United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
parties to this case accuse each other of failing to live up
to their obligations under an asset purchase agreement
related to a retail piano store. Several motions are before
the court, but the main event is plaintiff's motion for
partial summary judgment.
court will grant the preliminary motions. Plaintiff may file
its belated answer to the counterclaims. Dkt. 53. The court
will accept defendants' sur-reply. Dkt. 63. The court
will grant plaintiff's motion for summary judgment in in
part; most of this case will have to be resolved at trial.
2007 to 2014, Grant Billings owned and operated Piano Gallery
Madison, LLC, a limited liability company that operated
Billings Piano Gallery Madison. Defendants Debra Galla and
Benjamin Garber were employees of Billings Piano Gallery.
spring 2014, Billings decided to move to Florida to run his
father's piano store there. He negotiated sale of the
assets of the Madison store to Garber, who had formed his own
limited liability company, Create Music, LLC, to run the
store. Piano Gallery Madison and Create Music executed an
asset purchase agreement (APA) with an effective date of
October 15, 2014 (although the APA was not executed until
October 24, 2014). Galla stayed on to work as the office
manager for Create Music, as she had for Piano Gallery
disputes erupted over the next year, leading Piano Gallery
Madison to file this suit, and for Create Music to assert
Music, Garber, and Galla are all citizens of the state of
Wisconsin. Billings is a citizen of the state of Florida.
Billings is the sole member of Piano Gallery Madison, so
Piano Gallery Madison is a citizen of Florida of Florida as
well. See Camico Mut. Ins. Co. v. Citizens Bank, 474
F.3d 989, 992 (7th Cir. 2007) (“the citizenship of an
LLC is the citizenship of each of its members”). More
than $75, 000 is in controversy, so the court has diversity
jurisdiction under 28 U.S.C. § 1332.
court will set out the facts pertinent to the pending motions
in the analysis section.
Motion for leave to file a late answer
course of summary judgment briefing, defendants pointed out
that Piano Gallery Madison had neglected to file an answer to
Create Music's breach of contract counterclaims. Dkt. 46,
at 7. Piano Gallery Madison then moved for leave to file a
belated answer and affirmative defenses. See Dkt.
53; Dkt. 61-1 (proposed answer). Piano Gallery Madison says
that its failure to file an answer was due to a clerical
error and oversight on the part of its counsel. Dkt. 61,
¶ 9. It askes the court to exercise its discretion to
accept the belated filing under Federal Rule of Civil
Procedure 6(b)(1)(B), which permits extension of deadlines
for good cause if a party failed to act because of excusable
neglect. Piano Gallery Madison says that both sides have been
proceeding as if it had already filed its answer by serving
written discovery (see, e.g., Dkt. 61-8) and filing
dispositive motions directed at the allegations underlying
the counterclaims (see Dkt. 22 and Dkt. 35).
Music opposes Piano Gallery Madison's request to file a
belated answer, but the court is not persuaded that it should
reject it, which would result in the counterclaims being
deemed to be undisputed. Create Music has not demonstrated
that it was meaningfully prejudiced by Piano Gallery
Madison's omission, and Piano Gallery Madison's
omission appears to have been inadvertent and made in good
faith. The court will grant Piano Gallery Madison leave to
file its belated answer and affirmative defenses. The court
will treat the proposed answer, Dkt. 61-1, as the operative
answer for the purposes of this opinion.
Motion for ...