LAVIGNE v. US TRUSTEE

Filing 22

ORDER denying 10 Motion for Injunction; denying 10 Motion for TRO; denying 19 Motion to Transfer; denying 21 Motion for Sanctions; denying 21 Motion to Vacate. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BEVERLY ANN LAVIGNE
v.
US TRUSTEE, et al.

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1:16-cv-00098-JAW

ORDER ON MOTIONS FOR TEMPORARY RESTRAINING ORDER,
TRANSFER, AND SANCTIONS
After appealing from the Bankruptcy Court’s dismissal of her Chapter 11
petition, Ms. Lavigne filed a motion for temporary restraining order, a motion to
transfer her appeal to another district court, and a motion for sanctions and to vacate
state of Maine court orders. Upon reviewing their merits, the Court denies all
motions.
I.

PROCEDURAL HISTORY
On February 17, 2016, Beverly Ann Lavigne filed a bankruptcy appeal with

this Court. Notice of Appeal and Statement of Election (ECF No. 1). When Ms.
Lavigne failed to designate a record on appeal, the Court issued an Order to Show
Cause on March 17, 2016. Order to Show Cause (ECF No. 3). On March 18, 2016,
Ms. Lavigne moved to extend the time to respond to the Order to Show Cause. Mot.
for Time Extensions to Prepare Docs. (ECF No. 4). On March 24, 2016, the Court
issued an order that a stay was still in effect on the matter pursuant to 11 U.S.C. §
362(c)(2) of the Bankruptcy Code, Order on Stay Issue (ECF No. 5), and on March 25,
2016, the Court issued an order over the objections of the Bank of New York Mellon,

Vivian Savage, and Gail Ferry, granting the motion for extension and giving Ms.
Lavigne until April 25, 2016 to comply with Federal Rule of Bankruptcy 8009(a)(1).
Order on Mot. for Extension (ECF No. 8). On March 29, 2016, Ms. Lavigne filed a
letter with this Court setting forth the issues on appeal and designating the record
upon which she intends to rely. Statement of Issues to Designate a Record (ECF No.
9-1).
Ms. Lavigne filed a motion for temporary restraining order (TRO) on April 19,
2016, against Respondents Gail Ferry and Vivian Savage, in addition to their
attorney, Joseph O’Donnell. Pet. for Ex Parte TRO and for Inj. from Harassment or
Interference with Business “Me. Cottage Getaways” Prop. (ECF No. 10) (Pet.’s TRO).
On April 22, 2016, Ms. Lavigne filed a reply to the motion to show cause. Reply Mot.
for Mot. to Show Cause (ECF No. 13). The Court issued a status order on April 25,
2016, establishing that Ms. Lavigne’s March 29, 2016 filing facially complied with
Rule 8009(a)(1), deeming the Order to Show Cause satisfied.1 Status Order (ECF No.
14). On April 25, 2016, the Respondents filed a response to Ms. Lavigne’s motion for
TRO. Joseph M. O’Donnell’s Resp. to “Pet. for Ex Parte TRO and for Inj. from
Harassment or Interference with Business ‘Me. Cottage Getaways’” (ECF No. 15)
(Resp’ts’ Opp’n). Ms. Lavigne filed a reply to the Respondents’ response on May 9,

On May 11, 2016, the Clerk for the United States Bankruptcy Court for the District of Maine
filed a Certificate of Readiness with the Court certifying that “the annexed documents are copies of
the original papers as described in the accompanying Designation(s) of Record and constitute the
Record on Appeal in the case entitled and numbered Bankruptcy Case: In re: Beverly A. Lavigne –
Case No. 16-20035.” Certificate of Readiness (ECF No. 20).
1

2

2016. Reply to Mr. O’Donnell, Esq. Resp. to Pet. for Ex parte TRO (ECF No. 18) (Pet.’s
Reply).
In addition, Ms. Lavigne filed a motion to transfer the case to the Districts of
Columbia or Florida on May 9, 2016, Mot. to or Notice of Removal (ECF No. 19) (Mot.
to Transfer), and on May 16, 2016, she filed a motion for sanctions and to vacate a
state court order. Motion to Sanction All Plaintiffs and to Vacate Order of $94,000 by
Judge Nancy Carlson (ECF No. 21) (Mot. for Sanctions).
II.

THE PARTIES’ POSITIONS
A.

Motion for Temporary Restraining Order

Ms. Lavigne frames her motion for TRO as an “ENFORCEMENT of STAY that
is already in Place from this District Court” and that the respondents are
“[d]efaulting on that stay.” Pet.’s TRO at 1. The relief she seeks is as follows: (1) “[a]n
ex parte [TRO] for the time for review of the [a]ppeal” enjoining the Respondents from
“Slandering Title or Creating a Document that Slanders or alters the ‘Lavigne’ name
or property, including Maine Cottage Getaways,” “Threatening Petitioner or any
person(s) residing at Petitioner(s) residence,” “Entering Petitioners’ business (54
Evergreen Ave), including yard and shed area”; (2) injunctive relief “not to exceed a
period of [three] years, enjoining Respondents from slanderous or damaging remarks
for personal . . . or business entities owned or managed by Beverly Lavigne [including
enjoining] respondent(s) from interference with business or property or any attempt
for any sale of property”; (3) “enjoining Respondent(s) and any other person(s) acting
on Respondent(s) behalf from committing those acts set forth”; (4) an injunction “that

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prevents Respondent(s) sale of any property or any recordation of any deeds in any
instrument to be recorded in any Maine State Registry of Deeds until funds are
provided for Quiet Title or Tile research for Franklin County and York County Deeds
prepared by Respondent and injunction for a period of 5 years thereafter”; (5) an
injunction “to stop any seizure of property and return any and all subject to final
decision of appeals court and full repayment of $30,000 owed with interest to
Petitioner until the conclusion of Review”; and (6) “reasonable attorney’s fees and
costs . . . and such further relief as the Court [d]eems just and appropriate.” Id. at 12.
Ms. Lavigne asserts that Gail Ferry, Viviane Savage and their counsel, Joseph
O’Donnell, “have applied methods of thievery . . . to take property and destroy an
income producing business while [the stay] was continued by order of” this Court.
Pet.’s TRO Attach. 1 Decl. of Pet., at 1 (ECF No. 10) (Pet.’s Decl.). She argues that the
Respondents have violated her “28 U.S.C.[] [§] 1292 First Amendment freedoms,”
causing “irreparable injury which necessitates immediate redress.”2 Id. at 1. Ms.
Lavigne also suggests that there are jurisdiction, conflict of interest, and conflict of
laws issues, and states that on November 19, 2015,3 the Hon. Nancy Carlson of the
state of Maine District Court held a hearing in Franklin County and issued an order

In making her argument Ms. Lavigne cites “Dayton Are Visual Impaired v Fisher.” Pet.’s Decl.
at 1. The Court believes this to be a citation to the Sixth Circuit decision of Dayton Area Visually
Impaired Persons, Inc. v. Fisher, 70 F.3d 1474 (6th Cir. 1995). Fisher involved an interlocutory appeal
from a district court's order in part denying injunctive relief in response to First Amendment and equal
protection challenges to Ohio's charitable solicitation statutes. 28 U.S.C. § 1292 governs a court of
appeals’ jurisdiction over interlocutory appeals.
3
Ms. Lavigne’s declaration stated “[o]n November 19, 2016.” The Court suspects that this was
intended to read November 19, 2015.
2

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that Ms. Lavigne believes the Respondents are using to take actions against her
property. Id. at 1. These actions include Mr. O’Donnell notifying tenants of Maine
Cottage Getaways, as well as neighbors of the property, that Mr. Lavigne no longer
owns the property and that they should notify Mr. O’Donnell if Mr. Lavigne
“approached the property.” Id. at 2. Ms. Lavigne also alleges that the Respondents
“changed the locks and gave the local policeman a key,” instructed tenant Marlisa
Clapp not to pay the rent to her and instead to Gail Ferry, that on January 15, 2016
Gail Ferry registered herself with the Secretary of State’s Office as the “Registered
Agent of Maine Cottage Getaways” in violation of state of Maine law, and that Ms.
Ferry now “tells everyone” she is the owner of Maine Cottage Getaways, LLC, which
is a significant asset subject to the bankruptcy appeal in this Court. Id. at 2.
Additionally, Ms. Lavigne alleges that there were “attempts to record an unrecordable transfer tax” regarding her property, as on February 29, 2016 Gail Ferry
delivered a quitclaim deed to the York County registry of deeds as “Gail Ferry agent
of . . . Maine Cottage Getaways.” Id.; Pet’s TRO Attach. 3 Quitclaim Deed (ECF No.
10). Also, Ms. Lavigne argues she owes less than $94,000, and cites a promissory
note from September 5, 2003, where Ms. Lavigne, in her capacity as Trustee of the
Roger J. Lavigne Trust, promised to repay to herself, in her individual capacity,
$30,000 with 8 percent interest. Pet’s TRO Attach. 5 Promissory Note (ECF No. 10).
Further, Ms. Lavigne disputes the payoff amount and estimated value of the 54
Evergreen Ave. property, and asserts “Truth and Lending” violations. Id.

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B.

Respondents’ Response to Motion for TRO

The Respondents, “without waiving any defenses for insufficiency of service of
process, jurisdiction, venue, and related defenses,” ask the Court to deny Ms.
Lavigne’s motion for TRO on a number of grounds. Resp’ts’ Opp’n at 1. First, Mr.
O’Donnell asserts that, as counsel for Vivian Savage and Gail Ferry, he is not a proper
party to this matter, as no argument has been made as to why he should be joined as
a party, there has been no service of process on him, and he has not waived any
requirement that process be served. Id. (citing FED. R. CIV. P. 12(b)(5) & 20). The
Respondents also assert Ms. Lavigne has failed to state a claim upon which relief can
be granted, raising Federal Rule of Civil Procedure 12(b)(6) and arguing that she has
cited to “no rule or law as to why relief should be granted,” nor has she specified
exactly what relief she seeks or why it is being asked. Id. at 2.
Moreover, the Respondents contend that Ms. Lavigne’s motion for injunctive
relief “does not make a claim that contains the cognizable elements of a preliminary
injunction.” Id. Citing Diaz-Carrasquillo v. Garcia-Padilla, 750 F.3d 7, 10 (1st Cir.
2014), they offer the standard when considering a request for a temporary restraining
order and preliminary injunction, in that the movant must prove by reasonable
certainty: (1) the “likelihood of success on the merits,” (2) “irreparable harm if the
request is rejected,” (3) that the hardship to the movant outweighs any hardship to
the parties against whom the order is sought,” and (4) “any effect that the injunction
would have on the public interest.” Id.

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The Respondents contend that Ms. Lavigne has made no showing of a
likelihood of success on the merits of her claim, as “it is not entirely clear to counsel
what her claim is, and what relief is being sought against the named parties,” and
likewise “has made no showing of irreparable harm that would result from a lack of
such an order.” Id. at 3. Regarding her claim that on November 19, 2016, when the
Maine District Court considered Gail Ferry’s turn-over request, the Respondents
argue that there was no automatic stay in effect, and that Ms. Lavigne’s Chapter 11
case was not filed until January 28, 2016.

Id.

Further, they assert that the

continuance of the stay per 11 U.S.C. § 362(c)(3) is limited because her case before
the Bankruptcy Court was dismissed on November 24, 2015, and even though she
filed the instant Chapter 11 petition within a year of the dismissal, she did not seek
to extend the stay in this Court on a showing of good cause and the stay expires within
30 days. Id. Moreover, the Respondents contend it is unclear if there would be any
hardship at all if the order was not granted, and any hardship to Ms. Lavigne would
not outweigh the hardship of the parties named in this motion, “especially where it
is unclear for what relief is being asked.” Id. Finally, the Respondents claim a grant
of injunction “would be contrary to the public interest as it would invite vague
pleadings with the promise of relief, and subject the courts and the public to
additional burden and expense.” Id.
C.

Ms. Lavigne’s Reply

In her reply Ms. Lavigne raises a number of grievances regarding the
proceedings before the Bankruptcy Court and the opposing parties’ actions in this

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matter, demanding reports and transcripts from unspecified court proceedings while
asserting improper jurisdiction. Pet.’s Reply at 1-2. She claims that Mr. O’Donnell is
a party “because of his intent to exercise control over the assets (away from the
bankruptcy court) and created fraud upon the court that he brought forward,”
alleging that his filings in state court should have been with the Bankruptcy Court.
Id. at 2-3, 5.
Addressing the Respondent’s arguments against Mr. Lavigne’s motion for
TRO, she argues she will have success on the merits “because the evidence or lack
thereof will show fraudulent charges created by sham petitioning,” and lists the
harms to herself, her property, and her business that will continue without a
restraining order on the Respondents for their violations of the stay. Id. at 3-5.
Further, Ms. Lavigne seeks recovery of damages for violations of 11 USC § 362 and
also asks the Court to remove the proceeding to Florida as “this State has had over
20 years to resolve this trust matter and has failed.” Id. at 6-7.
D.

Motion for Transfer

Ms. Lavigne raised the issue of transfer in her April 22, 2016 response to the
Order to Show Cause. Reply to Mot. to Show Cause, at 3 (ECF No. 13). Specifically,
Ms. Lavigne points out that a trust instrument at issue was drafted to be “construed
and regulated in all respects by the laws of the State of Florida” and “the best place
to review and make a determination is the Florida courts.” Id. In her second response
to the Order to Show Cause, Ms. Lavigne asks the Court to remove the case to the
“United States District Court of Columbia, Bankruptcy Div . . . or to court of original

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jurisdiction in United States District Court for Florida. . . .” Additional Evid. to Reply
to Mot. to Show Cause (ECF No. 16). In her actual motion for transfer she repeats
this request, asking that her appeal be transferred to either the D.C. District Court
or the District of Florida. Mot. to Transfer at 1.
E.

Motion for Sanctions

Most recently, on May 16, 2016, Ms. Lavigne filed a motion to sanction the
Respondents and to vacate a state court order issued by Judge Nancy Carlson. Mot.
for Sanctions at 1. Ms. Lavigne points to a certificate of excuse filed with the Maine
Secretary of State on April 12, 2016 by Gail Ferry that says Maine Cottage Getaway,
LLC has ceased to transact business. Mot. for Sanctions Attach. 1 Certificate of
Excuse (ECF No. 21). Ms. Lavigne asserts that Ms. Ferry does not have authority to
submit such a document, and the actions taken by the Respondents “show total
disregard for the Judge and The Rule of Law” as they violate the stay issued by the
Court. Mot for Sanctions at 1. She again contends that Ms. Ferry has falsified records
by filing new deeds and registering herself as agent of the LLC with the Secretary of
State while the stay was in effect, and asserts this “malicious behavior” has caused
her irreparable damage. Id. at 2. Ms. Lavigne asks the Court to sanction the
Respondents to preserve the integrity of the courts and remedy acts of “unclean
hands,” violations of unfair practices, and threats of violence. Id. at 3. Further, Ms.
Lavigne argues that an order issued by Judge Nancy Carlson in Franklin County
Superior Court awarding the Respondents $94,000 was based on the wrong

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jurisdiction because the case was in Bankruptcy Court and should be vacated. Id. at
4.
III.

DISCUSSION
A.

Attorney O’Donnell

Ms. Lavigne named Attorney O’Donnell as a party in her motion for TRO. TRO
Pet. at 1. Mr. O’Donnell was not a named party in Ms. Lavigne’s notice of appeal.
Notice of Appeal and Statement of Election at 1. As counsel for Mses. Savage and
Ferry, Mr. O’Donnell argues he is not a proper party in this matter. Ms. Lavigne
argues that Mr. O’Donnell should be a party “because of his intent to exercise control
over the assets (away from the bankruptcy court) and created fraud upon the court
that he brought forward,” alleging that his filings in state court should have been
with the Bankruptcy Court. Pet.’s Reply at 2-3, 5.
The Court has discretion to deny joinder “if it determines that the addition of
the party under Rule 20 will not foster the objectives of the rule, but will result in
prejudice, expense or delay.” 7 CHARLES ALAN WRIGHT & ARTHUR P. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 652 (3d ed. 2016); see also Landmark Dev. Grp. v. JEG
Holdings, Inc., 185 F.R.D. 126, 128 (D. Conn. 1999) (Defendant was not entitled to
join plaintiff's attorney and plaintiff's employees as additional defendants on its
counterclaims since defendant did not file a proper motion for joinder of the additional
parties until more than three months after it informed the court of its intent to add
the attorney as a defendant, the addition of the parties to the case could result in
even more delay due to additional discovery needs and because each individual

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defendant would need adequate time to prepare a defense, and plaintiff would be
prejudiced because the attorney would be disqualified from representing it during the
trial).
Ms. Lavigne has filed three bankruptcy petitions since December, 2014, and
only now names Mr. O’Donnell as a party. Joining Mr. O’Donnell will only cause
more delay, and Mses. Savage and Ferry would be prejudiced as Mr. O’Donnell would
be disqualified from representing them in the proceeding as a named party. The
Court denies joinder of Mr. O’Donnell in this matter.
B.

Temporary Restraining Order

In determining whether to issue a TRO or preliminary injunction, the Court
examines the same four factors. Int'l Ass'n of Machinists & Aerospace Workers, AFLCIO, Local Lodge No. 1821 v. Verso Paper Corp., 80 F. Supp. 3d 247, 277-78 (D. Me.
2015); Aftermarket Auto Parts Alliance, Inc. v. Bumper2Bumper, Inc., No. 1:12–cv–
00258–NT, 2012 WL 4753407, at *1, 2012 U.S. Dist. LEXIS 143685, at *3 (D. Me.
Oct. 4, 2012). The key differences between a TRO and a preliminary injunction are
that (1) a TRO may be issued without notice to the adverse party; and (2) if a TRO is
issued without notice, it may only last for 14 days and the Court must hold a
preliminary injunction hearing. Id. at 278 (citing FED. R. CIV. P. 65(a)-(b)). At the
same time, “[a] preliminary injunction is an extraordinary and drastic remedy that is
never awarded as of right.” Id. (quoting Peoples Fed. Savings Bank v. People's United
Bank, 672 F.3d 1, 8–9 (1st Cir. 2012); see also Mazurek v. Armstrong, 520 U.S. 968,
972 (1997) (per curiam) (A preliminary injunction “is an extraordinary and drastic

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remedy, one that should not be granted unless the movant, by a clear showing, carries
the burden of persuasion’”) (emphasis in original).
To succeed on her motion, Ms. Lavigne must establish four factors: “(1) a
likelihood of success on the merits, (2) a likelihood of irreparable harm absent interim
relief, (3) a balance of equities in the plaintiff’s favor, and (4) service of the public
interest.” Arborjet, Inc. v. Rainbow Treecare Sci. Advancements, 794 F.3d 168, 171
(1st Cir. 2015) (citing Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc.,
645 F.3d 26, 32 (1st Cir. 2011)). “[T]rial courts have wide discretion in making
judgments regarding the appropriateness of” preliminary injunctive relief. Verso
Paper Corp., 80 F. Supp. 3d at 278 (quoting Sanchez v. Esso Standard Oil Co., 572
F.3d 1, 14 (1st Cir.2009)).
1.

Likelihood of Success on the Merits

The “four factors are not entitled to equal weight in the decisional calculus;
rather, ‘[l]ikelihood of success is the main bearing wall of the four-factor framework.’”
Id. (quoting Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 9-10 (1st Cir. 2013)); see also
New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002) (“The
sine qua non of this four-part inquiry is likelihood of success on the merits: if the
moving party cannot demonstrate that he is likely to succeed in his quest, the
remaining factors become matters of idle curiosity”). To meet her burden on this
factor, Ms. Lavigne “must establish a ‘strong likelihood’ that [she] will ultimately
prevail.” Sindicato Puertorriqueno de Trabajadores v. Fortuno, 699 F.3d 1, 10 (1st
Cir.2012) (quoting Respect Maine PAC v. McKee, 622 F.3d 13, 15 (1st Cir. 2010)).

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“Review of the Bankruptcy Court order on appeal before [the District Court] is
governed by Rule 8013 of the Federal Rules of Bankruptcy, which provides a District
Court ‘may affirm, modify or reverse a bankruptcy judge’s judgment, order, or decree
or remand with instructions for further proceedings.” Beacon Investments LLC v.
MainePCS, LLC, 468 B.R. 1, 14 (D. Me. 2012) (quoting In re Wolverine, Proctor &
Schwartz, LLC, 436 B.R. 253, 260 (D. Mass. 2010)). “[W]hen a party chooses to appeal
a bankruptcy court decision to the district court pursuant to 28 U.S.C. § 158(a), the
district court reviews the bankruptcy court’s conclusions of law de novo.” Id. (quoting
Braemer v. Lowey, No. 08-cv-349-P-S, 2009 U.S. Dist. LEXIS 14426, at *1-2 (D. Me.
Feb. 24, 2009)). “In accordance with Federal Rule of Bankruptcy Procedure 8013, the
Bankruptcy Court’s findings of fact will not be set aside ‘unless clearly erroneous.’”
Id. (quoting Braemer, 2009 U.S. Dist. LEXIS 14426, at *1-2 (quoting FED. R. BANKR.
P. 8013)).
The Court is obligated to “construe liberally a pro se complaint” and attempt
to “intuit the correct cause of action, even if it is imperfectly pled.”

Ahmed v.

Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). Nevertheless, even when liberally
construing Ms. Lavigne’s motion, the Court determines that she has failed to
demonstrate that she is likely to succeed on the merits of her appeal. The Bankruptcy
Court dismissed Ms. Lavigne’s Chapter 11 petition for failure to comply with an order
of the court. In re: Beverly A. Lavigne, 16-20045 (D. Me. Bankr. Feb. 5, 2016) (order
dismissing Chapter 11 case). Specifically, Judge Cary determined that Ms. Lavigne
failed to file the following documents when she petitioned for Chapter 11 bankruptcy:

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Creditor Matrix, Verification of Creditor Matrix, List of Unsecured Creditors,
Certificate of Credit Counseling and Debt Repayment Plan, Chapter 11 Statement of
Current Monthly Income, Schedule of Assets and Liabilities, and a Signed Statement
of Financial Affairs. In re: Beverly A. Lavigne, 16-20045 (D. Me. Bankr. Jan. 28, 2016)
(order to comply with Bankruptcy Rules 1007 and Notice of Intent to Dismiss Case).
In short, she was ordered to comply with Bankruptcy Rule 1007 for failure to file
certain documents, she failed to remedy the deficiencies, and the court dismissed her
petition pursuant to 11 U.S.C. § 1112. Reviewing de novo, the Court finds no cause
to disturb the Bankruptcy Court’s decision to dismiss her case.
Moreover, though the Court determined that the automatic stay was in effect
during the appeal pursuant to 11 U.S.C. § 362(c)(2), Order on Stay Issue (ECF No. 5);
see also 11 NORTON BANKR. L. & PRAC. FED. R. BANKR. P. 8007 (3d ed. 2016) (grant of
stay of bankruptcy judgments and orders pursuant to Bankruptcy Rule 8007 are in
general discretionary with the court), the record provided by Ms. Lavigne is
insufficient for the Court to determine what assets and liabilities are at issue.
Indeed, her Chapter 11 petition was dismissed for failure to submit, inter alia, a
creditor matrix, a list of unsecured creditors, and a schedule of assets and liabilities.
She has not remedied these deficiencies, instead asserting that the Respondents have
taken her property and destroyed her business while providing the Court with only
oblique references to or incomplete records of “the 54 Evergreen Avenue property,”
“Maine Cottage Getaways,” “the Florida Trust,” a debt of $94,000, and a number of

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state of Maine court proceedings and orders.4 The insufficiency of the record prohibits
the Court from providing the relief Ms. Lavigne is seeking.
Finally, the Court notes that Ms. Lavigne has now petitioned for bankruptcy
three times since 2014, and each petition was dismissed for failure to file certain
required documents. In re: Beverly A. Lavigne, 14-20953 (D. Me. Bankr. Dec. 17,
2014) (order dismissing Chapter 13 case), In re: Beverly A. Lavigne, 15-20491 (D. Me.
Bankr. Nov. 25, 2015) (order dismissing Chapter 7 case), In re: Beverly A. Lavigne,
16-20045 (D. Me. Bankr. Feb. 5, 2016) (order dismissing Chapter 11 case).
2.

Conclusion

Ms. Lavigne has failed to show any reason why this Court should not affirm
Judge Cary’s decision to dismiss her case, and as such, has failed to show a strong
likelihood of success on the merits of her appeal. Because the Court concludes that
Ms. Lavigne has not satisfied the first necessary element for a TRO, it need not
analyze the final three elements. “The sine qua non of this four-part inquiry is
likelihood of success on the merits: if the moving party cannot demonstrate that he is
likely to succeed in his quest, the remaining factors become matters of idle curiosity.”
New Comm Wireless Servs., Inc., 287 F.3d at 9.

Throughout her filings Ms. Lavigne references state of Maine court proceedings and orders.
See, e.g., Pet.’s Decl. at 1; Reply to Mot. to Show Cause at 4. It also appears to the Court – though the
record is insufficient for it to make any definitive determination, as Ms. Lavigne has provided no record
of these state court decisions – that the state court orders that Ms. Lavigne asserts the Respondents
are acting under were issued while a stay was not in effect. See In re Lomagno, 429 F.3d 16, 17 (1st
Cir. 2005) (stay was terminated when case was originally dismissed; later reopening of case did not
operate to retroactively reinstate the stay and the foreclosure actions taken in between time of
dismissal and reinstatement of the bankruptcy case were not in violation of the stay).
4

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C.

Motion for Transfer

Pursuant to 28 U.S.C. § 158(c), when appealing the Bankruptcy Court’s
decision, Ms. Lavigne elected to have her appeal heard by this Court instead of by a
Bankruptcy Appellate Panel. Notice of Appeal and Statement of Election at 2. A
district court has jurisdiction to hear appeals from final judgments, orders, and
decrees of bankruptcy judges. 28 U.S.C. § 158(a). Ms. Lavigne seeks to transfer her
appeal from this Court to the United States District Court, District of Columbia or
District of Florida. However, “[a]n appeal under [28 U.S.C. § 158] shall be taken only
to the district court for the judicial district in which the bankruptcy judge is serving.”
Id. (emphasis added). This Court is the only district court permitted to hear Ms.
Lavigne’s appeal and her request for transfer is denied.
D.

Order for Sanctions

Lastly, the Court denies Ms. Lavigne’s motion for sanctions and to vacate a
state court order issued by Judge Nancy Carlson.

As discussed, Ms. Lavigne’s

pleadings assert that Mr. O’Donnell and the Respondents have taken her property
and her business, but she has provided the Court with only oblique references to and
incomplete records of the assets and liabilities at issue. Again, the insufficiency of
the record prohibits the Court from providing the relief Ms. Lavigne is seeking.
Moreover, Ms. Lavigne has alleged no willful activity by Mr. O’Donnell or the
Respondents that intended to injure her or impede the litigation process.5

"In fashioning a sanctions order, the Advisory Committee notes suggest the following
considerations: (1) whether the improper conduct was willful or negligent; (2) whether it was part of a
pattern of activity, or an isolated event; (3) whether it infected the entire pleading, or only one
particular count or defense; (4) whether the person has engaged in similar conduct in other litigation;
5

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“[S]anctions are an integral part of the judicial armamentarium, but a judge should
resort to them only when reasonably necessary—and then with due circumspection.”
United States v. Figueroa-Arenas, 292 F.3d 276, 279 (1st Cir. 2002).
Finally, this Court has neither the cause nor the authority to vacate any state
court proceeding discussed by Ms. Lavigne. See Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923); District of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983).
IV.

CONCLUSION
The Court DENIES Petitioner’s Motion for TRO (ECF No. 10), Motion to

Transfer (ECF No. 19), and Motion for Sanctions and to Vacate a State Court Order
(ECF No. 21).
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 25th day of May, 2016

(5) whether it was intended to injure; (6) what effect it had on the litigation process in either time or
expense; (7) whether the responsible person is trained in law; (8) what amount, given the financial
resources of the responsible person, is needed to deter that person from repetition in the same case;
and (9) what amount is needed to deter similar activity by other litigants." Zlotnick v. Hubbard, 572
F. Supp. 2d 258, 272 (N.D. N.Y. 2008), citing Vacco v. Operation Rescue Nat., 80 F.3d 64 (2d Cir. 1996),
citing FED. R. CIV. P. 11(c) advisory committee’s note to 1993 amendment.

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