Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin v. KEMPTHORNE et al

Filing 54

ORDER denying 47 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Plaintiff Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin re 44 Order on Motion to Continue filed by Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin. Signed by Chief Judge Barbara B. Crabb on 7/7/09. (rep)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------L A C COURTE OREILLES BAND OF L AK E SUPERIOR CHIPPEWA INDIANS OF WISCONSIN, Plaintiff, v. KEN SALAZAR, Secretary of the Interior; G E O R G E T. SKIBINE, Acting Deputy Assistant S ecretary of the Interior for Policy and Economic D e velo p m e nt and Acting Assistant Secretary for In dian Affairs; KEVIN SKENANDORE, Acting D irecto r, Bureau of Indian Education; and LYNN L A FF ER T Y , Education Line Officer, Bureau of In dian Education, D efendan ts. --------------------------------------------B efo re the court is plaintiff's motion to reconsider the magistrate judge's May 27, 2009 order, in which he continued plaintiff's motion for summary judgment until further discovery is completed. Dkt. #47. Because the magistrate judge did not clearly err in delaying summary judgment, the motion for reconsideration will be denied. In response to a motion to dismiss filed by defendants, plaintiff moved for summary judgment on February 24, 2009. This court stayed the briefing on plaintiff's motion pending ORDER 0 8 - cv -6 5 9 - b b c

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the court's resolution of the motion to dismiss. Dkt. #26. On April 23, 2009, I denied the motion to dismiss and lifted the stay on summary judgment briefing. Dkt. #29. Six days later, defendants moved to continue summary judgment briefing pursuant to Fed. R. Civ. P. 56(f) on the ground that they could not defend the motion for summary judgment without further development of the record. Dkt. #30. On May 27, 2009, the magistrate judge granted defendants' motion, finding that defendants had identified specific proposed findings of fact to which they could not respond without further discovery. Plaintiff disagrees with this finding. Un der Fed. R. Civ. P. 72(a), a district judge may reconsider a pretrial decision rend ered by a magistrate judge only if the order is "clearly erroneous or contrary to law." See also 28 U.S.C. 636(b)(1)(A). Plaintiff has failed to make this showing. Discovery orders are inherently close calls, given the inevitable limitations on the judicial officer's opportunity to know first-hand the facts of a particular dispute. I cannot say that it was clearly erroneous for the magistrate judge to find that discovery should occur before the court resolved a sum m ary judgment motion filed so early in the lawsuit. Plaintiff's primary concern appears to be that defendants will be allowed to conduct un lim ited discovery at great cost to the parties, even though the information that defendants alleged ly need to oppose summary judgment is limited. Plaintiff is correct that the May 27 order did not specifically limit discovery. However, in such cases, the court expects the parties to develop only those portions of the record that are relevant to the dispute at hand.

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If plaintiff believes that it needs protection, it may file a motion for a protective order p ursu an t to Rule 26(c)(1). I note that plaintiff filed such an order on June 5, 2009, seeking a stay of all discovery deadlines until I ruled on the motion for reconsideration and a lim itation on discovery to only those issues raised in defendants' opposition to summary judgm ent. Although the magistrate judge granted the stay, he did not rule on plaintiff's req uest for limited discovery. Now that I am denying plaintiff's motion for reconsideration, plaintiff may wish to renew its request for discovery limitations.

ORDER IT IS ORDERED THAT plaintiff Lac Courte Oreilles Band of Lake Superior C hippew a Indians of Wisconsin's motion for reconsideration, dkt. #47, is DENIED. E n tered this 7t h day of July, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ B AR B AR A CRABB D istrict Judge

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