Van Ert v. Blank

ROBIN VAN ERT, Plaintiff, v. REBECCA M. BLANK et al., Defendants.

Case No. 16-C-0770

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

June 29, 2018

ORDER

Robin Van Ert brought this action under 42 U.S.C. § 1983 and state tort law against various University of Wisconsin-Madison officials alleging violations of her First and Fourteenth Amendment rights, invasion of privacy, negligence, defamation, and conspiracy. Defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. I found that the complaint failed to state a cognizable claim to relief under federal law and granted defendants' motion with respect to Van Ert's federal claims. Pursuant to 28 U.S.C. § 1367(c)(3), I declined to exercise supplemental jurisdiction over Van Ert's state-law claims. The Clerk of Court entered final judgment and closed the case.

Van Ert moves under Rule 59(e) for reconsideration of my order dismissing her federal claims. Rule 59(e) does not list specific grounds for reconsideration, so district courts "enjoy[] considerable discretion in granting or denying" relief under that rule. 11 Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (3d ed.), Westlaw (updated Apr. 2018). Still, reconsideration after the entry of a judgment "is an extraordinary remedy which should be used sparingly." Id. Before considering whether Van Ert has shown that such a remedy is warranted here, I briefly revisit the allegations in her complaint and the bases for my prior order dismissing her federal claims.

I. BACKGROUND

Van Ert's complaint alleges, in relevant part, as follows: "Between 2009 and 2014, VAN ERT had a private, consensual, romantic relationship with a former head coach of a University of Wisconsin varsity sport." Compl., ECF No. 1, ¶ 13.

VAN ERT ended her relationship with the COACH in 2014 in part because of her belief that the COACH was manipulative, deceptive, and abusive toward VAN ERT and other women. In VAN ERT's opinion, the COACH was unfit to coach and mentor young student athletes and conducted himself in a manner contrary to the best interests of student athletes and the University of Wisconsin.

Id. ¶ 17.

"On February 11, 2015, VAN ERT reported the relationship and the COACH's inappropriate behavior to" the Chancellor of the University of Wisconsin-Madison, Rebecca Blank; Deputy Athletic Director Walter Dickey; and Senior Associate Athletic Directors Terry Gawlik and Bruce Van De Velde "via email." Id. ¶ 18.

The e-mail asked BLANK, DICKEY, GAWLIK, and VAN DE VELDE to investigate and take appropriate action to prevent the COACH and others in similar positions at the University of Wisconsin from engaging in conduct while working for and representing the University of Wisconsin that may interfere with job performance, be abusive towards women, have a negative impact on student athletes, as well as violate University of Wisconsin and/or National Collegiate Athletic Association ("NCAA") rules, or violate a "morality clause" contained in the COACH'S contract with the University of Wisconsin.

Id.

On December 22, 2015, VAN ERT, through her attorneys, sent a letter to DICKEY advising him and the other DEFENDANTS that her February 11, 2015, e-mail was confidential, that it should not be released to the public, and requested that DEFENDANTS contact her attorneys beforereleasing the e-mail and/or disclosing its contents to the public. DICKEY acknowledged receipt of the December 22, 2015, letter . . . .

Id. ¶ 26.

"On March 4, 2016, DICKEY contacted VAN ERT directly . . . and informed her that her February 11, 2015, e-mail was going to be released to the public in response to an open records request." Id. ¶ 31. "Within approximately one hour . . . , DEFENDANTS released the e-mail to the media . . . , with only VAN ERT's name and e-mail address redacted." Id. ¶ 35. "Later on March 4, 2016, or March 5, 2016, [defendant John Lucas] disclosed VAN ERT's identity to a reporter . . . ." Id. ¶ 37.

As noted above, I considered the allegations in Van Ert's complaint and found that they failed to state a cognizable claim to relief under federal law. Specifically, I found that the complaint's well-pleaded factual allegations did not allow me to reasonably infer that defendants violated Van Ert's constitutional right to privacy under the Fourteenth Amendment by disclosing her email and her identity to the press because the information disclosed was of significant public interest and Van Ert could not have had a reasonable expectation of privacy in that information. I also found that the facts as alleged did not plausibly suggest that defendants retaliated against Van Ert in violation of her First Amendment rights or that they arbitrarily and irrationally singled her out for poor treatment in violation of her constitutional right to equal protection.

II. DISCUSSION

In her motion for reconsideration, Van Ert raises three of the "basic grounds upon which a Rule 59(e) motion may be granted." 11 Wright et al., supra, § 2810.1. She argues that reconsideration is "justified by an intervening change in controlling law" andthat it is "necessary to correct manifest errors of law . . . upon which the judgment is based" and "to prevent manifest injustice." Id. I consider these bases for relief in turn.

A. Intervening Change in Controlling Law

First, Van Ert argues that a recent change in state caselaw affects my analysis with respect to her constitutional privacy claims. In my prior order, I noted that "the existence and extent of constitutional protection for confidential information" is often discussed "in terms of the type of information involved and the reasonable expectation that that information would remain confidential." Denius v. Dunlap, 209 F.3d 944, 957 (7th Cir. 2000). Based on the complaint's alleged facts, I found that the contents of Van Ert's email and her identity were information "to which great public interest attached." See Nixon v. Administrator of General Services, 433 U.S. 425, 455-65 (1977). I also found that she did not demonstrate an expectation of privacy in that information and that, even if she had one, it would not have been reasonable under the circumstances.

In analyzing both "the type of information involved" and Van Ert's "reasonable expectation" of confidentiality, I looked to state caselaw. In particular, I quoted Zellner v. Cedarburg School District, 2007 WI 53, 300 Wis. 2d 290, 731 N.W.2d 240, in which the Wisconsin Supreme Court noted that "the public has an interest in knowing about . . . allegations of . . . misconduct" by "public employees." Id. ¶ 53. I also quoted John K. MacIver Institute for Public Policy Inc. v. Erpenbach, 2014 WI App 49, 354 Wis. 2d 61, 848 N.W.2d 862, in which the Wisconsin Court of Appeals held that "the public has a strong interest" in knowing "who is attempting to influence public policy and why" and agreed with the trial court that "the term 'private' is 'oxymoronic with sending an e-mail to a public official concerning a public matter.'" Id. ¶¶ 21, 29.

Van Ert argues that my analysis "should change" in light of the Wisconsin Supreme Court's recent decision in Madison Teachers Inc. v. Scott (MTI), 2018 WI 11, 379 Wis. 2d 439, 906 N.W.2d 436. MTI, like Zellner and Erpenbach, concerns disclosure of information in public records under Wisconsin's open records law. The court in MTI considered a "record custodian['s] . . . reasons for not disclosing" records of an "annual certification election for collective bargaining representatives" of school district employees and "whether those reasons outweigh[ed] the public interest in disclosure." See id. ¶¶ 4, 16. The court reviewed the custodian's "determination that while this election was ongoing, the public interest that elections remain free from voter intimidation and coercion outweighed the public interest in favor of openness of public records" and found that, in reaching that conclusion, the custodian "lawfully performed" the "balancing test" required under state law. See id. ¶¶ 2-3.

MTI does not affect my analysis with respect to Van Ert's federal claims. For one thing, MTI is not "controlling law." For that matter, neither are Zellner and Erpenbach, which I cited as persuasive authority because they discuss issues similar to those raised here. That I looked to those cases does not change the fact that federal, not state, law governs federal claims like Van Ert's privacy claims. Further, even if MTI were controlling here, it does not displace the reasoning in Zellner or Erpenbach that I looked to in addressing Van Ert's claims. Indeed, MTI's rationale, ostensibly rooted in concerns about "voter intimidation and coercion," has little, if any, application here.

Van Ert has not shown that MTI constitutes an intervening change in controlling law justifying relief under Rule 59(e). Thus, to the extent that she seeks relief on that basis, I will deny her motion for reconsideration.

B. Manifest Errors of Law

Next, Van Ert argues that, in granting defendants' motion to dismiss under Rule 12(b)(6), I did not "accept as true all of the well-pleaded facts in the complaint and draw all reasonable inferences in [her] favor," as required. Kubiak v. City of Chicago, 810 F.3d 476, 480-81 (7th Cir. 2016). Instead, she says, I improperly resolved issues of fact and drew unfavorable inferences in dismissing her federal claims. As noted above, I can grant relief under Rule 59(e) to correct "a manifest error of law," including the "misapplication" of "controlling precedent." Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (quoting Sedrak v. Callahan, 987 F. Supp. 1063, 1069 (N.D. Ill. 1997)).

Van Ert is correct that I must assume the veracity of a complaint's well-pleaded factual allegations and draw all reasonable inferences in the plaintiff's favor on a Rule 12(b)(6) motion to dismiss, though two other principles also apply to such motions:

First,

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