Bowe, Connor v. Eau Claire Area School District et al

Filing 25

ORDER denying 22 Motion for Reconsideration. Signed by District Judge James D. Peterson on 5/25/17. (jat)

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

CONNOR BOWE,
Plaintiff,
v.

ORDER

EAU CLAIRE AREA SCHOOL DISTRICT,
DAVID OLDENBERG, and TIM O’REILLY,

16-cv-746-jdp

Defendants.
Defendants move the court for reconsideration of its April 24, 2017 opinion, Dkt. 20,
under Federal Rule of Civil Procedure 59(e). Dkt. 22. “A Rule 59(e) motion will be successful
only where the movant clearly establishes: ‘(1) that the court committed a manifest error of
law or fact, or (2) that newly discovered evidence precluded entry of judgment.’” Cincinnati Life
Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013) (quoting Blue v. Hartford Life & Accident
Ins. Co., 698 F.2d 587, 598 (7th Cir. 2012)). Here, defendants contend that the court
committed a manifest error of law. They argue that Doe v. Howe Military School, 227 F.3d 981
(7th Cir. 2000), requires courts to apply the state statute for personal injury actions to Title
IX claims and that the court erred in applying Wis. Stat. § 893.53, which proscribes a six-year
limitations period for “injury to character or other rights,” instead of Wis. Stat. § 893.54, which
proscribes a three-year limitations period for “injury to the person,” to plaintiff Connor Bowe’s
Title IX claims. But because Howe does not require application of § 893.54 and instead supports
the court’s decision to apply § 893.53, the court will deny defendants’ motion.
When a federal law does not contain an express statute of limitations, federal courts
must “‘borrow’ the most suitable statute or other rule of timeliness from some other source.

[The Supreme Court has] generally concluded that Congress intended that the courts apply
the most closely analogous statute of limitations under state law.” DelCostello v. Int’l Bhd. of
Teamsters, 462 U.S. 151, 158 (1983). Title IX is one such law; another is 42 U.S.C. § 1983.
When it comes to § 1983 claims, the most analogous statue statute of limitations is the general
or residual personal injury statute of limitations. Owens v. Okure, 488 U.S. 235, 242-50 (1989);
Wilson v. Garcia, 471 U.S. 261, 276-79 (1985). Lower courts have concluded that the personal
injury statute of limitations is the most analogous state statute of limitations for Title IX claims,
too, see, e.g., Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 729 (6th Cir. 1996), and the Seventh
Circuit has followed suit. See Cetin v. Purdue Univ., 94 F.3d 647, 1996 WL 453229, at *2 (7th
Cir. Aug. 7, 1996).
So as a rule, you apply the state personal injury statute of limitations to § 1983 and
Title IX claims. Presumably, the district court in Howe followed that rule when it applied
Indiana’s statute of limitations for “injuries to the person or character” to the plaintiff’s Title
IX claim.1 227 F.3d at 988. But it’s not so easy for federal courts sitting in Wisconsin to apply
this rule, because unlike most states, Wisconsin “has two different statute[s] of limitations for
injuries to the person”: one for “injury to the person,” § 893.54; and one for “injury to character
or other rights,” § 893.53. Gray v. Lacke, 885 F.2d 399, 407 (7th Cir. 1989). In Gray, the
Seventh Circuit determined that § 893.53, the statute of limitations for “injury to character or
other rights,” is the general or residual personal injury statute of limitations in Wisconsin, so
under Owens and Wilson, “federal courts sitting in Wisconsin should apply [§ 893.53] to § 1983
actions.” Id. Defendants identify no reason why Title IX claims should be treated differently,

1

The Seventh Circuit did “not address whether that ruling was correct,” 227 F.3d at 989, so
Howe is not binding on this issue.

2

and the court can think of none. The court did not err in applying § 893.53 to Bowe’s Title IX
claims, so it will deny defendants’ motion.

ORDER
IT IS ORDERED that defendants Eau Claire Area School District, David Oldenberg,
and Tim O’Reilly’s motion for reconsideration, Dkt. 22, is DENIED.
Entered May 25, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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