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Eliason v. Molgaard

United States District Court, W.D. Wisconsin

June 9, 2016

DONALD R. ELIASON, and RICHARD L. ELIASON, Plaintiffs,
v.
GINA A. MOLGAARD, and THE GINA A. MOLGAARD TRUST, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE

         Plaintiffs Donald R. and Richard L. Eliason seek to enforce a promissory note against defendants Gina Molgaard and The Gina A. Molgaard Trust. (Dkt. #1.) Before the court is defendants’ motion to dismiss for lack of subject matter jurisdiction and insufficient service of process. (Dkt. #9.) In the form of extensive briefing, dueling affidavits and cross-motions to strike, the parties’ initial skirmish over jurisdiction and process has morphed into voluminous filings, creative legal arguments and red herrings. Unfortunately, this has all produced much heat with little light. Whether that is the result of a deliberate choice of counsel or just muddled reasoning remains to be seen, but on what remains (remarkably, given all the submissions by the parties) an incomplete record on the key issue before the court, all motions will be denied at this time for the reasons explained below and a status conference will be held with the parties to see if the record can be further developed with respect to Molgaard’s current domicile.

         BACKGROUND[1]

         Plaintiffs Donald and Richard Eliason both reside in St. Germain, Wisconsin. (Dkt. #1.) On or about Janurary 1, 2009, plaintiffs claim defendant Gina Molgaard executed an enforceable note to them, promising to repay by January 1, 2012, principal amount of $132, 477.16, along with interest at the rate of 9% per annum. Plaintiffs further claim that Molgaard, a longtime resident of and owner of a home in Watersmeet, Michigan, assigned her obligations under that note to her co-defendant, The Gina A. Molgaard Trust, on or about October 27, 2009.

         While alleging that Gina Molgaard is a long-time resident of Watersmeet, Michigan, plaintiffs’ now acknowledge that Marsha Lewis, the current trustee of the Molgaard Trust and holder of a Durable Power of Attorney for Healthcare executed by Molgaard in 2010, moved Molgaard to two assisted living facilities in Eagle River, Wisconsin, first to "Diane’s Home of the Northwoods" on February 18, 2015, and then to "Milestone Senior Living" on August 24, 2015. However, plaintiffs maintain that diversity of citizenship is satisfied because Molgaard is still legally domiciled in Michigan. Defendants, on the other hand, argue that Molgaard’s physical move to Wisconsin defeats diversity.

         In addition, the parties agree that a copy of the summons was served on Lewis at Molgaard’s house in Watersmeet on January 21, 2016, though obviously not on Molgaard personally, since she was residing in Wisconsin by that time. While plaintiffs maintain this act satisfies service on both defendants under Rule 4(e), defendants argue that service was insufficient.

         MOTIONS TO STRIKE

         Before deciding the motion to dismiss, the court will address the parties’ respective motions to strike. Under Rule 12(f), plaintiffs move to strike defendants’ reply brief in support of their motion to dismiss, as well as the affidavits of Lawrence J. Wiesneske and Elmer L. Linboom, M.D. (Dkt. #19.) Not to be outdone, defendants not only oppose that motion on grounds that 12(f) applies to pleadings only, but move to strike select pages of plaintiffs’ brief in support of their motion to strike, as well as the affidavit of Anne M. Plichta. (Dkt. #24.)

         A. Scope of Motions

         Ignoring the irony of defendants themselves cross-moving to strike non-pleadings, defendants begin by asserting that the plain language of Rule 12(f) empowers this court to strike only matter "from a pleading." Fed.R.Civ.P. 12(f) (emphasis added). A number of courts have read this language strictly. See, e.g., Vogt v. Raymond James Fin. Servs., Inc., No. 09-cv-83, 2009 WL 4667130, at *1 (E.D. Wis. Dec. 3, 2009) (acknowledging that generally speaking, neither a motion, nor a brief in support of a motion, is a candidate for Rule 12(f) review); Hrubec v. Nat’l R.R. Passenger Corp., 829 F.Supp. 1502, 1506 (N.D. Ill. 1993) (discussing why the court would not strike a party’s motion to strike and supporting memorandum under 12(f)).

         On the other hand, courts have also invoked Rule 12(f) in striking matter outside the pleadings. See, e.g., McCorstin v. U.S. Dep’t of Labor, 630 F.2d 242, 243-44 (5th Cir. 1980) (finding no abuse of discretion in district court's striking of several, non-pleading documents); Pigford v. Veneman, 215 F.R.D. 2, 4, n.1 (D.D.C. 2003) ("Although Rule 12(f) applies by its terms only to ‘pleadings, ’ courts occasionally have applied the Rule to filings other than those enumerated in Rule 7(a) of the Federal Rules of Civil Procedure."). Regardless of whether the parties’ motions properly invoke Rule 12(f), the court will address their merits. See Fed. R. Civ. P. 1 ("[The Rules] should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding."). The court hastens to add that the parties’ unnecessarily elaborate motions to strike are good examples of why they are generally disfavored. See Custom Vehicles, Inc. v. Forest River, Inc., 434 F.3d 725, 727 (7th Cir. 2006); Heller Fin., Inc., v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989).

         B. Plaintiffs’ motion

         Plaintiffs argue in their motion that the court should strike defendants’ reply brief in support of the motion to dismiss as untimely, and the affidavits of Lawrence Wiesneske and Elmer Linboom, M.D., as containing inadmissible hearsay and speculation. Taking the reply brief first, "[i]t is well settled that issues raised for the first time in a reply brief are deemed waived." Nelson v. La Crosse Cty. Dist. Attorney, 30I F.3d 820, 836 (7th Cir. 2002). Plaintiffs assert that defendants only argued in their opening brief that Ms. Molgaard was declared incompetent by two physicians, and therefore Lewis was empowered under a Durable Power of Attorney for Healthcare to change her domicile, nor for the same reason was she served properly. In contrast, plaintiffs assert that defendants make several new arguments in their reply brief, including that: (1) various standards and time periods determine Molgaard’s competency for purposes of determining her domicile and her competency to be served with process; (2) Molgaard’s separate Durable Power of Attorney gave Lewis the express power to change her domicile; (3) Lewis’s answer to a complaint in an unrelated case is irrelevant to this case; and (4) venue is inconvenient.

         Certainly, defendants’ passing objection to the inconvenient distance between this court and Vilas County was not raised before, nor was it prompted by any of plaintiffs’ responsive arguments, but it is so undeveloped and meritless that there is no point in striking it. Otherwise, all of the arguments contained in defendants’ reply brief appear to at least respond to arguments raised by plaintiffs’ response, including that: (1) Molgaard was not incompetent for the purposes of service; (2) Molgaard’s General Durable Power of Attorney expresses her intent to return home; and (3) Lewis’s answer on behalf of Molgaard in an unrelated lawsuit agrees that Molgaard is still domiciled in Michigan.

         In the end, plaintiffs’ motion was largely, if not entirely, pointless. As plaintiffs themselves acknowledge, the court can ignore "fat." See Davis v. Ruby Foods, Inc., 269 F.3d 818, 821 (7th Cir. 2001); see also Custom Vehicles, 464 F.3d at 727 (refusing to strike an entire brief or to go line by line through the brief and act as an editor). Regardless, having failed to demonstrate a need to strike any of defendants’ reply brief, this court will deny plaintiffs’ motion to strike it.

         The court will also deny plaintiffs’ motion to strike multiple affidavits filed by defendant. An affidavit or declaration offered to support or oppose a motion for summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). Accordingly, a court cannot consider declarations that are inadmissible or otherwise fail to satisfy Rule 56. Adusumilli v. City of Chi., 164 F.3d 353, 359 (7th Cir. 1998). However, Mr. Linboom’s affidavit is made up entirely of statements to which he either has personal knowledge or medical expertise. Mr. Wiesneske’s affidavit is less clearly made up of declarations to which he has personal knowledge, but to the extent the objection is merely one of relevance, it is better addressed (or ignored) in the context of the pending motion to dismiss, rather than making what are likely wholly unnecessary objections in the abstract.

         C. ...


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