Homesly, April v. United States of America

Filing 14

PRETRIAL CONFERENCE ORDER setting briefing on defendant's 6 motion for summary judgment. Plaintiff's brief in opposition due 6/20/2013. Defendant's brief in reply due 7/1/2013. If plaintiff chooses to file a motion to remand, it is due 6/20/2013. The government would have until July 1, 3013 to file any opposition to a remand motion. Signed by Magistrate Judge Stephen L. Crocker on 5/22/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

APRIL J. HOMESLY,
Plaintiff,
v.
UNITED STATES OF AMERICA,

PRELIMINARY PRETRIAL
CONFERENCE ORDER
13-cv-259-bbc

Defendant.

This court held a recorded telephonic preliminary pretrial conference in this case on May
21, 2013. Plaintiff is representing herself and appeared without an attorney. The government
appeared by Antonio Trillo.
The court began by explaining to Ms. Homesly why her small claims court lawsuit against
Dr. Demetra Sifakis, a dentist at the Access Community Health Center, ended up in federal
court as a lawsuit against the United States under the Federal Torts Claim Act. The court then
discussed with Ms. Homesly the government’s contention in its motion for summary judgment
[Court Docket No. 6] that because Ms. Homesly has not yet filed an administrative claim
regarding Dr. Sifakis, this lawsuit must be dismissed without prejudice. The court then outlined
to Ms. Homesly the three choices she has in responding:
(1) Ms. Homesly can ask this federal court to remand her lawsuit to Dane County’s small
claims court. To succeed on a motion to remand, Ms. Homesly would have to persuade this
court that the federal government has got its facts wrong and that Dr. Sifakis is not actually an
employee of the United States Public Health Service. If Ms. Homesly decides to file a “Motion
To Remand To State Court,” she would have to file this motion not later than June 20, 2013,
and file with it all supporting documents, including relevant evidence and her legal arguments.
The government would until July 1, 3013 to file any opposition to a remand motion. If Ms.

Homesly files a motion to remand, she still would have to file a response to the government’s
motion for summary judgment, as explained in the next paragraph:
(2) Ms. Homesly can respond directly to the pending motion for summary judgment by
opposing it. Ms.Homesly would have to file her opposition documents not later than June 20,
2013, and the government’s reply would be due by July 1, 2103. The documents that Ms.
Homesly would have to file in opposition are explained in the attached documents explaining
how to respond to another party’s summary judgment motion. To defeat the government’s
motion, Ms. Homesly would have to persuade this court that the applicable federal statutes do
not require her to exhaust her administrative remedies before proceeding with a lawsuit claiming
that the dental treatment provided by Dr. Sifakis’s was so bad that it is legally actionable.
(3) Ms. Homesly can voluntarily dismiss this lawsuit without prejudice and file an
administrative claim against Dr. Sifakis. If Ms. Homesly wishes to do this, for her convenience
I have included with this order a blank “Standard Form 95" for her to fill out and mail to the
government. It seems that Attorney Trillo already–and commendably–has mailed to Ms.
Homesly a blank Standard Form 95 as well as information on how to file the completed form.
See dkt. 13. At our telephonic hearing, I explained to Ms. Homesly that if she chooses to
respond in this fashion, then the court will dismiss her lawsuit “without prejudice,” which means
that she can re-file it later if she needs to, for instance if she does not obtain the relief she thinks
she should get from the administrative proceeding. If Ms. Homesly decides to proceed in this
fashion, then I directed her to alert the court and Attorney Trillo that this is her choice so that
can close this case and prevent anyone from doing unnecessary work.

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What follows in this order and attached to it is information that this court routinely
provides to people who are representing themselves without a lawyer in a civil lawsuit in this
federal court:
Read this whole order NOW
This federal civil lawsuit is a serious matter. As a party to a federal civil lawsuit, it is your
duty to understand what you are supposed to do and when you are supposed to do it. To help
you, this order explains what your duties are and what your deadlines are. This court has a
number of rules that you must follow. It will not be easy to do everything that you are supposed
to do, and you will not have a lot of time. Therefore, it is important for you to read this order
now so that you can do things the right way.
Review the Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure are the rules that control much of what happens in
this lawsuit. Not all of those rules will be important in your case, but some of them will be very
important, particularly the rule about summary judgment and the rules about discovery. It is
your duty to know the rules of procedure that apply to you in this case. This court cannot
provide you with a copy of the rules of procedure. You will have to find your own copy of the
rules to review.
The Federal Rules of Evidence could be important later in this lawsuit. The rules of
evidence affect the parties’ submissions for summary judgment motions. Also, if this case goes
all the way to trial, the rules of evidence will affect how the evidence is presented at trial. It is
your duty know the rules of evidence that apply to you in this case. This court cannot provide

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you with a copy of the rules of evidence. You will have to find your own copy of the rules to
review.
Service of documents on your opponent
The usual rule is that every letter, motion, brief, exhibit, or other document that you file
with the court in this lawsuit must be served on your opponent at the same time. This means
that whenever you mail a document to the court, you also must mail a copy of that document
to your opponent at the same time. In order to prove this, you must certify service by including
with each submission to the court a sentence at the end of your document, or on a separate piece
of paper, in which you swear or certify that you sent a copy through the mail with proper
postage to your opponent’s lawyer. If you do not serve your documents on your opponent and
if you do not certify service, then this court will not look at your documents. If you think you
will have trouble making copies, then you should think about this ahead of time and follow the
directions in the next section about copying.

Scheduling
1.

Briefing on Government’s Summary Judgment Motion:
Plaintiff’s Response: June 20, 2013
Government’s Reply: July 1, 2013
Summary judgment is a way for plaintiff or defendants to win this lawsuit (or parts of

it) before the trial. Rule 56 of the Federal Rules of Civil Procedure explains how the parties must
present their evidence and their legal arguments when they file or respond to a summary
judgment motion. Rule 56 is important, so you should read it carefully, even before a summary

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judgment is filed, so that you can be ready for a summary judgment motion and then to do
things correctly.
This court has a written set of rules that explains how to file a summary judgment motion
and how to respond to your opponent’s summary judgment motion. This “Procedure Governing
Summary Judgment” is attached to this order and you should read it now. This will help you
to understand how much work will be involved, and understand the parts that give plaintiffs
trouble, like writing good responses to the defendants’ proposed findings of fact.
BE AWARE: you are not going to get an extension of the 30 day response deadline. The
only way to get more time would be if you can convince the court that something totally unfair
happened that actually prevented you from meeting your deadline, and this was completely
somebody else’s fault. Also, if you do not follow the court’s procedure for how to respond to
summary judgment, then you will not get more time to do it over unless the court decides on its
own that you should get a second chance.
The only way to make sure that the court will consider your documents is to start early,
do them right the first time, and file them and serve them on time. If you do not do things the
way it says in Rule 56 and in the court’s written summary judgment procedure, then the court
will not consider your documents.

Entered this 22nd day of May, 2013.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge
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HELPFUL TIPS FOR FILING
A SUMMARY JUDGMENT MOTION

Please read the attached directions carefully – doing so will save your time and the court’s.
REMEMBER:
1. All facts necessary to sustain a party’s position on a motion for summary judgment
must be explicitly proposed as findings of fact. This includes facts establishing jurisdiction.
(Think of your proposed findings of fact as telling a story to someone who knows nothing of the
controversy.)
2. The court will not search the record for factual evidence. Even if there is evidence in
the record to support your position on summary judgment, if you do not propose a finding of
fact with the proper citation, the court will not consider that evidence when deciding the
motion.
3. A fact properly proposed by one side will be accepted by the court as undisputed
unless the other side properly responds to the proposed fact and establishes that it is in dispute.
4. Your brief is the place to make your legal argument, not to restate the facts. When
you finish it, check it over with a fine tooth comb to be sure you haven’t relied upon or assumed
any facts in making your legal argument that you failed to include in the separate document
setting out your proposed findings of fact.
5. A chart listing the documents to be filed by the deadlines set by the court for briefing
motions for summary judgment or cross-motions for summary judgment is printed on the last
page of the procedures.

Revised March 2006

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MEMORANDUM TO PRO SE LITIGANTS
REGARDING SUMMARY JUDGMENT MOTIONS

This court expects all litigants, including persons representing themselves, to follow
this court’s Procedures to be Followed on Motions for Summary Judgment. If a party does
not follow the procedures, there will be no second chance to do so.

Therefore, PAY

ATTENTION to the following list of mistakes pro se plaintiffs tend to make when they
oppose a defendant’s motion for summary judgment:
•

Problem: The plaintiff does not answer the defendant’s proposed facts
correctly.
Solution: To answer correctly, a plaintiff must file a document titled
“Response to Defendant’s Proposed Findings of Fact.” In this document, the
plaintiff must answer each numbered fact that the defendant proposes, using
separate paragraphs that have the same numbers as defendant’s paragraphs.
See Procedure II.D. If plaintiff does not object to a fact that the defendant
proposes, he should answer, “No dispute.”

•

Problem: The plaintiff submits his own set of proposed facts without
answering the defendant’s facts.
Solution: Procedure II.B. allows a plaintiff to file his own set of proposed facts
in response to a defendant’s motion ONLY if he thinks he needs additional
facts to prove his claim.

•

Problem: The plaintiff does not tell the court and the defendant where there
is evidence in the record to support his version of a fact.
Solution: Plaintiff must pay attention to Procedure II.D.2., which tells him
how to dispute a fact proposed by the defendant. Also, he should pay
attention to Procedure I.B.2., which explains how a new proposed fact should
be written.

•

Problem: The plaintiff supports a fact with an exhibit that the court cannot
accept as evidence because it is not authenticated.
Solution: Procedure I.C. explains what may be submitted as evidence. A copy
of a document will not be accepted as evidence unless it is authenticated.
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That means that the plaintiff or someone else who has personal knowledge
what the document is must declare under penalty of perjury in a separate
affidavit that the document is a true and correct copy of what it appears to be.
For example, if plaintiff wants to support a proposed fact with evidence that
he received a conduct report, he must submit a copy of the conduct report,
together with an affidavit in which he declares under penalty of perjury that
the copy is a true and unaltered copy of the conduct report he received on
such and such a date.
NOTE WELL: If a party fails to respond to a fact proposed by the opposing party,
the court will accept the opposing party’s proposed fact as undisputed. If a party’s response
to any proposed fact does not comply with the court’s procedures or cites evidence that is
not admissible, the court will take the opposing party’s factual statement as true and
undisputed. You’ll find additional tips for making sure that your submissions comply with
the court’s procedures on page 8 of this packet.
R evised M arch 2006

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
PROCEDURE TO BE FOLLOWED ON MOTIONS FOR SUMMARY JUDGMENT
I. MOTION FOR SUMMARY JUDGMENT
A.

Contents:
1.

2.

In a separate document, a statement of proposed findings of fact or a
stipulation of fact between or among the parties to the action, or both; and

3.

Evidentiary materials (see I.C.); and

4.

B.

A motion, together with such materials permitted by Rule 56(c) as the moving
party may wish to serve and file; and

A supporting brief.

Rules Regarding Proposed Findings of Fact:
1.

Each fact must be proposed in a separate, numbered paragraph, limited as
nearly as possible to a single factual proposition.

2.

Each factual proposition must be followed by a reference to evidence
supporting the proposed fact. The citation must make it clear where in the
record the evidence is located. If a party is citing an affidavit of a witness who
has submitted multiple affidavits or the deposition of a witness who has been
deposed multiple times, that party should include the date the cited document
was filed with the court. For example,
1. Plaintiff Smith bought six Holstein calves on
July 11, 2006. Harold Smith Affidavit, filed Jan.
6, 2007, p.1, ¶ 3.

3.

The statement of proposed findings of fact shall include ALL factual
propositions the moving party considers necessary for judgment in the party’s
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favor. For example, the proposed findings shall include factual statements
relating to jurisdiction, the identity of the parties, the dispute, and the context
of the dispute.
4.
C.

The court will not consider facts contained only in a brief.

Evidence
1.

As noted in I.B. above, each proposed finding must be supported by
admissible evidence. The court will not search the record for evidence. To
support a proposed fact, you may use:
a.

Depositions. Give the name of the witness, the date of the deposition,
and page of the transcript of cited deposition testimony;

b.

Answers to Interrogatories. State the number of the interrogatory and
the party answering it;

c.

Admissions made pursuant to Fed. R. Civ. P. 36. (state the number of
the requested admission and the identity of the parties to whom it was
directed); or

d.

Other Admissions. The identity of the document, the number of the
page, and paragraph of the document in which that admission is made.

e.

Affidavits. The page and paragraph number, the name of the affiant,
and the date of the affidavit. (Affidavits must be made by persons who
have first hand knowledge and must show that the person making the
affidavit is in a position to testify about those facts.)

f.

Documentary evidence that is shown to be true and correct, either by
an affidavit or by stipulation of the parties. (State exhibit number,
page and paragraph.)

II. RESPONSE TO MOTION FOR SUMMARY JUDGMENT
A.

Contents:
1.

A response to the moving party’s proposed finding of fact; and

2.

A brief in opposition to the motion for summary judgment; and
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3.
B.

Evidentiary materials (See I.C.)

In addition to responding to the moving party’s proposed facts, a responding party may
propose its own findings of fact following the procedure in section I.B. and C. above.
1.

A responding party should file additional proposed findings of fact if it needs
them to defeat the motion for summary judgment.

2.

The purpose of additional proposed findings of fact is to SUPPLEMENT the
moving party’s proposed findings of fact, not to dispute any facts proposed by the
moving party. They do not take the place of responses. Even if the responding
party files additional proposed findings of fact, it MUST file a separate response
to the moving party’s proposed findings of fact.

C.

Unless the responding party puts into dispute a fact proposed by the moving party, the
court will conclude that the fact is undisputed.

D.

Rules Regarding Responses to the Moving Party’s Proposed Factual Statements:
1.

Answer each numbered fact proposed by the moving party in separate paragraphs,
using the same number.

2.

If you dispute a proposed fact, state your version of the fact and refer to evidence
that supports that version. For example,

Moving party proposes as a fact:
“1. Plaintiff Smith purchased six Holstein calves from Dell’s Dairy Farm on July
11, 2006. Harold Smith Affidavit, Jan. 6, 2007, p.1, ¶ 3.”
Responding party responds:
“1. Dispute. The purchase Smith made from Dell’s Dairy Farm on July 11, 2006
was for one Black Angus bull John Dell Affidavit, Feb. 1, 2007, Exh. A.”
3.

The court prefers but does not require that the responding party repeat verbatim
the moving party’s proposed fact and then respond to it. Using this format for
the example above would lead to this response by the responding party:
“1. Plaintiff Smith purchased six Holstein calves from Dell’s Dairy Farm on July 11,
2006. Harold Smith Affidavit, Jan. 6, 2007, p.1, ¶ 3.

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“Dispute. The purchase Smith made from Dell’s Dairy Farm on July 11, 2006
was for one Black Angus bull.” John Dell Affidavit, Feb. 1, 2007, Exh. A.”
4.

E.

When a responding party disputes a proposed finding of fact, the response must
be limited to those facts necessary to raise a dispute. The court will disregard any
new facts that are not directly responsive to the proposed fact. If a responding
party believes that more facts are necessary to tell its story, it should include them
in its own proposed facts, as discussed in II.B.

Evidence
1.

Each fact proposed in disputing a moving party’s proposed factual statement and
all additional facts proposed by the responding party must be supported by
admissible evidence. The court will not search the record for evidence. To
support a proposed fact, you may use evidence as described in Procedure I.C.1.
a. through f.

2.

The court will not consider any factual propositions made in response to the
moving party’s proposed facts that are not supported properly and sufficiently by
admissible evidence.

III. REPLY BY MOVING PARTY
A. Contents:
1.

An answer to each numbered factual statement made by the responding party in
response to the moving party’s proposed findings of fact, together with references
to evidentiary materials; and

2.

An answer to each additional numbered factual statement proposed by the
responding party under Procedure II.B., if any, together with references to
evidentiary materials; and

3.

A reply brief; and

4.

Evidentiary materials (see I.C.)

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B.

If the responding party has filed additional proposed findings of fact, the moving party
should file its response to those proposed facts at the same time as its reply, following the
procedure in section II.

C.

When the moving party answers the responding party’s responses to the moving party’s
original proposed findings of fact, and answers the responding party’s additional
proposed findings of fact, the court prefers but does not require that the moving party
repeat verbatim the entire sequence associated with each proposed finding of fact so that
reply is a self-contained history of all proposed facts, responses and replies by all parties.

IV. SUR-REPLY BY RESPONDING PARTY
A responding party shall not file a sur-reply without first obtaining permission from the
court. The court only permits sur-replies in rare, unusual situations.

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M OTION FOR SUM M ARY JUDGM ENT
Deadline 1
(All deadlines appear in the
Preliminary Pretrial Conference
Order Sent to the Parties Earlier)

Deadline 2

Deadline 3

moving party’s motion
moving party’s brief

non-moving party’s response brief

moving party’s reply brief

moving party’s proposed findings of
fact

non-moving party’s response to
moving party’s proposed findings of
fact

moving party’s reply to non-moving
party’s response to moving party’s
proposed findings of fact

non-moving party’s additional
proposed findings of fact

moving party’s response to non-moving
party’s additional proposed findings of
fact, if any.

CROSS M OTIONS FOR SUM M ARY JUDGM ENT
Deadline 1
(All deadlines appear in the
Preliminary Pretrial Conference
Order Sent to the Parties Earlier)

Deadline 2

Deadline 3

defendant’s motion
defendant’s brief

plaintiff’s response brief

defendant’s reply brief

defendant’s proposed findings of
fact

plaintiff’s response to defendant’s
proposed findings of fact

defendant’s reply to plaintiff’s response
to defendant’s proposed findings of fact

plaintiff’s brief

defendant’s response brief

plaintiff’s reply brief

plaintiff’s proposed findings of fact

defendant’s response to plaintiff’s
proposed findings of fact

plaintiff’s reply to defendant’s response
to plaintiff’s proposed findings of fact

plaintiff’s motion

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