United States District Court, E.D. Wisconsin
ORDER GRANTING DEFENDANT’S/MOVANT’S
MOTION TO CONSOLIDATE CASE NO. 2016-cv-213 WITH CASE NO.
2015-CV-1568-NJ (DKT. NO. 18 IN BOTH CASES)
PAMELA PEPPER United States District Judge
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.
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.
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.
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
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
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.
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.
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.
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.
Pepper Will Decide the Motion
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.
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 ...