Mucha et al v. State of Wisconsin et al
Filing
80
ORDER signed by Judge Lynn Adelman on 4/10/13 denying 78 Motion for Reconsideration. (cc: all counsel, via USPS to plaintiffs) (dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THOMAS MUCHA, and DIANA K. MUELLER,
Plaintiffs,
v.
Case No. 12-CV-00202
STATE OF WISCONSIN, et al.,
Defendants.
DECISION AND ORDER
Pro se plaintiffs Thomas Mucha and Diana Mueller brought this lawsuit against over
40 defendants under 42 U.S.C. §§ 1983, 1985 and 1986. I dismissed the complaint on
April 17, 2012 because I found that the real plaintiff is James D. Lammers (also known as
James Kurtz), who is on the Seventh Circuit’s list of restricted filers. I then denied plaintiffs’
motion for reconsideration under Fed. R. Civ. P. 59(e). Instead of appealing that decision,
plaintiffs filed a second motion for reconsideration on November 6, 2012.1 I treat this as a
motion for relief from the judgment under Fed. R. Civ. P. 60(b) because it was filed more
than 28 days after the entry of the judgment. See Fed. R. Civ. P. 59(e) (“A motion to alter
or amend a judgment must be filed no later than 28 days after the entry of the judgment.”);
see also Andrews v. E.I. Du Pont De Nemours & Co., 447 F.3d 510, 515–16 (7th Cir. 2006)
(noting that ordinarily “[a] party gets one shot at asking the district court to alter or amend
the judgment”).
1
The docket indicates the motion was filed on December 20, 2012, but the time
stamp on the motion indicates it was received by the clerk on November 6. The delay in
docketing was caused by the fact that Lammers himself submitted the motion and the clerk
was not sure whether to return it to him or docket it given his status as a restricted filer.
According to the complaint, Lammers, Mucha, and Mueller are all shareholders in
Buzz Energies, Inc. (“Buzz Energies”), a company that was started and is controlled by
Lammers. Mueller is Lammers’ fiancé, and she and Mucha are suing as shareholders of
Buzz Energies because they claim defendants wrongfully deprived the company of its right
to use a farm located in Plymouth, Wisconsin. Lammers was the legal owner of the farm
and he gave the company permission to conduct its business there. Business was
interrupted, however, in May 2009 when officials from the State of Wisconsin evicted
Lammers from the farm, confiscated his personal property located thereon and transferred
possession of the property to Janet and Gust Lammers.
After reviewing the complaint, I found that the real claim in this case is not that Buzz
Energies lost access to the farm, but that defendants wrongfully deprived Lammers of his
property. As a result, I concluded that this lawsuit was barred by the Seventh Circuit’s Mack
order against Lammers. See Lammers v. Ellerd, 202 F.3d 273, at *1–2 (7th Cir. 1999)
(unpublished disposition) (citing Support Systems Int’l, Inc. v. Mack, 45 F.3d 185 (7th Cir.
1995)). This conclusion was supported by the fact that, in addition to monetary relief, the
complaint seeks reversal of the Mack order against Lammers. (Compl. 14, ¶¶ 42–44, ECF
No. 1.) In response, Lammers tried unsuccessfully to get the restrictions against him lifted
and plaintiffs asked that he be added to the case. Plaintiffs also moved for reconsideration
on the ground that they owned some of the personal property seized by defendants. I
denied the request to add Lammers as a plaintiff. I also denied the motion for
2
reconsideration because the complaint alleges that Lammers was the owner of the real
and personal property seized and plaintiffs did not move to amend the complaint.2
In the present motion, plaintiffs again claim that they owned some of the personal
property on the farm. They also argue that the complaint states claims on behalf of Buzz
Energies independent of Lammers’ claims. “‘Relief under Rule 60(b) is an extraordinary
remedy that is to be granted only in exceptional circumstances.’” Talano v. Northwestern
Medical Faculty Foundation, Inc., 273 F.3d 757, 762 (7th Cir. 2001) (quoting Provident
Sav. Bank v. Popovich, 71 F.3d 696, 698 (7th Cir. 1995)). Plaintiffs’ motion presents no
justification for relief under this rule. All of their arguments could have been raised on direct
appeal. See Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 742–43 (7th Cir. 2009)
(“[T]he grounds for setting aside a judgment under this rule must be something that could
not have been used to obtain a reversal by means of a direct appeal.”).
THEREFORE, IT IS ORDERED that plaintiffs’ motion for reconsideration [DOCKET
#78] is DENIED.
Dated at Milwaukee, Wisconsin, this 10th day of April 2013.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge
2
The facts section of the complaint makes no mention of personal property owned
by either Mueller or Mucha. Instead, it states that at all relevant times Lammers owned the
farm and the personal property thereon. (Compl. 22, ¶ 1.) Documents attached to the
complaint also describe Lammers as “owner of the personal properties used by [Buzz
Energies].” (Compl. 15, 17.)
3
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