Andersen v. Vavreck et al

Filing 100

ORDER signed by Judge Pamela Pepper on 6/20/2017 DENYING 94 Plaintiff's Motion for Reconsideration and to Alter or Amend Judgment. (cc: all counsel, via mail to Dean Anderson) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DEAN A. ANDERSEN,

Case No. 15-cv-667-PP
Plaintiff,

v.
MARK VAVRECK and
GONKO & VAVRECK PLLC,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING
THE PLAINTIFF’S MOTION FOR RECONSIDERATION AND TO ALTER OR
AMEND JUDGMENT (DKT. NO. 94)
______________________________________________________________________________
On February 21, 2017, the court granted the defendants’ motion for
summary judgment, denied the plaintiff’s motion for summary judgment, and
dismissed the case. Dkt. No. 92. The court entered judgment on February 23,
2017. Dkt. No. 93. Twenty-eight days later, the plaintiff filed a motion to alter
judgment under Federal Rules of Civil Procedure 59(e) and 60(b). Dkt. No. 94.
The substance of a motion determines whether a court analyzes that
motion under Rule 59(e) or 60(b). Obriecht v. Raemisch, 517 F.3d 489, 493
(7th Cir. 2008) (citing Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir. 2002).
“Rule 59(e) allows the court to alter or amend a judgment only if the petitioner
can demonstrate a manifest error of law or present newly discovered evidence."
Id. at 494 (7th Cir. 2008) (citing Sigsworth v. City of Aurora, 487 F.3d 506,
511-12 (7th Cir. 2007)). A “manifest error” is a “wholesale disregard,

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misapplication, or failure to recognize controlling precedent.” Oto v. Metro. Life
Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation omitted). Alternatively, rule
60(b) allows the court to vacate a judgment for several reasons, including
mistake, excusable neglect, newly discovered evidence, and fraud. See Fed. R.
Civ. P. 60(b). Relief under Rule 60(b) is an “extraordinary remedy and is
granted only in exceptional circumstances.” Karraker v. Rent-A-Center, Inc.,
411 F.3d 831, 837 (7th Cir. 2005).
Under either rule, the plaintiff’s motion to reconsider fails. The plaintiff
identifies several “errors of fact and law, as well as pertinent issues not being
addressed.” Dkt. No. 94 at 1. The plaintiff points out several “errors” which he
indicates are inconsequential, and which do not appear to afford him any relief
regarding the substance of the court’s decision. See, e.g., id. at 1-2. His
supporting brief re-states the arguments he made in summary judgment. Dkt.
No. 95. In the brief, he re-argues, in detail, all the reasons he believes the
defendants committed malpractice. In the motion itself, he disagrees with the
court’s interpretation of a number of facts—which is, of course his right. And
he insists that, even though Judge Stadtmueller stated explicitly that he was
not basing his decision on the defendants’ performance (or lack of
performance), this court cannot know if that was true, and should look at what
probably would have happened had the alleged malpractice not taken place.
At their heart, all of the plaintiff’s arguments boil down to claims that
this court either missed key evidence in his voluminous briefs, or
misunderstood his arguments. The court did neither. The court considered all
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of the evidence the plaintiff raised in his various summary judgment pleadings
(many of which he raises again in this motion to reconsider), and it understood
them. The plaintiff clearly stated his issues, and clearly explained the many
things his attorney did (and, in many instances, did not do) that he believed
constituted malpractice. But this court found that even if the defendants
committed malpractice, Judge Stadtmueller had made clear that that
malpractice did not influence his substantive decision. For that reason, this
court found that the plaintiff could not show that he suffered damages because
of the alleged malpractice. Dkt. No. 92 at 14. This court also found that, while
the plaintiff wanted defendant Vavreck to bring an FDCPA claim on his behalf,
Vavreck had no obligation to do so. Id. at 17.
The plaintiff has presented no newly-discovered evidence to the court.
Thus, the only basis for granting the plaintiff’s motion to reconsider would be if
the plaintiff had identified manifest error—that wholesale disregard or
misapplication of precedent. The plaintiff has not identified any manifest
error—he simply has reiterated what this court already knew: that he disagreed
with Judge Stadtmueller’s statement that the malpractice did not influence the
outcome of the case before Judge Stadtmueller, and that he disagrees with this
court’s analysis of whether the malpractice caused him damage. The plaintiff
has an absolute right to disagree with this court, but the appropriate procedure
for him to use to express that disagreement is to file an appeal to the Seventh
Circuit. See Banks v. Chicago Bd. of Educ., 750 F.3d 663, 667 (7th Cir. 2014)
(“a party invoking Rule 60(b) must claim grounds for relief ‘that could not have
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been used to obtain a reversal by means of a direct appeal.’ Therefore, errors of
law and fact generally do not warrant relief under Rule 60(b)(1) and certainly
do not require such relief.”) (quoting Kiswani v. Phoenix Sec. Agency, Inc., 584
F.3d 741, 743 (7th Cir.2009)).
The court DENIES the plaintiff’s motion for reconsideration. Dkt. No. 94.
Dated in Milwaukee, Wisconsin this 20th day of June, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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