United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
John Baemmert received more than 60 phone calls attempting to
collect credit card debt for defendant Credit One Bank, N.A.
Baemmert sued Credit One, claiming violations of the
anti-robocall provision of the Telephone Consumer Protection
Act of 1991 (TCPA) and invasion of privacy under Wisconsin
law. The court granted summary judgment in favor of Baemmert
as to Credit One's liability on his TCPA claim. As for
his invasion of privacy claim, the court required Baemmert to
respond under Federal Rule of Civil Procedure 56(f) why the
claim should not be dismissed under Keller v.
Patterson, which concluded that unwanted phone calls do
not constitute an invasion of privacy claim. 2012 WI.App. 78,
¶¶ 10-11, 343 Wis.2d 569, 819 N.W.2d 841.
order will address three matters: (1) Baemmert's Rule
56(f) response that his invasion of privacy claim should not
be dismissed, Dkt. 44; (2) Credit One's motion for
reconsideration, Dkt. 45; and (3) Credit One's motion to
strike notice of supplemental authority, Dkt. 40.
Baemmert's invasion of privacy claim
contends that receiving more than 60 unwanted phone calls
over 12 days constitutes an invasion of privacy under
Wis.Stat. § 995.50(2)(a), which prohibits
“[i]ntrusion upon the privacy of another of a nature
highly offensive to a reasonable person, in a place that a
reasonable person would consider private or in a manner which
is actionable for trespass.” Because Keller
precludes Baemmert's invasion of privacy claim, the court
will grant summary judgment to Credit One under Rule 56(f)
and dismiss this claim.
the state's highest court has not addressed the issue, as
it is the case here, a federal district court must use its
“own best judgment to estimate how” the
state's highest court would rule. Jackson v. Bank of
Am. Corp., 711 F.3d 788, 791 (7th Cir. 2013) (quoting
Blood v. VH-1 Music First, 668 F.3d 543, 546 (7th
Cir. 2012). “A federal court takes into consideration
lower state court decisions, if any, but is not bound to
apply and follow these decisions if it believes that they
would not be affirmed by the state's supreme
court.” Fischer v. Mt. Olive Lutheran Church,
207 F.Supp.2d 914, 927 (W.D. Wis. 2002). But disagreeing with
an intermediate state court's ruling on an issue of state
law is not the norm. An intermediate court's ruling
“is a datum for ascertaining state law which is not to
be disregarded by a federal court unless it is convinced by
other persuasive data that the highest court of the state
would decide otherwise.'” In re
Emerald Casino, Inc., 867 F.3d 743, 765 (7th Cir. 2017)
(quoting West v. Am. Tel. & Tel. Co., 311 U.S.
223, 237 (1940)) (emphasis in original).
the Wisconsin Supreme Court has not decided whether a large
number of phone calls placed to one's home can constitute
an invasion of privacy, and the closest case is
Keller. In Keller, a neighbor of a sex
offender had distributed flyers about the sex offender, which
in turn prompted other individuals to make harassing phone
calls to the sex offender's home. 2012 WI.App. 78,
¶¶ 2-4, 10. When the sex offender's brother and
parents sued the neighbor, the Court of Appeals rejected
their invasion of privacy claim. The court explained,
The Kellers argue that the hang-up calls, letters, and cars
honking their horns in front of their house amounted to an
invasion of their home. We disagree. There was no physical
intrusion of the Kellers' home by Patterson or even at
Id. ¶ 10. The court also rejected the
plaintiffs' argument that phone calls were recognized as
an invasion of privacy under the Restatement of Torts:
The Kellers do cite to comments in the RESTATEMENT (SECOND)
OF TORTS (1977) § 652A & B as persuasive authority
that Patterson could be liable for the phone calls and
honking horns, but as they acknowledge, the RESTATEMENT
(SECOND) is worded differently and therefore has limited
applicability to this case. Because of that, the comments
cited by the Kellers simply do not help their case.
Id. ¶ 10, n.3 (citation omitted)).
contends that Keller's holding is that the
plaintiff had sued the wrong defendant, pointing to the
language that “[t]here was no physical intrusion of the
Kellers' home by Patterson or even at Patterson's
direction.” Dkt. 44, at 3 (quoting
Keller, 2012 WI.App. 78, ¶ 10) (emphasis
added). But the absence of direction by the defendant was
only one of the reasons why the plaintiff had no invasion of
privacy claim; Baemmert does not explain why the court should
disregard the rest of the Court of Appeals' reasoning.
The Court of Appeals discussed the Restatement's view,
that unwanted phone calls could constitute an invasion of
privacy,  and explicitly rejected it.
does not argue that the Wisconsin Supreme Court would
overturn Keller. He instead identifies four reasons
why this court should not follow it. The court will discuss
each in turn.
Baemmert contends that after Keller, the Wisconsin
Court of Appeals decided in Sawyer v. W. Bend Mut. Ins.
Co., 2012 WI.App. 92, 343 Wis.2d 714, 821 N.W.2d 250,
that even one junk fax can invade one's privacy. But
Sawyer is not on point. In Sawyer, the
plaintiff alleged that a sender of an unsolicited fax
advertisement had violated the TCPA, and the court had to
decide whether the sender's insurer had an obligation to
pay for the TCPA violation. Id. ¶¶ 2-4.
The case turned on the interpretation of an insurance policy,
not the statute at issue here, Wis.Stat. § 995.50. The
majority contemplated what the right of privacy meant under
the insurance policy, as a matter of a contract
interpretation, by referring to TCPA concepts without
referring to § 995.50. See, e.g., id.
¶¶ 20-22. The dissent did refer to § 995.50,
but did so to demonstrate that not ...