United States District Court, E.D. Wisconsin
JOSEPH E. BUCK, JR., Plaintiff,
MERCURY MARINE, Defendant.
GRANTING PLAINTIFF'S EMERGENCY MOTION FOR LEAVE TO FILE
PLAINTIFF'S RESPONSE TO DEFENDANT'S STATEMENT OF
UNDISPUTED FACTS (DKT. NO. 28) AND PLAINTIFF'S AMENDED
EMERGENCY MOTION FOR LEAVE TO FILE PLAINTIFF'S RESPONSES
TO DEFENDANT'S STATEMENT OF UNDISPUTED FACTS UNDER RULE
6(b)(1)(B) (DKT. NO. 29)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
August 21, 2017, the defendant filed a motion for summary
judgment, dkt. no. 18, accompanied by its statement of
undisputed facts in support of the motion, dkt. no. 20. Civil
L.R. 56(b)(2)(B) requires that a party opposing summary
judgment must file, along with its opposition brief,
responses to the moving party's proposed material facts;
the deadline for filing those responses is the same as the
deadline for filing the opposition brief. Here, the plaintiff
timely filed his opposition brief, but did not file the
required responses to the proposed findings of fact.
October 4, 2017, the plaintiff filed a motion captioned
“Plaintiff's Emergency Motion for Leave to File
Plaintiff's Response to Defendant's Statement of
Undisputed Facts.” Dkt. No. 28. On the same day, the
plaintiff filed his tardy responses to the defendant's
proposed findings of material fact. Dkt. No. 27.
court assumes that the plaintiff put the word
“emergency” in the caption of the motion because
counsel, realizing that he had inadvertently missed a
deadline, wanted to get the request for leave to file in
front of the court as soon as possible. The court has a
procedure for getting a motion to the court's attention
quickly: the Civil L.R. 7(h) expedited, non-dispositive
motion procedure. That rule says that if a party wants to use
the expedited, non-dispositive motion procedure, one must put
in the caption of the motion “Rule 7(h) Expedited,
Non-Dispositive Motion to . . . .” Without that magic
language, the court will follow the usual motion practice,
and will hold a motion for twenty-one days to allow the
opposing party to respond. Because the plaintiff did not use
the Rule 7(h) language, the court held this motion to await a
also may draw a true “emergency” motion to the
court's attention by calling chambers. If a party files a
motion on Monday at 3:45, the court may not see that motion
until some time on Tuesday, because of the way the Case
Management/Electronic Case Filing software generates case
reports. The court did not receive a call to chambers, which
is another reason that it held this motion.
next day (October 5, 2017), the court received an amendment
to that “emergency” motion. Dkt. No. 29. In the
amendment, the plaintiff cited case law, and indicated that
he would not object to the court giving the defendant
additional time to reply to the responses. Id. That
same day, the court received an amended declaration from the
plaintiff's counsel. Dkt. No. 30.
weeks after the plaintiff filed the original emergency
motion, the plaintiff filed a proposed order granting the
motion. Dkt. No. 31. This did not spur the court to rule on
the motion because, as indicated above, the court was giving
the defendant the time required by the local rules to
respond. That time expired on October 26, 2017.
the press of the court's calendar, the court was not able
to review these various pleadings immediately. Perhaps
concerned that the court had not ruled on the motion, on
November 13, 2017, counsel for the plaintiff filed an amended
proposed order granting the motion for leave to file the
response. Dkt. No. 32. This means that the court now has on
the docket two “emergency” motions for leave to
file, an amended declaration, a proposed order and an amended
court will grant the plaintiff's motions for leave to
file his responses to the defendant's findings of fact.
The court understands that sometimes things slip through the
cracks. The court has written this order to suggest that in
the future, if the plaintiff's counsel has another
problem of this sort, he use the Rule 7(h) procedure (if he
really, really needs the court to look at his motion sooner
rather than later), or call chambers (if it is a true
emergency-a motion that, if the court doesn't rule on it
in a few days, could negatively impact a party's legal
court also will give the defendant time to supplement its
reply in support of its proposed findings, should it choose
to do so. The defendant filed its reply on October 4, 2017 at
4:46 p.m. (dkt. no. 26); the plaintiff filed his responses at
5:53 the same day (dkt. no. 27). It is possible that the
defendant may wish an opportunity to directly address some of
the plaintiff's responses. The court will give the
defendant fourteen days to supplement its responses, if it
chooses to do so.
with regard to scheduling: The court set a final pretrial
conference for December 20, 2017 at 12:30 p.m. by telephone.
The trial is scheduled for January 8, 2018 at 9:00 a.m. Given
the additional time the court is giving the defendant, the
court will not know whether briefing is completed on the
summary judgment motion until December 11, 2017-about a week
before the final pretrial conference. It is likely that the
court will not be able to rule on the motion for summary
judgment in time for the ruling to do the parties any good
before the January 8, 2018 trial date. For the moment, the
court will leave the dates on the calendar, but once the
briefing period has concluded, the court may decide to
convert the December 20, 2017 hearing into a status
conference, and to remove the January 8, 2018 trial date.
court GRANTS the plaintiffs emergency motion
for leave to file plaintiffs responses to defendant's
statement of undisputed facts. Dkt. No. 28.
court GRANTS the plaintiffs amended
emergency motion for leave to file plaintiffs responses to
defendant's statement of ...