Pre-trial Practice
in the Western District of Wisconsin:
A Law Clerk's Perspective

By Kendall W. Harrison

Many cases in the U.S. District Court for the Western District of Wisconsin can be won by filing a well-supported dispositive motion, saving clients and attorneys the expense and burden of trial. Despite this fact, lawyers routinely overlook the court's procedures and other basic guidelines, thereby endangering their chances of success.

This article offers suggestions to improve one's opportunity for victory on paper, especially on summary judgment motions. Much of the advice may seem obvious to seasoned practitioners, but even veteran attorneys make mistakes that may cost them a victory. Although the comments apply specifically to the Western District of Wisconsin, attorneys appearing exclusively in the Eastern District should find some of the advice pertinent to their practices.

Before starting

Before filing a complaint or an answer in the Western District of Wisconsin, lawyers are advised to review Stuart G. Gullickson's and Scott C. Minter's Federal Civil Practice in the Western District of Wisconsin. The book traces the steps of a civil lawsuit in the Western District from its initiation through post-trial motions and answers many procedural questions.

Attorneys also should know the court's local rules, which cover: admission of lawyers, the use of magistrate judges, discovery disputes, and contacting jurors.¹

Complaint

A complaint filed in federal court should include a statement alleging the grounds for federal jurisdiction. Most plaintiffs make certain to explain whether they are proceeding under federal question jurisdiction, 28 U.S.C. § 1331, or diversity jurisdiction, 28 U.S.C. § 1332. Be careful, however, with allegations of the amount in controversy and citizenship under section 1332. The amount-in-controversy requirement was increased from $50,000 to $75,000 in January 1997. More important, section 1332 requires the parties to be "citizens" of different states. Thus, allegations should refer to the parties' citizenship and not to their residency. For example, litigants might reside in Wisconsin but still be Minnesota citizens because they intend to make their permanent home in that state. A federal court will not be certain of its jurisdiction unless the parties' citizenship is alleged properly.

A complaint should include a section alleging enough facts to lay the basis for the legal claims, without going much beyond the necessary minimum. The Seventh Circuit has made it clear that plaintiffs risk pleading themselves out of court by providing too extensive a factual recitation in the complaint.²

Claims should be stated individually. Include a specific heading for each claim: for example, "Claim I - Title VII, 42 U.S.C. § 2000e(2)." Providing courts with the exact statutory or common law basis for the claim will make it much easier for them to address these claims later on dispositive motions. It also helps plaintiffs' attorneys develop a clearer understanding of the claims on which they are proceeding. When attorneys are not specific, it is difficult for both opposing parties and courts to ascertain plaintiffs' legal theories. If a complaint does not clearly identify the number and nature of the claims advanced, it likely will be read narrowly and against the interests of the plaintiff.

Motion to dismiss

Defendants who intend to file a motion to dismiss for failure to state a claim pursuant to Fed R. Civ. P. 12(b)(6) should recognize that courts are required to accept the facts as alleged in the complaint. If a defendant disagrees with the veracity of the plaintiff's factual allegations, a 12(b)(6) motion is not the time to raise that dispute. Federal courts cannot consider affidavits or other evidence in resolving such a motion. Lawyers who already have important evidence when a motion to dismiss is due should reserve that evidence, develop the case through discovery, and present the court with a summary judgment motion at the appropriate time.

Motions to dismiss under Fed. R. Civ. P. 12(b)(6) are appropriate in at least two instances. In the first instance, a defendant contends that the plaintiff failed to allege the minimal facts necessary to make out the elements of each claim. Because of the liberal pleading requirements of Fed. R. Civ. P. 8, the Western District rarely grants this type of motion. Defense lawyers sometimes file this type of motion because the facts in the complaint do not allow the defendant to determine the precise grounds for the plaintiff's claims. The better way to clear the confusion is to serve contention interrogatories on the plaintiff. Contention interrogatories can help to pin down the factual bases for plaintiff's legal claims at the outset of the case.

In the second instance, the defendant argues that even if all the alleged facts are true, the complaint still fails to state a legally cognizable claim. Take for example a situation in which plaintiffs bring an equal protection claim alleging that a private landlord refused to rent them an apartment because they are African-American. Although plaintiffs might have a claim under the Federal Fair Housing Act, they would not have an equal protection claim because the landlord is not a state actor. Thus, even assuming that the landlord's actions were racially discriminatory, plaintiffs would not have stated a cognizable equal protection claim and defendant's motion to dismiss would be granted.

Discovery

Discovery in the Western District of Wisconsin resembles discovery elsewhere, with one possible difference: timing. Discovery proceeds rapidly in the Western District. Deadlines for discovery and the filing of dispositive motions are set at a preliminary pre-trial conference, which the court holds within two months after the complaint is filed. The final date for filing dispositive motions is a mere four months after that conference. Although the court permits discovery to continue for another three months after the dispositive motion deadline, attorneys must have conducted enough discovery by the time dispositive motions are due to be able to respond to facts raised in an opponent's summary judgment motion.

The judges of the Western District are not sympathetic to lawyers who assert that they have not had adequate time to conduct discovery and therefore cannot respond to the opposing party's motion for summary judgment. The court will accept as undisputed any facts that a party tries to oppose with a statement such as, "Disputed because we have not had time to depose that witness." Alert the court promptly if more time is needed to complete discovery and cite Fed. R. Civ. P. 56(f), which permits a party to seek additional time to respond to a summary judgment motion for certain, specified reasons. The court will be far more inclined to consider a request for additional time if an attorney has followed the proper procedures.

Summary judgment

A motion for summary judgment pursuant to Fed. R. Civ. P. 56 presents the opportunity to win a case without the expense and risk of trial. Obviously, not all cases can be resolved on summary judgment. In cases where the parties agree on the key underlying facts, however, summary judgment is an effective tool to resolve the case expeditiously. Even if the entire case cannot be resolved on summary judgment, it still may be worth filing a motion for summary judgment on a subset of the legal claims raised in the complaint. Such a motion, commonly known as a "motion for partial summary judgment," may help to limit the trial to viable claims only, thereby saving time and expense. In addition, such a motion will help to educate the judge about the factual and legal issues involved in the case.

Before filing a summary judgment motion, pay close attention to the "Procedures to Be Followed on Motions for Summary Judgment in the Western District of Wisconsin," a copy of which is sent to all parties along with the preliminary pre-trial conference order. The judges vigorously enforce the procedures set forth in that document.

Summary judgment motions in the Western District contain two important components: proposed findings of fact and conclusions of law; and supporting briefs.

Proposed findings of fact and conclusions of law

The biggest mistake lawyers make in summary judgment motions is overlooking the importance of the proposed findings of fact. (Conclusions of law are significant, but are less crucial than the proposed findings of fact, especially if the party's legal arguments are set forth clearly in its briefs.)

The proposed findings of fact offer the parties an opportunity to present the court with all the facts necessary to support their legal arguments. Even the best legal arguments will not lead to victory if the facts supporting the arguments are not before the court. It is critical to adhere to the court's procedures because if the facts are not presented properly, the court will not rely on them, even if supported by references to admissible evidence.

Parties must set forth their proposed findings of fact in a document separate from their briefs. While the court will read the facts section of a brief, it will not consider any facts that are not included and supported by admissible evidence in the proposed findings of fact. Thus, be certain to include a proposed finding of fact for each fact relied upon in the briefs. As explained in the court's procedures, each proposed finding should include only one fact.

Law firms that split the responsibility for the briefs and the proposed findings of fact between attorneys should pay close attention to verifying that all the facts relied upon in the briefs are in the proposed findings of fact. It is extremely frustrating to the court when an important fact mentioned in the brief is nowhere to be found in the proposed findings of fact. Even if it is the crucial fact in the case, the court will not consider it in making its summary judgment determination. It is unnecessary to document the facts section in a brief as one might be asked to do in state court. Instead, documentation should take place in the proposed findings of fact.

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