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Schmalfeldt v. Johnson

United States District Court, E.D. Wisconsin

April 20, 2016

WILLIAM M. SCHMALFELDT, SR., Plaintiff,
v.
ERIC P. JOHNSON, SARAH PALMER, and JOHN AND JANE DOES, Defendants.

DECISION AND ORDER

NANCY JOSEPH, United States Magistrate Judge.

There are currently 13 motions pending in the above-captioned case, which was filed by the plaintiff, William M. Schmalfeldt, Sr., on December 18, 2015. (Docket # 1.) On March 24, 2016, I conducted a status conference with the parties and ordered a moratorium on any further filings (at that time, there were 34 dockets entries in the approximately three months the case had been pending, including 10 motions). Thereafter, I issued an order in which I granted Schmalfeldt leave to amend his complaint, making his amended complaint (Docket # 6) the operative complaint in this case. I also gave the defendants 21 days to file any supplement to their already-pending motion to dismiss (Docket # 11) or an amended motion to dismiss. The defendants have now filed a supplemental motion to dismiss the amended complaint. Before the defendants filed their supplemental motion, however, Schmalfeldt filed a motion for leave to file a second amended complaint (Docket # 37) and thereafter filed a motion to withdraw that motion and also requested that the moratorium on filings be relaxed (Docket # 38). I will address these two most recent motions from Schmalfeldt as well as the other outstanding motions, except for the motion to dismiss, which has not yet been fully briefed.

For the sake of making this decision as easy to follow as possible, I will start at the beginning of the docket and make my way forward.

1. Motion for Court Assistance Regarding Service (Docket # 7)

The first pending motion was filed by Schmalfeldt on February 4, 2016. (Docket # 7.) He requested that the court serve defendant Eric P. Johnson at his own expense because Johnson had refused service. However, I know of no rule, either federal or local, that requires the court to serve a defendant in a civil lawsuit in this particular situation.[1] Though “a district court must direct the marshals service to serve process for indigent litigants, ” that is, litigants proceeding in forma pauperis, “plaintiffs like [Schmalfeldt] who are not indigent bear the responsibility for effecting service of process.” Barmes v. Nolan, 123 Fed.Appx. 238, 239 (7th Cir. 2009) (internal citations omitted). Therefore, Schmalfeldt’s request that the court serve defendant Johnson is denied.

2. Motion for Order to Show Cause (Docket # 8)

Next, Schmalfeldt filed a motion for an order to show cause why defendant Sarah Palmer should not be held in contempt of court. (Docket # 8.) According to Schmalfeldt, Palmer had received and accepted her service packet on December 28, 2015, which contained a copy of the Consent to Proceed Before a Magistrate Judge form. The form instructs the recipient to complete the form and file it within 21 days of receipt. Because Palmer had not done so within 21 days, Schmalfeldt seeks to have me order Palmer to show cause why she should not be sanctioned for failing to complete and return the form within 21 days of receiving her service packet. At that time, Palmer’s answer to Schmalfeldt’s complaint was not yet due, and to order her to show cause why I should not sanction her for failing to return the consent form before she was even required to answer the complaint would be nonsensical, not to mention impractical. Therefore, Schmalfeldt’s request that I issue an order to show cause why Palmer should not be sanctioned is denied.

3. Motion to Disqualify Defendants’ Counsel (Docket # 18) and Motion for Leave to File Rule 11 Motion Immediately (Docket # 20)

Schmalfeldt filed his next motion on March 7, 2016, seeking to disqualify defendants’ counsel (Docket # 18) after he had entered an appearance on February 29, 2016 (Docket # 9). Thereafter, the defendants filed a motion for leave to file a motion for sanctions against Schmalfeldt. (Docket # 20.) I have reviewed both motions, and they amount to what are essentially ad hominem attacks on the opposing side. As I warned Schmalfeldt and Attorney Walker at our March 24th status conference, I will not entertain ad hominem attacks from either party. Both the motion to disqualify and the motion to for leave to file sanctions are denied.

4. Motion to Supplement (Docket # 24) and First Motion for Extension of Time to Respond to Supplement (Docket # 27)

Relatedly, Schmalfeldt’s request to file a supplement in support of his motion to disqualify (Docket # 24) is also denied, as is the defendants’ request for an extension of time to respond to the supplement (Docket # 27).

5. Motion for Summary Judgment (Docket # 25)

Schmalfeldt has also filed a motion for summary judgment. (Docket # 25.) It is true the Federal Rule of Civil Procedure 56(b) provides that a motion for summary judgment may be filed at any time until 30 days after the close of discovery (unless local rules or a court order provides otherwise), but Schmalfeldt’s motion for summary judgment is not ripe for decision. Currently, the defendants have moved to dismiss this case, and among the grounds they argue merit dismissal is the issue of this court’s jurisdiction over the case. It is appropriate, therefore, to address at least the issue of jurisdiction before deciding a motion for summary judgment. I will therefore deny Schmalfeldt’s motion without prejudice.

6. First Motion for Extension of Time to Respond to MSJ (Docket # 28) and Motion for Case Management ...


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