223 F. Supp. 3d 792
E.D. Wis.2016Background
- Comsys, a private IT contractor, and its sole shareholder Ka-thryne McAuliffe sued the City of Kenosha, the Kenosha Water Utility, the City Administrator (Pacetti), former Comsys CIO-turned-City IT Director (Kerkman), the Mayor, the Water Utility general manager, and 13 alderpersons under 42 U.S.C. §§ 1983, 1985, 1986, 1988 and Wisconsin law arising from termination of long‑standing IT service contracts in 2014.
- Plaintiffs allege Kerkman covertly accessed Comsys/McAuliffe email and proprietary data, conspired with Pacetti to create a City IT director position and hire Kerkman, and used the information to displace Comsys.
- After plaintiffs filed a criminal complaint and a related investigation occurred, the City and Water Utility held closed special meetings and voted to terminate Comsys’ contracts; plaintiffs contend these actions were retaliatory and intended to shield Kerkman and Pacetti.
- Plaintiffs assert First Amendment retaliation (for cooperating with investigation/filing complaint), Fourth Amendment unlawful searches (Kerkman as agent of the City), Fifth Amendment takings/compensation theories, Monell claims against municipalities, and various state law tort claims.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6) on multiple grounds: redundancy of official‑capacity claims, legislative immunity for alderpersons/commissioners, lack of personal involvement for several officials, failure to plead final policymaker for Monell liability, failure to state constitutional claims, and Wisconsin notice-of-claim/municipal immunity defenses.
- The court: dismissed official‑capacity claims against individual defendants as redundant and dismissed one Monell theory (Count Three) for failure to allege a final policymaker; otherwise denied the motion, allowing First, Fourth, Fifth Amendment claims and state claims to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Official‑capacity suits | Plaintiffs named individuals in both capacities to give notice | Redundant of municipal claims; should be dismissed | Dismissed as redundant (official‑capacity claims) |
| Legislative immunity for alderpersons/commissioners | Votes to terminate were administrative/retaliatory, not legislative | Votes were legislative acts (policy/budget) entitled to absolute immunity | Denied dismissal; insufficient factual record to invoke absolute legislative immunity |
| Personal involvement of Mayor & GM St. Peter and alderpersons | Officials participated, pressured votes, disabled access, called meetings — sufficient knowledge/participation | Mere votes or procedural acts insufficient for §1983 liability | Denied dismissal; allegations plausibly show personal involvement for listed officials |
| Monell municipal liability (final policymaker theory) | Pacetti (City Administrator) was final policymaker for vendor/IT decisions | City Council is the final policymaker under Wisconsin law and ordinances | Count Three dismissed: plaintiffs failed to plead that Pacetti had final policymaking authority |
| First Amendment retaliation | McAuliffe’s cooperation with investigation and filing a complaint were protected; termination/contract interference were retaliatory | Actions were lawful administrative/contract decisions and not motivated by protected activity | Denied dismissal for retaliation claims; allegations plausibly show adverse acts motivated in part by protected activity |
| Fourth Amendment unlawful search | Kerkman acted as City agent; searches of email archives were government action | Searches were private or, if government action, were reasonable/no expectation of privacy | Denied dismissal; complaint plausibly alleges state action and factual inquiry on reasonableness/privacy needed |
| Fifth Amendment takings/compensation (Williamson County ripeness) | Municipal defenses (e.g., intentional tort bar) mean state remedies insufficient; claim ripe | Ripeness doctrine requires exhaustion of state remedies for takings claim | Denied dismissal on ripeness grounds given Wisconsin statutory nuances; claim may proceed |
| Wisconsin notice of claim & municipal immunity | Plaintiffs allege compliance with Wis. Stat. §893.80 | Defendants assert plaintiffs failed to file timely notice and municipalities cannot be sued for intentional torts | Pleading of compliance sufficient under Fed. R. Civ. P. 9(c); state claims allowed to proceed against individuals; municipal intentional‑tort arguments inapplicable as pleaded |
Key Cases Cited
- Kentucky v. Graham, 473 U.S. 159 (official‑capacity suits treated as suits against municipality)
- Bogan v. Scott‑Harris, 523 U.S. 44 (legislative immunity protects local legislators for legislative acts)
- Tenney v. Brandhove, 341 U.S. 367 (absolute immunity for legislative acts)
- Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (municipal liability limited to policy/custom/final policymaker theories)
- City of St. Louis v. Praprotnik, 485 U.S. 112 (final policymaker is a question of state law for Monell liability)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (plausibility standard for Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard and drawing inferences)
- Bagley v. Blagojevich, 646 F.3d 378 (distinguishing legislative vs. administrative acts at local government level)
- Novoselsky v. Brown, 822 F.3d 342 (First Amendment retaliation elements and retaliatory speech contexts)