Dantzler v. City of Milwaukee et al

Filing 40

ORDER Denying Motion to Compel Discovery and Extend the Scheduling Order 26 and Motion to Strike or Stay Defendant's Motion for Summary Judgment 25 . (cc: all counsel) ((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIE DANTZLER,
Plaintiff,
and
U.S. DEPT. OF HEALTH AND HUMAN
SERVICES, CENTER FOR MEDICARE
& MEDICAID SERVICES,
Involuntary Plaintiff,
v.

Case No. 10-C-0675

CITY OF MILWAUKEE, JEFFREY THIELE,
MICHAEL WAWRZYNIAKOWSKI,
and UNITED HEALTH CARE OF WISCONSIN, INC.,
Defendants.
ORDER DENYING MOTION TO COMPEL DISCOVERY AND EXTEND THE
SCHEDULING ORDER (DOC. 26) AND MOTION TO STRIKE OR STAY
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DOC. 25)
Plaintiff, Willie Dantzler, moves to (1) compel the City of Milwaukee, Jeffrey Thiele,
and Michael Wawrzyniakowski to respond to one interrogatory and two document
production requests, (2) extend the discovery deadline, and (3) strike or stay a decision on
defendants’ motion for summary judgment. Discovery closed on September 13, 2011.
The dispositive motion deadline was November 15, 2011; and the defendants, except for
United Health Care, moved for summary judgment on that date. Dantzler’s motions to
compel, for extension of time, and to strike or stay the summary judgment motion were filed
on December 16, 2011.
On July 12, 2011, Dantzler filed a motion to compel (Doc. 17) concerning the same
interrogatory and document production requests. At an in-court conference held July 13,

2011, the court denied the motion because Dantzler’s counsel had failed to comply with
the local rule requiring a good faith effort at conferring with opposing counsel before filing
the motion. (See Doc. 18.) Dantzler’s attorney stated that he had made numerous phone
calls to defense counsel and had left messages, and defense counsel had returned his
call. The court found the “phone tag” to be insufficient effort.
For the reasons set forth below, the motion to compel and to extend the discovery
period will be denied. First, the motion was not filed timely. Plaintiff’s counsel was on
notice regarding the discovery deadline as of July 13, 2011, and that he had to put forth
additional effort to confer with defense counsel. Yet he filed no motion to compel before
discovery closed two months later on September 13, 2011. Not until three months after
discovery closed did plaintiff seek the motion to compel and to extend discovery.
Moreover, Dantzler’s counsel fails to provide any good cause or excusable neglect for the
delay as required by Fed. R. Civ. P. 6(b).
It is within the court’s discretion to deny a motion to compel as untimely in
circumstances like these. See Packman v. Chi. Tribune Co., 267 F.3d 628, 646-47 (7th
Cir. 2001) (“[D]espite the court’s warning that she should not ‘tarry’ in filing a motion to
compel, she waited to file her motion to compel until after discovery had closed, the
summary judgment briefing schedule had been set, and defendants had filed their
summary judgment motion. In light of her lack of diligence in pursuing the perceived
inadequacies in discovery, the district court did not abuse its discretion in denying Ms.
Packman’s motion to compel as untimely.”).

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Second, Dantzler’s counsel again fails to demonstrate compliance with the local rule
concerning good faith attempts to resolve the discovery dispute. Civil L.R. 37 (emphasis
added) reads:
All motions to compel disclosure or discovery pursuant to Fed. R. Civ.
P. 26 through 37 must be accompanied by a written certification by the
movant that, after the movant in good faith has conferred or attempted to
confer with the person or party failing to make disclosure or discovery in an
effort to obtain it without court action, the parties are unable to reach an
accord. The statement must recite the date and time of the conference or
conferences and the names of all parties participating in the conference or
conferences.
Counsel discusses his attempts to resolve the discovery dispute as follows in his
memorandum in support of his current motion to compel:
Prior to the filing of this Motion, Plaintiff made numerous attempts to
handle these matters amicably with Defense Counsel. Plaintiff’s Counsel
attempted on no less than four occasions to contact Defense Counsel to
discuss the discovery requests, leaving messages each time. Plaintiff’s
Counsel does not have any record of receiving any phone calls or messages
from Defense Counsel until July, 7, 2011. [sic] On that date, Defense
Counsel left a message with Plaintiff’s Attorney alleging that she has been
attempting to return Plaintiff’s Counsel’s phone calls and leaving messages.
However, Plaintiff’s Counsel has no record of such messages nor recalls
such phone calls and/or messages, and for these reasons, Plaintiff has filed
this Motion.
(Doc. 27 at 2.) This paragraph is identical (typographical error included) to a paragraph
in the memorandum Dantzler filed on July 12, 2011, in support of his prior motion to
compel. (See Doc. 17 at 2.)
Although Civil L.R. 37 expressly requires dates and times of conferences, a
reasonable interpretation of the rule is that a party seeking to establish that he made a
good faith effort to confer, but no conference occurred through no fault of his own, must
set forth the specific dates and times of his attempts. But Dantzler fails to set forth any

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details regarding his calls to defense counsel. Moreover, counsel’s reference to a defense
call of July 7, 2011, and the verbatim repetition of his prior brief together signal that he
made no further attempt to confer with defense counsel after the July 13, 2011 hearing.
All he references are his attempts to confer prior to that date. What he sets forth now was
deemed insufficient on July 13, 2011, and remains insufficient now.
Finally, Dantzler’s discovery requests were overly broad and burdensome to
defendants, the effort required to obtain the discovery outweighs its likely benefit, and
Dantzler could have obtained some of the information himself. See Fed. R. Civ. P.
26(b)(2)(C). For instance, Dantzler asked defendants to “[i]dentify any person who did not
witness the incidents or events which are the subject of this suit, but who has knowledge
of the incidents.” (Doc. 26 at 2 (quoting Interrogatory 4).) How are defendants to ascertain
all of the people with whom Dantzler, the AT&T repairman, and Louis Smith discussed the
incident? How can defendants know about everyone who read a police report or copy of
the ticket given Dantzler—such as a secretary or attorney at defense counsel’s office or
an employee of the police department who processed tickets? If Dantzler specifically
wanted to know the individuals with whom the defendant officers discussed the incident,
he could have asked the officers about it at deposition. But he did not.
Also, Dantzler asked for “all intake logs, journals, or entries, taken on the date of the
incident, from the Milwaukee Police District Seven station,” with identification of each
person arrested and detained at the station and where each person was held at the time
of booking and release. (Doc. 26 at 2-3 (quoting Request 2).) Although information as to
others being detained at the station at the same time he was there may be relevant, it is
unclear how information regarding individuals detained over the entire day would lead to
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the discovery of admissible evidence. In addition, Dantzler asked for any psychiatric
reports contained in the defendant officers’ personnel files, yet it is unclear how those
reports would have relevance to the case or lead to admissible evidence. Dantzler raised
no issue in the case involving the psychiatric state of either officer.
Dantzler’s motion to strike or stay defendant’s summary judgment motion is based
on the same reasons and argument as his motion to compel and for extension of time.
Therefore, it too fails. Consequently,
IT IS ORDERED that Dantzler’s motion to compel discovery and to extend the
scheduling order (Doc. 26) and motion to strike or stay the summary judgment motion
(Doc. 25) are denied.
The court will address the summary judgment motion in a separate order.
Dated at Milwaukee, Wisconsin, this 3rd day of August, 2012.
BY THE COURT

/s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
CHIEF U. S. DISTRICT JUDGE

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