United States District Court, E.D. Wisconsin
GRANTING DEFENDANT SUSAN NYGREN'S MOTION FOR LEAVE TO
FILE SUPPLEMENTAL SUMMARY JUDGMENT ARGUMENT (DKT. NO. 65),
VACATING THAT PORTION OF ITS SEPTEMBER 20, 2016 SUMMARY
JUDGMENT ORDER DENYING THE DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AS TO COUNT IV RELATING TO SUSAN NYGREN IN HER
INDIVIDUAL CAPACITY (DKT. NO. 56), GRANTING SUMMARY JUDGMENT
IN FAVOR OF NYGREN IN HER INDIVIDUAL CAPACITY AS TO COUNT IV,
AND DISMISSING SUSAN NYGREN AS A DEFENDANT
PAMELA PEPPER United States District Judge
November 11, 2016, defendant Susan Nygren filed a motion for
leave to file additional summary judgment argument. Dkt. No.
65. She also filed a brief containing new summary judgment
arguments. Dkt. No. 66. She filed these documents after the
court denied her original motion for summary judgment on the
individual capacity portion of Count IV of the complaint
(alleging an equal protection claim against her in her
official and individual capacities), dkt. no. 56, and denied
her motion to reconsider that ruling, dkt. no. 61. Defendant
Nygren now has fleshed out her motion as to the individual
capacity equal protection claim in Count IV, and the court
will grant summary judgment in her favor as to that claim and
dismiss defendant Nygren.
court will not recount the full history of the case. The
reader may find that full history in the court's
September 20, 2016 order granting in part and denying in part
the defendants' motion for summary judgment. Dkt. No. 56.
The following facts are relevant to this order.
court explained in the original summary judgment decision
that in Count IV of her complaint, the plaintiff alleged that
Nygren, individually and in her official capacity, had
violated the plaintiff's Fourteenth Amendment right to
equal protection. Dkt. No. 56 at 5 (citing dkt. no. 1 at
¶¶41-44). The court recounted how, in their summary
judgment brief, the defendants had argued “that Count
IV, to the extent that it asserts a claim against Nygren in
her official capacity, is barred by the Eleventh
Amendment.” Id. at 7 (citing dkt. no. 31 at
3). The court found that the plaintiff had not disputed the
defendants' official capacity argument. Id.
(citing the plaintiff's opposition brief, dkt. no. 47 at
28). For that reason, the court granted summary judgment in
favor of Nygren on Count IV “to the extent that Count
IV asserts a claim against Nygren in her official
capacity.” Id. at 8.
footnote to that sentence, however, the court stated,
“Because the defendants sought summary judgment on
Count IV only to the extent that that count alleged an
official-capacity claim against Nygren, dkt. no. 31 at 24-26,
the court will allow the plaintiff to proceed on [the equal
protection] claim against Nygren in her personal capacity.
See also Dkt. No. 50 at 13.” Id. at
after the court issued that decision, the defendants filed a
motion for reconsideration, asking the court to grant summary
judgment in Nygren's favor on the equal
protection/individual capacity claim, as well. Dkt. No. 59.
The defendants filed that motion under Civil L. R. 7(h),
which allows parties to follow an expedited motion schedule
if they are seeking non-dispositive relief. Id. The
court denied the motion, holding that a motion to reconsider
a denial of a motion for summary judgment was not a
“non-dispositive” motion, and thus that Rule 7(h)
was not the appropriate mechanism for seeking the relief
defendant Nygren requested. Dkt. No. 61.
status conference about a month later, defense counsel told
the court that defendant Nygren planned to file a motion
asking for leave to file a partial motion for summary
judgment on the question of whether the plaintiff ought to be
able to proceed on her equal protection claim against Nygren
in her individual capacity. Dkt. No. 64. The court gave
Nygren a deadline of November 11, 2016 by which to file that
motion, with objections due by December 12 and replies by
January 6, 2017. Id. at 1.
FOR LEAVE TO FILE SUPPLEMENTAL SUMMARY JUDGMENT
as she had told the court at the status conference that she
would do, filed a motion for leave to file a brief containing
additional summary judgment arguments. Dkt. No. 65. In
support, Nygren explains that the defendants had intended
their original summary judgment motion and brief to address
all of the plaintiff's claims against all of the
defendants, including the plaintiff's equal protection
claim against Nygren in her individual capacity. Id.
at 2. She states that after the court ruled on the summary
judgment motion, she realized that the court did not
understand the motion to request summary judgment on the
individual capacity portion of Count IV. Id.
Nonetheless, she points to various phrases in the original
summary judgment pleadings which, she argues, should have
tipped the court off that she was seeking summary judgment on
that claim. Id. at 2-4.
also argues that if the court allows her to a brief
containing additional argument on just this claim, the
plaintiff would not be prejudiced; the parties already have
briefed the issues, and the court already has held that the
plaintiff did not submit sufficient evidence to support her
claim that the DOC (Nygren's employer) subjected the
plaintiff to sexual harassment or a hostile work environment
based on her sex. Id. at 4. She points out that this
new brief would not require the court to find any additional
facts, and that it wouldn't delay the proceedings because
the trial date is not until May 8, 2017. Id.
Finally, she argues that if the court were to grant her
motion for summary judgment on the equal protection claim
against her, it would avoid jury confusion, because such a
decision would leave only a single Title VII claim against
the Department of Corrections for a jury to decide.
Id. at 5. For all of these reasons, Nygren argues,
the court should grant her leave to file a brief containing
additional summary judgment arguments as to the individual
plaintiff did not oppose the motion to file a brief
containing additional argument. While the court does not
agree with Nygren that the court should have had to piece
together oblique phrases here and there in the original
pleadings to cobble together a conclusion that Nygren
intended to seek summary judgment on the equal protection
claim against her individually, the court does agree
that the plaintiff will not be prejudiced by the supplemental
arguments, that those arguments don't cause the court to
have to make any additional factual findings, and that they
won't delay the trial of the case. For all of these
reasons, the court will grant Nygren's motion to file the
brief containing additional summary judgment arguments. Dkt.