Dewey v. Bechthold

387 F. Supp. 3d 919
District Court, E.D. Wisconsin·Decided May 21, 2019·No. Case No. 18-CV-1739-JPS·Published·Cited by 2 cases

Opinion

J.P. Stadtmueller, U.S. District Judge *922On November 1, 2018, Plaintiffs in the above-captioned case filed a motion to appoint a receiver or, alternatively, a motion for an order to permit inspection and copying of the Defendant Companies' accounting records. (Docket #3). In their supporting brief, Plaintiffs explained at length their arguments for both forms of relief. See (Docket #4 at 11-17) (arguing for order permitting inspection and copying of records); id. at 17-31 (arguing for order appointing a receiver). On January 14, 2019, Defendants filed their brief in opposition to Plaintiffs' motion, in which they failed to address Plaintiffs' arguments for an order to permit inspection and copying of the Defendant Companies' accounting records. (Docket #33). Following Plaintiffs' reply, the Court issued an order denying Plaintiffs' motion for a receiver and granting, in part, their motion to inspect. (Docket #54). Defendants quickly filed a notice of appeal, claiming that the Court's order amounted to an injunction. See (Docket #55). They also filed a motion to stay the Court's order, and an accompanying brief, the bulk of which reads like an unsanctioned sur-reply to Plaintiffs' motion. (Docket #57 and #59). The Court will deny the Defendants' motion to stay for the reasons explained below.

1. LEGAL STANDARD

A district court has discretion to determine whether to stay an order while an appeal is pending. See Fed. R. Civ. P. 62(c) ; Glick v. Koenig , 766 F.2d 265, 269 (7th Cir. 1985). "The factors to be considered in a request for a stay pending appeal are (1) whether appellant has made a showing of likelihood of success on appeal, (2) whether appellant has demonstrated a likelihood of irreparable injury absent a stay, (3) whether a stay would substantially harm other parties to the litigation, and (4) where the public interest lies." Id. (citing Adams v. Walker , 488 F.2d 1064, 1065 (7th Cir. 1973) ).

2. ANALYSIS

As explained below, the Defendants are unlikely to succeed on appeal because they waived their arguments that the inspection order should have been analyzed as a form of injunctive relief and that the inspection order should have been denied. Nevertheless, the Court also explains why its decision was correct on the merits. Finally, after evaluating the harm to the parties and determining where the public interest lies, the Court concludes that it must deny Defendants' motion to stay.

2.1 Likelihood of Success on Appeal

It is well-settled in this circuit that when a party fails to raise an argument, that argument is deemed waived. Bonte v. U.S. Bank, N.A. , 624 F.3d 461, 466 (7th Cir. 2010) ("Failure to respond to an argument-as the [Defendants] have done here-results in waiver."); Wojtas v. Cap. Guardian Tr. Co. , 477 F.3d 924, 926 (7th Cir. 2007) (holding that a party's "failure to offer any opposition to...[the] statute of limitations argument constituted a waiver."); Cincinnati Ins. Co. v. E. Atl. Ins. Co. , 260 F.3d 742, 747 (7th Cir. 2001) (holding that where a party fails to address a non-frivolous or dispositive argument, it is appropriate to infer acquiescence, and "acquiescence operates as a waiver."); United States v. Furr , 2015 WL 1034056, at *2 (E.D. Wis. Mar. 10, 2015) ("It should go without saying that the Seventh Circuit adheres to the longstanding *923rule that a litigant waives an argument by failing to make it.") (quoting Burton v. City of Franklin , 2011 WL 2938029 at *2 (S.D. Ind. July 18, 2011) ).

As Plaintiffs point out, "Defendants did not once describe Plaintiffs' request to review Defendants' records as a request for an injunction or even suggest that [the] Court should review the request under an injunctive-relief standard." (Docket #64 at 10). In fact, Defendants never even opposed Plaintiffs' request for an order to inspect. Civil Local Rule 7(f) states that "the principal memorandum...in opposition to[ ] any motion must not exceed 30 pages." The Defendant's opposition brief to Plaintiffs' motion was a mere fourteen pages, and only addressed Plaintiffs' motion to appoint a receiver. (Docket #33). Defendants requested an evidentiary hearing only for the purpose of evaluating whether a receiver was necessary. Id. at 3. Throughout the entire brief-despite having ample page length and incentive to do so-they made no arguments against Plaintiffs' request for an order to inspect. When Defendants spoke of Plaintiffs' request to inspect, this is all they had to say:

• "Among other claims, [Plaintiffs] allege that the Companies have violated Wis. Stat. § 180.1602 by refusing to allow inspection of certain corporate records. Id. ¶¶ 70-79. The plaintiffs take the position that they are entitled to examine all the records underlying the Companies' annual financial statements, for purposes of valuing their shares. Id. ¶ 48." (Docket #33 at 5).

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Dewey v. Bechthold, 387 F. Supp. 3d 919 (E.D. Wis. 2019).

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