United States District Court, E.D. Wisconsin
AND ORDER DENYING AS MOOT PLAINTIFF'S MOTION TO STRIKE
(DKT. NO. 129), DENYING PLAINTIFF'S MOTION FOR RELIEF
FROM JUDGMENT (DKT. NO. 131), DENYING PLAINTIFF'S MOTION
TO STRIKE (DKT. NO. 132), DENYING PLAINTIFF'S MOTION FOR
DEFAULT JUDGMENT (DKT. NO. 134), GRANTING PLAINTIFF'S
MOTION FOR EXTENSION OF TIME (DKT. NO. 138), GRANTING THE
MEDICAL DEFENDANTS' MOTION TO AMEND/CORRECT PROPOSED
FINDING OF FACT (DKT. NO. 153), AND DIRECTING PLAINTIFF TO
FILE HIS RESPONSE TO THE MEDICAL DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT ON OR BEFORE AUGUST 11, 2017
PAMELA PEPPER United States District Judge.
February 13, 2017, the court issued an order resolving all of
the non-dispositive motions pending at that time. Dkt. No.
120. Since then, the plaintiff has filed several new motions.
Dkt. Nos. 129, 131, 132, 134, and 138. The Medical Defendants
also have filed a motion. Dkt. No. 153.
February 9, 2017, the County Defendants filed an expedited
motion asking the court to extend their deadline to file
their reply in support of their motion for summary judgment.
Dkt. No. 115. The court granted that motion in its February
13, 2017 order. Dkt. No. 120. On February 16, 2017, the court
received from the plaintiff an objection to or,
alternatively, a motion to strike the Racine County
defendants' motion for extension of time to file their
reply brief in support of their motion for summary judgment.
Dkt. No. 129. In the motion, the plaintiff argued that
counsel for the County Defendants was “crooked, ”
and was trying to make the plaintiff look bad by claiming
that the plaintiff's voluminous briefs required more time
to review. Id. at 1-2. The plaintiff claimed that
counsel had been “on the phone for days at a time,
” in what he believed was a conspiracy, talking to this
court about causing problems in the plaintiff's other
cases. Id. at 2. The plaintiff concluded by asking
the court to grant summary judgment in his favor against the
County Defendants. Id. at 3. It appears the
plaintiff prepared this motion before he received the
court's February 13, 2017 order.
February 24, 2017, the court received from the plaintiff a
motion for default judgment. Dkt. No. 134. In this motion, he
returned to the issues he raised in the February 16, 2017
objection/motion to strike. He again took issue with the
reasons the County Defendants gave for requesting the
extension of time to file their reply, calling the reasons
(the voluminous nature of the plaintiff's briefs and the
difficulty in reading them) a “deliberate lie.”
Id. at 2. He asked the court to enter judgment in
his favor because of his belief that the County Defendants
misled the court into giving them more time to reply.
court has not had telephone conversations with counsel for
the County Defendants in this or any of the plaintiff's
other cases. For the court to speak with counsel for the
County Defendants without having the plaintiff on the line
would constitute an ex parte contact; the court may
not have ex parte discussions with parties to a
County Defendants did ask for more time to reply, and they
did base that request on the fact that the plaintiff's
summary judgment materials were voluminous and hard to read.
Dkt. No. 115. The plaintiff did file voluminous
materials, and it is difficult to read documents
written with a rubber pencil, especially when the documents
then are scanned into the court's electronic docketing
system (which sometimes can make an image a bit blurry). That
is not a criticism of the plaintiff. It is just a statement
of fact, and an explanation of why the County Defendants
needed additional time to respond. The court gave them that
time, dkt. no. 120, and the County defendants filed their
reply materials on February 15, 2017, dkt. no. 121. The
County Defendants did not lie to the court, or mislead it
into giving them additional time, and so there was no basis
for the court to deny them that additional time, or to punish
them by entering default judgment in the plaintiff's
the County Defendants had been late in filing their reply
materials, the court would not grant the plaintiff's
request for default judgment. Reply materials are optional;
parties aren't required to file them. Civil Local Rule
56(b)(3) provides that “[a] moving party may
file [reply materials] within 14 days of the service of the
opposing party's materials under subsection
(b)(2).” Civil L. R. 56(b)(3) (E.D. Wis.) (emphasis
added). In contrast, the provisions in Local Rule 56(b)(1)
and (b)(2) contain the word “must.” Civil L. R.
56(b)(1) and (2) (E.D. Wis.).
the plaintiff asks the court to direct counsel for the County
Defendants to “enter into an mediation consistent with
Section 655.43 of the Supreme Court of Wisconsin . . .
.” Dkt. No. 134 at 3. The court will deny this request.
Wis.Stat. §655.43 states, “The claimant and all
respondents named in a request for mediation filed under s.
655.44 or 655.445 shall participate in mediation under this
subchapter.” This case is not a health care suit under
the Health Care Liability and Injured Patients and Families
Compensation law of Wisconsin; §655.43 does not apply
here. The court will deny both the motion to strike the
County Defendants' motion for an extension of time, and
the plaintiff's motion for default judgment.
two motions the court received on February 21, 2017 is an
expedited motion for relief from judgment. Dkt. No. 131. The
plaintiff points out that the caption of the court's
February 13, 2017 order required him to file his response to
defendant Derek Bergum's motion for summary judgment by
March 1, 2017, but that he already had filed that response.
The plaintiff is correct-the court had received the
plaintiff's response to Bergum's motion on February
2, 2017. Dkt. No. 109. The court apologizes to the plaintiff
for its error-the body of the February 13, 2017 order
reflects the court's acknowledgement that the plaintiff
responded to Bergum's motion for summary judgment, and
its intention to give the plaintiff until March 1, 2017 to
respond to the motion for summary judgment filed by Nurse
Leslie and Nurse Nicole. The court will deny the
plaintiff's motion for relief from judgment as moot; he
does not need relief from the order, because he already has
complied with it.
the motions the plaintiff filed since February 13, 2017
relate to a mix-up with regard to the Medical Defendants'
motion for summary judgment. A bit of history is helpful. The
Medical Defendants filed their motion for summary judgment on
December 21, 2016. Dkt. No. 92. The plaintiff never has filed
a response to that motion. On February 9, 2017, however, the
Medical Defendants filed a motion asking the court to give
them an extension of time to reply-despite the fact that the
plaintiff had not responded. Dkt. No. 117. In its February
13, 2017 order, the court granted that request (not realizing
that the plaintiff had not filed a response to the Medical
Defendants' motion for summary judgment). The
post-February 13, 2017 motions relate to the confusion that
arose out of this set of circumstances.
February 21, 2017 motion in which he asked for relief from
the court's order requiring him to respond to
Bergum's motion for summary judgment, dkt. no. 131, the
plaintiff also indicated that he never had received the
motion for summary judgment from Nurse Leslie and Nurse
Nicole (even though their certificate of service, dkt. no.
96, indicates that they mailed the motion to the plaintiff).
The plaintiff asked the court to direct the defendants to
send him a ...