United States District Court, E.D. Wisconsin
ORDER DENYING PLAINTIFF'S MOTION TO POSTPONE
FILING OF SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS'
MOTIONS FOR SUMMARY JUDGMENT (DKT. NO. 53)
PAMELA PEPPER, United States District Judge.
plaintiff, who is representing himself, has filed a motion
asking the court to “defer considering motion for
summary judgment until all facts plaintiff needs to file
summary judgment or respond to the defendants' motions
are made available to plaintiff.” Dkt. No. 54 at 1.
request is really a motion asking the court to reconsider its
September 6, 2016 decision granting the defendants'
motion for a protective order. Dkt. No. 48. In that decision,
the court held that the defendants did not have to respond to
the plaintiff's discovery requests, which he had served
just days before the discovery deadline. Id. at 3.
The court affirmed that decision in a separate order that it
entered on September 12, 2016. Dkt. No. 51.
plaintiff now argues that he is “prevented from filing
[a] summary judgment motion or responding to defendants'
summary judgment motions without [his] discovery requests
being granted.” Dkt. No. 54 at 1. He relies on Fed. R.
of Civ. Pro. 56(d), which states:
nonmovant shows by affidavit or declaration that, for
special reasons, it cannot present facts essential to
justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to
take discovery; or
(3) issue any other appropriate order.
court begins by noting that the deadline to file dispositive
motions was August 17, 2016. Dkt. No. 24. So it is too late
for the plaintiff to file his own motion for summary
judgment; that deadline expired more than a month ago.
the defendants motions, defendant Stonefeld filed a motion
for judgment on the pleadings or, in the alternative, a
motion for summary judgment on August 16, 2016 (Dkt. No. 40),
and defendant Felten filed a motion for summary judgment the
next day (Dkt. No. 43). That means that the plaintiff's
responses to those motions were due on September 16 and 17,
respectively. According to the date on the plaintiff's
motion, he prepared his motion on September 14, 2016, just
days before his responses were due. The court received the
plaintiff's motion on September 19, 2016, after
his responses were due.
court will deny the plaintiff's motion for two reasons.
First, he has not shown that any special reasons
prevent him from presenting essential facts in support of his
response to defendants' motions. The reason that the
plaintiff does not have the discovery he seeks is because he
served his discovery requests late. The court has explained
in two separate orders that the plaintiff had ample time to
request an extension of the discovery deadline, but did not.
The fact that the plaintiff does not have the documents and
information he indicates that he needs is the result of his
failing to timely ask for them.
plaintiff asserts that he has been diligently pursuing his
case and that the only reason he didn't request an
extension is because he misunderstood the court's
scheduling order, which gave the date by which the parties
were to complete discovery; the plaintiff thought
the deadline was the date by which he had to serve
discovery. This argument fails. In early August, the
defendants filed a motion for a protective order, arguing
that the plaintiff's discovery requests were untimely.
Rather than immediately contacting the court to explain his
confusion about the scheduling order and request an extension
of the discovery deadline, the plaintiff waited two
weeks before filing a motion seeking an
extension of the deadline by which he was to respond to the
defendants' motion for a protective order (he did not
request an extension of the discovery deadline). Dkt. No. 49.
time, the court already had ruled on the defendants'
unopposed motion (the plaintiff's motion for an extension
of time arrived at the court two weeks after the
deadline for his response) and both defendants had filed
dispositive motions. In denying the plaintiff's motion
for an extension of time, the court explained that,
“when a party realizes that he is going to need more
time, he needs to ask for it immediately.” Dkt. No. 51.