United States District Court, E.D. Wisconsin
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)
PAMELA PEPPER United States District Judge
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.
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.
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.
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.
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.)
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.
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.
Plaintiff's Motion to Alter or Amend Judgment (Dkt.
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.
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).
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.
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 ...