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Diehm v. Messerli & Kramer, P.A.

United States District Court, W.D. Wisconsin

January 6, 2020

KATIE DIEHM, Plaintiff,
MESSERLI & KRAMER, P.A., Defendant.



         This case is set for a jury trial, commencing January 21, 2020. In advance of the final pretrial conference scheduled for January 7, 2020, the court issues the following opinion and order on the parties' respective motions in limine (“MILs”).


         I. Plaintiff's Motions in Limine

         A. MIL No. 1: barring defendant from testifying that it complied with Wisconsin or Minnesota rules of professional conduct or Federal Rule of Civil Procedure 11

         Plaintiff seeks an order barring defendant from testifying and arguing that it complied with rules of professional conduct or with Federal Rule of Civil Procedure 11, arguing that such evidence and argument is irrelevant or “is subsumed in the question of whether the defendants violated the FDCPA by not being meaningfully involved in the review of files and subsequent approval of complaints for filing against consumers.” (Pl.'s Mot. (dkt. #39) 1.) As support, plaintiff directs the court to Bock v. Pressler & Pressler, 30 F.Supp.3d 283 (D.N.J. 2014). As defendant points out in its response, however, the court in Bock actually held that while “the FDCPA does not incorporate rules of court by reference or create a private cause of action for their violation, . . . the rules of court help to define the level of attorney involvement that is impliedly represented by the filing and service of a complaint.” Id. at 300.

         Of course, this does not necessarily reject plaintiff's larger point: attorney ethical rules, and Rule 11 in particular, at minimum overlap with, and are largely identical to, the expectations of attorneys in signing pleadings under the FDCPA. Indeed, proposed rules by the Consumer Financial Protection Bureau also contemplate relying on Rule 11 as an “appropriate guide for judging whether a submission to the court has complied with” the proposed rule. Debt Collection Practices (Regulation F), 84 FR 23274-01 (May 21, 2019). While the court understands that these are simply proposed rules that have not been adopted, the CFPB cites to cases similarly embracing Rule 11 as a framework for determining “meaningful involvement, ” including Bock. Id. (citing Miller v. Upton, Cohen & Slamowitz, 687 F.Supp.2d 86, 101 (E.D.N.Y. 2009); see also Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 333 (6th Cir. 2006) (considering “meaningful involvement” claim with reference to Rule 11).

         As such, plaintiff's motion is DENIED to the extent it seeks to preclude defendant from arguing that it met the requirements of Rule 11 in defending against plaintiff's claim. At the same time, the court will consider the parties' proposed jury instructions in crafting a definition of “meaningful involvement” that references, the overlap under Rule 11, ethical obligations and the FDCPA, with the goal of avoiding any jury confusion as to the ‘due diligence” standard to which defendant is to be held in filing a civil complaint.

         B. MIL No. 2: prohibiting evidence that defendant obtained a judgment against plaintiff

         Next, plaintiff seeks an order prohibiting defendant from introducing evidence that it obtained a judgment against plaintiff, on the basis that it is not relevant to plaintiff's FDCPA claim and would be unfairly prejudicial. Defendant opposes this motion on the basis that plaintiff's actions, namely her failure to defend against the state court complaint, “shows that Messerli's attorney involvement was compliant with the FDCPA and state court collections rules.” (Def.'s Opp'n (dkt. #49) 3.) The court does not track defendant's opposition. As explained in the court's summary judgment decision, the default judgment entered against Diehm is part of the larger context of this lawsuit, but it is not at all clear that it is material to whether an attorney was meaningfully involved in initiating that lawsuit. On the contrary, any relevance as to liability would be substantially more prejudicial than probative, since the entry of default by definition had nothing to do with a determination on its merits.

         Still, defendant may be correct in asserting that the fact of the default judgment may be relevant to plaintiff's damages claim. As such, the motion is GRANTED IN PART AND RESERVED IN PART, barring this evidence from the liability phase, but reserving its admission as part of damages. Both sides may argue its relevance for that limited purpose at the final pretrial conference.

         C. MIL No. 3: permit paralegal to authenticate and explain online court filings and the method for retrieving those results

         Plaintiff seeks an order allowing a paralegal at plaintiff's counsel's firm, Taylor Chantes, to explain “how to read and interpret” online court records and “how they are retrieved” in order to “assist the jury in understanding those facts.” (Pl.'s Mot. (dkt. #39) 2.) Defendant offers several objections to plaintiff's motion. First, Chantes was never disclosed as a witness, much less as an expert witness to the extent that her proposed testimony constitutes expert testimony. Second, relying on Federal Rule of Evidence 1006, defendant objects to this testimony on the basis that plaintiff failed to produce the underlying records. Third, defendant asserts that Chantes lacks personal knowledge to authenticate these court records as required under Federal Rule of Evidence 602.[1] The court is inclined to grant this motion on the basis that Chantes was not disclosed as a witness, but will RESERVE ruling pending further argument at the final pretrial conference.

         D. MIL No. 4: allowing presentation, in the damages phase, of the total amount of complaints filed ...

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