Nowicki et al v. Delao et al

Filing 77

ORDER signed by Judge Lynn Adelman on 4/14/12 denying 68 Motion for reconsideration, for leave to file second amended complaint and to appoint counsel. Further denying as moot plaintiffs' motion for an extension of time to file an appeal 68 ; denying 73 Motion for Sanctions; denying 76 Motion for Recusal. (cc: all counsel, via USPS to plaintiffs) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAVID A. NOWICKI, and
BARBARA C. TREMEL,
Plaintiffs,
v.

Case No. 11-CV-00514

ALICE E. DELAO, et al.,
Defendants.

DECISION AND ORDER
On February 3, 2012, I issued an order dismissing pro se plaintiffs’ David Nowicki
and Barbara Tremel’s first amended complaint. On February 22, 2012, plaintiffs filed a
motion for reconsideration pursuant to Federal Rule of Civil Procedure 59(e) and requested
leave to file a second amended complaint. I may grant a motion for reconsideration on the
basis of newly discovered evidence or to correct a manifest error of fact or law. Moro v.
Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996). Plaintiffs’ brief in support of their motion for
reconsideration claims that they have new evidence to present to the court. However,
neither their brief nor their proposed second amended complaint actually identifies any new
evidence. While the second amended complaint is eight pages longer than the first
amended complaint and drops plaintiffs’ claims against some of the defendants, the factual
allegations in both complaints are substantially the same. As a result, I will deny the motion
for reconsideration and the motion to file a second amended complaint.
Plaintiffs have also requested that I appoint counsel to represent them and that I
recuse myself from this case. Although this court has the discretion to request attorneys

to represent indigents in appropriate cases pursuant to 28 U.S.C. § 1915(e)(1), Luttrell v.
Nickel, 129 F.3d 933, 936 (7th Cir. 1997), plaintiffs have not presented any evidence that
they are indigent. They paid the $350.00 filing fee for this case. Therefore, I will deny their
motion to appoint counsel. I will also deny plaintiffs’ motion for recusal because I do not
believe there is any legitimate reason for me to recuse myself. The fact that my wife made
a political contribution six years ago to a person who is not a party to this litigation does not
affect my ability to impartially decide this case.
Finally, plaintiffs have brought a motion to extend the time for filing a notice of
appeal, but I will deny this motion as moot. Under Federal Rule of Appellate Procedure 4,
a party normally has 30 days from the entry of judgment to file a notice of appeal. However,
if a party files a motion for reconsideration, as plaintiffs did here, the time for filing an
appeal is extended and does not begin to run until the district court enters the order
disposing of the motion for reconsideration. See Fed. R. App. P. 4(a)(4)(A)(iv). Therefore,
plaintiffs still have 30 days from the entry of this order to file their notice of appeal if they
wish to do so. The request for additional time was unnecessary.
As a result of plaintiffs’ prosecution of this case, defendants Margaret Bowitz,
Meghan Wanke, and the Milwaukee Metropolitan Fair Housing Council (“MMFHC”) have
filed a motion for sanctions against plaintiffs under Federal Rule of Civil Procedure 11(b).
On July 27, 2011, these defendants gave plaintiffs notice of their intent to seek sanctions.
These defendants contend that plaintiffs filed this case in bad faith, making sweeping
allegations of fraud, conspiracy, extortion, racketeering, and racial discrimination in an
effort to retaliate against defendants for assisting Tunisha Perkins in prosecuting plaintiffs
for housing discrimination. After receiving notice of defendants’ intention to seek sanctions,
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plaintiffs chose not to withdraw their complaint and vigorously opposed all of the
defendants’ motions to dismiss. Defendants Bowitz, Wanke and the MMFHC now ask that
plaintiffs be required to pay their reasonable attorneys fees associated with defending this
case. Because plaintiffs are proceeding pro se, I will refrain from awarding sanctions at this
time. However, I warn plaintiffs that if they continue to attempt to re-litigate in this court the
claims which I have now clearly rejected, I will impose monetary sanctions.
THEREFORE, IT IS ORDERED that plaintiffs’ motion for reconsideration and for
leave to file a second amended complaint [DOCKET #68] is DENIED.
IT IS FURTHER ORDERED that plaintiffs’ motion to appoint counsel [DOCKET #68]
is DENIED.
IT IS FURTHER ORDERED that plaintiffs’ motion for an extension of the time to file
an appeal [DOCKET #68] is DENIED AS MOOT.
IT IS FURTHER ORDERED that plaintiffs’ motion for recusal [DOCKET #76] is
DENIED.
IT IS FURTHER ORDERED that the motion for sanctions [DOCKET #73] is
DENIED.
Dated at Milwaukee, Wisconsin, this 14th day of April, 2012.

s/_______________________
LYNN ADELMAN
District Judge

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