Buck Jr. v. Mercury Marine

Filing 33

ORDER signed by Judge Pamela Pepper on 11/27/2017. 28 Plaintiff's emergency motion for leave to file responses to defendant's statement of undisputed facts GRANTED. 29 Plaintiff's amended emergency motion for leave to file responses to defendant's statement of undisputed facts under Rule 6(b)(1)(B) GRANTED. If defendant wishes to supplement its reply in support of its proposed material facts, it must due so by end of day 12/11/2017. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JOSEPH E. BUCK, JR.,

Case No. 16-cv-1013-pp

Plaintiff,
v.
MERCURY MARINE,
Defendant.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S EMERGENCY MOTION FOR LEAVE TO
FILE PLAINTIFF’S RESPONSE TO DEFENDANT’S STATEMENT OF
UNDISPUTED FACTS (DKT. NO. 28) AND PLAINTIFF’S AMENDED
EMERGENCY MOTION FOR LEAVE TO FILE PLAINTIFF’S RESPONSES TO
DEFENDANT’S STATEMENT OF UNDISPUTED FACTS UNDER RULE
6(b)(1)(B) (DKT. NO. 29)
______________________________________________________________________________
On August 21, 2017, the defendant filed a motion for summary
judgment, dkt. no. 18, accompanied by its statement of undisputed facts in
support of the motion, dkt. no. 20. Civil L.R. 56(b)(2)(B) requires that a party
opposing summary judgment must file, along with its opposition brief,
responses to the moving party's proposed material facts; the deadline for filing
those responses is the same as the deadline for filing the opposition brief. Here,
the plaintiff timely filed his opposition brief, but did not file the required
responses to the proposed findings of fact.
On October 4, 2017, the plaintiff filed a motion captioned “Plaintiff’s
Emergency Motion for Leave to File Plaintiff’s Response to Defendant’s
Statement of Undisputed Facts.” Dkt. No. 28. On the same day, the plaintiff

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filed his tardy responses to the defendant’s proposed findings of material fact.
Dkt. No. 27.
The court assumes that the plaintiff put the word “emergency” in the
caption of the motion because counsel, realizing that he had inadvertently
missed a deadline, wanted to get the request for leave to file in front of the
court as soon as possible. The court has a procedure for getting a motion to the
court’s attention quickly: the Civil L.R. 7(h) expedited, non-dispositive motion
procedure. That rule says that if a party wants to use the expedited, nondispositive motion procedure, one must put in the caption of the motion “Rule
7(h) Expedited, Non-Dispositive Motion to . . . .” Without that magic language,
the court will follow the usual motion practice, and will hold a motion for
twenty-one days to allow the opposing party to respond. Because the plaintiff
did not use the Rule 7(h) language, the court held this motion to await a
response.
A party also may draw a true “emergency” motion to the court’s attention
by calling chambers. If a party files a motion on Monday at 3:45, the court may
not see that motion until some time on Tuesday, because of the way the Case
Management/Electronic Case Filing software generates case reports. The court
did not receive a call to chambers, which is another reason that it held this
motion.
The next day (October 5, 2017), the court received an amendment to that
“emergency” motion. Dkt. No. 29. In the amendment, the plaintiff cited case
law, and indicated that he would not object to the court giving the defendant
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additional time to reply to the responses. Id. That same day, the court received
an amended declaration from the plaintiff’s counsel. Dkt. No. 30.
Two weeks after the plaintiff filed the original emergency motion, the
plaintiff filed a proposed order granting the motion. Dkt. No. 31. This did not
spur the court to rule on the motion because, as indicated above, the court was
giving the defendant the time required by the local rules to respond. That time
expired on October 26, 2017.
Due to the press of the court’s calendar, the court was not able to review
these various pleadings immediately. Perhaps concerned that the court had not
ruled on the motion, on November 13, 2017, counsel for the plaintiff filed an
amended proposed order granting the motion for leave to file the response. Dkt.
No. 32. This means that the court now has on the docket two “emergency”
motions for leave to file, an amended declaration, a proposed order and an
amended proposed order.
The court will grant the plaintiff’s motions for leave to file his responses
to the defendant’s findings of fact. The court understands that sometimes
things slip through the cracks. The court has written this order to suggest that
in the future, if the plaintiff’s counsel has another problem of this sort, he use
the Rule 7(h) procedure (if he really, really needs the court to look at his motion
sooner rather than later), or call chambers (if it is a true emergency—a motion

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that, if the court doesn’t rule on it in a few days, could negatively impact a
party’s legal rights).1
The court also will give the defendant time to supplement its reply in
support of its proposed findings, should it choose to do so. The defendant filed
its reply on October 4, 2017 at 4:46 p.m. (dkt. no. 26); the plaintiff filed his
responses at 5:53 the same day (dkt. no. 27). It is possible that the defendant
may wish an opportunity to directly address some of the plaintiff’s responses.
The court will give the defendant fourteen days to supplement its responses, if
it chooses to do so.
Finally, with regard to scheduling: The court set a final pretrial
conference for December 20, 2017 at 12:30 p.m. by telephone. The trial is
scheduled for January 8, 2018 at 9:00 a.m. Given the additional time the court
is giving the defendant, the court will not know whether briefing is completed
on the summary judgment motion until December 11, 2017—about a week
before the final pretrial conference. It is likely that the court will not be able to
rule on the motion for summary judgment in time for the ruling to do the
parties any good before the January 8, 2018 trial date. For the moment, the
court will leave the dates on the calendar, but once the briefing period has
concluded, the court may decide to convert the December 20, 2017 hearing
into a status conference, and to remove the January 8, 2018 trial date.

The court also notes that the plaintiff’s counsel filed his expert witness
disclosures with the court, on the docket. Parties should serve discovery on
each other, not file it with the court.
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The court GRANTS the plaintiff’s emergency motion for leave to file
plaintiff’s responses to defendant’s statement of undisputed facts. Dkt. No. 28.
The court GRANTS the plaintiff’s amended emergency motion for leave to
file plaintiff’s responses to defendant’s statement of undisputed facts under
Rule 6(b)(1)(B). Dkt. No. 29.
The court ORDERS that if the defendant wishes to supplement its reply
in support of its proposed material facts, it must do so by the end of the day on
Monday, December 11, 2017.
Dated in Milwaukee, Wisconsin this 27th day of November, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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