Truong v. Cuthbertson et al
ORDER denying 6 Motion for Reconsideration; granting motion for Reconsideration to Modify Court's August 12, 2015 Order in part to dismiss complaint as to Mergenthaler; and ISSUING FILING INJUNCTION AGAINST PLAINTIFF --- For the reasons set f orth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, pro se plaintiff's Motion for Reconsideration is denied as to defendants Cuthbertson, Barnard, and Bank of New York Mellon. Plaintiff's Motion for Reconsideration is granted with re spect to defendant Mergenthaler, but to the extent that the Court's August 12 Order is modified to deem the Complaint void ab initio. Accordingly, the Complaint remains DISMISSED, with prejudice, in its entirety. INJU NCTION: Plaintiff is enjoined from commencing any further actions in the Eastern District of New York absent permission from this Court. Plaintiff is further enjoined from intervening in any bankruptcy proceeding in the Eastern District of New York , including Mergenthaler's bankruptcy case, absent permission of the presiding United States Bankruptcy Judge. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good fait h and, therefore, in forma pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order and Attached Written Memorandum and Order to pro se plaintiff by Certified Mail with Return Receipt. The Clerk of the Court is further directed to mail a copy of this Electronic Order and Attached Written Memorandum and Order to pro se defendant Mergenthaler. This case was previously closed by Court order. SO ORDERED by Judge Dora Lizette Irizarry on 2/22/2016. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MAC TRUONG, pro se,
MARK A. CUTHBERTSON, R.
KENNETH BARNARD, ROSEMARY
MERGENTHALER, BANK OF NEW
MEMORANDUM & ORDER
15-CV-4268 (DLI) (LB)
DORA L. IRIZARRY, United States District Judge:
On July 17, 2015, plaintiff Mac Truong filed this pro se action (the “Complaint,” Dkt.
Entry No. 1) invoking the Court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332. Compl. at
1. By order dated August 12, 2015 (the “August 12 Order,” Dkt. Entry No. 4), the Court granted
plaintiff’s request to proceed in forma pauperis and dismissed the Complaint. August 12 Order
at 1. The Court also directed plaintiff to show cause by September 11, 2015 why a filing
injunction should not be entered. Id.
On August 28, 2015, plaintiff filed a notice of motion for reconsideration of the August
12 Order, along with plaintiff’s affirmation in support (the “First Aff.,” Dkt. Entry No. 6). On
August 31, 2015, plaintiff filed a supplemental affirmation in support (the “Sup. Aff.,” Dkt.
Entry No. 7), and on September 8, 2015, plaintiff filed a second supplemental affirmation in
support (the “Sec. Sup. Aff.,” Dkt. Entry No. 8). The Court will refer collectively to the notice
of motion and the three affirmations as the “Motion for Reconsideration.” Plaintiff did not file a
memorandum of law in support of the Motion for Reconsideration.
For the following reasons, the Motion for Reconsideration is denied as to defendants
Mark A. Cuthbertson, R. Kenneth Barnard, and Bank of New York Mellon. The Motion for
Reconsideration is granted with respect to pro se defendant 1 Rosemary Mergenthaler, but only
for the purpose of modifying the Court’s August 12 Order such that the Complaint is deemed
void ab initio concerning defendant Mergenthaler.
Additionally, plaintiff is enjoined from
commencing any further actions in the United States District Court for the Eastern District of
New York absent permission from this Court, and is further enjoined from intervening in
Rosemary Mergenthaler’s bankruptcy proceedings in the Bankruptcy Court for the Eastern
District of New York, absent permission from the presiding United States Bankruptcy Judge.
The Legal Standard
“The standard for granting [a motion for reconsideration] is strict, and reconsideration
will generally be denied unless the moving party can point to controlling decisions or data that
the court overlooked … that might reasonably be expected to alter the conclusion reached by the
court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Moreover, such a motion
will not be granted absent the demonstration of “extraordinary circumstances.” Stevens v. Miller,
676 F.3d 62, 67 (2d Cir. 2012) (internal quotation marks omitted); Ruotolo v. City of New York,
514 F.3d 184, 191 (2d Cir. 2008) (finding that Rule 60(b) is “a mechanism for extraordinary
judicial relief invoked only if the moving party demonstrates exceptional circumstances”)
(internal quotation marks omitted).
A Rule 60(b) motion may not be used “as a substitute for an appeal [a party] failed to
take in a timely fashion.” Stevens, 676 F.3d at 67. A Rule 60(b) motion is properly denied
where it seeks only to relitigate issues already decided. See Zerman v. Jacobs, 751 F.2d 82, 85
The court is mindful that pro se submissions, “however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Thus, the court interprets
the motion “to raise the strongest arguments that [it] suggest[s].” Triestman v. Fed. Bureau of Prisons, 470 F. 3d
471, 474 (2d Cir. 2006) (emphasis omitted).
(2d Cir. 1985) (dismissing as frivolous an appeal from the denial of a Rule 60(b) motion, where
the appellant “continue[d] to relitigate the same issue that the district court decided”).
Dismissal of the Complaint
Plaintiff does not provide the Court with any controlling case law or data the Court
overlooked, nor does he allege facts demonstrating extraordinary circumstances warranting
relief. Instead, plaintiff simply rehashes the same frivolous and repetitive arguments from the
Complaint, namely that he is entitled to a 25% interest in real property owned by defendant
Mergenthaler. Compare Compl. at 2, with First Aff. at 4. This real property is subject to an
ongoing chapter 7 bankruptcy case in which Ms. Mergenthaler is the debtor. Compl. at 2. As
such, the Court warned plaintiff in the August 12 Order that, “any cause of action regarding an
ongoing bankruptcy proceeding, … should be brought before the United States Bankruptcy
Court where the action is pending, and is not the basis for a new civil action.” August 12 Order
at 3. Rather than pursue his claim before the appropriate court, plaintiff brought the instant
Motion for Reconsideration, which is entirely without merit. Accordingly, the motion is denied,
and the Complaint is dismissed with prejudice.
The Filing Injunction
In the August 12 Order, the Court detailed plaintiff’s long and tortured history of
vexatious litigation before numerous courts, including this one. August 12 Order at 3-4. The
Court directed plaintiff to show cause why he should not be barred from filing any new civil
action without permission of this Court. Id. at 5. Plaintiff’s arguments against the imposition of
a filing injunction, like his other arguments, are frivolous and sanctionable.
Plaintiff characterizes the Court’s summary of his litigation history from the August 12
Order as an “incomplete and partial review of plaintiff’s reputation online as a litigant in some of
[his] prior cases….” First Aff. at 4. Plaintiff takes particular exception to the Court’s reference
to Truong v. Nguyen, 2011 WL 1226258 (S.D.N.Y. Mar. 20, 2011), where the Second Circuit
vacated monetary sanctions imposed against plaintiff by the District Court. Truong v. Nguyen,
503 F.App’x 34, 36 (2d Cir. 2012). Plaintiff clings to this Second Circuit decision to argue that
“all the issues regarding [plaintiff’s] alleged vexatious practice of law … was (sic) put to an
end….” First Aff. at 9.
The Court cannot overstate the frivolity and disingenuousness of this argument. First,
what plaintiff refers to as his “reputation online” is actually a multitude of court decisions in
which plaintiff has been sanctioned repeatedly for his unrepentant, malicious conduct. See
August 12 Order at 3-5. Second, plaintiff’s reliance on the Second Circuit’s decision in Nyugen
is completely dishonest, given that the District Court reinstated the sanctions on remand, a
decision that is final given the denial of leave to appeal to the Second Circuit. Truong v. Nguyen,
2013 WL 4505190 (S.D.N.Y. Aug. 22, 2013) leave to appeal denied, Mandate No. 14-928 (2d
Cir. July 24, 2014). Plaintiff’s mendacious omission of this fact typifies his disgraceful behavior
before this and other tribunals. Finally, even if plaintiff somehow had managed to escape
sanctions in one case, the numerous other cases in which plaintiff was sanctioned completely
justify the conclusion that a filing injunction, at a minimum, is appropriate here.
Based on the foregoing, plaintiff clearly has failed to demonstrate that a filing injunction
should not issue. In fact, if anything, the Motion for Reconsideration confirms the wisdom of
prohibiting him from accessing the courts and wasting even more scarce judicial resources.
Modifications to the August 12 Order
This order modifies the August 12 Order in two respects. First, the August 12 Order is
vacated to the extent it dismissed the Complaint against defendant Mergenthaler. As noted
above, Ms. Mergenthaler is a debtor in an ongoing chapter 7 bankruptcy proceeding. The
Bankruptcy Code imposes an automatic stay against “the commencement or continuation … of a
judicial, administrative, or other action or proceeding against the debtor that was or could have
been commenced before the commencement of the case under this title….”
11 U.S.C. §
362(a)(1). The automatic stay “is effective immediately upon the filing of the petition, and any
proceedings or actions described in section 362(a)(1) are void and without vitality if they occur
after the automatic stay takes effect.” E. Refractories Co. Inc. v. Forty Eight Insulation Inc., 157
F.3d 169, 172 (2d Cir. 1998) (quoting Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 527
(2d Cir. 1994) (quotation marks and additional citations omitted)).
Ms. Mergenthaler had
already filed for bankruptcy by the time plaintiff filed the Complaint against her and the other
non-bankrupt defendants. Compl. at 2. Thus, as to defendant Mergenthaler only, the Complaint
was void ab initio at the time plaintiff filed it, so the August 12 Order did not need to dismiss the
case against her.
The second modification to the August 12 Order concerns the Court’s statement
admonishing plaintiff to bring his action in the appropriate court, the Bankruptcy Court for the
Eastern District of New York. As noted above, the Court has imposed a filing injunction against
plaintiff, which extends to the Bankruptcy Courts of this District.
Thus, plaintiff is now
prohibited from filing any action he may have otherwise brought in Ms. Mergenthaler’s
bankruptcy case, unless he first obtains the express approval of the presiding United States
The Motion for Reconsideration is denied as to defendants Mark A. Cuthbertson, R.
Kenneth Barnard, and Bank of New York Mellon. The Motion for Reconsideration is granted
with respect to defendant Rosemary Mergenthaler, but only for the purpose of modifying the
Court’s August 12 Order, such that the Complaint is deemed void ab initio. The Complaint
therefore remains dismissed, with prejudice, in its entirety.
Plaintiff is enjoined from commencing any further actions in the Eastern District of New
York absent permission from this Court. Plaintiff is further enjoined from intervening in any
bankruptcy proceeding in the Eastern District of New York, including Rosemary Mergenthaler’s
bankruptcy case, absent permission of the presiding United States Bankruptcy Judge.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Dated: Brooklyn, New York
February 22, 2016
DORA L. IRIZARRY
United States District Judge
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