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Reed v. Common Bond, LLC

United States District Court, E.D. Wisconsin

March 11, 2019

LINDA REED, Plaintiff,
v.
COMMON BOND, LLC., Defendant.

          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

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         The 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).[1]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.

         I. PROCEDURAL BACKGROUND

         The 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.

         The 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.

         As the 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.

         II. Plaintiff's Motion for An Extension of Time (Dkt. No. 17)

         The 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. 19.

         Federal 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 dismiss.

         III. Defendant's Motion to Strike Plaintiff's Objection (Dkt. No. 27)

         A. The Plaintiff's September 6 “Objection” (Dkt. No. 24).

         The 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.

         B. Defendant's Motion to Strike (Dkt. No. 27)

         The 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.[2] Id. at 4.

         C. Analysis

         The court will grant the defendant's motion to strike the plaintiff's September 6, 2018 pleading for several reasons.

         First, 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.”).

         Second, 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.

         There 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.

         The 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).

         Third, 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.

         For 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 ...


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