Schulenburg, Timothy v. Navient

Filing 40

ORDER that the schedule for the rest of this case is modified, as indicated below. The parties are directed to participate in a mediation session with United States Magistrate Judge Peter Oppeneer. The new schedule will be as follows: By July 8, 2016, plaintiff must submit a notice that briefly articulates the legal theory or theories that he is pursing in this case. By July 8, 2016, plaintiff must file his brief in opposition to Navient's most recent motion for ju dgment on the pleadings. Dkt. 34 . Navient will not file a reply unless I ask for one. By July 8, 2016, both parties will submit pretrail materials, including motions in limine, exhibit lists, witness lists, proposed jury instructions, propo sed voir dire questions, and proposed special verdict forms. Navient does not need to resubmit these materials unless it has updated versions. By July 15, 2016, both parties must submit their responses, if any, to the other side's pretrial materials. On August 15, 2016, at 3:00 p.m., I will hold a Final Pretrial Conference. On August 22, 2016, at 9:00 a.m., the trial will begin. Signed by District Judge James D. Peterson on 6/30/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

TIMOTHY JAMES SCHULENBURG,
Plaintiff,
v.

ORDER
15-cv-150-jdp

NAVIENT,
Defendant.

I held a telephonic status conference on June 29, 2016, to discuss several issues that
have recently arisen in this case. Plaintiff Timothy Schulenburg appeared pro se, and
defendant Navient appeared by counsel. At this point, I will direct the parties to participate
in a mediation session with United States Magistrate Judge Peter Oppeneer (who is also the
Clerk of Court). I will also adjust the remaining deadlines in this case and reschedule the
trial. The new schedule will be as follows:


By July 8, 2016, plaintiff must submit a notice that briefly articulates the
legal theory or theories that he is pursing in this case.



By July 8, 2016, plaintiff must file his brief in opposition to Navient’s most
recent motion for judgment on the pleadings. Dkt. 34. Navient will not file
a reply unless I ask for one.



By July 8, 2016, both parties will submit pretrail materials, including
motions in limine, exhibit lists, witness lists, proposed jury instructions,
proposed voir dire questions, and proposed special verdict forms. Navient
does not need to resubmit these materials unless it has updated versions.



By July 15, 2016, both parties must submit their responses, if any, to the
other side’s pretrial materials.



On August 15, 2016, at 3:00 p.m., I will hold a Final Pretrial Conference.



On August 22, 2016, at 9:00 a.m., the trial will begin.

During the telephonic status conference, I asked the parties whether they were still
interested in a jury trial instead of a court trial (i.e., a trial in which there would be no jury,
and I would serve as the fact-finder). Navient indicated that it was interested in a court trial,
and I directed the parties to confer on the issue. Plaintiff has the right to insist on a jury trial,
and he will receive one if that is his wish. But if the parties agree to a court trial, then they
should submit a joint notice to that effect.
As for the notice that plaintiff must submit to articulate his legal theory of the case,
Navient is entitled to know the acts, omissions, or decisions that plaintiff contends were
unlawful. Up until now, I have interpreted plaintiff’s complaint as alleging a breach of
contract claim. But plaintiff’s statements during the status conference suggest that he may be
seeking a declaration that his contract with Navient is invalid because it was unconscionable.
Under Wisconsin law, a contract provision is unenforceable if it is both procedurally and
substantively unconscionable. Wis. Auto Title Loans, Inc. v. Jones, 2006 WI 53, ¶ 29, 290 Wis.
2d 514, 714 N.W.2d 155. “Determining whether procedural unconscionability exists requires
examining factors that bear upon the formation of the contract, that is, whether there was a
real and voluntary meeting of the minds of the contracting parties.” Id. ¶ 34 (citations and
internal quotation marks omitted). “Substantive unconscionability addresses the fairness and
reasonableness of the contract provision,” which is a fact-intensive inquiry. Id. ¶ 35.
Plaintiff is free to pursue whatever legal claims he believes fit the facts of the case. His
notice does not need to rehash the hardships that he has endured or provide background
information about his situation. However, plaintiff must give Navient adequate notice of his
claims by indicating what specifically Navient did (or did not do) that was unlawful.

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ORDER
IT IS ORDERED that:
1. The schedule for the rest of this case is modified, as indicated above.
2. The parties are directed to participate in a mediation session with United States
Magistrate Judge Peter Oppeneer.
Entered June 30, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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