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Baemmert v. Credit One Bank, N.A.

United States District Court, W.D. Wisconsin

October 24, 2017

JOHN BAEMMERT, Plaintiff,
v.
CREDIT ONE BANK, N.A., Defendant.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Plaintiff 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.

         This 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.

         A. Baemmert's invasion of privacy claim

         Baemmert 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.

         When 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).

         Here, 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 Patterson's direction.

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)).

         Baemmert 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, [1] and explicitly rejected it.

         Baemmert 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.

         First, 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 ...


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