Adell v. Hepp et al

Filing 56

ORDER signed by Judge J.P. Stadtmueller on 1/3/2018 DENYING 51 Plaintiff's Second Motion for Reconsideration. (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,

Case No. 17-CV-267-JPS

Plaintiff,

v.

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). Defendants inadvertently did not address Plaintiff’s statutory claims
arising under the Americans with Disabilities Act and the Rehabilitation
Act, but the Court found good cause to grant Defendants a brief extension
of time, until December 28, 2017, to file a motion for summary judgment as
to those claims. Id.
Less than a week later, on December 12, 2017, Plaintiff filed a motion
for reconsideration of that extension of time. (Docket #49). The Court denied
the motion in an order issued on December 15, 2017, noting that it was well
within the Court’s prerogative over scheduling matters to forgive
Defendants’ error with respect to Plaintiff’s statutory claims. (Docket #50 at
2). Moreover, the Court observed that Plaintiff was mistaken in believing
that he had a right to judgment in his favor simply because Defendants
forgot to move for summary judgment as to his statutory claims. Id.
Only three days after the Court issued this latest order, Plaintiff now
moves for reconsideration of that order. (Docket #51). He argues that he

does in fact have a right to judgment as a matter of law on his statutory
claims, but this time his reasoning is based not on Defendants’ summary
judgment submissions but on their alleged failure to answer his allegations
relating to the statutory claims. Id. Plaintiff appears to assert a sort of default
theory, though his citation to authority is sparse. Id.
The motion must be denied. First, successive motions for
reconsideration are not the proper vehicle for a disappointed party to
continually try his hand at new theories to see which one might eventually
succeed. Such motions exist to remedy manifest errors in the application of
law, not as mulligans on motions lost. See Oto v. Metro. Life Ins. Co., 224 F.3d
601, 606 (7th Cir. 2000). If Plaintiff wanted to assert a default-based theory
in his first motion for reconsideration, he should have done so. Now, the
moment has passed.
Second, the motion is wholly without merit in any event. Plaintiff is
incorrect that Defendants failed to answer his allegations in his latest
amended complaint. They did. (Docket #21). Defendants responded to each
paragraph of Plaintiff’s second amended complaint, admitting certain
allegations and denying most of them, including Plaintiff’s allegations that
he is entitled to relief under the disability statutes he cites. See id. Indeed,
Plaintiff replied to Defendants’ answer, see (Docket #22), although a reply
was not ordered or authorized by the Court. Plaintiff does not explain how
the denials and admissions in Defendants’ latest answer result in a default
on his statutory claims. Consequently, his default theory is unavailing, and
his motion for reconsideration will be denied.
Plaintiff was warned in the Court’s last order that it will not tolerate
this litigation being played as a game of “gotcha.” (Docket #50 at 2–3). The
instant motion is another ploy in that game. Plaintiff is hereby warned that
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any further half-baked, unfounded motions will be met with appropriate
sanctions. See Fed. R. Civ. P. 11.
Accordingly,
IT IS ORDERED that Plaintiff’s second motion for reconsideration
(Docket #51) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 3rd day of January, 2018.
BY THE COURT:

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

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