Tirnanich et al v. Select Portfolio Servicing Inc

Filing 26

ORDER signed by Judge Pamela Pepper on 3/9/2018. 5 10 13 17 Parties' Motions to Seal Documents GRANTED; clerk's office to seal documents appearing at dkt. nos. 6, 11, 12, 17-1 and 17-2. 8 Defendant's motion to dismiss complaint DENIED as moot. 24 Plaintiffs' motion for leave to file sur-reply GRANTED; clerk's office to separately docket sur-reply brief currently appearing at dkt. no. 24-1. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

RADOVAN TIRNANICH and
STELLA TIRNANICH,
Plaintiffs,
v.

Case No. 17-cv-1142-pp

SELECT PORTFOLIO SERVICING, INC.,
Defendant.
ORDER GRANTING PLAINTIFFS’ MOTION TO SEAL THE COMPLAINT (DKT.
NO. 5), DENYING AS MOOT DEFENDANT’S MOTION TO DISMISS THE
COMPLAINT (DKT. NO. 8), GRANTING DEFENDANT’S MOTION TO SEAL
THE UN-REDACTED MOTION TO DISMISS (DKT. NO. 10),
GRANTING PLAINTIFFS’ MOTION TO SEAL THE UN-REDACTED AMENDED
COMPLAINT (DKT. NO. 13), GRANTING DEFENDANT’S MOTION TO SEAL
THE UN-REDACTED MOTION TO DISMISS AND THE ATTACHED
SETTLEMENT AGREEMENT (DKT. NO. 17) AND GRANTING PLAINTIFFS’
MOTION FOR LEAVE TO FILE A SURREPLY (DKT. NO. 24)

The plaintiffs filed this case under the Fair Debt Collections Practices
Act, 15 U.S.C. §1692 (FDCPA) and the Fair Credit Reporting Act, 15 U.S.C.
§1681 (FCRA). In order for a trier of fact to be able to determine whether the
defendant is liable on these claims, the trier of fact would need to know the
terms of a prior settlement between the parties, but that settlement is
confidential. The plaintiff has asked the court to seal an un-redacted copy of
the complaint, which contains confidential information from the confidential

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settlement agreement.1 Dkt. No. 5. The defendant filed a motion to dismiss,
dkt. no. 8, and a motion asking the court to issue an order to seal the unredacted copy of the defendant’s motion to dismiss because it contained
paragraphs referring to the confidential settlement agreement, dkt. no. 10. Two
weeks later, the plaintiffs filed an amended complaint, dkt. no. 12, and a
motion to seal that pleading, dkt. no. 13. After filing a second motion to
dismiss, dkt. no. 15, the defendant again asked the court to seal its motion,
dkt. no. 17. The plaintiffs recently filed a motion for leave to file a sur-reply in
opposition to the second motion to dismiss. Dkt. No. 24.
I.

Motions to Seal (Dkt. Nos. 5, 10, 13 and 17)
General Local Rule 79(d)(3) (E.D. Wis.) requires a party who files a

motion to seal a document to support that motion with “sufficient facts
demonstrating good cause for withholding the document or sealed material
from public view.” Many years ago, the Seventh Circuit held that there is a
presumption of public access to discovery materials, and that the district court
must make a determination of good cause before issuing an order sealing
documents produced as “confidential” in discovery. Citizens First Nat. Bank of
Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999). “The
determination of good cause cannot be elided by allowing the parties to seal
whatever they want, for then the interest in publicity will go unprotected unless
the media are interested in the case and move to unseal. The judge is the

The plaintiff simultaneously filed an un-redacted copy of the original
complaint, but referred to it as the amended complaint. Dkt. No. 6.
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primary representative of the public interest in the judicial process and is dutybound therefore to review any request to seal the record (or part of it).” Id. See
also, e.g., C’nty Materials Corp. v. Allan Block Corp., 502 F.3d 730, 740 (7th
Cir. 2007) (citing Citizens).
The parties have filed multiple motions to seal documents referencing the
confidential settlement agreement relevant to the dispute in this case. The
plaintiff’s motions to seal state only that the documents they wish the court to
seal contain information that the defendant has deemed confidential
“stemming from a prior confidential settlement agreement.” See Dkt. Nos. 5,
13. These motions do not comply with the Rule 79(d) requirement to show good
cause, nor do they provide a basis for this court to make a good cause
determination, as the Seventh Circuit required.
The defendant, however, provided the court with a copy of the settlement
agreement (under seal). Dkt. No. 11-1. The court has reviewed that agreement;
there is an entire section of the agreement governing the confidentiality the
terms of the agreement. Confidentiality was a material term of the agreement; it
appears to have been a bargained-for condition of the agreement. Given that,
the parties’ interest in maintaining their bargained-for confidentiality
outweighs the public’s right to access to documents filed with the court.
In addition, the parties have complied with that portion of Rule 79(d) that
requires the parties to try to limit the scope of the sealed portions; they have
filed redacted versions of the complaint, minimizing the material that will be
unavailable to the public.
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Because the court concludes that there is good cause to seal the portions
of the documents the parties have asked it to seal, and because they have
limited the portions of the documents which will be unavailable to the public,
the court will grant the parties’ motions to seal.
II.

Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint (Dkt.
No. 15)
The defendant filed a motion to dismiss the plaintiff’s complaint under

Rule 12(b)(6), asserting that the defendant was not a debt collector, that the
alleged violations had occurred after the account had been closed, and that the
plaintiffs’ mortgage no longer was serviced by the defendant. Dkt. No. 11 at 1.
In addition, the defendant alleged that the settlement agreement expressly
waived, released and barred all causes of action arising from the plaintiffs’
mortgage loan account, including claims based on credit reporting. Id. at 2.
Two weeks after the defendant moved to dismiss, the plaintiffs filed an
amended complaint. Dkt. No. 12. An amended complaint supersedes the
original complaint. Scott v. Chuhak & Tecson, P.C., 725 F.3d 772, 782 (7th Cir.
2013) (citing Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999)). That, along
with the fact that the defendant has filed a motion to dismiss the amended
complaint (dkt. no. 15), renders the first motion to dismiss moot.
III.

Plaintiffs’ Motion for Leave to File Surreply (Dkt. No. 24)
The plaintiffs filed a motion for leave to file a sur-reply brief in opposition

to defendant’s motion to dismiss. Dkt. No. 24. The court’s local rules do not
provide for sur-replies. The court does not grant leave to file sur-replies as a
matter of course, and they are disfavored. See, e.g., Novoselsky v. Zvunca, Case
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No. 17-cv-427-JPS, 2017 WL 3025870 at *4 n.2 (E.D. Wis., July 17, 2017); Civ.
L.R. 59(b)(9).
Here, the plaintiff asks leave to file a two-page sur-reply brief. The motion
states that the plaintiff needs to file the sur-reply to “address a single new
argument” raised in the defendant’s reply. Dkt. No. 24. The proposed sur-reply
brief itself says that it seeks to address “one factually incorrect assertion.” Dkt.
No. 24-1 at 1. The issue appears to be this: In its reply brief, the defendant
states that the settlement agreement required the plaintiffs to challenge any
allegedly incorrect credit report information directly with the credit reporting
agencies. Dkt. No. 23 at 4. The defendant has argued that court should not
allow the plaintiffs to “get around that bargained-for requirement” by filing a
federal court case alleging consumer act violations. Id. The plaintiffs ask leave
to file the sur-reply to correct the impression that they did not make challenges
to the credit reporting agencies themselves. Dkt. No. 24-1 at 1. They point the
court to paragraphs 32 and 34 of the amended complaint, in which the
plaintiffs pled that they had sent letters to the credit reporting agencies in April
and May of 2017, asking the agencies to report their account with the
defendant paid. Dkt. No. 12 at ¶¶32, 24.
The plaintiffs’ proposed sur-reply is brief and addresses a single,
arguably misleading fact in the defendant’s reply brief. Despite the fact that
sur-replies are disfavored, the court will grant the plaintiffs’ motion to file this
sur-reply brief, and will consider it when deciding the amended motion to

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dismiss. The court will rule on the amended motion to dismiss in a separate
order.
IV.

Conclusion
The court GRANTS the motions for orders to seal. Dkt. Nos. 5, 10, 13

and 17.
The court ORDERS that the clerk’s office shall seal the documents at
dkt. nos. 6, 11, 12, 17-1 and 17-2 until further order of the court.
The court ORDERS that the clerk’s office shall continue to allow public
access to the redacted versions of those documents (dkt. nos. 1, 9, 14 and 16).
The court DENIES AS MOOT the defendant’s motion to dismiss the
complaint. Dkt. No. 8.
The court GRANTS the plaintiffs’ motion for leave to file a sur-reply. Dkt.
No. 24. The court ORDERS that the clerk’s office shall separately docket the
sur-reply, which currently appears as an attachment to the motion at dkt. no.
24-1.
Dated in Milwaukee, Wisconsin this 9th day of March, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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