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Conn v. Nissen Enterprises

United States District Court, E.D. Wisconsin

September 16, 2019

STEPHANIE JILL CONN, Plaintiff,
v.
NISSEN ENTERPRISES, and NISSEN STAFFING CONTINUUM, Defendants.

          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

          Hon . Pamela Pepper United States District Judge

         On 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.

         I. The Court's Delay in Addressing the Motion

         Although 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.

         II. Plaintiff's Ability to Pay the Filing Fee

          To 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 1915(e)(2)(B)(i).

         The 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.

         III. Screening

         The 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).

         A. Facts Alleged in the Complaint

         The 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, https://www.uscourts.gov/forms/pro-se-forms/ complaint-employment-discrimination.

         Under 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.

         The plaintiff's “Charge of Discrimination” states the following:

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 ...

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