Adell v. Hepp et al

Filing 50

ORDER signed by Judge J.P. Stadtmueller on 12/15/2017 DENYING 49 Plainitff's Motion for Reconsideration. Plaintiff PERMITTED to file a summary judgment motion as to his remaining claims by the 12/28/2017 deadline. (cc: all counsel, via mail to Mark Anthony Adell at Wisconsin Secure Program Facility) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARK ANTHONY ADELL,

v.

Case No. 17-CV-267-JPS

Plaintiff,

WISCONSIN DEPARTMENT OF
CORRECTIONS and JON LITSCHER,

ORDER

Defendants.
On December 7, 2017, the Court granted Defendants’ motion for
summary judgment and dismissed Plaintiff’s constitutional claims. (Docket
#48). However, Defendants failed to address Plaintiff’s statutory claims
arising under the Americans with Disabilities Act and the Rehabilitation
Act. Id. at 19. It appeared to the Court that Defendants had simply
overlooked the most recent and operative screening order in which the
Court allowed those statutory claims to proceed. Id. As a result, the Court
found good cause to grant Defendants a brief extension of time to file a
motion for summary judgment as to those remaining claims. Id. That
deadline is December 28, 2017. Id. at 20.
Five days after the Court’s ruling, Plaintiff filed a motion seeking
reconsideration of the decision to permit Defendants additional time to file
a second motion for summary judgment. (Docket #49). He says that
forgiving Defendants’ oversight constitutes a “manifest error of law.” Id. To
support reconsideration, it should be remembered that “[a] ‘manifest error’
is not demonstrated by the disappointment of the losing party. It is the
‘wholesale disregard, misapplication, or failure to recognize controlling

precedent.’” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)
(quoting Sedrak v. Callahan, 987 F. Supp. 1063, 1069 (N.D. Ill. 1997)). Whether
to grant a motion for reconsideration “is left to the discretion of the district
court.” Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264,
1270 (7th Cir. 1996).
Plaintiff’s motion is without merit. The Court enjoys the prerogative
to set a schedule for the resolution of cases assigned to it. See Fed. R. Civ. P.
1. It also retains the discretion to amend its schedule when good reasons
exist to do so. See Fed. R. Civ. P. 6. Defendants’ error, while misguided, did
not appear to be premised on bad faith. It was simply an accident.
Plaintiff wants to seize upon Defendants’ error, contending that he
now awaits “judgment in his favor as a matter of law.” (Docket #49 at 6–7).
But while he seems to believe that judgment is warranted in his favor on
the statutory claims, id. at 2–6, he never filed a motion to that effect. As a
result, Defendants’ failure to seek summary judgment on those claims
would, at worst, require a trial; it does not mean that Plaintiff automatically
wins. Thus, Plaintiff is wrong to say that the Court’s order jeopardizes his
“entitlement to a favorable judgment.” Id. at 3. He has no such entitlement
at this juncture.
The Court’s order merely grants Defendants a chance to raise their
legal defenses, if any, to the claims before a trial becomes necessary.
Certainly, if Plaintiff continues to believe that summary disposition of his
remaining claims in his favor is appropriate, he may also file a motion for
summary judgment as to those claims by the December 28, 2017 deadline.
But courts are generally reluctant to punish technical missteps and prefer
to decide cases on their merits. Foman v. Davis, 371 U.S. 178, 181 (1962). The

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Court will not countenance Plaintiff’s game of “gotcha.” The motion will be
denied.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for reconsideration (Docket
#49) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 15th day of December, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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