United States District Court, W.D. Wisconsin
BRETT LIEBERMAN, individually and on behalf of all others similarly situated, Plaintiff,
PORTAGE COUNTY, MIKE LUKAS in his individual capacity, CORY NELSON in his individual capacity, DALE BOETTCHER in his individual capacity, JOHN DOE PORTAGE COUNTY SHERIFF'S OFFICE PERSONNEL in their individual capacities, and JOHN DOE PORTAGE COUNTY DISTRICT ATTORNEY'S OFFICE PERSONNEL in their individual capacities, Defendants.
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
a proposed class action in which plaintiff Brett Lieberman
alleges that Portage County, the county's sheriff, and
two jail officials recorded his and other jail detainees'
confidential legal communications without the detainees'
knowledge or consent. Lieberman is asserting claims under the
United States Constitution, the Wisconsin Constitution, and
the Wisconsin Electronic Surveillance Act. Two motions are
before the court: (1) defendants' motion to
“strike” Lieberman's “state law class
claims, ” Dkt. 24; and (2) a motion to intervene filed
by the county's insurer, Wisconsin County Mutual
Insurance Corporation (WCMIC), Dkt. 32.
court will deny defendants' motion to
“strike” as premature. Defendants are seeking a
ruling that potential class members do not state a
claim upon which relief may be granted under state law. But
the scope of defendants' motion does not include
Lieberman, who is the only plaintiff in the case at
this time. If defendants believe that potential class members
are subject to different defenses than Lieberman, they may
raise that issue in the context of a motion for class
certification. Or if defendants believe that the class as a
whole has weak claims, they may seek dismissal of those
claims after class certification. But they cannot seek
dismissal of claims that are not yet part of the case.
court will grant WCMIC's motion to intervene, which
Lieberman did not oppose and defendants have stipulated to,
Dkt. 42. This court routinely grants motions to intervene
filed by insurers like WCMIC that wish to obtain a coverage
determination, E.g., Haley v. Kolbe & Kolbe
Millwork Co., No. 14-cv-99-bbc, 2014 WL 6982330, at *4
(W.D. Wis. Dec. 10, 2014) (collecting cases). As WCMIC
acknowledges in its motion, the court will not stay
proceedings while WCMIC seeks declaratory relief.
is a threshold question raised by defendants' motion to
“strike:” under what authority have defendants
filed their motion? They do not cite a federal rule.
to strike generally are governed by Rule 12(f), which applies
when allegations in a pleading “are so unrelated to [a]
plaintiff's claim as to be devoid of merit, unworthy of
consideration, and unduly prejudicial.” Cooper v.
McGowan, No. 17-cv-383-jdp, 2018 WL 2223671, at *5 (W.D.
Wis. May 15, 2018) (internal quotations omitted). But this is
not what defendants are contending. Rather, their brief is
styled as a motion to dismiss for failure to state a claim:
they say that potential class members cannot proceed on a
state-law claim because they did not comply with the
prerequisites in Wis.Stat. § 893.80(1d) for bringing
such a claim. But Lieberman has not moved for class
certification yet, so the claims of potential class members
are not before the court. The court cannot issue an advisory
opinion about claims that are not yet part of the case.
Flying J Inc. v. City of New Haven, 549 F.3d 538,
544 (7th Cir. 2008).
seems that what defendants are really trying to do is obtain
an early determination under Rule 23 that Lieberman's
state-law claims should not be certified for class treatment.
Rule 23 does not prohibit defendants from seeking a decision
on class certification, Blihovde v. St. Croix Cty.,
Wis., 219 F.R.D. 607, 612 (W.D. Wis. 2003), but that
decision is governed by a well-established test, Mullins
v. Direct Digital, LLC, 795 F.3d 654, 657 (7th Cir.
2015), which defendants ignore. This is reason alone for
denying defendants' motion.
even if the court were to apply the test for defendants, the
court would deny defendants' motion. The arguments raised
in defendants' motion are most similar to the question
whether Lieberman's claims are “typical” of
the class, as required by Rule23(a)(3). Generally, a
plaintiff cannot represent a class if he is not subject to
the same defenses as the potential class members. Dawson
v. Great Lakes Educ. Loan Servs., Inc., 327 F.R.D. 637,
643 (W.D. Wis. 2018). So if Lieberman complied with §
893.80(1d) but the potential class members did not, that
could be a ground for denying class certification. But
defendants are not making that argument. In fact, they
acknowledge in a footnote that they intend to argue in a
subsequent motion that Lieberman didn't comply with
§ 893.80(1d) either. Dkt. 25, at 1 n.1. They do not
explain why they aren't making the argument now.
defendants believe that neither Lieberman nor the potential
class members complied with § 893.80(1d), that is not a
ground for denying class certification. It is an argument
for certifying the class and then moving to dismiss
the entire class action on that ground. See Schleicher v.
Wendt, 618 F.3d 679, 686 (7th Cir. 2010) (“Rule 23
allows certification of classes that are fated to
even if the court could consider at this stage of the
proceedings whether potential class members complied with
§ 893.80(1d), the court would deny defendants'
motion. The parties debate many issues about the application
of § 893.80(1d) in their briefs, but defendants simply
ignore Lieberman's argument that potential class members
“substantially complied” with Wis.Stat. §
893.80(1d), which is usually sufficient. See Townsend v.
Neenah Joint Sch. Dist., 2014 WI.App. 117, ¶ 23,
358 Wis.2d 618, 632, 856 N.W.2d 644, 651
(“‘[S]ubstantial compliance' rather than
strict compliance is and always has been the standard for
considering whether a notice complies with Wis.Stat. §
893.80(1d).”). Because defendants failed to develop an
argument on this issue, the court concludes that defendants
have forfeited it for the purpose of their motion. Defendants
are free to raise any issues about class certification in a
Rule 23 motion or about the merits in a summary judgment
motion, but they have not shown that they are entitled to any
relief at this time.
1. Defendants' motion to “strike” the
state-law class claims, ...