United States District Court, W.D. Wisconsin
OPINION AND ORDER
William M. Conley District Judge.
Mohammed Hussain filed this suit against Ascension Sacred
Heart - St. Mary's Hospital, alleging defamation and
negligence. In answering the complaint, Ascension asserted a
counterclaim alleging that Hussain breached his contract with
the hospital when he (1) refused to execute a release of
claims against the hospital and (2) initiated the present
lawsuit. Presently before the court is plaintiff's motion
to dismiss the counterclaim for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). (Mot. to
Dismiss (dkt. #17) 1.) For the reasons stated below, that
motion will be denied. Also before the court is
defendant's motion for the sanction of dismissal and fees
following plaintiff's failure to appear for his
deposition in Wisconsin on April 16, 2019. As discussed
below, that motion will also be largely denied.
Plaintiff's Motion to Dismiss the Counterclaim
motion to dismiss under Rule 12(b)(6) is designed to test the
complaint's legal sufficiency. See Fed. R. Civ.
P. 12(b)(6). Dismissal is warranted only if no recourse could
be granted under any set of facts consistent with the
allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 563 (2007). To survive a motion to dismiss, a plaintiff
must allege sufficient facts to state a plausible claim for
relief. Spierer v. Rossman, 789 F.3d 502, 510 (7th
Cir. 2015) (citing Twombly, 550 U.S. at 570). The
same standard applies to a motion to dismiss a counterclaim.
See Firestone Fin. Corp. v. Meyer, 796 F.3d 822,
826-27 (7th Cir. 2015).
subject matter jurisdiction is based on diversity of
citizenship in this case, the court looks to the law of
Wisconsin to determine which state's law should be
applied.Klaxon Co. v. Stentor Electric
Manufacturing Co., 313 U.S. 487, 497 (1941); Nichols
v. National Union Fire Insurance Co., 509 F.Supp.2d 752,
756 (W.D. Wis. 2007). Since neither party raises a conflict
of law issue, and the case was filed in federal court in
Wisconsin, the court will apply Wisconsin law. RLI
Insurance Company v. Conseco, Inc., 543 F.3d 384, 390
(7th Cir. 2008) (“When neither party raises a conflict
of law issue in a diversity case, the applicable law is that
of the state in which the federal court sits.”).
overcome a motion to dismiss, a claim or counterclaim for
breach of contract under Wisconsin law must allege: (1) a
valid contract exists; (2) the defendant breached the
contract; and (3) damages stemmed from that breach.
Matthews v. Wis. Energy Corp., 534 F.3d 547, 553
(7th Cir. 2008) (citing N.W. Motor Car, Inc. v.
Pope, 51 Wis.2d 292, 187 N.W.2d 200 (1971)). There is no
dispute that the parties had a valid contract. (See
Mot. to Dismiss Br. (dkt. #18) 8; Opp'n (dkt. #27) 9.)
So, the only questions are whether defendant's
counterclaim has adequately alleged a breach causing damages.
alleges that when Dr. Hussain completed the Statement of
Application for Appointment to St. Mary's Hospital's
Medical Staff, he agreed to “acknowledge and abide by
any Medical Staff Bylaws requirement for release and immunity
from civil liability.” (Ans. (dkt. #15) 16.) In
support, Ascension provided a copy of Hussain's
Application and full copy of the Hospital's Medical
Bylaws. Section 7.1 of the Bylaws, titled
“Immunity from Liability, ” states, in relevant
The following shall be conditions to any individual's
application for Medical Staff membership or exercise of
clinical privileges at the Hospital:
(c) there shall, to the fullest extent permitted by law, be
absolute immunity from civil liability arising from such act,
communication, report, recommendation, or disclosure, even
where the information involved would otherwise be deemed
(d) such immunity shall apply to all acts, communications,
reports, recommendations, or disclosures performed or made in
connection with this or any other health care
institution's activities related but not limited to:
(1) applications for appointment or clinical privileges;
(5) medical care evaluations
(f) in furtherance of the foregoing, each individual shall,
upon request of the Hospital, execute releases in accordance
with the tenor and import of this Section . . . . Execution
of such releases is not a ...