United States District Court, E.D. Wisconsin
ORDER DENYING DEFENDANTS' MOTION TO DISMISS FOR
FAILURE TO TIMELY SERVE SUMMONS AND COMPLAINT (DKT. NO. 5),
DEFERRING RULING ON PLAINTIFF'S MOTION TO PROCEED WITHOUT
PREPAYING FILING FEE (DKT. NO. 2) AND ORDERING PLAINTIFF TO
FILE AN AMENDED COMPLAINT
Pamela Pepper United States District Judge
October 25, 2018, the plaintiff, representing herself, filed
a complaint naming “Nissen Enterprises/Nissen Staffing
Continuum” as defendants. Dkt. No. 1. She also asked
the court to allow her to proceed without prepaying the $400
filing fee. Dkt. No. 2. On February 12, 2019, defense counsel
made a special appearance for the purpose of filing a motion
to dismiss the case for failure to timely serve the summons
and complaint. Dkt. No. 5. The court will deny the motion to
dismiss, defer ruling on the plaintiff's motion to
proceed without prepaying the filing fee and give the
plaintiff the opportunity to file an amended complaint.
The Court's Delay in Addressing the Motion
the clerk's office assigned the case to this court in
November 2018, the court only now has been able to review it,
due to a heavy case load and the fact that this district has
been short one district court judge for the past three years.
The court regrets the delay and hopes to get the case back on
track with this order.
Plaintiff's Ability to Pay the Filing Fee
allow the plaintiff to proceed without prepaying the filing
fee, the court first must decide whether the plaintiff can
pay the fee; if not, it must determine whether the lawsuit is
frivolous, malicious, or fails to state a claim upon which
relief can be granted. 28 U.S.C. §§1915(a) and
plaintiff's request to proceed without prepaying the fee
says that she is currently employed, is not married and is
responsible for supporting dependents. Dkt. No. 2 at 1. She
does not list any dependents in section I of the application,
id. at 1-2, but the court assumes that one of her
dependents is the “disabled son with autism”
referenced in the “other circumstances” section,
id. at 4. She receives $5, 538 per month in income
from her employment with “Staff One.”
id. at 2. She states that in the last twelve months,
she has received $60, 000 from her employment with
“Sourcepoint Staffing” and $5, 538 from Staff
One. Id. She owns a 2014 Subaru Outback valued at
$21, 000, id. at 3, and has $200 in a checking or
savings account, id. at 4. She lists no other
property or assets. Id. 3-4. The plaintiff states
that her total monthly expenses are $5, 620 per month,
comprised of $2, 400 in rent, $420 in car payments, $150 in
credit card payments, $2, 000 in other household expenses,
$200 for “Griffin's supplements (autism), ”
$150 for gas for her car, $240 in car insurance and $60 for
renters insurance. Id. at 2-3. After deducting her
monthly expenses from her monthly income, the plaintiff has a
negative balance of $82 a month. Based on the information
contained in the plaintiff's application, the court
concludes that the plaintiff does not have the ability to pay
the filing fee.
court next must decide whether the plaintiff has raised
claims that are legally “frivolous or malicious,
” that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. §1915A(b). To state a
claim under the federal notice pleading system, a plaintiff
must provide a “short and plain statement of the
claim” showing that she is entitled to relief.
Fed.R.Civ.P. 8(a)(2). A plaintiff does not need to plead
every fact supporting her claims; she needs only to give the
defendants fair notice of the claim and the grounds upon
which it rests. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). At the same time, the allegations “must
be enough to raise a right to relief above the speculative
level.” Id. “Rule 8(a) requires parties
to make their pleadings straightforward, so that judges and
adverse parties need not try to fish a gold coin from a
bucket of mud.” United States ex rel. v.
Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir.
2003). Because the plaintiff represents herself, the court
must liberally construe the allegations of her complaint.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Facts Alleged in the Complaint
plaintiff filed her complaint on a pre-printed form. Dkt. No.
1. It is not one of this court's complaint forms; it is a
form provided on the United States Courts' web site,
section “II. Basis for Jurisdiction, ” under the
“Relevant State Law” heading, the plaintiff
writes that she is suing for “discrimination-sexual,
disability, retaliation.” Dkt. No. 1 at 3. In section
“III.E., ” which asks plaintiff to explain the
facts of her case, the plaintiff wrote only “Attached
EEOC File.” Dkt. No. 1 at 5. The attachment is 149
pages of documents relating to her EEOC complaints, including
two copies of her notice of right to sue letter, dkt. no. 1-1
at 1, 4; the plaintiff's “Charge of
Discrimination” to the Wisconsin Equal Rights Division,
id. at 11; the defendant's
“Respondent's Position Statement, ” dkt. no.
id. at 99-149; and the plaintiff's reply to that
document, id. at 21-32.
plaintiff's “Charge of Discrimination” states
I. I began working for the respondent in August 2015 in the
position of Business Consultant. Since the beginning of my
employment, I was denied an accommodation of being allowed to
work from home. I complained about my treatment. I complained
about the harassment of my family who has special needs,
inappropriate language by my supervisor, including calling me
a “lesbian, ” accusations that I ...