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Stinson v. City of Milwaukee

United States District Court, E.D. Wisconsin

June 13, 2019

ROBERT LEE STINSON, Plaintiff,
v.
CITY OF MILWAUKEE, JAMES GAUGER, DR. LOWELL T. JOHNSON and DR. RAYMOND D. RAWSON, Defendants.

         ORDER SUSTAINING DEFENDANTS' OBJECTIONS (DKT. NO. 270) TO QUESTIONS 4 AND 5 ON THE PLAINTIFF'S PROPOSED VERDICT FORM (DKT. NO. 265-12) AND REJECTING THE PLAINTIFF'S PROPOSED JURY INSTRUCTIONS AS TO THE TWO UNPLED CLAIMS THAT FORM THE BASIS FOR THOSE QUESTIONS (DKT. NO. 265-10 AT PP. 6, 10-11)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE

         The plaintiff submitted a proposed verdict form which contains, among other things, the following question:

QUESTION NO. 4: FEDERAL MALICIOUS PROSECUTION
Did any of the following Defendants violate Plaintiff's constitution right to be free from malicious prosecution?

         Dkt. No. 265-12 at 2. The form also contains the following question:

QUESTION NO. 5: ILLEGAL DETENTION
Did any of the following Defendants cause Plaintiff to be detained without probable cause?

         Dkt. No. 265-12 at 3. The plaintiff submitted a proposed jury instruction for illegal detention, dkt. no. 265-10 at 6, and a proposed “modified” jury instruction for malicious prosecution, dkt. no. 265-10 at 10-11.

         The defendants objected in writing to the questions on the form of verdict, arguing that the operative complaint-the second amended complaint-did not plead either a federal malicious prosecution claim or an illegal detention claim. Dkt. No. 270 at 1-5. The plaintiff indicated in his proposed jury instructions that the defendants objected to the jury instructions for these claims, dkt. no. 265-10 at pp. 6, 10-11, and he presented arguments in support of the two instructions in his pretrial brief, dkt. no. 266 at pp. 5-8, 9-10. At the final pretrial conference on June 11, 2019, the court heard brief argument from the parties. The court now sustains the defendants' objections to questions 4 and 5 in the plaintiff's proposed form of verdict and rejects the plaintiff's proposed jury instructions for the two unpled claims that form the basis of those questions.

         The plaintiff filed his complaint on November 2, 2009-over nine and a half years ago. Dkt. No. 1. While the complaint was fifteen pages long, stated detailed and extensive facts and enumerated five specific causes of action, it did not mention a Fourteenth Amendment due process claim of deprivation of liberty due to malicious prosecution, or a claim (whether under state law or the federal Constitution) for false imprisonment/illegal detention. A little over a month later, the plaintiff filed an amended complaint. Dkt. No. 7. The amended complaint blossomed to twenty-one pages, added known and unknown defendants, added several state-law claims (including a state-law claim for malicious prosecution)-even added images-but still made no mention of a federal due process claim for malicious prosecution or a false arrest/illegal detention claim of any kind.

         The plaintiff filed the operative complaint-the second amended complaint-in June of 2011, over eighteen months after he filed the lawsuit. Dkt. No. 51. The second amended complaint had grown in length, reaching twenty-seven pages, but did not mention a federal malicious prosecution claim or a false arrest/illegal detention claim. In the almost eight years that passed between the filing of the second amended complaint and February 2019 (when the plaintiff filed his proposed verdict form and jury instructions), the parties have engaged in two rounds of discovery, vigorously litigated the defendants' motions for summary judgment, made a trip to the Seventh Circuit and filed thousands of pages of pleadings and other documents. Yet it was not until February 1, 2019-three weeks ahead of the then-scheduled February 25, 2019 trial date-that the plaintiff mentioned federal malicious prosecution and false imprisonment/illegal detention, and even then, he mentioned these causes of action in proposed jury instructions and a proposed verdict form.

         To say that the plaintiff is asserting two new claims at the eleventh hour is an understatement. The plaintiff, however, insists that the fact he did not assert these claims in any of his three complaints or at any prior stage of the nine years of litigation that preceded his jury instructions and verdict form is irrelevant, because “it is axiomatic that in this Circuit, plaintiffs plead facts- not legal theories.” Dkt. No. 266 at 5, 9. At the June 11, 2019 hearing, plaintiff's counsel stated that the plaintiff “did notice pleading, ” and that the facts in the second amended complaint were sufficient to put the defendants on notice that the plaintiff might choose to proceed on the unpled claims of federal malicious prosecution and false arrest/illegal detention.

         In support of his argument that plaintiffs plead facts, not legal theories, the plaintiff cited Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992). That case involved a plaintiff who sued in state court, alleging that although his new employer contracted with him to create a pension plan that would credit his years with a prior employer, the plan the employer actually adopted did not give him credit for his prior service. The defendant removed the case to federal court, arguing that the facts the plaintiff had pled stated an ERISA claim. The plaintiff asked the federal court to remand the case to the state, arguing that his claims didn't relate to the pension plan; he characterized the case as a simple contract case. The district court denied the remand motion, finding that the complaint stated an ERISA claim because the plaintiff sought “pension benefits greater than the pension plan provides.” Id. at 1076. Oddly, though, after reaching that conclusion, the district court granted the defendant's motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), holding that ERISA preempted the plaintiff's contract claim. Id.

         The Seventh Circuit reversed. It explained that while other courts had viewed violation of an agreement to create a pension plan as a contract claim unrelated to the actual technical requirements of ERISA or the plan itself, the Seventh Circuit wasn't one of those courts. Id. at 1076-77. The court noted that it had held in prior cases that “[a] suit based on the difference between the pension promised by contract and the pension established by the plan ‘relates to' the pension plan.” Id. at 1077. Given that holding, the court concluded that the district court had ...


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