Brooks v. Complete Warehouse & Distribution LLC et al

Filing 54

ORDER signed by Judge Pamela Pepper on 5/30/2017 DENYING 43 Plaintiff's motion to alter or amend judgment and DENYING 50 Plaintiff's motion to enlarge record on appeal. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

LARRY DONNELL BROOKS,
Plaintiff,
v.

Case No. 15-cv-564-pp

COMPLETE WAREHOUSE &
DISTRIBUTION LLC, JOHN ARCURI,
MIKE MILLER, RON MALVIC,
REBECCA VUCKOVIC, JIM HANSON, and
RONALD NEUMTH,
Defendants.
ORDER DENYING PLAINTIFF’S MOTION
TO ALTER OR AMEND JUDGMENT (DKT. NO. 43) AND DENYING
PLAINTIFF’S MOTION TO ENLARGE RECORD ON APPEAL (DKT. NO. 50)
After this court granted the defendants’ motion to dismiss for failure to
state a claim, the plaintiff filed a motion to alter or amend judgment, dkt. no.
43, a supporting brief, dkt. no. 44, a notice of appeal, dkt. no. 45, and a motion
to enlarge the record on appeal, dkt. no. 50.
The plaintiff amended his complaint three times during the twenty-four
months that his case was pending. Despite this fact, the plaintiff failed to file a
complaint that stated a viable federal claim. While the plaintiff’s motion to alter
or amend judgment is extensive, and consists mostly of quotes from the court’s
order granting judgment on the pleadings, the final paragraph suggests that
the plaintiff believes that the court should have placed more weight on his Rule
26(f) plan than on his complaint. Dkt. No. 44 at 10. The plaintiff also cites a
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Ninth Circuit case regarding consolidation, and Rule 42(b), although it is not
clear what the plaintiff believes this court should have consolidated. Because
the plaintiff has not established a basis for altering or amending the judgment
or enlarging the record on appeal, the court will deny both motions.
A.

Procedural History

On May 11, 2015, the plaintiff filed a complaint against Complete
Warehouse & Distribution LLC and various individual defendants, alleging
various causes of action related to racial discrimination. Dkt. No. 1. The court
granted in part the plaintiff’s motion for leave to proceed in forma pauperis,
required the plaintiff to pay a $100 filing fee, and denied without prejudice his
motion to appoint counsel. Dkt. No. 6. A couple of months later, the plaintiff
amended his complaint. Dkt. No. 7. Three months later, the court granted the
plaintiff leave to amend the complaint, and denied without prejudice his second
motion for appointment of counsel. Dkt. No. 9.
Following the December 14, 2015 scheduling conference, the plaintiff
filed another amended complaint, listing seven causes of action. Dkt. No. 16.
The court gave the plaintiff permission to file this second amended complaint.
The court stated, however, that because the first and second amended
complaints each had consisted of only of a one-paragraph list of causes of
action, without including any facts explaining what it was the plaintiff asserted
that the defendants had done, it was going to require the plaintiff to file a third
amended complaint. Dkt. No. 17. The court required the plaintiff to file a third
amended complaint because it concluded that it would be an “insurmountable
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task” for the defendants to figure out how to respond to the second amended
complaint. Id. at 3. The court gave the plaintiff specific instructions regarding
how to prepare the third amended complaint, along with a clean complaint
form. Id. The plaintiff timely filed the third amended complaint. Dkt. No. 19.
The defendants answered the third amended complaint, dkt. no. 20, and
the court conducted the Rule 16 scheduling conference, dkt. no. 21. About
forty-five days later, however, the defendants filed a motion to dismiss, or
alternatively, a motion for summary judgment. Dkt. No. 22. (The defendants
asked the court to give the plaintiff additional time to respond after realizing
they had sent their motion to the wrong address. Dkt. No. 28. The court
granted that motion. Dkt. No. 29.)
Three days after the deadline, the plaintiff filed a motion for default and
alternative motion for default judgment. Dkt. No. 31. The plaintiff also filed a
“motion to share exhibits,” asking that the court share twenty-four exhibits
with the defendants, because he did not have the money to copy them. Dkt. No.
30. Assuming that the plaintiff did not understand that he needed to respond
to the motion to dismiss, the court denied the motion for default and default
judgment, but granted the plaintiff an additional extension of time to respond
to the motion to dismiss/motion for summary judgment. Dkt. No. 33. The
plaintiff finally did file a response (which the court received four days after the
deadline it had set), dkt. no. 35, and the defendants filed a reply, dkt. no. 36.

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The court construed the defendants’ motion as a motion for judgment on
the pleadings under Rule 12(c) and granted it. Dkt. No. 41. The court entered
judgment on January 13, 2017. Dkt. No. 42.
B.

Plaintiff’s Motion to Alter or Amend Judgment (Dkt. No.43)

On February 8, 2017, the plaintiff timely filed a motion to alter or amend
judgment under Rule 59(e) of the Federal Rules of Civil Procedure; in support
of the motion, he cited “pretrial conference error.” Dkt. No. 43. Two days later,
the plaintiff filed a notice of appeal. Dkt. No. 45.
To prevail on a motion to alter or amend judgment under Rule 59(e), the
“movant must present either newly discovered evidence or establish a manifest
error of law or fact.” Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th
Cir. 2000) (citing LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263,
1267 (7th Cir. 1995)). “Manifest error” means the “wholesale disregard,
misapplication, or failure to recognize controlling precedent,” not simply
disappointment of the losing party. Id. Rule 59 is not a tool for parties to
relitigate arguments or present new evidence that a party could have raised
initially. Sigsworth v. City of Aurora, 487 F.3d 506, 512 (7th Cir. 2007). The
decision to grant a Rule 59(e) motion lies in the sound discretion of this court.
See Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996).
The plaintiff’s Rule 59(e) motion does not describe any newly discovered
evidence. Rather, he argues that the court should have considered his Rule
26(f) plan as the complaint, and should have performed the duties a court is
required to perform at the pretrial conference. Dkt. No. 44 at 10.
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The plaintiff filed two complaints before he filed his Rule 26(f) plan. The
court did not review the initial complaint, dkt. no. 1, because the plaintiff filed
a first amended complaint on the same day he paid the filing fee, dkt. no. 7.
The defendants answered the first amended complaint. Dkt. No. 11. The
plaintiff then filed his Rule 26(f) statement, which he argues the court should
have treated as a complaint. Dkt. No. 13.
After the Rule 16 scheduling conference, the plaintiff filed another
amended complaint. Dkt. No. 16. On May 30, 2016, the court issued an order
treating that filing as a motion for leave to amend the complaint, and granting
the motion. Dkt. No. 17. The court stated, however, that it was going to require
the plaintiff to file a third amended complaint, because neither the first nor the
second amended complaint explained what it was that each defendant had
done to violate the plaintiff’s rights. In the order, the court stated:
In other words, the plaintiff must take a clean copy of
the complaint form, must insert the word “Third Amended”
in front of the word “Complaint” in the title, and then must
list, in numerical order: (a) each cause of action he wants
to bring; (b) the names of each defendant against whom he
brings that particular cause of action; and (c) the particular
facts that he believes show that that defendant (or those
defendants) violated the law alleged in that cause of action.
The court is attaching a clean copy of the complaint form,
as well as the guide for people who are filing cases without
a lawyer, in the hope that this will assist the plaintiff in
filing a second amended complaint that both the court and
the defendants can follow, and that the defendants can
respond to.
Id. at 3-4.

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The plaintiff did file a third amended complaint. Dkt. No. 19. This was
the fourth complaint he’d filed in the case, and the one on which the court
granted the defendants’ motion for judgment on the pleadings.
Now, in his Rule 59(e) motion, the plaintiff argues that the court should
have construed his Rule 26(f) plan as a complaint, because it contained a
“concise factual summary” of his claims. Dkt. No. 44. In fact, however, the Rule
26(f) plan stated the following:
Complete Warehouse and Distribution was negligence;
failure to prevent racial harassment in the work place, gross
negligence and negligence in response to racial harassment,
intentional infliction of emotional distress, hostile work
environment based upon racial discrimination in violation of
42 U.S.C. 1981, disparate treatment based upon racial
discrimination in violation of 42 U.S.C. 1981, hostile work
environment based upon racial discrimination in violation of
Title VII and disparate treatment based upon racial
discrimination in violation of Title VII.
Dkt. No. 13 at 1.
The Rule 26(f) plan, then, suffers from the same deficiencies as the first,
second and third amended complaints. It lists causes of action. But it does not
explain what the defendants did to the plaintiff. Who subjected the plaintiff to
racial harassment? When? Where? How many times? What was the
harassment? How did Complete Warehouse know about the harassment? None
of the complaints, nor the Rule 26(f) plan, contained this information. For this
reason, it was not manifest error of law or fact for the court to conclude that
the plaintiff had failed to state a viable claim.
The plaintiff also argues that the “law requires the court at pretrial
conference to review the facts and documents to avoid unnecessary proof, and
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ruling in advance on admissibility of evidence.” It is not clear what the plaintiff
means by “pretrial conference.” The court conducted a scheduling conference
under Fed. R. Civ. P. 16; that took place on December 14, 2015. Dkt. No. 15.
At that hearing, the court talked extensively with the plaintiff about how civil
litigation worked. The court never conducted a final pretrial conference,
however—the kind where the court would review the order of proof at trial, and
make plans to avoid cumulative evidence, and make pretrial rulings on the
admissibility of evidence. The court would have held such a conference, if the
plaintiff ever had filed a complaint that stated a claim that survived summary
judgment and could proceed to trial. But that occasion never arose.
Toward the end of his motion, the plaintiff also argues—for the first
time—that he has an implied cause of action, and he cites Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) in
support of this claim. Dkt. No. 44 at 8. It is not clear what the plaintiff means
by this assertion; the plaintiff never has alleged that any of the defendants were
persons acting under color of federal law. He also mentions consolidation and
Federal Rule of Civil Procedure 42(b). The court does not know what the
plaintiff believes the court should have consolidated—he had only one case
before the court. Perhaps he means to argue that the court should have
consolidated all of his complaints and the Rule 26(f) plan into one big pleading;
even if the court had done so, that would not have provided the factual bases
for the plaintiff’s claims. And Rule 42(b) provides for a court to order separate
trials of various claims or issues; the court dismissed the plaintiff’s case, not
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because his claims needed to be tried separately, but because he did not state
any bases for his claims.
The plaintiff has not demonstrated that the court committed a manifest
error of law or fact when it granted the defendants’ motion for judgment on the
pleadings. The court will deny the plaintiff’s Rule 59(e) motion to alter or
amend the judgment.
C.

Plaintiff’s Motion to Enlarge Appeal Record (Dkt. No. 50)

The plaintiff has filed a motion to enlarge the appeal record to include
“documents that may have not been filed with 10-24-16 exhibits. Total Exhibits
24 Added.” Dkt. No. 50 at 1. The court granted plaintiff’s October 24, 2016
motion to share twenty-four documents, dkt. no. 30, which he filed along with
his motion for default and default judgment. Dkt. No. 33.
Federal Rule of Appellate Procedure 10(e)(1) states, “If any difference
arises about whether the record truly discloses what occurred in the district
court, the difference must be submitted to and settled by that court and the
record conformed accordingly.” Fed. R. App. 10(e); see also Cir. Rule 10(b).
Many of the documents the plaintiff asks to add to the record on appeal already
appear on docket, due to this court’s order granting the plaintiff’s “motion to
share.” He does ask, however, that the court add to the appellate record some
items that were not among the ones he asked the court to “share.” These
documents include letters from defense counsel regarding filings and fax cover
sheets from the attorneys in the underlying administrative proceedings. Those
documents could not have formed the basis for the court’s decision to enter
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judgment on the pleadings, and would not have affected the court’s decision
even if the plaintiff had provided them before the court entered judgment.
Because the plaintiff does not need to add already-filed documents to the
appellate record, and because any documents he did not file before judgment
are irrelevant to his appeal, the court will deny the plaintiff’s motion to enlarge
the appellate record.
D.

Conclusion

The court DENIES the plaintiff’s motion to alter or amend judgment. Dkt.
No. 43.
The court DENIES the plaintiff’s motion to enlarge appeal record. Dkt.
No. 50.
Dated in Milwaukee, Wisconsin, this 30th day of May, 2017.

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