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McNutt v. Weinerman & Associates, LLC

United States District Court, W.D. Wisconsin

February 8, 2016

THOMAS MCNUTT, Plaintiff,
v.
WEINERMAN & ASSOCIATES, LLC, TMT MANAGEMENT GROUP, LLC, MARK BUGNI, and TOM LEIFERMAN, Defendants.

OPINION & ORDER

JAMES D. PETERSON DISTRICT JUDGE

In April 2014, plaintiff Thomas McNutt sued defendant Weinerman & Associates, LLC for violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. The parties settled, and the court dismissed the case without prejudice in December 2014. But a few months later, McNutt moved to reopen the case because Weinerman did not pay him pursuant to the parties’ settlement agreement. As it turned out, Weinerman had filed a notice of dissolution with the Minnesota Secretary of State less than a month after the court closed the case. McNutt’s motion to reopen the case therefore included a proposed amended complaint alleging that the court should pierce Weinerman’s corporate veil and impose liability on three new defendants: TMT Management Group, LLC, Mark Bugni, and Tom Leiferman.

TMT and Leiferman moved to dismiss the amended complaint (Bugni is avoiding service of process and has not yet appeared, see Dkt. 35-1), and McNutt responded with a proposed second amended complaint. TMT and Leiferman contend that the proposed second amended complaint cannot survive their original motion to dismiss because, among other things, the court lacks personal jurisdiction over them. After the parties completed briefing on these motions, McNutt moved for leave to file supplemental materials that, according to him, refute various representations that TMT and Leiferman made in their brief in support of their motion to dismiss.

The court disapproves of Weinerman’s attempts to dodge is obligations under the settlement agreement. And the court has misgivings about letting Leiferman and Bugni-two of Weinerman’s members-avoid liability despite their likely involvement in the company’s actions. But even with McNutt’s supplemental materials, the amended complaint and proposed second amended complaint do not demonstrate that this court has personal jurisdiction over TMT or Leiferman (and likely not over Bugni either). The court will therefore deny McNutt’s motion to amend, grant TMT and Leiferman’s motion to dismiss, and deny McNutt’s motion for leave to file a supplemental document.

BACKGROUND

The court draws the following factual allegations from McNutt’s first amended complaint and from his proposed second amended complaint. At this point in the case, the court accepts McNutt’s allegations as true. The court will also summarize the relevant procedural aspects of this case, which are part of the record.

McNutt resides in Hudson, Wisconsin. Weinerman was a Minnesota limited liability company, with its principal place of business in Burnsville, Minnesota. During the relevant events of this case, Weinerman was a closely held business that purchased debts and engaged in debt collection activities. Bugni and Leiferman were both members of the company, along with Beth Trautman, who is not a party to this case.

In September 2013, Weinerman called McNutt on his cell phone to discuss collecting a debt (McNutt does not allege the nature of the debt or how he incurred it). Weinerman did not identify itself as a debt collector, instead implying that it was a law firm. After McNutt disputed that he owed any debt, Weinerman threatened to put a lien on McNutt’s home and sell it if he did not settle the debt within the next few days. Notwithstanding this threat, Weinerman never put a lien on McNutt’s home, and McNutt alleges that Weinerman never intended to place such a lien.

Weinerman continued to call McNutt, and the company used an automatic telephone dialing system to do so. During the calls, Weinerman’s representatives were rude: they threatened McNutt and interrupted him when he tried to speak. It is not clear how long these calls continued, nor has McNutt alleged the date of the most recent call. But McNutt continued to dispute the debt throughout these calls.

In April 2014, McNutt filed suit in this court, alleging that Weinerman violated provisions of the FDCPA and the TCPA. Weinerman answered and participated in a preliminary pretrial conference before Magistrate Judge Stephen Crocker. But then Weinerman essentially stopped defending the case. Without comment or explanation, Weinerman did not respond to McNutt’s discovery requests, and the company’s counsel moved to withdraw, indicating that his client had stopped responding to his communications and had not otherwise participated in its own defense. Before the court addressed the motion to withdraw, however, McNutt notified the court that the parties had reached a settlement. After a status conference on December 2, 2014, the court granted Weinerman’s counsel’s motion to withdraw and dismissed the case without prejudice, indicating that McNutt could seek further relief if he had difficulty enforcing the terms of his settlement. Case closed.

Or not. McNutt moved to reopen the case in February 2015, contending that Weinerman had simply refused to pay the agreed-upon settlement amount. Worse, Weinerman had filed a notice of dissolution with the Minnesota Secretary of State on December 29, 2014. But McNutt had discovered that shortly after Bugni and Leiferman organized Weinerman, they established another company: TMT. According to TMT’s website-which Weinerman’s website referred to as its “sister website”-the company is also in the business of debt management and brokering. This prompted McNutt to file an amended complaint alleging that TMT, Bugni, and Leiferman were liable for Weinerman’s FDCPA and TCPA violations.

ANALYSIS

TMT and Leiferman move to dismiss the claims against them under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). Dkt. 29.[1] They contend that: (1) the court lacks subject matter jurisdiction over this case; (2) the court lacks personal jurisdiction over them; and (3) McNutt’s amended complaint fails to state a claim against them upon which relief can be granted. McNutt responded to the motion to dismiss with a motion to amend his complaint. Dkt. 33. TMT and Leiferman oppose McNutt’s motion to amend because the proposed second amended complaint would not survive their original motion to dismiss.

“Under normal circumstances, the filing of an amended complaint renders moot any pending motion to dismiss.” Aqua Fin., Inc. v. Harvest King, Inc., No. 07-cv-015, 2007 WL 5404939, at *1 (W.D. Wis. Mar. 12, 2007). But McNutt has already amended his pleadings once, and so he must obtain the court’s leave before doing so again. Fed.R.Civ.P. 15(a)(2). The court must freely give leave to amend “when justice so requires.” Id. But the court may deny a motion to amend when the amendments would be futile, meaning that the proposed amended complaint could not survive a second motion to dismiss. Gonzalez-Koeneke v. West, 791 F.3d 801, 807 (7th Cir. 2015), reh’g denied, (Aug. 3, 2015). Thus, the parties’ motions present two sides of the same coin: if McNutt’s proposed ...


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