More, Caroline v. St. Joseph The Workman Cathedral Parish, La Crosse, WI et al

Filing 32

ORDER that Defendant Diocese of La Crosse Attorney James Birnbaum is DISMISSED from case no. 13-cv-846-bbc for plaintiff Caroline More's failure to state a claim against him under Fed. R. Civ. P. 8; Plaintiff's Motion to Compel and for reimbursement of costs, 65 in case no. 12-cv-905-bbc, and 25 in case no 13-cv-846-bbc, is DENIED. Signed by District Judge Barbara B. Crabb on 8/19/2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CAROLINE MORE,
OPINION AND ORDER
Plaintiff,
12-cv-905-bbc
v.
BISHOP WILLIAM P. CALLAHAN, O.F.M.,
ARCHBISHOP JEROME E. LISTECKI,
MONSIGNOR MICHAEL J. GORMAN,
EDWARD JONES and WILLIAM MOORE,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CAROLINE MORE,
OPINION AND ORDER
Plaintiff,
13-cv-846-bbc
v.
ST. JOSEPH THE WORKMAN CATHEDRAL
PARISH, CITY OF LA CROSSE, DIOCESE OF
LACROSSE ATTORNEY JAMES BIRNBAUM
and OFFICER CRAIG TEFF,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In these civil actions, pro se plaintiff Caroline More asserts various tort claims related
to an alleged sexual assault. In an order dated June 25, 2014, I ordered plaintiff to respond
by July 11, 2014 with affidavits or stipulations as to the citizenship of certain defendants

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in both cases. In addition, I granted defendant Diocese of La Crosse Attorney James
Birnbaum’s request for a more definite statement and ordered plaintiff to more clearly state
her claims against him by July 11, 2014. Although late, plaintiff has now responded to the
order. Case no. 12-cv-905-bbc, dkt. ##63, 64; case no. 13-cv-846-bbc, dkt. ##23, 24. In
addition, she has filed a motion in which she asks to view video footage from a security
camera and she asks for reimbursement for copies of DVDs she paid for that she cannot
play. Case no. 12–cv-905-bbc, dkt. #65; 13-cv-846-bbc, dkt. #25.
I conclude that plaintiff’s responses with respect to subject matter jurisdiction are
sufficient at this stage of the proceedings. However, plaintiff has failed to state a claim upon
which relief may be granted against defendant Birnbaum, so he will be dismissed from the
case. Finally, I am denying plaintiff’s motion to compel and for reimbursement because she
has not alleged that she followed the appropriate steps before seeking relief from the court.

OPINION
A. Subject Matter Jurisdiction
Plaintiff, who is a citizen of Minnesota, has brought these cases under 28 U.S.C. §
1332, which requires her to establish (1) diversity of citizenship between her and defendants
and (2) an amount in controversy exceeding $75,000. In the June 25, 2014 order, I noted
that plaintiff had alleged the residency but not the domicile of defendants Bishop William
P. Callahan, O.F.M., Archbishop Jerome E. Listecki, Monsignor Michael J. Gorman, Edward
Jones and William Moore in case no. 12-cv-905-bbc and defendants Diocese of La Crosse

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Attorney James Birnbaum and Officer Craig Teff in case no. 13-cv-846-bbc, as required to
establish the defendants’ citizenship. I ordered plaintiff to respond by July 11, 2014 with
an affidavit or stipulation that established the citizenship of these defendants in both cases.

However, with respect to case no. 12-cv-905-bbc, plaintiff already had filed an
amended complaint, dkt. #33, in which she properly alleged the citizenship of defendants
Callahan, Listecki, Gorman, Jones and Moore, all of whom she alleges are domiciled in
Wisconsin. Therefore the order to show cause, dkt. #60, was unnecessary, and the matter
is moot.
With respect to case no. 13-cv-846-bbc, plaintiff properly alleged the citizenship of
defendant St. Joseph the Workman Cathedral Parish (a corporation) and the citizenship of
defendant City of La Crosse in her complaint (both citizens of Wisconsin). Plaintiff’s
complaint did not allege the citizenship of defendants Birnbaum or Teff properly, but
plaintiff has now filed an affidavit, dkt. #24, in which she says that she has confirmed with
defendants’ attorneys that they are citizens of Wisconsin and no other state.
Plaintiff’s case is in the pleading stage, so I may accept her jurisdictional allegations
in her amended complaint in case no. 12-cv-905-bbc and her original complaint and affidavit
in case no. 13-cv-846-bbc as true. However, in both cases, plaintiff will need to point to
admissible evidence that shows the parties’ citizenship in order to establish jurisdiction at
summary judgment or trial. Plaintiff might consider requesting stipulations or admissions

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from defendants on the defendants’ citizenship. Plaintiff may aver her own citizenship in
a sworn affidavit.

B. More Definite Statement
In the June 25, 2014 order in case no. 13-cv-846-bbc, dkt. #20, I granted defendant
Birnbaum’s motion for a more definite statement. Plaintiff has filed what she labels “Second
Amended Complaint,” but the document is more accurately called a supplement to her
original complaint. (I also note that plaintiff filed the document in both case no 12-cv-905bbc and 13-cv-846-bbc, though it appears to be responsive to the order to show cause in 13cv-846-bbc alone.)
In the June 25 order, I instructed plaintiff to explain defendant Birnbaum’s personal
involvement in her case. In her response, plaintiff says that she found that Birnbaum is “the
lawyer who seemed to handle an ongoing work-up of legal matters for almost all [the Diocese
of La Crosse’s] churches.” Plt.’s Supp. to Cpt., dkt. #23. This allegation does not state a
claim against defendant Birnbaum. Mere representation of another entity as a lawyer does
not create liability, even if that entity engages in tortious or illegal acts. Newhouse by Skow
v. Citizens Security Mutual Insurance Co., 176 Wis. 2d 824, 841, 501 N.W.2d 1, 8 (1993)
(“[T]he well established rule of law in Wisconsin is that absent fraud or certain public policy
considerations, an attorney is not liable to third parties for acts committed in the exercise
of his duties as an attorney.”).

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Plaintiff asks that if the court dismisses defendant Birnbaum she be allowed to name
an “‘empty chair’ legal scenario,” id., by which I believe she means name a “John Doe”
defendant. A plaintiff may name a John Doe defendant in her complaint when she cannot
determine a defendant’s name or identity without further discovery. However, mistaken or
unknown identity is not the problem with plaintiff’s complaint. Rather, the issue is that
plaintiff has not alleged sufficient facts under Fed. R. Civ. P. 8 to state a claim against
defendant Birnbaum or any other similarly situated person. Thus, plaintiff’s request will be
denied.
Plaintiff also appears confused about whether the Diocese of La Crosse is a defendant.
This party was not listed as a defendant in the caption of her original complaint or under the
“parties” section in the body of her original complaint.

However, in her response to

defendant Birnbaum’s motion for a more definite statement, she expresses concern that the
Diocese of La Crosse will be dismissed as a defendant. She also says that she
has reason to believe that in the event that the Diocese can demonstrate that
they were not, in any way, party to hiring, supervision, or training
maintenance employees for the business St Joseph the Workman Cathedral
through discovery, then plausibly they should not be included in this action,
because they could not be found to be negligent. Furthermore, a jury most
likely would not find that they had a role in damaging the plaintiff. However,
until plaintiff is able to advance discovery in the case, it is unclear where the
liability lands.
Such speculation is insufficient to state a claim under Fed. R. Civ. P. 8. Atkins v. City of
Chicago, 631 F.3d 823, 830-32 (7th Cir. 2011) (to avoid dismissal, a plaintiff “must plead
some facts that suggest a right to relief that is beyond the speculative level”). Thus, to the

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extent plaintiff is seeking leave to amend her complaint to add the Diocese of La Crosse as
a defendant, her motion will not be granted.

C. Motion to Compel and for Reimbursement
Plaintiff says that she asked the City of La Crosse police department for DVD copies
of video footage before and after her alleged sexual assault. Plaintiff received the DVDs but
says she is unable to view them, though she acknowledges that this may be because she does
not know how to use her television properly. Plaintiff asks the court to “rule in her favor on
a motion that is designed for plaintiff to view and obtain the camera footage . . . .” Plt.’s
Mot., case no. 13-cv-846-bbc, dkt. #25, at 2. She also asks the court to order the City of
La Crosse to reimburse her for the amount she paid for the DVD copies.
Defendant City of La Crosse has responded by saying that, to its knowledge, the
DVDs are functional. It has sent a letter to plaintiff instructing her on how to use a
computer so that she may view the DVDs from it. Defendant says plaintiff did not seek
assistance from it before filing this motion. Further, defendant argues that all people who
request records from the City of La Crosse are charged the costs associated with copying
those records, and plaintiff was not treated differently.
As an initial matter, it is unclear whether plaintiff’s original request for the DVDs was
part of a formal discovery request or whether she filed a records request as a citizen. In any
event, the Federal Rules of Civil Procedure require a plaintiff to first attempt to formally
request production of the evidence and confer with the opposing party about the discovery
request before filing a motion to compel. Fed. R. Civ. P. 37(a)(1) (“The motion [to compel

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discovery] must include a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make disclosure or discovery in an
effort to obtain it without court action.”). Because plaintiff has not certified that she
attempted to resolve her problem with defendant City of La Crosse before filing this motion,
I am denying it. Should plaintiff have additional trouble viewing the DVDs, she should first
contact the City of La Crosse for assistance in playing the DVDs or to request new copies.

In addition, plaintiff’s request for a refund of the DVD copying fee will be denied.
Fed. R. Civ. P. 34(a)(1)(A) requires only that a party produce documents for inspection and
copying. It does not require that copies be provided free of charge to an opposing party. It
is also not clear that plaintiff asked for the DVDs in the course of discovery. If she did not,
her request for relief would need to be raised in a separate lawsuit. In any case, plaintiff has
not shown that she is entitled to a reimbursement because she has not shown that the DVD
copies she received are defective or that she requested and was denied replacement copies
from the City of La Crosse.

ORDER
IT IS ORDERED that
1. Defendant Diocese of La Crosse Attorney James Birnbaum is DISMISSED from
case no. 13-cv-846-bbc for plaintiff Caroline More’s failure to state a claim against him
under Fed. R. Civ. P. 8.

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2. Plaintiff’s motion to compel and for reimbursement of costs, filed in case no. 12cv-905-bbc, dkt. #65, and in case no. 13-cv-846-bbc, dkt. #25, is DENIED.
Entered this 19th day of August, 2014.

BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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