                               In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 13-3505

ALEX VESELY, individually and as
special administrator and brother of
JITKA VESEL (Deceased),
                                                  Plaintiff-Appellant,

                                  v.


ARMSLIST LLC, an Oklahoma Limited
Liability Company,
                                                 Defendant-Appellee.

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
           No. 1:13-cv-00607 — Charles R. Norgle, Judge.


     ARGUED MAY 29, 2014 — DECIDED AUGUST 12, 2014


   Before BAUER, KANNE, and SYKES, Circuit Judges.

   KANNE, Circuit Judge. Jitka Vesel (“Jitka”) was shot with a
handgun that was illegally purchased by Demetry Smirnov who
found the weapon available for purchase on Armslist.com
(“Armslist”), a website that facilitates the sale of guns between
2                                                            No. 13-3505

private owners. Alex Vesely (“Alex”) brought this action on her
behalf, alleging that Armslist’s negligence in facilitating the sale
proximately caused her death.1 The district court held that
Armslist owed no duty to Jitka and therefore could not be liable
for the actions of Smirnov. For the following reasons, we affirm.
                              I. BACKGROUND
   In 2011, Jitka was shot and killed by Demetry Smirnov, a
Russian immigrant residing in Canada. Smirnov had met Jitka
online and sought to develop a romantic relationship with Jitka,
but she spurned his advances.
   In response, Smirnov got on Armslist.com to obtain a handgun.
Armslist provides owners of firearms and other outdoor gear
the opportunity to post classified advertisements to sell their
goods. Smirnov came across an advertisement posted by Benedict
Ladera, a Seattle resident for the sale of a .40 caliber handgun.
   Prior to advertising the sale of the firearm, Ladera accepted
a variety of standard terms, including:
    •   I understand that ARMSLIST DOES NOT become involved
        in transactions between parties and does not certify,
        investigate, or in any way guarantee the legal capacity
        of any party to transact.
    •   I am responsible for obeying all applicable enforcement
        mechanisms, including, but not limited to federal, state,
        municipal, and tribal statutes, rules, regulations,


1
  Alex and Jitka, though biological siblings, adopted variant spellings of
their surname after immigrating to the United States. Their first names will
be used throughout for ease of reference.
No. 13-3505                                                        3

       ordinances, and judicial decisions, including compliance
       with all applicable licensing requirements.
   •   If I am unsure about firearms sales or transfers, I will
       contact the Bureau of Alcohol, Tobacco, Firearms, and
       Explosives at 1-800-ATF-GUNS and visit the ATF website
       at http://www.atf.gov.
    Smirnov met Ladera in Seattle and purchased the firearm
from him for $400. Federal law prohibits a private seller from
directly transferring a firearm to a resident of another state or
country. 18 U.S.C. § 922(a)(5). The sale of the firearm was illegal
because Smirnov lived outside the State of Washington. After
Smirnov purchased the firearm, he returned to Chicago and began
stalking Jitka. On April 13, 2011, Smirnov followed her to a
parking lot and killed her with the handgun he purchased from
Ladera. Smirnov immediately turned himself in to the police and
confessed to the murder. He received a sentence of life in prison
for the crime. Ladera pleaded guilty to illegally transferring a
firearm to an out-of-state person and was sentence to one year
and a day in prison.
    Jitka’s brother Alex brought three state claims against Armslist:
(1) a negligence claim under the Wrongful Death Act; (2) a
Survival claim for Jitka’s pain and suffering prior to her death;
and (3) a Family Expense claim for funeral and burial expenses.
Neither Ladera nor Smirnov were named as parties to the
complaint.
   The district court granted Armslist’s 12(b)(6) motion to dismiss.
The court found that Alex could not establish that Armslist owed
a duty to Jitka. Therefore, Armslist had no duty to control the
conduct of Smirnov and could not be liable for the harm that
4                                                        No. 13-3505

followed from his actions. The court also dismissed two of Alex’s
post-judgment motions. The first was a motion to reconsider and
the second was a motion for leave to file an amended complaint
on the ground that the judgment against Alex had not first been
set aside or vacated.
                              II. ANALYSIS
    We review a 12(b)(6) dismissal for failure to state a claim de
novo and construe all well-pleaded facts and draw all inferences
in the light most favorable to the nonmoving party. Reynolds v.
CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). In order
to survive a motion to dismiss, a plaintiff must allege “sufficient
factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). And
while we draw all reasonable inferences and facts in favor of the
nonmovant, we need not accept as true any legal assertions or
recital of the elements of a cause of action “supported by mere
conclusory statements.” Alam v. Miller Brewing Co., 709 F.3d 662,
666 (7th Cir. 2013).
    A. Negligence
    To prevail on a claim of negligence under Illinois law, a
plaintiff must “prove the existence of a duty of care owed by
the defendant to the plaintiff, a breach of that duty, and an injury
proximately caused by that breach.” Buechel v. United States, 746
F.3d 753, 763–64 (7th Cir. 2014) (citing Thompson v. Gordon, 948
N.E.2d 39, 45 (Ill. 2011)). The district court found that the first
element, the existence of a duty of care, was lacking.
No. 13-3505                                                         5

    While breach and proximate cause are factual matters for the
jury, the existence of a duty is a matter for the court to decide.
Adams v. N. Ill. Gas Co., 809 N.E.2d 1248, 1257 (Ill. 2004). And
the touchstone to determine the existence of a duty is “to ask
whether a plaintiff and a defendant stood in such a relationship
to one another that the law imposed upon the defendant an
obligation of reasonable conduct for the benefit of the plaintiff.”
Marshall v. Burger King Co., 856 N.E.2d 1048, 1057 (Ill. 2006). It
has long been established that under common law, “the
universally accepted rule … is that a private person has no duty
to act affirmatively to protect another from criminal attack by
a third person absent a ‘special relationship’ between the parties.”
Iseberg v. Gross, 879 N.E.2d 278, 284 (Ill. 2007). Illinois recognizes
four special relationships: (1) common-carrier passenger; (2)
innkeeper and guest; (3) custodian and ward; and (4) business
invitor and invitee. Marshall, 856 N.E.2d at 1058.
    Alex did not, nor could he, allege that a special relationship
existed between the parties; the fact is that no relationship between
Armslist and Jitka, special or otherwise, ever existed. Nor does
Alex cite to any federal or state law breached by Armslist in
posting the advertisement. His complaint simply states that
“Armslist owed a duty to the public, including Jitka, to operate
its website, armslist.com, in a commercially reasonable manner.”
Yet, like his brief, this completely ignores the requirement of a
special relationship when an intervening criminal act by a third
person arises. Alex suggests that public policy favors a judicial
finding of a duty because Armslist’s allegedly negligent behavior
facilitates gun sales that in turn lead to gun crimes. Indeed, the
district court engaged in this exact analysis, using the four factors
commonly used in determining the existence of a duty ((1)reason-
6                                                      No. 13-3505

able foreseeability of the injury; (2) likelihood of the injury; (3)
magnitude of the burden of guarding against the injury; and (4)
consequences of placing that burden on the defendant). City of
Chi. v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1125 (Ill. 2004). But
these factors need not be addressed in criminal attacks in the
absence of a “special relationship” between the parties. See Iseberg,
879 N.E.2d at 290 (“We can find no case in which this court has
recognized an affirmative duty, based on consideration of the
four factors … in the absence of a special relationship.”); Hill v.
Bridgeview Little League Ass’n, 745 N.E.2d 1166, 1186–87 (Ill. 2000).
In other words, when a criminal act by a third party is the cause
of the injury, a special relationship is required before any further
analysis. And since no special relationship exists between the
parties—nor has one been alleged in the complaint—dismissal
was appropriate.
    Alex makes a last ditch attempt to label this case as an
“affirmative conduct” case, wherein a duty can be found to exist
without a “special relationship.” He argues that an exception
to the special relationship rule exists “where the defendant’s acts
or omissions create a condition conducive to a foreseeable
intervening criminal act.” Rowe v. State Bank of Lombard, 531 N.E.2d
1358, 1368 (Ill. 1988). One certainly has a duty to refrain from
“affirmative conduct” that creates a risk of harm to others; a breach
of this duty implicates in-concert liability. See Simmons v. Homatas,
925 N.E.2d 1089, 1100 (Ill. 2010). And “[i]f a plaintiff can
demonstrate that the defendant did not merely fail to act, but
also assisted the third party, then the requirement of a special
relationship no longer applies.” Id. (emphasis added). Liability
will be found for persons who act in concert with another
tortfeasor, “giving substantial assistance or encouragement to
No. 13-3505                                                        7

another’s tortious conduct.” Id. (citing Restatement (Second) of
Torts § 876 (1979)).
    Alex has alleged nothing of the sort here. Alex’s complaint
states that Armslist “design[ed] its website to encourage its users
to circumvent existing gun laws, … by easily enabling prospective
purchasers to search for and find gun sellers in any and all states.”
But simply enabling consumers to use a legal service is far removed
from encouraging them to commit an illegal act. See Marshall,
856 N.E.2d at 1059 (citing Restatement (Second) of Torts §302B,
Comment d, at 89 (1965) (“it is generally reasonable for one to
assume that a person will not violate the criminal law.”)). Armslist
permitted Ladera to place an advertisement on its website and
nothing more. It did not invite Ladera or Smirnov to break the
law. Alex’s allegations fall short of alleging any cognizable
negligence claim for which Armslist could be held responsible
for Smirnov’s acts.
   B. Motion to Reconsider
    Alex alleges that the district court, which erred in dismissing
his original complaint, should have granted his Rule 59(e) motion
to reconsider. To establish relief under Rule 59 (e), a “movant
must demonstrate a manifest error of law or fact or present newly
discovered evidence.” Boyd v. Tornier, Inc., 656 F.3d 487, 492 (7th
Cir. 2011). Yet we have held that a Rule 59(e) motion is not to
be used to “rehash” previously rejected arguments, Oto v. Metro.
Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000), which is precisely
what Alex has done here by simply incorporating his arguments
regarding the dismissal of his original claim. We find no error
in the denial of the motion.
8                                                        No. 13-3505

    C. Motion for Leave to Amend
     Alex also argues that the district court erred by denying his
Rule 15(a) motion to amend, a decision we review for an abuse
of discretion. Twohy v. First Nat’l Bank, 758 F.2d 1185, 1196 (7th
Cir. 1985). Alex mistakenly claims that the only requirement for
consideration of a post-judgment Rule 15(e) motion for leave
to amend is a timely filing of a motion to reconsider under Rule
59(e), which he did. But it is ”well settled that after a final
judgment, a plaintiff may amend a complaint under Rule 15(a)
only with leave of court after a motion under Rule 59(e) or Rule
60(b) has been made and the judgment has been set aside or vacated.”
Figgie Int’l, Inc. v. Miller, 966 F.2d 1178, 1179 (7th Cir. 1992)
(emphasis added); see also Amdendola v. Bayer, 907 F.2d 760, 765
n. 1 (7th Cir. 1990) (“In this circuit, after judgment has been entered
a party must have the judgment reopened pursuant to Federal
Rule of Civil Procedure 59(e) or 60(b) and then request leave to
amend pursuant to Rule 15(a).”). The district court never set aside
the judgment and for that reason Alex’s Rule 15(a) motion was
premature. We find no abuse of discretion.
                           III. CONCLUSION
   Alex has failed to allege any applicable duty that Armslist
owed Jitka in allowing the advertisement on its website. Armslist
did not have any relationship with Jitka or Smirnov that would
render it liable for the intervening criminal attack. For the
foregoing reasons, we AFFIRM the decision of the district court.
