Quad/Med Claims LLC v. Liberty Mutual Insurance Company

Filing 14

ORDER signed by Judge J P Stadtmueller on 1/9/13: denying 8 defendant's Motion to Dismiss; plaintiff's Amended Complaint to be filed no later than 5:00 PM on 1/28/13; counsel for the parties are directed to file a joint Rule 26 plan on or before 2/8/13; Scheduling Conference set for 2/13/13 at 9:00 AM in Courtroom 425, 517 E Wisconsin Ave., Milwaukee, WI 53202 before Judge J P Stadtmueller; denying as moot 13 plaintiff's Motion for Ruling. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
QUAD/MED CLAIMS, LLC,
Plaintiff,
v.

Case No. 12-CV-573-JPS

LIBERTY MUTUAL INSURANCE
COMPANY,
Defendant.

ORDER

Quad/Med Claims, LLC (Quad) originally filed its Complaint in this
matter on June 6, 2012, requesting that the Court declare that the defendant,
Liberty Mutual Insurance Company (Liberty), must reimburse Quad for
sums paid by Quad for injuries suffered by an individual while that
individual was covered by an ERISA plan administered by Liberty. (Compl.
(Docket #1)). Rather than answering Quad’s complaint, Liberty filed a Motion
to Dismiss for failure to state a claim. (Mot. Dism. (Docket #8)). The parties
have now fully briefed that motion, and the Court will render its decision
thereon.
1.

BACKGROUND
Liberty issued an insurance policy to Weather Shield Manufacturing,

Inc. (Weather Shield), which covered injuries sustained by Weather Shield’s
employees within the course and scope of their employment. (Compl. ¶ 5).1

1

For the purposes of providing background information, the Court will, as
it must in addressing a Rule 12(b)(6) motion to dismiss, accept and discuss all wellpled factual allegations as true. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir.
1991).

That policy was in effect on October 2, 2005, when Gary Borchardt, a
Weather Shield employee, was injured on the job. (Compl. ¶ 6). Mr.
Borchardt filed a worker’s compensation claim against Weather Shield,
seeking compensation for the injury he sustained. (Compl. ¶ 7). He settled
that claim, leaving open only the issue of medical expenses, which was to be
addressed by an Administrative Law Judge at a hearing to be held later.
(Compl. ¶ 7).
Before that hearing, Mr. Borchardt took a job with Quad Graphics, Inc.
(Compl. ¶ 9). At that time, he enrolled in the insurance plan offered by Quad
Graphics, which is administered by plaintiff Quad. While covered by Quad’s
plan, Mr. Borchardt received medical treatment, and submitted his medical
bills to Quad. (Compl. ¶ 10). Quad eventually paid $27,918.69 of Mr.
Borchardt’s medical bills. (Compl. ¶ 10). Quad claims that it did so because
it was unaware that Mr. Borchardt’s injuries may have arisen from the injury
sustained at Weather Shield, and thus those injuries would have been more
appropriately covered by Liberty. (Compl. ¶ 10).
After Quad had paid some of Mr. Borchardt’s medical expenses,
Administrative Law Judge Walter D. Thurow issued a decision on the
remaining issue of medical expenses. (Compl. ¶ 8, Ex. B). In his September
27, 2011 ruling, the ALJ made two relevant findings in that opinion: first, that
Mr. Borchardt’s injury arose out of his employment with Weather Shield;
and, second, that (with minor exceptions) all of Mr. Borchardt’s claimed
medical expenses arising after August 22, 2007, were a result of that injury.
(Compl. Ex. B at 14). As a result, the ALJ found “that the respondents
[Weather Shield and Liberty] are liable for the unpaid balances,” and

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demanded that Weather Shield and Liberty pay those unpaid balances within
21 days of the issuance of the opinion. (Compl. Ex. B at 14).
Quad was not a party to the ALJ’s hearing or decision, though, and
the ALJ did not demand that Liberty reimburse the expenses Quad had
previously paid for Mr. Borchardt’s medical treatment—despite the fact that
the ALJ had, essentially, found that Liberty should be responsible for all
expenses arising from Mr. Borchardt’s injury. (Compl. Ex. B).
Thus, Quad brought this suit against Liberty. Quad seeks that the
Court declare: (1) that the fees Quad paid for Mr. Borchardt are, in fact,
excluded from coverage under the plan it extended to him;2 (2) that Liberty
must reimburse Quad for the $27,918.69 Quad paid for Mr. Borchardt’s
treatment; and (3) declare that Quad is entitled to attorneys’ fees. (Compl.
¶ 13).
2.

DISCUSSION
Liberty filed a Motion to Dismiss this action, arguing that Quad’s

complaint fails to state a claim upon which relief can be granted. (Docket #8).
2.1

Motion to Dismiss Standard of Review

In deciding a motion to dismiss, the Court must accept all wellpleaded facts as true and draw all reasonable inferences in favor of the
plaintiff. King v. Spalding, 467 U.S. 69, 72 (1984). A plaintiff’s complaint will
survive a motion to dismiss so long as it “contains sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’”

2

Quad notes that the plan it extended to Mr. Borchardt expressly excluded
“Claims arising out of, or in the course of any occupation…or claims for which the
covered person is entitled to benefits under workers’ compensation…” (Compl.
¶ 11, Ex. A).

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Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-557 (2007)).
2.2

Substantive Analysis

Liberty makes several separate arguments as to why the Court must
dismiss this action. Distilled to its essentials, Liberty’s argument is simple:
Liberty argues that the Court lacks jurisdiction to hear this matter under the
ERISA statutes.
In its complaint, Quad invoked jurisdiction under 29 U.S.C.
§§ 1132(a)(3)(B) and (e)(1). (Compl. ¶ 3). The former section—29 U.S.C.
§ 1132(a)(3)(B)—is the pertinent one for understanding Liberty’s contention
that the Court lacks jurisdiction. That section allows “a participant,
beneficiary, or fiduciary,” to bring an ERISA suit in order “to obtain other
appropriate equitable relief.” 29 U.S.C. § 1132(a)(3)(B).
Riffing on that language, Liberty asserts that the relief Quad seeks is
neither “equitable” (Br. in Supp. (Docket #9) 4-5) nor “appropriate” (Br. in
Supp. 6–8). Thus, according to Liberty, the Court lacks jurisdiction to hear the
matter.
2.2.1

Equitable Nature of Relief Sought

As mentioned above, Quad seeks three separate declarations: first,
that Mr. Borchardt’s medical expenses are not covered by the Quad plan;
second, that Liberty must reimburse Quad for the medical expenses paid by
Quad; and, third, that Quad is entitled to attorneys’ fees. (Compl. ¶ 13).
Liberty argues that such relief is not “equitable” relief, as required
under 29 U.S.C. § 1132(a)(3)(B). (Br. in Supp. 5). Specifically, it asserts that the
relief Quad seeks is not truly equitable, but is instead substantively

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compensatory. (Br. in Supp. 5 (citing Providence Health Plan v. McDowell, 385
F.3d 1168, 1174 (9th Cir. 2004))).
Quad, on the other hand, argues that it seeks only declarations from the
Court, as opposed to a monetary judgment, and thus that its action qualifies
for jurisdiction under 29 U.S.C. § 1132(a)(3)(B). (Resp. 2-4).
Thus, the broad issue on this point is whether the relief sought by
Quad is, in fact, equitable.
Quad cites three cases in support of its contention that the relief it
seeks is equitable. (Resp. 2-4 (citing Winstead v. J.C. Penney Co., 933 F.2d 576
(7th Cir. 1991); Spitz v. Tepfer, 171 F.3d 443 (7th Cir. 1999); Bechen v. American
Guaranty and Liability Ins. Co., 289 F. Supp .2d 806 (W.D. Wis. 2003))). In the
first of those cases, Winstead, one insurance plan sued another, arguing that
the other should be liable for a child’s hospital expenses when both plans
were potentially liable. 933 F.2d at 577. The district court had originally
dismissed the action, holding that the trustees of the plaintiff plan did not
have standing as enforcing fiduciaries, as required by 29 U.S.C.
§ 1132(a)(3)(B). Winstead v. J.C. Penney Co., 740 F. Supp. 1358, 1362–63 (N.D.
Ill. 1990). The Seventh Circuit, however, reversed the district court, holding
that the plaintiff plan’s trustees were enforcing fiduciaries and, therefore, had
standing. Winstead, 933 F.2d at 578–79. The Seventh Circuit did not discuss
the equitable relief requirement of the statute; in fact, there had been no
payment of fees or any determination of final expenses when the Seventh
Circuit issued its decision. Id., at 577 (noting that the insured child had
incurred substantial medical bills, but that both plans refused to pay; further
noting that the ERISA action filed by the parents had not yet been decided).
Thus, there can be no question that, in Winstead, the plaintiff plan was

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seeking purely equitable relief: a declaratory judgment that the defendant
plan was responsible for the insured’s medical expenses.
In Spitz, the Seventh Circuit held that a suit fell under 29 U.S.C.
§ 1132(a)(3)’s “equitable remedies” requirement, when the plaintiff sought
declarations and injunctions regarding an ERISA retirement plan, an order
requiring repayment of a loan made under that plan, and an order for
attorneys’ fees. 171 F.3d at 446–47, 449–50.
Finally, in Bechen, the defendant insurance company removed the case
to the Western District of Wisconsin, asserting jurisdiction under 29 U.S.C.
§ 1132(a)(1)(B), which allows a plan beneficiary (in Bechen the plaintiff
insured) to bring suit “to recover benefits due to him under the terms of his
plan, to enforce his rights under the terms of the plan, or to clarify his rights
to future benefits under the terms of the plan.” 298 F. Supp. 2d at 807; 29
U.S.C. § 1132(a)(1)(B). The plaintiff sought an injunction requiring the
defendant company to pay his medical expenses; the defendant company
filed a cross-claim seeking a declaration that its plan did not cover the
plaintiff’s expenses. Bechen, 298 F. Supp. 2d at 807. The Court did not analyze
whether it had jurisdiction over the matter under 29 U.S.C. § 1132(a)(3)(B),
but nonetheless issued a declaration that the defendant insurance company
was not required to reimburse the plaintiff insured’s medical expenses and
simultaneously refused to issue an injunction directing payment of the
insured’s medical bills. Id., at 812.
The Court has also located a number of other cases that it believes
pertinent to this issue. In Mertens v. Hewitt Associates, 508 U.S. 248, 255 (1993),
and Harris Trust and Sav. Bank v. Provident Life and Acc. Ins. Co., 57 F.3d 608,
615–16 (7th Cir. 1995), the Supreme Court and the Seventh Circuit,

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respectively,

noted

that

restitution—but

not

compensatory

damages—qualifies as “equitable” relief under 29 U.S.C. § 1132(a)(3)(B).
However, “not all relief falling under the rubric of restitution is available in
equity.” Great-West Life Ins. Co. v. Knudson, 534 U.S. 204, 212 (2002). Rather,
only “equitable restitution”—ordinarily in the form of a constructive trust or
equitable lien on specific property or funds in a defendant’s possession—can
be properly viewed as an equitable remedy. Id. at 210 (stating that “where the
property sought to be recovered or its proceeds have been dissipated so that
no product remains, the plaintiff’s claim is only that of a general creditor, and
the plaintiff cannot enforce a constructive trust of or an equitable lien upon
other property of the defendant” and that, therefore, “for restitution to lie in
equity, the action generally must seek not to impose personal liability on the
defendant, but to restore to the plaintiff particular funds or property in the
defendant’s possession”); Sereboff v. Mid Atlantic Med. Servs., Inc., 547 U.S.
356, 362-63 (2006); Street v. Ingalls Memorial Hospital, 2007 WL 844619, *5-*6
(N.D. Ill. Mar. 15, 2007). Finally, it is clear from the case law of the Seventh
Circuit, the Ninth Circuit, and the Supreme Court, that the Court should
analyze the substance of the relief sought by Quad, here, to determine the
nature of the relief it seeks. See, e.g., Mertens, 508 U.S. at 255-57; Harris Trust,
57 F.3d at 615-16; Providence Health Plan, 385 F.3d at 1174 (quoting Westaff
(USA) Inc. v. Arce, 298 F.3d 1164, 1166 (9th Cir. 2002); Watkins v. Westinghouse
Hanford Co., 12 F.3d 1517, 1528 n.5 (9th Cir. 1993), cert. denied, 537 U.S. 1111,
123 S.Ct. 901 (2003); also citing Knudson, 534 U.S. at 214).
With this background in mind, the Court can formulate several more
specific issues to help guide its analysis of the nature of the relief sought by
Quad. First, the Court should determine whether Quad seeks equitable

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restitution; if it does, then the relief sought is equitable and the Court has
jurisdiction over this matter. If not, then the Court should turn to the second
question: whether, analyzing the substance of Quad’s claim for relief, the
Court can conclude that such relief constitutes purely declaratory relief such
that the Court should deem it to be equitable relief, and thus to find it has
jurisdiction to hear this matter.
As to the first question, Quad is not seeking restitution and, therefore,
the Court does not have jurisdiction over this matter on that basis. Quad
seeks a general declaration that Liberty owes it money. (Compl. ¶ 13). It does
not seek that money from any specific fund operated by Liberty, nor does it
seek any specific property from Liberty. Accordingly, under Knudson and
Sereboff, the Court cannot term the relief that Quad seeks to be “equitable
restitution.” Knudson, 534 U.S. at 210; Sereboff, 547 U.S. 362–63. Moreover,
even if the Court were to allow Quad to amend its complaint on this matter,
Quad would not be able to limit the source of the money it seeks because, in
fact, Liberty never accepted any payments from Quad. The sums paid by
Quad went to Mr. Borchardt’s medical providers, as opposed to Liberty.
Thus, for all of these reasons, the Court must conclude that Quad does not
seek equitable relief in the form of restitution from Liberty.
Turning to the second question, the Court is obliged to determine that,
after analyzing the substance of Quad’s claim for relief, Quad seeks
compensatory damages as opposed to equitable relief. Though they may
caption that relief as seeking a declaration, its compensatory nature is
inescapable. The Court can see no substantive difference between a demand
by Quad for $27,918.69 and a demand for a declaration that Liberty owes
$27,918.69 to Quad. Both effectuate the same purpose: a Court-issued

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judgment that Quad will use to obtain money from Liberty. Thus, the Court
views Quad to be seeking relief other than equitable relief.
Moreover, the cases cited by Quad are all distinguishable from the
facts at hand. The Winstead parties sought a declaration regarding which
insurance plan would be required to pay medical expenses; neither party
sought monetary relief. 933 F.2d at 579. In Bechen, the court did not even
address the jurisdictional aspect of ERISA. 298 F. Supp. 2d at 807. Spitz, on
the other hand, presents a closer (though ultimately distinguishable) case. In
that case, the Seventh Circuit classified as equitable relief a plaintiff’s demand
for declarations and injunctions regarding an ERISA retirement plan, an
order requiring repayment of a loan made under that plan, and an order for
attorneys’ fees. 171 F.3d at 446–47, 449–50. What ultimately distinguishes that
case is the nature of the relief sought, which was predominantly equitable:
the plaintiff in Spitz sought five separate declarations and an injunction in
addition to his request for immediate repayment of a loan and attorneys’
fees. 171 F.3d at 446–47. The only arguably non-equitable claim for relief in
that case is the demand for repayment of $48,000, which is distinguishable
from the demand in this case because it hews much closer to equitable
restitution form of relief discussed in Knudson, 534 U.S. at 210, and Sereboff,
547 U.S. 362–63.
Thus, having found that Quad’s requested relief is substantively legal,
as opposed to equitable, the Court is obliged to determine that it lacks
jurisdiction to hear this matter under 29 U.S.C. § 1132(a)(3).
Finally, before turning to the remainder of its analysis, the Court must
note that the parties’ respective positions made the Court’s decision on
jurisdiction a very difficult one. It does, indeed, seem that Quad is getting the

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short end of the stick here: it dutifully paid out benefits for an insured only
to find out later that another plan should have been held responsible. But
then, as discussed above, it sought essentially monetary relief while
attempting to couch that relief in equitable terms. Thus, while the Court
sympathizes with Quad, the Court certainly cannot accept jurisdiction over
this non-equitable suit nor can the Court condone the semantic acrobatics
employed by Quad in an attempt to have this suit fall under ERISA’s circus
tent of jurisdiction.
2.2.2

Appropriateness of Relief

Having already determined that Quad’s action is not for equitable
relief, the Court need not address Liberty’s argument. Because the action is
not for equitable relief, the Court cannot have jurisdiction over the matter
under 29 U.S.C. § 1132(a)(3) regardless of the “appropriateness” of that relief.
2.2.3

Jurisdiction Under the Federal Declaratory Judgment
Act and 28 U.S.C. § 1331

Quad argues, in the alternative, that, if jurisdiction does not lie under
ERISA, then the Court should find jurisdiction pursuant to the Declaratory
Judgment Act, 28 U.S.C. § 2201, and subject matter jurisdiction, 28 U.S.C.
§ 1331. (Resp. 4–5 (citing GB Battery Techs. v. Gould, Inc., 65 F.3d 615 (7th Cir.
1995))).
As a general rule, the Court agrees that ERISA claims may fall under
the Court’s subject matter jurisdiction, under 28 U.S.C. § 1331, if they do not
fall under ERISA’s jurisdictional provisions, 29 U.S.C. § 1132(a)(3). The
Seventh Circuit has acknowledged that “section 1331 would provide a
suitable remedy…were it necessary to plug a hole in ERISA’s jurisdictional
provisions.” Winstead, 933 F.2d at 580 (citing Northeast Dept. ILGWU Health
& Welfare Fund v. Teamsters Local Union No. 229 Welfare Fund, 764 F.2d 147,
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154–59, 164–66 (3d Cir. 1985); Airco Industrial Gases, Inc. v. Teamsters Health &
Welfare Pension Fund, 850 F.2d 1028, 1033 and n. 5 (3d Cir. 1988); Provident Life
& Accident Ins. Co. v. Waller, 906 F.2d 985, 988–91 (4th Cir. 1990)); see also
Connors v. Amax Coal Co., 858 F.2d 1226, 1229–30 (7th Cir. 1988) (implying
subject matter jurisdiction is possible in stating “[t]o establish a cause of
action in district court under section 1331, the trustees must show first that
their action against Amax ‘arises under’ ERISA or federal common law and
second that section 1331 jurisdiction is not preempted by a more specific
statutory provision conferring exclusive jurisdiction elsewhere”). In Winstead,
the Seventh Circuit determined there was no need to invoke subject matter
jurisdiction in that case, because it found that ERISA’s jurisdiction would
cover the situation under consideration. Winstead, 933 F.2d at 580 (“we do not
think [invocation of section 1331] is necessary; there is no hole. We do no
semantic violence to section 1132(a)(3) when we interpret it to allow [the
form of suit brought by the plaintiffs]”).
Nonetheless, if Quad can establish that its action “arises under” ERISA
or federal common law and that the action is not preempted by a more
specific statutory provision conferring exclusive jurisdiction elsewhere, then
the Court has jurisdiction subject matter jurisdiction. Connors, 858 F.2d at
1229–30. And, as the Winstead court wrote in dicta, “virtually every suit
relating to an ERISA plan…can be said to arise under federal law, and hence
to be within the jurisdiction of the federal courts by virtue of section 1331.”
933 F.2d at 579. This suit is certainly related to an ERISA plan, and,
accordingly, arises under federal law. Id.; Jones v. State Wide Aluminum, Inc.,
246 F. Supp. 2d 1018, 1027 (N.D. Ind. 2003) (citing Winstead, 933 F.2d at 579,
581; Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96–97 (1983)).

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Such a finding carries with it the strong potential for abuse: that is, if
there is no jurisdiction under 29 U.S.C. § 1132(a)(3)(B), it would seem that
there would always be jurisdiction under 28 U.S.C. § 1331, so long as an
ERISA plan is involved. In other words, the meaning of 29 U.S.C.
§ 1132(a)(3)(B) may become meaningless. If any ERISA-plan-related suit
could be litigated under 28 U.S.C. § 1331, there would be no reason for 29
U.S.C. § 1132(a)(3)(B)’s limitations on parties and remedies to exist; any party
could bring a suit for any form of relief under 28 U.S.C. § 1331, so long as an
ERISA plan was involved.
But the Seventh Circuit considered this potential in Winstead and
determined that, nonetheless, the Court’s subject matter jurisdiction may
“plug” the holes in ERISA’s jurisdictional provisions. The Court has found
a hole here, having determined that it lacks ERISA jurisdiction over the
matter. Accordingly, the Court determines that it is appropriate to fill that
hole using its 28 U.S.C. § 1331 subject matter jurisdiction.
3.

CONCLUSION
Having determined that the Court has jurisdiction over this matter

under its subject matter jurisdiction, 28 U.S.C. § 1331, it will direct Quad to
file an amended complaint that reflects this new basis for jurisdiction.
Furthermore, because jurisdiction lies under 28 U.S.C. § 1331, there is no
need for Quad’s relief to be limited to purely equitable relief. Accordingly,
Quad should re-caption its relief sought to reflect precisely that which it
seeks: (1) a declaration holding that the expenses paid by Quad are excluded
from Quad’s plan; and (2) a monetary award of $27,918.69 against Liberty.
Attorneys’ fees, as initially sought by Quad, will not be available under 29

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U.S.C. § 1132(g), because this action will no longer be “under” the ERISA
subchapter, it instead falling under 28 U.S.C. § 1331.
Despite denying Liberty’s Motion to Dismiss, the Court should note
that it is ultimately skeptical of the likelihood of Quad prevailing on its
claims. As Liberty points out in its briefs in support of its Motion to Dismiss,
the ALJ’s prior determination seems as if it will not conclusively establish
that Liberty is responsible for the fees paid by Quad. (Br. in Supp. 6–7; Reply
2–3). The ALJ’s decision ordered that Liberty pay only the “unpaid balance”
of Mr. Borchardt’s medical expenses, whereas those expenses claimed by
Quad were, indeed, paid and thus do not seem to be covered by the ALJ’s
decision. (Compl. Ex. B at 14). Moreover, the ALJ stated that his decision was
“based on testimony at the hearing and all of the Exhibits submitted”; it is
unclear that the parties submitted any evidence to the ALJ relating to the
claims paid for by Quad. (Compl. Ex. B at 13–14). In fact, Quad was not even
a party to the ALJ’s hearing and decision. Thus, evidence on the claims paid
by Quad very well may not have been before the ALJ. Nonetheless, the Court
must accept all well-pleaded facts as true. King, 467 U.S. at 72. Thus, based
upon Quad’s well-pleaded fact that the ALJ ruled that Mr. Borchardt’s
medical expenses arising after August 22, 2007, arose from the Weather
Shield incident, the Court must conclude that those claims are plausible on
their face. Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555-557). If,
however, Liberty is able to produce evidence in discovery that the ALJ lacked
any evidence on which it could determine that the Quad-paid claims
stemmed from the Weather Shield incident, the Court may very well have to
conclude that the ALJ’s decision lacks any precedential effect on which the
Court could base an award against Liberty.

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Finally, the Court notes that it is in receipt of Quad’s Motion for
Ruling (Docket #13), which seeks that the Court rule on Liberty’s Motion to
Dismiss. The Court acknowledges that Liberty’s motion has been outstanding
for quite some time, as it was fully briefed as of September 6, 2012. (Mot. for
Ruling ¶ 3). But Quad should understand that the Court is quite busy with
its many other cases; instead of filing a motion, Quad could have called the
Court’s chambers to get an update on this matter. Had it done so, Quad
likely would have learned that this matter was in the process of being
addressed. Nonetheless, with this order, the Court now provides the parties
with that which Quad sought with its Motion for Ruling. As such, the Court
will deny that Motion for Ruling as moot.
Accordingly,
IT IS ORDERED that defendant Liberty Mutual Insurance
Company’s Motion to Dismiss (Docket #8) be and the same is hereby
DENIED;
IT IS FURTHER ORDERED that plaintiff Quad/Med Claims, LLC,
shall, not later than January 28, 2013, at 5:00 p.m., file with this Court an
Amended Complaint embodying the Court’s above-discussed changes;
IT IS FURTHER ORDERED that, in order that this case move
forward in a timely manner, counsel for the parties are directed to file a joint
Rule 26 plan on or before February 8, 2013; such report to include cutoff
dates within which to complete various pretrial tasks in order that this case
be concluded before November 1, 2013, including trial, if necessary.
The Court will then hold a scheduling conference in this matter on
February 13, 2013, at 9:00 a.m., in Room 425 of the Federal Courthouse, 517
E. Wisconsin Ave., Milwaukee, Wisconsin. To accommodate counsel’s

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schedule, appearance may be made by telephone; however, neither cell
phones nor calls made over a speaker phone may be used, as both
technologies are incompatible with the Court’s sound/teleconferencing
equipment. The Court will initiate the call. Therefore, if appearing by
telephone, counsel must notify the Court, in advance, of the direct number
at which they may be reached; and
IT IS FURTHER ORDERED that plaintiff Quad/Med, LLC’s Motion
for Ruling (Docket #13) be and the same is hereby DENIED as moot.
Dated at Milwaukee, Wisconsin, this 9th day of January, 2013.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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