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Lerch v. City of Green Bay

United States District Court, E.D. Wisconsin

June 29, 2018

JOHN L. LERCH, Plaintiff,


          William C. Griesbach, Chief Judge

         Plaintiff, 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.[1] Presently before the court is Defendants' motion for summary judgment. For the following reasons, Defendants' motion will be granted and the case dismissed.


         Before 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).

         Lerch 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.

         Lerch 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.

         Pursuant 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.).

         When a 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.

         Here, 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.


         Defendants 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).

         Lerch 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.

         Lerch 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 to code.

         Lerch 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 ...

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