United States District Court, E.D. Wisconsin
JOHN L. LERCH, Plaintiff,
CITY OF GREEN BAY, BRENDA SEIDL, KATHLEEN STADTHERR, ROBERT CORMIER, SCOTT NELSON, and JASON SLADKY, Defendants.
DECISION AND ORDER
William C. Griesbach, Chief Judge
John L. Lerch, who is currently representing himself, filed
this 42 U.S.C. § 1983 action against Defendants City of
Green Bay, Brenda Seidl, Kathleen Stadtherr, Robert Cormier,
Scott Nelson, and Jason Sladky. Lerch owns multiple real
estate properties in Green Bay, Wisconsin and alleges that
Defendants raze and condemn his properties in violation of
his constitutional rights. This case is similar to
Lerch's previous four lawsuits against the City, in which
the court granted summary judgment in favor of the City and
dismissed Lerch's claims. Presently before the court is
Defendants' motion for summary judgment. For the
following reasons, Defendants' motion will be granted and
the case dismissed.
turning to the parties' substantive arguments, the court
will address two preliminary matters. First, Lerch asserts
that he would benefit from obtaining additional discovery
from Defendants. Federal Rule of Civil Procedure 56(d)
“allows the nonmoving party to submit an affidavit or
declaration requesting the court to defer or deny judgment in
order to allow for appropriate discovery to address matters
raised by the motion.” Spierer v. Rossman, 798
F.3d 502, 506-07 (7th Cir. 2015) (citing Fed.R.Civ.P. 56(d)).
The party invoking Rule 56(d) must make a good faith showing
that he cannot present sufficient facts to respond to the
motion for summary judgment. Waterloo Furniture
Components, Ltd. v. Haworth, Inc., 467 F.3d 641, 648
(7th Cir. 2006). The purpose of Rule 56(d) is to
“ensure that a diligent party is given a reasonable
opportunity to prepare the case.” 10B Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2741 (4th ed.). “Requests for additional
discovery must be specific and cannot be based only on
speculation.” Trzeciak v. State Farm Fire &
Cas. Co., 809 F.Supp.2d 900, 905 (N.D. Ind. 2011).
claims that additional discovery is necessary because
Defendants' answers to his interrogatories were
deficient. Yet, Lerch's argument has been addressed by
this court in its January 23, 2018 order denying Lerch's
motion to compel. There, I found that Defendants sufficiently
responded to Lerch's discovery requests and were not
required to respond to those requests that were overly broad
and unduly burdensome. ECF No. 19. Therefore, the court will
not allow Lerch to conduct additional discovery.
also requests that the court enter default judgment against
defendant Stadtherr because she failed to file an answer to
the complaint. Lerch filed his complaint against the
defendants on May 8, 2017. On May 30, 2017, Gunta Law Offices
filed a notice of appearance on behalf of the City of Green
Bay, Brenda Seidl, Robert Cormier, Scott Nelson, and Jason
Sladky and filed an answer on their behalf. The City did not
accept service on behalf of defendant Stadtherr because she
was no longer employed by the City at the time the other
named defendants were served. Lerch asserts he served
Stadtherr on December 3, 2017. On January 3, 2017, Gunta Law
Offices filed a notice of appearance on behalf of Stadtherr.
On March 26, 2018, Lerch filed an “objection for a
summary judgment for Kathleen Stadtherr, ” claiming
that Stadtherr never answered the complaint. Defendants
subsequently filed an amended answer to the complaint on
April 19, 2018.
to Rule 12 of the Federal Rules of Civil Procedure, a
defendant must serve an answer “within 21 days after
being served with the summons and complaint.”
Fed.R.Civ.P. 12(a)(1)(A). In this case, defendant Stadtherr
did not file a timely answer to Lerch's complaint.
Although the clerk must enter a party's default
“[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and
that failure is shown by affidavit or otherwise, ”
Fed.R.Civ.P. 55(a), “a defendant who fails to answer
within the time specified by the rules is in default even if
that fact is not officially noted.” 10A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2692 (4th ed.).
party applies for default judgment under Rule 55, “the
district judge is required to exercise sound judicial
discretion in determining whether the judgment should be
entered.” Id. at § 2685. A plaintiff
moving for default judgment “is not entitled to
judgment as a matter of right, even where the defendant is
technically in default.” Sawyer v. Columbia
Coll., No. 09-C-6962, 2013 WL 587532, at *2 (N.D. Ill.
Feb. 14, 2013) (quoting Ganther v. Ingle, 75 F.3d
207, 212 (5th Cir. 1996)). Although the Seventh Circuit
“no longer disfavors default judgments, and does not
require the trial court to first impose less drastic
sanctions, a default judgment should not be considered a
ready response to all litigant misbehavior.”
Stafford v. Mesnik, 63 F.3d 1445, 1450 (7th Cir.
1995); see also Sun v. Bd. of Trs. of the Univ. of
Ill., 473 F.3d 799, 810 (7th Cir. 2007) (noting that
default judgment is a “weapon of last resort,
appropriate only when a party wilfully disregards pending
litigation”). In deciding whether to enter a default
judgment, the court may consider whether there is a material
issue of fact, whether the default is largely technical,
whether the plaintiff has been substantially prejudiced by
the delay involved, and “how harsh an effect a default
judgment might have.” 10A Wright & Miller,
supra at § 2685.
there is no question that defendant Stadtherr did not file
her answer by the deadline established in Rule 12 of the
Federal Rules of Civil Procedure. Although Defendants
maintain that they asked that the court advise counsel of a
date in which they should provide an amended answer relative
to the claims against Stadtherr, the court is not required to
remind Defendants of their legal obligations under the
Federal Rules of Civil Procedure. But aside from filing the
untimely amended answer, Defendants have otherwise diligently
defended this case. Stadtherr's technical failure to file
an answer has not prejudiced Lerch or delayed the litigation
of this case. In addition, as explained in more detail below,
Lerch has not submitted sufficient evidence to support a
claim for relief against Defendants, and entering default
judgment against Stadtherr would result in an injustice.
Therefore, the court will not enter default judgment against
defendant Stadtherr. The court will now turn to
Defendants' motion for summary judgment.
assert that their proposed findings of fact must be deemed
admitted because Lerch did not respond to them in accordance
with Civil L.R. 56 (E.D. Wis.). Since Lerch did not respond
to Defendants' proposed findings of fact and did not
submit proposed findings of his own, the court will deem
Defendants' statement of facts admitted for the purposes
of summary judgment. See Cichon v. Exelon Generation Co.,
L.L.C., 401 F.3d 803, 809-10 (7th Cir. 2005).
has owned property in Green Bay, Wisconsin for over thirty
years, and has received various citations and complaints
regarding his residential rental properties. Defs.'
Proposed Findings of Fact ¶ 15, ECF No. 24. Lerch
alleges that the City of Green Bay maliciously razed his
properties at 1175 Crooks Street, 1168 Klaus Street, 313 St.
George Street, and 518-520 South Ashland Avenue. Lerch claims
that, in October 2013, the City obtained an inspection
warrant for the Ashland Avenue property after receiving
complaints regarding that property. After inspecting the
property, the City subsequently issued Orders regarding the
violations noticed during the inspection. In November 2013,
the City conducted another inspection of the Ashland Avenue
property and issued a condemnation order. Although Lerch
filed a restraining order in Brown County Circuit Court, the
court dismissed the restraining order and allowed the raze to
go forward. Lerch did not appeal the Circuit Court's
decision. Id. ¶¶ 36-40.
also claims the City improperly condemned his 720 North
Broadway property. Id. ¶¶ 16-25. He
alleges that the Green Bay Inspection Department issued an
inspection warrant for the property but did not notify Lerch
or his tenants of the inspection. After reviewing the
inspection warrant and the affidavit in support, Lerch
noticed the affidavit did not identify Lerch as the property
owner. When the City presented the inspection warrant to the
municipal judge, the judge crossed out the improper name and
noted that Lerch was the true property owner. Lerch alleges
that, on January 22, 2016, the City issued a second
inspection warrant based solely on speculation but admits
that the municipal judge signed the warrant. Id.
¶¶ 32-35. The City subsequently condemned the
property after concluding that its fire escapes were not up
does not claim that the City had no basis for issuing the
citations and condemnation orders. Instead, he asserts that
the City's conduct violates his constitutional rights
because it treats him differently than other property owners.
He claims the City does not raze the property of other
property owners who commit the same violations and gives them
as much time as they need ...