Irwin v. State of Wis.
| Decision Date | 28 April 1993 |
| Docket Number | No. 92-2509,92-2509 |
| Citation | 998 F.2d 1016 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. David IRWIN, George Mercer, Charles Sirna, et al., Plaintiffs-Appellants, v. STATE of Wisconsin and William Flynn, Jr., Executive Director, Wisconsin State Lottery, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before CUMMINGS, POSNER and FLAUM, Circuit Judges.
ORDERWe adopt Chief Judge Barbara Crabb's comprehensive opinions granting summary judgment to the defendants.
AFFIRMED.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
David IRWIN, George Mercer, Charles Sirna, Randall Skowlund,
Daniel Brunmeier, Gary Burt, Sharon Danke, Elwyn Dunst,
James Engel, Elizabeth Gallenbeck, Thomas Greenlee, Paul
Hilmes, Barbara Raether, and Arlene Rentmeester, Plaintiffs,
v.
STATE OF WISCONSIN and WILLIAM F. FLYNN, JR., Executive
Director, Wisconsin State Lottery, Defendants.
OPINION AND ORDERJune 19, 1992
Plaintiffs have moved the court to reconsider the order dated April 30, 1992, granting defendants' motion for summary judgment in all but one respect. Plaintiffs contend that defendants' failure to produce documents requested by plaintiffs during the discovery process prejudiced plaintiffs by precluding them from offering additional evidence in support of their claims. Plaintiffs have submitted several documents that they allege defendants did not produce in a timely manner so that plaintiffs could proffer them in opposition to defendants' motion for summary judgment.
Defendants reply that plaintiffs did have some of the documents at issue before they filed their response to defendant's motion for summary judgment. As to the documents plaintiffs did not have, defendants contend that plaintiffs did not request some of the documents, that plaintiffs had access to others of the documents but did not ask for copies, and that still other documents were the subject of objections that were never challenged. Additionally, defendants assert that plaintiffs were dilatory in their discovery practices and so should be precluded from arguing that they did not have enough time to present all the evidence in their favor by the deadlines at the summary judgment stage. Finally, defendants contend that plaintiffs are barred from asking for reconsideration of the summary judgment decision because they failed to request an extension of time to gather more evidence, pursuant to Fed.R.Civ.P. 56(f).
Motions for reconsideration "serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence." Keene Corp. v. Int'l Fidelity Ins. Co., 561 F.Supp. 656, 665 (N.D.Ill.1982), aff'd 736 F.2d 388, 393 (7th Cir.1984). 1 "Such motions cannot in any case be employed as a vehicle to introduce new evidence that could have been adduced during pendency of the summary judgment motion." Id. To support a motion for reconsideration of a grant of summary judgment based on newly discovered evidence, the moving party is "obliged to show not only that this evidence was newly discovered or unknown to it until after the hearing, but also that it could not with reasonable diligence have discovered and produced such evidence [during the pendency of the motion]." Engelhard Indus., Inc. v. Research Instrumental Corp., 324 F.2d 347, 352 (9th Cir.1963), cert. denied, 377 U.S. 923 (1964).
The evidence that plaintiffs submit as newly discovered evidence consists of vehicle log reports that plaintiffs requested in their First Request for Production of Documents on November 22, 1991 and that defendants provided in early March 1992; documents produced by Cyneth Dahm at her deposition on March 6, 1992; and documents produced by Donna Dusso at her deposition on April 22, 1992. The record in this case shows none of these documents qualify as newly discovered evidence that plaintiffs could not have discovered and produced during the pendency of the motion if they had exercised the requisite reasonable diligence.
Plaintiffs had the vehicle log reports and the Dahm documents in their possession for a minimum of several days before plaintiffs' response to defendants' summary judgment motion was due. 2 Plaintiffs had two choices of what to do with these documents: they could scurry to assess the documents, determine what evidence the documents provided that raised material disputed facts to defeat defendants' motion for summary judgment, and submit the evidence with the brief in opposition; or they could move the court for an order continuing their time for submitting their brief, explaining that they had only recently received new materials and needed time to assess them, pursuant to Fed.R.Civ.P. 56(f). 3 Plaintiffs did neither; they submitted their brief in opposition without asking for a continuance to assess the "new" information, and they did not include any vehicle logs or any materials from the Dahm deposition as evidence to show a material dispute of fact. 4 It is disingenuous for plaintiffs to argue now that with reasonable diligence they could not have submitted the vehicle logs or the Dahm documents during the pendency of the motion for summary judgment.
Although plaintiffs had not deposed Donna Dusso before the March due date of their brief in opposition to defendants' motion for summary judgment, their attempt to persuade the court that it should consider documents produced at her deposition on April 22, 1992 suffers several infirmities. First, plaintiffs argue that they requested the documents at issue in Request No. 1 of their First Request for Production of Documents. However, defendants objected to request no. 1 as being Defendants' Response to Plaintiffs' Request for Production of Documents, no. 1. Plaintiffs did not respond to defendants' objection by challenging the objection, submitting a more specific written request for documents, filing a motion to compel, or scheduling early depositions. 5 Plaintiffs did not depose Dusso until April 22, after their brief in opposition to defendants' motion for summary judgment was due. The deposition was held before the motion was decided, however, and before plaintiffs submitted vehicle logs to the court on April 28. As with the vehicle logs and the Dahm documents, plaintiffs could have moved the court for a continuance in order to have time to inspect the new documents, but they failed to do so. That failure precludes plaintiffs from asking the court to consider the documents now. "The courts will not delay a case to allow discovery when the discovery sought could have been instituted earlier, especially when there is no reason to believe that it will lead to a denial of the motion." 10A Charles A. Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice and Procedure § 2741 (1983). The "earliest possible use of the discovery procedures seems imperative for a party seeking to avoid summary judgment." Id.
Even if I were to grant plaintiffs' motion for reconsideration to allow submission of their documents, nothing in those documents would provide a basis for altering my conclusion that plaintiffs have failed to set forth facts showing that there is a genuine issue for trial. 6 It is notable that although plaintiffs' motion for reconsideration and memorandum of law in support of the motion state that plaintiffs have been severely prejudiced by defendants' failure to produce these documents earlier, plaintiffs do not explain how any of the documents serve to raise a material issue of fact.
About half of plaintiffs' current submissions are vehicle logs. These are identical in kind to the logs that plaintiffs submitted on April 28, 1992, which I addressed in footnote 19 of my April 30 opinion and in footnote three above. The earlier submitted vehicle logs failed to raise a material dispute whether there existed reliable records of actual overtime hours worked by plaintiffs or whether defendants agreed that plaintiffs' residences would be designated as their district offices. Submitting more of the same kind of records does not cure the immateriality of the logs.
The other half of plaintiffs' submissions consist primarily of documents discussing updating of position descriptions for state exempt employees, various memoranda regarding state vehicle policies, letters between counsel regarding discovery disputes, and copies of lottery board questionnaires and forms. Plaintiffs do not explain how any of these documents raise a material issue of fact about plaintiffs' claims.
Another of plaintiffs' submissions is an October 17, 1988 letter to all lottery employees from defendant Flynn in which he addresses overtime pay for the lottery start-up period. The Flynn letter is remarkably similar to the 1988 memorandum to lottery employees from R.D. Markham, which I discussed at page twenty-eight of my April 30 order. Both documents inform employees that they will be paid overtime compensation in conformity with the Fair Labor Standards Act. As I pointed out in the opinion, these documents do not call into question defendants' good faith in not paying overtime compensation to its employees who were considered exempt, because under the FLSA, exempt employees need not be paid for overtime work.
The other document in plaintiffs' new submissions that I will address specifically is the 1988 memorandum from Dale Langer regarding state vehicles that some field service representatives were...
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