United States District Court, E.D. Wisconsin
THOMAS E. SLOTTKE, SR, Plaintiff,
STATE OF WISCONSIN DEPARTMENT OF INDUSTRY, LABOR, AND HUMAN RELATIONS, DEPARTMENT OF WORKFORCE DEVELOPMENT, THOMAS R. HARRINGTON, OWNER NATIONAL TECHNOLOGIES, AND FIREMAN'S FUND INSURANCE COMPANY, Defendants.
ORDER DENYING PLAINTIFF'S DISCOVERY MOTIONS (DKT.
NOS. 7, 8) AND STAYING DISCOVERY
PAMELA PEPPER United States District Judge.
plaintiff, proceeding without a lawyer, filed a complaint
relating to an injury he sustained in 1991 and subsequent
worker's compensation proceedings. Dkt. No. 1. Defendants
Harrington and Fireman's Fund Insurance Company have
moved to dismiss the plaintiff's claims against them.
Dkt. No. 3. The plaintiff filed a brief in opposition to the
defendants' motion, dkt. no. 6, along with two documents
captioned “Motion for Discovery, ” which appear
to be the written discovery requests that he previously
served on the defendants, dkt. nos. 7, 8. In his response to
the defendants' motion, the plaintiff asks the court to
grant these motions, and to compel witnesses (identified on
an exhibit to the complaint) to appear in court. Dkt. No. 6
at 2. The court will deny the plaintiff's motions for
initial matter, the court notes that the plaintiff's
requests for discovery are premature. In federal court, after
a plaintiff files his complaint, the defendants may either
file an answer to the complaint, or file a motion to dismiss.
If the defendants file an answer, the court holds a hearing
to set a schedule for conducting discovery and filing
motions. If the defendants file a motion to dismiss, the
court resolves that motion before holding a scheduling
hearing. The court has not yet held a scheduling hearing to
set a schedule for discovery and for filing motions, so it is
too early for the plaintiff to have served formal discovery
as in this case, a defendant files a motion to dismiss for
failure to state a claim instead of filing an answer, that
defendant is arguing that the case does not have merit, and
that the court should dismiss it before the parties spend
more time and expense working on it. That is why many
district courts-perhaps most-don't set a discovery
schedule until after ruling on the motion to dismiss; if the
court grants the motion to dismiss, the parties would have
wasted time and expense conducting discovery. District courts
have broad discretion in supervising discovery matters and
deciding discovery motions. E.g., Hunt v.
DaVita, Inc., 680 F.3d 775, 780 (7th Cir. 2012);
Cent. States., Se. & Sw. Areas Pension Fund v. Waste
Mgm't of Michigan, Inc., 674 F.3d 630, 636 (7th Cir.
2012). “Limitation or postponement of discovery may be
appropriate when a defendant files a motion to dismiss for
failure to state a claim on which relief can be granted. The
mere filing of the motion does not automatically stay
discovery . . . . But such stays are granted with substantial
frequency.” In re Sulfuric Acid Antitrust
Litig., 231 F.R.D. 331, 336 (N.D. Ill. 2005) (citations
omitted). “Following the Supreme Court's recent
adoption of a more rigorous pleading standard to spare
defendants the costs of discovery into meritless claims, such
stays issue with even greater frequency.”
Dillinger, L.L.C. v. Electronic Arts, Inc., No.
1:09-cv-1236, 2010 WL 1945739, *1 (S.D. Ind. May 11, 2010)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
559 (2007)). “[S]ome districts have a rule that
prohibits discovery during the pendency of . . . a motion [to
dismiss].” In re Sulfuric Acid, 231 F.R.D. at
court also notes that the plaintiff has asked the court to
“compel” an “attached witness list”
into court. Dkt. No. 6 at 2. There was no list of witnesses
attached to that request, and currently, there is no court
hearing scheduled on the calendar that any witnesses could be
compelled to attend. But even if there were, the plaintiff
has not complied with the procedure for filing a motion to
compel. Federal Rule of Civil Procedure 37 allows a court to
compel discovery only if the party seeking discovery has made
a legitimate request, and the other side has failed to comply
with the federal rules governing that request. So: a party
first must make an appropriate discovery demand, and only if
the other side fails to comply with that demand in accordance
with the rules may the party file a motion to compel. This
court's local Rule 37 requires that before any party
files a motion to compel, that party must
“meet-and-confer” with the other side, and try to
work out their differences. The plaintiff hasn't attached
any certification showing that he met and conferred with the
defendants before asking the court to compel witnesses to
come to court.
these reasons, the court will deny the plaintiffs motions for
discovery, and will stay discovery until after it rules on
the motion to dismiss. If the court denies the
defendants' motion to dismiss, the defendants will answer
the complaint, and then the court will set a hearing for the
purpose of setting a schedule for conducting discovery and
filing dispositive motions.
court DENIES the plaintiffs motions for discovery (Dkt. Nos.
7, 8) and orders that discovery is STAYED ...