Lizalek et al v. Milwaukee County et al

Filing 28

ORDER signed by Judge Rudolph T. Randa on 9/27/2013 DENYING 25 Motion to Recall Mandate and Amend/Correct Complaint. (cc: all counsel, via US mail to plaintiffs) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GARY CHARLES LIZALEK,
KAREN NANCY LIZALEK, and
UNITED STATES OF AMERICA LAND PATENT,
CERTIFICATE NO. 559,
Plaintiffs,
-vs-

Case No. 12-C-1005

COUNTY OF MILWAUKEE, and
LOT 7 IN BLOCK 2 IN MOUNT ROYAL
ESTATES, LOCATED IN THE NORTHEAST
QUARTER OF THE SOUTHEAST QUARTER OF
SECTION TWENTY, TOWNSHIP EIGHT NORTH,
RANGE TWENTY-TWO EAST OF THE FOURTH
PRINCIPAL EXTENDED MERIDIAN, 1831,
Defendants.

DECISION AND ORDER

On July 2, 2013, this Court issued a Decision and Order granting Defendant
County of Milwaukee‟s (“County”) motion to dismiss on the ground of lack of subject
matter jurisdiction, and dismissing the remaining grounds of that motion and the
summary judgment motion filed by the pro se Plaintiffs Gary Charles Lizalek and
Karen Nancy Lizalek (collectively the “Lizaleks”). Both the Decision and Order and
the final judgment were entered on July 3, 2013. (ECF Nos. 23-24.)

On July 23, 2013, Gary Charles Lizalek (“Gary Charles”)1 filed a motion to
recall the mandate and for leave to amend the complaint to correct deficiencies, and
an affidavit. (ECF Nos. 25-26.) The County filed a response thereto on July 25,
2013. (ECF No. 27.)

The time has passed for Gary Charles to file any reply. See

Civil L.R. 7(c) (E.D. Wis.) This Decision and Order addresses the motion.
Gary Charles‟ motion does not cite any rule of federal civil procedure upon
which he relies. Moreover, although the Court of Appeals routinely issues mandates
this Court does not, and did not do so in this case. The Court construes the motion as
either a motion to alter or amend judgment under the Federal Rules of Civil
Procedure, Rule 59(e) or a motion for relief from judgment or order under Rule 60(b).
Obriecht v. Raemisch, 517 F.3d 489, 493-94 (7th Cir. 2008). Pro se filings are read
broadly and “it is the substance, rather than the form, of a post-judgment motion that
determines the rule under which it should be analyzed.” Id. at 493.
Rule 59(e) encompasses errors of law. Id. at 494 (citing Osterneck v. Ernst &
Whinney, 489 U.S. 169, 174 (1989)). Rule 59(e) allows a court to alter or amend a
judgment only if the petitioner can demonstrate a manifest error of law or present
newly discovered evidence. Sigsworth v. City of Aurora, 487 F.3d 506, 511-12 (7th
Cir. 2007).

1

The Court departs from its practice of referring to individuals by surname to distinguish
between the Lizaleks. No disrespect is intended.

-2-

Rule 60(b) provides an extraordinary remedy that is granted only in
exceptional circumstances. See Eskridge v. Cook County, 577 F.3d 806, 809 (7th Cir.
2009) “Rule 60(b) permits the court to relieve a party from an order on the grounds
of mistake, inadvertence, or excusable neglect.” McCormick v. City of Chicago, 230
F.3d 319, 327 (7th Cir. 2000). The “catch-all” provision in Rule 60(b)(6), allowing
relief for “any other reason that justifies relief,” may also be applicable. Fed. R. Civ.
P. 60(b)(6).
In large part, Gary Charles reiterates his previous arguments, disagrees with
the Court‟s characterization of his filings, and seeks leave to amend his Complaint to
allege jurisdictional facts. He cites paragraph 11 of his affidavit as clarifying the
forum under which the Lizaleks filed this action. He also states that the Court‟s
reference to “[t]he 25-page „Verified Complaint to Quiet Title to Real Private
Property‟ and its accompanying 33-page „Memorandum of Law‟ (ECF No. 15)” was
false because the Lizaleks filed their Complaint on October 3, 2012, and

their

memorandum on November 6, 2012. (Emphasis added).
In retrospect, perhaps the Lizaleks‟ memorandum of law should have been
referred to as a “supporting” memorandum of law rather than an accompanying
memorandum.

However, the electronic filing number, 15, was included in the

statement and there was no statement that the memorandum was contemporaneous.
The Court was attempting to convey that the two documents were related.
However, regardless of whether the motion filed 19 days after the entry of
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judgment is considered under the manifest error of law standard of Rule 59(e) or the
exceptional circumstances standard of Rule 60(b)(6), Gary Charles has not established
a basis for relief. Therefore, his motion is denied, and based on that denial the Court
need not address request to amend. See Vicom, Inc. v. Harbridge Merch. Servs., Inc.,
20 F.3d 771, 784 (7th Cir. 1994)
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
Gary Charles‟s motion to recall the mandate and to amend or correct the
complaint (ECF No. 25) is DENIED.
Dated at Milwaukee, Wisconsin, this 27th day of September, 2013.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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