United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE
putative class action, plaintiff Izaac Peterson claims that
defendant Artisan and Truckers Casualty Company disclosed his
driver's license number on a form filed with the St.
Croix County Circuit Court in violation of the Driver's
Privacy Protection Act (“DPPA”), 18 U.S.C. §
2721 et seq., albeit as part of an otherwise good
faith effort to collect on a judgment against Peterson
arising from a motor vehicle accident. Before the court is
defendant's motion to dismiss (dkt. #4), defendant's
motion for sanctions pursuant to Federal Rule of Civil
Procedure 11(dkt. #14), and plaintiff's motion to strike
the motion for sanctions (dkt. #17). For the reasons that
follow, the court will grant the motion to dismiss, but deny
the motion for sanctions, rending the motion to strike moot.
Izaac Peterson was involved in a car accident with defendant
Artisan's insured. (Am. Compl. (dkt. #1-1) ¶¶
20-21.) At the time of the accident, a police officer or
sheriff's deputy came to the scene and collected
information from the parties. (Id. ¶ 22.) After
the officer “asked to see Peterson's Wisconsin
driver's license” (id. ¶ 23),
“Peterson complied.” (Id. ¶ 24.)
The officer then “added Peterson's Wisconsin
driver's license number to the Wisconsin uniform accident
report.” (Id. ¶ 26.) “Following the
accident, Artisan and Truckers Casualty obtained a copy of
the accident report, along with a copy of Peterson's
Wisconsin driver's license number.” (Id.
reimbursing its insured for his injuries and/or property
damage, Artisan filed a subrogation claim against Peterson in
the Circuit Court of St. Croix County. (Id.
¶¶ 30-33.) On or about November 29, 2016, Artisan
obtained a money judgment against Peterson. (Id.
¶ 34.) State law grants the Wisconsin Department of
Transportation / Division of Motor Vehicles authority to
enforce certain financial obligations. See Wis. Stat
Ch. 344. Specifically, the DOT is authorized to suspend
operating privileges when a driver fails to pay a court
judgment for damages arising from a motor vehicle accident.
Wis.Stat. §§ 344.12-344.22.
January 18, 2017, Artisan filed a request with the St. Croix
County Clerk of Court to notify the DMV of its judgment
against Peterson and to suspend Peterson's driving
privileges pending payment of the judgment. (Am. Compl. (dkt.
#1-1) ¶¶ 35-36.) In doing so, Artisan attached to
the request a “certificate of judgment” on a form
provided by the Wisconsin DOT (form MV3158). (Id.
¶ 37; Everts Decl., Ex. C (dkt. #6-3).) As called for by
the form, the certificate of judgment contained
Peterson's driver's license number
(“DLN”). (Id.) Artisan then filed that
form on a publicly-available docket, without redaction.
(Id. ¶¶ 38-40.)
filed his original complaint on January 2, 2019, in St. Croix
County circuit court, and later filed an amended complaint on
February 7, 2019. That same day, defendant removed the case
to this court, pursuant to this court's federal question
jurisdiction under 28 U.S.C. § 1331, and promptly moved
to dismiss its claim, primarily relying on this court's
decision in Kresal v. Secura Insurance Holdings,
Inc., No. 17-cv-766-wmc, 2018 WL 2899694 (W.D. Wis. June
February 3, 2019, defendant's counsel Marisa Berlinger
also emailed plaintiff's counsel a draft motion for
sanctions under Rule 11. In the email, counsel stated,
“Please find attached Defendant's Rule 11 Motion,
which is being served upon you today via this email.”
(Crandall Decl., Ex. A (dkt. #19-1).) Apparently, Berlinger
sent that email three times, having received undeliverable
responses to the first two emails. (Crandall Decl. (dkt. #19)
¶ 4 (plaintiff's counsel acknowledging receipt of
three emails on February 3); Berlinger Decl. (dkt. #22)
¶ 3 (explaining that the email was sent three time
because of undeliverable responses).) That same day,
plaintiff's counsel Eric Crandall responded to the third
email, “I have received nearly three identical emails.
Did you intend to do this?” (Berlinger Decl., Ex. B
email constituted proper service in Federal Rules of Civil
Procedure 5 and 11, the safe harbor period would have expired
on March 6, 2019. Defendant filed its Rule 11 motion with the
court on March 18, 2019, resulting in electronic service on
plaintiff's counsel. (Dkt. #14.) The next day, plaintiff
filed a motion to strike the motion for sanctions, on the
ground that the motion was not served pursuant to Rule 5.
(Dkt. #17.) That same day, defendant's counsel served
Attorney Crandall via U.S. mail as well. (Berlinger Decl.
(dkt. #22) ¶ 8.) Defendant's counsel also offered to
withdraw the motion for sanctions if plaintiff dismissed the
lawsuit on or before April 8, 2019 (21 days from the March
18, 2019, filing of the motion with this court).
(Id. ¶ 7.) Attorney Crandall, however, declined
this offer. (Id.)
Motion to Dismiss
case pursues the same legal theory for a violation of DPPA
rejected by this court in the Kresal decision
referenced above, a fact obviously well known to Attorney
Crandall since he was also plaintiff's counsel in that
case. As defendant detailed in a table in its reply brief in
support of its motion to dismiss, the allegations in
Kresal were virtually the same. (Def.'s Reply
(dkt. #13) 3.) Moreover, plaintiff's opposition brief to
defendant's motion to dismiss is a copy-paste job of the
opposition submitted in the Kresal case, with a
simple addition -- citing Kresal as
“contra” authority in a footnote.
(Compare Pl.'s Opp'n (dkt #11) with
Kresal, No. 17-cv-766 (dkt. #33).) In fairness,
plaintiff adds citations to two, out-of-circuit district
court cases,  but provides neither specific pincites nor
explanation of how these cases support his position, which is
unsurprising since, ...