Howard et al v. Walker et al
ORDER signed by Judge Pamela Pepper on 1/11/2018. 81 Defendants' motion to strike plaintiff's amended proposed findings of fact DENIED; defendants' motion to stay reply deadline DENIED as moot. Defendants' reply, if they choose to file one, due by 1/12/2018. (cc: all counsel, via mail to Joshua Howard at Green Bay Correctional Institution) (cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 15-cv-557-pp
AND JOHN O’DONOVAN,
ORDER DENYING DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S
AMENDED PROPOSED FINDINGS OF FACT (DKT. NO. 81), DENYING AS
MOOT DEFENDANTS’ MOTION TO STAY (DKT. NO. 81), AND DIRECTING
DEFENDANTS TO FILE SUMMARY JUDGMENT REPLY WITHIN THIRTY
DAYS OF THE DATE OF THIS ORDER
On March 1, 2017, the defendants filed a motion for summary judgment.
Dkt. No. 55. On October 2, 2017, the plaintiff filed an amended response brief,
dkt. no. 78, amended objections to the defendants’ proposed findings of fact,
dkt. no. 79, and amended proposed findings of fact, dkt. no. 80. The
defendants have filed a motion to strike the plaintiff’s amended proposed
findings of fact, and motion for stay and extension of deadline for defendants’
summary judgment reply materials. Dkt. No. 81. The court denies those
motions, but gives the defendants a deadline by which to file a reply in support
of their motion for summary judgment.
By way of background, on May 23, 2017, the plaintiff filed his original
response to the defendants’ motion for summary judgment, dkt. no. 66,
objections to defendants’ proposed findings of facts, dkt. no. 67, proposed
findings of facts, dkt. no. 68, and a declaration with attached exhibits, dkt. no.
69, 69-1, 69-2, 69-3. On May 30, 2017, the plaintiff filed a supplemental
declaration, dkt. no. 71. On August 4, 2017, the court granted in part and
denied in part the defendants’ motion to strike the plaintiff’s response to
defendants’ motion for summary judgment. Dkt. No. 75. Specifically, the court
granted that part of the defendants’ motion that sought to strike the plaintiff’s
proposed findings of fact because he filed 200 proposed facts, in violation of
Civil L.R. 56(b)(2)(B)(ii), which sets a limit of 100 proposed facts for nonmovants. Dkt. No. 75 at 5.1 The court ordered that the plaintiff could file up to
100 proposed findings of fact by September 1, 2017. Id. at 5.
After requesting and receiving an extension of time, the plaintiff filed his
amended proposed findings of facts on October 2, 2017. Dkt. No. 80. Soon
after, the defendants filed the instant motion to strike. Dkt. No. 81. In support
of their motion, the defendants state that while the plaintiff submitted seventyfive amended proposed findings of fact, nearly all of the facts are compound
and violate the requirement in Civil L.R. 56(b)(2)(B)(ii) for “short numbered
paragraphs.” Dkt. No. 81 at 2. The defendants state that the plaintiff used
thirty-four typewritten pages to propose seventy-five facts, for an average of 2.2
The court also denied the defendants’ motion to strike the plaintiff’s medical
record exhibits and stated that it would allow the defendants to file objections
to any of the plaintiff’s materials they believe he had not properly
authenticated. Dkt. No. 75 at 5.
facts per page; in contrast, the defendants proposed 103 facts in twenty
typewritten pages, for an average of 5.15 facts per page. Id. at 2.
A party opposing a motion for summary judgment must file:
(ii) a statement, consisting of short numbered paragraphs, of
any additional facts that require the denial of summary judgment,
including references to the affidavits, declarations, parts of the
record, and other supporting materials relied upon to support the
facts described in that paragraph. A non-moving party may not file
more than 100 separately-numbered statements of additional
Civil L.R. 56(b)(2)(B)(ii) (E.D. Wis.).
The parties dispute whether the plaintiff’s facts comply with this rule.
The Local Rule, however, does not define “short numbered paragraph.” The
court will not analyze each of the plaintiff’s facts to determine whether it is
“short.” See Lemons v. City of Milwaukee, No. 13-C-0331, 2016 WL 3746571,
at *2 (E.D. Wis. July 8, 2016). Rather, the court will consider the proposed
facts and direct the defendants to respond to them. See also Civil L.R. 56(b)(9)
(E.D. Wis.) (“Collateral motions, such as motions to strike, are disfavored.”).
The defendants may object to any proposed fact, if appropriate. See Fed. R. Civ.
P. 56(c). The court will deny the defendants’ motion to strike.
The defendants also ask that the court stay the summary judgment
deadline. Dkt. No. 81 at 1. Instead of staying the defendants’ deadline to file
their reply, the court will set a new deadline. The court will deny as moot the
defendants’ motion to stay, and will give the defendants thirty days to file their
summary judgment reply. Id.
The court DENIES the defendants’ motion to strike plaintiff’s amended
proposed findings of fact. Dkt. No. 81.
The court DENIES AS MOOT the defendants’ motion to stay reply
deadline. Dkt. No. 81.
The court ORDERS that if the defendants wish to file a reply in support
of their motion for summary judgment, they shall do so within thirty days of
the date of this order (by Monday, January 12, 2018).
Dated in Milwaukee, Wisconsin this 11th day of January, 2018.
BY THE COURT:
HON. PAMELA PEPPER
United States District Judge
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