Smith, Joseph v. Capital One Bank USA, N.A. et al

Filing 28

ORDER: It is ordered that plaintiff Joseph Smith's motions to strike, Dkt. 23 and Dkt. 25 are denied. Signed by District Judge James D. Peterson on 4/12/2016. (voc)

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

JOSEPH SMITH,
Plaintiff,
v.

ORDER

CAPITAL ONE BANK USA, N.A. and
MESSERLI & KRAMER, P.A.,

16-cv-12-jdp

Defendants.
Plaintiff Joseph Smith alleges violations of the Wisconsin Consumer Act and
violations of due process pursuant to 42 U.S.C. § 1983 (framed as violations of the
Commerce Clause and the Full Faith and Credit Clause), in connection with defendants’
efforts to garnish plaintiff’s wages following plaintiff’s failure to pay credit card debt.1
Defendants filed motions to dismiss in response to plaintiff’s amended complaint. Dkt. 10
and Dkt. 12.
Now plaintiff moves to strike portions of defendants’ reply briefs in support of their
respective motions to dismiss. Dkt. 23 and Dkt. 25. Plaintiff moves to strike footnote 12
from defendant Capital One Bank USA, N.A.’s reply brief and pages 17-18 from defendant
Messerli & Kramer, P.A.’s reply brief because each section offers new legal arguments not
presented in the parties’ opening briefs.
I will deny plaintiff’s motions. Rather than delve into the merits of defendants’
motions to dismiss and the arguments defendants have raised, the court will simply reassure
plaintiff that legal arguments raised for the first time in a reply brief are generally waived.
1

Plaintiff’s amended complaint also references the Fair Debt Collection Practices Act, 15
U.S.C. § 1692k, but plaintiff does not appear to allege any violations of the FDCPA.

Mendez v. Perla Dental, 646 F.3d 420, 423-24 (7th Cir. 2011) (“[I]t is well-established that
arguments raised for the first time in the reply brief are waived[.]” (citing United States v.
Dabney, 498 F.3d 455, 460 (7th Cir. 2007); United States v. Blaylock, 413 F.3d 616, 619 (7th
Cir. 2005)).

ORDER
IT IS ORDERED that plaintiff Joseph Smith’s motions to strike, Dkt. 23 and
Dkt. 25, are DENIED.
Entered April 12, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

2