Skorychenko v. Tompkins

Filing 36

ORDER staying decision on 21 Motion for Summary Judgment. Defendant to submit a supplement to plaintiff's proposed findings of fact or additional proposed findings of fact by 7/20/09. Plaintiff to reply by 8/3/09. Signed by Chief Judge Barbara B. Crabb on 6/16/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------L U D M Y L A SKORYCHENKO, ORDER Plaintiff, 0 8 - cv -6 2 6 - b b c v. ER N E ST F. TOMPKINS, D efendan t. --------------------------------------------T his is a civil action for injunctive relief to enforce a federal contract. Plaintiff L u dm yla Skorychenko, who is proceeding pro se, alleges that defendant Ernest F. Tompkins execu ted an I-864 affidavit of support, requiring him to maintain plaintiff's income at 125 percen t of the federal poverty lines until plaintiff becomes a United States citizen or "worked 40 qualifying quarters of coverage as defined under title II of the Social Security Act. . . " 8 U.S.C. § 1183a(a)(1)-(3). Plaintiff has brought this suit pursuant to § 1183 to enforce her rights under the affidavit of support. Defendant contends that plaintiff receives an income in excess of 125 percent of the federal poverty lines and that she engaged in fraud and deceit in her marriage to defendant. N ow before the court is plaintiff's motion for summary judgment. Defendant filed

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a n opposition brief, in which he argues that he has had insufficient time to conduct discovery regarding plaintiff's proposed facts and that she has failed to meet her burden at sum m ary judgment because there are disputed issue of material fact. Despite defendant's suggestion that there are disputed issues of material fact, his resp o nse to plaintiff's proposed facts contains not one citation to the record or to any ad m issib le evidence. This court's summary judgment procedure clearly state that any

pro po sed fact or response to proposed finding of fact requires a reference to evidence supp ortin g the proposed fact. Procedure to be Followed on Motions for Summary Judgment, § I.B., II.B., dkt. #19 at 15-17. Although the court may take as "true" a moving party's p ro p os e d fact when the non-moving party fails to properly respond, Hedrich v. Board of R e gen ts of University of Wisconsin System, 274 F.3d 1174, 1177 (7th Cir. 2001) (upho lding Western District of Wisconsin's local rules admitting moving party's proposed fin din gs of fact when non-moving party fails to respond properly), I conclude that deciding plaintiff's motion with such a limited and undeveloped record would be inequitable at this tim e. D efendant has not filed a formal Rule 56(f) motion, which provides that a court may d en y a summary judgment motion or order a continuance if the nonmoving party has not had a fair opportunity to engage in full discovery of a disputed issue. However, the thrust of his opposition brief is that he has not had sufficient time to conduct discovery to rebut

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p lain tiff's claim. In order to succeed on a Rule 56(f) motion, a party must "state the reasons w hy it cannot adequately respond to the summary judgment motion without further discovery and must support those reasons by affidavit." Waterloo Furniture Components, L td. v. Haworth, Inc., 467 F.3d 641, 648 (7th Cir. 2006). Defendant points out that plaintiff filed her motion for summary judgment on March 10 , 2009, only one week after this court's pre-trial conference order, dkt. #19, when discovery had just started. Therefore, defendant did not have much time to secure the evid en ce and materials he would need to properly oppose plaintiff's motion. In addition, defendan t submitted an affidavit in which he avers that he is working on discovery requests regard in g plaintiff's current financial and employment status. This information is relevant to whether plaintiff is entitled to her desired relief and whether defendant has affirmative d efen ses to plaintiff's claim. It is information that is not readily available to defendant and th e re fo r e , requires additional time to conduct discovery. Moreover, I do not find that d efen dan t's inability to locate this information within one week of this court's pre-trial con ference order constitutes a lack of diligence. A cco rd in gly, in the interest of a fair and efficient resolution, I will grant defendant on e month to supplement his opposition to plaintiff's proposed findings of factin accordance w ith the court' summary judgment orders. Procedure to be Followed on Motions for S um m ary Judgment, § II.B., dkt. #19 at 16-17. To be clear, defendant may submit

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am ended responses to plaintiff's proposed findings of fact, additional findings of fact and a supplem ental brief addressing the new facts. This is not an opportunity to present new legal argum ents defendant could have raised previously. Plaintiff will then have two weeks to file a reply to defendant's supplemental brief and respond to additional findings of fact. I will stay a decision on plaintiff's motion for summary judgment until all these materials have been submitted. However, if defendant fails to supplement his opposition to plaintiff's facts or propose additional facts, I will decide plaintiff's motion on the materials presently before the court.

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OR DER IT IS ORDERED that a decision on plaintiff Ludmyla Skorychencko's motion for su m m ary judgment is STAYED. Defendant Ernest Tompkins will have until July 20, 2009 to submit a supplement to plaintiff's proposed finding of fact or additional proposed finds o f fact. Plaintiff will have until August 3, 2009 to reply to defendant's supplement or a d d i t i o n al facts. If by July 20, 2009 defendant has failed to submit a supplement in acco rd an ce with this order, this court will decide plaintiff's motion for summary judgment based on the parties' current submissions. E n tered this 16t h day of June, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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