Zielinski v. Wisconsin Labor and Industry Review Commission et al

Filing 43

ORDER signed by Judge Lynn Adelman on 4/21/18. THEREFORE, IT IS ORDERED that plaintiffs motion for relief from the final judgment (Docket No. 24) is DENIED. IT IS FURTHER ORDERED that all other pending motions (Docket Nos. 25, 26, 29, 32, and 37) are DENIED as moot. (cc: all counsel, Plaintiff) (jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARTIN J. ZIELINSKI,
Plaintiff,
v.

Case No. 17-C-471

WISCONSIN LABOR AND INDUSTRY
REVIEW COMMISSION et al.,
Defendants.

ORDER
On December 14, 2017, I dismissed this case for failure to state a claim upon
which relief can be granted and lack of subject-matter jurisdiction and directed the Clerk
of Court to enter final judgment accordingly. Plaintiff moves for relief from the final
judgment, primarily citing Federal Rule of Civil Procedure 60(b)(3), which permits such
relief on the basis of “fraud . . . , misrepresentation, or misconduct by an opposing
party.” Plaintiff argues that this provision applies because one of his claims in this case
is that a legal secretary employed by a Wisconsin state agency lied to him about the
filing and service requirements for appealing an adverse decision of that agency, which
caused him to lose his right to an appeal in state court.1
Plaintiff misunderstands the scope of Rule 60(b)(3), which provides that a federal
court may relieve a party from a judgment if that judgment was procured by fraud. See
Germeraad v. Powers, 826 F.3d 962, 967 (7th Cir. 2016). As the judgment in this case
was not procured by fraud, misrepresentation, or misconduct by an opposing party,
relief from that judgment under Rule 60(b)(3) is not available to plaintiff. Moreover,
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I construed this as a claim for deprivation of plaintiff’s constitutional right of access to
the courts and dismissed it for failure to state a claim upon which relief can be granted.

having reviewed the record, I see no reason to relieve plaintiff from the final judgment or
to reopen this case. Therefore, I will deny plaintiff’s motion.
THEREFORE, IT IS ORDERED that plaintiff’s motion for relief from the final
judgment (Docket No. 24) is DENIED.
IT IS FURTHER ORDERED that all other pending motions (Docket Nos. 25, 26,
29, 32, and 37) are DENIED as moot.
Dated at Milwaukee, Wisconsin, this 21st day of April, 2018.

s/Lynn Adelman___________
LYNN ADELMAN
District Judge

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