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Brooks v. Complete Warehouse & Distribution LLC

United States District Court, E.D. Wisconsin

May 30, 2017

LARRY DONNELL BROOKS, Plaintiff,
v.
COMPLETE WAREHOUSE & DISTRIBUTION LLC, JOHN ARCURI, MIKE MILLER, RON MALVIC, REBECCA VUCKOVIC, JIM HANSON, and RONALD NEUMTH, Defendants.

          ORDER DENYING PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT (DKT. NO. 43) AND DENYING PLAINTIFF'S MOTION TO ENLARGE RECORD ON APPEAL (DKT. NO. 50)

          HON. PAMELA PEPPER United States District Judge

         After this court granted the defendants' motion to dismiss for failure to state a claim, the plaintiff filed a motion to alter or amend judgment, dkt. no. 43, a supporting brief, dkt. no. 44, a notice of appeal, dkt. no. 45, and a motion to enlarge the record on appeal, dkt. no. 50.

         The plaintiff amended his complaint three times during the twenty-four months that his case was pending. Despite this fact, the plaintiff failed to file a complaint that stated a viable federal claim. While the plaintiff's motion to alter or amend judgment is extensive, and consists mostly of quotes from the court's order granting judgment on the pleadings, the final paragraph suggests that the plaintiff believes that the court should have placed more weight on his Rule 26(f) plan than on his complaint. Dkt. No. 44 at 10. The plaintiff also cites a Ninth Circuit case regarding consolidation, and Rule 42(b), although it is not clear what the plaintiff believes this court should have consolidated. Because the plaintiff has not established a basis for altering or amending the judgment or enlarging the record on appeal, the court will deny both motions.

         A. Procedural History

         On May 11, 2015, the plaintiff filed a complaint against Complete Warehouse & Distribution LLC and various individual defendants, alleging various causes of action related to racial discrimination. Dkt. No. 1. The court granted in part the plaintiff's motion for leave to proceed in forma pauperis, required the plaintiff to pay a $100 filing fee, and denied without prejudice his motion to appoint counsel. Dkt. No. 6. A couple of months later, the plaintiff amended his complaint. Dkt. No. 7. Three months later, the court granted the plaintiff leave to amend the complaint, and denied without prejudice his second motion for appointment of counsel. Dkt. No. 9.

         Following the December 14, 2015 scheduling conference, the plaintiff filed another amended complaint, listing seven causes of action. Dkt. No. 16. The court gave the plaintiff permission to file this second amended complaint. The court stated, however, that because the first and second amended complaints each had consisted of only of a one-paragraph list of causes of action, without including any facts explaining what it was the plaintiff asserted that the defendants had done, it was going to require the plaintiff to file a third amended complaint. Dkt. No. 17. The court required the plaintiff to file a third amended complaint because it concluded that it would be an “insurmountable task” for the defendants to figure out how to respond to the second amended complaint. Id. at 3. The court gave the plaintiff specific instructions regarding how to prepare the third amended complaint, along with a clean complaint form. Id. The plaintiff timely filed the third amended complaint. Dkt. No. 19.

         The defendants answered the third amended complaint, dkt. no. 20, and the court conducted the Rule 16 scheduling conference, dkt. no. 21. About forty-five days later, however, the defendants filed a motion to dismiss, or alternatively, a motion for summary judgment. Dkt. No. 22. (The defendants asked the court to give the plaintiff additional time to respond after realizing they had sent their motion to the wrong address. Dkt. No. 28. The court granted that motion. Dkt. No. 29.)

         Three days after the deadline, the plaintiff filed a motion for default and alternative motion for default judgment. Dkt. No. 31. The plaintiff also filed a “motion to share exhibits, ” asking that the court share twenty-four exhibits with the defendants, because he did not have the money to copy them. Dkt. No. 30. Assuming that the plaintiff did not understand that he needed to respond to the motion to dismiss, the court denied the motion for default and default judgment, but granted the plaintiff an additional extension of time to respond to the motion to dismiss/motion for summary judgment. Dkt. No. 33. The plaintiff finally did file a response (which the court received four days after the deadline it had set), dkt. no. 35, and the defendants filed a reply, dkt. no. 36.

         The court construed the defendants' motion as a motion for judgment on the pleadings under Rule 12(c) and granted it. Dkt. No. 41. The court entered judgment on January 13, 2017. Dkt. No. 42.

         B. Plaintiff's Motion to Alter or Amend Judgment (Dkt. No.43)

         On February 8, 2017, the plaintiff timely filed a motion to alter or amend judgment under Rule 59(e) of the Federal Rules of Civil Procedure; in support of the motion, he cited “pretrial conference error.” Dkt. No. 43. Two days later, the plaintiff filed a notice of appeal. Dkt. No. 45.

         To prevail on a motion to alter or amend judgment under Rule 59(e), the “movant must present either newly discovered evidence or establish a manifest error of law or fact.” Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citing LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995)). “Manifest error” means the “wholesale disregard, misapplication, or failure to recognize controlling precedent, ” not simply disappointment of the losing party. Id. Rule 59 is not a tool for parties to relitigate arguments or present new evidence that a party could have raised initially. Sigsworth v. City of Aurora, 487 F.3d 506, 512 (7th Cir. 2007). The decision to grant a Rule 59(e) motion lies in the sound discretion of this court. See Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996).

         The plaintiff's Rule 59(e) motion does not describe any newly discovered evidence. Rather, he argues that the court should have considered his Rule 26(f) plan as the complaint, and should have performed the duties a court is required to perform at the pretrial conference. Dkt. No. 44 at 10.

         The plaintiff filed two complaints before he filed his Rule 26(f) plan. The court did not review the initial complaint, dkt. no. 1, because the plaintiff filed a first amended complaint on the same day he paid the filing fee, dkt. no. 7. The defendants answered the first amended complaint. Dkt. No. 11. The plaintiff then filed his Rule ...


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