Berg, Christopher v. Verizon Wireless

Filing 43

ORDER denying as moot 36 Motion to Strike ; granting in part and denying in part 42 Motion for Sanctions. Signed by District Judge Barbara B. Crabb on 9/20/2013. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CHRISTOPHER BERG,
ORDER
Plaintiff,
13-cv-1-bbc
v.
VERIZON WIRELESS,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Defendant Verizon Wireless has filed a motion for summary judgment on plaintiff
Christopher Berg’s claim that defendant made calls to him on his cellular phone, in violation
of the Telephone Consumer Protection Act. However, there are several procedural matters
I must address before I can decide that motion.
After plaintiff filed his opposition materials to defendant’s summary judgment
motion, defendant filed a motion to “strike” plaintiff’s responses to defendant’s proposed
findings of fact because they did not comply with this court’s summary judgment procedures.
In addition, defendant moved to strike plaintiff’s declaration on the grounds that it was
inconsistent with his deposition testimony, not made on personal knowledge and too
conclusory. Dkt. #36. After plaintiff filed an opposition brief to defendant’s motion to
strike and amended his responses to conform to the court’s rules, dkt. #41, defendant filed
what it called a “motion for direction and sanctions.” Dkt. #42. In that motion, defendant

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asks the court whether it must answer plaintiff’s amended responses and whether it should
file a reply brief in support of its motion to strike. In addition, it says that it should be
reimbursed “for its time spent moving to strike Plaintiff’s inappropriate filings, for its
attempt to respond to these same filings and for bringing this motion.” Id.
I see no unfair prejudice to defendant if plaintiff amends his responses, so I will allow
him to do so and I will give defendant an opportunity to file an amended reply. In the
future, if plaintiff wishes to amend any filing after the deadline for doing so, he should seek
leave of court first.
With respect to the question whether defendant should file a reply brief in support
of its motion to strike, the answer is no because defendant should not have filed the motion
in the first place. The Court of Appeals for the Seventh Circuit has stated on multiple
occasions that motions to "strike" are not the appropriate vehicle for challenging another
party's submissions. E.g., Wiesmueller v. Kosobucki, 547 F.3d 740, 741 (7th Cir. 2008);
Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725 (7th Cir. 2006); Redwood v.
Dobson, 476 F.3d 462, 470-71 (7th Cir. 2007). Rather, if a party believes that a party has
relied on an inadmissible declaration or affidavit in the context of a motion for summary
judgment, the proper response is to dispute any proposed findings of fact that rely on that
declaration or affidavit on the ground that they are not supported by admissible evidence.
Prochaska v. Menard, Inc., 829 F. Supp. 2d 710, 713 (W.D. Wis. 2011). A motion to strike
accomplishes nothing but to add confusion regarding what is actually in dispute. Similarly,
if a party believes that some or all of the other side’s proposed findings of fact are improper,

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it is easy enough to explain this in context of filing responses to those proposed findings of
fact.
Accordingly, I am denying defendant’s motion for attorney fees with respect to the
time it spent preparing its motion to strike (dkt. #36). However, I am directing plaintiff to
show cause why he should not reimburse defendant for filing the “motion for direction and
sanctions” (dkt. #42) and its amended reply to plaintiff’s response to defendant’s proposed
findings of fact. Those filings were necessary only because plaintiff filed amended responses
without leave of court, so it seems fair to require plaintiff to pay those fees. However, I will
give plaintiff an opportunity to argue otherwise. Alternatively, the parties may stipulate to
an amount.

ORDER
IT IS ORDERED that
1. Defendant Verizon Wireless’s motion to strike, dkt. #36, is DENIED as moot.
2. Defendant’s motion for “direction and sanctions,” dkt. #42, is GRANTED IN
PART and DENIED IN PART. Defendant may have until September 27, 2013, to file an
amended reply to plaintiff Christopher Berg’s amended responses to defendant’s proposed
findings of fact. At the same time, defendant should include an itemization of its fees for
its “motion for direction and sanctions” and its amended reply.

Plaintiff may have until

September 30, 2013, to show cause why he should not reimburse defendant for those fees

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and to object to the reasonableness of the amount.
Entered this 20th day of September, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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