Vogt v. Raymond James Financial Services Inc

Filing 162

ORDER signed by Judge J P Stadtmueller on 12/3/09: denying 129 plaintiff's Objection to Magistrate Judge Determination Motion for an Amended Judgment; granting 141 defendant Emmanual Mamalakis's Motion to Strike; denying 150 plaintiff's Motion to Compel Discovery; and denying 151 plaintiff's Motion to Stay Upon Reopening Case Pending Discovery and Resolutions. (cc: plaintiff, Court of Appeals, all counsel)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ D O N N A MARIE VOGT, P l a i n t if f , v. R A Y M O N D JAMES FINANCIAL SERVICES, INC., R A Y M O N D JAMES FINANCIAL, INC., T E R R A N C E A. BOSTIC, JOHN STEPHEN PUTNAM, U S BANCORP, EMMANUAL MAMALAKIS, D A V ID COHEN, JOHN HYLAND, GREGORY EVERTS, a n d SAMUEL EDGERTON, D e fe n d a n ts . ____________________________________________ Case No. 09-CV-83

ORDER
O n August 20, 2009, the court granted defendants' motions to dismiss this c a s e and entered judgment accordingly. On September 3, 2009, plaintiff filed a d o c u m e n t titled "Objection to Magistrate Judge Determination Motion for an A m e n d e d Judgment"1 (Docket #129). Though titled as a motion for amended

ju d g m e n t, that filing did not in-fact seek an amended judgment. Rather, in that filing p la in tiff merely reiterated the allegations found in her amended complaint. Plaintiff p ro ffe re d no rationale as to why the court's judgment should be amended. On

N o ve m b e r 5, 2009, plaintiff filed a motion titled "Motion to Stay Upon Reopening C a s e Pending Discovery and Resolutions" in which plaintiff seeks relief pursuant to F e d . R. Civ. P. 60(b)(1), (3), & (6).

For the sake of clarity, the court points out that judgm e n t in this case was not rendered by a M a g is tr a te Judge.

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R u le 60(b) allows relief from final judgment for a myriad of reasons such as "m is ta k e , inadvertence, surprise, or excusable neglect," Fed. R. Civ. P. 60(b)(1), or "fra u d . . . misrepresentation, or misconduct by an opposing party," Fed. R. Civ. P. 6 0 (b )(3 ), or "any other reason that justifies relief," Fed. R. Civ. P. 60(b)(6). "Relief p u rs u a n t to Rule 60(b) is "an extraordinary remedy and is granted only in exceptional c ircu m s tan c e s ." McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir. 2000). D e s p ite plaintiff's motion requesting relief pursuant to Rule 60(b), plaintiff p ro vid e s very little argument that is relevant to a Rule 60(b) analysis. The majority o f her brief in support of her motion simply rehashes the merits of her case against d e fe n d a n ts . The few arguments she advances in support of Rule 60(b) relief are all b a s e d on a fundamental lack of understanding of the law. Plaintiff claims that d e fe n d a n ts failed to comply with the Civil L.R. 12.1 which requires the provisions of C ivil L.R. 56.1(a)2 to be complied with when a party files a Fed. R. Civ. P. 12(b)(6) m o tio n against a pro se litigant if in that motion matters outside the pleading are p r e s e n t e d to the court. However, defendants' motions to dismiss were granted b a s e d entirely on the pleadings, thus Civil L.R. 12.1 was not triggered. Plaintiff faults th e court for not ordering a Rule 26(f) scheduling conference, and for not issuing a s c h e d u lin g order. However, because the case was resolved at the pleading stage, th e re was no reason for a scheduling conference or order. Plaintiff asserts that

Civil L.R. 56.1 requires a party filing a m o t io n for sum m a r y judgm e n t against a pro se litigant to in f o r m the pro se litigant that any factual assertion in the m o v a n t's affidavits or other docum e n ta r y evidence w ill be accepted as true unless the pro se litigant subm its his or her own adm is s ib le evidence contradicting t h e assertion. Civil L.R. 56.1 also requires the text of Fed. R. Civ. P. 56(e) & (f), Civil L.R. 56.1, 56.2, & 7.1 to be included in the m o tio n .

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d e fe n d a n ts did not respond to her discovery requests. This case was resolved on th e pleadings and thus never reached the discovery phase. Therefore, the few Rule 6 0 (b ) arguments made by plaintiff are meritless, and the court is obliged to deny her m o tio n . Likewise, plaintiff has filed a motion to compel discovery. Such a motion is m isp la c e d as this case is over; there will be no discovery. The court is obliged to d e n y that motion as well. L a s tly , defendant Emmanual Mamalakis filed a motion requesting the court s trike an attachment from one of plaintiff's filings. The attachment is what plaintiff c la im s is a grievance complaint against Mamalakis that plaintiff submitted to the W is c o n s in Office of Lawyer Regulation. Mamalakis asserts that such materials are to be strictly confidential, and asks that the court strike it from the record pursuant to Fed. R. Civ. P. 12(f). However, "Rule 12(f)[] may only be used to attack a p le a d in g ." Renguett v. Board of School Trustees ex rel., 2007 W L 1536841, 5 (S.D. Ind . 2007) (emphasis in original). Generally, neither a motion, nor a brief in support o f a motion, is a "candidate[] for Rule 12(f)." Hrubec v. Nat'l R.R. Passenger Corp., 8 2 9 F. Supp. 1502, 1506 (N.D. Ill. 1993). Though the court could deny Mamalakis's motion since the challenged d o c u m e n t is not part of a pleading, doing so would produce an inequitable result. T h e document that Mamalakis seeks to be struck from the docket clearly should be s tru c k . Not only should a grievance to the Office of Lawyer Regulation (OLR) be k e p t confidential, see SCR 22.40(1), but the filing of such a grievance in this case, a s plaintiff did, served no useful purpose whatsoever. The document in question -3-

w a s filed as "Attachment #1" to plaintiff's reply brief (found at Docket #139) in s u p p o rt of a filing titled "Plaintiff's Memorandum of Law in Support of motion for le a ve for filing all response/timeliness/size and to add addendum" (Docket #118), w h ic h was itself filed after judgment had been entered in this case. Thus, not only is the OLR grievance form irrelevant to any issue in this case, and not only was the re p ly brief the OLR was attached to irrelevant to any issue in this case, but so too w a s the original motion ­ in which the reply brief was filed in support of ­ irrelevant to any issue in this case. A review of applicable case law shows that other courts have confronted nonp le a d in g documents that should be struck from the docket. The most common m e c h a n is m for striking such documents appears to be Rule 12(f). For "[a]lthough R u le 12(f) applies by its terms only to `pleadings,' courts occasionally have applied th e Rule to filings other than those enumerated in Rule 7(a) of the Federal Rules of C ivil Procedure." Pigford v. Veneman, 215 F.R.D. 2, 4, n.1 (D. D.C. 2003) (striking n o n -p le a d in g document); see Cobell v. Norton, 2003 W L 721477 (D. D.C. 2003) (c o n s id e r in g striking non-pleading document; ultimately refusing to strike on merits, n o t based on fact document was not a pleading); see McCorstin v. U.S. Dept. of L a b o r, 630 F.2d 242, 243-44 (5th Cir. 1980) (finding no abuse of discretion in district c o u rt's striking of several non-pleading documents). Therefore, just as "courts have p e rm itte d affidavits to be challenged by motions to strike because the Federal Rules p ro vid e no other means to contest their sufficiency," McLaughlin v. Copeland, 435 F . Supp. 513, 519 (D. Md. 1977) (citing cases therein), the court will permit -4-

M a m a la k is to challenge the document in question by means of a motion to strike. F u rth e rm o re , because the document is irrelevant to any issue in the case, and can o n ly serve to demean and harass defendant Mamalakis, the court will grant the m o tio n and direct the clerk to strike Docket #139, Attachment #1. Accordingly, IT IS ORDERED that plaintiff's Objection to Magistrate Judge Determination M o tio n for an Amended Judgment (Docket #129) be and the same is hereby D E N IE D ; IT IS FURTHER ORDERED that defendant Emmanual Mamalakis's Motion to Strike (Docket #141) be and the same is hereby GRANTED; and IT IS FURTHER ORDERED that plaintiff's Motion to Compel Discovery (D o c k e t #150) be and the same is hereby DENIED; and IT IS FURTHER ORDERED that plaintiff's Motion to Stay Upon Reopening C a s e Pending Discovery and Resolutions (Docket #151) be and the same is hereby D E N IE D . D a te d at Milwaukee, W is c o n s in , this 3rd day of December, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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