Williams, Patricia v. WI Dept of Workforce Development

Filing 72

Transmission of Notice of Appeal, Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re 70 Notice of Appeal. (Attachments: # 1 Order, # 2 Judgment, # 3 Docket Sheet) (nln)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PATRICIA WILLIAMS,
ORDER
Plaintiff,
13-cv-794-bbc
v.
WISCONSIN DEPARTMENT OF
WORKFORCE DEVELOPMENT,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Patricia Williams is proceeding on a claim that defendant Wisconsin
Department of Workforce Development failed to pay her in accordance with the Fair Labor
Standards Act. Trial is scheduled for June 1, 2015.
On April 6, 2015, defendant filed a two-page document in which it argues that
plaintiff’s FLSA claim is barred under the doctrine of sovereign immunity. Dkt. #65.
Although defendant calls the document a “motion for reconsideration,” defendant does not
identify any errors the court made in a previous order. Defendant did not raise sovereign
immunity as a defense until now and courts are not required to raise the issue on their own.
Patsy v. Board of Regents of State of Florida, 457 U.S. 496, 515 (1982) (“[W]e have never
held that [sovereign immunity] is jurisdictional in the sense that it must be raised and
decided by this Court on its own motion.”). Thus, defendant’s motion is more accurately
called an untimely motion for summary judgment.
In response, plaintiff argues that defendant’s motion should be treated as a motion

under Fed. R. Civ. P. 60 and then denied because defendant has not identified any reason
it is entitled to relief under that rule. However, Rule 60 applies to requests to vacate the
judgment. No judgment has been entered in this case, so Rule 60 does not apply.
The key question presented by defendant’s motion is whether defendant forfeited a
sovereign immunity defense by failing to raise the issue until now. In its motion, defendant
says only that it “should have presented this legal argument to the court earlier in this case”
but that “a motion for reconsideration is appropriate to ensure the proper legal result.” Dkt.
#65. It cites no authority regarding waiver of sovereign immunity. Because plaintiff’s
argument relies entirely on Rule 60, she ignores the issue as well. Defendant addresses the
waiver issue for the first time in a reply brief that was not invited by the court, but even in
that brief, the cases defendant cites are not on point.
In my own research, I uncovered case law in which the Supreme Court has held that
a state does not waive a sovereign immunity defense by failing to raise it early in the case.
For example, in both Patsy, 457 U.S. at 515, and Edelman v. Jordan, 415 U.S. 651, 677-78
(1974), the Court stated that sovereign immunity may be raised for the first time on appeal.
Thus, it follows necessarily that the state can raise the defense in the district court even on
the eve of trial.
In its motion, defendant cites Mueller v. Thompson, 133 F.3d 1063, 1064 (7th Cir.
1998), which states “the Eleventh Amendment bars suits against a state in federal court
based on statutes, including the FLSA, that are enacted under Congress's power to regulate
interstate and foreign commerce.” Thus, Mueller seems to leave no room for debate whether
defendant is entitled to sovereign immunity on plaintiff’s FLSA claim. Because plaintiff does

not cite any contrary authority in her response and I am aware of none, I will dismiss this
case.

ORDER
IT

IS

ORDERED

that

defendant

Wisconsin

Department

of

Workforce

Development’s “motion for reconsideration” (properly construed as a motion for summary
judgment), dkt. #65, is GRANTED. The clerk of court is directed to enter judgment in
favor of defendant and close this case.
Entered this 17th day of April, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge