Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rapp v. Laufers

United States District Court, W.D. Wisconsin

September 26, 2019

LAURA ANNE RAPP, Plaintiff,
v.
ANDREW J. LAUFERS, KATHERINE BROWN HOLMEN and DUDLEY AND SMITH, PA, Defendants.

          OPINION AND ORDER

          Barbara B. Crabb District Judge.

         Pro se plaintiff Laura Anne Rapp is proceeding on legal malpractice and misrepresentation claims against defendants Andrew Laufers and Katherine Brown Holmen and a negligent supervision claim against defendant Dudley and Smith, PA regarding representation that defendants provided to plaintiff in her capacity as personal representative for her brother’s estate following his death in a plane crash. Before the court are two motions filed by defendants: (1) a motion for summary judgment as to all of plaintiff’s claims, dkt. #24; and (2) a motion to strike three third-party affidavits submitted by plaintiff, dkt. #55, on the ground that they include opinion testimony from expert witnesses not disclosed in accordance with Federal Rule of Civil Procedure 26(a)(2). Before I ruled on the motions, defendant Laufers filed notice that he had filed a chapter 13 bankruptcy petition. In an order entered on July 10, 2019, I stayed plaintiff’s claims against Laufers under 11 U.S.C. § 362, pending the completion of the bankruptcy proceedings. Dkt. #65. Defendants Holmen and Dudley and Smith have informed the court that they do not object to the case proceeding as to the claims against them. Dkt. #66.

         For the reasons below, I am granting in part and denying in part the motion to strike the third-party affidavits, granting the motion for summary judgment as to plaintiff’s claims against defendants Holmen and Dudley and Smith and staying a ruling on the motion for summary judgment as to the claims against defendant Laufers. There is no reason to delay entry of judgment as to defendants Holmen and Dudley and Smith, so I will direct the clerk of court to enter judgment in their favor. Fed.R.Civ.P. 54(b) (“[C]ourt may direct entry of final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.”). Because plaintiff’s remaining claims against defendant Laufers are stayed pending the completion of bankruptcy proceedings, I will dismiss the case against him without prejudice, subject to being reopened upon the completion of bankruptcy proceedings. I will direct defendant Laufers to provide the court and plaintiff updates every six months regarding the status of the bankruptcy proceedings, beginning on March 26, 2020.

         PRELIMINARY EVIDENTIARY MATTERS

         A. Parties’ Proposed Findings of Fact

         Although plaintiff responded to defendants’ proposed findings of fact, she failed to file a separate document proposing any findings of fact to support her claims and defeat defendants’ motion for summary judgment. Pretr. Conf. Ord., dkt. #8, at 15-17 (explaining this court’s procedures with respect to opposing motion for summary judgment). Instead, plaintiff filed a lengthy affidavit and a 171-page brief in which she makes hundreds of factual assertions with more than 400 footnote citations, several of which do not support the assertions made in her brief. Plaintiff’s “exhibits” are contained in one document totaling more than 800 pages. This practice places an undue burden on defendants and the court and violates the court’s summary judgment procedures, which direct parties that “[a]ll facts necessary to sustain a party’s position on a motion for summary judgment must be explicitly proposed as findings of fact” Id. at 12. “The court will not search the record for factual evidence. Even if there is evidence in the record to support your position on summary judgment, if you do not propose a finding of fact with the proper citation, the court will not consider that evidence when deciding the motion. Your brief is the place to make your legal argument, not to restate the facts.” Id. In light of plaintiff’s pro se status, I have considered her factual assertions to the extent that they relate to her claims, do not merely reflect plaintiff’s opinion and are fairly supported by evidence that I could readily identify in the record.

         Plaintiff also responded to some of defendants’ proposed findings of fact with an argument or a statement of her own conclusory opinion without citing any admissible evidence in support of her contention. This practice violates the court’s summary judgment procedures, which direct parties that “[e]ach fact proposed in disputing a moving party’s proposed factual statement . . . must be supported by admissible evidence. The court will not . . . consider any factual propositions made in response to the moving party’s proposed facts that are not supported properly and sufficiently by admissible evidence.” Pretr. Conf. Ord., dkt. #8, at 18. Therefore, I have considered plaintiff’s responses to defendants’ proposed findings of fact only to the extent that they are clearly and obviously supported by citations to admissible evidence. Further, in accordance with this court’s summary judgment procedures, I have considered as undisputed any fact proposed by defendants that plaintiff failed to put into dispute with admissible evidence. Id. at 17.

         B. Motion to Strike Expert Testimony

         On March 1, 2019, in response to defendants’ motion for summary judgment, plaintiff filed the affidavits of Attorney M. Keith Branyon, Attorney Susan Bullard and Cathy Gille, C.P.A., all of whom are fact witnesses but also offer professional opinions about defendants’ legal representation of plaintiff. Defendants have moved to strike the affidavits and ask that the witnesses not be permitted to testify as experts at trial on the ground that plaintiff failed to timely disclose them as experts by October 1, 2018, as required by Federal Rule of Civil Procedure 26(a)(2) and the court’s preliminary pretrial conference order. Dkt. #8 at 3 (“If a party does not follow the requirements of Rule 26(a)(2) by his (or her) deadline to disclose expert witnesses, then this court will not allow that expert witness to present evidence in this case.”).

         In response, plaintiff points out that Branyon, Bullard and Gille all represented her brother’s estate at some time and have personal knowledge of some of the events relevant to her lawsuit. She argues that as a pro se litigant, she was not aware that she had to designate these type of fact witnesses as experts in order for them to provide their observations and opinions and did not know what testimony would be needed to oppose defendants’ motion for summary judgment. However, the preliminary pretrial conference order made clear that all expert opinions must be disclosed before the filing and briefing of dispositive motions such as a motion for summary judgment, and that professional witnesses such as physicians or nurses must be named as experts by the deadline, even if they will be offering only opinion evidence about what they did or believed at the time of the events in question. Dkt. #8 at 3. See also Fed.R.Civ.P. 26(a)(2)(C) (requiring at least disclosure of subject matter and summary of facts and opinions to which expert will testify). Although plaintiff suggests that I extend the discovery period and allow defendants to depose Branyon, Bullard and Gille, it is too late in the case for that to make a difference.

         Accordingly, I will grant defendants’ motion to strike to the extent that I will not consider the improperly disclosed expert opinions of Branyon, dkt. #42 at 2-3, Bullard, dkt. #43 at ¶¶4 and 19, and Gille, dkt. #41 at ¶¶18, 21-25. These individuals also will not be permitted to offer expert testimony at any future trial in this case. However, defendants’ motion is denied to the extent that Branyon, Bullard and Gille may testify as fact witnesses about any relevant events about which they have personal knowledge. They may not offer any opinion testimony about what defendants should or could have done during their representation of plaintiff.

         From defendants’ proposed findings of fact and plaintiff’s responses, I find the following facts to be material and undisputed unless otherwise noted.

         UNDISPUTED FACTS

         Plaintiff Laura Rapp is a citizen of California and is the personal representative for the estate of her deceased brother, Laurence Berg. Defendants Andrew Laufers and Katherine Brown Holmen are attorneys who worked with defendant Dudley and Smith, PA, a law firm in St. Paul, Minnesota, during the events at issue in this case. This lawsuit relates to defendants’ legal representation of plaintiff as the personal representative of the Berg estate, which was subject to probate proceedings in the Circuit Court for St. Croix County, Wisconsin.

         On January 30, 2009, Laurence Berg, his wife Vicki Garves-Berg and their friend Brett Weller died in a plane crash in Menomonie, Wisconsin. Berg was the pilot of the small aircraft. (Plaintiff attempts to dispute this fact, but she presents no evidence in support of her contention apart from saying that Berg’s involvement in piloting the plane was never proven in a court of law.) In the summer 2009, relatives of Garves-Berg and Weller filed wrongful death claims against the Berg estate. (The parties do not explain or provide any further detail about what they mean by “claims, ” but a wrongful death lawsuit was never filed.) On September 30, 2009, the National Transportation Safety Board released a report indicating that pilot error was the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.