Allen-Noll, Taysheedra v. Madison Area Technical College et al

Filing 63

ORDER denying 61 Plaintiff's Motion for Reconsideration; granting in part and denying in part 59 Defendant's Request for Cost-shifting. Not later than 10/8/19, plaintiff and her attorney are jointly and severally responsible to pay $9,266.25 to counsel for the defendants. Signed by Magistrate Judge Stephen L. Crocker on 7/8/19. (jat)

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

TAYSHEEDRA D. ALLEN-NOLL,
ORDER

Plaintiff,
v.

18-cv-216-slc

MADISON AREA TECHNICAL COLLEGE, et al.,
Defendants.

On April 8, 2019, the court filed an order (dkt. 59) denying plaintiff’s motion to compel
discovery (dkt. 31) and ordering cost-shifting pursuant to Rule 37(a). See dkt. 49. On May 15,
2019, defendants filed their bill of costs and expenses, requesting $10,578.75. See dkt. 59. On
June 3, 2019, plaintiff filed a 24-page motion for reconsideration of the court’s substantive
order, or in the alternative, opposing cost-shifting. See dkt. 61. I am denying both motions.

Plaintiff’s Motion for Reconsideration
Plaintiff Allen-Noll had an ample opportunity to present her facts and arguments in
original motion to compel. In a 16-page brief (dkt. 32), Allen-Noll sought to compel a second
deposition of defendant Lausch and more satisfactory answers to six of her interrogatories and
eight of her requests for production of documents. In my order denying Allen-Noll’s motion in
its entirety, I characterized her supporting brief as “terse to the point of being inscrutable.” Dkt.
49 at 3. The defendants responded with a 20-page brief and 15 exhibits totaling over 200 pages.
(Dkts. 44 and 45). Although the court does not ordinarily allow replies in support of discovery
motions, see Preliminary Pretrial Conference Order, dkt. 13, at 4, I invited a reply from AllenNoll to give her a chance to amplify her first brief. I also granted Allen-Noll’s request to suspend
her deadline to respond to defendants’ summary judgment motion until the court ruled on her

motion to compel discovery. See March26, 2019 text-only order, dkt. 47. The reply brief would
have been Allen-Noll’s opportunity to challenge the points that defendants had made in their
response. Instead, Allen-Noll filed a two-page reply on April 6, 2019 (dkt. 48), ten days after
her deadline, citing one case and getting the holding backwards.
Although Allen-Noll’s failure to develop her arguments in her supporting brief was a
sufficient stand-alone ground to deny the motion, I took the time and went to the effort of
reviewing the case file, doing my own legal research, and deciding each of Allen-Noll’s claims on
its merits. This led to a 22-page order in which I separately addressed each of Allen-Noll’s
requests and found that she was not entitled to additional discovery on any of them.
Allen-Noll’s greatest concern was that her second attorney be allowed to take a second
deposition of defendant Lausch, based on her claim that she was pursuing her claims under a
different theory of racial conspiracy. Having carefully considered both sides’ submissions, I
found that
The absence of the word “conspiracy” [from the deposition transcript],
however, is not a reason to compel a second deposition of Lausch
when there is no showing of any specific substantive gaps in the
questions and answers. Deposing Lausch again with an eye toward
proving up a hidden racial conspiracy would simply cover the same
facts a second time, with Lausch denying the existence of any such
conspiracy. The fact that Attorney Coe might approach deposing
Lausch differently than Attorney Kennelly did is not a reason to
make Lausch sit for a second deposition. Pursuant to Rule
37(a)(5)(B), this is a circumstance under Rule 26(c) in which
Lausch is entitled be spared from another deposition due to
annoyance, undue burden and undue expense, all of which would
be disproportionate to the cost in time, effort and money of
attempting to adduce any new, relevant information.
Dkt. 49 at 20-21.
The same was true for all of Allen-Noll’s other requests. My order speaks for itself but
here is the headline version of my decision on each request:

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Interrogatory No. 9: The court cannot discern any evidentiary
basis for Allen-Noll’s terse contentions of inadequate disclosures
by defendants.
Interrogatory 12 & RFP 7: On this record, Allen-Noll has not
fleshed out any facts or argument that would suggest that this
court should compel defendants to provide any additional
information.
Interrogatory 13 & RFP 15: The court cannot discern from
Allen-Noll’s motion to compel what else she is seeking or what else
she thinks is out there that defendants have not provided.
Interrogatory 14, Interrogatory 15 and RFP 17: Defendants
are not required to acquiesce in Allen-Noll’s theory of prosecution
when responding to her discovery requests. As long as they have
provided the relevant information in their possession, they have
met their discovery obligations and there is nothing for the court
to compel.
Interrogatory 16: defendants clarified their answer in their
response to the motion to compel. There is nothing left for the
court to order.
RFP 3: Allen-Noll has not made any showing that she is entitled
to discovery of these personnel files. The evidence further shows
that she doesn’t need these files because they don’t provide the
information she appears to be seeking. This information is
available in the files of the other employees, relevant portions of
which defendants already have provided.
RFPs 16 & 18: To the extent that Allen-Noll actually is seeking
similarly-situated employees, defendants have responded to those
requests, and Allen-Noll has provided no basis for the court to
compel substantive answers to RFPs 16 or 18.
RFP 19: The court cannot discern what Allen-Noll is asking for.
To the extent Allen-Noll is seeking wage and bonus information
regarding particular employees, she has not made any showing that
these employees are similarly situated to her.
Allen-Noll’s motion for reconsideration does not change these conclusions. Allen-Noll
doesn’t present any new arguments, she just makes the same arguments again, but with greater

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insistence and with more details that are intended to fill in the many blanks that the court
pointed out in Allen-Noll’s first brief and in her reply. But developing an argument for the first
time in a motion to reconsider is too late. United Central Bank v. KMWC 845 LLC, 800 F.3d
307, 310 (7th Cir. 2015), quoting Bloch v. Frishholz, 587 F.3d 771, 784 (7th Cir. 2009), a
religious discrimination case. Simply put, “motions to reconsider [are] not an opportunity to
present arguments that could have been raised previously.” Cincinnati Life Ins. Co. V. Beyrer, 722
F.3d 939, 954 (7th Cir. 2013). This court put in a substantial amount of time and effort trying
to make sense out of Allen-Noll’s first motion in order to provide a decision on the merits. I am
not going to repeat that process when nothing new or different appears in her motion for
reconsideration.
Attorney Coe views things differently, going so far as to assert (“respectfully”) that
denying a second deposition of Lausch “infringes on Allen-Noll’s due process right to have a
different attorney at the Federal level in order to travel a different path to reach the destination
of discrimination justice.” Dkt. 61 at 3. This is a palpable misstatement of the law. “A litigant
in a civil case has neither a statutory nor a constitutional right to counsel.” Walker v. Price, 900
F.3d 933, 935 (7th Cir. 2018). Therefore, there is no constitutional right to effective assistance
of counsel in civil cases. Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir. 2001); Bell v. Eastman
Kodak Co., 214 F.3d 798, 802 (7th Cir. 2000); Pokuta v. Trans World Airlines, Inc., 191 F.3d 834,
840 (7th Cir. 1999) (explicitly holding that a civil plaintiff cannot establish a due process
violation based on her attorney’s alleged conflict of interest).
Taking this a step further, replacement counsel in a civil lawsuit cannot get a do-over
based on his predecessor’s failure to approach the case a certain way, even if that failure

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amounted to gross negligence. United States v. 7108 West Grand Ave., Chicago, Ill., 15 F.3d 632,
634-35 (7th Cir. 1994), quoted in Fuery v. City of Chicago, 900 F.3d 450, 467 (7th Cir. 2018)
(“The clients are principals, the attorney is an agent, and under the law of agency the principal
is bound by his chosen agent’s deeds.”). As the court noted in Choice Hotels Inter., Inv. v. Grover,
792 F.3d 753, 754 (7th Cir. 2015), “litigants are bound by the acts and omissions of their chosen
agents, including lawyers, and that legal bungling therefore does not justify reopening a
judgment.”
By citing these cases, I am not finding–-or even implying–that Allen-Noll’s previous
counsel screwed up by how she approached this case and how she chose to depose Lausch. That
issue is not before the court. But Allen-Noll and her current attorney obviously hold that view,
and they argue that it entitles Allen-Noll to another shot at Lausch. The case law is clear: it
does not.
Perhaps Allen-Noll will view this holding as a technicality that deprives her of a chance
to obtain the evidence she believes that Lausch will divulge if her new attorney is just given the
opportunity to ask the right questions. But as noted in the court’s first order, Allen-Noll has not
provided any basis to believe that having a new attorney ask more pointed questions of Lausch
will result in answers that are more favorable to Allen-Noll. I addressed all of this in the April
8, 2019 order at 18-21. Allen-Noll’s motion for reconsideration simply repeats her previous
points, while adding more case law cites.
Attorney Coe repeatedly cites to Hassan v. Foley & Lardner, 552 F.3d 520 (7th Cir. 2008),
in his motion, so I have reviewed it for relevance. There, as Allen-Noll points out, the court of
appeals overturned the district court’s grant of summary judgment in favor of the defendant in

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a discriminatory firing lawsuit, finding that there was a large enough “mosaic” of circumstantial
evidence, coupled with unresolved questions of fact, to survive summary judgment on a directproof claim of discrimination. Id. at 531. So why is this summary judgment reversal relevant
to Allen-Noll’s motion for reconsideration of her discovery motion? Allen-Noll’s point is that
the evidence she moved to compel is relevant to creating her mosaic of discrimination,
particularly with regard to asking Lausch different questions at a second deposition and getting
more information about co-workers Ahern, Polly and Gorder. But this is just a rehash of AllenNoll’s arguments in her original motion to compel. I found no basis in Allen-Noll’s original
motion to allow the requested discovery, See dkt. 49 at 8-10, 14-15 and 18-21, and the Hassan
decision does nothing to advance Allen-Noll’s request for reconsideration..
Attorney Coe also cities to the unofficial synopsis of B&B Hardware, Inc. V. Hargis Indus.,
Inc. ___ U.S. 135 S.Ct. 1293 (2015), to argue that bringing this lawsuit after the administrative
proceedings “is not forum shopping which would preclude re-litigation of decided issues.” Dkt.
62-1 at 4. B&B Hardware is not on point to the issues on which Allen-Noll seeks reconsideration
of this court’s discovery order, and no one is arguing claim preclusion. This is a non sequitur.
Attorney Coe cites this case a second time:
It is respectfully submitted that, no one is clairvoyant enough to
know what Attorney Kennelly’s strategy was, but to use that
speculation to block Allen-Noll’s vision down a different issue path
to overcome discrimination, when justice is in sight, is inscrutable.
Issue preclusion herein is inapplicable, B&B Hardware, Inc., supra.
Dkt. 62-1 at 7.
Again, issue preclusion is not on the table. Circuit law is unequivocal: a litigant is bound by her
attorney’s acts and omissions.

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Finally, Allen-Noll points to Banco Del Atlantico, S.A. v. Woods Industries, Inc., 519 F.3d
350, 352 (7th Cir. 2008), in which the court ordered a second Rule 30(b)(6) deposition of the
plaintiff corporation because the first deposition was a “fiasco.” The court of appeals detailed
the clear misconduct in which plaintiff’s witnesses and lawyers had engaged during the second
deposition, which caused the district court to dismiss plaintiff’s case. The court of appeals
upheld the dismissal. Id. at 352-54. Banco Del Atlantico is not on point. Notwithstanding AllenNoll and Attorney Coe’s characterization of Lausch’s deposition, neither Lausch nor his
attorneys said or did anything improper that would cause this court to order Lausch to sit for
another deposition. I addressed this directly in my first order, dkt. 49 at 18-21.
In sum, Attorney Coe again has presented a motion in he which ignores clear circuit law
that controls the issues, and instead has cited cases that do not stand for the propositions cited
or are clearly distinguishable. Nothing in the motion for reconsideration demonstrates that the
court’s original order was incorrect. The motion for reconsideration is denied.

Cost-Shifting Pursuant to Rule 37(a)(5)(B).
In the court’s April 8, 2019 order, I granted defendants’ motion for cost shifting, citing
the “great operative principle” of Rule 37(a): “the loser pays.” Rickels v. City of South Bend, Ind.,
33 F.3d 785, 786 (7th Cir. 1994). However, a loser may avoid payment by establishing that his
position was substantially justified, or that other circumstances make an award of expenses
unjust. Id. at 787.
Defendants have submitted a bill of costs totaling $10,578.75 (dkt. 59), consisting of
11.2 hours of partner time at $315/hr., 23.2 hours of associate time at $262.50/hr. and 6.10

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hours of paralegal time at $157.50/hr. (dkt. 60-1), backed up by an itemized breakout of who
did what when (dkt. 60-2).
Allen-Noll, by counsel, objects to any cost-shifting at all, asserting that her motion was
substantially justified and/or other circumstances make an award unjust. Dkt. 61 at 2. AllenNoll cites to Athridge v. Aetna Cas. And Sur. Co., 184 F.R.D. 200, 204 (D.C. Cir. 1998), to define
“substantial justification.” That case involved an assertion of attorney-client and work product
privilege that the court rejected, instead ordering the requested discovery. In granting the request
for cost-shifting (with some small carve-outs), the court explained how it had relied on circuit
authority to define and analyze the privileges asserted by Aetna, and found that Aetna’s claims
of privilege were not substantially justified. The court then analyzed the “relevance” and
“burdensome” objections asserted by the defendant, again referring to case law, which
“specifically condemned the vague, unspecific and general objections Aetna made, and that
Aetna’s use of a particular phrase . . . obfuscated its actual intentions.

In light of that

conclusion, I cannot conclude that Aetna’s position was substantially justified; the contrary is
true.” Id. at 206. This is another situation in which it the case cited by Allen-Noll is more
favorable to defendants than to her.
Allen-Noll’s second case, Tchemkou v. Mukasey, 517 F.3d 506 (7th Cir. 2008), is a request
for attorney’s fees by a prevailing petitioner for asylum under the Convention Against Torture.
Petitioner’s request for attorney’s fees was governed by the Equal Access to Justice Act, 28
U.S.C. § 2412, which required the government, as the loser, to prove that its opposition to
petitioner’s case was “substantially justified,” as that term has been defined in other EAJA cases,
e.g. Pierce v. Underwood, 487 U.S. 552, 565-66 (1988). This is a circuitous path to the correct

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result: the court of appeals in Rickels, cited by this court in its cost-shifting order, holds that the
Rule 37(a)’s “substantially justified” standard is the same formulation employed by the EAJA.
33 F.3d at 788.
Allen-Noll jumps straight from her case citations to her claim of a due process violation
by the court, which I have addressed above. Throughout her motion, Allen-Noll emphasizes her
position that her new attorney has not had the opportunity to develop her racial discrimination
conspiracy theory, so she was substantially justified seeking the discovery that she moved to
compel, particularly a second deposition of Lausch. But as noted repeatedly in my original order
and as outlined above in this order, Allen-Noll’s actual motion to compel was an undisciplined
jumble of unexplained assertions and undeveloped arguments. Allen-Noll did not show that she
was entitled to any of the discovery she was seeking and she has not shown that her positions
in her motion to compel were substantially justified. As already noted, Allen-Noll ignored circuit
law and cited cases that contradicted her own position, particularly with regard to her request
to re-depose Lausch. Nothing in her motion for reconsideration salvages her first motion: it is
more of the same.
At the outset of her motion for reconsideration, Allen-Noll labels defendants’ $10,578.75
bill “excessive” and she states that “other circumstances make an award unjust,” dkt. 61 at 2,
but she never returns to these contentions. This is yet another perilous strategic choice by
counsel, but I have independently assessed defendants’ claim for reasonableness. The hourly
rates charged are at or below the market rate in this district, and defendants’ lead attorney
prudently assigned most of the work to lower-cost associates. The tradeoff is that associates are
not as knowledgeable, experienced or efficient as partners, so it takes them more time to

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accomplish the same task. Obviously this is accounted for to a great degree by the lower billing
rates for associates, but I nonetheless am going to give Allen-Noll the benefit of a five-hour
reduction in the associates’ hours. 18.2 hours @ $262.5/hr.= $4,777.50. Added to Attorney
Johanningmeier’s claim for $3,528 and the paralegal’s claim for $960.75, the total amount of
costs to be shifted is $9,266.25. I will give Allen-Noll and her attorney three months to pay this
amount.

ORDER
IT IS ORDERED that:
(1) Plaintiff’s Motion for Reconsideration (dkt. 61) is DENIED.
(2) Defendant’s request for cost-shifting (dkt. 59) is GRANTED IN PART and DENIED
IN PART: not later than October 8, 2019, plaintiff and her attorney are jointly and severally
responsible to pay $9,266.25 to counsel for the defendants.

Entered this 8th day of July, 2019.
BY THE COURT:
/s/
_______________________
STEPHEN L. CROCKER
Magistrate Judge

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