Wik v. Kunego

Filing 40

DECISION AND ORDER denying 35 Motion for Reconsideration re 35 MOTION for Reconsideration filed by Daniel J. Wik.ORDERED, that Daniel J. Wik show cause by March 29, 2013, why sanctions should not be imposed against him pursuant to Federal Rul e of Civil Procedure 11, or this Courts inherent authority, for submitting to the Court a frivolous application for reconsideration; and it is furtherORDERED, that Daniel J. Wiks failure to respond will result in sanctions being imposed without further notice to him. Signed by Hon. Charles J. Siragusa on 2/28/13. (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DANIEL J. WIK,
Plaintiff,
DECISION & ORDER
-vs11-CV-6205-CJS
DONALD R. KUNEGO,
Defendant.

Siragusa, J. Plaintiff Daniel J. Wik (“Plaintiff”), appearing pro se, commenced this
action by filing a complaint on April 18, 2011, against Town Court Justice Donald R.
Kunego (“Town Justice Kunego”), under 42 U.S.C. § 1983 and other federal statutes.
Plaintiff alleged that certain criminal charges are pending against him in the Bergen (New
York) Town Court, that Town Justice Kunego purports to be a Bergen Town Court justice,
and that Town Justice Kunego in fact is not qualified to act as a justice of the Bergen Town
Court.
In its Decision and Order, Wik v. Kunego, No. 11-CV-6205-CJS, 2012 U.S. Dist.
LEXIS 145455 (W.D.N.Y. Oct. 9, 2012), the Court granted Town Justice Kunego’s motion
for summary judgment1 and dismissing the case. Now before the Court is Plaintiff’s motion
for reconsideration of that decision, and Town Justice Kunego’s cross-motion for sanction.
For the reasons stated below, Plaintiff’s motion is denied, and he is directed to show cause
why he should not be sanctioned.
As the Fifth Circuit has recognized, “[t]here is no motion for ‘reconsideration’ in the
Federal Rules of Civil Procedure. See Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d

1

Plaintiff was notified of the requirement to submit a response by the Scheduling Order, Jul.
13, 2011, ECF No. 9, and by Town Justice Kunego’s original motion, Apr. 13, 2012, ECF No. 25,
as required by Irby v. N.Y. City Transit Auth., 262 F.3d 412 (2d Cir. 2001).

367, 371 n. 10 (5th Cir.1998). However, a motion for reconsideration filed within ten days2
of the district court's judgment is construed as a Rule 59(e) motion that suspends the time
for filing a notice of appeal. See id.” Bass v. U.S. Dept. of Agriculture, 211 F.3d 959, 962
(5th Cir. 2000). Since the Federal Rules of Civil Procedure do not expressly provide for a
motion to reconsider, such a motion may be construed as an application to alter or amend
judgment under Rule 59(e) or Rule 60(b). See Osterneck v. Ernst & Whinney, 489 U.S.
169, 174 (1989).“The standard for granting such a motion is strict, and reconsideration will
generally be denied unless the moving party can point to controlling decisions or data that
the court overlooked-matters, in other words, that might reasonably be expected to alter
the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d
Cir. 1995).
The Court understands that Plaintiff’s primary argument is that Town Justice
Kunego was without jurisdiction to restrain Plaintiff’s liberty, since the accusatory
instrument Town Justice Kunego used as the basis for his jurisdiction over Plaintiff was
eventually found facially insufficient and dismissed by an appellate court. Plaintiff argues
that Town Justice Kunego, having been trained in the law, knew he was acting in clear
absence of all jurisdiction. Plaintiff concludes this portion of his argument by pointing out
the lack of any bond filed by Town Justice Kunego with the County, and arguing as follows:
If this court is asserting in its Decision and Order dated on or about October
9, 2012 that anyone with the alleged title of Judge or Justice is above the
Law and can trespass on any man’s Rights and this court will not allow a
man any form of remedy for the trespass and the alleged judge is allowed
to continue and repeatedly trespass on any Mans [sic] Rights with no
consequences. [sic] Then this court is effectively creating a policy that said

2

Plaintiff’s motion was filed 28 days after the Clerk entered judgment. Plaintiff filed a notice
of appeal on November 8, 2012. This Court retains jurisdiction to decide the motion. Fed. R. App.
P. 4(a)(4)(A)(vi).
-2-

persons have an alleged title of nobility and are not subject to the Law and
this alleged immunity is being unconstitutional [sic] applied to Plaintiffs [sic]
Complaint and it is treasonous.
Wik Aff. 20, Nov. 7, 2012, ECF No. 35. Plaintiff also argues that Town Justice Kunego
was acting merely as an administrator of the New York Vehicle and Traffic Law, that he
was not presiding over either a civil or criminal court, and that the Eleventh Amendment
“removed all ‘judicial power’ in law, equity, treaties, contract law.” Id. ¶ 22. Citing to Federal
Radio Comm. v. General Electric Co., 281 U.S. 464 (1930), and Keller v. Potomac Electric
Power Co., 261 U.S. 428 (1923), Plaintiff further contends that, “‘There are no judicial
courts in America and there has [sic] not been since 1789.…’” Id. ¶ 23. Plaintiff does not
provide the source for the quoted language, and the Court does not find the quote in either
of the two Supreme Court cases on which Plaintiff apparently relies, which discussed the
need for a case or controversy as a necessary element for Article III jurisdiction. Federal
Radio Com., 281 U.S. at 469 (“this Court cannot be invested with jurisdiction of that
character, whether for purposes of review or otherwise. It was brought into being by the
judiciary article of the Constitution, is invested with judicial power only and can have no
jurisdiction other than of cases and controversies falling within the classes enumerated in
that article. It cannot give decisions which are merely advisory; nor can it exercise or
participate in the exercise of functions which are essentially legislative or administrative.”);
Keller, 261 U.S. at 444 (“the jurisdiction of this Court and of the inferior courts of the United
States ordained and established by Congress under and by virtue of the third article of the
Constitution is limited to cases and controversies in such form that the judicial power is
capable of acting on them and does not extend to an issue of constitutional law framed by
Congress for the purpose of invoking the advice of this Court without real parties or a real
case, or to administrative or legislative issues or controversies.”).
-3-

It appears Plaintiff is arguing that since Town Justice Kunego was performing
merely an administrative function, he was not acting as a court, therefore he should not
be the beneficiary of absolute judicial immunity. This argument was already rejected by the
United States Supreme Court in Stump v. Sparkman, 435 U.S. 349 (1978), where Justice
White wrote for the majority:
A judge will not be deprived of immunity because the action he took was in
error, was done maliciously, or was in excess of his authority; rather, he will
be subject to liability only when he has acted in the “clear absence of all
jurisdiction.” FN7 13 Wall., at 351.
FN7. In Bradley, the Court illustrated the distinction between lack of
jurisdiction and excess of jurisdiction with the following examples: if a
probate judge, with jurisdiction over only wills and estates, should try a
criminal case, he would be acting in the clear absence of jurisdiction and
would not be immune from liability for his action; on the other hand, if a
judge of a criminal court should convict a defendant of a nonexistent crime,
he would merely be acting in excess of his jurisdiction and would be
immune. Id., at 352.
Id. at 356–57. The Bradley case referred to in Justice White’s opinion was Bradley v.
Fisher, 80 U.S. 335, 336 (1872) (“Judges of courts of record of superior or general
jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in
excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A
distinction as to their liability made between acts done by them in excess of their
jurisdiction and acts done by them in the clear absence of all jurisdiction over the
subject-matter.”). Absolute judicial immunity is clearly a well established policy in United
States jurisprudence.
Therefore, the Court finds Plaintiff’s arguments to be without merit, and finds no
need to consider Plaintiff’s philosophy on the “body politics” in the later pages of his
affirmation, or his arguments, such as the differences between, “the ‘state of New York,’

-4-

‘State of New York,’ New York state, ‘New York State,’ ‘the state’ and/or ‘this state….” Wik
Aff. ¶ 5, Jan. 11, 2013, ECF No. 39. Plaintiff has presented no new evidence that shows
Town Justice Kunego acted outside his jurisdiction. Consequently, he has failed to provide
a basis for reconsideration, and his motion to do so is denied.
Turning to Town Justice Kunego’s cross-motion for sanctions, he contends that
Plaintiff’s motion for reconsideration is frivolous and vexatious and violates the cautionary
language the Court included in its prior Decision and Order to stop making nonsensical
arguments for why this Court is actually not this Court. Flynn Aff. ¶ 8, Dec. 21, 2012, ECF
No. 38. Counsel is referring to this Court’s decision in the companion case, Wik v.
Swapcienski, No. 11-CV-6220-CJS (W.D.N.Y. Feb. 17, 2012). In that Decision, the Court
wrote as follows:
Now before the Court is an application by Plaintiff entitled “Motion to
Challenge Constitutional Standing.” Essentially, Plaintiff maintains that this
Court is not a “Constitutional Article 3 Court,” and that the undersigned is not
“a Judge that ha[s] valid Constitutional standing.” There is well-known maxim
that anyone who acts as his own lawyer has a fool for a client. Another
maxim is that a little learning is a dangerous thing. Superbly illustrating both
of these points, Plaintiff makes a number of nonsensical arguments for why
this Court is not actually this Court. Plaintiff maintains, for example, that he
is entitled to proceed “in the district court of the United States and not the
United States District Court.”
Plaintiff’s application [#28] has no basis in fact or law, and is DENIED.
Plaintiff is a pro se litigant who has brought several actions in this Court over
the past several years, and who should therefore be familiar with Rule 11 of
the Federal Rules of Civil Procedure. Plaintiff is hereby cautioned, with
regard to this action and the other actions that he is currently litigating in this
Court, that if he continues to file frivolous applications he may be sanctioned
pursuant to Rule 11, after notice and an opportunity to be heard. Such
sanctions may include monetary penalties and the dismissal of his actions
with prejudice, as the Court, in its discretion, may deem necessary to deter
such frivolous and vexatious conduct.

-5-

Id. Federal Rule of Civil Procedure 113 provides in pertinent part as follows:
By presenting to the court a pleading, written motion, or other
paper—whether by signing, filing, submitting, or later advocating
it—an…unrepresented party certifies that to the best of the person's
knowledge, information, and belief, formed after an inquiry reasonable under
the circumstances:
(1) it is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of
litigation;
(2) the claims, defenses, and other legal contentions are warranted
by existing law or by a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically
so identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence
or, if specifically so identified, are reasonably based on belief or a lack of
information.
Fed. R. Civ. P. 11(b). Plaintiff’s motion for reconsideration and the two supporting affidavits
he submitted in support appear to the Court to have been presented for the purpose of
harassment, or to needlessly increase the cost of this litigation. Further, he made no legal
arguments warranted by existing law, and has provided no factual contentions refuting that
Town Justice Kunego was acting in his judicial capacity. It is, therefore, hereby
ORDERED, that Daniel J. Wik’s motion for reconsideration, Nov. 7, 2012, ECF No.
35, is denied, and it is further

3

An alternative authority for the imposition of an opposing party’s attorney’s fees as a
sanction, 28 U.S.C. § 1927, is unavailable here since Plaintiff is proceeding pro se. See Sassower
v. Field, 973 F.2d 75 (2d Cir. 1992) (holding that § 1927 sanctions do not apply to non-lawyers, but
that a district court has inherent authority to award attorney’s fees as a sanction for parties who
appear before it acting in bad faith, vexatiously, wantonly, or for oppressive reasons, citing
Chambers v. NASCO, Inc., 501 U.S. 32 (1991).).
-6-

ORDERED, that Daniel J. Wik show cause by March 29, 2013, why sanctions
should not be imposed against him pursuant to Federal Rule of Civil Procedure 11, or this
Court’s inherent authority, for submitting to the Court a frivolous application for
reconsideration; and it is further
ORDERED, that Daniel J. Wik’s failure to respond will result in sanctions being
imposed without further notice to him.
IT IS SO ORDERED.
Dated: February 28, 2013
Rochester, New York
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

-7-