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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

NANCY GUCWA AND MARK MARUSZA, 

Plaintiffs, 

v. 

DR. JEFFREY LAWLEY, ET AL., 

Defendants. 

Case No. 15-10815 

SENIOR UNITED STATES DISTRICT 

JUDGE ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

ANTHONY P. PATTI

 / 

AMENDED ORDER DENYING PLAINTIFFS’ MOTION FOR REHEARING AND 

RECONSIDERATION, TO ALTER JUDGMENT, AND FOR RELIEF FROM JUDGMENT 

[112]1

Plaintiffs Nancy Gucwa and Mark Marusza filed a Motion for Rehearing and 

Reconsideration, to Alter Judgment, and for Relief from Judgment on February 6, 

2017 [Dkt. #112]. Plaintiffs move the Court for rehearing and reconsideration of its 

January 23, 2017 Opinion and Order Granting Defendants’ Motions to Dismiss, 

Denying Defendant Dr. Rubin’s Motion for Sanctions, and Denying Plaintiffs’ 

 

1

 This Amended Order is intended to replace the original Order Denying Plaintiffs’ 

Motion for Rehearing and Reconsideration, to Alter Judgment, and for Relief from 

Judgment [120]. The line numbers that were present in the original Order have been 

removed. There is otherwise no difference between this Amended Order and the original 

Order. 
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Motion for Leave to File an Amendment to the Second Amended Complaint [110]. 

Specifically, Plaintiffs ask the Court to rehear, reconsider, and reverse its holdings 

as to Nancy Gucwa’s RICO Claim (Count I), Mark Marusza’s Claim under the 

Medicare Secondary Payer Act (“MSPA”) (Count II), and Plaintiffs’ Claims of 

Tortious Interference (Count III). 

For the reasons stated below, Plaintiffs’ Motions are DENIED.

LEGAL STANDARDS

Local Rule 7.1(h)(3), which governs motions for reconsideration, provides: 

Generally, and without restricting the court’s discretion, the 

court will not grant motions for rehearing or reconsideration that 

merely present the same issues ruled upon by the court, either 

expressly or by reasonable implication. The movant must not 

only demonstrate a palpable defect by which the court and the 

parties and other persons entitled to be heard on the motion have 

been misled but also show that correcting the defect will result in 

a different disposition of the case. 

See Hansmann v. Fid. Invs. Institutional Servs. Co., 326 F.3d 760, 767 (6th Cir. 

2003) (A motion for reconsideration is granted only “if the movant demonstrates 

that the district court and the parties have been misled by a palpable defect, and 

correcting the defect will result in a different disposition of the case”). “A palpable 

defect is a defect which is obvious, clear, unmistakable, manifest or plain.” Fleck 

v. Titan Tire Corp., 177 F. Supp. 2d 605, 624 (E.D. Mich. 2001) (internal citations 

and quotations omitted). “The decision whether to grant reconsideration lies 
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largely within the discretion of the court.” Yuba Natural Res., Inc. v. United States, 

904 F.2d 1577, 1583 (Fed. Cir. 1990). 

Plaintiffs also move the Court under Federal Rules of Civil Procedure 59(e) 

and 60(b) to alter or amend the January 23, 2017 Judgment. Rule 59(e) allows 

courts to alter the judgment based on “(1) a clear error of law; (2) newly 

discovered evidence; (3) an intervening change in controlling law; or (4) a need to 

prevent manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 

2005). In deciding whether to grant a Rule 59(e) motion, courts must “consider[ ] 

the competing interest of protecting the finality of judgments and the expeditious 

termination of litigation.” Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002). 

Parties are not permitted to use such motions to re-argue their case. See Davison v. 

Roadway Express, Inc., 562 F. Supp. 2d 971, 984 (N.D. Ohio 2008) (Rule 59(e) 

motions are not “designed to give an unhappy litigant an opportunity to relitigate 

matters already decided[.]”). 

Similarly, “relief under Rule 60(b) is ‘circumscribed by public policy 

favoring finality of judgments and termination of litigation.” Blue Diamond Coal 

Co. v. Trs. of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 

2001) (quoting Waifersong Ltd., Inc. v. Classic Music Vending, 976 F.2d 290, 292 

(6th Cir. 1992)). Relief under Rule 60(b) may be granted for the following reasons: 
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(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly 

discovered evidence which by due diligence could not have been discovered 

in time to move for a new trial under Rule 59(e); (3) fraud (whether previously 

called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing 

party; (4) the judgment is void; (5) the judgment has been satisfied, released, 

or discharged; it is based on an earlier judgment that has been reversed or 

vacated; or applying it prospectively is no longer equitable; or (6) any other 

reason that justifies relief. 

Fed. R. Civ. P. 60(b). “Relief under rule 60(b) is extraordinary and may only be 

granted in exceptional circumstances.” Higgs v. Sanford, 2009 WL 1734467, at *1 

(W.D. Ky. June 17, 2009) (internal quotations omitted). 

ANALYSIS

A. Gucwa’s RICO Claim 

Plaintiff Gucwa argues that the Court erred when it dismissed her RICO 

claim for lack of standing. Gucwa highlights the fact that she filed a Form C 

Application for Mediation or Hearing with the Workers’ Compensation Agency, 

demonstrating that she continued asserting her “entitlement to be paid for services 

rendered.” (Dkt. 112 at 12). Further, according to Plaintiffs, Gucwa suffered an 

injury in that she was not compensated for the services she rendered. 

Gucwa’s arguments are the same as those presented in response to 

Defendants’ motions to dismiss. “[T]he proper forum for expressing disagreement 

with the Court’s substantive reasoning is an appeal on the merits,” and the Court 

declines to address Plaintiffs’ “allegations of substantive errors” in deciding the 
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instant motion. Doshi v. General Cable Corp., 2015 WL 2229233, at *2 n.2 (E.D. 

Ky. May 12, 2015). As discussed in the January 23, 2017 Opinion and Order, it 

would not make sense to allow Gucwa to recover where Marusza – the injured 

party – cannot. Gucwa’s claimed damages are too intimately connected with 

Marusza’s personal injury underlying his workers’ compensation claim to 

constitute an injury to business or property that is recoverable under RICO. See 

Lewis v. Drouillard, 788 F. Supp. 2d 567, 570 (E.D. Mich. 2011); Jackson v. 

Sedgwick Claims Management Services, 731 F.3d 556, 566 (6th Cir. 2013) (en 

banc) (explaining that “an award of benefits under a workers’ compensation 

system and any dispute over those benefits are inextricably intertwined with a 

personal injury giving rise to the benefits.”) (emphasis added). 

B. Marusza’s MSPA Claim 

Plaintiff Marusza alleges, for the first time, that he suffered financial loss 

because Medicare stepped in to pay $15,000 for medical bills related to his 

traumatic brain injury when Accident Fund (“AF”) refused to do so. He also claims 

in an affidavit that he made co-pays which he would not have paid had AF paid the 

bills. 

It is well established that “a motion for reconsideration may not be used to 

raise issues that could have been raised in the previous motion.” Aero-Motive Co. 
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Great Am. Ins., 302 F.Supp. 2d 738, 740 (W.D. Mich. 2003). Plaintiff, perhaps 

recognizing the futility of raising this new argument at this stage in the 

proceedings, claims that the Court did not ask about financial harm during the 

December 2, 2016 hearing, nor did it give him the opportunity to amend the 

complaint to allege financial harm. To the contrary, the Court engaged in a lengthy 

discussion with Plaintiffs’ counsel regarding Marusza’s MSPA claim. See Tr. 

35:15-39:9. That Plaintiffs’ counsel chose not to mention Marusza’s financial harm 

is no fault of the Court’s. Furthermore, in none of the three versions of Plaintiffs’ 

complaint does Marusza mention the financial harm he suffered, notwithstanding 

the fact that Plaintiffs amended their complaint twice. See Dkt. 1, 2, 75. 

Marusza’s affidavit is also unhelpful. It provides, in relevant part: 

[Marusza] has suffered financial harm because Medicare has paid bills which 

Accident Fund should have paid for treatment of injuries arising out of his 

work-related accident. Because Accident Fund refused to pay the bills, he has 

been required to pay co-pays because Medicare does not pay the entire bill. 

Whereas under the workers’ compensation system, when Accident Fund pays 

his bill, he does not have to pay a co-pay. 

(Dkt. 112-1). 

Plaintiff Marusza does not provide the Court with any information about the 

amounts of these alleged co-pays or bills, when the payments were made, or the 

type and extent of medical services that were rendered. He also does not submit 

any documentary evidence – such as receipts or billing statements – in support of 
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his claims. See Baker v. Gerdenich Realty Co., 2009 WL 997262, at *1 (N.D. Ohio 

Apr. 14, 2009) (the “self-serving conclusions” in plaintiff’s affidavit, to which he 

cited in support of his motion for reconsideration, were insufficient to “overcome 

the extrinsic corroborating evidence Defendant supplied in support of its Motion 

for Summary Judgment.”); Worley v. Perfect Equipment Co., LLC, 2006 WL 

17333, at *5-6 (M.D. Tenn. Jan. 3, 2006) (on a motion for reconsideration, the 

plaintiff’s affidavit, which contained “conclusory and unsupported allegations” and 

was “completely unsubstantiated and not corroborated by any other evidence in the 

record,” was “insufficient to create a genuine issue of material fact to defeat 

summary judgment.”). 

The substance of Plaintiffs’ argument also fails. A private plaintiff may 

invoke the MSPA if two conditions precedent are met: “[f]irst, Medicare must have 

actually made payments on the claimant’s behalf . . . second, the primary insurer 

must be ‘responsible’ for paying the benefits at issue.” Geer v. Amex Assur. Co., 

2010 WL 2681160, at *4 (E.D. Mich. July 6, 2010). As AF points out, Marusza 

has not pled specific facts alleging that AF is responsible for the payments to 

Medicare. In fact, it is the Court’s understanding that Medicare has not issued a 

final determination letter as to the amount that AF is responsible for. See Tr. at 

35:11-14; Dkt. 118-7. It is not clear that AF actually owes Medicare anything. 
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Plaintiff cannot simply make conclusory statements when there is no evidence that 

AF is even required to make any payments on Marusza’s behalf. 

C. Tortious Interference 

In its January 23, 2017 Opinion and Order, the Court dismissed Plaintiffs’ 

claims for tortious interference against Doctors Baker, Ager, and Rubin. To 

succeed on a claim for tortious interference with a contract, Plaintiffs must show 

“(1) the existence of a contract, (2) a breach of the contract, and (3) an unjustified 

instigation of the breach by the defendant.” Knight Enterprises v. RPF Oil Co., 829 

N.W.2d 345, 348 (Mich. Ct. App. 2013). Plaintiffs’ claims were dismissed 

because: 

AF allegedly had a pre-existing intent to deny workers’ compensation 

benefits and hired the doctor defendants to effectuate that intent by 

providing a pretext for the denial. In other words, Plaintiffs have alleged that 

the doctor defendants did not induce the breach; rather, AF intended to 

breach the contract all along. 

Dkt. 110 at 14. 

Plaintiffs’ argument with respect to the dismissal of their claims for tortious 

interference is confusing. The gist of their argument seems to be that the Court 

impermissibly relied on Count I of the Second Amended Complaint – the RICO 

cause of action – to support its dismissal of Count III – tortious interference with 

contract and business expectancy. According to Plaintiffs, 
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[E]ven if Plaintiffs alleged elsewhere in the [Second Amended Complaint] 

that the doctors were AF’s puppets – handing over “cut-off” reports like 

puppets whose strings were pulled – plaintiffs made no such allegations in 

Count III. Plaintiffs were free to allege puppet doctors in Count I and not 

allege puppet doctors in Count III: this is permitted by FRCP 8(d)(3). 

(Dkt. 112 at 7-8). 

Essentially, Plaintiffs argue that they can and have set forth two inconsistent 

claims pursuant to Federal Rule of Civil Procedure 8(d)(3): first, in Count I, that 

AF knowingly chose to take part in the fraudulent scheme with the doctor 

defendants, and second, in Count III, that AF was not part of the conspiracy and in 

fact, the individual doctor defendants induced AF to deny Marusza benefits. 

Plaintiffs are incorrect for a number of reasons. First, Plaintiffs have not 

shown that they could not have previously raised this argument as to pleading 

inconsistent claims. “[A] motion for reconsideration is not properly used as a 

vehicle . . . to advance positions that could have been argued earlier but were not.” 

Smith ex rel. Smith v. Mount Pleasant Public Schools, 298 F. Supp. 2d 636, 637 

(E.D. Mich. 2003). 

Plaintiffs’ claims also fail on the merits. “[A] pleader may assert 

contradictory statements of fact only when legitimately in doubt about the facts in 

question.” Am. Int’l Adjustment Co. v. Galvin, 86 F.3d 1455, 1461 (7th Cir. 1996). 

“A party is not free to plead any and all facts that might entitle it to relief simply 
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because inconsistency of factual allegations is permissible under Rule 8.” Emkey v. 

Sec’y of Health & Human Servs., 2009 WL 3683390, at *15 (Fed. Ct. Cl. Oct. 20, 

2009). 

Count I of Plaintiffs’ Second Amended Complaint – the RICO claim – 

provides: 

Accident Fund hired the defendant doctors to examine allegedly injured 

persons, to write dishonest, biased and otherwise fraudulent reports, and if 

needed to give dishonest testimony based on the reports, all to deceive the 

Workers’ Compensation Agency, its magistrates, and appellate bodies in the 

Michigan workers compensation system. 

(Dkt. 75 at 18-19). 

Count III of Plaintiffs’ Second Amended Complaint – tortious interference 

with contract or business expectancy – contains the following language: 

 Plaintiffs incorporate all allegations of this complaint. 

 The acts of bias, fraud and dishonesty are described in Count I, 

incorporated herein. 

 Dr. Lawley’s report that Marusza suffered no pathology or disability . . 

. was biased, dishonest, fraudulent and contained material and 

misleading omissions, as described in Count I, the allegations of which 

are incorporated here. 

(Dkt. 75, ¶¶ 51, 55, 58) (emphasis added). 

Comparing the two counts, it is clear that Plaintiffs themselves recognize 

that Count III is implicated by Count I, as Count III explicitly states – twice – that 

it “incorporate[s] all allegations of this complaint.” 
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In a similar case, Haber v. Rabin, 2016 WL 3217869, at *3 (N.D. Ohio June 

10, 2016), the court examined an amended complaint that contained multiple 

inconsistencies. The plaintiff, relying on Rule 8(d)(3), attempted to plead a 

Lanham Act claim as an alternative to his breach of contract claim. The court 

found that the Lanham Act claim was improperly pled because the plaintiff “realleges paragraphs 1 through 60 [which centered on state-law breach of contract 

theories] and incorporates them [into the Lanham Act count] by reference.” Id.

(internal quotations omitted). Because the plaintiff incorporated specific 

allegations from the breach of contract claims into his Lanham Act claim, the two 

claims – which were “crucial[ly] inconsisten[t]” – were improperly pled and 

subject to dismissal. Id. at *2, *4. 

The same thing has occurred here: Plaintiffs’ tortious interference claims 

against Doctors Baker, Ager, and Rubin expressly “incorporate all allegations of 

this complaint,” including the RICO claims. (Dkt. 75, ¶ 51). “While Rule 8(d)(3) 

allows inconsistent claims . . . it does not allow what Plaintiffs are attempting to do 

here – namely, to make ‘clashing factual assertions . . . in the context of the same 

claim.” Aaron v. Medtronic, Inc., 209 F. Supp. 3d 994 (S.D. Ohio 2016). 

Moreover, 

While Federal Rule of Civil Procedure 8(d)(2) permits a party to plead in the 

alternative and Rule 8(d)(3) permits separate claims regardless of consistency, 
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a court “need not feel constrained to accept as truth conflicting pleadings that 

make no sense, or that would render a claim incoherent, or that are 

contradicted either by statements in the complaint itself or by documents upon 

which its pleadings rely.” 

Miles v. Federal Insurance Company, 2017 WL 559582, at *4 (E.D. Ky. Feb. 10, 

2017) (quoting Williams v. CitiMortgage, Inc., 498 Fed. Appx 532, 536 (6th Cir. 

2012) (per curiam)). 

Contrary to what they now argue in their motion for reconsideration, 

Plaintiffs have consistently maintained that “[a]ll causes of action turn on the 

existence of a scheme . . . by Accident Fund acting with Drs. Baker, Ager, and 

Rubin to deny that Marusza suffered TBI and related conditions.” (Dkt. 96 at 1); 

see also Dkt. 94 at 12 (the allegations that “AF used Baker’s, Ager’s and Rubin’s 

reports as grounds to deny Gucwa and Marusza payment . . . are at the heart of the 

RICO claim . . . and the tortious interference claims.”); Dkt. 75 at 62 (Count III of 

Plaintiffs’ Second Amended Complaint – the tortious interference claims – 

expressly states: “Plaintiffs incorporate all allegations of this complaint.”). 

CONCLUSION

Plaintiffs have not met their heavy burden of showing that the Court should 

reverse its January 23, 2017 Opinion and Order [110]. Accordingly, 
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IT IS ORDERED that Plaintiffs’ Motion for Rehearing and 

Reconsideration, to Alter Judgment, and for Relief from Judgment [112] is 

DENIED. 

SO ORDERED. 

 

/s/Arthur J. Tarnow__________________ 

 Arthur J. Tarnow 

Dated: June 29, 2017 Senior United States District Judge 

Certificate of Service

I hereby certify that this Order was electronically filed, and the parties 

and/or counsel of record were served on June 30, 2017. 

 s/A. Chubb for M. Lang 

 Case Manager