Willert, Gary et al v. Andre, Bruce et al

Filing 20

ORDER denying 12 Motion to Stay. Signed by District Judge James D. Peterson on 8/18/17. (jat)

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

GARY WILLERT, LISA WILLERT,
LASERMASTERS, LLC, and GPS HOLDINGS,
LLC,
Plaintiffs,

ORDER

v.
17-cv-496-jdp
BRUCE ANDRE and LIBERTY PARTS TEAM,
INC.,
Defendants.
Plaintiffs Gary and Lisa Willert are the sole members of plaintiff LaserMasters, LLC,
which is in the business of refurbishing printer cartridges. In 2014, LaserMasters, through its
subsidiary, plaintiff GPS Holdings, LLC, acquired Global Printer Services, Inc., (a printer
remanufacturer) from defendant Bruce Andre. Plaintiffs allege that Andre subsequently
breached the contract covering the acquisition by encouraging several GPS employees to leave
GPS and work for its competitor, defendant Liberty Parts Team, Inc., instead and falsely
informing GPS’s customers that GPS had gone out of business. Plaintiffs further allege that
Liberty then stopped paying LaserMasters for the printers, parts, and other supplies it
purchased. Apparently, The Willerts stopped paying on their promissory note, which prompted
Andre to sue them in state court. See Andre v. Willert, No. 17-cv-598 (Dane Cty. Cir. Ct. filed
Mar. 13, 2017). So plaintiffs, not content to resolve their issues in a suit filed by Andre, filed
suit in this court asserting state-law claims of breach of contract, breach of implied covenant
of good faith and fair dealing, tortious interference with contract relationship, misappropriation
of trade secrets, unfair competition, and defamation against defendants. Dkt. 1.

The issue now before the court is Andre’s motion to stay this case. Dkt. 12. He contends
that a stay is required under the Colorado River abstention doctrine because this case involves
the same issues as his state-court case. See Colo. River Water Conservation Dist. v. United States,
424 U.S. 800 (1976). Plaintiffs do not oppose, and Liberty affirmatively supports the motion
for a stay, contending that this case and Andre’s state-court case are “almost perfectly parallel.”
Dkt. 19, at 1. The court must conduct its own analysis.
Under Colorado River, a federal court may, in exceptional circumstances, stay a suit in
favor of a parallel state-court proceeding to promote “wise judicial administration.” Clark v.
Lacy, 376 F.3d 682, 685 (7th Cir. 2004) (quoting Colo. River, 424 U.S. at 818). “[T]he mere
fact that an action is pending in state court is ordinarily no bar to parallel federal proceedings.”
Id. (quoting LaDuke v. Burlington N. R.R. Co., 879 F.2d 1556, 1558 (7th Cir. 1989)).
“[A]bstention is the exception,” not the norm. Id. (quoting Sverdrup Corp. v. Edwardsville Cmty.
Unit Sch. Dist. No. 7, 125 F.3d 546, 550 (7th Cir. 1997)).
The Seventh Circuit has provided a two-step framework for determining whether a stay
is appropriate. “First, the court must consider ‘whether the concurrent state and federal actions
are actually parallel.’ [Second,] the court must consider a number of non-exclusive factors that
might demonstrate the existence of ‘exceptional circumstances.’” Id. (quoting LaDuke, 879 F.2d
at 1559). If the party seeking abstention fails to convince at either step, the federal court will
not stay the case.
As the first step of the analysis, Andre must show that the two cases are parallel by
demonstrating that “substantially the same parties are contemporaneously litigating
substantially the same issues simultaneously in another forum.” Huon v. Johnson & Bell, Ltd.,
657 F.3d 641, 646 (7th Cir. 2011) (quoting Clark, 376 F.3d at 686). “The critical question is

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whether there is a ‘substantial likelihood that the state litigation will dispose of all claims
presented in the federal case.’” Id. (quoting Adkins v. VIM Recycling, Inc., 644 F.3d 483, 498
(7th Cir. 2011)). Andre contends that this case is parallel to Andre v. Willert because there is
an overlap in the subject matter at issue and in the parties to the dispute.
It’s true that the Willerts, LaserMasters, and Andre are parties in both suits. But Andre
has not shown that the two suits involve substantially the same issues. He states that Andre v.
Willert is an action “to collect approximately $1.5 million on a defaulted promissory note from
the Willerts, unconditionally guaranteed by LaserMaster[s].” Dkt. 13, at 1. The court
understands that the promissory note at issue is part of the Membership Interest Purchase
Agreement (MIPA) between Andre and the Willerts, LaserMasters, and GPS Holdings referred
to in plaintiffs’ amended complaint. See Dkt. 8, ¶ 51; Dkt. 1-2. Plaintiffs’ default on the
promissory note and breach of the MIPA is relevant to some of their claims in this suit,
particularly the breach of contract claim, but it appears irrelevant to the majority of their
claims, such as tortious interference with contract relationship, misappropriation of trade
secrets, unfair competition, and defamation. Andre states that “the majority of the paragraphs
in the Complaint here are virtually verbatim from the various Counterclaims of [p]laintiffs in”
Andre v. Willert, Dkt. 13, at 6, but he does not explain what those counterclaims are, nor does
he provide a copy of the state court pleadings.1 Nor does he explain how resolution of the
counterclaims against Andre, the sole plaintiff in Andre v. Willert, could dispose of the claims
against Liberty in this case—and those claims make up half of this suit.

1

Andre’s sole description of the counterclaims is this: “Defendants file Answer, Affirmative
Defenses and Counterclaims in [Andre v. Willert], including claims of allegedly ‘poaching’
employees and theft of ‘confidential information and trade secrets’ from GPS Holdings.” Dkt.
13, at 2.

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This court has a “‘virtually unflagging obligation’ to exercise the jurisdiction Congress
has conferred,” and Andre has failed to offer enough to clear the high hurdle necessary for
abstention. Huon, 657 F.3d at 649 (quoting Colo. River, 424 U.S. at 817). Because the state
court proceedings are not parallel to this case, the court will deny Andre’s motion to stay. Given
that the state and federal cases are not parallel, the court need not take up step two of the
analysis and address the factors that determine whether this case presents “exceptional
circumstances.” AAR Int’l, Inc. v. Nimelias Enters. S.A., 250 F.3d 510, 518 (7th Cir. 2001) (“If
the actions are not parallel, the Colorado River doctrine does not apply.”).
One last point. Although the court will not stay this particular case, it’s apparent that
the parties’ dispute has erupted into several overlapping but separate lawsuits.2 The court does
not care if the parties want to waste their own time with redundant litigation, but other litigants
actually need the court’s help. So if this case is actually overlapping with Andre’s state-court
case, then plaintiffs should dismiss it. They risk paying defendants’ attorney fees if they do
not.

2

Two other related court proceedings were recently resolved. Plaintiffs voluntarily dismissed
Willert v. Andre, No. 17-cv-1723 (D. Ariz. Filed June 2, 2017), on June 21, 2017. And the Dane
County Circuit Court granted a default declaratory judgment in Andre’s favor on July 24, 2017,
in Andre v. GPS Holdings, LLC, No. 17-cv-925 (Dane Cty. Cir. Ct. filed Apr. 17, 2017).

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ORDER
IT IS ORDERED that defendant Bruce Andre’s motion for stay, Dkt. 12, is DENIED.
Entered August 18, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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