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McDonough v. WESTconsin Credit Union

United States District Court, W.D. Wisconsin

March 20, 2015

PATRICK McDONOUGH, on behalf of himself and all others similarly situated, Plaintiff,
v.
WESTCONSIN CREDIT UNION, Defendant. BRIAN EGGEN and MARY EGGEN, on behalf of themselves and all others similarly situated, Plaintiffs, WESTCONSIN CREDIT UNION, Defendant. FRANK ARNZEN and RENA CLEVELAND, on behalf of themselves and all other similarly situated, Plaintiffs, WESTCONSIN CREDIT UNION, Defendant

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For Patrick McDonough, On behalf of himself and all others similarly situated, Plaintiff (3:14-cv-00705-bbc): Eric Leighton Crandall, LEAD ATTORNEY, Crandall Law Offices, SC, New Richmond, WI; Thomas John Lyons, Jr., LEAD ATTORNEY, Consumer Justice Center, P.A., Vadnais Heights, MN; Thomas John Lyons, Sr., LEAD ATTORNEY, Lyons Law Firm PA, Vadnais Heights, MN.

For WESTconsin Credit Union, Defendant (3:14-cv-00705-bbc): Michael Patrick Crooks, Peterson, Johnson & Murray, S.C., Madison, WI.

For Bradley Eggen, Plaintiff (3:14cv873): Eric Leighton Crandall, LEAD ATTORNEY, Crandall Law Offices, SC, New Richmond, WI USA; Thomas John Lyons, Jr., LEAD ATTORNEY, Consumer Justice Center, P.A., Vadnais Heights, MN USA; Thomas John Lyons, Sr., LEAD ATTORNEY, Lyons Law Firm PA, Vadnais Heights, MN USA.

For Mary Eggen, Plaintiff (3:14cv873): Eric Leighton Crandall, LEAD ATTORNEY, Crandall Law Offices, SC, New Richmond, WI USA; Thomas John Lyons, Jr., LEAD ATTORNEY, Consumer Justice Center, P.A., Vadnais Heights, MN USA; Thomas John Lyons, Sr., LEAD ATTORNEY, Lyons Law Firm PA, Vadnais Heights, MN USA.

For Westconsin Credit Union, Defendant (3:14cv873): Michael Patrick Crooks, LEAD ATTORNEY, Peterson, Johnson & Murray, S.C., Madison, WI USA; Quentin Fitch Shafer, LEAD ATTORNEY, McCollister, Shafer & Stewart, Waukesha, WI USA.

For Frank Arnzen, Rena Cleveland, Plaintiff (3:15cv29): Eric Leighton Crandall, LEAD ATTORNEY, Crandall Law Offices, SC, New Richmond, WI USA.

For Westconsin Credit Union, Defendant (3:15cv29): Michael Patrick Crooks, LEAD ATTORNEY, Peterson, Johnson & Murray, S.C., Madison, WI USA; Quentin Fitch Shafer, LEAD ATTORNEY, McCollister, Shafer & Stewart, Waukesha, WI USA.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

These three proposed class actions arise out of pleadings filed years ago by defendant WESTconsin Credit Union in small claims actions in which it was suing the plaintiffs for defaulting on consumer loans. Plaintiffs allege that, in each of the complaints filed in small claims court, defendant included plaintiffs' Social Security numbers and driver's license numbers, in violation of the Driver's Privacy Protection Act (18 U.S.C. § § 2721-2725), the Wisconsin Consumer Act (Wis. Stat. § § 421.101-427.105), Wisconsin's privacy law (Wis. Stat. § 995.50) and the common law of nuisance. The parties agree that jurisdiction

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is present under 28 U.S.C. § § 1331 and 1367.

Defendant has filed motions in each case under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. Because these motions were filed after defendant filed answers and raised affirmative defenses, the motions are more accurately classified as motions for judgment on the pleadings under Fed.R.Civ.P. 12(c). Yassan v. J.P. Morgan Chase and Co., 708 F.3d 963, 975-76 (7th Cir. 2013). Further, although only one of defendant's three motions is called " motion for partial dismissal" (the other two are called simply " motion to dismiss" ), a review of defendant's motions reveals that they are nearly identical and that all of them address only two of the four claims included in plaintiffs' complaints, the Wisconsin Consumer Act and Wisconsin's privacy law. Because defendants have not raised any arguments about plaintiffs' claims under the federal privacy statute or nuisance common law, I have not considered those claims in this order.

In its motions, defendant argues that plaintiffs' claims under the Wisconsin Consumer Act and the state privacy law are barred by the statute of limitations. In addition, defendant argues that plaintiffs' allegations " do not rise to the level of a private cause of action under" the Wisconsin Consumer Act and that publication of driver's license numbers and Social Security numbers does not violate Wisconsin's privacy law.

None of the plaintiffs responded to defendant's argument regarding the scope of the state privacy law, so that argument is forfeited. Stransky v. Cummins Engine Co., Inc., 51 F.3d 1329, 1335 (7th Cir. 1995) (" [W]hen presented with a motion to dismiss, the non-moving party must proffer some legal basis to support his cause of action. The federal courts will not invent legal arguments for litigants." ). In addition, I agree with defendants that plaintiffs' claims under the Wisconsin Consumer Act and the state privacy law are barred by the statute of limitations. Accordingly, it is unnecessary to consider defendant's remaining arguments about the Wisconsin Consumer Act.

OPINION

Defendant argues that the statute of limitations has expired on all of plaintiffs' claims under the Wisconsin Consumer Act and the state privacy law. ...


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