Guy v. Maio

227 F.R.D. 498, 61 Fed. R. Serv. 3d 677, 2005 U.S. Dist. LEXIS 13466, 2005 WL 925672
CourtDistrict Court, E.D. Wisconsin
DecidedApril 20, 2005
DocketNo. 04-C-506
StatusPublished
Cited by1 cases

This text of 227 F.R.D. 498 (Guy v. Maio) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Guy v. Maio, 227 F.R.D. 498, 61 Fed. R. Serv. 3d 677, 2005 U.S. Dist. LEXIS 13466, 2005 WL 925672 (E.D. Wis. 2005).

Opinion

DECISION AND ORDER

RANDA, Chief Judge.

Patricia Guy (“Guy”), the pro se plaintiff in the above-captioned action, filed her complaint in this Court on May 26, 2004, alleging a violation of her constitutional rights pursuant to 42 U.S.C. § 1983. Before the Court presently are various motions filed by Guy that require adjudication.

First, the Court considers Guy’s requests for extensions of time. In a letter dated March 1, 2005 and filed with the Court on March 3, 2005, Guy seeks an extension of time within which to file a dispositive motion. Guy states that the Defendants’ unsatisfactory responses to her interrogatories necessitate this extension. The Court also received a second filing entitled “Notice of Motion to Extend Pages of Motion for Summary Judgment” on April 5, 2005. The Court understands this filing to be another motion for an extension of time for the purposes of filing a dispositive motion. Specifically, Guy requested until April 7, 2005 to “properly file” a supplement to her summary judgment motion. That date has already come and gone, but the Court will accept any filing related to Guy’s motion for summary judgment so long as it was filed on or before that date. Accordingly, Guy’s motions for extensions of time are granted. These extensions, however, will prove of little use to Guy because she has failed to comply with this Court’s local rules.

On March 18, 2005, the Court received a filing from Guy entitled “Dispositive Motion of Facts.” (See Docket No. 54.) On April 5, 2005, the Court also received a “Notice of Correction of Dispositive Motion.” (See Docket No. 60.) The Court can only hazard a guess that these documents comprise Guy’s version of a motion for summary judgment. The Court, however, cannot accept this motion, or the correction thereto, because these filings do not comport with the Court’s local rules. Most notably, Civil Local Rule 56.2 requires a movant to submit to the Court either “(1) a stipulation of facts between the parties, or (2) the movant’s proposed findings of fact supported by specific citations to evidentiary materials in the rec[500]*500ord (e.g., pleadings, affidavits, depositions, interrogatory answers, or admissions), or (3) a combination of (1) and (2).” United States District Court for the Eastern District of Wisconsin, Local Rules, Civil L.R. 56.2. Guy has provided factual statements, but those propositions are neither the results of a stipulation between the parties nor supported by evidentiary citations. Because she has failed to comply with the Court’s local rules related to summary judgment filings, Guy’s dispositive motion will be stricken.

The Court now addresses Guy’s filing dated March 9, 2005, and received by the Court on March 10, 2005. In this submission, Guy asks the Court to change the caption of the case and replace the currently-named defendant “Sergeant Robeson” with “Officer Prebish.”1 The Defendants have not raised any objection to this motion.

Rule 15 of the Federal Rules of Civil Procedure addresses amendments that change the names of parties to an action and when such amendments “relate back” to the date of the original pleading. Fed.R.Civ.P. 15. An amendment relates back when:

(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of a party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

Fed.R.Civ.P. 15(c)(2) & (3).

Guy’s request ostensibly falls within the parameters of subsection (3). Guy’s requested amendment does not change the substance of her complaint, so the requirements of subsection (2) are satisfied. Guy’s complaint details an alleged physical altercation with two police officers. Based on the complaint, there is no doubt that Guy intended to name the officer working with Officer Maio, the other named defendant in this action, in her complaint. Officer Maio’s co-defendant likely had notice of the present action within the period of time for service set forth in Fed.R.Civ.P. 4(m), and knew or should have known that he was intended as a party to the suit. Therefore, the requirements of Rule 15(c)(3) are satisfied, and the Court will grant Guy’s motion to amend her pleading to reflect “Officer Prebish” as a defendant in this action in addition to “Officer Maio.” The party “Officer Roboson” will no longer appear in the caption to this ease.

Next, the Court turns to Guy’s motion to compel discovery, dated February 2, 2005, and docketed with the Court on March 11, 2005. In her motion, Guy identifies those discovery requests-solely by referencing the interrogatory numbers-which she believes the Defendants have failed to answer. She cites to Wisconsin statutes in support of her requests.

The Court need not address the substance of Guy’s motion because she failed to comply with a critical local rule in filing her motion. Civil Local Rule 37.1 states that

All motions for discovery pursuant to Fed. R.Civ.P. 26 through 37 must be accompanied by a written statement by the movant that, after personal consultation with the party adverse to the motion and after sincere attempts to resolve their differences, the parties are unable to reach an accord. The statement must also recite the date and time of such conference and the names of all parties participating in it.

United States District Court for the Eastern District of Wisconsin Local Rules, Civil L.R. 37.1. Parties must initially rely on their own cooperative efforts to resolve discovery disputes before seeking the Court’s intervention. In that respect, Civil L.R. 37.1 serves to facilitate communication between the parties while also reducing the potential costs of [501]*501prematurely bringing a dispute before the Court. Consultation with one’s adversary is the first avenue of resolution that must be explored. Guy’s motion does not contain any of the information required by Civil L.R. 37.1 and, therefore, must be denied.

Guy has also requested assistance from the Court in her efforts to subpoena witnesses. On April 6, 2005, the Court received a “Notice to Petition Court for Witnesses” signed by Guy and dated March 7, 2005. In that “Notice,” Guy asks the court for those fees required to subpoena witnesses for trial.

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Bluebook (online)
227 F.R.D. 498, 61 Fed. R. Serv. 3d 677, 2005 U.S. Dist. LEXIS 13466, 2005 WL 925672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guy-v-maio-wied-2005.