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Love v. Medical College of Wisconsin

United States District Court, E.D. Wisconsin

June 11, 2018

ROBERT LOVE, Plaintiff,



         Robert Love brings this action against the Medical College of Wisconsin (MCW), [1]Froedtert Memorial Lutheran Hospital, and physicians employed by them alleging retaliation in violation of the False Claims Act, defamation, tortious interference with prospective contractual relations, breach of contract, and intentional infliction of emotional distress. The parties have filed numerous motions that I will now address.


         Love moves for leave to file a third amended complaint. “[A] party may amend its pleading” with “the court's leave, ” which [t]he court should freely give . . . when justice so requires.” Fed.R.Civ.P. 15(a)(2); Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786 F.3d 510, 520 (7th Cir. 2015) (“[A]pplying the liberal standard for amending pleadings . . . is the best way to ensure that cases will be decided justly and on their merits.”). Indeed, leave should be given except where there is good reason to deny it, “such as undue delay, bad faith . . . on the part of the movant, . . . futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).

         Defendants challenge Love's use, in seeking leave to amend, of this court's procedure for expedited non-dispositive motion practice. See Civil L. R. 7(h)(1) (E.D. Wis.). By local rule, if a party seeks non-dispositive relief by expedited motion, “[t]he motion must not exceed 3 pages”; “[t]he movant may not file a separate memorandum” but “may file . . . an affidavit or declaration” that does not “exceed 2 pages”; “[t]he respondent must file a memorandum in opposition to the motion, ” which “must not exceed 3 pages, ” no later than “7 days [after] service of the motion” and “may file with its memorandum an affidavit or declaration” that does not “exceed 2 pages”; and the movant may not file a reply brief “absent leave of Court.” See Civil L. R. 7(h)(2).

         Defendants move to convert Love's expedited motion into a “non-expedited standard motion.” They first argue that Love's motion is not “non-dispositive” because properly resolving the motion may dispose of one or more of his claims, e.g., if I find that amendment would be futile and, thus, deny Love leave to amend. In general, though, a motion to amend is considered to be non-dispositive, even where denying the motion would effectively deny relief on claims asserted in the proposed amendment, at least where denying the motion would not “terminate [the] existing lawsuit.” See Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006). Denying Love's motion to amend would not terminate this lawsuit, so his motion is non-dispositive, and the relief he seeks falls within the scope of this court's procedures for expedited motion practice.

         Defendants also argue that the issues raised by Love's motion to amend are too complex to be responsibly addressed under the page and time constraints that apply to expedited motions. Yet, for the most part, defendants do not oppose amendment, as such. Rather, they primarily seek dismissal of claims asserted in Love's proposed amended pleading before that pleading becomes operative.

         A defendant may object that amendment is futile because “the proposed amendment . . . could not survive a . . . motion to dismiss, ” Perkins v. Silverstein, 939 F.2d 463, 472 (7th Cir. 1991), but I will not allow defendants to co-opt Love's motion for leave to amend to seek dismissal of his claims on their preferred schedule and subject to their preferred constraints. If I permit amendment and defendants wish to seek dismissal of any claims asserted in Love's proposed amended pleading, they may do so free of the constraints of expedited motion practice by moving to dismiss after the proposed amendment becomes the operative complaint in this case. For now, they are subject to the procedures for expedited motion practice that Love properly invoked.

         Love moves to strike defendants' briefs in opposition to his motion to amend arguing that they were filed in violation of local rules governing expedited motion practice. Defendants filed their opposition briefs 21 days after Love filed his expedited motion, far beyond the 7 days allowed by local rule. Civil L. R. 7(h)(2). Moreover, two of defendants' three opposition briefs substantially exceed the 3-page limit on briefs set by that rule. id. Finally, defendants filed their briefs, which were not authorized by rule or court order, without attaching them to a motion requesting leave to file them, as required by local rule. Civil L. R. 7(i). In light of these substantial procedural violations, I will grant Love's motion and direct the Clerk of Court to strike defendants' opposition briefs.

         As defendants did not properly oppose Love's motion for leave to file a third amended complaint, I see no reason to deny him leave to do so. Thus, I will grant his motion. Love's third amended complaint supersedes his prior complaints, Wellness Community-National v. Wellness House, 70 F.3d 46, 49 (7th Cir. 1995), so I will deny as moot two pending motions that respectively concern (1) affirmative defenses pleaded in defendants' answers to Love's second amended complaint and (2) clarification of my prior order granting Love's motion for leave to file that complaint.


         Love moves to quash a subpoena that MCW served on Lawton & Cates S.C., the law firm that represented him in negotiating his separation agreement with MCW. The separation agreement is at issue here because it contains a broad release that, if enforceable, bars Love from asserting many of his claims in this case. The subpoena directs the president of Lawton & Cates, Dixon Gahnz, to produce “all materials in [his] possession, custody or control related to [his] firm's representation of . . . Love, ” including “all materials related to his disputes with [MCW], Froedtert . . . and [the [Clement J. Zablocki Veterans' Affairs Medical Center].” See Subpoena, ECF No. 132-1, at 1. Gahnz separately moves to quash this subpoena.

         Love and Gahnz argue that the subpoena requires disclosure of materials protected by the attorney-client privilege, see Fed. R. Civ. P. 45(d), while MCW argues that Love waived the attorney-client privilege by “put[ting] his attorney's advice at issue in the litigation, ” see Garcia v. Zenith Elecs. Corp., 58 F.3d 1171, 1175 n.1 (7th Cir. 1995). According to MCW, Love put Lawton & Cates's advice at issue by alleging that

he was not aware and had not been advised that the Zablocki VA had revoked his privileges, that he “would not have signed” the separation agreement if he had known that the Zablocki VA was revoking or had revoked his privileges, and that MCW induced him to sign the separation agreement by fraudulently concealing from him that the Zablocki VA revoked his privileges.

Defs.' Resp. Br., ECF No. 137, at 1 (citing 2d Am. Compl., ECF No. 120, ¶¶ 139-41).

         Whether Love's allegations in his second amended complaint put Lawton & Cates's advice at issue, those allegations are no longer operative, and they differ markedly from the related allegations in Love's third amended complaint. Compare 2d Am. Compl., supra, ¶¶ 126-46, with 3d Am. Compl., ECF No. 147-2, ¶¶ 253-68. For instance, Love no longer alleges that MCW concealed from him that the Zablocki VA revoked his privileges-in fact, he now alleges that “the Zablocki VA [n]ever revoked [his] privileges, ” 3d Am. Compl., supra, ¶ 311. Instead, he now alleges that MCW induced him to sign the separation agreement by concealing from him that its general counsel, Froedtert's chief compliance officer, defendant Alfred Nicolosi, and others “perpetrated [a] covert, months-long conspiracy . . . to injure [him] in his reputation and profession” and that, “[h]ad [he] been aware of the conspiracy, he would not have signed the Separation Agreement.” Id. ¶¶ 266-67.

         Because MCW's defense of its subpoena rests on the purported relevance of the material sought to an issue raised by Love's second amended complaint but apparently abandoned by his third amended complaint-specifically, “whether the VA privileges were material to the separation agreement, ” Defs.' Resp. Br., supra, at 2-I will grant Love's and Gahnz's motions to quash the subpoena.

         Gahnz also moves for a protective order “prohibiting further attempts to elicit information from [him] relating to his representation of . . . Love.” Mot., ECF No. 131, at 4. At this time, I cannot say whether MCW will attempt to elicit such information again and, if it does, whether it can justify such an attempt in light of the allegations in Love's third amended complaint. Thus, I will deny Gahnz's motion for a protective order without prejudice. Gahnz may seek appropriate relief in the future, if necessary.

         III. DOCUMENTS ...

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