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Dewey v. Bechthold

United States District Court, E.D. Wisconsin

October 18, 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 United States District Judge.

         On August 6, 2019, the Court granted leave to defendants Kurt Bechthold and Mark Filmanowicz (“Kurt” and “Mark, ” respectively) to file an amended counterclaim. (Docket #101). The newly filed counterclaim alleges one count of unauthorized use of personal identifying information in violation of Wis.Stat. § 943.201 and one count of invasion of privacy in violation of Wis.Stat. § 995.50(2)(a). (Docket #104 at 16-18). On August 6, 2019, Plaintiff John Dewey (“John”) moved to dismiss the amended counterclaim on the grounds that the counterclaim is not asserted by actual parties to the case; that the court lacks subject-matter jurisdiction; that the amended counterclaim fails to state a claim for which relief can be granted; and that the counterclaims, even if not dismissed, should be severed. (Docket #102, #103). Nine days later, John filed a motion for summary judgment on generally the same grounds as his motion to dismiss. (Docket #106).

         On August 23, 2019, the Court granted the parties' respective motions to alter the briefing schedule, and allowed Kurt and Mark to submit a single consolidated opposition to both the motions to dismiss and for summary judgment. (Docket #134). Those motions are now fully briefed.[1] For the reasons explained below, the Court will grant Plaintiff's motion to dismiss on the ground that these claims are not compulsory, they are not brought by parties to the action, and there is no independent jurisdictional basis to hear them.

         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 Chicago, 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).

         Challenges to jurisdictional sufficiency are evaluated under Federal Rule of Civil Procedure 12(b)(1), which allows the Court to dismiss actions over which it lacks subject-matter jurisdiction. When faced with a jurisdictional challenge, the Court accepts as true the well-pleaded factual allegations found in the complaint, drawing all reasonable inferences in favor of the plaintiff (in this case, the counterclaim plaintiff). Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 588 (7th Cir. 2014).

         2. RELEVANT ALLEGATIONS

         Kurt and Mark allege that John hired Thomas Dale and Associates (“TDA”), and potentially others, to conduct “a clandestine investigation” of Kurt and Mark in order to “obtain[] their private and confidential financial information.” (Docket #104 ¶ 3). In pursuit of this private and confidential information, a person employed by TDA called branches of Charles Schwab in Denver, Colorado; Austin, Texas; Phoenix, Arizona; and Indianapolis, Indiana on five different occasions in May 2014. Each time, the caller used personally identifying information for Mark and Kurt in an attempt to obtain financial information about the accounts that they have with Charles Schwab. Charles Schwab informed Kurt and Mark about these attempts on or shortly after May 21, 2014. Id. ¶ 13. JPMorgan also reported that someone unsuccessfully attempted to access one of Kurt's accounts on May 20, 2014. Id. ¶ 20. As a result, Kurt and Mark instated stronger security protocol to access their accounts with Schwab.

         Kurt and Mark did not suspect John's involvement in these incidents until this year, when, during depositions for the underlying case, John revealed that he had “commissioned a search of the top fifty brokerage houses in the United States, including online brokers, and learned that, as of June 2014, Kurt and [Mark] shared a joint brokerage account at Charles Schwab Bank with a cash value of approximately $1.37 million dollars.” Id. ¶ 18. Kurt and Mark later found out that John had hired TDA to conduct investigations, and had learned about the Schwab account through their investigations. Id. ¶ 19.

         Kurt and Mark also learned, through depositions, that John hired someone to conduct searches of their and the Companies' garbage, though the dates, locations, and participants in these searches are still unknown. Id. ¶ 22. Kurt and Mark claim that the Companies keep their dumpster on a private parking lot, and never consented to someone entering in order to search it. Similarly, both Kurt and Mark keep their garbage in the curtilage of their homes, and pay for disposal by a private service.

         Kurt explains that he has suffered physical and emotional harm after he learned that someone had misused his personally identifying information to try to gain financial information about him. Id. ¶ 26. For example, he had anxiety, insomnia, trouble concentrating, heart problems, and general paranoia. Id. ¶¶ 26-27. He also feels that he cannot consolidate his many bank accounts into one, for fear that it would be compromised. Id. ¶ 27.

         Mark, too, has suffered from stress and anxiety since learning about the 2014 attempts to infiltrate his bank account. He is particularly unnerved by the use of his wife's name in the attempts to gain financial information, and fears for the safety of his family. The fact that John has indicated that these investigations are ongoing exacerbates his discomfort.

         The amended counterclaim does not specifically allege an amount in controversy. Kurt and Mark explain that the “insidious nature” of the alleged harm, and the fact that they do not know the scope of the investigation, make it difficult to calculate damages. However, they believe that they are entitled to compensatory damages for Kurt's “significant medical expenses, ” as well as punitive damages and the costs and fees associated with the litigation. Id. ¶¶ 25-26.

         3. ...


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