.) The district court rejected both of these motions
on February 8, 2012. (R. 254.)
The week after entering the Proceeds Order, the
district court granted Marjorie’s request to amend her
complaint for the third time. (R. 132.) In so doing, it
admonished her that “no further amendments will be
No. 12-2365 7
permitted.” (Id.) Marjorie’s “Third Amended Answer,
Cross Claims and Third Party Claims” alleged seven
separate claims for relief against CSB, Grotenhuis, and
Savoree. (R. 100.) After briefing, the district court dis-
missed Marjorie’s first, second, third, and seventh
claims with prejudice on February 16, 2012, for failing
to meet pleading standards. (R. 255.) CSB and Grotenhuis
moved for summary judgment on the remaining claims;
Marjorie did not respond to that motion. The district
court entered summary judgment for CSB and Grotenhuis
on the remaining claims on May 7, 2012. (R. 271.)
II. A NALYSIS
Marjorie Beyrer1 has brought this appeal challenging
each of the decisions that the district court decided
against her. By way of review, those decisions are: (1) the
grant of summary judgment on the proceeds issue;
(2) the rejection of the motions to modify and reconsider;
(3) the dismissal of claims one, two, three, and seven; and
(4) the entry of summary judgment on claims four, five,
and six. Because of the rather complicated procedural
history of this case and the large number of issues to be
addressed, we will structure our review as follows: first,
we will consider the dismissals of the Beyrers’ cross-claims
1
Marjorie Beyrer brings this appeal in a variety of capacities—
individually, on behalf of her late husband’s estate, and as the
executrix of that estate. Because she is the only person
bringing the appeal, we will keep things as simple as this
case permits and refer to her as “appellant.”
8 No. 12-2365
and third party claims for failing to meet pleading stan-
dards; second, we will review the district court’s grant of
summary judgment on claims four through six; third, we
will address the district court’s grant of summary judg-
ment on the life insurance proceeds distribution; and
finally, we will review the court’s denial of Marjorie’s
motions for modification and reconsideration. Finding
no merit in any of the issues appealed, we affirm the
district court’s judgments.
A. Dismissal of Cross-Claims and Third Party Claims One,
Two, Three, and Seven
The district court dismissed appellant’s first, second,
third, and seventh claims for failure to comply with
federal pleading standards. (R. 255.) Specifically, the
district court held that the first and second claims
violated Fed. R. Civ. P. 8 and 10(b), and that the third
and seventh claims, being putatively fraud-based, vio-
lated Fed. R. Civ. P. 9(b). We agree with the district court
that appellant’s complaint did not meet the basic
pleading standards envisioned by the Federal Rules.
We review the district court’s dismissal de novo.
Alexander v. McKinney, 692 F.3d 553, 555 (7th Cir. 2012).
When “[e]valuating the sufficiency of the complaint,
we construe it in the light most favorable to the
nonmoving party, accept well-[pled] facts as true, and
draw all inferences in her favor.” Reynolds v. CB Sports
Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). “Although
for the purposes of a motion to dismiss we must take
all of the factual allegations in the complaint as true, we
No. 12-2365 9
are not bound to accept as true a legal conclusion
couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks omitted). The
“complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’ ” Id. (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). We address each of appellant’s
claims below.
1. Claims one and two
The district court dismissed appellant’s first and second
claims for failure to comply with Fed. R. Civ. P. 8 and 10.
Rule 8 requires “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). Rule 10(b) provides that claims should
be set out “in numbered paragraphs, each limited as
far as practicable to a single set of circumstances” and
that “each claim founded on a separate transaction
or occurrence . . . must be stated in a separate count or
defense.” Fed. R. Civ. P. 10(b). The district court
observed that, even after being given multiple oppor-
tunities to revise her complaint, “it is difficult to see
how [appellant’s first two claims] comply with Rule 10(b),
either in technicality or in spirit.” (R. 255 at 7.) We agree.
“The primary purpose of [Fed. R. Civ. P. 8 and 10(b)]
is to give defendants fair notice of the claims against
them and the grounds supporting the claims.” Stanard
v. Nygren, 658 F.3d 792, 797 (7th Cir. 2011). “[W]here
the lack of organization and basic coherence renders a
complaint too confusing to determine the facts that con-
10 No. 12-2365
stitute the alleged wrongful conduct, dismissal is an
appropriate remedy.” Id. at 798. If neither the adverse
party nor the court can make out the essence of the
claims “dismissal of a complaint on the ground that it is
unintelligible is unexceptionable.” United States ex rel.
Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th
Cir. 2003). That being said, “[a] district court is not autho-
rized to dismiss a complaint merely because it con-
tains repetitious and irrelevant matter.” Id. (internal
quotation marks omitted). Rather, we have found com-
plaints wanting when they present a “vague, confusing,
and conclusory articulation of the factual and legal
basis for the claim and [take] a general ‘kitchen sink’
approach to pleading the case.” Stanard, 658 F.3d at 798.
Such complaints frustrate Rule 8’s objective: “fram[ing]
the issues and provid[ing] the basis for informed
pretrial proceedings.” Id. at 797 (internal brackets omit-
ted). “[J]udges and adverse parties need not try to fish
a gold coin from a bucket of mud,” Garst, 328 F.3d at 378;
dismissal is the appropriate remedy for district courts
presented with “a bucket of mud.”
The first hints that the claims here do not comply
with federal pleading standards come from their titles.
Claim one is labeled: “Breach of Contract, Breach of
Fiduciary Duty, Fraud (Actual and Contructive), Negli-
gence, Promissory Estoppel.” (R. 100 at 8.) Claim two
is titled: “Negligence, Breach of Contract, Breach of
Fiduciary Duties, Actual and Constructive Fraud, Promis-
sory Estoppel (Against Mr. Savoree), Fraud, Breach of
Contract, Conversion (Against CSB).” (R. 100 at 12.) As
the district court noted, the first claim “assert[ed] at
No. 12-2365 11
least five separate causes of action,” (R. 255 at 7), and the
second claim is no better; these are hardly the “separate
count[s]” the Federal Rules envision. Fed. R. Civ. P. 10(b).
And the confusion continues throughout the substance
of the claims, which are laid out in over 88 numbered
paragraphs, each of which can stretch for over a third
of a page. “The [first claim’s] alleged causes of action
are related only insofar as [appellant] allege[s] that
Mr. Savoree undertook the actions in question.” (R. 255
at 7.) The second claim lacks even that modest virtue;
it purports to assert a variety of causes of action against
both Savoree and CSB. Appellant made no attempt
to connect specific facts or events with the various
causes of action she asserted.
Appellant’s complaint strikes us as exactly the type
of “kitchen sink approach to pleading” that we have
previously found to violate the Federal Rules. Stanard,
658 F.3d at 798 (internal quotation marks omitted). At
times, appellant’s convoluted language even renders it
unclear precisely what fact she has attempted to al-
lege. For instance: “Mr. Beyrers [sic] and/or Mrs. Beyrer
never received a copy of this letter and Mr. Savoree and/or
CSB did not disclose it to Mr. and/or Mrs. Beyrer in a
timely fashion.” (R. 100 at ¶ 88.) 2 To this can be added
myriad other syntactical and grammatical errors (e.g., id.2
To understand the difficulty of adequately responding to
such a complaint, it is worth noting that in this one sentence
alone there are 27 different possible permutations of the
allegation (there are three variables in the sentence, each with
three possible values). This was not appellant’s most complex
sentence.
12 No. 12-2365
at ¶ 46) (“Mr. Savoree and were in CSB, through its
officers and board members including Mr. Wolfe and
Lena Grotenhuis, negotiations between themselves to
materially change the March 2007 loan agreement
and reduce Mr. Savoree’s guarantee.”).
Given this morass, we do not think that the first two
claims “frame[d] the issues and provide[d] the basis
for informed pretrial proceedings.” Stanard, 658 F.3d at
797 (internal brackets omitted). As can be adduced
from the title of the “Third Amended Answer and Cross
Claim and Third Party Claim,” the district court gave
appellant multiple opportunities to bring her pleadings
up to federal standards. (R. 132.) We agree with the
district court that appellant was unsuccessful at accom-
plishing this task. Dismissal of claims one and two
was appropriate.
2. Claims three and seven
Claims three and seven were both dismissed for failing
to meet Fed. R. Civ. P. 9(b)’s heightened pleading standard
for fraud-based claims. We address them in order below.
a. Claim three
Appellant’s third claim was “Conspiracy (Against
Mr. Savoree and CSB and Mr. Grotenhuis).” (R. 100 at 24.)
As the district court pointed out, however, appellant did
“not specify the underlying illegal activity forming the
object of the conspiracy.” (R. 255 at 9.) The court read
No. 12-2365 13
the complaint to “suggest a conspiracy to commit fraud.”
(R. 255 at 9-11.) Fraud-based claims, however, face a
heightened pleading standard. See Fed. R. Civ. P. 9(b).
On that basis, the court found that appellant had failed
to meet the heightened standard, and dismissed the
claim. We agree with the district court’s decision.
As an initial matter, appellant does not challenge, and
indeed appears to confirm, the district court’s under-
standing that her third claim was based in fraud. (Appel-
lant’s Br. at 63-65.) We will therefore presume that the
district court’s interpretation was correct: the con-
spiracy alleged was in fact a conspiracy to commit
fraud, and the third claim should be held to the
heightened pleading standard in Fed. R. Civ. P. 9(b).
Fed. R. Civ. P. 9(b) requires a party alleging fraud to
“state with particularity the circumstances constituting
fraud.” We have read this rule to require “describing
the ‘who, what, when, where, and how’ of the fraud.”
AnchorBank, FSB v. Hofer, 649 F.3d 610, 615 (7th Cir. 2011).
We have noted that the purpose of this particularity
requirement is “to discourage a ‘sue first, ask questions
later’ philosophy.” Pirelli Armstrong Tire Corp. Retiree
Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 441 (7th
Cir. 2011). “Heightened pleading in the fraud context
is required in part because of the potential stigmatic
injury that comes with alleging fraud and the con-
comitant desire to ensure that such fraught allegations
are not lightly leveled.” Id. at 442. We have also
cautioned, however, that “the exact level of particularity
that is required will necessarily differ based on the
facts of the case.” Hofer, 649 F.3d at 615.
14 No. 12-2365
Emblematic of our desire to balance particularity
with situation-specific flexibility is our treatment of
fraud claims pled on “information and belief.” This
phrase is used by plaintiffs who have a good-faith belief
in the allegations they make, but nevertheless make
those allegations based on secondhand information.
Pirelli, 631 F.3d at 442 (citing Black’s Law Dictionary 783
(7th ed. 1999)). We frown on making allegations “on
information and belief” in the fraud context and
generally find that such claims do not meet Rule 9(b)’s
particularity requirement. Id. at 442-43; Bankers Trust Co.
v. Old Republic Ins. Co., 959 F.2d 677, 683-84 (7th Cir. 1992)
(“The allegations of fraud that it was required to make,
however, are made in its complaint on ‘information and
belief,’ a clearly improper locution under the current
federal rules, which impose . . . a duty of reasonable
precomplaint inquiry not satisfied by rumor or hunch.”).
“[T]he practice is permissible, [however,] so long as
(1) the facts constituting the fraud are not accessible
to the plaintiff and (2) the plaintiff provides the
grounds for his suspicions.” Pirelli, 631 F.3d at 443(internal quotation marks omitted). Therefore, while we
require a plaintiff claiming fraud to fill in a fairly
specific picture of the allegations in her complaint, we
“remain sensitive to information asymmetries that
may prevent a plaintiff from offering more detail.” Id.And indeed, appellant argues that she is the victim
of just such an information asymmetry—that she did
not know, and could not have known, the information
that the district court required when it dismissed the
claim. The appellant claims she was waiting for dis-
No. 12-2365 15
covery to access information in the hands of the appel-
lees. As such, she couched her claim in “information
and belief” and made broad generalizations rather than
specific statements.
Undoubtedly, had the appellant had access to more
information, she could have injected more particulars
into her complaint. But that does not suffice to explain
the myriad shortcomings that infected the claim as it
stands. Even with limited information, we expect plain-
tiffs to attempt to describe the “who, what, when, where,
and how” of the fraud, so that opposing parties
can respond effectively, and the trial judge can set an
appropriate course for the litigation process. This was
all but impossible with the third claim as it stood.
There were few specifics offered, even when the infor-
mation should have been available (indeed, perhaps
necessarily available, given the allegations) to the appel-
lant.
To begin, because the “Conspiracy” claim appears to
refer to conspiracy to commit a fraud described in the
first two claims, all of the errors in the first two claims
(described above) also infect the third claim. The first
two claims are a jumble of allegations against multiple
parties, which makes “who” committed the fraud un-
clear. The “when” is no clearer. As the district court
noted, appellant failed “to specify times and dates
any more clearly than ‘from July 2007 through the Janu-
ary 28, 2008 closing on the Second Loan’ or ‘prior to
closing the Second Loan and/or at or around the time of
closing the Second Loan’ or ‘[f]rom August 2007 through
16 No. 12-2365
December 2007.’ ” (R. 255 at 10) (quoting R. 100 at ¶¶ 44, 67,
109).
Most importantly, there was minimal effort to connect
specific behaviors to specific causes of action, which
makes it exceedingly unclear what the fraud actually
was. Rule 9(b) requires particular references to specific
alleged fraudulent activities. Here, appellant spent a
great deal of energy insinuating that fraud occurred, but
failed to identify these all-important details. Even when
the complaint mentions details, there is enough hedging
that they cannot be said to have been identified with
particularity; for example:
CSB and/or Mr. Savoree knew or should have
known at or prior to the closing of the Second Loan
that the debt load for the Second Loan was not
acceptable to Ford and/or Ford would not ap-
prove the transfer of the Franchise without new
equityand/or [sic] Ford was not inclined to
approve the Franchise Transfer for other reasons
such as concerns that a proven positive track
record was not established.
(R. 100 at ¶ 61.) Such a statement could fairly be read to
allege many different things or possibly nothing at all.
Indeed, some of the appellant’s attempts to explain her
complaint to this court end up more confusing than
helpful. (e.g., Appellant’s Reply Br. at 20) (“¶22 the sub-
ject is Mr. Savoree’s induced the Breyer’s to purchase
the property by promising to secure finance with a
2.5 million loan guarantee loan guarantee, the amount,
purpose (secure financing).”). We therefore agree with
No. 12-2365 17
the district court that the third claim does not meet
Rule 9(b)’s heightened pleading standard.
b. Claim seven
The district court also dismissed appellant’s seventh
claim, “Promissory Estoppel and/or Unjust Enrichment
(Against Mr. Savoree and CSB)” for failure to meet the
heightened pleading standard that Rule 9(b) imposes.
Again, we agree.
In its March 23, 2011, order, the district court deter-
mined that the appellant’s promissory estoppel and unjust
enrichment claims “sound[ed] in fraud” and should thus
be held to Fed. R. Civ. P. 9(b)’s heightened pleading
standard. (R. 59 at 15) (citing Borsellino v. Goldman Sachs
Grp., Inc., 477 F.3d 502, 507 (7th Cir. 2007) for the proposi-
tion that Rule 9(b)’s heightened pleading standard is
not restricted to claims of fraud, but may apply to
claims whose factual allegations depend on fraud). Ap-
pellant does not challenge this facet of the district
court’s decision, and, in any case, we agree with the
district court. As best we can tell, appellant’s promissory
estoppel and unjust enrichment claims emerge out of a
pattern of fraudulent conduct that she insinuates the
appellees engaged in. This falls under the Fed. R. Civ.
P. 9(b) requirement that allegations of fraud must be
pled with particularity. See Pirelli, 631 F.3d at 447-48(holding an unjust enrichment claim to the Rule 9(b)
standard); see also Borsellino, 477 F.3d at 507 (application of
Rule 9(b) depends on facts of the case).
18 No. 12-2365
To remind the reader, to comply with Fed. R. Civ. P. 9(b),
a plaintiff “must state with particularity the circum-
stances constituting fraud.” And that means “describing
the ‘who, what, when, where, and how’ of the fraud.”
Hofer, 649 F.3d at 615. As the district court observed,
appellant failed at this task. The “when” is not described
with any more specificity than in count three: the
relevant events are alleged to have occurred sometime
“beginning in July 2007 and continuing until January 28,
2008.” (R. 100 at ¶ 123.) 3 Appellant’s “and/or” formula-
tions obscure the identifications of the relevant parties
and make deciphering the allegations overly compli-
cated. (R. 100 at ¶ 125) (“CSB and/or Mr. Savoree made
the promise to Mrs. And/or Mr. Beyrer . . . .”)4 More-
over, appellant fails to identify who made these repre-
sentations on CSB’s behalf.
Appellant’s only response is to protest that her
pleadings were sufficiently clear to satisfy the policy
goals of Rule 9. The Rule, appellant says, is “meant to
require the plaintiff to do more than the usual investiga-
tion before filing his complaint.” (Appellant’s Br. at 63)
(citing United States ex rel. Fowler v. Caremark RX, LLC,
496 F.3d 730, 740 (7th Cir. 2007).) And here, appellant
3
Readers should note that this is the “¶ 123” that appears on
page 31 of appellant’s “Third Amended Answer and Cross
Claim and Third Party Claim,” rather than the ¶ 123 that ap-
pears on page 27. The paragraph numbers restart at 119 after
¶ 150, which is yet one more example of how confusingly
this complaint was constructed.
4
Again, please note that this is the ¶ 125 on page 31.
No. 12-2365 19
contends that she (or, more realistically, her counsel) has
done “more than the usual,” including “traveling to the
remote reaches of Illinois.” (Id.) We are sympathetic to
the travel required to find far-off court reporters, and we
do not wish to cast aspersions on the level of effort ex-
pended by appellant or her counsel. But Fed. R. Civ.
P. 9(b) does more than simply mandate that attorneys
show some increased amount of work. Rather, “the rule
requires the plaintiff to conduct a precomplaint investi-
gation in sufficient depth to assure that the charge of
fraud is responsible and supported.” Ackerman v. Nw.
Mut. Life Ins. Co., 172 F.3d 467, 469 (7th Cir. 1999). That
is, the effort must manifest itself in the complaint
through the familiar “who, what, when, where, and how”
requirements. That, appellant did not achieve. We agree
with the district court that dismissal of the seventh claim
for failure to meet Fed. R. Civ. P. 9(b)’s heightened plead-
ing standard was appropriate.
B. Summary Judgment of Cross-Claims and Third Party
Claims Four, Five, and Six
The district court granted summary judgment to the
appellees on the three other claims included in appel-
lant’s “Third Amended Answer and Cross Claim and
Third Party Claim.” (R. 271.) Appellant nominally chal-
lenges this judgment in her brief to this court by listing
the claims among those she appeals in the heading of
Section IX.B: “The District Court Committed Prejudicial
Error in Dismissing Claims One through Four, Six and
Seven From the Complaint With Prejudice.” (Appellant’s
Br. at 62.) As is perhaps evident from this title, how-
20 No. 12-2365
ever, appellant has misidentified the basis for the
district court’s ruling (and altogether dropped claim
five). Claims four through six were not “dismissed” for
failing to state a claim or failing to meet pleading stan-
dards (as claims one, two, three, and seven were); rather,
the district court entered summary judgment because
there was no genuine issue on which a reasonable
jury could return a verdict in appellant’s favor. (R. 271.)
Nothing in Section IX.B indicates that appellant ap-
preciates this distinction: there is no citation to the sum-
mary judgment standard and no discussion of how the
record on these claims might create a triable issue of fact.
Indeed, appellant did not even respond in district court
to the motions requesting summary judgment on these
claims. If a party moving for summary judgment has
properly supported his motion, the burden shifts to the
nonmoving party to “come forward with specific facts
showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(internal quotation marks omitted); accord Carroll v. Lynch,
698 F.3d 561, 564 (7th Cir. 2012). Appellant has not done
so at any point in this case. The district court’s entry of
summary judgment on these claims was correct.
C. Summary Judgment on the Insurance Proceeds Question
The district court also granted summary judgment on
the issue that kicked off this particular round of litiga-
tion: the distribution of the insurance proceeds. (R. 127.)
The court determined that the July 2007 policy assign-
ment from Kevin to CSB was valid, and therefore
No. 12-2365 21
that Marjorie did not have a claim to the proceeds of
the policy. The appellant challenges that determination.
A district court should dispose of an issue on sum-
mary judgment if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). To survive a
motion for summary judgment, “the nonmoving party
must establish some genuine issue for trial such that a
reasonable jury could return a verdict in her favor.”
Gordon v. FedEx Freight, Inc., 674 F.3d 769, 773 (7th Cir.
2012). To create a “genuine” issue, the nonmoving party
“must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita,
475 U.S. at 586; accord Carroll, 698 F.3d at 564. On appeal,
“[w]e review a district court’s grant of summary judg-
ment de novo, drawing all reasonable inferences and
viewing all facts in favor of the non-moving party.”
Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013).
Here, we think the district court was correct to enter
summary judgment in favor of the appellees.
We note, as the district court did, that the assignment
is valid on its face. (R. 127 at 8.) The policy provides
that “[t]he rights of the owner and beneficiary will be
subject to the rights of any assignee,” (R. 1-3 at 10), while
the assignment states that it grants CSB the right “to
collect from [Cincinnati Life] the net proceeds of the
policy when it becomes a claim by death or maturity,”
(R. 1-4.) Furthermore, the assignment specifically pro-
vides that it is being given “for [v]alue [r]eceived.” (Id.)
22 No. 12-2365
In Illinois,5 “any language that demonstrates the intent
to transfer some identifiable property from one party
to another for valuable consideration is sufficient to
establish an assignment.” Martin v. City of O’Fallon, 670
N.E.2d 1238, 1241 (Ill. App. Ct. 1996). And, assignments
of life insurance policies are permissible in Illinois.
215 ILCS 5/245.1. But, appellant argues, this assignment
was not supported by consideration, and the district
court was wrong to hold otherwise.
It is worth pausing at this point to note that, in re-
viewing the district court’s grant of summary judgment,
we are limited to considering the record that the court
had before it at the time. MMG Fin. Corp. v. Midwest
Amusements Park, LLC, 630 F.3d 651, 657 (7th Cir. 2011).
5
Because this is a diversity case, state substantive law applies.
See Blood v. VH-1 Music First, 668 F.3d 543, 546 (7th Cir. 2012). As
the district court correctly noted, assignments of insurance
policies are governed by the law of the place where the assign-
ment is made. (R. 127 at 7). Here, the assignment was made
in Illinois. (Id.) Appellant argued in the district court that the
law of Indiana should govern, as the Beyrers lived in Indiana
during all relevant periods. This formulation of the law was
wrong, but the district court nevertheless indulged appellant
and demonstrated that, even under Indiana law, the assign-
ment would be valid. (Id. at 8-10.) Appellant has abandoned
this line of argument on appeal. Thus, our review of the sub-
stance of the assignment is governed by Illinois law. See Monarch
Discount Co. v. Chesapeake & Ohio Ry. Co. of Ind., 120 N.E. 743,
745 (Ill. 1918) (the effect of a valid assignment on the rights
of the parties depends on the place of assignment).
No. 12-2365 23
In arguing that the entry of summary judgment was in
error, appellant seems to include facts presented for
the first time in her subsequent motions to modify
and reconsider. This is not only unhelpful, it is an imper-
missible argument. Joseph P. Caulfield & Assocs., Inc.
v. Litho Prods., Inc., 155 F.3d 883, 888 (7th Cir. 1998).
Accordingly, we will review the same record that the
district court reviewed in entering summary judgment.
With that in mind, we find that appellant did not
present enough, or any, evidence to the district court to
create a genuine disputed issue of material fact. True,
appellant identified lack of consideration as a potential
disputed fact in her brief in opposition to summary
judgment. (R. 71 at 12-13.) But this assertion was
simply made and repeated without any support or cita-
tion to evidence. (Id.); (id. at 2) (“Mr. Beyrers [sic]
assigned the policy . . . apparently without considera-
tion”); (id. at 5) (“[t]he alleged assignment mentions no
consideration . . .”). 6 The situation presented to us is
therefore essentially this: we have an otherwise valid
assignment that purports to have been made for
valuable consideration, and we have an appellant who
says, in short, “no, it was not.” To us, this seems the
very definition of “[m]ere metaphysical doubt as to the
material facts.” Carroll, 698 F.3d at 564 (internal quota-
tion marks omitted). And that, as we have repeatedly
recognized, is not enough to prevent summary judgment.
6
Note that this last assertion is not true, as the assignment
does state that it was made “for [v]alue [r]eceived.” (R. 1-4.)
24 No. 12-2365
Id. Such is the case here. There was no genuine issue
of material fact appropriate for trial, and the district court
correctly entered summary judgment for the appellees.
D. Motions to Reconsider
Finally, we take up the district court’s denial of appel-
lant’s “motion for modification” and her “motion for
reconsideration” of the insurance proceeds distribution
order. This is the proper juncture at which to consider
the evidence that appellant added to the record after
the entry of summary judgment. See Caulfield, 155 F.3d
at 888.
The district court’s treatment of the motions, which
the court discussed together in a single three-paragraph
section of its order, is not as clear as it might be. While
the district court appeared to analyze both motions
under the Fed. R. Civ. P. 59(e) standard, appellant’s
second motion could theoretically also be construed as a
Rule 60(b) motion. The court never specifically stated
whether it was reviewing either motion under Rule 59(e)
or 60(b), and cites an opinion, Harrington v. City of Chi.,
433 F.3d 542, 546 (7th Cir. 2006), that discusses both. (R.
254 at 4.) Appellant seems to argue that analyzing the
motions under the same standard was improper, but
fails to propose an alternate standard to proceed under
and seems confused about which motion could have
been analyzed under such an alternate standard. (Ap-
pellant’s Br. at 58) (“The district court reasoned that
the Motion to Modify [the first motion] was actually
a motion to reconsider in disguise. However, Counsel
No. 12-2365 25
was not engaging in semantics but, rather, analysis.”).
Ultimately, however, whatever contrast appellant at-
tempts to draw between these motions is inconsequential.
Several factors convince us that it is proper to analyze
both motions under Rule 59(e). First, the district court,
as evidenced by its analysis, apparently understood both
motions to be Rule 59(e) motions. The district court’s
treatment makes procedural sense because both motions
were filed within the 28-day time limit that Rule 59(e)
prescribes. See Fed. R. Civ. P. 59(e); cf. Justice v. Town of
Cicero, Ill., 682 F.3d 662, 665 (7th Cir. 2012) (“an untimely
Rule 59 motion is treated as a motion under Rule 60(b)”).
Further, appellees refer to appellant’s “rule 59 motions,”
which lends credence to the theory that both motions
were understood by the parties and the court as Rule 59(e)
motions at the time. (e.g., Appellee’s Br. at 38.) And
finally, we have previously implied that the threshold
of proof for the moving party is somewhat lower under
Rule 59(e) than under Rule 60(b). See Harrington, 433
F.3d at 546 (describing Rule 59(e)’s standard that a
movant must “clearly establish” grounds for relief as a
“contrast” with the “extraordinary remedy” of Rule 60
relief); see also Romo v. Gulf Stream Coach, Inc., 250 F.3d
1119, 1121 n.3 (7th Cir. 2001) (“Rule 59(e) generally re-
quires a lower threshold of proof than does Rule 60(b)”).
Thus, even if we misapprehend appellant’s argument,
she is not prejudiced by that misunderstanding: if she
could not meet the lower Rule 59(e) burden in the dis-
trict court, she would not have met the higher Rule 60(b)
burden.
26 No. 12-2365
Although the moving party’s burden is different under
each rule, “[r]egardless [of whether one proceeds under
Rule 59(e) or 60(b)], we review decisions under each
rule only for abuse of discretion.” Harrington, 433 F.3d
at 546. An appellant establishes an abuse of discretion
only when “no reasonable person could agree with the
[decision of the district] court.” Jones v. Lincoln Elec. Co.,
188 F.3d 709, 735 (7th Cir. 1999). We conclude that the
district court did not abuse its discretion here.
1. Appellant’s motion for modification
Two days after the district court entered summary
judgment on the issue of the insurance proceeds,
appellant filed a motion for modification, (R. 128), accom-
panied by a three page “Brief in Support of Motion for
Modification of the Court’s Order of September 22, 2011
(Doc. 127) to Give Effect to the First Paragraph of the
Assignment, to wit; the Disability Exclusion,” (R. 129).
Appellant submitted that the court had “overlooked” the
second paragraph of the assignment, which directed that
“any disability income” was not assigned. (R. 129 at 2.)
This clause, appellant argued, entitled Marjorie to the
$250,000 “accelerated death benefit” that the original
policy allowed, even if CSB was due the remainder
under the assignment. (Id. at 2-3.)
The district court rejected appellant’s motion. (R. 254.)
The district court held that appellant had the oppor-
tunity to make this argument during the summary judg-
ment proceedings. Indeed, she made such an argument
in her initial complaint. She did not, however, choose to
No. 12-2365 27
argue it during the summary judgment phase. The
district court noted that motions to reconsider were not
an opportunity to present arguments that could have
been raised previously, (id. at 5) (citing Moro v. Shell Oil
Co., 91 F.3d 872, 876 (7th Cir. 1996)), and rejected the
motion. We do not find that rejection to be an abuse of
the district court’s discretion.
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 dis-
covered evidence precluded entry of judgment.” Blue v.
Hartford Life & Accident Ins. Co., 698 F.3d 587, 598 (7th
Cir. 2012). The appellant’s argument does not fit either
set of circumstances.
The appellant suggests that an argument about the
accelerated death benefit would not have been timely at
the summary judgment phase because “before the ex-
clusion could be decided, ownership needed to be deter-
mined.” (Appellant’s Br. at 59.) This statement is incor-
rect. Grotenhuis moved for summary judgment as to all
of the proceeds of the insurance policy. (R. 54.) Appellant
was therefore on notice that, if she had an argument
about her entitlement to any portion of the policy, she
had to present it. While appellant argued that she was
entitled to the entire policy, an argument about the ac-
celerated death benefit would have been a textbook
example of an argument in the alternative. Appellant
chose not to make this alternative argument, whether
for reasons of strategy or mere oversight.
Rule 59(e) allows the movant to bring to the
district court’s attention a manifest error of law
28 No. 12-2365
or fact, or newly discovered evidence. It does not
provide a vehicle for a party to undo its own
procedural failures, and it certainly does not
allow a party to introduce new evidence or ad-
vance arguments that could and should have
been presented to the district court prior to the
judgment.
Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 529
(7th Cir. 2000) (internal citation and quotation marks
omitted). The district court correctly held that a motion
under Fed. R. Civ. P. 59(e) was not the appropriate
forum for appellant’s argument. Under these circum-
stances, we cannot conclude that the district court abused
its discretion.
2. Appellant’s motion for reconsideration
The district court’s ruling on appellant’s motion for
reconsideration is a closer question. Appellant moved for
reconsideration and urged the court to revise its judg-
ment in light of what she described as newly discovered
evidence. Specifically, appellant presented deposition
testimony from a separate case (involving some of the
same parties) that showed CSB had not yet contemplated
a second loan to the Beyrers by September 2007. There-
fore, appellant argued, the district court’s finding that
the second loan was consideration for the assignment,
executed in June 2007, must be incorrect. The court dis-
missed this argument as simply “request[ing] that the
Court re-analyze the Proceeds Order in its entirety
as applied to her interests.” (R. 254 at 5.) While we
No. 12-2365 29
disagree with the district court’s characterization, we
do not think that the court abused its discretion in
rejecting the motion.
As a reminder, “[t]o prevail on a Rule 59(e) motion
to amend judgment, a party must clearly establish (1) that
the court committed a manifest error of law or fact, or
(2) that newly discovered evidence precluded entry of
judgment.” Blue, 698 F.3d at 598 (internal quotation
marks omitted). Here, we are concerned with the
second option: newly discovered evidence.
To succeed on a motion under Rule 59 [by
invoking newly discovered evidence], a party
must show that: (1) it has evidence that was dis-
covered post-trial; (2) it had exercised due dili-
gence to discover the new evidence; (3) the evi-
dence is not merely cumulative or impeaching;
(4) the evidence is material; and (5) the evidence
is such that a new trial would probably produce
a new result.
Envtl. Barrier Co., LLC v. Slurry Sys., Inc., 540 F.3d 598,
608 (7th Cir. 2008); see also Caisse Nationale de Credit
Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996)
(“the moving party must show not only that this
evidence was newly discovered or unknown to it until
after the hearing, but also that it could not with rea-
sonable diligence have discovered and produced such
evidence during the pendency of the motion [for sum-
mary judgment]”) (internal brackets and quotation
marks omitted). We emphasize again that we review
the district court’s denial of a Rule 59(e) motion only for
abuse of discretion. Zivitz v. Greenberg, 279 F.3d 536, 539
30 No. 12-2365
(7th Cir. 2002). Here, we are convinced that the district
court did not abuse its discretion when it denied appel-
lant’s motion.
In the Rule 59 context, the moving party must clearly
establish that the new evidence “would probably pro-
duce a new result” in a new trial. Envtl. Barrier Co., 540 F.3d
at 608; see also Blue, 698 F.3d at 598 (moving party must
“clearly establish” grounds for relief). Certainly, the
evidence that appellant presented to the district court in
her motion for reconsideration casts a new light on
the court’s decision. Indeed, if the testimony is to be
believed, it appears that the court’s finding that the
second loan functioned as consideration for the assign-
ment was erroneous. Note, though, that this deposition
testimony does not clarify whether there actually was
consideration; it tells us only that the district court’s
supposition about the form of the consideration may
have been incorrect. So this new evidence was
potentially useful, even though it was not dispositive.
That is, while the deposition testimony might make a
different outcome in a hypothetical new proceeding
possible, it does not necessarily make such an outcome
probable. See Marcus & Millichap Inv. Servs. of Chi., Inc. v.
Sekulovski, 639 F.3d 301, 314 (7th Cir. 2011) (requiring
probability in the Rule 59 context).
Important to our ultimate decision is the abuse of
discretion standard under which we review the denial
of a Rule 59 motion. “A court abuses its discretion only
when no reasonable person could agree with the deci-
sion to deny relief.” Nelson v. Napolitano, 657 F.3d 586, 591
(7th Cir. 2011). Here, we think the substantive ques-
No. 12-2365 31
tion—whether the evidence would have made a dif-
ferent outcome probable—is a close one. That closeness,
though, speaks to the fact that reasonable people could
come to either conclusion. And because reasonable
people could conclude that the district court’s ultimate
decision was correct, we cannot find that the court
abused its discretion by denying the motion.
Furthermore, the timing is problematic for appellant.
The deposition in question was taken July 27, 2009,
during the course of another lawsuit, involving many
of the same parties as this case, about the fallout from
the failed dealership sale and the final disposition of the
assets involved in the sale. (R. 154 at 1.) Appellant was
a party to that lawsuit prior to filing for bankruptcy.
Though she now pleads ignorance to the developments
in that case after she was excused, appellant was
certainly aware that issues related to her interests were
being litigated and had the opportunity to inquire about
relevant testimony long before the district court entered
summary judgment. She failed to make such inquiries
until well into the litigation process, which does not
demonstrate due diligence on her part. Simply put, “[a]
party may not use a motion for reconsideration to intro-
duce new evidence that could have been presented ear-
lier.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th
Cir. 2000).
The above considerations lead us to the conclusion
that the district court did not abuse its discretion in
denying appellant’s motion to reconsider. To have
abused its discretion, the court must have come to a
32 No. 12-2365
conclusion that no other reasonable person would reach.
Here, we think reasonable people could agree that the
evidence appellant presented did not qualify her for
relief under Fed. R. Civ. P. 59(e). Thus, we conclude
that the court did not abuse its discretion by denying
the motion.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the judgment of
the district court.
7-8-13