United States District Court, E.D. Wisconsin
CHONG L. LEE, Plaintiff,
TAMMY DEVRIES, Defendant.
ORDER DENYING PLAINTIFF'S MOTION TO STAY OR FOR
EXTENSION OF TIME AND MOTION TO COMPEL (DKT. NO. 29)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
February 18, 2019, the defendant filed a motion for summary
judgment. Dkt. No. 21. The plaintiff's response materials
were due on March 19, 2019. Dkt. No. 20. The plaintiff did
not respond by the deadline, so a month later, on April 18,
2019, the court ordered the plaintiff to either file his
response materials or explain why he couldn't by May 24,
2019. Dkt. No. 27.
plaintiff did not comply with the court's order. Instead,
a few days before the deadline, the plaintiff filed a motion,
asking the court to compel the defendant to supplement her
discovery responses and to stay the case or extend his
deadline to respond by forty-five days to allow the defendant
to provide him with the supplemental responses and to enable
the plaintiff to obtain affidavits from two inmates who
allegedly witnessed his arguments with the defendant. Dkt.
No. 30 at 2-4. The motion also complains that the defendant
does not know why he was transferred to Green Bay
Correctional Institution right after he filed this case (he
perceives that the transfer was a form of punishment), and he
demands discovery on this topic. Dkt. No. 29 at 3. The court
will deny these requests.
the motion does not comply with the court's local rules.
Under Civil L.R. 37, a party filing a motion related to
discovery issues must include in his motion a certification
that he tried in good faith to resolve the issue informally
before involving the court. The plaintiff explains that he
was not satisfied with the defendant's responses to some
of his discovery requests, but he does not indicate whether
he contacted the defendant to discuss his concerns before he
filed his motion. Many discovery disputes can be resolved
without the court's involvement, which saves both the
court and the parties time and resources. The plaintiff's
failure to comply with Civil L.R. 37 is a sufficient basis to
deny his motion.
the plaintiff delayed filing his motion to compel. It appears
from the exhibits the plaintiff attached to the brief in
support of his motion that the defendant responded to the
plaintiff's discovery requests on November 14, 2018. Dkt.
No. 30-1 at 6. Discovery did not close until January 16,
2019. The plaintiff does not explain why he did not file his
motion to compel during the two months between the time he
received the discovery responses and the close of discovery.
Nor does he explain why he waited to file the motion until
four months after discovery had closed and three months after
the defendant filed her summary judgment motion. Because the
plaintiff has not provided the court with a good reason-or
any reason-for his delay, the court will deny the
plaintiff's motion to compel because it is untimely.
See Packman v. Chi. Tribune Co., 267 F.3d 628, 647
(7th Cir. 2001) (no abuse of discretion in denying motion to
compel filed after discovery closed and defendants had filed
their summary judgment motion).
plaintiff asked the court to stay the case or, in the
alternative, to give him a forty-five-day extension to file
his response to the motion for summary judgment because he
was expecting the court to require the defendant to provide
him with more discovery. The court is not going to do that,
so the possibility of additional discovery is not a reason
for the court to stay the case or extend the plaintiff's
deadline for filing his response materials. The plaintiff
also asks the court to stay the case or extend his deadline
for responding to summary judgment, however, because he wants
to obtain the affidavits of two inmates who allegedly
witnessed his arguments with the defendant. The plaintiff
asserts that he “only recently learned of [the
inmates'] locations.” Dkt. No. 29 at 2. It appears
that the plaintiff knew where these defendants were when he
started his case-he says that they were at Dodge, awaiting
designation. Id. The plaintiff does not explain what
he means by “recently” (last week? last month?),
nor does he explain why he waited so long to raise this issue
with the court.
based on the plaintiff's statements that these inmates
were witnesses to his interactions with the defendant, he has
not established that he needs their affidavits to respond to
the defendant's motion. At summary judgment, a court must
construe all facts in favor of the non-moving party (here,
the plaintiff), so the plaintiff's declaration setting
forth his version of his interaction with the defendant would
be sufficient on its own to create a question of material
fact. The inmates' statements would at most corroborate
his statements, and they are unnecessary at summary judgment
when credibility is not at issue. Given that the plaintiff
does not need these statements to respond to the
defendant's summary judgment motion, there is no reason
to further extend his response deadline.
the plaintiff is not entitled to discovery on the question of
why he was transferred to Green Bay after he filed this case.
This case involves the plaintiff's claim that the
defendant retaliated against him because he refused to sign a
waiver and because he criticized library policies. Dkt. No. 8
at 5. He was entitled to discovery on that issue only. If the
plaintiff believes that someone retaliated against him for
filing this case by transferring him to Green Bay, he must
make that claim in a separate lawsuit-he cannot pursue it in
been six months since the defendant timely filed her motion
for summary judgment. The plaintiff has had more than enough
time to review the motion and to put together a response. The
court will extend the plaintiff's deadline to respond to
the defendant's summary judgment motion one
last time, to Wednesday, September 11,
2019. Absent extraordinary circumstances, the
court will not extend this deadline. If the court does
not receive the plaintiff's response by the end of the
day on Wednesday, September 11, 2019, the court may decide
the summary judgment motion without the plaintiff's
input, or it may dismiss the case for the plaintiff's
failure to diligently pursue it.
court DENIES the plaintiffs motion to stay
or extend his response deadline and his motion to compel.
Dkt. No. 29.
court ORDERS that the plaintiff must file
his response to the defendant's motion for summary
judgment in time for the court to receive it by the end of
the day on Wednesday, September 11, 2019. If
the court does not hear from the plaintiff by that date, the