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Pettengill v. Cameron

United States District Court, W.D. Wisconsin

March 28, 2018

WILLIE R. PETTENGILL, CHRISTOPHER L. PETTENGILL, BRIDGET R. PETTENGILL and WILLIE R. PETTENGILL, as next friend of ENP, a minor, Plaintiffs,
v.
HON. BRODERICK CAMERON, HON. STEVEN R. CRAY, GAIL PROCK, KERI HOEL, DEBORAH ASHER, RITA RAIHLE, LAUREN OTTO, PAMELA VEITH, ROBERT THORSON, NATASHA HENNING, ESTATE OF NANSTAD, Deceased, TERESA NANSTAD and DOES 1-20, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB DISTRICT JUDGE.

         On August 30, 2017, plaintiff Willie R. Pettengill, his father Christopher L. Pettengill, and his mother Bridget R. Pettengill filed this action arising out of a guardianship and family court matter involving the custody and placement of Willie Pettengill's and defendant Natasha Henning's minor child. Plaintiffs named as defendants two judges, two guardians ad litem, six attorneys, the mother of the minor, the maternal grandmother, the estate of the maternal grandfather and 20 Doe defendants, and alleged various torts, including violations of the United States Constitution, conspiracy, sexual assault and battery and malpractice.

         Between October 12 and October 17, 2017, all defendants moved for dismissal on various grounds, with the exception of defendant Natasha Henning, for whom plaintiffs never filed proof of service. On October 18, November 1 and November 8, 2017, the court requested that plaintiffs' counsel provide proof of service for defendants as required by Federal Rule of Civil Procedure 4. Plaintiffs failed to do so. On November 8, 2017, Magistrate Judge Crocker entered an order stating that plaintiffs had failed to respond to the motions to dismiss, their deadline for doing so had passed and all of the motions would be taken under advisement by the court, which would not accept late-filed responses from plaintiffs. Dkt. #31. Plaintiffs did not move for reconsideration of Judge Crocker's order or otherwise request leave of the court to file their responses immediately. Then, between November 9 and November 30, 2017, three parties moved for sanctions against plaintiffs with each complying with the “safe harbor” requirements of providing plaintiffs 21 days to withdraw their frivolous claims. Plaintiffs did not respond to the motions for sanctions or attempt to communicate with the court in any way.

         On January 30, 2018, I entered an order granting the unopposed motions to dismiss filed by defendants, as well as the unopposed motions for sanctions filed by defendants Pamela Veith, Lauren Otto and Deborah Asher. Dkt. #46. I concluded that plaintiffs had waived any arguments against dismissal by failing to respond in any way to the dismissal motions and, in any event, plaintiffs' claims were barred by the doctrines of judicial immunity, quasi-judicial immunity, Eleventh Amendment immunity, issue preclusion, Rooker-Feldman and the domestic relations exception, or their allegations were too vague and conclusory to support claims for relief.

         On February 9, 2018, in their first communication with the court since filing this case in August 2017, plaintiffs filed a motion for reconsideration of the dismissal and sanctions order under Federal Rules of Civil Procedure 59(e) and 60(b), arguing that I misapprehended the facts and controlling law. Dkt. #52. For the reasons below, I am denying plaintiffs' motion. I am granting defendants' motions for sanctions, as discussed below.

         OPINION

         A. Plaintiffs' Motion for Reconsideration

         Plaintiffs cite Federal Rules of Civil Procedure 59(e) and 60(b) as the basis for their motion for reconsideration. “To prevail on a Rule 59(e) motion to amend judgment, a party must ‘clearly establish' (1) that the court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded entry of judgment.” Blue v. Hartford Life & Accident Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012) (citations omitted). See also Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013). Under Rule 60(b), a court may relieve a party from a final judgment for “mistake, inadvertence, surprise, or excusable neglect, ” and “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(1) and (6). Relief under Rule 59(e) or 60(b) is “an extraordinary remedy” reserved for the “exceptional” case. McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir. 2000) (Rule 60(b)); Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008) (Rule 59(e)). Motions for relief from judgment are “not appropriately used to advance arguments or theories that could and should have been made before the district court rendered a judgment, or to present evidence that was available earlier.” Miller v. Safeco Ins. Co. of America, 683 F.3d 805, 813 (7th Cir. 2012).

         Plaintiffs make three primary arguments in their motion for reconsideration: (1) they failed to file responses to defendants' various motions because a paralegal at plaintiffs' counsel's law firm was injured in a car accident; (2) the court erred in holding that plaintiffs conceded the merits of defendants' arguments by failing to oppose the motions to dismiss; and (3) the court erred by concluding that plaintiffs' claims should be dismissed under various doctrines. However, none of plaintiffs' arguments are well-developed, supported by any evidence or sufficient to satisfy the standards for obtaining relief under Rules 59(e) or 60(b).

         First, plaintiffs state that a paralegal who had been working on this case was in a serious car accident on October 27, 2017. Although I am sympathetic to counsel's situation, the accident is not a valid basis for relief under Rule 59(e) or 60(b), particularly when counsel has provided no evidence, such as a declaration or other verification, to support his statement about the accident. Moreover, counsel has not attempted to explain why the accident prevented him from communicating with the court or defendants about his circumstances, such as by filing a motion for extension of his briefing deadlines. By the time of the accident, counsel should have been well aware that seven motions to dismiss were pending and the court had asked plaintiffs to file proof of service. Nonetheless, counsel did not file proof of service, any type of response to the dismissal motions or the sanction motions filed later. (Without citing to any evidence, counsel says in his brief that he drafted and sent an opposition brief to one set of defendants but because of a “filing snafu, ” he never e-filed the brief with the court. Plts.' Br., dkt. #52, at 17-18. This is irrelevant, however, because the court cannot consider a brief that is not before it. Moreover, plaintiffs do not attempt to explain why they failed to resubmit the brief after the magistrate judge noted on November 8, 2017, that no opposition had been filed to any of the motions to dismiss.)

         Even accepting as true that the injured paralegal had done considerable work on the case, the accident is not a valid reason for a lawyer to abandon a case, even temporarily, or fail to communicate with the court and opposing counsel. As the court of appeals explained in Harrington v. City of Chicago, 433 F.3d 542, 548 (7th Cir. 2006), when an attorney is going through a “difficult period, ” the attorney “should [] contact[] the district court and opposing counsel to explain his circumstances and to work out amicable solutions, ” rather than simply abandon the case temporarily. Thus, in Harrington, the court rejected the argument that a lawyer's inaction should be excused by the deaths of his sister and father, because he had kept the court and opposing counsel “in the dark” and had failed to seek accommodations through enlargement of deadlines. Id. For similar reasons, it is too late for plaintiffs' counsel to request accommodation based on an accident involving a paralegal at his firm.

         Second, plaintiffs argue that it was error to conclude that they waived any argument against dismissal by failing to respond defendants' motions to dismiss. Plaintiffs argue that even if they did not submit any opposition, I should have reviewed the allegations of their 43-page complaint to determine whether their allegations were sufficient to state a legal claim. Despite plaintiffs' arguments to the contrary, it is well-established that “a party waives an argument by failing to make it.” Hayes v. City of Chicago, 670 F.3d 810, 815 (7th Cir. 2012); Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011); Lekas v. Briley, 405 F.3d 602, 614 (7th Cir.2005). “That is true whether it is an affirmative argument in support of a motion to dismiss or an argument establishing that dismissal is inappropriate.” G & S Holdings LLC v. Continental Casualty Co., 697 F.3d 534, 538 (7th Cir. 2012).

         In this case, each defendant made specific arguments as to why plaintiffs' allegations failed to state plausible claims against him or her. Plaintiffs failed to respond to any of the arguments raised in the seven motions to dismiss, but suggest that it was the court's obligation to make arguments for them. However, “when presented with a motion to dismiss, the non-moving party must proffer some legal basis to support his cause of action.” County.of McHenry v. Insurance ounCo. of the West, 438 F.3d 813, 819 (7th Cir. 2006) (citing Stransky v. Cummins Engine Co., 51 F.3d 1329, 1335 (7th Cir. 1995)). “Our system of justice is adversarial, and our judges are busy people. If they are given plausible reasons for dismissing a complaint, they are not going to do the plaintiff's research and try to discover whether there might be something to say against the defendants' reasoning. An unresponsive response is no response.” Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999). For these reasons, I am not persuaded that it was error to conclude that plaintiffs had conceded the merits of defendants' arguments by failing to oppose them.

         Moreover, as discussed in my previous order, I did review plaintiffs' complaint and concluded that the claims were barred for various reasons, including judicial immunity, quasi-judicial immunity, Rooker-Feldman doctrine, issue preclusion, the domestic relations exception and attempting to sue non-governmental actors under 42 U.S.C. § 1983 and failure to include allegations sufficient to state any other claim. Dkt. #46 at 3-5. Plaintiffs assert that I applied incorrect legal standards when evaluating these doctrines, but plaintiffs make little effort to explain what was incorrect about the court's analysis or to address the merits of defendants' legal arguments. Instead, plaintiffs devote more than 20 pages of their 35-page brief to cutting and pasting portions of their complaint or otherwise summarizing the factual allegations of the complaint. With respect to legal analysis, plaintiffs make assertions such as, “this action is not barred by the Rooker-Feldman doctrine. For an explanation of ...


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