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 United States District Judge.
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).
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. 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.
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
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).
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
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.
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.
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.
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.
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.