McDonough v. Westconsin Credit Union

97 F. Supp. 3d 1040, 2015 WL 1285884
CourtDistrict Court, W.D. Wisconsin
DecidedMarch 20, 2015
DocketNos. 14-cv-705-bbc, 14-cv-873-bbc, 15-cv-29-bbc
StatusPublished
Cited by1 cases

This text of 97 F. Supp. 3d 1040 (McDonough v. Westconsin Credit Union) is published on Counsel Stack Legal Research, covering District Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDonough v. Westconsin Credit Union, 97 F. Supp. 3d 1040, 2015 WL 1285884 (W.D. Wis. 2015).

Opinion

OPINION and ORDER

BARBARA B. CRABB, District Judge.

These three proposed class actions arise out of pleadings filed years ago by defendant WESTconsin Credit Union in small claims actions in which it was suing the plaintiffs for defaulting on consumer loans. Plaintiffs allege that, in each of the complaints filed in small claims court, defendant included plaintiffs’ Social Security numbers and driver’s license numbers, in violation of the Driver’s Privacy Protection Act (18 U.S.C. §§ 2721-2725), the Wisconsin Consumer Act (Wis.Stat. §§ 421.101-427.105), Wisconsin’s privacy law (Wis. Stat. § 995.50) and the common law of nuisance. The parties agree that jurisdic[1042]*1042tion is present under 28 U.S.C. §§ 1331 and 1367.

Defendant has filed motions in each case under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. Because these motions were filed after defendant filed answers and raised affirmative defenses, the motions are more accurately classified as motions for judgment on the pleadings under Fed. R.Civ.P'. 12(c). Yassan v. J.P. Morgan Chase and Co., 708 F.3d 963, 975-76 (7th Cir.2013). Further, although only one of defendant’s three motions is called “motion for partial dismissal” (the other two are called simply “motion to dismiss”), a review of defendant’s motions reveals that they are nearly identical and that all of them address only two of the four claims included in plaintiffs’ complaints, the Wisconsin Consumer Act and Wisconsin’s privacy law. Because defendants have not raised any arguments about plaintiffs’ claims under the federal privacy statute or nuisance common law, I have not considered those claims in this order.

In its motions, defendant argues that plaintiffs’ claims under the Wisconsin Consumer Act and the state privacy law are barred by the statute of limitations. In addition, defendant argues that plaintiffs’ allegations “do not rise to the level of a private cause of action under” the Wisconsin Consumer Act and that publication of driver’s license numbers and Social Security numbers does not violate Wisconsin’s privacy law.

None of the plaintiffs responded to defendant’s argument regarding the scope of the state privacy law, so that argument is forfeited. Stransky v. Cummins Engine Co., Inc., 51 F.3d 1329, 1335 (7th Cir.1995) (“[W]hen presented with a motion to dismiss, the non-moving party must proffer some legal basis to support his cause of action. The federal courts will not invent legal arguments for litigants.”). In addition, I agree with defendants that plaintiffs’ claims under the Wisconsin Consumer Act and the state privacy law are barred by the statute of limitations. Accordingly, it is unnecessary to consider defendant’s remaining arguments about the Wisconsin Consumer Act.

OPINION

Defendant argues that the statute of limitations has expired on all of plaintiffs’ claims under the Wisconsin Consumer Act and the state privacy law. For the reasons discussed below, I agree.

A. Applicable Statute of Limitations

The first question is which statute of limitations applies. The parties debate that issue with respect to both claims.

1. Wisconsin Consumer Act

The limitations period for claims brought under the Wisconsin Consumer Act is set out in Wis. Stat. § 425.307(1):

Any action brought by a customer to enforce rights pursuant to chs. 421 to 427 shall be commenced within one year after the date of the last violation of chs. 421 to 427, 2 years after consummation of the agreement or one year after last payment, whichever is later, except with respect to transactions pursuant to open-end credit plans which shall be commenced within 2 years after the date of the last violation; but no action may be commenced more than 6 years after the date of the last violation.

This provision includes multiple limitations periods. First, it says that a “customer” must bring her claim within one or two years of specified actions. Second, it says that all actions must be brought within six years of the last alleged violation. In this case, both sides ignore the limitations periods related to “consummation of the agreement” and “last payment”’ so I [1043]*1043will assume that those provisions are not relevant to this case. Thus, the question is whether plaintiffs were required to bring these actions within one or six years of defendants’ last alleged violation of the Wisconsin Consumer Act.

The statute does not identify the purpose of the six-year limitations period, but I see at least two possibilities. One is that it is meant to apply to anyone who is not a “customer.” For example, in Jacobson v. Consumer Portfolio Services, Inc., No. 10-cv-643-bbc (W.D.Wis. Feb. 28, 2011), I concluded that Jacobson could sue for a violation the Wisconsin Consumer Act, even though he did not meet the statutory definition of “customer,” because the remedies provision of the Act refers broadly to “a person injured by [a] violation of this chapter,” rather than just a “customer.” Wis. Stat. § 427.105(1). Further, I concluded that the limitations period in the first part of § 425.307(1) did not apply to Jacobson because that limitations period applies to “customers” only.

A second possible purpose of the six-year deadline is that it is meant to bar claims in situations in which the other limitations periods might allow a claim to be brought more than six years after the last violation. For example, if a defendant violates the Act in some way during the beginning of the parties’ relationship and the plaintiff continues to make payments for many years, the provision that allows a plaintiff to bring a claim “one year after last payment” could lead to claims brought long after the “last violation” occurred.

Regardless of the reason the six-year limitations period was included, the language of the statute makes it clear that the six-year deadline is not a way for a plaintiff to avoid the deadlines in the first part of the statute. That part of the statute says that a lawsuit “shall be commenced” within one or two years of certain events. In other words, if the plaintiff is a customer and he cannot meet the limitations periods in the first part of the statute, he cannot rely on the last part of the statute to extend his limitations period.

In arguing for a six-year limitations period in this case, plaintiffs cite Jacobson, but that case is not instructive. Although' I concluded in Jacobson

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Cite This Page — Counsel Stack

Bluebook (online)
97 F. Supp. 3d 1040, 2015 WL 1285884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonough-v-westconsin-credit-union-wiwd-2015.