United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION FOR AN
EXTENSION OF TIME (DKT. NO. 17), GRANTING DEFENDANT'S
MOTION TO STRIKE (DKT. NO. 27), GRANTING DEFENDANT'S
MOTION TO DISMISS (DKT. NO. 13) AND ALLOWING PLAINTIFF TO
FILE AN AMENDED COMPLAINT
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
plaintiff, representing herself, filed this complaint against
Common Bond, LLC, alleging eight causes of action arising
from her tenancy at the Brewery Point Apartments. Dkt. No. 1.
CommonBond Housing filed a motion to dismiss on April 23,
2018, arguing that the complaint does not comply with
Fed.R.Civ.P. 8(a)(2) and fails to state a claim under
Fed.R.Civ.P. 12(b)(6).Dkt. No. 13. Considering the 200,
single-spaced paragraphs in the complaint, the court will
grant the defendant's motion to dismiss, but will give
the plaintiff the opportunity to file an amended complaint.
plaintiff filed her complaint on February 20, 2018 and paid
the $400 filing fee. Dkt No. 1. Ten days after the defendant
filed its motion to dismiss, dkt. no. 13, the court received
a letter from the plaintiff, dkt. no. 17. She informed the
court that her granddaughter had been helping her respond to
the defendant's motion to dismiss because she (the
plaintiff) has an untreatable brain disorder. Id.
She wrote that responding to the defendant's motion was
“overly burdensome for [her] and [her]
granddaughter” and asked for additional time to respond
to the motion, “until the court can get me help with my
complaint.” Id. She also asked the court to
appoint her an attorney. Id. Eleven days later, the
court received another letter from the plaintiff. Dkt. No.
18. This letter explained that the plaintiff's
disabilities included “acute anxiety, TD, Tourette
syndrome, bipolar syndrome, and adjustment disorder.”
Id. At the end of the letter, the plaintiff again
asked for additional time to respond to the motion to
dismiss. Id. The court addressed the plaintiff's
motions to appoint counsel in its January 17, 2019 order,
dkt. no. 35, but the plaintiff's request for an extension
of time remains pending.
plaintiff filed her opposition brief to the motion to dismiss
on August 13, 2018, three months after it was due. Dkt. No.
19. The defendant filed its reply two weeks later. Dkt. No.
22. About ten days after the defendant's reply, the
plaintiff filed an “objection” to defense
counsel's affidavit in support of the motion to dismiss.
Dkt. No. 24. The defendant filed a motion to strike this
objection, dkt. no. 27; that motion also remains pending.
court said it would in its January 17, 2019 order denying the
plaintiff's requests for accommodation, the court set a
status conference to address these motions. Before that
conference could occur, the plaintiff called chambers staff
to inform the court of the difficulties that she would have
at the hearing. Chambers staff asked the plaintiff to write
the court a letter about her concerns, and she did. Dkt. No.
33. On January 15, 2019, the court canceled the status
conference. Dkt. No. 34. Two days later, the court issued an
order addressing the plaintiff's three requests for
appointment of counsel. Dkt. No. 35. That order told the
plaintiff that the court was aware of the remaining
outstanding motions and would be issuing a written order on
those motions. Id. at 11. This is that order.
Plaintiff's Motion for An Extension of Time (Dkt. No.
defendant filed its motion to dismiss on April 23, 2018. Dkt.
No. 13. Civil Local Rule 7(b) of the Local Rules for the
Eastern District of Wisconsin gave the defendant twenty-one
days to respond to the defendant's motion- until May 13,
2018. Although the court received the plaintiff's letter
request for an extension before the May 13, 2018 deadline,
dkt. no. 17, the plaintiff did not file her response until
three months after the due date, on August 13, 2018, dkt. no.
Rule of Civil Procedure 6(b) says that “when an act may
or must be done within a specified time”-such as filing
a response brief within twenty-one days-“the court may,
for good cause, extend the time: (A) with or without motion
or notice if the court acts, or if a request is made, before
the original time or its extension expires[.]” The
plaintiff made her request for an extension of time on May 3,
ten days before the response deadline expired. Rule 6(b)
allows the court to grant the plaintiff's request if it
finds that the plaintiff has shown “good cause.”
The plaintiff has made the court aware of her disabilities,
which include an untreatable brain disorder, acute anxiety,
Tardive Dyskenia, Tourette Syndrome, bipolar disorder and
adjustment disorder. She has told the court that she needed
assistance from her granddaughter to read and understand the
motion to dismiss. The additional ninety days that it took
for the plaintiff to file her response brief is less than the
almost seven months it has taken this court to rule on the
motion. The court finds that the plaintiff has shown good
cause and the court will, belatedly, grant the
plaintiff's request for an extension of time. The court
deems the plaintiff's August 13, 2018 response brief
timely filed, and will consider it in ruling on the motion to
Defendant's Motion to Strike Plaintiff's Objection
(Dkt. No. 27)
The Plaintiff's September 6 “Objection”
(Dkt. No. 24).
plaintiff titled her September 6, 2018 objection
“PLAINTIFF'S WRITTEN OBJECTION TO ADMISSIBILITY OF
ATTORNEY LAUREL J. PUGH DECLARATION IN SUPPORT OF DEFENDANT
MOTION TO DISMISS. REQUEST FOR PROCEDURAL DETERMINATION BY
TRIAL COURT WITH FINDINGS OF FACTS AND CONCLUSIONS OF LAW AND
FOR LIMITING INSTRUCTION.” Dkt. No. 24. In the second
paragraph, the document cites the Wisconsin Rules of Evidence
and argues that Attorney Pugh's declaration is not
relevant. Id. The beginning of page two appears to
be the text of subsections (3), (5) and (6) of Wis.Stat.
§802.08, the Wisconsin rule governing summary judgment
motions. Id. The remainder of page two continues the
plaintiff's argument that the affidavit of Attorney Pugh
is not relevant. Page three attacks the Pugh Affidavit for
“lack of personal knowledge, ” citing Wis.Stat.
§906.02 (the Wisconsin rule of evidence that requires
that a witness must have personal knowledge of the things
about which the witness testifies) and Wis.Stat.
§802.08, the Wisconsin summary judgment rule.
Id. at 3. The remainder of the six-page document
argues that the plaintiff is entitled to summary judgment,
citing Wisconsin statutes and decisions from Wisconsin
courts. Id. at 4-5. At the end of the document, the
plaintiff asks the court to “properly confine and limit
its consideration of such evidence to the purpose of
qualified witness authentic of the documents, and genuine
facts in a declaration.” Id. at 6.
Defendant's Motion to Strike (Dkt. No. 27)
defendant's motion to strike characterizes the
plaintiff's September 6 pleading as an impermissible
sur-reply. Dkt. No. 28. It reminds the court that the local
rules do not allow sur-replies as a matter of right and that
courts in this district routinely disallow sur-reply briefs.
Dkt. No. 28 at 2 (citing Civil Local Rule 7(i); Boustead
v. Baranick, 151 F.R.D. 102, 106 (E.D. Wis. 1993);
Nalco Chem. Co. v. Hydro Tech., Inc., 809 F.Supp.
672 (E.D. Wis. 1992)). With regard to the plaintiff's
request that the court grant summary judgment in her favor,
the defendant argues that the fact that it attached a
document to defense counsel's affidavit in support of the
motion to dismiss does not require the court to convert the
motion into a summary judgment motion, because the document
it attached was repeatedly referenced in the complaint, and
was incorporated by reference. Id. at 4.
court will grant the defendant's motion to strike the
plaintiff's September 6, 2018 pleading for several
the defendant is correct that the September 6, 2018
“objection” is really a sur-reply-a reply to the
defendant's reply. The Local Rules for the Eastern
District of Wisconsin provide for three pleadings in motion
practice- (1) the motion, (2) a response in opposition to the
motion, and (3) a reply in support of the motion. Civil L.R.
7(a), 7(b) and 7(c) (available at:
https://www.wied.uscourts.gov/local-rules-and-orders). If a
party wants to file any other pleading, she must file a
motion asking the court for permission to file the pleading
and must attach the proposed pleading to that motion. Civil
L.R. 7(i). Id. The plaintiff did not ask the
court's permission to file a sur-reply; even if she had,
it is unlikely the court would have given that permission.
See Groshek v. Time Warner Cable, Inc., No.
15-C-157, 2016 WL 4203506, at *4 (E.D. Wis. Aug. 9, 2016)
(“The court grants such leave only rarely; the local
rules provide for a motion, a response, and a reply, and in
the vast majority of cases, this is sufficient.”).
it appears that the plaintiff took a legal document from a
different case, copied parts of that document into the
September 6, 2018 pleading and then modified the language to
fit this case. For example, at the bottom of page 2 and the
top of page 3, the document states that
[i]ntroduction of frame-up evidence also presented the danger
of confusing the jury's consideration of other evidence
with a higher probative value. We believe these factors would
have substantially outweighed the slight probative value of
the frame-up evidence and that they evidence would have been
excluded under Wis.Stat. §904.03. Thus, we hold that the
circuit court did not erroneously exercise its discretion
when it excluded the frame-up evidence.
Dkt. No. 24 at 2-3.
has been no jury in this case. There is no circuit court in
this case. No. court has yet exercised its discretion to
exclude any evidence. It is not clear who the
“we” referenced in the quote is, but it appears
to have been a court- likely a state court of appeals.
court understands that for a non-lawyer, and for someone
suffering from medical issues, figuring out how to litigate a
federal case is difficult. But it is not appropriate to cut
and paste sections from other court orders into motions the
plaintiff presents to this court. As this court has cautioned
a self-represented litigant in another case,
even a [plaintiff] who is representing himself must make his
own arguments. He cannot simply dump documents from other
cases (cases that involve different facts, and are in
different procedural postures) in this court's lap and
say “I would like the same thing.” It is not this
court's responsibility to dig through the record of a
different case to figure out the point that the [plaintiff]
wants to make. If the [plaintiff] wants to argue that his
case is like another one, he needs to provide a written
explanation as to why the court should adopt the
reasoning from a different case in his case.
Popsockets, LLC v. Hueffner, No. 17-cv-827-pp, 2018
WL 4568823, at *17 (E.D. Wis. Sept. 24, 2018).
the September 6, 2018 document cites only Wisconsin
laws and decisions from Wisconsin cases. The
plaintiff has filed this lawsuit in federal
court-the United States District Court for the Eastern
District of Wisconsin. The federal court has its own
laws, its own rules and its own cases. In federal
court, litigation is governed by the Federal Rules of Civil
Procedure and the Federal Rules of Evidence, not the
Wisconsin statutes. The cases that are binding on this court
are decisions from the United States Supreme Court and the
federal Seventh Circuit Court of Appeals. The only time that
a federal court relies on state statutes
and state case law is when it is sitting in
diversity, considering a substantive issue of state law.
reasons the court will explain below, it is not clear what
the plaintiff is claiming in this federal lawsuit. But on her
civil cover sheet, she marked the box that said that the
basis for this court's jurisdiction was “Federal
Question”-in other words, that she was suing for a
violation of federal law or the federal
Constitution. Dkt. No. 1-1. In her complaint, she mentions
the Fair Housing Act (a federal statute) and several federal
regulations. Dkt. No. 1. She also says that “[u]nder 28
U.S.C. § 1331, a case arising under the United States
Constitution or federal laws or treaties is a federal
question case.” Id. at 2. It appears, as ...