United States District Court, E.D. Wisconsin
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL (DKT.
NO. 24) AND GRANTING PLAINTIFF'S MOTION FOR AN EXTENSION
OF TIME (DKT. NO. 51)
PAMELA PEPPER U.S. District Judge
Gene Wilbur has filed two motions: one to compel discovery
from defendant County of Waukesha ("Waukesha
County"), dkt. no. 24, and the other for an extension of
time to respond to the pending motions for summary judgment
filed by Waukesha County and its co-defendant City of
Pewaukee, dkt. no, 51.
court will deny the plaintiffs motion to compel discovery,
and will grant the plaintiffs motion for an extension of time
to respond to the defendants' summary judgment motions.
FACTUAL AND PROCEDURAL BACKGROUND
plaintiff is a former police sergeant with the City of
Pewaukee Police Department. Dkt. No. 1 at 2. On January 14,
2014, he filed this action against Waukesha County and the
City of Pewaukee, alleging that the defendants defamed him
and retaliated against him in response to his support for
former City of Pewaukee Police Chief Gary Bach and in
response to engaging in protected speech and protected
activity under Title VII of the Civil Rights Act of 1964.
Id. at 10-13. The original deadline for the close of
discovery was February 20, 2015, a date set by Judge Adelman
at a May 2014 pretrial conference when this case was pending
before him. Dkt. No. 8. In December 2015, the case was
reassigned to Judge Pepper. On February 1, 2015, less than
three weeks before the deadline, the court granted the
plaintiff an emergency 30-day stay of all discovery and
motions deadlines. Dkt. No. 15. In a scheduling conference
held on February 17, 2015, the court extended the discovery
deadline to June 29, 2015. Dkt. No. 17. In June 2015, by
stipulation of the parties, the court again extended the
discovery deadline, this time to October 16, 2015. Dkt. No.
18. In September 2015, the court vacated its June 2015
scheduling order and scheduled a November status conference,
dkt. no. 19, in which the court extended the discovery
deadline again, this time setting the close of discovery as
February 1, 2016, dkt. no. 20. In February 2016, after the
discovery deadline had passed, and once more by stipulation
of the parties, the court yet again extended the discovery
deadline. Dkt. No. 23. The court set the most recent
discovery deadline for March 31, 2016, over two years after
the plaintiff filed his complaint. Id. The court set
a dispositive motion deadline of May 25, 2016. Id.
plaintiff filed this motion to compel on March 31, 2016-the
discovery deadline. Dkt. No. 24. The motion requests, among
other things, that Waukesha County answer certain
interrogatories seeking to identify officers hired and
promoted by the County, Id. at 1-2, officers who did
not receive education incentive pay, id. at
2, and officers who were required to take a physical
standards test multiple times, id. at 3. The motion
also requests that Waukesha County produce any and all
documents concerning the plaintiff dating back to 2005,
Id. at 3-4, any and all statements made by or for
any party or witness related to the facts of the case in any
way, Id. at 4, and any and all documents related to
the plaintiffs background check for the Elm Grove Police
Department, id. Waukesha County filed its response
to the motion on April 20, 2016. Dkt. No. 28. The plaintiff
did not file a reply. On May 25, 2016, while the plaintiffs
motion to compel was pending, the defendants timely filed
motions for summary judgment. Dkt. Nos. 29, 32.
24, the plaintiff filed an expedited non-dispositive motion
under Civil Local Rule 7(h) requesting an extension of time
to respond to the defendants' summary judgment motions.
Dkt. No. 51. He contends that he needs the discovery he
sought in his motion to compel in order to respond to the
summary judgment motions. Id. at 1-2. The defendants
have responded to that motion. Dkt. Nos. 52, 53.
THE COURT WILL DENY THE PLAINTIFF'S MOTION TO COMPEL
the plaintiffs motion to compel suffers from two defects. It
lacks proper certification under F.R.C.P. 37 and Civil L.R.
37, and it is untimely under the circumstances.
Substantively, the court finds that the plaintiff has not
established that Waukesha County has failed to comply with
its discovery obligations, or that the plaintiff will suffer
prejudice if the court denies the motion.
The Plaintiffs Motion To Compel Lacks The Proper
Local Rule 37 and Federal Rule of Civil Procedure 37(a)(1)
impose several requirements on parties before they may file a
motion to compel. Fed.R.Civ.P. 37; Civil L.R. 37. The federal
rules require the plaintiff to certify that he has "in
good faith conferred or attempted to confer" with the
defendant to resolve the discovery dispute without court
action. Fed.R.Civ.P. 37(a)(1). Under the corresponding local
rule, the plaintiff also must certify that the parties were
"unable to reach an accord, " and must provide the
dates and times of the conferences, as well as the names of
the parties present. Civil L.R. 37.
usually include the certification as an addendum to the
motion, but the plaintiffs motion did not. In lieu of a
certification, the plaintiff stated in the motion: "the
parties have repeatedly conferred in good faith on this
dispute...[and] have reached deadlock." Dkt. No. 24.
While the motion asserts that the parties conferred in good
faith, the plaintiffs supporting materials do not support his
assertion that the parties have worked to resolve their
disagreement. See Dkt. No. 26.
plaintiff filed two letters in support of his motion. Dkt.
Nos. 26-1, 26-2. The first letter, sent on March 16, 2015
from the plaintiffs counsel to Waukesha County's counsel,
identified the alleged deficiencies in certain of Waukesha
County's discovery responses, requested supplemental
responses, and invited Waukesha County's counsel to
"contact [plaintiffs counsel] with any questions or
concerns." Dkt. No. 26-1. The second letter, sent on
March 18, 2016, is Waukesha County's counsel's
response to the plaintiffs counsel's letter from over one
year earlier. Dkt. No. 26-2. In that letter, Waukesha
County's counsel responded that the County would stand on
its original responses and objections. Id. at 2-6.
Waukesha County's counsel explained that she did
"not understand [the plaintiffs] stated reason for"
requesting certain information, and, after explaining that
the County already had produced the documents responsive to
one of the plaintiffs requests, asked the plaintiffs counsel
to explain "what other information do you believe has
not been produced?" Id. at 4. There is no
indication in the plaintiff's motion that the parties
conferred between the date of the second letter and the date
the plaintiff filed this motion to compel, despite evident
certification requirement "must be taken
seriously." Imbody v. C & R Plating Corp.,
No. 1:08-CV-218, 2010 WL 3184392, at*l (N.D. Ind. Aug. 10,
2010). It is a deliberate imperative for the parties to
confer outside of the courthouse and seek a resolution to
discovery disputes without the intervention of the court.
"What matters is that there is a true-back-and-forth
dialogue." Vukadinovich v. Hanover Cmty. Sch.
Corp., No. 2:13-CV-144-PPS-PRC, 2014 WL 667830, at *3
(N.D. Ind. Feb. 20, 2014). In situations where certification
of good faith conferencing is ambiguous and where, as here,
the only evidence that the parties conferred is in the form
of exchanged letters, courts have been unwilling to decipher
letters between counsel to conclude that the requirement has
been met. E.g. Ross v. Citifinancial, Inc., 203
F.R.D. 239, 240(S.D.Miss. 2001).
looming discovery deadline can be sufficient to waive the
requirements of a meet and confer rule." Amatangelo
v. Nat'l Grid USA Serv. Co., No. 04-CV-246S(F), 2007
WL 4560666, at *5 (W.D.N.Y. Dec. 18, 2007). Here, however,
the discovery deadline had been extended multiple times,
resulting in an almost two-year discovery period. If the
parties failed to confer, as the ...