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Bryant v. Wuerl

United States District Court, E.D. Wisconsin

July 6, 2016



          HON. PAMELA PEPPER United States District Judge


         On December 31, 2015, the plaintiff filed a complaint in federal court for the Eastern District of Wisconsin, alleging that Jennifer Ramos had violated her Fourth, Fifth and Fourteenth Amendment rights under 42 U.S.C. §1983. Bryant v. Ramos, 15-cv-1568-nj (E.D. Wis.), Dkt. No. 1. The allegations in the complaint related to an incident that occurred at the Elsa’s on the Park restaurant on September 26, 2015. Id. The complaint alleged that the plaintiff was an actress on a reality show, and that as she was sitting at the restaurant with a friend, other restaurant patrons joined them. Id. at 2. Somehow, this gathering led to the bartender, and then the restaurant manager (Brittany L. Wuerl, the defendant in the above-captioned case) calling the police. There is some dispute regarding whether the bartender and Wuerl called the police because of an unpaid food and beverage bill, or because the group was being disruptive. Id. at 2-3.

         Jennifer Ramos (an officer with the Milwaukee Police Department) arrived at the restaurant, and ended up arresting the plaintiff, taking her into custody, and allegedly requesting that the plaintiff be prosecuted for “absconding without paying.” Id. at 4. The Ramos case originally was assigned to Judge J. P. Stadtmueller.

         On January 5, 2016-five days after the Ramos complaint was filed in federal court-the plaintiff filed a complaint in Milwaukee County Circuit Court, alleging malicious prosecution and defamation against defendant Wuerl. Dkt. No. 1-2 at 1. The allegations in the state-court complaint involved the same incident (in some places, the same language) as the allegations in the federal complaint filed against Ramos. Id. Instead of alleging that the defendant violated 42 U.S.C. §1983, however, the plaintiff alleged in the state court case that the defendant engaged in malicious prosecution and defamation by taking actions and making statements that caused Ramos to arrest and attempt to prosecute the plaintiff. Id.

         On February 23, 2016, the defendant removed the state malicious prosecution/defamation case to this court. Dkt. No. 1. The case was assigned to Magistrate Judge William E. Duffin, but the plaintiff refused to consent (Dkt. No. 4), and the case was re-assigned to Judge Pamela Pepper on February 23, 2016. A week later, on March 1, 2016, the Ramos case was reassigned to Magistrate Judge Nancy Joseph upon the parties’ consent. Dkt. No. 9. Since that time, the two cases have been proceeding in federal court before two different judges.

         Some water has passed under the bridge in the Bryant v. Ramos case (the first-filed). The defendant filed a motion to dismiss on February 19, 2016. Bryant v. Ramos, 15-cv-1568-nj at Dkt. No. 5. The plaintiff filed a brief in opposition on March 5, 2016, id. at Dkt. No. 11, and the defendant filed her reply on March 31, 2016, id. at Dkt. No. 14. Judge Joseph held a Rule 16 scheduling conference on March 16, 2016, id. at Dkt. No. 13, and set the following deadlines:

Close of discovery

October 31, 2016

Dispositive motions

November 30, 2016

Final pretrial conference

March 17, 2017 at 10:00 a.m.

Three-day jury trial

March 27, 2017 at 9:00 a.m.

         On March 16, 2016, however-the same date that Judge Joseph held the scheduling conference in the Ramos case-the plaintiff’s lawyer in this case filed a motion to withdraw. Bryant v. Wuerl, 16-cv-213-pp (E.D. Wis.) at Dkt. No. 14. The motion stated that defendant Wuerl’s insurance company had informed counsel that his firm had a conflict of interest, but that the plaintiff had obtained new counsel. Id. This court granted the motion to withdraw by text-only order. The Rule 16 scheduling conference in this-the Wuerl case- was scheduled for March 24, 2016. Dkt. No. 9.

         Ahead of the Rule 16 conference in the Wuerl case, the parties filed their Rule 26(f) joint conference report. Dkt. No. 15. On page 4 of that report, under the heading, “Motions, ” the parties stated, “The Defendant also anticipates filing a motion to consolidate this case with Case No. 2:15-cv-01568-NJ, on or before March 24, 2016.” Id. at 4. Consequently, at the March 24, 2016 Wuerl scheduling conference, this court asked the defendant how that would work, noting that Civil L. R. 42 required a party seeking consolidation to file the request in the first-filed case-the Ramos case before Judge Joseph-but that the plaintiff in the Wuerl case had not consented to a magistrate judge’s authority to issue a final order. Id. at 1. Defense counsel asked for a deadline of April 25, 2016 to file the motion to consolidate (which would answer that question). The court set a briefing schedule, and adjourned the Rule 16 conference to June 10, 2016 at 9:30 a.m., indicating that it would hear oral argument on the motion to consolidate on that date. Id. at 2.

         On April 18, 2016, the defendant filed the motion to consolidate in both cases. Ramos at Dkt. No. 18; Wuerl at Dkt. No. 18. The motion is fully briefed. Judge Joseph has not ruled on the motion to dismiss in Ramos, due to the pendency of the motion to consolidate.

         Judge Pepper Will Decide the Motion

         Civil Local Rule 42 governs the logistics of consolidation in this district. Rule 42(a) requires that the motion be decided “by the judge to whom the lowest numbered case is assigned, ” and provides that if the motion is granted, “the judge to whom the lowest numbered case is assigned will handle all future proceedings covered by the consolidation order.” The difficulty in this case is that the judge to whom the lowest numbered case is assigned is Magistrate Judge Joseph, and while both parties in the Ramos case have consented to Judge Joseph’s authority to decide the case, the plaintiff in the Wuerl case has declined to consent. Thus, Judge Joseph cannot decide the motion to consolidate in Wuerl, and if the case were to be consolidated, she could not issue a final decision in the consolidated case.

         Judge Adelman faced the same conundrum in Van Patten v. Wright, 2009 WL 1886010, Nos. 07-cv-788, 07-cv-26 (E.D. Wis. June 30, 2009). Judge Adelman concluded that, although the case before him had a higher docket number than the case pending before Magistrate Judge William E. Callahan, Jr., he would decide the motion. Id. at *1. While Judge Adelman did not say as much, the court infers from this that Judge Adelman decided that because there was no district court judge assigned to the lower-numbered case, by operation of the rule, he was the only one who could decide the motion. This court also notes that General Local Rule 1 provides that while the court expects parties to comply with the local rules, “the rules are intended to be enforced primarily upon the Court’s own initiative . . . .” A case like this, in which strict adherence to L.R. 42 would ...

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