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Feinstein et al v. James Putman

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN GREEN BAY DIVISION FAYE B. FEINSTEIN, et. al., Plaintiffs, vs. JAMES PUTMAN, Defendant. Civil Action No. 10-C-0115

AMENDED DECISION AND ORDER1

Plaintiff Fay B. Feinstein, the court-appointed receiver for Wealth Management, LLC, Employee Services of Appleton, Inc., and various Wealth Management funds, filed this action on February 10, 2010, alleging breach of contract, breach of fiduciary duty, and breach of a note against Defendant James E. Putman ("Defendant" or "Putman") the founder, majority owner, and former Majority Shareholder of Wealth Management ("WM"). (Dkt. 1.) On February 26, 2010 Defendant James E. Putman filed a timely Answer and Counterclaim, which included a Motion to Dismiss. (Dkt. 5.) Plaintiff filed a Brief in Opposition to the Motion to Dismiss on July 19, 2010 (Dkt. 10) and Putman failed to file a reply brief within 14 days as permitted, but not required, by Civ. L. R. 7(c).

LEGAL STANDARD The standards governing a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P.") are well established. Rule 8(a) of the

1

Amended to correctly reflect the spelling of Defendant's name and the dates of filing of various pleadings.

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Fed. R. Civ. P. requires that a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." In deciding whether it is sufficient to state a claim, the court must "accept[ ] the complaint's well-pleaded allegations as true and draw[ ] all favorable inferences for the plaintiff." Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007). The allegations must be sufficient "to give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . . Factual allegations must be enough to raise a right to relief above the speculative level." Id. (citations omitted)

ANALYSIS Defendant's Motion to Dismiss contends that the breach of note claim fails because Plaintiff did not assert "consideration" for the note. (Dkt. 5

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