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Dickerson v. Bulldog Repossession Services, LLC

United States District Court, E.D. Wisconsin

December 9, 2019

JASMINE DICKERSON, Plaintiff,
v.
BULLDOG REPOSSESSION SERVICES, LLC, Defendant.

         ORDER GRANTING IN PART DEFENDANT'S MOTION FOR LEAVE TO FILE PARTIAL MOTION TO DISMISS (DKT. NO. 19) AND ORDERING DEFENDANT TO FILE MOTION FOR JUDGMENT ON THE; DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO COMPEL DISCOVERY (DKT. NO. 21); GRANTING PLAINTIFF'S MOTION FOR MORE DEFINITE STATEMENT (DKT. NO. 25) AND ORDERING DEFENDANT TO FILE AMENDED COUNTERCLAIM; AND DENYING DEFENDANT'S MOTION FOR LEAVE TO FILE THIRD-PARTY COMPLAINT (DKT. NO. 29)

          HON. PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE.

         The plaintiff filed her complaint on June 6, 2019, alleging that that Bulldog Towing and Recovery, LLC violated the Fair Debt Collection Practices Act and the Wisconsin Consumer Act, and that it was a state actor, depriving her of her property without due process. Dkt. No. 1. She amended the complaint days later, replacing the original defendant with the current defendant, Bulldog Repossession Services, LLC. Dkt. No. 6. The defendant answered the amended complaint through Attorney Brian Baird at Borgelt, Powell, Peterson & Frauen. Dkt. No. 9.

         On August 19, 2019, Attorney John J. Reid of the firm of Cassiday Schade LLP substituted in as counsel for the defendant. Dkt. No. 13. A month later, the parties filed their Rule 26(f) report, dkt. no. 15, and the court entered a scheduling order on September 17, 2019, dkt. no. 16. The parties proposed, and the court adopted, a “dispositive motion” deadline of May 22, 2020. Dkt. Nos. 15 at 3; 16.

         I. Motion for Leave to File Motion to Dismiss (Dkt. No. 19)

         A month later, the defendant filed an expedited, non-dispositive motion for leave to file a partial motion to dismiss. Dkt. No. 19. The motion indicated that Attorney Reid believes that the defendant should have filed a motion to dismiss the due process claim but didn't have the opportunity to do so because Reid was hired after the answer was filed. Id. at 1. The motion says that the defendant “desires to withdraw the portions of its Answer relating to Plaintiff's allegations found in paragraphs 40-44 [of the amended complaint] and file a Motion to Dismiss those claims.” Id.

         The plaintiff objected, arguing that the defendant had tried to disguise a motion to amend its answer as a partial motion to dismiss. Dkt. No. 20 at 2. The plaintiff argued that the defendant should have filed a motion under Fed.R.Civ.P. 15 for leave to amend the answer and should have attached a proposed amended answer as required by Civil L.R. 15(b) (E.D. Wis.). Id. The plaintiff also argued that the defendant had not alleged facts in support of its request to amend. Id. at 2-3.

         The defendant's motion seeks two forms of relief. First, it seeks permission to file a motion to dismiss. Fed.R.Civ.P. 12(b) allows parties to file certain defense-such as the defense that a complaint fails to state a claim for which relief may be granted-by motion, but the party must make the motion “before pleading if a responsive pleading is allowed.” But failure to file a Rule 12(b)(6) motion prior to the deadline for answering does not constitute waiver; Rule 12(h)(2) allows a party to raise that defense in a motion for judgment on the pleadings or even at trial. The court will allow the defendant to file a motion for partial judgment on the pleadings (a Rule 12(c) motion) regarding the Fourteenth Amendment claim by the deadline the court sets below.

         Second, the motion indicates that the defendant wishes to withdraw the parts of its answer that relate to the Fourteenth Amendment claim. The plaintiff argues that this is tantamount a request to amend the answer, and argues that the court must deny the request because the defendant did not (a) seek leave to amend the answer and (b) file a proposed amended answer as required by Civil L.R. 15. The court doesn't understand why the defendant believes it needs to “withdraw” the portion of its answer that relates to the Fourteenth Amendment claim. Paragraphs 40-44 do nothing more than deny the plaintiff's Fourteenth Amendment claims. That denial doesn't preclude a motion that the complaint doesn't state a claim for which relief may be granted.

         II. Plaintiff's Expedited Motion to Compel Discovery (Dkt. No. 21)

         It hasn't taken the parties long to decide they don't like each other. On October 21, 2019-six months before the discovery deadline-the plaintiff filed a motion to compel the defendant to produce certain discovery Dkt. No. 21. The defendant asked the court to strike the plaintiff's motion (seems like a grant or denial would do), as well as noting that the defendant was waiting on this court to enter a protective order before providing certain materials (and this court was quite dilatory in signing that protective order). Dkt. No. 26. The defendant also opines that it ought not be required to provide its policies and procedures, because the complaint doesn't allege a violation of those policies or procedures. Id. at 2-4.

         The court will deny the motion without prejudice. The court issued the protective order on November 2, 2019, dkt. no. 27; it apologizes to the parties for taking almost a month to do so. The court presumes that the defendant now has provided additional documents to the plaintiff. The plaintiff may file another motion to compel if she did not receive all the documents she requested. To that end, while the court is not granting the motion to compel at this time, the court disagrees with the defendant that its policies and procedures are not relevant to the plaintiff's claims. True, the plaintiff's claims don't sound in violations of policies or procedures, but a party's failure to follow its own policies or procedures may constitute evidence that a party willfully violated a statute or a constitutional provision. The court anticipates that the plaintiff will not need to renew its motion regarding the defendant's policies and procedures.

         III. Plaintiff's Expedited Motion for Leave for a More Definite Statement (Dkt. No. 25)

         The defendant filed a counterclaim on October 25, 2019, alleging that the plaintiff's boyfriend was her agent, and that he damaged the defendant's property in violation of Wisconsin law and that he was negligent. Dkt. No. 23. Four days later, the plaintiff filed this motion, alleging that the counterclaim is vague, ambiguous, doesn't state sufficient facts and doesn't contain a statement of the court's jurisdiction as required by Fed.R.Civ.P. 8(a)(1). Dkt. No. 25. The plaintiff asks the court to enter an order “compelling Defendant to provide ...


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