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O'Boyle v. Wettengel

United States District Court, E.D. Wisconsin

August 22, 2019

RYAN P. O'BOYLE, Plaintiff,
v.
GEORGINA R. WETTENGEL and SERGEANT PIOJDA, Defendants.

          DECISION AND ORDER

          NANCY JOSEPH, UNITED STATES MAGISTRATE JUDGE

         Ryan P. O'Boyle is Wisconsin state prisoner representing himself in this 42 U.S.C. § 1983 action. The Honorable Pamela Pepper, the judge assigned to this case at the time, screened O'Boyle's complaint. (Docket # 8.) She allowed him to proceed against defendants Georgina R. Wettengel and Sergeant Piojda on claims under the Fourth Amendment regarding his initial arrest and charges for operating after revocation and obstruction/fleeing. (Docket # 8 at 7.) The defendants have moved for summary judgment. O'Boyle has also filed two motions, one for reconsideration of my decision to deny his motion for default (Docket # 47) and the other to strike the defendants' motion for summary judgment (Docket # 49). The defendants moved to strike O'Boyle's motion to strike. (Docket # 51.) I will address each in turn.

         1. Motion for Reconsideration

         Previously, O'Boyle moved the court to enter default against the defendants, arguing that “no legitimate answer or viable defense has been filed by the defendants.” (Docket # 43.) I denied his motion, noting that the defendants filed not only an answer to his complaint but a motion for summary judgment as well.

         Federal Rule of Civil Procedure 54(b) authorizes reconsideration of a court's non-final orders. See Civix-DDI, LLC v. Hotels.com, LP, 904 F.Supp.2d 864, 866 (N.D. Ill. 2012) (citing Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983) (“every order short of a final decree is subject to reopening at the discretions of the . . . judge”). Granting a motion for reconsideration is appropriate when:

(1) the court has patently misunderstood a party; (2) the court has made a decision outside the adversarial issues presented to the court by the parties; (3) the court has made an error not of reasoning but of apprehension; (4) there has been a controlling or significant change in the law since the submission of the issue to the court; or (5) there has been a controlling or significant change in the facts since the submission of the issue to the court.

Tatum v. Clarke, No. 11-CV-1131, 2013 WL 6497697, *1 (E.D. Wis. Dec.11, 2013) (citing Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1885, 1191 (7th Cir.1990)).

         In his motion for reconsideration, O'Boyle makes two arguments. First, he argues that the defendants did not file a legitimate answer to the complaint. This argument was already considered and rejected. O'Boyle presents nothing new that would make reconsidering that decision appropriate.

         Second, he argues that the defendants failed to follow court-ordered discovery deadlines and therefore should not have been allowed to file for summary judgment. In his original motion, O'Boyle referenced a declaration. In his motion for reconsideration, O'Boyle clarifies that he intended to reference Docket # 34. That declaration states that the defendants “failed to comply with Court ordered deadlines regarding obtainment of discovery materials.” (Docket # 34.) The discovery deadline was July 13, 2018. In his declaration, O'Boyle references two letters attached to his declaration. The first, dated July 26, 2018, was sent to him by the defendants' attorney and asks him to complete an enclosed authorization to get records from the Department of Veterans Affairs. (Docket # 34-1.) The second, dated August 27, 2018, is from O'Boyle to the defendants' attorney. He states that he mixed up the discovery deadline, points out that the defendants sent him something after the July 13 deadline, and reiterates that he might be sending interrogatories. O'Boyle also asks about filing a joint motion for an enlargement of time. (Docket # 34-2.)

         In his motion for reconsideration (and in this declaration), O'Boyle take issues with the fact that the defendants conducted discovery (asking for the authorization) after the July 13, 2018 deadline. He believes that their “failure” to comply with the deadline should have precluded them from filing for summary judgment. However, requesting discovery outside the deadline does not preclude the defendant from filing summary judgment. As I stated in my previous order, there is no basis to enter default under Fed.R.Civ.P. 55.

         I also note that O'Boyle takes issue with the evidence the defendants presented in support of their motion for summary judgment. However, evidentiary issues are not properly brought in a declaration asking for default. That is appropriately addressed in a motion for summary judgment or at trial.

         For these reasons, I will deny O'Boyle's motion for reconsideration.

         2. Motion for Summary or Default Judgment and Motion to Strike Defendant's Motion for Summary Judgment

         O'Boyle filed a motion he titled “Motion for Summary Judgment or Default Judgment and Motion to Strike Defendant's Motion for Summary Judgment.” (Docket # 49.) In it, O'Boyle makes two arguments. First, he argues that the defendants failed to provide admissible evidence to support their proposed findings of fact. Second, he argues that the court should disregard the defendants' qualified immunity defense. The defendants responded that O'Boyle's motion must be stricken as untimely and that striking their qualified immunity defense would be improper. (Docket # 51.)

         I will deny O'Boyle's motion. Despite its title, the substance of the motion is responsive to the defendants' motion for summary judgment. He did not need to file a separate motion to challenge the defendants' proposed findings of fact or their qualified immunity defense. To the extent O'Boyle believes that I should enter default against the defendants, he has presented no basis for me to do so. His disagreement with the defendants' position is, and was, addressed in his responsive pleadings to their ...


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