Colborn v. Netflix Inc et al
Filing
113
ORDER signed by Chief Judge Pamela Pepper on 1/16/2020. Evidentiary Hearing set for 3/6/2020 at 9:30 AM in Courtroom 222, 517 E. Wisconsin Ave., Milwaukee, WI before Chief Judge Pamela Pepper. By 2/26/2020, parties must file witness list and exhibit list. 108 Defendants' motion for leave to file response to plaintiff's new arguments DENIED as moot. (cc: all counsel)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ANDREW L. COLBURN,
Plaintiff,
Case No. 19-cv-484-pp
v.
NETFLIX, INC., CHROME MEDIA, LLC,
LAURA RICCIARDI, and MOIRA DEMOS,
Defendants.
______________________________________________________________________________
ORDER SCHEDULING EVIDENTIARY HEARING AND DENYING AS MOOT
DEFENDANTS’ MOTION FOR LEAVE TO FILE RESPONSE TO PLAINTIFF’S
NEW ARGUMENTS (DKT. NO. 108)
______________________________________________________________________________
At the December 19, 2019 motion hearing, the court indicated that it
would schedule an evidentiary hearing on the service issue raised in the motion
to dismiss filed by defendants Chrome Media, Laura Ricciardi and Moira
Demos. Dkt. No. 104. The court discussed the multiple disputes of fact
between the parties regarding when the plaintiff had served the defendants (or
whether the plaintiff properly had served them), and the relationship between
service—which would determine when the case “commenced”—and the statute
of limitations.
After the court announced its intention to hold an evidentiary hearing,
the plaintiff’s counsel asserted that the court should use the federal rule and
law regarding proper service to determine whether and when the defendants
were properly served. Counsel argued that the defendants had not mentioned
28 U.S.C. §1448, “which governs service after removal where there’s a defect in
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service or in service prior to removal,” in their initial motion to dismiss. Dkt.
No. 103 at 31 lines 8-11. Plaintiff’s counsel explained that the plaintiff had
mentioned it in his response, which had led to the defendants’ “reply brief and
the mention of the Walker case.” Id. at lines 11-12. Plaintiff’s counsel asserted
that the “Walker” case distinguished Hanna v. Plumer, 380 U.S. 460 (1965)—a
decision that, despite filing two sur-replies, the plaintiff had not cited in his
pleadings. The plaintiff asserted that because 28 U.S.C. §1448 was
“implicated,” Hanna governed, and provided that “where there is a direct
conflict between a variably promulgated federal rule and even state substantive
law, even the statute of limitations, which was essentially what was at issue in
Plumer.” Id. at lines 19-24. The plaintiff argued that under Hanna, the federal
rule and federal law prevailed. The plaintiff also argued that under Wis. Stat.
§893.15, when a Wisconsin claim is pending in a foreign forum, the foreign
court looks to “local foreign law with respect to the question of commencement
of an action.” Id. at 32 lines 6-14.
Defense counsel responded that this was the first the defendants had
heard about Wis. Stat. §813.15. Id. at 33 lines 3-4. Defense counsel asserted
that the “Walker” case, which the defense has cited in its reply brief as Walker
v. Armco Steel Corp., 446 U.S. 740 (1980), involved a statute nearly identical to
the Wisconsin service statute, and mandated that if the defendants weren’t
properly served under the Wisconsin service statute, the plaintiff’s claims could
not proceed in federal court. Id. at 8-19. The defendants argued that Walker
was “on all four squares with our case.” Id. at 20-21. The defendants concluded
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by saying that, while they understood the court thought there was a need for
an evidentiary hearing, if the court found at that evidentiary hearing “that
service did not occur pre-removal or pre-March 18, 2019, the case is over.
Federal rules can’t save this.” Id. at 35 lines 1-5.
The court has reviewed the arguments and has looked at Hanna and
Walker. The court finds the discussion of those cases—and much of the
plaintiff’s legal argument—to be irrelevant.
The events that gave rise to the plaintiff’s claims began when the
documentary aired on December 18, 2015. Wis. Stat. §893.57 states that an
action to recover damages for intentional torts such as defamation “shall be
commenced within 3 years after the cause of action accrues or be barred.” The
defendants argue that the plaintiff’s cause of action accrued when the series
aired, and so the three-year limitations period expired on December 18, 2018.
This means that the plaintiff had to “commence” his action by December 18,
2018 to avoid being time-barred. The plaintiff filed his complaint in state court
on December 17, 2018, the day before the alleged expiration of the statute of
limitations. Dkt. No. 1-1.
Wis. Stat. §801.02(1) says that a civil case “is commenced” when the
summons and complaint “are filed with the court, provided service of an
authenticated copy of the summons and of the complaint is made upon the
defendant under this chapter within 90 days after filing.” So the plaintiff’s
lawsuit is not time-barred if he properly served the defendants in accordance
with Wisconsin law within ninety days of December 17, 2018—by Monday,
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March 18, 2019. The defendants assert the plaintiff did not effectuate proper
service under Wisconsin law by Monday, March 18, 2019, and that the lack of
proper service meant the plaintiff’s claims against the defendants were barred
by the statute of limitations.
The plaintiff did not address this assertion in his opposition brief. In
parts of the brief, he talked about the federal rule governing service of
process—Fed. R. Civ. P. 4(m). Dkt. No. 52. At the third page of his response
brief, the plaintiff discussed how courts liberally construe Fed. R. Civ. P. 4. Id.
at 3. He pointed out that he’d moved for additional time to serve the defendants
under Rule 4. Id. at 6. In other parts of his brief, the plaintiff argued that he’d
properly served the defendants under state law. The plaintiff asserted that he
had properly served the individual defendants “as required by the statute,”
citing Wis. Stat. §801.11(1)(c). Id. at 8. He also argued that he’d exercised due
diligence in serving the defendants, such that service by publication was
appropriate under Wis. Stat. §801.11(1)(c). Id. at 11.
The brief repeatedly asserted that the plaintiff had properly served the
defendants before the case was removed to federal court. He did not, however,
address the defendants’ contention that he had not served them under
Wisconsin law before March 18, 2019. Toward the end of his response, the
plaintiff asserted that under 28 U.S.C. §1448, he had ninety days from the date
of removal from state to federal court to serve any defendant who had not been
properly served. Id. at 15. He also argued that the court had good cause to
extend that time under Rule 4(m) of the federal rules.
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The defendants responded that Fed. R. Civ. P. 4 does not determine
when the case “commenced.” Dkt. No. 86 at 1. They argued that the issue was
whether the plaintiff properly served the defendants under Wisconsin law
before the statute of limitations expired. Id. at 1-2. They contended that the
fact that they removed the case to federal court had no bearing on the
question, asserting that if the plaintiff did not properly serve them under state
law by March 18, 2019 (weeks before the defendants removed the case to
federal court), his claim against them was time-barred. Id. The defendants
spent the rest of their reply brief explaining why they believe the plaintiff did
not effect proper service under state law prior to March 18, 2019.
The plaintiff’s arguments all glance off the relevant question: whether he
“commenced” his action within the three-year statute of limitations. The
plaintiff filed his state-law defamation action against the defendants in
Wisconsin state court. Wisconsin law governs the statute of limitations for that
state-law defamation claim, and it says that the plaintiff must “commence” his
action on that claim within three years of the date it accrued. Wisconsin law
defines the date of “commencement” of an action as the date the plaintiff files
the action only if he properly serves it under Wisconsin law within ninety days
of the date of filing. So whether a Wisconsin defamation action is time-barred
depends on whether the plaintiff properly served the complaint in compliance
with Wisconsin law within ninety days of the date he filed it.
The plaintiff has asserted that he properly served the defendants prior to
removal. Even if true, that fact is irrelevant for statute-of-limitations purposes.
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In order to avoid a statutory bar, he had to properly serve the defendants in
accordance with Wisconsin law within ninety days of the date he served the
complaint in state court. Nowhere in the plaintiff’s pleadings does he state that
he properly served the defendants under Wisconsin law by March 18, 2019.
Instead, the plaintiff argues that under 28 U.S.C. §1448, a plaintiff who
discovers post-removal that service was defective may issue new service “in the
same manner as in cases originally filed in such district court.” Because any
defect in service prior to March 18, 2019 is linked to the statute of limitations,
the plaintiff’s assertions amount to an argument that he should be able to use
§1448 to get around the statute of limitations. At least one other district court
has rejected a similar argument. In Morton v. Meagher, 171 F. Supp. 2d 611
(E.D. Va. 2001), a plaintiff who’d effected improper service on the last day
prescribed by state statute cited §1448, arguing that it “allow[ed] a federal
district court to correct deficient service.” 171 F. Supp. 2d at 614. The Virginia
court rejected this argument, holding that Ҥ 1448 does not retroactively extend
the time limits prescribed by state law in cases where service was untimely
before the action is removed to federal court.” Id. at 615. The court went on to
say that
[n]othing in the text, or the legislative history, of § 1448 permits it
to serve as a phoenix for the ashes of an action that could not have
survived in the state courts. “Implicit in our conclusion is that
§ 1448 cannot be utilized to breathe jurisprudentially life into a case
legally dead in state court.” Witherow v. Firestone Tire & Rubber Co.,
530 F.2d 160, 168 (3d Cir. 1976). See also Marshall v. Warwick, 155
F.3d 1027, 1033 (8th Cir. 1988) (“We do not believe this section can
‘resurrect’ a removed diversity case which would have been
dismissed as time-barred had it remained in state court.”); Osborne
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v. Sandoz Nutrition Corp., 67 F.3d 289, 289 [sic], 1995 WL 597215
(1st Cir. 1995) (unpublished) (“Applying Section 1448 would ignore
[plaintiff’s] procedural deficiency in state court, and effectively
penalize [defendant] for exercising its removal right. We decline to
use Section 1448, as the district court noted, to ‘breathe
jurisprudential life in federal court to a case legally dead in state
court.’” (quoting Witherow, 530 F.2d at 168)); Four Keys Leasing &
Maintenance Corp. v. Smithis, 849 F.2d 770, 774 (2nd Cir. 1988) (“it
would be a perversion of the removal process to allow a litigant who
is subject to a final judgment to remove that final judgment to the
federal courts for further litigation. If a claim that is time-barred
under state law cannot have life breathed into it by being removed
to federal court . . . .” (citing to Witherow, 530 F.2d 160)).
Id. at 615-616.
Nor does Fed. R. Civ. P. 81(c) (which the plaintiff did not cite), which
provides that federal rules apply to a civil action after it is removed from state
court, cure any defect in service that could result in the plaintiff’s claim being
time-barred. “‘The Federal Rules make clear that they do not apply to filings in
state court, even if the case is later removed to federal court.’” Cobb v. Aramark
Correctional Serv’s, LLC, 937 F.3d 1037, 1040 (7th Cir. 2019) (quoting Romo v.
Gulf Stream Coach, Inc., 250 F.3d 1119, 1122 (7th Cir. 2001)). See also Alber
v. Ill. Dep’t of Mental Health and Developmental Disabilities, 786 F. Supp.
1340, 1376 (N.D. Ill. 1992). The Seventh Circuit has “instructed courts to
distinguish between actions that occur before and after removal to federal court
when applying federal procedure to removed cases.” Id. “In determining the
validity of service prior to removal, a federal court must apply the law of the
state under which the service was made, and the question of amenability to
suit in diversity actions continues to be governed by state law even after
removal.” Allen v. Ferguson, 791 F.2d 611, 616 n.8 (7th Cir. 1986). See also,
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Cardenas v. City of Chi., 646 F.3d 1001, 1005 (7th Cir. 2011) (“Because this
attempt at service occurred before the case is removed, Illinois service of
process rules govern whether the attempt was legally sufficient.”). The plaintiff
had to serve the defendants in accordance with Wisconsin law within ninety
days of the date he filed his complaint in state court in order to file his claim
within the three-year limitations period.
Given this, the court is stymied by the plaintiff’s assertion at the
December hearing that Hanna has any bearing on the question of whether the
plaintiff’s claim is time-barred due to failure to serve within ninety days of the
date on which he filed his complaint. Hanna, decided almost fifty-five years
ago, stands for the now-unremarkable proposition that in a diversity case,
service of process is governed by Rule 4, not by the service rules of the state in
which the federal court sits. It involved a case filed in federal court in the first
instance; it did not involve a case removed from state to federal court. Had the
plaintiff filed his case here in federal court to start with, of course service would
have been governed by Rule 4.
The Walker case cited by the defendants in response also involved a case
filed in federal court in the first instance. But Walker addresses the question in
this case—whether federal procedural rules impact a state statute of
limitations defined by the date of service. The issue in Walker was “whether in
a diversity action the federal court should follow state law or, alternatively,
Rule 3 of the Federal Rules of Civil Procedure in determining when an action is
commenced for the purpose of tolling the state statute of limitations.” Walker,
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446 U.S. at 741. Rule 3 provides that a civil action “is commenced by filing a
complaint with the court.” The Oklahoma statute of limitations involved in
Walker mandated that if the plaintiff filed the complaint within the limitations
period, “the action is deemed to have commenced from that date of filing if the
plaintiff serves the defendant within 60 days, even though that service may
occur outside the limitations period.” Walker, 446 U.S. at 743 (citing Okla.
Stat., Tit. 12, § 95 (1971)). The plaintiff admitted that his case would have been
foreclosed in state court but argued that Rule 3 governed how an action was
commenced in federal court “for all purposes, including the tolling of the state
statute of limitations.” Id.
The Supreme Court rejected the plaintiff’s argument. It stated that in
contrast to the federal rule of procedure, “the Oklahoma statute is a statement
of a substantive decision by that State that actual service on, and accordingly
actual notice by, the defendant is an integral part of the several policies served
by the statute of limitations.” Id. at 751. The Court noted that limitations
statutes set “a deadline after which the defendant may legitimately have peace
of mind,” and “recognize[] that after a certain period of time it is unfair to
require the defendant to attempt to piece together his defense to an old claim;”
the Court concluded that those “policy aspects” made “the service requirement
an ‘integral’ part of the statute of limitations . . . .” Id. at 751-52.
The substantive Wisconsin statute of limitations, like the Oklahoma
statute, makes the date of service under Wisconsin law an integral part of the
statute of limitations. To avoid being time-barred, the plaintiff must
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demonstrate that he properly served the defendants under Wisconsin law by
the deadline set in the statute of limitations.
Finally, it appears that the first time the plaintiff raised Wis. Stat.
§893.15 was at the December hearing, and defense counsel argued at that
hearing that the court should not consider that statute in making its decision.
Even had the plaintiff raised the argument in his pleadings, however, it would
not have assisted him. The title of §893.15 is “Effect of an action in a nonWisconsin forum on a Wisconsin cause of action.” Section 893.15(2) says that
in a non-Wisconsin forum, the time of commencement or final disposition of an
action is determined by the law of the non-Wisconsin forum. This makes sense
and is sort of a Wisconsin statutory version of Hanna; if a plaintiff sues on a
Wisconsin cause of action in a court other than a Wisconsin state court, that
court’s law applies in determining when the case “commenced.” If the plaintiff
had filed his case in federal court in the first instance, Rule 3 would have
governed the date upon which he “commenced” his action, and under
§893.15(3), the Wisconsin statute of limitations would have been tolled until
the federal case was complete. But this statute doesn’t substitute a federal
statute of limitations for the Wisconsin one upon removal, any more than
§1448 cures deficiencies in service that impact the commencement of the
limitations period.
That brings the court back around to its announcement at the December
hearing that it needed an evidentiary hearing to decide the dispute over proper
service. The defendants argued in their pleadings that there was no need for an
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evidentiary hearing, because it was clear that the plaintiff had not served them
in accordance with Wisconsin law prior to March 18, 2019. In particular, the
defendants argued that the plaintiff’s publication by service was deficient
because the plaintiff did not exercise reasonable diligence in trying to serve the
individual defendants personally before resorting to publication and he didn’t
properly serve the corporate defendant. The plaintiff vigorously disputes these
assertions. This is where the factual disputes the court referenced crop up, and
the court still needs evidence to determine whether the plaintiff properly served
the defendants under Wisconsin law and when. If, after hearing the evidence,
the court determines that the plaintiff properly served any of the defendants in
accordance with Wisconsin law prior to March 18, 2019, the court will deny the
motion to dismiss as to those defendants. If the court concludes that the
plaintiff did not properly serve any of the defendants in accordance with
Wisconsin law prior to March 18, 2019, the court will grant the motion to
dismiss as to those defendants. The court will set aside two hours for the
hearing.
The court ORDERS that the parties must appear in Courtroom 222 of
the federal courthouse on March 6, 2020 at 9:30 a.m. for an evidentiary
hearing on the question of whether the plaintiff properly served the defendants
under Wisconsin law prior to March 18, 2019. The court ORDERS that by the
end of the day on February 26, 2020, the parties each must file a witness list
and an exhibit list. The court will not allow parties to present any witness who
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does not appear on the witness list, or any exhibits not listed on the exhibit
list.
The court DENIES AS MOOT the defendants’ motion for leave to file
response to plaintiff’s new arguments. Dkt. No. 108.
Dated in Milwaukee, Wisconsin this 16th day of January, 2020.
BY THE COURT:
_________________________________
HON. PAMELA PEPPER
Chief United States District Judge
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