Earl v. Briggs

Filing 32

ORDER signed by Chief Judge Pamela Pepper on 3/12/2025. 27 Plaintiff's motion to substitute party GRANTED; Clerk of Court to add Attorney David A. Van de Water to docket as representative for defendant Allison Briggs's estate. 26 Plaint iff's motion for sanctions DENIED. USMS to serve copy of complaint (dkt. no. 1), screening order (dkt. no. 8) and this order on defendant Van de Water under FRCP 4; defendant Van de Water to file responsive pleading to complaint. (cc: all counsel and mailed to Daryise Earl at Kettle Moraine Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DARYISE L. EARL,
Plaintiff,
v.

Case No. 23-cv-1679-pp

ALLISON BRIGGS,
Defendant.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION TO SUBSTITUTE DECEASED
PARTY AND DENYING PLAINTIFF’S MOTION FOR SANCTIONS
(DKT. NO. 27)
______________________________________________________________________________
On December 26, 2024, the court extended plaintiff Daryise L. Earl’s
deadline to substitute the proper party in place of the decedent defendant. Dkt.
No. 26. Counsel for the decedent told the court that the state court overseeing
the estate had “appointed Attorney David A. Van de Water as the representative
for the decedent’s estate,” and counsel provided Attorney Van de Water’s contact
information. Id. at 2–3. The court ordered the plaintiff to move to substitute the
proper party in place of the decedent defendant by February 21, 2025. Id. at 3.
The same day that the court issued that order, the court received the
plaintiff’s motion to substitute Attorney Van de Water in place of the decedent
and to award the plaintiff $500 as sanctions. Dkt. No. 27. The plaintiff says that
defense counsel “disregarded two deadlines” to provide information about the
decedent’s estate, as the court had ordered him to do. Id. at 1 (citing Dkt. No.
17). The plaintiff says that counsel then missed a third deadline—the November
18, 2024 deadline to file a status update with the court—and belatedly provided
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information to the court and to the plaintiff about the estate. Id. at 1–2 (citing
Dkt. Nos. 23, 25). The plaintiff seeks sanctions “as a result of [counsel’s] blatant
failure to timely respond to the deadline that was issued for November 18,
2024,” and as an “award” to the plaintiff “for his time and efforts in complying
with these proceedings.” Id. at 2.
Defense counsel does not oppose substituting Attorney Van de Water as
the representative of the decedent’s estate, but he does oppose the plaintiff’s
request for sanctions. Dkt. No. 29. Counsel observes that it was the plaintiff’s
responsibility to identify a proper substitute for the decedent, and counsel says
that he “timely complied with the Court’s order.” Id. at 1 (citing Dkt. Nos. 14–19).
Counsel states that he provided “publicly available information” and “continued
to provide periodic updates to Plaintiff and the Court.” Id. at 1–2. Counsel
acknowledges missing the November 18, 2024 deadline, says his delay was
attributable to “a calendar oversight” and recounts that he “apologized to the
Plaintiff and the Court.” Id. at 2. Counsel asserts that the plaintiff “provides no
basis for his alleged entitlement to sanctions,” maintaining that counsel’s delay
did not prejudice the plaintiff. Id. Counsel says his most recent delay “was not
intentional or done in bad faith,” and that the plaintiff “received the information
regarding Defendant’s estate faster than if Counsel for Defendant had provided a
status update on November 18, 2024” because the state court did not establish
Attorney Van de Water as the decedent’s representative until November 20,
2024. Id.

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The plaintiff replies by reiterating that defense counsel missed two earlier
court deadlines, and says that previous defense counsel had told the plaintiff
“that their office had no intentions [sic] of disclosing the identity of the
representative of the Defendant’s estate.” Dkt. No. 30 at 2 (citing Dkt. No. 4). The
plaintiff objects to defense counsel’s position that the plaintiff was not prejudiced
and asserts that the court should “take into consideration the time and effort
[the plaintiff] has dedicated to obtaining the Defendant’s counsel full compliance
in the process of identifying the Defendant’s estate.” Id. The plaintiff contends
that the court must impose sanctions “to penalize the Defendant’s counsel for
failing to comply with the latest Court issued deadline” and to award the
plaintiff’s “assiduous pursuit to adhere to the Court’s instructions to identify the
representative of the Defendant’s estate.” Id. at 3.
The plaintiff does not cite any authority for his request for sanctions. The
court has “inherent authority to sanction litigants for abuse of process.” Waivio
v. Bd. of Trustees of Univ. of Illinois at Chi., 290 F. App’x 935, 937 (7th Cir.
2008). Sanctions under the court’s inherent powers may be “justified by badfaith conduct” and “must be proportionate to the circumstances.” Donelson v.
Hardy, 931 F.3d 565, 569 (7th Cir. 2019); see Waivio, 290 F. App’x at 937 (citing
Allen v. Chi. Transit Auth., 317 F.3d 696, 703 (7th Cir. 2003)). In determining
an appropriate sanction, the court must consider “the extent of the misconduct,
the ineffectiveness of lesser sanctions, the harm from the misconduct, and the
weakness of the case.” Donelson, 931 F.3d at 569 (citing cases).

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Sanctions are not warranted here. The plaintiff is correct that defense
counsel missed court deadlines on three occasions. Counsel missed a June 21,
2024 deadline to respond to the plaintiff’s motion to compel. Dkt. No. 15. The
court then ordered the defendant to respond to the motion by July 12, 2024,
and defense counsel again failed to respond by the deadline. Id.; Dkt. No. 17.
But as the court stated in its July 24, 2024 order, defense counsel filed a notice
of substitution on July 10, 2024—only two days before the deadline to respond
to the plaintiff’s motion. Dkt. No. 17 at 2. Although that did not excuse current
counsel from meeting the July 12 deadline, it did excuse him from missing the
June 21 deadline because he was not yet involved with this case at that time.
Moreover, the court granted the plaintiff’s unopposed motion to compel, which
the court determined had merit. Id. These delays do not suggest bad faith and
the plaintiff suffered no prejudice from them.
That leaves only the missed November 18, 2024 deadline for defense
counsel to provide a status update about the decedent’s estate. It was counsel’s
obligation to provide that information in a timely manner, as he had offered to
do in response to the court’s order directing defense counsel to provide an
update. See Dkt. No. 23 (“Counsel notes that no further information is available
and offers to provide a further status report in thirty days.”). The court explained
in its December 26, 2024 order that counsel had acknowledged the delay and
missed deadline in his December 2 response, and he provided the information
about the estate’s representative as the court ordered him to. Dkt. No. 26 at 2–3.
Defense counsel says that this delay was due to a calendar oversight, and he

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explains that the representative was not substituted until November 20. That
means that if counsel had filed his update by the November 18 deadline, there
would have been no new information for him to provide to the plaintiff. Counsel
would have had to submit another status update sometime after November 20,
identifying Attorney Van de Water as the estate’s representative. And counsel
met his obligation to provide a timely status update in response to two other
orders the court issued since he took over as counsel for the defendant. Dkt.
Nos. 19, 22. That means counsel has not shown a pattern of missing court
deadlines, and there is no suggestion that his belated December 2 response was
intentional or in bad faith. Counsel’s oversight or error causing him to miss the
November 18 deadline does not warrant sanctions or a monetary award for the
plaintiff. Even if it did, the plaintiff does not explain why $500 is a reasonable
sum to award him for this minor delay or for fulfilling his obligation to diligently
pursue his lawsuit.
The court will grant the plaintiff’s unopposed motion to substitute
Attorney David A. Van de Water as the representative for the decedent’s estate
but will deny his request for sanctions. The court will order the U.S. Marshals
Service to serve Attorney Van de Water at the address defense counsel provided
in his December 2, 2024 response to the court’s order. Dkt. No. 25. The court
will order Attorney Van de Water to file a responsive pleading to the plaintiff’s
complaint. Once Attorney Van de Water has filed a responsive pleading, the
court will issue a scheduling order setting deadlines for the parties to conduct
discovery and file dispositive motions.

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The court GRANTS the plaintiff’s motion to substitute Attorney David A.
Van de Water as the representative for the decedent’s estate and DENIES the
plaintiff’s request for sanctions. Dkt. No. 27.
The court ORDERS the clerk’s office to add Attorney David A. Van de
Water to the docket as the representative for defendant Allison Briggs’s estate.
The court ORDERS the U.S. Marshals Service to serve a copy of the
complaint (Dkt. No. 1), the screening order (Dkt. No. 8) and this order on David
A. Van de Water in Sheboygan, Wisconsin, under Federal Rule of Civil
Procedure 4. Congress requires the U.S. Marshals Service to charge for making
or attempting such service. 28 U.S.C. §1921(a). Although Congress requires the
court to order service by the U.S. Marshals Service, it has not made any
provision for either the court or the U.S. Marshals Service to waive these fees.
The current fee for waiver-of-service packages is $8.00 per item mailed. The full
fee schedule is provided at 28 C.F.R. §§0.114(a)(2), (a)(3). The U.S. Marshals
Service will give the plaintiff information on how to remit payment. The court is
not involved in collection of the fee.
The court ORDERS David A. Van de Water to file a responsive pleading to
the complaint.
Dated in Milwaukee, Wisconsin this 12th day of March, 2025.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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