De Temple v. Leica Geosystems Inc.

Filing 56

ORDER signed by Judge J P Stadtmueller on 10/29/09 granting 49 plaintiff's motion to alter judgment; the court vacates that portion of its judgment dismissing Count I with prejudice and dismisses Count I without prejudice. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ C L IF F DeTEMPLE, d/b/a TURNING POINT SYSTEMS GROUP P l a i n t if f , v. L E IC A GEOSYSTEMS, INC., D e fe n d a n t. ____________________________________________ ORDER O n June 24, 2009, this court entered an order dismissing the claims of plaintiff C lif f DeTemple ("DeTemple"), doing business as Turning Point Systems Group (" T P S G "), alleging violations of the W is c o n s in Fair Dealership Law ("W F D L ") and b re a c h of contract against defendant Leica Geosystems, Inc. ("Leica"). DeTemple s u b s e q u e n tly filed a motion to alter or amend judgment, asserting that the court c o m m itte d a manifest error of law by considering an affidavit outside of the pleadings in dismissing his claim pursuant to Fed. R. Civ. P. 12(b)(6). After reconsideration, th e court will amend its judgment to dismiss DeTemple's WFDL claim without p r e ju d ic e . B AC K G R O U N D D e T e m p le 's business, TPSG, had a prior business relationship with Leica, w h e re b y TPSG sold and serviced Leica's survey and construction products in certain c o u n tie s in W is c o n s in . (Am. Compl. ¶¶ 5-7; Ex. A). Leica ultimately ended the a rra n g e m e n t, terminating its Distribution and Service Agreements with TPSG. (Id. Case No. 08-CV-281

a t ¶¶ 7-9). Before terminating TPSG, Leica sent a notice dated September 29, 2 0 0 6 , providing TPSG a 60-day period to rectify deficiencies in its performance of th e contracts. (Id. at ¶ 10). Leica ultimately terminated the contracts on December 2 8 , 2006. (Id. at ¶¶ 8-9). DeTemple filed the instant suit alleging that the termination violated the W F D L o ve r a year later, on March 28, 2008. He then filed an amended complaint on J a n u a ry 15, 2009, adding two further claims for breach of contract. (Am. Compl. ¶ ¶ 29-38). Leica moved to dismiss all three claims, asking the court to dismiss the W F D L claim as time-barred pursuant to Fed. R. Civ. P. 12(b)(6), and to dismiss all c la im s for improper venue pursuant to Fed. R. Civ. P. 12(b)(3). Leica based its im p ro p e r venue arguments on forum selection clauses appearing in its Distribution a n d Service Agreements with TPSG. This court issued an order dismissing all claims on June 24, 2009. The court c o n c lu d e d that Count I of the amended complaint, the W F D L claim, was barred by th e applicable statute of limitations and dismissed the claim with prejudice. (Order d a te d June 24, 2009, at 12, Dk #47). During the period relevant to this action, D e T e m p le was a member of the United States Coast Guard Reserve. DeTemple s p e n t several months in active military service between Leica's termination of its re la tio n s h ip with TPSG and the filing of his lawsuit, asserting in his complaint that he w a s "on active duty for a period of six months in the United States military from M a rc h 2007 through September 2007." (Am. Compl. ¶ 16). Based on DeTemple's

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a c tive military service, the court tolled the otherwise applicable one-year statute of lim ita tio n s on W F D L claims, pursuant to the Servicemembers Civil Relief Act and W is c o n s in statute § 893.21. The court tolled the statute of limitations period for 180 d a ys to account for DeTemple's active military service. (Order at 5-6). However, d e s p ite this tolling, the court determined that DeTemple's claim was untimely filed a n d dismissed the claim with prejudice. The court also dismissed the remaining claims, Counts II and III of the c o m p la in t alleging breach of contract, for improper venue. (Order at 12). The court d e te rm in e d that the forum selection clauses in the Service and Distribution A g r e e m e n ts between TPSG and Leica were enforceable. The clauses name the U n ite d States District Court for the Northern District of Georgia or any Georgia state c o u rt sitting in Atlanta as the appropriate forum "for the purposes of all legal p ro c e e d in g s arising out or relating to this agreement." (Am. Compl. Ex. A § 17.1, Ex. B § 18.1). Given that the clauses are enforceable, the court determined that venue in the Eastern District of W is c o n s in was improper and the court dismissed the claims w ith o u t prejudice. DeTemple now brings a Rule 59(e) motion asking the court to amend its ju d g m e n t regarding Count I, the W F D L claim. However, he does not contest the c o u rt's conclusion regarding improper venue or its dismissal of Counts II and III, the b re a c h of contract claims. Instead, DeTemple limits his request for an amendment o f the judgment to the court's dismissal of the W F D L claim as time-barred.

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L E G AL STANDARD D e T e m p le moves for an amendment, pursuant to Fed. R. Civ. P. 59(e), of this c o u rt's judgment dismissing his W F D L claim with prejudice as time-barred under the a p p lic a b le statute of limitations. Rule 59(e) allows a district court to alter or amend a judgment if the moving party can "demonstrate a manifest error of law or present n e w ly discovered evidence." Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2 0 0 8 ). A manifest error of law exists when the court disregarded or misapplied c o n tro llin g precedent. Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2 0 0 0 ). Amendment of a judgment under Rule 59(e) enables the court to correct its o w n errors and avoid unnecessary appellate proceedings. Moro v. Shell Oil Co., 91 F .3d 872, 876 (7th Cir. 1996). AN AL Y S IS D e T e m p le argues that the court committed a manifest error of law in d is m is s in g his W F D L claim as time-barred. DeTemple asserts that the court wrongly to lle d the statute of limitations period for only 180 days, because assertions in his a m e n d e d complaint indicate that he was on active military duty for a longer period. D e T e m p le 's complaint states that he was on active duty for "six months" from "March 2 0 0 7 through September 2007." (Am. Compl. ¶ 16). Therefore, DeTemple argues, th e court erred because it did not rely solely on this statement in considering the W F D L claim under a Federal Rule of Civil Procedure 12(b)(6) standard.

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D e T e m p le correctly asserts that the court decided the motion to dismiss e m p lo yin g a Rule 12(b)(6) standard.1 (See Order at 2-3). In deciding a motion to d is m is s pursuant to Rule 12(b)(6), the court must take all well-pleaded allegations a s true and draw all inferences in favor of the plaintiff. Pugh v. Tribune Co., 521 F.3d 6 8 6 , 692 (7th Cir. 2008). Generally, when a court dismisses a complaint under Rule 1 2 (b )(6 ), it must not consider materials outside the complaint. See Alioto v. Marshall F ie ld 's & Co., 77 F.3d 934, 936 (7th Cir. 1996). If the court considers extrinsic m a t e r i a ls , it should convert the motion to dismiss into a motion for summary ju d g m e n t. Id. T h e statute of limitations on DeTemple's WFDL claim began to run on S e p te m b e r 29, 2006, the date he received Leica's Notice of Termination letter. See L e s Moise, Inc. v. Rossignol Ski Co., 122 W is . 2d 51, 53, 361 N.W .2 d 653, 654 (1 9 8 5 ). Therefore, he had one year from that date to commence a W F D L action u n d e r the applicable statute of limitations. See W is. Stat. § 893.93(3)(b). However, D e T e m p le argued that his period of active duty military service tolled the statute of lim ita tio n s period, pursuant to the Servicemembers Civil Relief Act and W is c o n s in S ta tu te § 893.21. A c c o rd in g ly , in deciding the motion to dismiss DeTemple's WFDL claim as u n tim e ly, the court tolled the limitations period based on DeTemple's active military
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DeTem p le asks the court to am e n d its judgm e n t by looking only within the pleadings and deciding th e m a tte r under Rule 12(b)(6). Alternatively, DeTem p le asks the court to consider the m a tte r under Rule 56 a n d consider the supplem e n ta l m a t e r ia ls that he filed after briefing had concluded. However, the court d e c id e d the original m o tio n under Rule 12(b)(6) and now reconsiders the m a tte r under the sam e standard. T h e r e f o r e , the court need not address DeTem p le 's additional argum e n ts .

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d u ty. (See Order at 5-6). The court employed a term of 180 days as the period of D e T e m p le 's active duty, based upon statements in his response brief and attached a ffid a vit.2 The court then extended the period for filing by 180 days ­ the tolling p e r io d of his active military service ­ beyond his September 23, 2007, return from a c tive duty. (Id.). Based on this calculation, the court determined that the statute of li m ita tio n s on DeTemple's W F D L claim expired on March 24, 2008, rendering his M a rc h 28, 2008 filing untimely. (Id.). DeTemple himself provided the "180 day" figure relied upon by the court in its c a l c u l a t io n . However, he now asserts that the court should have limited its

c a lcu la tio n to the complaint's less precise statements of "six months" of active duty fro m "March 2007 through September 2007." Regardless of the fact that DeTemple h im s e lf provided the information, he correctly asserts that the "180 day" figure does n o t appear within the four corners of his complaint. Therefore, the court will

re c o n s id e r the timeliness of his W F D L claim employing only the statements in his p le a d in g . D e T e m p le 's complaint alleges a time period of active military duty that is im p re c is e and inconsistent; however, the court must still draw all inferences in his fa vo r. See Pugh, 521 F.3d at 692. DeTemple's complaint asserts the following: P la in tiff was on active duty for a period of six months in the United S ta te s Military from March 2007 through September 2007.

DeTem p le asserted that he "was on active duty for 180 days during 2007 between the tim e periods o f March 29, 2007 and Septem b e r 23, 2007." (Pl.'s Opp. Br. 4, Dk #21; DeTem p le Aff. ¶ 3).

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(A m . Compl. ¶ 16). However, if the court includes all days beginning with March 1, 2 0 0 7 , and ending with September 30, 2007, this period equals seven months. T h e re fo re , DeTemple could not have served on active military duty from March 1, 2 0 0 7 through September 30, 2007, and also have served for "six months." The court m u s t credit the assertions made in the complaint, but both portions of DeTemple's s ta te m e n t cannot be simultaneously accepted "as true." Further, DeTemple does n o t provide specific dates for his duty, so the court cannot rectify the disparity by in c lu d in g only certain days from the months of March or September. However, the c o u rt must draw all inferences from the complaint in DeTemple's favor. T h e re are several interpretations of DeTemple's pleading statement that would a llo w his W F D L claim to be timely-filed. First, if the court tolls the statute of

lim ita tio n s period to account for active military duty from the first day of March until th e last day of September 2007 ­ as one interpretation of "March 2007 through S e p te m b e r 2007" ­ then the court must extend the filing period by 213 days. This c a lc u la tio n clearly renders DeTemple's claim timely-filed. Second, if the court tolls th e statute of limitations period for a period of six months, beginning on March 1, 2 0 0 7 , then the court must extend the filing period by 184 days (counting 31 days in M a rc h , 30 days in April, 31 days in May, 30 days in June, 31 days in July, and 31 d a ys in August) or 185 days (if counting September 1, 2007). Further, if the court s ta rts from September 29, 2007, as the end of the one-year limitations period and c o u n ts forward 184 days, DeTemple's claim is also timely-filed. Therefore, drawing

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a ll inferences from DeTemple's complaint in his favor, the court must reverse its e a rlie r finding and conclude that his W F D L claim is timely. Leica argues that DeTemple's failure to plead particular dates of active military s e rvic e dooms his WFDL claim because the statement appearing in his complaint is not "well pleaded" under Fed. R. Civ. P. 8 and fails to adequately establish tolling, w h ic h is his burden. However, the court will not stretch DeTemple's duty to establish a "short and plain statement" of his claim under Rule 8 to require him to plead s p e c ific dates of his military service or to affirmatively plead tolling of the statute of lim itatio n s . Rule 8 requires more than mere accusations, but does not require d e ta ile d factual allegations. Sharp Electronics Corp. v. Metropolitan Life Ins. Co., 5 7 8 F.3d 505, 512 (7th Cir. 2009) (citing Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2 0 0 9 )). Nor does it require a plaintiff to plead around affirmative defenses, such as a statute of limitations. See United States v. Northern Trust Co., 372 F.3d 886, 888 (7 th Cir. 2004). The court may dismiss a claim under Rule 12(b)(6) based on the s ta t u te of limitations, but only when the complaint itself sets forth "everything n e c e s s a ry to satisfy the affirmative defense." See Andonissamy v. Hewlett-Packard C o ., 547 F.3d 841, 847 (7th Cir. 2008). DeTemple's complaint does not meet this re q u ire m e n t because the period of active duty he pleads in the complaint sufficiently to lls the statute of limitations period. A fte r reconsideration, the court finds that DeTemple's WFDL claim is not tim e -b a rre d under the applicable statute of limitations. However, this does not mean

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h e may raise the claim before this court. The Eastern District of W is c o n s in is not the p ro p e r venue for DeTemple's claims because the forum selection clauses in the D is trib u tio n and Service Agreements between TPSG and Leica specify that all re la te d legal claims must be filed in Georgia. T h is court concluded in its original decision that the forum selection clauses a re enforceable, even if DeTemple's WFDL was timely-filed. (Order at 10). The c o u rt rejected DeTemple's arguments that the forum selection clauses must be set a s id e because they are unreasonable, unjust, and violate the strong public policy of p ro te c tin g dealers embodied in the W F D L . (Id. at 7-11). The court reiterates its u n c h a lle n g e d conclusion that enforcing a forum selection clause requiring a W F D L a c tio n to be heard in a Georgia court does not violate public policy. Therefore, the c o u rt will dismiss DeTemple's W F D L claim without prejudice pursuant to Fed. R. Civ. P . 12(b)(3). C O N C L U S IO N T h e allegations contained within the four corners of DeTemple's complaint are s u ffic ie n t to protect his W F D L claim against a motion to dismiss due to untimely filin g . However, the forum selection clauses appearing in the Distribution and

S e rvic e Agreements executed between TPSG and Leica require dismissal due to im p ro p e r venue. The court will grant DeTemple's motion to alter judgment as to the d is m is s a l with prejudice of Count I, his W F D L claim. Instead, the court will dismiss th e count without prejudice based on the enforceable forum selection clauses.

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A c c o r d in g ly , IT IS ORDERED that the plaintiff's motion to alter judgment (Docket #49) be a n d the same is hereby GRANTED; the court vacates that portion of its judgment d is m is s in g Count I with prejudice and dismisses Count I without prejudice. D a te d at Milwaukee, W is c o n s in , this 29th day of October, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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