Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dewey v. Bechthold

United States District Court, E.D. Wisconsin

July 1, 2019

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,
v.
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.

          ORDER

          J. P. STADTMUELLER, U.S. DISTRICT JUDGE

         On 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.[1] (Docket #72). The motion to dismiss is fully briefed. For the reasons stated below, John's motion will be granted.

         1. LEGAL STANDARD

         Federal 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 quotations omitted).

         2. RELEVANT FACTS

         Defendants 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.

         Specifically, 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.

         Defendants' 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.

         3. ANALYSIS

         Under 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 predicate violation).[2]

         Defendants have not pleaded any facts that, if true, state a claim against John that he intentionally used, without authorization, Kurt's personal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.