Moore v. Milwaukee County et al

Filing 51

ORDER signed by Judge J P Stadtmueller on 5/20/15: granting 40 Defendants' Motion to Amend; adopting [40-1] Defendants' proposed amended answer as the Defendants' operative Answer in this case; denying 38 Plaintiff's Motion for Judgment on the Pleadings; and, the Court will not abstain in this case. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LYNETTE MOORE,
Plaintiff,
v.

Case No. 14-CV-1101-JPS

DENA HUNT and
MILWAUKEE COUNTY,

ORDER
Defendants.
This matter is before the Court in two respects. First, the Court
requested that the parties brief abstention issues in this case. (Docket #30).
They complied (Docket #31, #34, #35), so the Court can now address that
issue. Second, shortly after the abstention issues were briefed, the plaintiff,
Lynette Moore, moved for judgment on the pleadings. (Docket #38). Ms.
Moore’s motion, in turn, prompted a motion from the defendants, Dena
Hunt and Milwaukee County (collectively, “the County”), to amend the
County’s answer in order to correct (what it asserts to be) a clerical error that
it had not discovered until receiving Ms. Moore’s motion for judgment on the
pleadings. (Docket #40). Ms. Moore’s motion for judgment on the pleadings
relies heavily on that clerical error. (See Docket #38). Both the motion for
judgment on the pleadings and the motion to amend are now fully briefed
and also ready for a decision.
The Court will now resolve the pending issues before it. The Court
will begin by addressing the interrelated motion for judgment on the
pleadings and motion to amend. Thereafter, the Court will resolve the issue
regarding abstention.

1.

MOTION FOR JUDGMENT ON THE PLEADINGS AND
MOTION TO AMEND
In support of her motion for judgment on the pleadings, Ms. Moore

points to an admission in the County’s second amended answer (Docket #29).
Specifically, the County responded to Paragraph 64 of Ms. Moore’s second
amended complaint by stating: “64. Answering Paragraph 64 of Plaintiff’s
Amended Complaint, admit.” (Docket #29 ¶ 64). Paragraph 64 of Ms.
Moore’s second amended complaint, meanwhile, had alleged:
64.

Defendants, through their policy and custom, deprived
Plaintiff Lynette Moore of her right protected by 42
U.S.C. § 1437f, 24 C.F.R. § 982.302(a), the County’s
Administrative Plan, Part 5-II.E., and HUD Regulations,
24 C.F.R. §§ 982.54(c), 982.303(b)(1), to have her voucher
issued in accordance with a public housing authority’s
administrative plan and the implementing federal
regulations, in the following respects:
a.

Issuing a voucher without a request from the
participant;

b.

Failing to inform the participant promptly that a
voucher has been issued;

c.

Failing to extend the voucher beyond June 17,
2014;

d.

Failing to issue a written response to Ms.
Moore’s requests for an extension; and

e.

Failing to consider the factors listed in the
Administrative Plan regarding when an
extension should be granted.

(Docket #28, ¶ 64).
In her brief in support of her motion for judgment on the pleadings,
Ms. Moore provides very little argument and a single case citation regarding
the judgment on the pleadings standard. (Docket #39 at 2). In full, she wrote:

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A court should grant a motion for judgment on the pleadings
if no material issue of fact needs to be resolved and the moving
party is entitled to judgment as a matter of law. Nat’l Fid. Life
Ins. Co. v. Karaganis, 811 F.2d 357, 358 (7th Cir. 1987). In
evaluating such a motion, the court may only consider matters
presented in the pleadings. Id.
In this case, Defendants do not dispute the facts underlying
Moore’s third claim. Defendants additionally admitted liability
on that claim. Specifically Defendants admitted that their
customs and policies, which resulted in the actions described
in Moore’s third claim, deprived Moore of her rights protected
by federal law. Accordingly there are no issues of fact or law
for the Court to decide regarding Defendants’ liability on
Moore’s third claim. Although the issue of monetary damages
as a result of that claim remains a matter for summary
judgment or trial, Moore is entitled to partial declaratory
judgment based on the pleadings alone.
(Docket #39 at 2). She provides more detailed analysis in her reply brief, but
still concludes that the Court should find that the County has admitted
paragraph 64. (Docket #48 at 5). In other words, Ms. Moore’s motion for
judgment on the pleadings seems to turn entirely on the Court’s
determination of whether the County, in fact, admitted paragraph 64.
Thus, the County has moved to amend its answer to the plaintiff’s
second amended complaint. (Docket #40). In support, the County asserts that
its purported admission was merely a clerical error and that it should be
allowed to amend its answer under Rule 15(a)(2). (See Docket #41).
Specifically, the County alleges that it accidentally filed an incorrect version
of its answer. (Docket #41 at 4; Docket #42 ¶¶ 6–9).
The Court will address the motion to amend first. Indeed, this is the
most important issue: as the Court has already noted, if it allows

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amendment, then Ms. Moore’s motion for judgment on the pleadings
automatically fails.
When a party requests permission to amend a pleading under Rule
15(a)(2), “‘[t]he court should freely give leave [to amend] when justice so
requires’”; this mandate is one to be heeded. Runnion ex rel. Runnion v. Girl
Scouts of Greater Chicago and Northwest Indiana, No. 14-1729, --- F.3d ----, 2015
WL 2151851, *4 (7th Cir. May 8, 2015) (quoting Foman v. Davis, 371 U.S. 178,
182 (1962)). In Runnion, the Seventh Circuit advised the district courts that
denial of an opportunity to amend would “be reviewed rigorously on
appeal.” Id. at *5. Granted, Runnion presents a different situation than this
one: Runnion involved a district court’s denial of a plaintiff’s motion to
amend its complaint, whereas this case involves the defendants’ request to
amend their answer. Nonetheless, in reaching its decision, the Runnion court,
quoting extensively from an earlier case, endorsed “‘[t]he federal rule policy
of deciding cases on the basis of the substantive rights involved rather than
on technicalities.’” Id. at *5 (quoting Barry Aviation, Inc. v. Land O’Lakes
Municipal Airport Comm’n, 377 F.3d 682, 687; 5A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)).
That same principle—the policy of deciding cases on the basis of
substantive rights rather than technicalities—also applies here. The County
clearly does not admit liability, regardless of what it wrote in its answer.
Moreover, the Court finds it exceedingly unlikely that Ms. Moore genuinely
believed that the County was admitting liability. If the County were, indeed,
admitting liability, why wouldn’t the parties have entered a consistent
stipulation? It is clear that the County made an unfortunate clerical error, and
that Ms. Moore is now trying to achieve judgment in her favor by relying on
that technicality rather than upon the merits, in violation of the principle
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discussed by Runnion. 2015 WL 2151851, at *5. Simply put, in this case, justice
requires that the County be given leave to amend its complaint.
Moreover, the Court cannot find any reason to deem the amendment
improper. “[C]ourts in their sound discretion may deny a proposed
amendment if the moving party has unduly delayed in filing the motion, if
the opposing party would suffer undue prejudice, or if the pleading is futile.”
Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 2008).
The County did not delay in filing its motion to amend; it filed the
motion five days after being put on notice that there was an issue. (See
Docket #38 (filed on April 3, 2015); Docket #40 (filed on April 8, 2015)). There
is no indication that Ms. Moore discussed the matter with the County before
filing its motion.
Ms. Moore’s strongest argument is that she would be prejudiced by
allowing the County to amend its answer. She asserts that her discovery
requests were all informed by the County’s purported admission. (Docket
#47). That may be that case, but then the Court questions why she did not
either: (1) simply clarify the issue with the County; or (2) move for judgment
on the pleadings earlier?
As to the first of those options, when Ms. Moore received the County’s
complaint and saw the surprising admission of liability on an important
point, the wisest course of action would have been to clarify the matter with
the County so that she could proceed with a clear understanding of the case
and the matters at issue. She did not do so, and thus at least some of any
prejudice can be attributed back to her. Ms. Moore asserts that she did not
see a need to clarify the issue with the County, because the County has
provided inconsistent answers throughout the pendency of the case. (E.g.,
Docket #47 at 2–5). The Court does not doubt that. Indeed, Ms. Moore
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highlights several troubling instances of inconsistency. More troubling, it
appears that communications between the attorneys have almost entirely
broken down.
While that is all unfortunate, it did not prevent Ms. Moore from
seeking clarification of the issue with the Court. Instead of immediately
moving for judgment on the pleadings after receiving the County’s answer,
Ms. Moore waited more than two months to do so. Again, this delay makes
any prejudice to her discovery rights partly attributable to her.
In any event, if Ms. Moore truly needs additional discovery on the
issue, the Court will consider granting her additional time to do so. She may
file a motion seeking additional time and providing the Court with an
overview of what she believes she will discover and how it might impact her
case. Thus, to the extent that any prejudice is attributable to the County’s
error, the Court can cure that prejudice by allowing additional discovery if
it finds such additional discovery to be necessary.
The pleading also would not be futile. The parties appear to
vigorously disagree over whether the County should be liable, and the Court
believes that this matter is best addressed on its merits after briefing from the
parties. See Runnion, 2015 WL 2151851, at *5.
For all of these reasons, the Court is obliged to grant the County’s
motion to amend. Likewise, the Court will deny Ms. Moore’s motion for
judgment on the pleadings.
The Court closes by noting that it is concerned with the parties’ lack
of cooperation. If the parties had simply sat down to talk with one another
about this issue, they could have saved each other and the Court significant
time and resources. While the County’s error in filing an incorrect brief is
certainly not a positive thing, it also is not an error of such magnitude as to
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compel judgment against it. Every attorney has likely had a moment where
he or she made a similar mistake. The professional response for Ms. Moore’s
attorneys would have been to advise the County of the (fairly obvious)
mistake and agree on a solution from there. Instead, Ms. Moore filed her
motion for judgment on the pleadings seemingly without even discussing the
issue with the County. There is blame on both sides of this situation. But,
clearly, going forward, the parties need to try to repair their communications
so that they can address these issues in a professional way and avoid the
wasted effort and costs that attended these motions.
2.

ABSTENTION
Ms. Moore has helpfully identified the four bases for abstention (or

abstention-like concepts) that the Court might consider: Pullman abstention;
Burford abstention; Younger abstention; and the Colorado River doctrine. (See
Docket #31). These concepts are rare exceptions to the general rule that the
Court has a “‘virtually unflagging’” obligation to hear and decide cases over
which it has jurisdiction. Sprint Comm’ns, Inc. v. Jacobs, --- U.S. ----, 134 S.Ct.
584, 591 (2013) (quoting Colorado River Water Conservation Dist. v. United
States, 424 U.S. 800, 817 (1976)). Even “[p]arallel state-court proceedings do
not detract from that obligation.” Sprint, 134 S.Ct. at 591 (citing Colorado
River, 424 U.S. at 817). With that generally high standard in mind, and
analyzing each of the four bases separately, the Court determines that none
apply to the situation at hand.
The County has not addressed Pullman or Burford abstention, so the
Court understands that the County does not assert that either of those bases
for abstention applies. In any event, neither applies. Pullman abstention
applies when “‘(1) there is a substantial uncertainty as to the meaning of the
state law and (2) there exists a reasonable probability that the state court’s
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clarification of state law might obviate the need for a federal constitutional
ruling.’” Wisconsin Right to Life State Political Action Committe v. Barland, 664
F.3d 139, 150 (7th Cir. 2011) (quoting Int’l Coll. of Surgeons v. City of Chicago,
153 F.3d 356, 365 (7th Cir. 1998); citing R.R. Comm’n of Tex. v. Pullman Co., 312
U.S. 496 (1941)). The parties have not identified any uncertainty in state law
or any probability that a state court will clarify any such issue; likewise, the
Court cannot find either of those two requirements. Thus, Pullman abstention
is not appropriate in this case. Burford abstention applies first when a federal
court “is faced with ‘difficult questions of state law’ that implicate significant
state policies,”and second “when concurrent federal jurisdiction would ‘be
disruptive of state efforts to establish a coherent policy with respect to a
matter of substantial public concern.’” Adkins v. VIM Recycling, Inc., 644 F.3d
483, 504 (7th Cir. 2011) (citing New Orleans Public Serv., Inc. v. Council of City
of New Orleans, 491 U.S. 350, 361 (1989) (“NOPSI”); Colorado River, 424 U.S. at
814). With regard to the second of those two situations, the “mere existence
of a statewide regulatory regime is not sufficient. The state must ‘offer some
forum in which claims may be litigated,’ and this forum must ‘stand in a
special relationship of technical oversight or concentrated review to the
evaluation of those claims.’” Adkins, 644 F.3d at 504 (quoting Property &
Casualty Insurance Ltd. v. Central National Ins. Co. of Omaha, 936 F.2d 319, 323
(7th Cir. 1991)). Again, neither party has identified any facts that would
implicate this form of abstention, and the Court cannot identify any.
The County does, however, argue that Younger abstention applies.
Younger abstention applies “in exactly three classes of cases: where federal
jurisdiction would intrude into ongoing state criminal proceedings, or into
certain civil enforcement proceedings (judicial or administrative) akin to
criminal prosecutions, or into civil proceedings ‘that implicate a State’s
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interest in enforcing the orders and judgments of its courts.’” Mulholland v.
Marion Cty. Election Bd., 746 F.3d 811, 815 (7th Cir. 2014) (quoting Sprint, 134
S.Ct. at 588). Younger is specifically limited to those “three ‘exceptional’
situations,” and, if a case does not present one of those situations, then
“Younger abstention is not appropriate even when there is a risk of litigating
the same dispute in parallel and redundant state and federal proceedings.”
Mulholland, 746 F.3d at 816 (citing Sprint, 134 S.Ct. at 591; Nader v. Keith, 385
F.3d 729, 732 (7th Cir. 2004)).
This case certainly is neither criminal nor quasi-criminal in nature, so
it does not present either of the first two Younger situations.
On the other hand, whether this case falls under the third
Younger situation is a much closer question. Ms. Moore has two separate
actions proceeding right now: this federal action and a separate state action.
In both, she challenges the three separate terminations of her housing
benefits by the Milwaukee County Housing Authority (“MCHA”). However,
she asserts that the two actions differ in significant ways. According to Ms.
Moore, this federal action challenges only the first and second of the
MCHA’s terminations. (Docket #37 at 1–2). If successful in this federal
suit, Ms. Moore would be entitled only to a “retroactive and limited
reinstatement,” allowing Moore to recover damages from “the time [MCHA]
initially violated Moore’s rights to the time they issued a written decision.”
(Docket #37 at 3–4). In contrast to this federal action, Ms. Moore’s separate
state action involves a challenge to the MCHA’s written decision (the third
termination decision). (Docket #37 at 2). In that state suit, Ms. Moore seeks
reversal of the MCHA’s written termination decision (which, presumably,
would reinstate Ms. Moore’s housing benefit). (Docket #37 at 2, 4). So, this
federal case requires a determination of whether the MCHA violated Ms.
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Moore’s rights by: (1) terminating her benefit before her voucher expired; or
(2) failing to hold a hearing before terminating her. (Docket #37 at 4). The
state case, meanwhile, appears to involve a review of the MCHA’s written
termination decision on the merits, as opposed to on any constitutional
grounds. For these reasons, the Court agrees with Ms. Moore: this case does
not present a situation that “‘implicate[s] a State’s interest in enforcing the
orders and judgments of its courts.’” Mulholland, 746 F.3d at 815 (quoting
Sprint, 134 S.Ct. at 588). For these reasons, Younger abstention is
inappropriate.
The Colorado River doctrine also does not apply. “Pursuant to Colorado
River, a federal court may stay or dismiss a suit in federal court when a
concurrent state court case in underway, but only under exceptional
circumstances and if it would promote ‘wise judicial administration.’” Freed
v. J.P. Morgan Chase Bank, N.A., 756 F.3d 1013, 1018 (7th Cir. 2014) (quoting
Colorado River, 424 U.S. at 817–18).
To determine whether a stay is appropriate, the court is
required to conduct a two-part analysis. First, the court must
determine whether the state and federal court actions are
parallel. AAR Int’l Inc. v. Nimelias Enterprises S.A., 250 F.3d 510,
518 (7th Cir.2001). If the actions are not parallel, the Colorado
River doctrine does not apply and the court need not address
the second part of the analysis. Interstate Material Corp. v. City
of Chicago, 847 F.2d 1285, 1287 (7th Cir.1988). If, however, the
court determines that the proceedings are parallel, the court
must decide whether abstention is proper by carefully
weighing ten non-exclusive factors. AAR Int'l Inc., 250 F.3d at
522.
***
For a state court case to be parallel to a federal court case under
the Colorado River doctrine, there must be “a substantial
likelihood that the state litigation will dispose of all claims
presented in the federal case.” Lumen [Const. Co. v. Brant Const.
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Co., Inc.], 780 F.2d [691,] 695 [(7th Cir. 1985)]. The cases need
not be identical to fulfill the requirement of parallelism, but the
court must examine whether “substantially the same parties
are contemporaneously litigating substantially the same issues
in another forum.” Interstate Material Corp., 847 F.2d at 1288
(quoting Calvert Fire Ins. Co. v. American Mutual Reinsurance Co.,
600 F.2d 1228, 1229 n. 1 (7th Cir.1979)).
Freed, 756 F.3d at 1018–19. This case is not parallel to the state court case. As
far as the Court can tell, the state court’s decision will have no impact on this
case (aside from potentially impacting the damages calculation). (Docket #37
at 4 n.1). Certainly, there is not a substantial likelihood that it will dispose of
the issues in this case. Accordingly, the first requirement for application of
Colorado River is not satisfied, and the doctrine is inapplicable to this case.
Having found no basis for abstention, the Court will not abstain from
deciding this case.
3.

CONCLUSION
For the reasons described above, the Court will grant the County’s

motion to amend and accept the County’s proposed amended answer. The
Court will, accordingly, deny Ms. Moore’s motion for judgment on the
pleadings.
As to the Court’s request that the parties brief the issue of abstention,
the Court thanks them for their efforts and concludes that abstention is not
appropriate in this case.
Accordingly,
IT IS ORDERED that the County’s motion to amend (Docket #40) be
and the same is hereby GRANTED; the Court hereby ADOPTS the County’s
proposed amended answer (Docket #40, Ex. 1) as the County’s operative
answer in this case;

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IT IS FURTHER ORDERED that Ms. Moore’s motion for judgment
on the pleadings (Docket #38) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that the Court will not abstain in this
case.
Dated at Milwaukee, Wisconsin, this 20th day of May, 2015.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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