United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
November 2015, plaintiff Joseph Smith filed suit against
defendants Capital One Bank USA, N.A. and Messerli &
Kramer, P.A. in the Circuit Court for Pierce County,
Wisconsin. He brought state law claims for violations of the
Wisconsin Consumer Act, and federal claims for violations of
his constitutional rights pursuant to 42 U.S.C. § 1983,
arising from defendants' efforts to garnish Smith's
wages following Smith's failure to pay credit card
debt. Messerli & Kramer removed
plaintiff's case to this court on January 6, 2016.
defendants move to dismiss Smith's amended complaint.
Dkt. 10 and Dkt. 12. Because Smith has failed to state a
federal claim upon which relief can be granted, and because
Smith's state law claims are untimely, I will grant
court draws the following facts from Smith's amended
complaint, Dkt. 7, construing the allegations “in the
light most favorable to [Smith], accepting as true all well-
pleaded facts alleged, and drawing all possible inferences in
[his] favor.” Tamayo v. Blagojevich, 526 F.3d
1074, 1081 (7th Cir. 2008).
opened a credit card with Capital One. Eventually Smith
accumulated credit card debt, could not repay his balance,
and defaulted on the loan. Capital One filed suit against
Smith in Wisconsin state court. On May 25, 2011, the Circuit
Court for Pierce County, Wisconsin entered judgment against
Smith. (Smith maintains that as a result of service
deficiencies, the court should not have entered judgment
Capital One secured a judgment against Smith, Messerli &
Kramer filed an earnings garnishment notice with the circuit
court on behalf of Capital One. Defendants received an
authenticated copy of the notice and served the authenticated
notice on Smith's employer. Smith's employer was
located in Minnesota, and Smith contends that defendants did
not have the authority to enforce the Wisconsin judgment
alleges that defendants' actions amount to unlawful debt
collection activities under the Wisconsin Consumer Act, and
that defendants violated Smith's rights under the Dormant
Commerce Clause and the Full Faith and Credit Clause of the
Constitution when they prepared, filed, and served Wisconsin
garnishment documents on Smith's Minnesota employer.
Smith brings his federal constitutional claims via 42 U.S.C.
court has subject matter jurisdiction over Smith's §
1983 claims pursuant to 28 U.S.C. § 1331, because they
arise under federal law. The court may exercise supplemental
jurisdiction over the remaining state law claims, pursuant to
28 U.S.C. § 1367(a).
motion to dismiss pursuant to Rule 12(b)(6) tests the
complaint's legal sufficiency. To state a claim upon
which relief can be granted, a complaint must provide a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Rule 8 “does not require ‘detailed
factual allegations, ' but it demands more than an
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). A complaint must contain “more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do[.] . . .
Factual allegations must be enough to raise a right to relief
above the speculative level[.]” Twombly, 550
U.S. at 555 (internal citations and quotation marks omitted).
move to dismiss all of Smith's claims. For reasons
discussed below, Smith has failed to state a federal claim
upon which relief can be granted, and, as a result, the court
will dismiss those claims. The court will also dismiss
Smith's state law claims as untimely.
Section 1983 claims
succeed on his § 1983 claims, Smith must prove:
“(1) the deprivation of a right secured by the
Constitution or federal law and (2) that defendants were
acting under color of state law.” Wilson v. Warren
County, No. 15-1939, 2016 WL 3878215, at *2 (7th Cir.
July 18, 2016) (citing Armato v. Grounds, 766 F.3d
713, 719-20 (7th Cir. 2014)). Smith has not alleged facts
sufficient to demonstrate that defendants violated his rights
under the Dormant Commerce ...