United States District Court, E.D. Wisconsin
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)
PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE.
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.
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;
Motion for Leave to File Motion to Dismiss (Dkt. No.
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.
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.
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
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
Plaintiff's Expedited Motion to Compel Discovery (Dkt.
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
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.
Plaintiff's Expedited Motion for Leave for a More
Definite Statement (Dkt. No. 25)
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 ...