throbber
Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 1 of 20
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE WESTERN DISTRICT OF WISCONSIN
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`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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`RODNEY RIGSBY,
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`Plaintiff,
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`v.
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`OPINION AND ORDER
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`14-cv-23-bbc
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`AMERICAN FAMILY MUTUAL INSURANCE COMPANY,
`PROGRESSIVE CASUALTY INSURANCE COMPANY,
`CHRIS MISCIK, BRUCE BERNDT, BERNDT, CPA,
`MICHAEL RILEY, AXLEY BRYNELSON, LLP,
`KRISTINE BURCK, MARILYN WETLEY, LEVINE WETLEY
`and UNITED HEALTH PLANS INSURANCE CORPORATION,
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`Defendants.
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`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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`Pro se plaintiff Rodney Rigsby is suing various parties under various legal theories for
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`events that occurred after defendant Chris Miscik was injured in a car accident. Although
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`plaintiff is not a lawyer, he says that he helped Miscik in a lawsuit against defendants
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`Marilyn Wetley and Levine Wetley (the alleged tortfeasors in the car accident) and that
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`Miscik agreed to give plaintiff half the amount he recovered from the case. However, after
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`plaintiff provided assistance, such as by drafting Miscik’s complaint and some discovery
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`requests, Miscik hired lawyers (defendants Michael Riley and Axley Bynelson, LLP), who
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`allegedly used plaintiff’s work product to obtain a settlement, which Miscik did not share
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`with plaintiff. Plaintiff alleges that defendant American Family Mutual Insurance Company
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`was the Wetleys’ insurer; defendant Kristine Burck is a lawyer for American Family;
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`1
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`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 2 of 20
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`2defendant Progressive Casualty Insurance Company was defendant Miscik’s automobile
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`insurer; defendant Unity Health Plans Insurance Corporation was Miscik’s health insurer;
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`defendant Berndt, CPA, provides accounting services for Binary Deity, LLC, a company
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`plaintiff says that he co-owns with Miscik; and defendant Bruce Berndt owns Berndt, CPA.
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`Copyright is the only cause of action plaintiff asserts under federal law. His view is
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`that “all” of the defendants violated his intellectual property rights by using his work product
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`in defendant Miscik’s lawsuit. In addition, plaintiff asserts state law claims for breach of
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`fiduciary duty, fraud, breach of contract and conversion.
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`Each of the defendants has joined one of five motions to dismiss the case. Dkt. ##
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`11,16, 19, 22 and 25. In addition, many of the defendants have filed motions for sanctions
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`under Fed. R. Civ. P. 11 on the ground that plaintiff’s claims are frivolous. Dkt. ## 15, 39,
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`51. Plaintiff has filed two of his own motion for sanctions as well. Dkt. #33 and 65.
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`I am granting the motions to dismiss, with the exception of a portion of plaintiff’s
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`copyright claim against defendants Miscik, Riley and Axley Brynelson and plaintiff’s breach
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`of contract claim against Miscik. In addition, I am awarding attorney fees under Rule 11 for
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`the frivolous claims that plaintiff has filed.
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`OPINION
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`A. Subject Matter Jurisdiction
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`The first question in every case filed in federal court is whether subject matter
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`jurisdiction is present. McCready v. White, 417 F.3d 700, 702 (7th Cir. 2005). In his
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`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 3 of 20
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`complaint, plaintiff relies solely on 28 U.S.C. § 1332 as a basis for jurisdiction. However,
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`one of the requirements for an exercise of jurisdiction under § 1332 is complete diversity
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`between the plaintiffs and defendants, which means that no defendant can be a citizen of
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`the same state as plaintiff. Smart v. Local 702 International Brotherhood of Electircal
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`Workers, 562 F.3d 798, 803 (7th Cir. 2009)
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`In this case, plaintiff alleges that he lives in Wisconsin and that nearly all of the
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`defendants live in Wisconsin or have their principal place of business here. Although
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`residency and citizenship are not synonymous, Macken ex rel. Macken v. Jensen, 333 F.3d
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`797, 799 (7th Cir. 2003), plaintiff did not suggest that he is a citizen of another state, even
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`after several of the defendants argued in their motions to dismiss that plaintiff failed to show
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`diversity of citizenship. Instead, he says that jurisdiction is present under § 1332 because
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`one of the defendants, Progressive, is a citizen of Ohio. However, as noted above, the
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`question under § 1332 is not whether one defendant’s state citizenship is different from
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`plaintiff’s, but whether all of them are different. Plaintiff cites various cases in which courts
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`considered the meaning of the word “citizen,” but each of these cases is irrelevant because
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`they have nothing to do with § 1332, which has its own definition of citizenship.
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`Next, plaintiff says that jurisdiction is present under 28 U.S.C. § 1391(a)(2) because
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`a substantial part of the events relevant to this case occurred in Wisconsin. However, §
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`1391 relates to venue, which is a separate question from jurisdiction.
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`Finally, plaintiff says that jurisdiction is present because copyright is a federal claim.
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`I agree. Under 28 U.S.C. § 1331, federal courts may exercise jurisdiction over any claim that
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`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 4 of 20
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`arises under federal law. Further, under 28 U.S.C. § 1367, I may exercise supplemental
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`jurisdiction over state law claims that arise out of the same facts as the federal claim.
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`Although some of the defendants note that plaintiff does not cite § 1331 or § 1367 in his
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`complaint, federal pleading rules do not require plaintiffs to cite applicable law in this
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`context. Alioto v. Town of Lisbon, 651 F.3d 715, 720-21 (7th Cir. 2011).
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`B. Copyright
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`Because copyright is plaintiff’s only federal claim, that is the claim I will address first.
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`I understand plaintiff to be alleging that each of the defendants infringed his copyright by
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`copying his “work product” for Miscik’s state court case, including a complaint, deposition
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`questions, interrogatories and a proposed settlement agreement, along with case law research,
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`insurance policies and police reports he obtained, photographs he took of the accident scene
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`and investigative work that he performed.
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`In their motions to dismiss, defendants make one or more of the following arguments
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`for dismissing the copyright claim: (1) plaintiff did not adequately allege that he registered
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`his copyright, as required by 17 U.S.C. § 411(a); (2) plaintiff did not identify particular
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`infringing acts by the defendants; (3) plaintiff may not sue for copyright infringement
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`because the alleged original work was the result of the unauthorized practice of law; and (4)
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`some of the “work product” defendant is seeking to protect, such as legal research or police
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`reports, cannot be copyrighted. Although there is little case law on the issue, all parties seem
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`to assume that litigation documents such as a complaint, discovery requests and a settlement
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`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 5 of 20
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`offer may be copyrighted, so I do not consider that issue. Ralph D. Clifford, Intellectual
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`Property Rights in an Attorney's Work Product, 3 S. New Eng. Roundtable Symp. L.J. 1
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`(2008) (arguing that litigation documents should be protected by copyright law under some
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`circumstances); Davida H. Isaacs, The Highest Form of Flattery? Application of the Fair Use
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`Defense Against Copyright Claims for Unauthorized Appropriation of Litigation Documents,
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`71 Mo. L. Rev. 391, 393 (2006) (same).
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`1. Registration
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`Under 17 U.S.C. § 411(a), “no civil action for infringement of the copyright in any
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`United States work shall be instituted until preregistration or registration of the copyright
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`claim has been made in accordance with this title.” Plaintiff says that he complied with this
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`requirement by filing an application with the copyright office, paying the fee and depositing
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`the works at issue. Although he does not say that he has received a response to his
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`application (he filed it only a week before bringing this lawsuit), he cites Apple Barrel
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`Products, Inc. v. Beard, 730 F.2d 384, 386 (5th Cir. 1984), and Chicago Board of Education
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`v. Substance, Inc., 354 F.3d 624, 631 (7th Cir. 2003), for the proposition that he does not
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`have to wait for a response. In Apple Barrel, the court stated, “in order to bring suit for
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`copyright infringement, it is not necessary to prove possession of a registration certificate.
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`One need only prove payment of the required fee, deposit of the work in question, and
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`receipt by the Copyright Office of a registration application.” In Chicago Board of
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`Education, the court stated, “Although a copyright no longer need be registered with the
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`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 6 of 20
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`Copyright Office to be valid, an application for registration must be filed before the
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`copyright can be sued upon.”
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`In their reply brief, defendants Miscik, Riley and Axley Brynelson cite Neri v.
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`Monroe, 726 F.3d 989 (7th Cir. 2013), as supporting the view that plaintiff needs a
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`registration certificate before he can proceed, but I disagree. In Neri, 726 F.3d at 990, the
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`court stated that “copyright is permissible only after it has been registered,” but this does
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`answer the question of what it means to “register” the copyright. Both Apple Barrel and
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`Chicago Board of Education support the view that an application accompanied by a deposit
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`and fee is sufficient.
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`To the extent that Chicago Board of Education is ambiguous, I agree with the analysis
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`in 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 7.16[B], which was
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`cited in both Apple Barrel and Chicago Board of Education. The authors of that treatise rely
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`on a textual argument and a policy argument in favor of their interpretation that § 411
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`permits a plaintiff to file a copyright lawsuit once he has submitted his application, paid the
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`fee and deposited the work. First, they note that, under 17 U.S.C. § 410(d), the effective
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`date of a copyright registration is the date on which an application, deposit and fee have
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`been received by the copyright office. Nimmer, supra, at § 7.16[b][3][b][ii]. Second, they
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`argue that, once a claimant has submitted an application, she “has done all that she can do,
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`and will ultimately be allowed to proceed regardless how the Copyright Office treats her
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`application, [so] it makes little sense to create a period of ‘legal limbo’ in which suit is
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`barred.” Id. This reasoning is persuasive, so I decline to dismiss plaintiff’s copyright claim
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`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 7 of 20
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`on the ground that he has not yet received a certificate.
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`2. Infringing acts
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`A plaintiff alleging copyright infringement must show that the defendant “cop[ied]
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`constituent elements of the work that are original." Feist Publications Inc. v. Rural
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`Telephone Service Co., 499 U.S. 340, 361 (1991). All of the defendants with the exception
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`of defendants Miscik, Riley and Axley Brynelson argue that plaintiff has failed to identify
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`how those defendants “copied” his legal work product. I agree.
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`I will assume for the purpose of the pending motions that it may be inferred from
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`plaintiff’s complaint that defendants Miscik, Riley and Axley Brynelson copied substantial
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`portions of the complaint, discovery requests and other litigation documents that plaintiff
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`drafted. However, with respect to the other defendants, plaintiff says nothing in his
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`complaint except that “all” of them “infringed on” his “work product” and “used it [to]
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`strategize and negotiate monies settled.” Cpt. ¶¶ 37-38, dkt. #1.
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`These conclusory allegations do not state a claim upon which relief may be granted.
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`Plaintiff does not identify any way in which an act by defendants (other than Riley, Miscik
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`and Axley Brynelson) could be construed as copying plaintiff’s work. One of the
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`requirements of Fed. R. Civ. P. 8 is to give defendants notice of what they did to violate
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`plaintiff’s rights. Grieveson v. Anderson, 538 F.3d 763, 778 (7th Cir. 2008). Plaintiff may
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`not simply list the elements of his claim. Rao v. BP Products North America, Inc., 589 F.3d
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`389, 398-99 (7th Cir. 2009).
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`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 8 of 20
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`Further, I agree with defendants that it would make no sense for any of them to copy
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`plaintiff’s work product. Some of these defendants were also defendants in the state court
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`case; others were involuntary plaintiffs; others were not parties at all. Why would any of
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`them wish to copy plaintiff’s work product, particularly those who were defendants or
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`nonparties? How could any of them benefit from copying plaintiff’s work product?
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`Although plaintiff makes lengthy arguments in defense of his copyright claims, he fails to
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`answer these basic questions anywhere in his briefs, even after defendants pointed out this
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`fundamental defect in the claim.
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`Plaintiff seems to believe that defendants infringed his copyright by referring to one
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`or more of the documents he drafted during their settlement negotiations. He does not
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`identify any specific examples of this occurring, but even if I assume that it did, it would not
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`support a claim for a copyright violation because it is obvious that mentioning or even
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`relying on a document in discussions is not “copying” the work.
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`Even after various defendants pointed out in their motions to dismiss that plaintiff
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`had not identified any acts of infringement by them, plaintiff provided no hint in any of his
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`briefs as to how they copied any of his work product. Even if it is possible that one or more
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`of these defendants made a copy of the complaint for the purpose of discussing it during
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`settlement, it is difficult to imagine any scenario under which the copying of a publicly filed
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`document that is part of the court record would not qualify as fair use under 17 U.S.C. §
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`107, particularly if the only reason for the copying was to refer to the documents in a
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`proceeding related to that case. Accordingly, I conclude that it would be futile to give
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`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 9 of 20
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`plaintiff an opportunity to replead and I am granting defendants’ motion to dismiss the
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`complaint as to these claims.
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`3. Unauthorized practice of law
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`With respect to plaintiff’s copyright claim against defendants Riley, Miscik and Axley
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`Brynelson, these defendants argue that any litigation documents plaintiff drafted for Miscik
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`constitute an unauthorized practice of law, so plaintiff should not be permitted to sue under
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`copyright law for any copying of those litigation documents. Some of the other defendants
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`assert this defense in the alternative to their other arguments.
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`I will assume for the purpose of defendants’ motions that plaintiff engaged in the
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`unauthorized practice of law. However, even with this assumption, I cannot conclude that
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`defendants Miscik, Riley and Axley Brynelson have shown that they are entitled to dismissal
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`of this claim at this stage of the case.
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`Defendants rely on the doctrine of “copyright misuse,” but that doctrine seems to be
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`concerned with improper efforts by a party to expand the scope of his copyright, which is
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`not alleged in this case. E.g., Lasercomb America, Inc. v. Reynolds, 911 F.2d 970, 977-78
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`(4th Cir. 1990) (applying doctrine to anticompetitive language in licensing agreement); In
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`re Napster, Inc. Copyright Litigation, 191 F. Supp. 2d 1087, 1102-03 (N.D. Cal. 2002)
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`(“[C]opyright misuse exists when plaintiff expands the statutory copyright monopoly in
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`order to gain control over areas outside the scope of the monopoly.”); qad. inc. v. ALN
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`Associates, Inc., 770 F. Supp. 1261, 1266-67 (N.D. Ill. 1991) (copyright misuse doctrine
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`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 10 of 20
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`stands for principle that “[n]o party can use the limited grant that a copyright confers to gain
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`control of components over which it has no such right”). See also 4 Melville B. Nimmer &
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`David Nimmer, Nimmer on Copyright § 13.90[A] (tying copyright misuse doctrine to
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`antitrust violations). Defendants cite no cases in which any court applied the doctrine in
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`circumstances remotely similar to this case.
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`Defendants also refer more generally to the doctrine of unclean hands, but again,
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`defendants fail to cite any authority in which a court applied the doctrine to a similar case.
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`Rather, the leading treatise on copyright law states that an unclean hands defense
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`is recognized only rarely, when the plaintiff’s transgression is of serious
`proportions and relates directly to the subject matter of the infringement
`action. For instance, the defense has been recognized when the plaintiff
`misused the process of the courts by falsifying a court order, by falsifying
`evidence or by misrepresenting the scope of his copyright to the court and
`opposing party.
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`Id. at § 13.09[B].
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`Nimmer discusses the question whether a party’s illegal conduct should prevent a
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`party from enforcing his copyright and concludes that the answer is “no.” 1 Melville B.
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`Nimmer & David Nimmer, Nimmer on Copyright § 2.17 (“[T]he fact that a copyrightable
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`work is being used for illegal purposes should not constitute a defense to copyright
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`infringement.”) The treatise cites Dream Games of Arizona, Inc. v. PC Onsite, 561 F.3d
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`983, 990 (9th Cir. 2009), in which the court held that the plaintiff could sue for copyright
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`infringement of a gambling video game found to be illegal by the state supreme court.
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`The Court of Appeals for the Ninth Circuit quoted Mitchell Brothers Film Group v.
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`Cinema Adult Theater, 604 F.2d 852, 863 (5th Cir.1979), for the proposition that “[t]he
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`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 11 of 20
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`maxim of unclean hands is not applied where plaintiff's misconduct is not directly related
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`to the merits of the controversy between the parties, but only where the wrongful acts in
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`some measure affect the equitable relations between the parties in respect of something
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`brought before the court for adjudication,” and Fuller v. Berger, 120 F. 274, 278 (7th
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`Cir.1903), for the proposition that “[t]he alleged wrongdoing of the plaintiff does not bar
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`relief unless the defendant can show that he has personally been injured by the plaintiff's
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`conduct.” Rather, if the defendant cannot show that it was personally injured and the illegal
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`conduct is not directly related to the lawsuit, the court should leave prosecution of that
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`conduct to its normal course rather than allow the defendant to avoid liability for an
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`infringing act.
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`There may be strong arguments for declining to follow Nimmer and Dream Games
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`in this case, but I am hesitant to side with defendants in the context of a motion to dismiss
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`when they failed to cite any authority addressing the specific question of illegal use.
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`Defendants are free to develop their argument in the context of a motion for summary
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`judgment.
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`4. Work product not protected by copyright
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`I agree with defendants that the litigation documents plaintiff prepared are the only
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`work product plaintiff identifies that could qualify for copyright protection. In particular,
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`plaintiff alleges that he drafted defendant Miscik’s complaint, some deposition questions and
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`interrogatories and a proposed settlement agreement. Plaintiff mentions other things in his
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`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 12 of 20
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`complaint, such as “case law research,”police reports, insurance policies, pictures of the
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`accident scene, and his act of hiring an investigator. However, legal research, insurance
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`policies and police reports are not original works that plaintiff authored. Hiring an
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`investigator is not a work at all because it is not “fixed in any tangible medium of
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`expression.” 17 U.S.C. § 102(a). Although a photograph could be copyrighted, plaintiff
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`does not identify anything creative about the photographs he took. Conrad v. AM
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`Community Credit Union, — F.3d — , 13-2899, 2014 WL 1408635 (7th Cir. Apr. 14,
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`2014) (to be copyrighted, “a photograph, or any other copy, must have an element of
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`originality”).
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`Plaintiff’s only response to this is to say that he had a copyright in the “arrangement”
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`of these different documents, but that argument is absurd in this context. He fails to explain
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`how he arranged insurance policies and police reports in a such a creative way that they
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`became eligible for copyright protection. It seems highly unlikely that it would be possible
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`to do so.
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`To sum up, I am allowing plaintiff to proceed on his copyright claim against
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`defendants Miscik, Riley and Axley Brynelson with respect to their alleged copying of the
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`litigation documents plaintiff drafted in Miscik’s state court case, including the complaint,
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`deposition questions, interrogatories and proposed settlement agreement. I am dismissing
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`the claim in all other respects and as to all other defendants.
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`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 13 of 20
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`1. Breach of fiduciary duty
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`C. State Law Claims
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`Plaintiff says that defendants breached their fiduciary to him in various ways:
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`defendant Miscik, by failing to add plaintiff’s and Miscik’s joint business as a plaintiff in
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`Miscik’s lawsuit about the car accident; defendants Riley and Axley Brynelson for the same
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`reason and by failing to adequately represent Miscik in that lawsuit; defendant Berndt and
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`Berndt, CPA, “by not filing the correct taxes for 2012, aiding Miscik in hiding his settlement
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`monies from Rigsby [in the state court case] and setting Rigsby up for fraud with the
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`Internal Revenue Service,” cpt. ¶ 42, dkt. #1; defendants American Family and Burck, “by
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`not investigating and protecting [defendants Marilyn Wetley and Levine Wetley] from other
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`parties that have standing to sue them,” id. at ¶ 44; and defendants Progressive and Unity,
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`by failing to defend defendant Miscik in the state court case.
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`This claim is legally frivolous as to all defendants. Plaintiff does not identify a
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`fiduciary relationship that he had with any of defendants. Rather, most of plaintiff’s
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`allegations with respect to this claim are about failures by certain defendants to act in the
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`best interests of other defendants. However, plaintiff does not have standing to sue to
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`enforce the rights of these other parties. Kowalski v. Tesmer, 543 U.S. 125, 129 (2004)
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`("[A] party generally must assert his own legal rights and interests, and cannot rest his claim
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`to relief on the legal rights or interests of third parties.").
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`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 14 of 20
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`2. Fraud
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`The scope of plaintiff’s fraud claim is not obvious from the allegations in his
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`complaint. However, he does not dispute what seems to be defendants’ understanding of
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`the claim, which is that defendants deceived plaintiff by stating that defendant Miscik’s
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`claim in state court was settled for only $5000.
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`This claim is also legally frivolous as to all defendants. To begin with, plaintiff does
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`not identify any particular false representation by any particular defendant, which is required
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`under Fed. R. Civ. P. 9(b). Windy City Metal Fabricators & Supply, Inc. v. CIT Technical
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`Financing Services, Inc., 536 F.3d 663, 668 (7th Cir. 2008). Further, plaintiff does not
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`provide any basis for a belief that defendant Miscik received more than a $5000 settlement.
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`In any event, even if I assume that every defendant lied to plaintiff about the amount of the
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`settlement that defendant Miscik received, not every false statement may serve as the basis
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`for a fraud claim. Another element of fraud in Wisconsin is reasonable reliance, Metavante
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`Corp. v. Emigrant Savings Bank, 619 F.3d 748, 767-68 (7th Cir. 2010) (applying Wisconsin
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`law), but plaintiff’s only allegation about reliance is that he “relied that these facts were true
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`for the final settlement check and paperwork for stipulations and dismissals.” Cpt. ¶ 49, dkt.
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`#1. This statement borders on the nonsensical and plaintiff does not attempt to clarify it
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`in his briefs. To the extent that plaintiff means to argue that he would not have agreed to
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`dismissal of the state court case if he had known that the actual settlement was higher, that
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`argument is a nonstarter because plaintiff was not a party to the state court lawsuit, so he
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`had no legal authority to accept or reject a stipulated dismissal.
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`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 15 of 20
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`3. Conversion
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`Plaintiff’s allegations related to the tort of conversion are similar to his allegations of
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`copyright infringement. He alleges that “all” defendants took his “work product” without
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`his consent. Cpt. ¶¶ 55-59, dkt. #1. However, plaintiff does not suggest that any
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`defendant took the original copies of his work product or otherwise prevented him from
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`using the work product. Because one of the elements of a conversion claim is that the
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`defendant “seriously interfered” with the plaintiff’s right to possess the property, Wis JI-Civil
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`2200, this claim is frivolous as well. To the extent plaintiff is arguing that defendants
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`converted his intellectual property, that is another nonstarter because a claim for conversion
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`in Wisconsin is limited to chattel. Production Credit Association of Madison v. Nowatzski,
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`90 Wis. 2d 344, 353–54, 280 N.W.2d 118 (1979); Third Educ. Grp., Inc. v. Phelps,
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`07-C-1094, 2009 WL 2150686 (E.D. Wis. May 15, 2009).
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`Finally, plaintiff does not respond to the argument by defendants Miscik, Riley and
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`Axley Brynelson that the attachments to plaintiff’s complaint show that plaintiff gave them
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`permission to use his work product. Flannery v. Recording Industry Association of America,
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`354 F.3d 632, 638 (7th Cir. 2004) ("[W]hen a document contradicts a complaint to which
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`it is attached, the document's facts or allegations trump those in the complaint."). Because
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`another element of conversion is that the defendant took the property without consent, Wis
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`JI-Civil 2200, the claim fails for this reason as well. (Although it would seem that any
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`permission plaintiff gave defendants would be relevant to a license defense to plaintiff’s
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`copyright claim, defendants did not raise the issue in the context of the copyright claim, so
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`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 16 of 20
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`I have not considered it.)
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`4. Breach of contract
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`Plaintiff’s breach of contract claim is against defendant Miscik only. Plaintiff says
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`that Miscik promised to share half of his settlement in the state court case in exchange for
`
`legal assistance, but Miscik failed to pay plaintiff anything. Miscik’s only argument with
`
`respect to this claim is that he did not enter into an enforceable contract with plaintiff.
`
`Rather, the agreement attached to plaintiff’s complaint states that Miscik “agrees to gift”
`
`plaintiff half of his settlement, dkt. #1-1 at 10, and “[a] promise to make a gift cannot be
`
`enforced.” In re Stitt's Estate, 127 Wis. 379, 106 N.W. 114, 115 (1906).
`
`The problem with defendant Miscik’s argument is that plaintiff alleges that Miscik’s
`
`promise was not actually related to a gift, which is a “voluntary transfe[r] of property to
`
`another without compensation.” Black’s Law Dictionary 709 (8th ed. 2004) (emphasis added).
`
`Rather, plaintiff alleges that he gave consideration to Miscik in the form of legal assistance.
`
`Miscik cites no authority for the proposition that a party may avoid what is otherwise an
`
`enforceable promise by calling it a “gift.” Cf. Goodhue v. Town of Beloit, 21 Wis. 636, 641
`
`(1867) (town could not avoid payment for building bridge by stating that it had agreed only
`
`to “donate” $1000 to plaintiff for services because “a promise to give or donate money for
`
`a valuable consideration constitutes a contract”). In the case Miscik cites, the court
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`emphasized that the promise at issue was made without consideration. Smith, 277 N.W.
`
`at 143. Even if I assume that Miscik’s promise to give plaintiff half of the settlement was
`
`16
`
`

`
`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 17 of 20
`
`not related to plaintiff’s legal assistance, defendant does not explain why plaintiff would not
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`be entitled to compensation for his services. (Miscik does not argue that any promise for
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`payment is unenforceable because plaintiff’s conduct was illegal, so I do not consider that
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`issue.)
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`D. Sanctions
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`All but three of the defendants (Unity, Berndt and Berndt, CPA) joined one of three
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`motions to sanction plaintiff under Fed. R. Civ. P. 11 for filing frivolous claims. It seems to
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`be undisputed that each of the defendants who joined a motion complied with Fed. R. Civ.
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`P. 11(c)(2), which required them to give plaintiff 21 days to withdraw his claims.
`
`With respect to the claims for copyright infringement against defendants Miscik,
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`Riley and Axley Brynelson and for breach of contract against defendant Miscik, I must deny
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`the motion for sanctions because I am allowing those claims to proceed. However, I agree
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`with defendants that all other claims plaintiff asserted in his complaint are legally frivolous.
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`As discussed above, plaintiff had no arguable basis for suing defendants Berndt, Berndt CPA,
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`Levine Wetley, Marilyn Wetley, Burck, American Family, Unity and Progressive for
`
`copyright infringement or for suing any of the defendants for conversion, fraud or breach of
`
`fiduciary duty. Plaintiff violated Rule 11(b)(2) when he asserted claims that are not
`
`“warranted by existing law or by a nonfrivolous argument for extending, modifying, or
`
`reversing existing law or for establishing new law.” Plaintiff’s own motions for sanctions
`
`against defendants simply are other examples of a frivolous legal position. Accordingly, I
`
`17
`
`

`
`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 18 of 20
`
`conclude that an appropriate sanction is to require plaintiff to pay defendants’ attorney fees
`
`on the frivolous claims. Brandt v. Schal Associates, Inc., 960 F.2d 640, 646 (7th Cir. 1992)
`
`(“When defending a spurious lawsuit attorneys' fees are an inevitable ingredient in the
`
`expenses incurred, and they represent one reasonable measure of sanctions aimed at
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`deterring the perpetrator and compensating the victim.”).
`
`Defendants Miscik, Riley and Axley Brynelson ask for the additional sanction of
`
`prohibiting plaintiff from suing them in the future. In support, defendants say that plaintiff
`
`has been sanctioned by courts for filing other frivolous cases and that plaintiff has an
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`“apparent vendetta” against them. However, most of the cases defendants list come from
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`state courts and the only evidence of the sanctions they cite is a brief filed by a lawyer in
`
`another case. Dkt. #53-5. Obviously, I cannot take judicial notice of the allegations in a
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`brief, but even if I could, the brief does not describe the circumstances of the sanction. In
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`addition, despite defendants’ allegation of a “vendetta” against them, they do not suggest
`
`that plaintiff has filed any other lawsuits against them and they identify no reason that is
`
`likely to happen in the future. Particularly because I am allowing plaintiff to proceed on
`
`some claims against these defendants, I conclude that defendants have failed to show that
`
`an injunction is an appropriate sanction at this time. However, plaintiff is on notice that
`
`a more severe sanction such as a filing ban may be appropriate if he continues to file
`
`frivolous claims of the sort dismissed in this order.
`
`18
`
`

`
`Case: 3:14-cv-00023-bbc Document #: 72 Filed: 04/17/14 Page 19 of 20
`
`IT IS ORDERED that
`
`ORDER
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`1. The motion to dismiss filed by defendants Axley Brynelson, LLP, Michael Riley
`
`and Chris Miscik, dkt. #22, is DENIED with respect to plaintiff Rodney Rigsby’s claims
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`that: (1) defendants Axley Brynselson, Riley and Miscik infringed plaintiff’s copyright that
`
`he owns related to litigation documents that he drafted for Miscik’s state court case; and (2)
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`defendant Miscik breached his contract with plaintiff to pay plaintiff for his legal assistance.
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`The motion is GRANTED and the complaint is DISMISSED as to all other claims against
`
`these defendants.
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`2. The motions to dismiss filed by defendants Bruce Berndt and Berndt, CPA, dkt.
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`#11; defendants American Family Mutual Insurance Company, Kristine Burck, Levine
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`

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