United States District Court, W.D. Wisconsin
ADELMAN District Judge.
Van Ert brought this action under 42 U.S.C. § 1983 and
state tort law against various University of
Wisconsin-Madison officials alleging violations of her First
and Fourteenth Amendment rights, invasion of privacy,
negligence, defamation, and conspiracy. Defendants moved to
dismiss the complaint under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can
be granted. I found that the complaint failed to state a
cognizable claim to relief under federal law and granted
defendants' motion with respect to Van Ert's federal
claims. Pursuant to 28 U.S.C. § 1367(c)(3), I declined
to exercise supplemental jurisdiction over Van Ert's
state-law claims. The Clerk of Court entered final judgment
and closed the case.
moves under Rule 59(e) for reconsideration of my order
dismissing her federal claims. Rule 59(e) does not list
specific grounds for reconsideration, so district courts
“enjoy considerable discretion in granting or
denying” relief under that rule. 11 Charles Alan
Wright, Federal Practice and Procedure § 2810.1
(3d ed.), Westlaw (updated Apr. 2018). Still, reconsideration
after the entry of a judgment “is an extraordinary
remedy which should be used sparingly.” Id.
Before considering whether Van Ert has shown that such a
remedy is warranted here, I briefly revisit the allegations
in her complaint and the bases for my prior order dismissing
her federal claims.
Ert's complaint alleges, in relevant part, as follows:
“Between 2009 and 2014, VAN ERT had a private,
consensual, romantic relationship with a former head coach of
a University of Wisconsin varsity sport.” Compl., ECF
No. 1, ¶ 13.
VAN ERT ended her relationship with the COACH in 2014 in part
because of her belief that the COACH was manipulative,
deceptive, and abusive toward VAN ERT and other women. In VAN
ERT's opinion, the COACH was unfit to coach and mentor
young student athletes and conducted himself in a manner
contrary to the best interests of student athletes and the
University of Wisconsin.
Id. ¶ 17.
February 11, 2015, VAN ERT reported the relationship and the
COACH's inappropriate behavior to” the Chancellor
of the University of Wisconsin-Madison, Rebecca Blank; Deputy
Athletic Director Walter Dickey; and Senior Associate
Athletic Directors Terry Gawlik and Bruce Van De Velde
“via email.” Id. ¶ 18.
The e-mail asked BLANK, DICKEY, GAWLIK, and VAN DE VELDE to
investigate and take appropriate action to prevent the COACH
and others in similar positions at the University of
Wisconsin from engaging in conduct while working for and
representing the University of Wisconsin that may interfere
with job performance, be abusive towards women, have a
negative impact on student athletes, as well as violate
University of Wisconsin and/or National Collegiate Athletic
Association (“NCAA”) rules, or violate a
“morality clause” contained in the COACH'S
contract with the University of Wisconsin.
On December 22, 2015, VAN ERT, through her attorneys, sent a
letter to DICKEY advising him and the other DEFENDANTS that
her February 11, 2015, e-mail was confidential, that it
should not be released to the public, and requested that
DEFENDANTS contact her attorneys before releasing the e-mail
and/or disclosing its contents to the public. DICKEY
acknowledged receipt of the December 22, 2015, letter . . . .
Id. ¶ 26.
March 4, 2016, DICKEY contacted VAN ERT directly . . . and
informed her that her February 11, 2015, e-mail was going to
be released to the public in response to an open records
request.” Id. ¶ 31. “Within
approximately one hour . . ., DEFENDANTS released the e-mail
to the media . . ., with only VAN ERT's name and e-mail
address redacted.” Id. ¶ 35. “Later
on March 4, 2016, or March 5, 2016, [defendant John Lucas]
disclosed VAN ERT's identity to a reporter . . . .”
Id. ¶ 37.
noted above, I considered the allegations in Van Ert's
complaint and found that they failed to state a cognizable
claim to relief under federal law. Specifically, I found that
the complaint's well-pleaded factual allegations did not
allow me to reasonably infer that defendants violated Van
Ert's constitutional right to privacy under the
Fourteenth Amendment by disclosing her email and her identity
to the press because the information disclosed was of
significant public interest and Van Ert could not have had a
reasonable expectation of privacy in that information. I also
found that the facts as alleged did not plausibly suggest
that defendants retaliated against Van Ert in violation of
her First Amendment rights or that they arbitrarily and
irrationally singled her out for poor treatment in violation
of her constitutional right to equal protection.
motion for reconsideration, Van Ert raises three of the
“basic grounds upon which a Rule 59(e) motion may be
granted.” 11 Wright, supra, § 2810.1. She
argues that reconsideration is “justified by an
intervening change in controlling law” and that it is
“necessary to correct manifest errors of law . . . upon
which the judgment is ...