United States District Court, E.D. Wisconsin
GRANTING PLAINTIFFS' MOTION TO SEAL THE COMPLAINT (DKT.
NO. 5), DENYING AS MOOT DEFENDANT'S MOTION TO DISMISS THE
COMPLAINT (DKT. NO. 8), GRANTING DEFENDANT'S MOTION TO
SEAL THE UN-REDACTED MOTION TO DISMISS (DKT. NO. 10),
GRANTING PLAINTIFFS' MOTION TO SEAL THE UN-REDACTED
AMENDED COMPLAINT (DKT. NO. 13), GRANTING DEFENDANT'S
MOTION TO SEAL THE UN-REDACTED MOTION TO DISMISS AND THE
ATTACHED SETTLEMENT AGREEMENT (DKT. NO. 17) AND GRANTING
PLAINTIFFS' MOTION FOR LEAVE TO FILE A SURREPLY (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiffs filed this case under the Fair Debt Collections
Practices Act, 15 U.S.C. §1692 (FDCPA) and the Fair
Credit Reporting Act, 15 U.S.C. §1681 (FCRA). In order
for a trier of fact to be able to determine whether the
defendant is liable on these claims, the trier of fact would
need to know the terms of a prior settlement between the
parties, but that settlement is confidential. The plaintiff
has asked the court to seal an un-redacted copy of the
complaint, which contains confidential information from the
confidential settlement agreement. Dkt. No. 5. The defendant
filed a motion to dismiss, dkt. no. 8, and a motion asking
the court to issue an order to seal the un-redacted copy of
the defendant's motion to dismiss because it contained
paragraphs referring to the confidential settlement
agreement, dkt. no. 10. Two weeks later, the plaintiffs filed
an amended complaint, dkt. no. 12, and a motion to seal that
pleading, dkt. no. 13. After filing a second motion to
dismiss, dkt. no. 15, the defendant again asked the court to
seal its motion, dkt. no. 17. The plaintiffs recently filed a
motion for leave to file a sur-reply in opposition to the
second motion to dismiss. Dkt. No. 24.
Motions to Seal (Dkt. Nos. 5, 10, 13 and 17)
Local Rule 79(d)(3) (E.D. Wis.) requires a party who files a
motion to seal a document to support that motion with
“sufficient facts demonstrating good cause for
withholding the document or sealed material from public
view.” Many years ago, the Seventh Circuit held that
there is a presumption of public access to discovery
materials, and that the district court must make a
determination of good cause before issuing an order sealing
documents produced as “confidential” in
discovery. Citizens First Nat. Bank of Princeton v.
Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999).
“The determination of good cause cannot be elided by
allowing the parties to seal whatever they want, for then the
interest in publicity will go unprotected unless the media
are interested in the case and move to unseal. The judge is
the primary representative of the public interest in the
judicial process and is duty-bound therefore to review any
request to seal the record (or part of it).” Id.
See also, e.g., C'nty Materials Corp.
v. Allan Block Corp., 502 F.3d 730, 740 (7th Cir. 2007)
parties have filed multiple motions to seal documents
referencing the confidential settlement agreement relevant to
the dispute in this case. The plaintiff's motions to seal
state only that the documents they wish the court to seal
contain information that the defendant has deemed
confidential “stemming from a prior confidential
settlement agreement.” See Dkt. Nos. 5, 13.
These motions do not comply with the Rule 79(d) requirement
to show good cause, nor do they provide a basis for this
court to make a good cause determination, as the Seventh
defendant, however, provided the court with a copy of the
settlement agreement (under seal). Dkt. No. 11-1. The court
has reviewed that agreement; there is an entire section of
the agreement governing the confidentiality the terms of the
agreement. Confidentiality was a material term of the
agreement; it appears to have been a bargained-for condition
of the agreement. Given that, the parties' interest in
maintaining their bargained-for confidentiality outweighs the
public's right to access to documents filed with the
addition, the parties have complied with that portion of Rule
79(d) that requires the parties to try to limit the scope of
the sealed portions; they have filed redacted versions of the
complaint, minimizing the material that will be unavailable
to the public.
the court concludes that there is good cause to seal the
portions of the documents the parties have asked it to seal,
and because they have limited the portions of the documents
which will be unavailable to the public, the court will grant
the parties' motions to seal.
Defendant's Motion to Dismiss Plaintiff's Amended
Complaint (Dkt. No. 15)
defendant filed a motion to dismiss the plaintiff's
complaint under Rule 12(b)(6), asserting that the defendant
was not a debt collector, that the alleged violations had
occurred after the account had been closed, and that the
plaintiffs' mortgage no longer was serviced by the
defendant. Dkt. No. 11 at 1. In addition, the defendant
alleged that the settlement agreement expressly waived,
released and barred all causes of action arising from the
plaintiffs' mortgage loan account, including claims based
on credit reporting. Id. at 2.
weeks after the defendant moved to dismiss, the plaintiffs
filed an amended complaint. Dkt. No. 12. An amended complaint
supersedes the original complaint. Scott v. Chuhak &
Tecson, P.C., 725 F.3d 772, 782 (7th Cir. 2013) (citing
Massey v. Helman, 196 F.3d 727, 735 (7th Cir.
1999)). That, along with the fact that the defendant has
filed a motion to dismiss the amended complaint (dkt. no.
15), renders the first motion to dismiss moot.
Plaintiffs' Motion for Leave to File Surreply (Dkt. No.
plaintiffs filed a motion for leave to file a sur-reply brief
in opposition to defendant's motion to dismiss. Dkt. No.
24. The court's local rules do not provide for
sur-replies. The court does not grant leave to file
sur-replies as a matter of course, and they are disfavored.
See, e.g., Novoselsky v. Zvunca, Case ...