United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. Peterson District Judge.
January 2017, plaintiff Sabina Burton filed suit against
numerous officials affiliated with her then employer, the
University of Wisconsin-Platteville, alleging various
constitutional and federal statutory violations. The case has
progressed slowly. There have been four amended complaints,
two motions to dismiss, and numerous extensions and stays.
The trial date has now been struck four times, and the case
is among the oldest of those currently pending before me.
After a two-month stay of the dispositive motions deadline
due to Burton's ill health at the end of last year, Dkt.
89, the case seemed to be back on track. Defendants filed a
motion for summary judgment on January 3, 2020. Dkt. 90.
Burton's response is due on February 3, 2020.
on January 11, 2020, Burton-who is now appearing pro se-filed
a motion seeking to (1) compel discovery, (2) extend the
dispositive motions deadline, (3) file a fifth amended
complaint, and (4) obtain various accommodations for
depositions and potential future court appearances. Dkt. 98.
I will deny her motion for the most part. Burton must respond
to defendants' motion for summary judgment by the
February 3 deadline, and she may not file a fifth amended
complaint at this late date. I will stay discovery along with
any ruling on Burton's motion to compel discovery until I
have decided defendants' motion for summary judgment. If
the case survives summary judgment, I will reopen discovery
and order briefing on the motion to compel then. I will deny
Burton's motion for accommodations during court
appearances without prejudice as premature, and her motion
for accommodations during depositions as unnecessary.
Motion to compel
motion to compel details numerous alleged deficiencies in
defendants' responses to her discovery requests, which
Burton served on September 15, 2017 (see Dkt. 98-1),
January 25, 2018 (see Dkt. 55-1), and February 15,
2018 (see Dkt. 55-5). Burton says that defendants
have provided non-specific answers, made unwarranted
objections, and failed to respond to some requests entirely.
She also recounts the problems that her former counsel had in
attempting to schedule depositions of certain defendants back
in February, March, and August of 2018. These discovery
disputes were the focus of a motion to compel filed by
Burton's former counsel in August 2018. Dkt. 55.
Magistrate Judge Crocker denied that motion as premature on
September 6, 2018, Dkt. 63, and Burton did not renew the
motion or raise any other discovery issues at any point over
the fifteen months that followed.
that defendants have filed their summary judgment motion,
Burton has raised a litany of discovery issues. She says that
she “has not been given opportunity to depose anyone
yet” and names at least eight individuals whose
depositions she says are necessary to her case. Dkt. 98,
¶ 75. She also accuses defendants of withholding various
documents and personnel records. Burton asks me to overrule
defendants' objections to her discovery requests and
compel defendants to provide the requested discovery and
produce witnesses for depositions. She asks for a one-month
extension of her summary judgment deadline and a two-month
extension of discovery (currently slated to close on March
30, 2020) so that she may obtain the discovery she needs.
Even taking into account Burton's health challenges and
her pro se status, she has had ample time to conduct
discovery and to seek the court's assistance in doing so.
She provides no explanation why she waited until now to raise
preliminary pretrial conference orders in this case warned
the parties that they needed to conduct discovery “in a
manner that allows them to make or respond to dispositive
motions within the scheduled deadlines. The fact that the
general discovery deadline cutoff . . . occurs after the
deadlines for filing and briefing dispositive motions is not
a ground for requesting an extension of the motion and
briefing deadlines.” Dkt. 14, at 3; see also
Dkt. 81, at 5 (“You will not get more time if you
waited too long to get all the information you think you need
to respond to the motion.”). With less than a month to
go before her summary judgment deadline, it is too late for
Burton to seek discovery for use in opposing defendants'
summary judgment motion. Burton will have to respond to
defendants' motion based on the evidence she has now. In
doing so, Burton may not invoke the lack of discovery or the
alleged discovery misconduct by defendants as a reason she
cannot engage with the merits of defendants' motion. It
was Burton's responsibility to diligently conduct
discovery and to seek assistance from the court if she had
problems. I will not further delay this case because Burton
failed to do so.
district, discovery remains open after the dispositive
motions deadline to allow the parties to obtain discovery for
use at trial. But Burton's trial date has been struck and
will not be reset unless her case survives summary judgment.
See Dkt. 89. To prevent the parties from wasting
resources on contingent trial-related discovery that may be
unnecessary, I will stay discovery and stay briefing of
Burton's motion to compel. If Burton's case survives
summary judgment, I will reopen discovery and set briefing on
the motion to compel. If I determine that Burton is entitled
to relief on her motion to compel, I will order that relief.
Motion to extend case deadlines
says she needs an extension of case deadlines because (1) she
“will need time to prepare her appeal of the Grant
County Circuit Court's decision” on her challenge
to the revocation of her tenure, Dkt. 98, ¶ 74; (2) she
plans to file a fifth amended complaint or a new lawsuit and
will need “a reasonable amount of time to prepare the
documents necessary, ” id. ¶ 80; (3) she
plans to file a motion for spoliation sanctions addressing
the “lack of response to discovery requests in Dr.
Burton's first lawsuit and in the current lawsuit,
” which will take time to generate, id. ¶
73; and (4) this case “has potential to lead to a major
shake-up in the way the UW System runs its affairs, ”
so “[l]imiting discovery to [the] time normally
allotted . . . is simply not appropriate in this case.”
Id. ¶ 84.
these are legitimate reasons for an additional extension of
the case deadlines. The filing of any appeal in Burton's
Grant County case, or of any new federal claims, will have no
bearing on defendants' motion for summary judgment. Given
Burton's delay in raising the discovery issues, neither
will her impending motion for sanctions. Burton has had ample
time to prepare for summary judgment. I will not further
extend the schedule because she finds herself pressed for
notes that I previously told her that if defendants moved for
summary judgment, she “may seek a reasonable extension
of the response deadline if her health requires it.”
Dkt. 85. But Burton is not citing any new or worsened health
concerns as the basis for her request for an extension; she
is asking for an extension so that she may work on unrelated
issues and conduct discovery that she should have handled
months ago. Burton's motion for an extension of time is
Motion for leave to file fifth amended complaint
says that in November 2019, she filed a charge with the EEOC
alleging, among other things, that defendants have violated
her rights “by withholding documents in violation of
policy and state and federal laws.” Dkt. 98, ¶ 90.
She has now received a “right to sue” letter from
the EEOC and asks for leave to file a fifth amended complaint
to include these new charges. She says that if I deny her
request, she will have to file a new lawsuit, causing
“undue extra litigation and cost for all parties
including the court.” Id. ¶ 94. She also
says that allowing her to amend the complaint will enable ...