V v. Kratz

Filing 22

REPLY BRIEF in Support filed by Kenneth R Kratz re 14 MOTION to Dismiss or alternatively for Summary Judgment.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

S.V.
Plaintiff,
vs.

Case No.: 10-919

KENNETH KRATZ
Defendant.

DEFENDANT'S REPLY BRIEF IN SUPPORT OF
MOTION TO DISMISS AND FOR SUMMARY JUDGMENT

The Defendant, Kenneth Kratz, by his attorneys, Hammett, Bellin, & Oswald, L.L.C.,
respectfully submits this reply brief in support of his Motion for Summary Judgment.
ARGUMENT
I.

Defendant’s actions do not constitute sex discrimination, even when all facts are read in the
light most favorable to Plaintiff, and this Court must grant Defendant’s Motion to Dismiss.
Plaintiff states in her Brief that Defendant discriminated against her by engaging in sexual

harassment as it is defined in the context of Title VII hostile work environment analysis
(“environmental harassment,” in Plaintiff‟s brief). (Pl.‟s Br. in Resp. to Def.‟s Mot. to Dismiss & for
Summ. J. 4.) Defendant acknowledges that federal courts use roughly the same standards in
evaluating hostile work environment sexual harassment under Title VII and in evaluating sexual
harassment for purposes of § 1983 claims under the Equal Protection Clause of the 14th Amendment.
See e.g., King v. Bd. of Regents of Univ. of Wis. System, 898 F.2d 533, 537 (stating, “In general, the
claim [under the Equal Protection Clause] follows the contours of Title VII claims.”). Courts do,
however, delineate a set of guidelines in Equal Protection cases that differs from the general standard:

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“the defendant must intend to harass under equal protection, . . . but not under Title VII, where the
inquiry is solely from the plaintiff‟s perspective.” Id. at 537-38. The test is more clearly stated in Volk
v. Coler, 845 F.2d 1422, 1430-31, ¶ 40 (7th Cir. 1988): “Liability under § 1983 requires proof that „(1)
defendants acted under color of state law, (2) defendants‟ actions deprived plaintiff of her rights,
privileges or immunities guaranteed by the Constitution, and (3) defendants‟ conduct proximately
caused plaintiff‟s deprivation.‟ . . . In addition, [plaintiff] must prove that the defendants‟
discrimination was intentional.” (quoting Webb v. City Center of Illinois, 813 F.2d 824, 827 (7th Cir.
1987)). In Bohen v. City of East Chicago, Ind., 799 F.2d 1180, 1186-87, ¶¶ 27-28 (7th Cir. 1986), the
court states, “The core of any equal protection case is, of course, a showing of intentional
discrimination. . . . [T]he ultimate inquiry is whether the sexual harassment constitutes intentional
discrimination. This differs from the inquiry under Title VII as to whether or not the sexual
harassment altered the conditions of the victim‟s employment.” Based upon the above guidelines,
Plaintiff‟s complaint fails to state any plausible claim upon which relief can be granted by this Court,
and this case must therefore be dismissed pursuant to Fed. R. Civ. Pro. 12(b)(6).
In Baskerville v. Culligan Intern. Co., 50 F.3d 428 (7th Cir. 1995), the Seventh Circuit Court
of Appeals, whose precedent Defendant rightly points out is particularly relevant in this case, draws a
firm distinction in sexual harassment cases between those cases that constitute legitimate complaints
of “hostile environment” harassment and those that do not: “On one side lie sexual assaults; other
physical contact, whether amorous or hostile, for which there is no consent express or implied;
uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic
pictures. . . . On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse
or boorish workers.” Id. at 430, ¶ 12 (internal citations omitted) (citing Meritor Savings Bank v.

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Vinson, 477 U.S. 57, 67, 106 s. Ct. 2399, 2405-06, 91 L. Ed. 2d 49 (1986); Harris Forklift Systems, Inc.,
114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993); Carr v. Allison Gas Turbine Division, 32 F.3d 1007,
1009-10 (7th Cir. 1994); Rabidue v. Osceola Refining Co., 805 F.2d 611, 620-21 (6th Cir. 1986); Katz
v. Dole, 709 F.2d 251, 256 (4th Cir. 1983)). In that case, the court determined that a supervisor who
made flirtatious and suggestive remarks to an employee over the course of seven months was not a
harasser for purposes of finding sex discrimination.
Other circuits and districts similarly hold plaintiffs to a high standard in assessing the presence
or absence of sex discrimination in harassment cases. “The concept of sexual harassment is designed
to protect working women from the kind of male attentions that can make the workplace hellish for
women. . . . It is not designed to purge the workplace of vulgarity.” Baskerville, 50 F.3d at 430, ¶ 12.
In Faragher v. Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998), defendants repeatedly inappropriately
touched their subordinates without the subordinates‟ consent. For example, one supervisor “put his
arm around [Plaintiff], with his hand on her buttocks, . . . and once made contact with another female
[employee] in a motion of sexual simulation . . . .” Id. at 782. The defendants in that case regularly
made offensive comments about women in general and regularly told the plaintiffs they wanted to
have sex with them. Id. The court in that case noted, “„simple teasing,‟ . . . offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory . . .” behavior. Id. at
788.
The federal district court for the Southern District of Illinois echoes this language in
Chambliss v. Illinois Department of Corrections, No. 05-CV-4175-JPG (S.D. Ill. Feb. 15, 2007), stating,
“For example, a court has found that „teasing about waving at squad cars [like a prostitute might],
ambiguous comments about bananas, rubber bands, and low-neck tops, staring and attempts to make

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eye contact, and four isolated incidents in which a co-worker briefly touched her arm, finger, or
buttocks‟ did not amount to an impermissibly hostile environment as a matter of law.” Id. at 19
(citing Adusumilli v. City of Chicago, 164 F.3d 353, 361-62 (7th Cir. 1998)). In Chambliss, the court
concluded that the following catalogue of behaviors was not sufficiently severe or pervasive to
constitute sex discrimination: “25 comments about [a female co-worker], his describing pornographic
movies once to [Plaintiff] alone and as many as five times to the office in general, his note on her
leave request, the one time he interrogated her about her sexual experiences on her vacation, his
hugging her for five to ten seconds, his bringing in a birthday cake in the shape of a woman‟s breasts,
his telling her about his [sexual] dream about [another female co-worker], his asking her out on a
date, and numerous other comments to the office in general.” Chambliss, at 20. The court stated,
“While [Defendant‟s] behavior was certainly boorish, it did not create an objectively hostile work
environment for [Plaintiff].” Id.
On the other hand, in Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399 (1986), the
Supreme Court concluded that sexual harassment took place where a supervisor pressured a female
employee into a sexual relationship that continued for four years before the employee was finally
terminated, even going so far as to rape her several times. Meritor Savings Bank, 477 U.S. at 60. In
King v. Bd. of Regents of Univ. of Wis. System, 898 F.2d 533 (7th Cir. 1990), the 7th Circuit Court of
Appeals found a plausible claim of harassment where an employee‟s supervisor “repeatedly verbally
assaulted [her], fondled her, and at one point, physically attacked her.” Id. at 538, ¶ 20. The court
goes on, stating, “It is clear . . . that the advances were unwelcome and that [the defendant] knew they
were unwelcome. This is not the case of a single, innocent, sexual query. Instead, we have repeated,
unwelcome advances, fondling and a physical attack.” Id. at 539-40, ¶ 27 (emphasis added). In Bohen,

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799 F.2d at 1186, the court stated, “several fact situations have been found to constitute sufficient
sexual harassment to amount to sex discrimination for equal protection purposes. For example,
liability was found where there were „repeated crude sexual advances and suggestive comments‟ by the
plaintiff‟s Assistant Supervisor . . . , where the same Assistant Supervisor sexually assaulted the
plaintiff at work.” The court in Bohen also stated, “„[E]very passing overture made by a male public
official to a female public employee because of her gender‟ is not a denial of equal protection. . . .
Likewise, „a single, innocent, romantic solicitation which inadvertently causes offense to its recipient‟
is not a denial of equal protection.” Id. at 1186, ¶ 26.
The above cases serve as a foil to the present case in that, in contrast to Defendant‟s text
messages, they demonstrate the seriousness and severity of true sexual harassment. The Defendant in
this case texted the Plaintiff, a young woman he met through his employment with the District
Attorney‟s office (a woman who did not work for him and who was not an intern or student), asking
for a date and, possibly, a relationship. (See Compl.; Def.‟s Statement of Proposed Material Facts;
Pl.‟s Resp. to Def.‟s Statement of Proposed Material Facts & Statement of Additional Material Facts;
Decl. of Def. Kenneth Kratz.) He may not have done so in the most charming way, or in a way that
Plaintiff found attractive (indeed, Plaintiff‟s Brief suggests she was “revolted” at Defendant‟s
proposals) (see Pl.‟s Br. in Resp. to Def.‟s Mot. to Dismiss & for Summ. J. 1), but nothing about
Defendant‟s interaction with Plaintiff rises to the level of sexual harassment as it is described in the
cases above. Plaintiff‟s Brief exaggerates the intensity and duration of the text messages she received,
as is obvious to anyone who has conversed through text message. A text message constitutes barely a
single sentence in most cases, sometimes one or two full sentences. In the context of an ongoing
conversation, thirty sentences in three days is hardly pervasive, and on two of the days in question,

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October 20 and October 22, Plaintiff received fewer than ten texts per day. (Decl. of Pl. S.V., Ex. A.)
In fact, Plaintiff asserts in her supporting materials that she sent Defendant at least twenty-three text
messages herself during the same three-day time period. (Id.) The “transcript” she provides of her
responses is notably less detailed than the “transcript” of Defendant‟s messages, and Plaintiff states in
her declaration that both “transcripts” were created by her “to the best of [her] recollection,” so it is
very possible that some text messages were forgotten or were recalled inaccurately. (Decl. of Pl. S.V.;
Decl. of Def. Kenneth Kratz.)
Nevertheless, even if Plaintiff‟s depiction of the three-day text “conversation” is entirely
accurate, there is nothing about it that is threatening, demeaning, or offensive to the extent that it
constitutes sexual harassment. Defendant makes two references to the ongoing case against Plaintiff‟s
ex-boyfriend: “It would go slow enough for Shannon‟s case to get done,” and “When the case is over,
if you change your mind . . . .” (Decl. of Pl. S.V., Ex. A; Decl. of Def. Kenneth Kratz ¶ 16.) Never did
Defendant threaten or even suggest that he would stop prosecuting Shannon‟s case if Plaintiff rejected
or turned down his request for a relationship, and it appears that he tried to make it clear throughout
the three-day conversation that whether any relationship occurred would be “ALL up to [Plaintiff].”
(Id.) Defendant actually asked Plaintiff twice on October 21 whether she wanted him to stop texting
her, and, according to Plaintiff‟s account of the conversation, she responded, “I have to think about
that,” and, “Lol.” (Id.) The very last text message is one from Defendant, and it reads, “When the
case is over, if you change your mind and want to meet for a drink, please tell me. Otherwise I will
respect your desire to be left alone.” (Id.)
In each of the cases cited by Plaintiff in her Brief, and in the cases cited above, the Court takes
note of whether the plaintiffs in those cases made any attempt to put a stop to the behavior before

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resorting to legal action. In Meritor Savings Bank, the Court states, “The gravamen of any sexual
harassment claim is that the alleged sexual advances were „unwelcome.‟” Meritor, 477 U.S. at 68. See
also Chambliss (noting that “she was able to rebuff it simply by refusing [Defendant‟s] invitation for a
date . . . .”). Likewise, in Bohen, 799 F.2d at 1186, ¶ 26 (7th Cir. 1986), the court notes that in other
cases liability has been found where “„repeated crude sexual advances and suggestive comments‟ by
the plaintiff‟s Assistant Supervisor . . . „persisted despite plaintiff‟s explicit and consistent rejection of
his advances‟ . . . .” Based on Plaintiff‟s responses to Defendant‟s text messages, it is totally unclear as
to whether Plaintiff wanted him to stop, not only because her responses are so ambiguous, but also
because she continued to respond to Defendant‟s texts for the next three days.
Plaintiff suggests in her Brief that this Court should view Defendant‟s text messages
differently because she was a domestic abuse victim, implying that her subjective point of view is
inherently different from that of an objective reasonable person in the same circumstances. (Pl.‟s Br.
in Resp. to Def.‟s Mot. to Dismiss & for Summ. J. 6, 12-13.) But just because Plaintiff‟s perspective is
not a reasonable one, or differs from an objectively reasonable perspective, that does not mean this
Court can adopt an unreasonable perspective. In fact, case law explicitly requires this Court to view
the alleged conduct from both subjective and reasonably objective points of view in order to
determine whether the allegations rise to the level of severe and pervasive conduct. In Faragher, the
Court states, “in order to be actionable under the statute, a sexually objectionable environment must
be both objectively and subjectively offensive, one that a reasonable person would find hostile or
abusive, and one that the victim in fact did perceive to be so.” Faragher, 524 U.S. at 787 (emphasis
added) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993)). Similarly, in King, the Court
states, “in order to find discrimination, the court must conclude that „the conduct would adversely

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affect both a reasonable person and the particular plaintiff bringing the action.‟” King, 898 F.2d at
537, ¶ 14.
Plaintiff in this case has stated multiple times that she perceives Defendant‟s text messages as
harassment, but the Court cannot ignore the requirement of considering what a reasonable person
would perceive when reading Defendant‟s text messages. Seeing the text conversation in its entirety
only serves to accentuate the lack of harassing conduct on Defendant‟s part. Nothing in Plaintiff‟s
responses indicated that she was uncomfortable with the conversation or that she believed it to be
inappropriate. (See Decl. of Pl. S.V., Ex. A.; Decl. of Def. Kenneth Kratz, ¶¶ 9-14) She never asked
Defendant to stop texting her or to text her only regarding Shannon‟s case. (Id.) Plaintiff and
Defendant never met face-to-face after the texting started, Defendant never physically touched
Plaintiff, never swore at her, called her names, or made lewd gestures or comments as Plaintiffs did in
the cases above. (See Compl.; Decl. of Pl. S.V.; Decl. of Def. K.K. ¶¶ 4, 13, 15.. In fact, he never made
any attempt to contact Plaintiff other than these text messages. Under these circumstances, it would
actually be unreasonable for the Court to find that sex discrimination or sexual harassment had taken
place.
On the facts presented, even when giving all inferences in favor of Plaintiff, the Court cannot
find that there was intentional discrimination on Defendant‟s part, as is required for a finding of sex
discrimination under the Equal Protection Clause. The Court also cannot find, based upon the facts
presented by Plaintiff, that Defendant‟s text messages or other conduct deprived Plaintiff of any
rights, privileges, or immunities. Her ex-boyfriend‟s case was concluded successfully, and, when she
finally made clear to Defendant that she did not want to pursue a relationship, he respectfully left her
alone. While the text messages may have been a clumsy, perhaps pathetic (Plaintiff even goes so far

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in her Brief as to call them “revolting”) attempt to ask Plaintiff for a date, they do not rise to a level
that constitutes sexual harassment under the Equal Protection Clause of the 14th Amendment, even
if this Court reads all of the facts provided thus far in the light most favorable to the Plaintiff. The
Court must therefore grant Defendant‟s Rule 12(b)(6) Motion to Dismiss, alternatively, Motion for
Summary Judgment.
II.

Defendant is entitled to absolute or qualified immunity because he could not have
reasonably known or expected his conduct in this case to constitute a violation of Plaintiff’s
constitutional rights and because he was performing duties intimately associated with the
prosecution of S.K.’s criminal matter when the alleged conduct occurred.
In Houston v. Partee, 978 F.2d 362, 367 (7th Cir. 1992), the court states, “Federal courts,

including this one, have been willing to grant prosecutors absolute immunity for gathering
information and evidence in furtherance of a decision to initiate a prosecution.” The court has also
noted that “[t]he absolute immunity of an advocate is not confined strictly to actions taken in the
courtroom.” Auriemma v. Montgomery, 860 F.2d 273, 278, ¶ 18 (7th Cir. 1988).
Defendant‟s actions in this case began when he conducted an office meeting with Plaintiff,
the victim in a criminal prosecution and also the only witness to the criminal actions of her exboyfriend. In his capacity as District Attorney, Defendant was required to conduct this meeting in
order to fully prepare his case against S.K. and to perform his duties as prosecutor. Additional contact
with witnesses similarly constitutes one of the duties of District Attorney, and such contact is
therefore of the type that is preotected by absolute immunity.
Nonetheless, if this Court were to conclude that absolute immunity is inappropriate in this
case, then qualified immunity applies. “On a qualified immunity claim the court confronts two
questions: (1) whether the plaintiff‟s allegations make out a deprivation of a constitutional right; and
(2) whether that right was clearly established at the time of the defendant‟s alleged misconduct.” Ault
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v. Speicher, No. 09-2104, slip op. at 8 (7th Cir. Mar. 3, 2011). Furthermore, “[i]n order to carry her
burden of proving that the constitutional right she claims Defendant violated was clearly established,
Plaintiff must either (1) present case law that has articulated both the right at issue and applied it to a
factual circumstance similar to the one at hand or (2) demonstrate that the „contours of the right are
so established as to make the unconstitutionality obvious.‟” Id. at 9 (quoting Boyd v. Owen, 481 F.3d
520, 526-27 (7th Cir. 2007)).
As demonstrated in Section I. above, Plaintiff in this case has failed to meet her burden, and
this Court must therefore grant Defendant‟s request for dismissal. First, Plaintiff‟s accusations do not
imply the deprivation of any constitutional right. The Constitution does not protect Plaintiff from
feeling repulsed by a man‟s interest in her. The Constitution does require that public officials not
engage in sexual harassment and that they not deprive any person of due process of the law. Plaintiff
has stated in her Brief that she does not intend to pursue any Due Process claims, as her due process
rights were never violated. Plaintiff‟s ex-boyfriend was prosecuted and sentenced appropriately, and
Plaintiff was apprised of the status of the case throughout those criminal proceedings. (Compl. 3, 6.)
With respect to sexual harassment, Plaintiff has failed to demonstrate, even when her additional
submissions are considered along with the Complaint, that sexual harassment or intentional sex
discrimination took place.
Second, based upon the status of the law at the time Defendant texted Plaintiff, Defendant
would have had no way of knowing that such actions might constitute sex discrimination or a violation
of equal protection, and the unconstitutionality of his actions (if they were in fact unconstitutional) is
therefore anything but obvious.
The cases cited by Plaintiff in her Brief, including Markham v. White, 172 F.2d 486 (7th Cir.
1999), take place in either an educational setting or in a workplace environment, and every single one
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of them involves more than “„a single, innocent, romantic solicitation which inadvertently causes
offense to its recipient.‟” Bohen, 799 F.2d at 1186, ¶ 26. Plaintiff in this case was in no way under the
authority or control of Defendant in the way that a student or employee would be, and Defendant had
no reason to believe Plaintiff would feel herself to be beholden to him in any way. (Decl. of Def. K.K.
¶16.) Plaintiff claims to have been concerned that Defendant might stop prosecuting her exboyfriend‟s case if she rejected him, but Defendant never gave her any indication that he would stop
pursuing the case against S.K. in the event his proposals were turned down. (Decl. of Pl. S.V., Ex. A;
Decl. of Def. K.K. ¶13.) Instead, he twice asked, point blank, whether Plaintiff wanted him to stop
texting her and told her that any relationship would move slowly to allow for S.K.‟s case to be
completed. (Id. at ¶¶ 13 and 14) The fact that Plaintiff had unreasonable fears about Defendant does
not heighten Defendant‟s conduct to the level of sex discrimination, especially where the case law
existent at the time the text messages occurred used a reasonable person standard in evaluating
alleged harassment and did not even hint at the possibility that asking another adult for a date and a
relationship via text message, even if done in a way that is unattractive to the recipient, might
constitute sex discrimination. See Section I., supra. At no time did Defendant know his text
conversation could rise to the level of a constitutional violation. (Decl. of K.K. ¶ 19).
Because Defendant was acting well within the scope of his duties as District Attorney, and
because there was no way for him to know that his text messages to Plaintiff could be discriminatory,
qualified immunity must attach if absolute immunity does not, resulting in a summary judgment
dismissal of Plaintiff‟s claims.

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III.

Defendant’s Motion for Summary Judgment and, in the alternative, Motion to Dismiss
pursuant to Fed. R. Civ. Pro. 12(b)(6) has been properly pled and must be granted.
The local rules of civil procedure do not preclude the simultaneous filing of motions for

dismissal and summary judgment. In fact, Seventh Circuit case law recognizes this type of pleading as
valid. For example, in Line Const. Ben. Fund v. Allied Elec. Contrac., 591 F.3d 576 (7th Cir. 2010),
the court states in passing that “Allied moved to dismiss Lineco‟s action for lack of standing or, in the
alternative, for partial summary judgment . . .” without commenting further or noting any procedural
error. Id. at 576. Similarly, in Wisconsin v. Ho-Chunk, 512 F.3d 921 (7th Cir. 2008), the court
acknowledges that “The Nation . . . brought a motion to dismiss or, alternatively, for summary
judgment regarding the State‟s amended complaint.” Id. at 921. The district court addressed the
motions as pled, and the court of appeals addressed the motions de novo, with no mention of a
procedural error. In Porco v. Trustees of Indiana University, 453 F.3d 390, 390 (7th Cir. 2006), “[t]he
defendants moved to dismiss [the] suit for lack of standing, and moved in the alternative for summary
judgment. The district court dismissed the suit in part and granted the defendants‟ motion for
summary judgment as to the remainder.” The Plaintiff appealed the district court‟s decision on other
grounds, and the court of appeals dismissed the appeal. Id. In Tri-Gen v. Intern. Union Operating
Engineers, 433 F.3d 1024, 1024 (7th Cir. 2006), the defendant “moved for dismissal and summary
judgment on all counts.” The circuit court in that case ruled in favor of the defendant, and the court
of appeals affirmed.
Finally, in the Second Circuit case Ying Jing Gan v. City of New York, 996 F.2d 522 (2d Cir.
1993), a case very similar to this one, a district attorney was sued for violation of a victim‟s
constitutional rights. The district attorney subsequently filed a motion “for dismissal of the complaint
pursuant to . . . Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief could be granted or,
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in the alternative, for summary judgment in their favor pursuant to Fed. R. Civ. P. 56(b) on grounds
of absolute, qualified, or Eleventh Amendment immunity.” Id. at 526, ¶ 13. The Second Circuit
ruled in favor of the defendant, making no mention of procedural issues in its ruling.
Defendant‟s motions in this case are consistent with the Federal Rules of Civil Procedure, the
Local Rules, and the above case law. Not only are they pled properly, but also this Court must grant
them under the circumstances present in this case. The motion to dismiss for failure to state a claim
for relief must be granted because the facts as stated in the Complaint fail to rise to the level of a
constitutional violation, and Defendant‟s motion for summary judgment must be granted because,
even in light of the additional submissions filed by the parties, Defendant is entitled to absolute or
qualified immunity and has not violated Plaintiff‟s constitutional rights.
IV.

The Declaration of Michael R. Fox and attached letter of the Wisconsin District Attorneys
Association (WDAA) must be stricken from the record because it is inadmissible hearsay and
is irrelevant to the accusations contained in the Complaint.
According to the Federal Rules of Evidence, hearsay is defined as “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.” Fed. R. Evid. 801(c). “Hearsay is not admissible” pursuant to Rule 802, except
as provided for in the limited exceptions listed in the Rules. Fed. R. Evid. 802. In addition, the Rules
provide that only relevant evidence, that is, “evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence,” is admissible. Fed. R. Evid. 401-02.
The letter of the Wisconsin District Attorneys Association fails to satisfy either of the above
rules and must therefore be stricken from the record. With respect to relevancy, the letter has no
bearing on the probability of any of the specific facts asserted by Plaintiff in her complaint or on the
alternative facts asserted. It makes several conclusory statements about Defendant‟s intentions but
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offers no factual evidence in support of those statements. Furthermore, the letter constitutes hearsay
because it has been offered for purposes of proving the truth of the conclusory statements contained
therein and for purposes of proving the truth of the matters asserted in Plaintiff‟s Brief. Either way,
the letter is a statement made by someone other than the declarant, Attorney Fox, and it does not fall
within the scope of any hearsay exceptions enumerated in the Rules of Evidence. (See Decl. of
Michael R. Fox.)
Specifically, the letter is not a “prior statement by a witness” or an “admission by a party
opponent” as provided for in Rule 801(d). In order to be considered an admission by the Defendant,
the letter would have to be one of the following: “A) the party‟s own statement, . . . or (B) a statement
of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person
authorized by the party to make a statement concerning the subject, or (D) a statement by the party‟s
agent or servant . . . , or (E) a statement by a coconspirator of a party during the course and in
furtherance of the conspiracy.” Other exceptions to the hearsay rule where the declarant is
unavailable to testify include former testimony of a witness, a statement under belief of impending
death, a statement against interest, a statement of personal family history, or a forfeiture by
wrongdoing. Fed. R. Evid. 804(b). None of the above apply in this case, and the only remaining
exception occurs when “the court determines that (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of
these rules and the interests of justice will best be served by admission of the statement into
evidence.” Fed. R. Evid. 807.
If this letter is meant to be proof of Defendant‟s intentions, then it must fail to meet any of
the above exceptions. It would in fact, defeat the purposes of these rules and the interests of justice if
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an accusatory letter containing conclusory statements regarding a defendant‟s subjective intentions is
admitted as evidence, especially when the record contains not only direct statements from the
Defendant but also evidence in the form of a conversation between the parties and other declarations.
The letter must be stricken from the record in this case for failure to satisfy the Rules of Evidence.
CONCLUSION
Based upon the above, Defendant respectfully submits that this Court must dismiss Plaintiff‟s
complaint for failure to state a claim on which relief can be granted or, in the alternative must grant
Defendant‟s request for summary judgment based upon the fact that he is entitled to absolute or
qualified immunity. In addition, this Court must strike the Declaration of Michael R. Fox and
accompanying letter from the record.
Dated this 29th day of June, 2011.
HAMMETT, BELLIN & OSWALD L.L.C.
_______/s/ Robert E. Bellin, Jr. _______________
ROBERT E. BELLIN, JR.
Attorney for Defendant
675 Deerwood Avenue
Neenah, Wisconsin 54956
[phone]
State Bar No.: 1023945

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