United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN DISTRICT JUDGE
plaintiff, Cleveland Shain, filed a complaint against the
defendant, Tami Zingre. After Shain filed an amended
complaint, Zingre filed her answer and counterclaim. Shain
did not file a timely response to the counterclaim, and the
Clerk of Court entered his default. Before me now are
Shain's motion to set aside the default, Zingre's
motion for a default judgment, and several related motions.
Factual Background of the Parties' Claims
describing the factual background of this case, I rely on the
allegations of the defendant's counterclaim, ECF No. 8,
and the plaintiff's proposed answer to the counterclaim,
ECF No. 47-1. However, at this point, I do not assume that
anyone's factual allegations are true.
shortly before this action was filed, the parties were
engaged to each other. The parties met in Illinois in July
2011, shortly after the plaintiff's wife passed away.
Later in 2011, the parties became engaged to be married. The
plaintiff, who was 70 years old and retired, asked the
defendant, who was 55 and employed as the Village Clerk of
Diamond, Illinois, to retire and move with him to Wisconsin.
The defendant alleges that she was reluctant to retire and
move to Wisconsin, but she agreed to look for property in
November 19, 2012, the parties purchased a home in Fond du
Lac County, Wisconsin, as joint tenants with rights of
survivorship. At the time of this purchase, the parties were
living together in the defendant's home in Diamond,
Illinois, and the plaintiff was in the process of selling his
home in Coal City, Illinois. In mid-2013, the defendant
retired, the plaintiff sold his home in Coal City, and the
parties moved into the home they had purchased in Wisconsin.
time the parties met, the plaintiff owned a number of rental
properties in Illinois through a limited liability company,
G.R.J.M., LLC. Just prior to August 1, 2013, the plaintiff
was the sole member of this LLC. (The plaintiff's late
wife was also a member of the LLC until her death on March
22, 2011.) On August 1, 2013, the plaintiff transferred a 50%
interest in the LLC to the defendant. In May 2014, the
parties decided to dissolve the LLC. As part of the
dissolution, the LLC transferred six of the rental properties
to the defendant, and at least six rental properties to the
plaintiff.Since the time of these transfers, the
defendant has personally maintained and operated the six
rental properties transferred to her and has collected all of
the income generated by those properties.
summer of 2014, the defendant had decided that she wanted to
return to Illinois, and the plaintiff agreed to look for a
new home there and to sell the home in Wisconsin. According
to the defendant, the parties agreed that the new Illinois
home would be purchased by her alone, and that 50% of the
proceeds from the sale of the Wisconsin home would be used to
pay for the new Illinois home. When the defendant faced
difficulties in obtaining financing for the new Illinois
home, she used the six rental properties that the LLC had
transferred to her as collateral and was then able to secure
4, 2015, the defendant made an offer on a home in Newark,
Illinois. That day, the plaintiff told the defendant that he
did not want to move to Illinois, and the defendant decided
that she would do so without him. The defendant closed on the
home on June 19, 2015, and moved into it a few days later. By
late July 2015, the parties were estranged from each other.
The plaintiff continues to live in the home in Wisconsin and
intends to remain there. The defendant lives in her home in
Illinois and intends to remain there.
plaintiff alleges that his decision to cause the LLC to
transfer the six rental properties to the defendant, along
with his decision to purchase the home in Wisconsin with her,
were based on the defendant's promise to marry him. The
plaintiff further alleges that the defendant obtained her
interests in the properties through undue influence. The
plaintiff seeks to have all interests in these properties
restored to him. In her counterclaim, the defendant seeks
partition of the Wisconsin property.
the parties' motions relating to the plaintiff's
default are intertwined with the procedural history of this
case, I must describe that history in some detail.
the plaintiff commenced this action, he was represented by
Attorney Ryan Doherty. The defendant responded to the
plaintiff's complaint on November 17, 2015, by filing an
answer to certain counts of the complaint, a motion to
dismiss other counts of the complaint for failure to state a
claim upon which relief can be granted, and a counterclaim.
The plaintiff's answer to the counterclaim and response
to the motion to dismiss were due on December 11, 2015.
However, the plaintiff did not file either an answer to the
counterclaim or a response to the motion to dismiss by that
date. On December 14, 2015, the defendant requested ...