Lenz v. Robert W Baird & Co Incorporated

Filing 20

ORDER Denying Motion for Leave to File Unauthorized Motion 3 , Granting Motion to Dismiss 6 , Denying Motion for Leave to File and Receive Notices Electronically 11 , Denying Motions for Judicial Notice 12 13 and 14 ; and Denying Motion for Sanctions 16 . Signed by Judge Charles N Clevert, Jr on 2/16/17. Copy of order sent via US Mail to Michael Lenz. (cc: all counsel) ((kwb), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL LENZ,
Plaintiff,
v.

Case No. 16-C-0977

ROBERT W. BAIRD & CO. INC.,
Defendant.
ORDER DENYING MOTION FOR LEAVE TO FILE UNAUTHORIZED MOTION (DOC.
3), GRANTING MOTION TO DISMISS (DOC. 6), DENYING MOTION FOR LEAVE TO
FILE AND RECEIVE NOTICES ELECTRONICALLY (DOC. 11), DENYING MOTIONS
FOR JUDICIAL NOTICE (DOCS. 12, 13, 14), AND DENYING MOTION FOR
SANCTIONS (DOC. 16)
Michael Lenz sues Robert W. Baird & Co. for damages relating to payment of funds
from his Individual Retirement Account to the United States Treasury and Baird’s issuance
of a form 1099R regarding those funds. Lenz asserts that Baird violated the Fourth and
Fifth Amendments, 26 U.S.C. § 72(t)(2)(A)(vii), and 26 U.S.C. § 7434. He also filed several
motions which remain pending. Meanwhile, Baird asks that this case be dismissed. All of
the motions are addressed below.
MOTION FOR LEAVE TO FILE A MOTION FOR EVIDENCE OF AUTHORITY
Lenz’s first motion is for leave, under Civil L.R. 7(i),1 to file a “Verified Motion for
Admissible Evidence of Authority.” The motion he wishes to file (located at Doc. 3-1) seeks
an order directing the clerk of court to “obtain and enter into the record authenticated
copies” of this judge’s oath of office, commission under seal, and designation and
assignment order. The theory underlying the motion is that the undersigned judge lacks
1

Civil L.R. 7(i) provides that “[a]ny paper, including any m otion . . . not authorized by the Federal Rules
of Civil Procedure, these Local Rules, or a Court order m ust be filed as an attachm ent to a m otion requesting
leave to file it. If the Court grants the m otion, the Clerk of Court m ust then file the paper.”

authority to decide this case because of his senior status. Lenz points to, among other
statutes, 28 U.S.C. § 132(b), which states that each district court consists of judges in
regular active service.
This judge’s commission was signed on July 29, 1996, and he began regular active
service on July 31, 1996, after taking the oath of office, through October 31, 2012, when
he took senior status.
Title 28 U.S.C. § 371(b) (emphasis added) provides that any federal judge “may
retain the office but retire from regular active service” after meeting certain age and service
requirements. Title 28 U.S.C. § 294(b) provides that any federal judge who has retired from
regular active service is known as a “senior judge” and “may continue to perform such
judicial duties as he is willing and able to undertake, when designated and assigned.” No
retired judge shall perform judicial duties except when designated and assigned. § 294(e).
“Senior judges are fully commissioned Article III judges, and the Supreme Court has
expressly held that upon assuming senior status, a senior judge ‘does not surrender his
commission, but continues to act under it.’” Williams v. Decker, 767 F.3d 734, 743 (8th Cir.
2014). This is so, notwithstanding that a successor (Hon. Pamela Pepper) to this judge has
been appointed to the district court bench. See § 371(d); see also United States v. Teresi,
484 F.2d 894, 898 (7th Cir. 1983) (“We deem it irrelevant for this purpose that Judge Perry
is a senior judge, who had retired from regular active service under 28 U.S.C. § 371(b). For
the period in question Judge Perry was designated and assigned by the chief judge of the
circuit to perform the duties of district judge in the northern district of Illinois. ‘[J]urisdiction
is lodged in a court, not in a person. The judge, exercising the jurisdiction, acts for the

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court.’ . . . In any particular matter, Judge Perry could exercise the jurisdiction of the court
to the same extent as any judge in regular active service.” (citation omitted)).
This judge met the required age and service requirements and chose to take senior
status as of November 1, 2012. Otherwise, the undersigned judge has executed all of his
judicial duties, with the appropriate approvals. Each year, Chief Judge Diane Wood has
designated and assigned this judge to continue performing judicial duties. Interestingly,
after this case was filed, Lenz wrote to Eastern District of Wisconsin Chief Judge Griesbach
questioning the authority of the undersigned judge and was advised by him that this judge
is authorized to handle this case.
As this senior judge maintains authority to act in assigned cases, the clerk of court
will not be required to obtain and docket authenticated copies of the materials that Lenz
seeks. Hence, the motion for leave to file a motion seeking such authentication will be
denied.
MOTIONS FOR JUDICIAL NOTICE
Next, for consideration are three motions asking the court to take judicial notice of
“adjudicative facts of law” under Fed. R. Evid. 201. Rule 201 governs judicial notice of
“adjudicative fact[s]” and provides that the court may take judicial notice of “a fact that is not
subject to reasonable dispute” because it is either generally known within the court’s
jurisdiction or “can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(a), (b).
However, the matters that Lenz wishes the court to notice are not facts. The court
may take judicial notice of facts such as whether February 14, 2017, is Valentine’s Day, or
whether the federal courthouse in which this judge sits is in Milwaukee, Wisconsin. Here,
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Lenz requests the court to judicially notice his interpretations of law. For instance, in one
motion Lenz asks the court to take judicial notice that the terms “internal revenue tax” and
“taxpayer” have particular meanings.2 (Doc. 12.) Another motion, seeks judicial notice that
“the legislative term of art ‘trade or business’ is limited to the class of activity related only
to the performance of functions of a federal public office to the exclusion of all other classes
of activity” and that Congress was granted exclusive legislative power over the District of
Columbia. (Doc. 13 at 1–2.) Lenz argues that the plain text of definitions in Title 26 of the
United States Code, rules of statutory construction, and Supreme Court case law have
limited the term “trade or business” as he contends. He bases his arguments on several
things, including legal maxims. (See, e.g., Doc. 13 at 5, 11–13; Doc. 14 at 3, 6, 7.) And
he submits that Congress has no legislative jurisdiction within the boundaries of the several
states. (See, e.g., Doc. 14 at 6–7.)
The meaning of statutory terms is a matter of law, not fact. Lenz’s references to the
court’s need to review legislative history, Supreme Court case law, and the Internal
Revenue Code of 1986 for support of his interpretations (see, e.g., Doc. 12 at 5; Doc. 13
at 6, 7–8) highlight that pending requests for judicial notice invite legal interpretations.
References to “adjudicative facts of law” (emphasis added) throughout the motions for
judicial notice confirm that Lenz’s requests extend beyond the “adjudicative facts” governed
by Rule 201 to legal interpretations. Thus, these motions will be denied.

2
Lenz argues that “internal revenue tax” m eans a tax levied upon objects of interstate com m erce, not
incom e, and that a taxpayer is restricted to those liable for a tax on objects in his or her possession. (See
Doc. 11 at 3–5.)

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BAIRD’S MOTION TO DISMISS AND LENZ’S MOTION FOR SANCTIONS
Pursuant to Fed. R. Civ. P. 12(b)(6), Baird moves to dismiss the case. A Rule
12(b)(6) motion challenges the sufficiency of the complaint to state a claim upon which
relief may be granted. See Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6)
motion, the court must construe the complaint in the light most favorable to the plaintiff,
accepting as true all well-pleaded facts and drawing all possible inferences in the plaintiff’s
favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
Rule 12(b)(6) requires a plaintiff to clear two hurdles with his or her complaint. EEOC
v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007). First, the complaint
must describe the claim in sufficient detail to give a defendant fair notice of the claim and
the grounds on which it rests. Id. Baird does not contend that the complaint fails this
requirement.
Second, the complaint must set forth a claim that is plausible on its face. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007); St. John’s United
Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007). The “allegations
must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a
‘speculative level’; if they do not, the plaintiff pleads [himself] out of court.” EEOC, 496 F.3d
at 776 (citing Bell Atl. Corp., 550 U.S. at 555-56, 569 n.14 (2007)). As for this requirement,
Baird contends that even if Lenz’s allegations are true, the complaint fails to state a
plausible claim and that Lenz has pleaded himself out of court.
The complaint asserts that Baird managed Lenz’s assets and had a fiduciary duty
of reasonable care regarding those assets. (Doc. 1 at 3–4.) An exhibit attached to the
complaint indicates those assets were in an Individual Retirement Account (IRA) ending in
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8492. (Doc. 1 Ex. 2 at 1.) In a letter dated October 20, 2014, Baird informed Lenz that it
had received a notice directing it to seize and transfer money from Lenz’s account. (Doc.
1 at 4.) An attachment to the complaint indicates that Baird provided Lenz a copy of that
document titled “Taxpayer’s Copy of Notice of Levy” which had been sent to Baird by the
Department of the Treasury—Internal Revenue Service. (Doc. 1 at 4–5, Ex. 2 at 1; Doc.
7 Ex. 1.) The notice of levy indicated that it was issued by the IRS to collect money owed
by Lenz in the amount of $7064.50 and that even though the IRS had given required notice
and demand, Lenz had not paid the amount owed. (Doc. 7 Ex. 1.3) The notice of levy did
not contain any seal, warrant, verification, written delegation of authority from a person in
an office established by Congress, or judicial directive. (Doc. 1 at 4.)
Lenz responded with a notice of intent to file suit against Baird. (Doc. 1 at 4–5, Ex.
2.) Nevertheless, Baird issued a check dated November 11, 2014, payable to the United
States Treasury in the amount of $7064.50. (Doc. 1 at 5.) The check was issued without
Lenz’s consent and without evidence that a court issued a writ of attachment or warrant.
(Id.)
Further, the complaint charges that Baird withheld an additional $784.94, labeled as
“FED W/H PRE-DIST” on the check summary, purportedly under the authority of 26 U.S.C.
§ 72(t)(1). Lenz contends that § 72(t)(1) applies only to taxpayers and that Baird had no
3
Baird presented a copy of the notice of levy with its m otion to dism iss. Docum ents subm itted with
a m otion to dism iss m ay be considered part of the pleadings if they are referred to in the plaintiff’s com plaint
and are central to a claim . 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002); see also Tierney
v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002). This rule prevents parties from surviving a m otion to dism iss by
artful pleading or by failing to attach relevant docum ents to the com plaint. 188 LLC, 300 F.3d at 735. The
exception is narrow; it is generally aim ed at situations in which a plaintiff quotes from a docum ent or the case
requires interpretation of an unattached contract. Tierney, 304 F.3d at 738. “It is not intended to grant litigants
license to ignore the distinction between m otions to dism iss and m otions for sum m ary judgm ent . . . .”
Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998). Here, the com plaint and its attachm ents reference
the notice of levy, and the notice of levy is central to Lenz’s claim s. Therefore, the court will consider it. Lenz
agrees that consideration of the notice of levy is proper because the notice of levy is referenced in several
paragraphs of his com plaint. (Doc. 15 at 2 n.4.)

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evidence that he was a taxpayer as defined in tax laws. (Doc. 1 at 6.) Further, according
to the complaint, even if Lenz was a taxpayer, § 72(t)(2)(A)(vii) provides that the ten-percent
tax on an early distribution shall not apply to distributions made on account of a levy. (Id.)
Finally, the complaint asserts that Baird disclosed Lenz’s private (and protected)
financial information on a Form 1099R without his authorization or a warrant. (Doc. 1 at 8.)
The 1099R reported that Baird paid Lenz the amounts of $7064.50 and $784.94 even
though the payments were made to the United States Treasury. (Doc. 1 at 8.) Lenz
objected to the 1099R filing in a letter sent to the Department of Treasury on April 11, 2015.
However, the Department of the Treasury did not correct the filing or return the $784.94.
(Doc. 1 at 8.) Moreover, Baird declined Lenz’s July 2016 offer to cure the issue. (Doc. 1
at 9, Exs. 3, 4.)
The Wisconsin Department of Revenue used the 1099R information to assess an
income tax of $418.00 on the payment of $7064.50 and a thirty-three percent penalty of
$259 on the $784.94. (Doc. 1 at 9.) The Wisconsin Department of Revenue has not
abated its assessments. (Doc. 1 at 9.)
In an attachment to the complaint, Lenz declares that he is an American citizen born
within the boundaries of Ohio, is domiciled within the boundaries of Wisconsin, and has not
and does not work for any federal or state government. Further, to the best of his
knowledge, he has not been involved in any activity that has been made the subject of a
tax, his property is not “under the administrative jurisdiction” of the federal or any state
government, he is not subject to an internal revenue tax, he received payments only from
private-sector entities or persons, and the Social Security Administration assigned a
number to him before he attained the legal age to consent to it. (Doc. 1 Ex. 1 at 1–2.)
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According to the complaint, Baird’s actions violated the Fourth and Fifth
Amendments, 26 U.S.C. § 72(t)(2)(A)(vii), and 26 U.S.C. § 7434.
A.

Count One: payment of the $7064.50
Title 26 U.S.C. § 6331(a) provides that the federal government may collect taxes of

a delinquent taxpayer “by levy upon all property and rights to property . . . belonging to such
person.” The complaint and various motions and briefs in this case indicate that Lenz
challenges the IRS’s imposition of the levy. Lenz, interpreting the law as he sees it,
contends that he is not a taxpayer and owed no taxes.
But Lenz has brought this case against Baird, a mere custodian or trustee of his
funds. However, Baird is protected by statute against liability to Lenz for complying with the
IRS’s notice of levy. Lenz’s right to liquidate his IRA and withdraw funds from it, even if
subject to an interest penalty, constituted a right to property subject to the IRS’s levy power
under § 6331(a). Kane v. Capital Guardian Tr. Co., 145 F.3d 1218, 1223 (10th Cir. 1998).
It was not up to Baird to challenge the propriety of the IRS’s levy on that right to property.
Instead, 26 U.S.C. § 6332(a) required Baird to comply with the IRS’s direction to hand over
Lenz’s assets: “any person in possession of . . . property or rights to property subject to
levy upon which a levy has been made shall, upon demand of the Secretary, surrender
such property or rights . . . to the Secretary.” Had Baird not complied, it faced liability and
a possible fifty-percent penalty. § 6332(d). And importantly, the statute protects a third
party complying with a levy from liability regarding handing the property over to the IRS or
United States Treasury:
[a]ny person in possession of (or obligated with respect to) property or rights
to property subject to levy upon which a levy has been made who, upon
demand by the Secretary, surrenders such property or rights to property (or
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discharges such obligation) to the Secretary . . . shall be discharged from any
obligation or liability to the delinquent taxpayer and any other person with
respect to such property or rights to property arising from such surrender or
payment.
§ 6332(e).
In his complaint, Lenz admits that Baird held his assets or right to assets at the time
it received a notice of levy from the IRS and that Baird turned over to the IRS an amount
from his IRA equal to the amount on the notice of levy. The notice of levy identified Lenz
as a taxpayer (Doc. 7 Ex. 1), and Baird was not required to determine whether the IRS was
correct in that identification as far as compliance with the levy was concerned. However,
Baird could not challenge the validity of the levy. See Moore v. Gen. Motors Pension Plans,
91 F.3d 848, 851 (7th Cir. 1996). A financial institution “served with a notice of levy has
two, and only two, possible defenses for failure to comply with the demand: that it is not
in possession of property of the taxpayer, or that the property is subject to a prior judicial
attachment or execution” United States v. Nat’l Bank of Commerce, 472 U.S. 713, 727
(1985); Moore, 91 F.3d at 851. Contrary to Lenz’s belief, the administrative levy created
in § 6331 typically does not require any judicial intervention or approval. See Nat’l Bank of
Commerce, 472 U.S. at 720. And an individual’s challenge to the validity of the levy does
not alter the institution’s obligation to comply with it. Moore, 91 F.3d at 851.
Moreover, regardless of whether the levy served on Baird was valid, Baird is immune
from liability to Lenz. Whether Lenz is a “taxpayer” as statutorily defined makes no
difference regarding Baird’s protection against liability to Lenz. Section 6332(e) discharges
liability to the taxpayer as well as “any other person with respect to such property or rights

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to property arising from such surrender or payment.” Thus, Baird is absolved from any
liability for turning the $7064.50 over to the United States Treasury.
Lenz contends that Baird’s argument is based on an affirmative defense, which
cannot be decided on a Rule 12(b)(6) motion to dismiss. While the existence of a potential
affirmative defense generally does not render a claim invalid, dismissal is permitted when
the complaint’s allegations set forth everything necessary to establish the affirmative
defense. Hyson USA, Inc. v. Hyson 2U, Ltd., 821 F.3d 935, 939 (7th Cir. 2016). In other
words, the court may grant a Rule 12(b)(6) motion when the plaintiff affirmatively pleads
himself out of court. Id. Here, Lenz pleaded himself out of court. The allegations in his
complaint and its attachments, plus the notice of levy submitted by Baird, indicate that Baird
was required to comply with the IRS levy and is absolved of liability by § 6332(e).
Consequently, Baird is entitled to dismissal of count one regarding its payment of $7064.50
to the IRS.
B.

Count Two: payment of the $784.94
Regarding the $784.94 apparently distributed and paid as withholding for taxes on

the $7064.50 distribution, the complaint and attachments indicate that the assets Baird held
on Lenz’s behalf were in an IRA. Title 26 U.S.C. § 72(t)(1) provides that early distributions
from qualified retirement plans cause the imposition of an additional tax equal to ten
percent of the amount included in gross income.

However, the ten-percent early-

distribution penalty does not apply to distributions made on account of a levy under 26
U.S.C. § 6331 on the qualified retirement plan. § 72(t)(2)(A)(vii). This court cannot tell from
the allegations in and documents attached to the complaint whether the $784.94
constituted regular withholding on pretax contributions to and earnings of the IRA or was
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a ten-percent penalty that may have unnecessary pursuant to § 72(t)(2)(A)(vii). (Baird’s
brief suggests that the amount was, indeed, a ten-percent penalty.) However, the court
must construe Lenz’s pro se complaint liberally. Haines v. Kerner, 404 U.S. 519, 520-21
(1972). Lenz alleges that the amount included the latter, and the court must take those
allegations as true. Baird may have paid to the IRS on Lenz’s behalf a ten-percent penalty
on the $7064.50 distribution even though the penalty should not have been assessed.
Nevertheless, it finds that the discharge of liability in § 6332(e) extends to this
amount, too. Section 6332(e) discharges any person in possession of property subject to
levy (here, Baird, which held the $7064.50) who surrenders that property (which Baird did)
from any obligation or liability to the taxpayer or other person “arising from such surrender
or payment.” The additional payment of money from Lenz’s account to the IRS to cover a
ten-percent penalty under § 72(t) arose from the distribution required by the notice of levy.
“Arise” generally means to originate from or occur as a natural consequence of a particular
source. New Lexicon Webster’s Dictionary of the English Language 50 (1989). Here, the
term should be read broadly. IRA trustees in receipt of a notice of levy or other demand
from the IRS should not have to risk lawsuits from depositors if they err when deciding
whether to pay the ten-percent penalty from IRA funds.
To the extent that Baird may have breached some account agreement with Lenz
regarding an improper additional distribution to pay the ten-percent penalty, Lenz has
disclaimed in his complaint any contract claim. Although Lenz admits that a contract
between Baird and him exists, he asserts that his causes of action in the complaint “do not
arise from that contract or agreement.” (Doc. 1 at 4.) Lenz points only to § 72(t)(2)(A)(vii),
and in his opposition brief does not highlight any basis for suing Baird for an error in
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determining whether a ten-percent penalty under § 72(t) applied. Thus, Baird has shown
that dismissal is warranted with regard to count two of the complaint.
C.

Count Three: issuance of the 1099R
In count three of the complaint Lenz asserts that Baird willfully filed a fraudulent

1099R in violation of 26 U.S.C. § 7434. Section 7434(a) creates a damages cause of action
by a victim against a person who “willfully files a fraudulent information return with respect
to payments purported to be made” to the victim.4 However, the complaint and attachments
establish that Baird has no liability respecting the 1099R. Baird, as the trustee of the IRA
funds, had to comply with 26 C.F.R. § 1.408-7, which requires the trustee of an IRA to file
a Form 1099R regarding a distribution. As indicated above, Baird had no choice but to, and
did, distribute the $7064.50 to the United State Treasury. Thus, inclusion of that amount
on the 1099R cannot have created liability under § 7374(a), as the filing of the form was
correct. See Cavoto v. Hayes, No. 08 C 6957, 2010 WL 2679973, *4 (N.D. Ill. July 1, 2010)
(“‘To create an actionable claim under 26 U.S.C. § 7434, the information return must . . .
be, among other things, inaccurate.’”). Similarly, the $784.94 also was distributed from the
IRA, so the filing was not fraudulent. Whether that amount was rightly or wrongly distributed
does not factor in. The amount was distributed, so the 1099R was correct. (Further, even
if distribution of that amount occurred in error, Lenz fails to assert any facts suggesting that
Baird made that error with a willful intent to harm him by filing a fraudulent 1099R.)

4

The parties presum e that a 1099R constitutes an “inform ation return” for purposes of § 7434, but that
m ay not be the case. Section 7434(f) lim its the section to only the nine inform ation returns listed in 26 U.S.C.
§ 6724(d)(1)(A). § 7434(f); Cavoto v. Hayes, 634 F.3d 921, 924 (7th Cir. 2011). Based on a quick review by
the court, Form 1099R appears to be required by 26 U.S.C. § 408(i) and/or 26 U.S.C. § 6047, neither of which
is listed in § 6724(d)(1)(A). However, as the parties did not address this issue and the claim m ust be
dism issed even if a 1099R qualifies as an inform ation return for purposes of § 7434, the court will not expend
further tim e on it.

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Lenz contends that the 1099R attributing payments to him was fraudulent because
Baird actually paid the money from the IRA to the United States Treasury. (See Doc. 1 at
8.) However, upon levy the United States Treasury stood in the shoes of Lenz. Nat’l Bank
of Commerce, 472 U.S. at 725. Baird paid the money to the United States Treasury on
behalf of Lenz; the effect of honoring the levy was the same as if Baird had honored a
request by Lenz for a withdrawal of IRA money and then Lenz had paid the IRS. Cf. Kane,
145 F.3d at 1224. Therefore, count three must be dismissed as well.
Because the court is dismissing all claims, there is no need to address Baird’s
alternative argument regarding arbitration, which Baird invited the court to consider if the
complaint survived its primary challenges. (See Doc. 7 at 11.)
D.

Motion for sanctions
Next for consideration is Lenz’s motion for sanctions which is premised on his belief

that Baird’s motion to dismiss had no basis in law and was brought for an improper purpose.
Having found the motion to dismiss meritorious, the motion for sanctions must be denied.
MOTION FOR LEAVE TO FILE ELECTRONICALLY
Finally, Lenz moves for leave to file documents and receive notifications of filings
electronically (i.e., to “e-file”). Lenz represents himself, and pursuant to this district’s policy
pro se litigants are not permitted to e-file absent court authorization. Because this case is
not proceeding further, the motion for permission to e-file is moot. Further, even if that were
not the case, the court would choose not to deviate from the district’s usual policy.
CONCLUSION
For the above-stated reasons,
IT IS ORDERED that Lenz’s motion under Civil L.R. 7(i) (Doc. 3) is denied.
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IT IS FURTHER ORDERED that Lenz’s motion for the court to take judicial notice
(Docs. 12, 13, 14) are denied.
IT IS FURTHER ORDERED that Baird’s motion to dismiss (Doc. 6) is granted.
IT IS FURTHER ORDERED that Lenz’s motion for sanctions (Doc. 16) is denied.
IT IS FURTHER ORDERED that Lenz’s motion for leave to file and receive notices
electronically (Doc. 11) is denied.
Dated at Milwaukee, Wisconsin, this 16th day of February, 2017.
BY THE COURT

s/ C. N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. DISTRICT JUDGE

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