Rushing v. Aggressive Developments of Missouri, LLC

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS DYLAN RUSHING, Individually and on ) Behalf of All Similarly Situated ) Individuals, ) ) Plaintiff, ) Case No. 22-CV-649-SMY ) vs. ) ) MCALISTER’S FRANCHISOR SPV ) LLC, and FOCUS BRANDS LLC, ) ) Defendants. ) MEMORANDUM AND ORDER YANDLE, District Judge: On February 22, 2023, the Court denied the Motion to Dismiss for Failure to State a Claim, Motion to Stay of Defendants McAlister’s Franchisor SPV LLC and Focus Brands LLC (“Defendants”) (Doc. 25). Defendants now move for reconsideration of the Court’s denial of the motion to dismiss pursuant to Rule 60 (Doc. 28), which Plaintiff opposes (Doc. 31). Defendants filed a reply (Doc. 34). “Rule 60(b) permits the court in the exercise of discretion to relieve a party from an order on the grounds of mistake, inadvertence, excusable neglect, newly discovered evidence, fraud, or ‘any other reason justifying relief” McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir. 2000). Relief under that Rule is reserved for “exceptional circumstances.” Jd. It is not an opportunity for attorneys to restate arguments that were previously rejected. Stoller v. Pure Fishing, Inc., 528 F.3d 478, 480 (7th Cir. 2008). Here, Defendants merely reiterate arguments previously considered and rejected by this Court and assert that the Court failed to consider the decision in Stauffer v. Innovative Heights

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Fairview Heights, LLC, et al., No. 20-cv-00046, 2022 WL 3139507 (S.D. Ill. Aug. 5, 2022). The Court did not fail to consider Stauffer. Rather, it determined that it is unavailing. The plaintiff in Stauffer alleged only that the defendant retained a right to access biometrics, 2022 WL 3139507, at *4 (S.D. Ill. Aug. 5, 2022). Here, Plaintiff specifically alleges that Defendants “collected, stored, and used Plaintiff's biometrics” without providing written disclosures or obtaining Plaintiff's consent (Doc. 2-1, § 27). Thus, the Court’s finding that Plaintiff states a viable claim is unchanged. Defendants’ Motion for Reconsideration (Doc. 28) is DENIED. IT IS SO ORDERED. DATED: April 14, 2023 Corll STACI M. YANDLE United States District Judge

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