Abraham Untermyer v. College of Lake County

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 8, 2008
Decided June 25, 2008
Before
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
Nos. 07‐3265
ABRAHAM UNTERMYER,
Plaintiff‐Appellant,
v.
COLLEGE OF LAKE COUNTY,
Defendant‐Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 06 C 5658
William J. Hibbler,
Judge.
O R D E R
The only issues in this appeal are whether the district court abused its discretion
when it denied a motion for reconsideration filed by the plaintiff, Abraham Untermyer,
and when it denied Untermyer leave to amend his complaint after it had entered
judgment for the defendant, College of Lake County. We conclude that the district
court did not abuse its discretion on either issue and affirm its judgment in favor of the
College.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07-3265 2
I. BACKGROUND
Abraham Untermyer is deaf. He was formerly a straight “A” student at the
College of Lake County, which provided him with sign language interpreters for his
classes. Untermyer claims he sometimes had difficulties with his interpreters, who
occasionally missed classes or were substitutes unable to sign properly because they
were unfamiliar with a class.
Untermyer’s problems with his interpreters came to a head in fall 2001, when he
took a Calculus III course. Daunted by the alleged complexity of the course, Untermyer
requested, and the College agreed to provide, two specific interpreters that Untermyer
preferred. When one of Untermyer’s chosen interpreters later became unavailable, the
College hired a new interpreter, who Untermyer claimed was unreliable. During the
sixteen weeks of the course, the College provided Untermyer with ten different sign
language interpreters. Untermyer claims this high turnover rate led to interpreters who
could not properly interpret the technical nomenclature of the class. He believes their
failures in interpretation caused him to miss out on classroom discussions and
humorous pedagogical points. Untermyer also claims he was stressed out because he
wasn’t told ahead of time who would be his interpreter on any given day. Untermyer
believes these deficiencies hurt him, because he received only a “B” in the class.
According to Untermyer, “[t]his ‘B’ grade adversely impacts [his]otherwise stellar
academic career and holds him out to the public in a false and unflattering light.”
Almost five years later, on September 5, 2006, Untermyer brought this suit
against the College in Illinois state court. His complaint stated, “College of Lake
County has a legal contractual obligation created by the Rehabilitation Act of 1973, 29
U.S.C. § 794 to provide deaf persons like Mr. Untermyer with quality sign language
interpreter services for their classes, regardless of the 1973 Rehabilitation Act statute of
limitations.” The complaint also stated this “contractual” obligation stemmed from the
College’s catalog, which Untermyer excerpted and attached to the complaint. The
excerpt stated that the College’s programs and facilities complied with both Section 504
of the Rehabilitation Act and the Americans with Disabilities Act (“ADA”).
Believing that Untermyer had raised a federal claim under the Rehabilitation Act,
the College removed this case to federal court and moved to dismiss based on the
Rehabilitation Act’s statute of limitations. Untermyer argued he had only raised a state
contract law claim and moved to remand. On July 23, 2007, the federal district court
denied Untermyer’s motion to remand and granted the College’s motion to dismiss,

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No. 07-3265 3
1 The statute of limitations for Rehabilitation Act claims is governed by the limitations period for personal injury
claims in the forum state; that time period is two years in Illinois. See Conley v. Vill. of Bedford Park, 215 F.3d 703,
710 n.5 (7th Cir. 2000). The two-year limitations period also applies for claims in Illinois under Titles II and III of
the ADA, which deal with public services and public accommodations. See Soignier v. Am. Bd. of Plastic Surgery,
92 F.3d 547, 551 & n.3 (7th Cir. 1996).
finding that Untermyer’s claim was grounded in the Rehabilitation Act and that the
two‐year statute of limitations for claims in Illinois under the Act1 had long passed.
Untermyer did not file a timely appeal. Instead, he waited seventeen days until
August 9, 2007, to file a motion for reconsideration, or in the alternative, a motion to
amend his complaint to remove the reference to the Rehabilitation Act. The district
court denied both motions on August 21, 2007, noting that Untermyer had not provided
any new arguments in his motion for reconsideration and that it was “too late” to
amend the complaint.
Untermyer then filed this appeal. Because Untermyer did not timely appeal the
dismissal of his claim (and he did not file a motion for reconsideration within ten days
of the dismissal, which would have tolled the appeal clock), we issued an order on
October 17, 2007, limiting review to the denied motion for reconsideration. Untermyer
agrees that the denial of his motion for reconsideration and his concurrently‐filed
motion to amend are the only matters for this court to review.
II. ANALYSIS
A. Motion for Reconsideration
Untermyer moved for reconsideration under Fed. R. Civ. P. 60(b)(1), which
provides that a court can relieve a party from a final judgment or order for “mistake,
inadvertence, surprise, or excusable neglect.” Untermyer believes the district court
mistakenly determined that his claim arose under the federal Rehabilitation Act rather
than state contract law. We review the denial of a Rule 60(b) motion for abuse of
discretion and will reverse only if “no reasonable person could have acted as the judge
did.” Castro v. Bd. of Educ., 214 F.3d 932, 935 (7th Cir. 2000) (internal quotation marks
omitted).
Untermyer provided no good reason for the district court to reconsider this case.
His motion for reconsideration rehashed the same arguments he had previously made.
And those arguments are simply wrong: Untermyer’s complaint explicitly refers to the
Rehabilitation Act as the basis for his claim. Undaunted, Untermyer observes that his
complaint states the College was “contractually obligated” to provide interpreter
services. But Untermyer ignores that the complaint refers to a College catalog excerpt
as the basis for this contractual obligation, and the excerpt merely states that the College

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No. 07-3265 4
complies with the Rehabilitation Act and the ADA in providing services for students
with disabilities. It is doubtful this excerpt created an independent “contract,” given
that it merely noted the College followed the Rehabilitation Act’s and ADA’s
requirements. Cf. Contempo Design, Inc. v. Chi. & Ne. Ill. Dist. Council of Carpenters, 226
F.3d 535, 550 (7th Cir. 2000). At any rate, any “contractual” claim based on the excerpt
would still arise under federal law and be subject to a two‐year limitations period. See
Bennett v. Sw. Airlines Co., 484 F.3d 907, 909 (7th Cir. 2007) (“In the main, a claim ‘arises
under’ the law that creates the cause of action.” (quoting Am. Well Works Co. v. Layne &
Bowler Co., 241 U.S. 257, 260 (1916) (Holmes, J.))). Therefore, the district court did not
abuse its discretion in denying Untermyer’s motion for reconsideration.
B. Motion for Leave to Amend
Untermyer also claims the court should have allowed him to amend his
complaint to remove any references to the Rehabilitation Act. But before he could
amend his complaint, Untermyer needed to get the district court to set aside or vacate
the judgment and reopen the case, which is what Untermyer tried to do by filing a
motion for reconsideration. See Twohy v. First Natʹl Bank of Chi., 758 F.2d 1185, 1196 (7th
Cir. 1985). As noted above, the district court (properly) declined to reconsider, set
aside, or vacate the judgment, so the court did not even need to entertain Untermyer’s
motion to amend.
At any rate, Untermyer provided no good reason for the court to permit an
amendment. Untermyer knew full well that the College believed he had raised a
federal claim — indeed, that was why the College had removed the case in the first
place and was moving to dismiss based on the federal Rehabilitation Act’s limitations
period. Given that the College had not yet filed a responsive pleading, Untermyer had
plenty of time to amend his complaint pre‐judgment. See Fed. R. Civ. P. 15(a) (2006) (“A
party may amend the party’s pleadings once as a matter of course at any time before a
responsive pleading is served . . .”); Johnson v. Dossey, 515 F.3d 778, 780 (7th Cir. 2008)
(“A motion to dismiss the complaint is not a responsive pleading.”). Untermyer chose
not to amend. The district court was not required to excuse this delay by permitting an
amendment after the College’s motion had already been decided. See Twohy, 758 F.2d at
1196 (“[D]elay in presenting a post‐judgment amendment when the moving party had
an opportunity to present the amendment earlier is a valid reason for a district court not
to permit an amendment.”); see also id. (“The right under Rule 15(a) to amend ‘once as a
matter of course’ is lost after the entry of judgment.”).
Moreover, Untermyer’s proposed amended complaint appears to plead
essentially the same claim as the original complaint, minus the explicit references to the
Rehabilitation Act. But the new complaint still includes the same College catalog

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No. 07-3265 5
excerpt — which references the Rehabilitation Act — and cites to the excerpt as the
source of the College’s contractual obligation. So even if the amendment were allowed,
Untermyer’s claim would still be time‐barred because it would still arise under the
Rehabilitation Act. Accordingly, Untermyer’s proposed amendment was futile. See J.D.
Marshall Int’l v. Redstart, Inc., 935 F.2d 815, 820 (7th Cir. 1991) (leave to amend may be
denied if the proposed amendment would be futile).
III. CONCLUSION
The judgment is A FFIRMED.

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