Winkler Holmes v. Federal Deposit Insurance Corporation et al

Filing 34

ORDER signed by Judge J P Stadtmueller on 4/19/11 granting in part and denying in part 30 plaintiff's Rule 7(h) Expedited Motion to Clarify; the court will decide the motion to remand first, but the plaintiff's request to submit late briefing on the motion to stay is denied. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GLORIA WINKLER HOLMES,
Plaintiff,
v.

Case No. 11-CV-211

FEDERAL DEPOSIT INSURANCE CORPORATION,
GAYLE WINKLER KOCH,
GARRY R. WINKLER, and
GREGORY R. WINKLER,
Defendants.

ORDER
On April 5, 2011, plaintiff Gloria W inkler Holmes (“Holmes”) filed a Rule 7(h)
Expedited Motion to Clarify (Docket #30). That motion requests that the court clarify
whether it will rule first on defendant Federal Deposit Insurance Corporation’s
(“FDIC”) March 1, 2011 Motion to Stay (Docket #8) or Holmes’ March 18, 2011
Motion to Remand to State Court (Docket #23). The motion also requests that,
should the court find it has subject matter jurisdiction, Holmes be granted leave to
file a response brief to FDIC’s Motion to Stay. The court will decide the motion to
remand first, but will deny Holmes leave to respond to the motion to stay.
This case arises from a dispute over a series of trusts administered by First
Banking Center, a bank for which FDIC has now been appointed as statutory
receiver. More relevant to the instant motion, however, is a review of the procedural
history thus far. On February 25, 2011, FDIC removed the case from W isconsin

state court. Pending at the time of removal was a motion to dismiss the complaint
by First Banking Center, now FDIC, and defendant Gayle W inkler Koch (“Koch”).
That motion also sought dismissal of the cross-claims against FDIC and Koch by codefendants Garry R. Winkler and Gregory W inkler. Shortly after removal, FDIC
submitted a Motion to Stay (Docket #8) on March 1, 2011, seeking a stay until
exhaustion of a mandatory administrative claims process set forth in the Financial
Institutions Reform Recovery and Enforcement Act of 1989, Pub. L. No. 101-73, 103
Stat. 183 (1989). Holmes’ response brief was due on March 25, 2011,1 but, rather
than file a response, she instead submitted a Motion to Remand to State Court on
March 18, 2011. Holmes has not filed a response to FDIC’s Motion to Stay at this
point, nor did she request an extension prior to the deadline’s passing. Upon a lack
of response from Holmes to the Motion to Stay, FDIC submitted a letter (Docket #28)
to this court on April 1, 2011, along with a proposed order, asking for entry of the
stay, to include staying FDIC’s obligation to respond to Holmes’ Motion to Remand
to State Court.2 The same day, Holmes submitted a letter (Docket #29) opposing
the entry because of the pending motion to remand. On April 5, 2011, Holmes then
submitted the instant motion asking for clarification as to which motion the court will
dispose of first, arguing specifically that the court should dispose of the motion to
remand first. Holmes further requests that, should the court find that subject matter

1

See Civ. L. R. 7; Fed. R. Civ. P. 6(d), 5(b)(2)(E).

2

FDIC has since properly responded to the Motion to Remand.

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jurisdiction exists (or presumably, should the court choose to dispose of the Motion
to Stay first), she be granted leave to file a response to the Motion to Stay.
Courts have a great deal of discretion to decide the order in which they will
dispose of multiple motions. Hoptowit v. Spellman, 753 F.2d 779, 782 (9th Cir.
1985); see Crockett v. R.J. Reynolds Tobacco Co., No. Civ.A. G-04-505, 2004 W L
2495441, at *1 (S.D. Tex. Nov.3, 2004) (“federal law does not prescribe any
particular order for consideration of motions”); cf. Channel Bell Assocs. v. W.R.
Grace & Co., No. 91 Civ. 5485, 1992 W L 232085, at *2 (S.D.N.Y. Aug. 31, 1992)
(deciding order in which to consider motions based on conservation of judicial
resources). Holmes cites to a variety of case law to argue that subject matter
jurisdiction is a priority determination for a court. Regardless of whether the court
might be required to consider the Motion to Remand first, it is clearly within the
court’s discretion to do so, and likewise makes the most sense here in terms of
judicial efficiency. Thus, the court will decide the Motion to Remand first.
As to Holmes’ briefing on the Motion to Stay, the court will deny leave to
submit a response given that she has not shown excusable neglect. Per local rule,
any materials in opposition to a motion must be filed within twenty-one days. Civil
L. R. 7(b). A court may, for good cause, extend the time to comply with a deadline
“on motion made after the time has expired if the party failed to act because of
excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). In determining whether excusable
neglect exists, a court should consider “prejudice to the defendant, and the reason

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for the delay.” Murphy v. Eddie Murphy Prods., Inc., 611 F.3d 322, 324 (7th Cir.
2010). The Murphy court cited to a Supreme Court case that laid out other factors
to consider: length of delay and potential impact on the proceedings, and whether
the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 395 (1993).3 “[T]he determination is at bottom an equitable
one.” Id. Such late filings may be permissible when “caused by inadvertence,
mistake, or carelessness, as well as by intervening circumstances beyond the party’s
control.” See id. at 388.
Holmes cites no authority to support her request for leave to file. Instead, in
her motion, Holmes states that she filed the Motion to Remand “effectively [as] a
response” to the Motion to Stay. It is certainly reasonable to attempt to conserve
clients’ resources where appropriate, but the court notes that, without an order or
other direction from the court, briefing obligations are not suspended simply because
of a belief that one pending issue or another should be resolved first. Holmes never
requested an extension or a stay prior to the passing of the deadline. In weighing
the identified factors, the court finds that the danger of prejudice to FDIC is low, as
is the potential length of delay. As the court will decide the Motion to Remand first,
and that motion is not yet fully briefed, allowing Holmes to submit a responsive brief
and then FDIC time to file a reply will extend the proceedings less than under other

3

The Seventh Circuit has stated that Pioneer applies to any interpretation of “excusable
neglect” under federal procedure. Raymond v. Ameritech Corp., 442 F.3d 600, 606 (7th Cir. 2006).

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circumstances. As such, the danger of prejudice is reduced as the only seeming
prejudice FDIC faces is having a counter argument placed in front of the court. The
delay itself, particularly so near the beginning of the proceedings, is not greatly
prejudicial. On the other hand, the reason for delay weighs against Holmes. As she
admits, Holmes failed to file responsive briefing simply on the basis of conserving
resources. This in fact shows a lack of any inadvertence or mistake (though it could
arguably be careless). Holmes appears to have known exactly when the deadline
was and in fact chose to file the motion to remand rather than a response. Under
these circumstances, it is hard to conclude any neglect was excusable. As the
Seventh Circuit has stated before, “[w]e live in a world of deadlines. . . . The practice
of law is no exception. A good judge has a right to assume that deadlines will be
honored.” Raymond, 442 F.3d at 606 (citing Spears v. City of Indianapolis, 74 F.3d
153, 157 (7th Cir. 1996)). In light of that concern, and Holmes’ apparently cognizant
choice to file a motion rather than a response brief, the reason behind the delay
outweighs both the prejudice and impact of delay factors. Finally, the good faith
factor is inconclusive; there is little here to swing the factor one way or the other.
Thus, the court finds a lack of excusable neglect, thereby making it most appropriate
to deny Holmes leave to file a responsive brief.
Accordingly,

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IT IS ORDERED that the plaintiff’s Rule 7(h) Expedited Motion to Clarify
(Docket #30) be and the same is hereby GRANTED in part and DENIED in part.
The court will decide the motion to remand first, but the plaintiff’s request to submit
late briefing on the motion to stay is denied.
Dated at Milwaukee, W isconsin, this 19th day of April, 2011.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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