Skorychenko, Ludmyla v. Tompkins, Ernest

Filing 26

Order staying a decision and resetting deadlines as to plaintiff's 10 Motion for Summary Judgment. (Plaintiff's Supplement to Summary Judgment due 9/8/2010, Brief in Opposition due 9/22/2010, Brief in Reply due 9/29/2010). Signed by District Judge Barbara B. Crabb on 8/24/2010. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------L U D M Y L A SKORYCHENKO CARLBORG, ORDER Plaintiff, 1 0 - cv -1 8 7 - b b c v. ER N E ST TOMPKINS, D efendan t. --------------------------------------------In this civil action for monetary relief, plaintiff Ludmyla Skorychenko Carlborg contends that defendant Ernest Tompkins has violated his support obligation under the Im m igratio n and Naturalization Act, 8 U.S.C. § 1183a. Plaintiff has filed a motion for sum m ary judgment, dkt. #10, in which she contends that there are no genuine issues of fact that preclude summary judgment on her claim regarding the I-864 affidavit of support. D efendan t has responded to plaintiff's motion, contending that there are several disputes that make summary judgment improper, including plaintiff's income and assets, whether plaintiff is properly mitigating her damages by seeking employment and whether plaintiff h a s committed fraud. Defendant requests that this court stay a decision on plaintiff's m o tio n and allow the parties to conduct additional discovery. In the alternative, defendant 1

ask s for denial plaintiff's motion. I conclude that it would be helpful for the parties to conduct additional discovery and supp lem ent their summary judgment materials before I consider the merits of plaintiff's m o tio n . Accordingly, I will stay a decision on plaintiff's motion for approximately one m onth.

D I S C U S S IO N This case is closely related to another case involving the same parties. Skorychenko v. Tompkins, 08-cv-626-bbc. In that case, I granted summary judgment to plaintiff on her claim that defendant had failed to support her at 125 percent of the federal poverty level as requ ired by an I-864 affidavit of support that defendant had executed on plaintiff's behalf. In addition, I explained that defendant's obligation under the affidavit would not cease unless (1) he dies; (2) plaintiff dies; (3) plaintiff becomes a United States citizen; (4) she d ep arts the United States permanently; or (5) she is credited with 40 qualifying quarters of w ork . 8 U.S.C. § 1183a(c). Because the parties conducted discovery in that case, they shou ld have in their possession a significant amount of information relevant to this case. On the other hand, plaintiff has moved for summary judgment very early in this case, just four days after the preliminary pretrial conference. (The deadline for dispositive

m otio ns is October 8, 2010.) There are some factual issues in the present case that differ fro m the previous case, such as plaintiff's employment and income during the relevant time 2

perio d. In addition, defendant alleges that plaintiff has failed to mitigate her damages. D efendan t should have an opportunity to conduct discovery on these factual issues and his defense. Moreover, as I explained to plaintiff in a previous order dated June 24, 2010, her sum m ary judgment motion does not address of all of the claims in the case. Defendant has filed a counterclaim for fraud against plaintiff, and plaintiff's motion for summary judgment do es not address that claim. Thus, even if plaintiff's motion for summary judgment is granted, the counterclaim would have to be adjudicated at some point. It will be more efficient to decide all of the legal disputes in this case at once, rather than piecemeal. I will allow the parties an extension of time in which to conduct discovery and su pp lem en t their summary judgment materials. Plaintiff may have until September 8, 2010, in which to file a supplement to her summary judgment motion that addresses defendant's co un terclaim for fraud. Defendant may have until September 22, 2010, in which to respond to plaintiff's motion and supplement. If plaintiff chooses to file a reply, it will be due S eptem ber 29, 2010. In submitting their additional summary judgment materials, both parties should address the preclusive effect that the judgment in the previous case may have on plaintiff's claim and defendant's counterclaim and defenses in this case.

ORDER IT IS ORDERED that a decision on plaintiff Ludmyla Skorychenko Carlborg's 3

m otio n for summary judgment is STAYED. Plaintiff may have until September 8, 2010, in w hich to file supplemental materials to her summary judgment motion. Defendant Ernest T om pkin s may have until September 22, 2010, in which to file a brief in opposition to plain tiff's motion. Plaintiff may have until September 29, 2010, in which to file a reply brief. E n tered this 24th day of August, 2010. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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