United States District Court, E.D. Wisconsin
ADELMAN DISTRICT JUDGE
Love brings this action against the Medical College of
Wisconsin (MCW), 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.
THIRD AMENDED COMPLAINT
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).
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).
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.
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.
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
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.
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.
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.
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
Defs.' Resp. Br., ECF No. 137, at 1 (citing 2d Am.
Compl., ECF No. 120, ¶¶ 139-41).
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.
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
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