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Peterson v. Artisan and Truckers Casualty Co.

United States District Court, W.D. Wisconsin

June 27, 2019




         In this 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.


         A. Key Allegations

         Plaintiff 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. ¶ 29.)

         After 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.

         On 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).)[2] 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.)[3]

         B. Procedural Posture

         Plaintiff 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 11, 2018).

         On 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 (dkt. #22-2).)

         If this 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.)


         I. Motion to Dismiss

         This 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, [4] but provides neither specific pincites nor explanation of how these cases support his position, which is unsurprising since, ...

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