Local Rules Case Analysis

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The court’s holding — that sec. 802.08(2) preempts local rules governing the time for filing briefs and affidavits in summary judgment motions — is not novel.

Although the court does not cite the case for authority, another district of the court of appeals has already held this in a published opinion. Ricco v. Riva, 2003 WI App 182, 266 Wis.2d 696, 669 N.W.2d 193.

Nevertheless, the court’s discussion of when a court can disregard an untimely filing is significant, because local rules may differ from the statewide rule not only on the timing of submissions, but on the consequences for failure to follow the rules.

For example, in Kotecki & Radtke, S.C., v. Johnson, 192 Wis.2d 429, 531 N.W.2d 606 (Ct.App.1995), a party failed to comply with Milwaukee County’s local rule governing the timeliness of submissions on summary judgment. However, the circuit court considered the submission anyway, pursuant to another local rule providing that courts “may” consider such submissions for “good cause.”

Without addressing sec. 802.08, or whether it preempts the local rules, the court of appeals held that the circuit court properly exercised its discretion in considering the untimely brief. Kotecki, 531 N.W.2d at 613-614.

In the case at bar, however, even though the parties did not brief the issue, the court of appeals held that, pursuant to sec. 801.15(2)(a), the standard for whether to consider an untimely brief is “excusable neglect,” a higher standard to meet than “good cause.”

In practice, the deadlines for filing motions for summary judgment and responses are almost invariably set by scheduling order. Section 802.08(2) expressly permits this; thus, the decision will rarely be invoked for the principle that the state rule governing timeliness of summary judgment briefs preempts local rules in the absence of a scheduling order.

What it will be invoked for is the discussion of the consequences for failure to follow the scheduling order. A scheduling order will not likely set forth the burden on a party who fails to file a timely brief, and then opposes a motion to strike it from consideration.

When that happens, the decision in this case will require the circuit court to disregard any local rule setting forth a lower standard, like “good cause,” in favor of “excusable neglect.”

Whether this is a positive development remains to be seen. The justification may not be there.

There is a sound reason for sec. 802.08(2) to preempt local rules — avoiding traps for the unwary that can occur from rules that vary from county to county.

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There is no similar consideration at play when it comes to the consequences for failing to file a timely brief. If a local jurisdiction or court wants to employ a standard lower than excusable neglect, and consider an untimely brief, there is no trap for the unwary.

Unquestionably, the party that followed the rules may be disappointed that he doesn’t win by default, but must win on the merits, but he hasn’t been “trapped” by the local rule.

Thus, because scheduling orders usually deal with the time for filing briefs, and Ricco already settled that sec. 802.08(2) preempts local rules, the most significant holding of the court in the case at bar is that excusable neglect is the standard that a party who violates an order must meet, in order to obtain consideration of his brief.

– David Ziemer

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David Ziemer can be reached by email.