United States District Court, E.D. Wisconsin
NANCY DEWEY individually and as a trustee, THE NANCY DEWEY LIVING TRUST, THE NANCY DEWEY 2015 NEA GRANTOR RETAINED ANNUITY TRUST, THE NANCY DEWEY 2015 P&D GRANTOR RETAINED ANNUITY TRUST, THE IRREVOCABLE TRUST FOR THE GRANDCHILDREN OF NANCY AND DOUGLAS DEWEY, JOHN DEWEY individually and as a trustee, THE JOHN D. DEWEY LIVING TRUST, THE JOHN D. DEWEY IRREVOCABLE CHILDREN'S TRUST, THE ABIGAIL DEWEY IRREVOCABLE TRUST, THE ERIN DEWEY IRREVOCABLE TRUST, THE IAN DEWEY IRREVOCABLE TRUST, THE SHEAMUS DEWEY IRREVOCABLE TRUST, THE ABIGAIL DEWEY DESCENDANTS TRUST, THE ERIN DEWEY DESCENDANTS TRUST, THE IAN DEWEY DESCENDANTS TRUST, THE SEPARATE TRUSTS FOR IAN DEWEY, SHEAMUS DEWEY, ERIN DEWEY, ABIGAIL DEWEY, and THE SHEAMUS DEWEY DESCENDANTS TRUST, Plaintiffs,
KURT BECHTHOLD, MARK FILMANOWICZ, DAVID BECHTHOLD, PAYNE & DOLAN, INC., NORTHEAST ASPHALT, INC., CONSTRUCTION RESOURCES MANAGEMENT, INC., ZENITH TECH, INC., and TIMBERSTONE OF RICHFIELD, INC., Defendants.
STADTMUELLER, U.S. DISTRICT JUDGE
February 11, 2019 the plaintiffs in this action filed an
amended complaint alleging fraud and violations of Wisconsin
state law in connection with their rights as shareholders.
(Docket #45). On April 25, 2019, the defendants filed an
amended answer to the complaint. (Docket #69). Two
defendants, Kurt Bechthold (“Kurt”) and Mark
Filmanowicz (“Mark”) (collectively,
“Defendants”), included a counterclaim against
John Dewey (“John”), alleging unauthorized use of
personal identifying information in violation of Wis.Stat.
§ 943.201. Id. at 21. On May 16, 2019, John
timely filed a motion to dismiss the
counterclaim. (Docket #72). The motion to dismiss is
fully briefed. For the reasons stated below, John's
motion will be granted.
Rule of Civil Procedure 12(b) provides for dismissal of
complaints which, among other things, fail to state a viable
claim for relief. Fed.R.Civ.P. 12(b)(6). To state a claim, a
complaint must provide “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). In other words, the
complaint must give “fair notice of what the. . .claim
is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
allegations must “plausibly suggest that the plaintiff
has a right to relief, raising that possibility above a
speculative level[.]” Kubiak v. City of Chi.,
810 F.3d 476, 480 (7th Cir. 2016) (citation omitted).
Plausibly requires “more than a sheer possibility that
a defendant has acted unlawfully.” Olson v.
Champaign Cty., 784 F.3d 1093, 1099 (7th Cir. 2015)
(citations and quotations omitted). In reviewing the
complaint, the Court is required to “accept as true all
of the well-pleaded facts in the complaint and draw all
reasonable inferences in favor of the plaintiff.”
Kubiak, 810 F.3d at 480-81. However, the Court
“need not accept as true legal conclusions, or
threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.” Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009) (citations and
allege that John hired an unknown person to conduct a secret
investigation of their personal and confidential financial
information. On one or more occasions, either John or this
person pretended to be Kurt in order to gain such information
from financial institutions, including Charles Schwab &
Co (“Schwab”), where Defendants held an account.
Defendants claim that on at least one unknown occasion in
2014, “John or a person whom he had hired telephoned
Schwab, representing that the caller was Kurt Bechthold and
fraudulently using Kurt Bechthold's name, date of birth,
and certain phone numbers associated with the account, tried
to persuade Schwab to provide him with financial information
about the account.” (Docket #69 ¶ 135). Defendants
further allege that John and his hired investigator engaged
in this conduct “at other financial institutions and,
on at least one occasion, obtained the private and
confidential financial information” of Kurt and Mark.
Id. ¶ 136.
factual basis for the claim rests on John's response to
an interrogatory, in which John admitted that he had
“commissioned a search of the top fifty brokerage
houses in the United States, including online brokers,
” in order to get “financial information”
about Kurt and Mark, and that he had received such
“financial information” about them from Schwab.
Id. ¶ 138. Defendants claim that any such
“financial information” that John could have
received from Schwab would have been confidential, and would
only have been disclosed if the requester of such information
had pretended to be either Kurt or Mark by using their
personal identifying information. Defendants also allege,
generally, that John “unreasonably invaded [their]
right of privacy and otherwise violated Wisconsin law.”
Id. ¶ 137. Similarly, they allege that they
have “suffered damage and loss by reason of John's
intentional conduct.” Id. ¶ 139.
Wis.Stat. § 943.201(2), it is a felony if a person
intentionally uses, attempts to use, or possesses with intent
to use any personal identifying information. . .without the
authorization or consent of the individual and by
representing that he or she is the individual, that he or she
is acting with the authorization or consent of the
individual, or that the information or document belongs to
him or her. . .
in order to obtain anything “of value or benefit”
or “harm the reputation, property, person, or estate of
the individual.” Personally identifying information can
include an individual's name, address, telephone number,
social security number, place of employment, mother's
maiden name, or any other “information or data that is
unique to, assigned to, or belongs to an individual and that
is intended to be used to access services, funds, or benefits
of any kind to which the individual is entitled.”
Wis.Stat. § 943.201(1)(b). “Any person who suffers
damage or loss” as a result of a violation of Wis.Stat.
§ 943.201 “has a cause of action against the
person who caused the damage or loss.” Wis.Stat. §
895.446(1). A conviction is not required; a person need only
allege, and eventually prove by a preponderance of the
evidence, the elements of the predicate statute. Id.
at § 895.446(2). Prevailing parties may recover actual
damages, costs of investigation and litigation, and exemplary
damages of no more than three times the actual damages.
Id. at § 895.446(3). Parties do not need to
allege actual monetary damages in order to bring suit.
See Ardor Agency LLC v. Imperium Intelligence, Inc.,
No. 08-C-812, 2009 WL 742758, at *3 (E.D. Wis. Mar. 18, 2009)
(awarding declaratory and injunctive relief, plus
attorneys' fees and costs, under Wis.Stat. §
895.446(3)(b)). However, they must allege some form of
injury. Id. at *1 (alleging improper retention and
use of confidential information after breakdown of
non-disclosure agreement); Wis.Stat. § 895.446(1)
(stating that the cause of action is available to anyone who
suffers “damages or a loss” as a result of the
have not pleaded any facts that, if true, state a claim
against John that he intentionally used, without
authorization, Kurt's personal ...