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Wilbur v. County of Waukesha

United States District Court, E.D. Wisconsin

July 28, 2016

GENE WILBUR Plaintiff,


          HON. PAMELA PEPPER U.S. District Judge

         Plaintiff 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.

         The 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.


         The 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.

         The 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.

         On June 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.


         Procedurally, 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.

         a. The Plaintiffs Motion To Compel Lacks The Proper Certification

         Civil 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.

         Movants 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.

         The 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 misunderstandings.

         The 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).

         "A 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 ...

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