Golub v. Swaaley et al

Filing 41

MEMORANDUM AND ORDER BARRING FURTHER LITIGATION ORDER, Plaintiff Golub's Motion To Vacate the Mandate and Extend the Time in which to Appeal (Doc. No. 38) and Motion for Leave to Vacate 11.13.2020 Order (Doc. No. 39) are denied. Golub is enjoi ned from filing any new documents in this case and any new actions in this district without first obtaining leave of the Court. The Clerk of Court is directed not to file but to immediately return to Golub any documents that are received from him without an application seeking leave to file. So Ordered by Judge Roslynn R. Mauskopf on 9/30/2021. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DR. J. DAVID GOLUB,
Plaintiff,
MEMORANDUM AND ORDER
BARRING FURTHER LITIGATION
16-CV-5386 (RRM) (LB)

-againstMICHAEL L. SWAALEY, et al.,

Defendants.
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ROSLYNN R. MAUSKOPF, United States District Judge.
In an electronic order dated September 29, 2020, the Court summarily denied two
motions which, taken together, constituted plaintiff Dr. J. David Golub’s third motion for
reconsideration pursuant to Rule 59(e) and Rule 60(b) of the Federal Rules of Civil Procedure.
After Golub filed a notice of appeal and several additional frivolous motions, the Court issued a
Memorandum and Order to Show Cause dated November 13, 2020 (the “OSC”), which not only
denied those motions but directed Golub to show cause why he should not be barred from future
filings. Subsequently, the Second Circuit, which had already imposed a leave-to-file sanction
and monetary sanctions on Golub in other actions, dismissed the appeal for failure to apply for
leave to appeal.
Golub has now filed two new submissions: 1) a motion to vacate the Second Circuit’s
mandate and to extend his time to file a notice of appeal and 2) a document which purports to
respond to the OSC. For the reasons set forth below, the motion for an extension of time is
denied as moot and the Court enters an order barring Golub from filing any further documents in
this action without permission of the Court.
BACKGROUND
Although familiarity with the history of this litigation is assumed, the Court will provide
a brief recap for the convenience of the reader. In September 2016, Golub, proceeding pro se,

commenced this fee-paid action against Richmond County Surrogate Robert J. Gigante and three
attorneys, alleging misconduct by the defendants in connection with Surrogate Court proceedings
relating to the estate of Sylvia Golub. On September 6, 2017, the Court dismissed the action for
lack of subject-matter jurisdiction and entered judgment in favor of defendants.
In the 26 months following the entry of judgment, Golub filed three motions pursuant to
Rule 59 and 60 of the Federal Rules of Civil Procedure, all of which were denied. The first, filed
October 3, 2017, (Doc. No. 20), was denied in a five-page memorandum and order dated
September 26, 2018, (Doc. No. 22). The second – a motion to vacate the September 26, 2018,
order – was filed in October 2018, (Docs. No. 23–25), and was denied in a two-page
memorandum and order dated September 27, 2019, (Doc. No. 27). The third motion – seeking to
vacate the September 27, 2019, order – was filed in October 2019, (Docs. No. 28–29), and was
denied in an electronic order dated September 29, 2020 (the “September 29 Order”). The
September 29 Order expressly warned Golub that if he continued to file repetitive motions for
reconsideration, the Court might enter an order prohibiting him from making future filings
without leave of the Court.
Golub not only appealed the September 29 Order but filed four more submissions with
the Court, including additional motions pursuant to Rules 59 and 60. On November 13, 2020,
the Court issued the OSC, denying those motions and directing Golub to show cause why he
should not be enjoined from filing any further documents in this action (except for documents
directed to the United States Court of Appeals for the Second Circuit) and from filing any further
actions in this district without prior Court approval. (OSC (Doc. No. 35) at 3.) The OSC noted
that Golub had a “well-documented, decades-long history of vexatious litigation in this district
and elsewhere” which had led to his being barred from further filings in other cases. Among the
cases listed was Golub v. Tierney, S.D.N.Y. Docket No. 89-CV-5809 (WHP), in which the
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Second Circuit had issued a July 11, 2011, mandate noting that it had previously imposed on
Golub a leave-to-file sanction and Rule 38 sanctions totaling $1,500, which Golub had not paid.
That mandate not only denied Golub’s application for leave to file an appeal in that case, but
ordered that “[a]ny future application for leave to appeal in this Court must be accompanied by
proof that Appellant has paid the sanctions imposed in full.” (See Golub, No. 89-CV-5809
(WHP), Mandate of USCA (July 11, 2011) (Doc. No. 115).)
On December 28, 2020, the Second Circuit issued a mandate dismissing Golub’s appeal
from the September 29 Order, effective November 20, 2020 (the “Mandate”). The Mandate
referenced the July 11, 2011, mandate and, alluding to the previously imposed leave-to-file
sanction, stated: “The Court has no record that appellant sought the Court’s permission to appeal
prior to filing the notice of appeal.” (Mandate (Doc. No. 37).)
The Instant Motions
In January 2021, Golub filed two additional submissions, which are the subject of this
Memorandum and Order. First, he moves to vacate the Mandate and to extend his time to file a
notice of appeal. (Motion To Vacate the Mandate and Extend the Time in which to Appeal
(Doc. No. 38).) This submission implies that the July 11, 2011, mandate is irrelevant to this
action because it was issued in an entirely different case and notes that Golub timely filed a
notice of appeal from the September 29 Order. Second, Golub has filed a document entitled
“Motion for Leave to Vacate 11.13.2020 Order,” which purports to respond to the OSC.
(Motion for Leave to Vacate 11.13.2020 Order (Doc. No. 39) at 1.) In fact, this document
neither mentions nor attempts to excuse Golub’s history of repetitious and vexatious litigation.
To the contrary, it largely rehashes his allegations against Gigante and the attorneys which
formed the basis for this meritless litigation.

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DISCUSSION
A. The First Submission (Doc. No. 38)
To the extent that Golub’s first submission can be construed as a motion for an extension
of time to file a notice of appeal pursuant to Rule 4(a)(5)(A) of the Federal Rules of Appellate
Procedure, that motion is denied as moot. Rule 4(a)(5)(A) provides:
The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this
Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30 days after
the time prescribed by this Rule 4(a) expires, that party shows excusable
neglect or good cause.
Rule 4(a) provides, in relevant part, that a notice of appeal in a civil case “must be filed with the
district clerk within 30 days after entry of the judgment or order appealed from.”
Golub filed his notice of appeal on November 28, 2020 – 29 days after entry of the
September 29 Order from which he was appealing. Accordingly, the notice of appeal was not
untimely and there is no need for an order extending the time to file a notice of appeal. As the
Mandate makes clear, Golub’s notice of appeal was dismissed for failure to include an
application for leave to appeal as required by the Second Circuit’s prior mandates.
Golub’s assertion that the Second Circuit’s July 11, 2011, mandate is irrelevant because it
pertained to a different case is entirely baseless. That mandate pertained to all future appeals and
was animated by Golub’s history of vexatious filing and disregard of the Second Circuit’s prior
orders.
To the extent that Golub’s first submission can be read as seeking an extension of time to
file a second notice of appeal that includes an application for leave to file, the Court cannot grant
that request because the first submission was not filed until January 6, 2021 – more than 30 days
after the time to file an application for leave to appeal from the September 29 Order expired –
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and because Golub has not demonstrated excusable neglect or good cause for the failure to file a
notice of appeal that complied with the Second Circuit’s mandates.
B. The Second Submission (Doc. No. 39)
Although the second submission purports to be a response to the OSC, it utterly fails to
explain why an order barring future filings by Golub should not be entered. The federal courts
have limited resources and have the authority and obligation to conserve those resources by
managing their dockets for the efficient administration of justice. See Lau v. Meddaugh, 229
F.3d 121, 122 (2d Cir. 2000); In re Martin-Trigona, 9 F.3d 226, 227–29 (2d Cir. 1993). Thus, a
“district court may, in its discretion, impose sanctions against litigants who abuse the judicial
process.” Iwachiw v. N.Y. State Dep’t. of Motor Vehicles, 396 F.3d 525, 528 (2d Cir. 2005).
“Permissible sanctions include restricting a litigant’s future access to courts.” See id.
In light of Golub’s extensive history of vexatious litigation in this case and in previous
cases, the Court hereby enjoins Golub from filing any new documents in this case and any new
actions in this district without first obtaining leave of Court. The Court notes that Golub has
previously failed to pay monetary sanctions – even when imposed by the Second Circuit – and
believes that Golub is likely to continue to abuse the judicial process absent the imposition of
some meaningful sanction. The Court concludes that this drastic remedy is necessary to alleviate
the burden on the Court and its personnel of continued frivolous filings.
CONCLUSION
For the reasons stated above, plaintiff Golub’s Motion To Vacate the Mandate and
Extend the Time in which to Appeal (Doc. No. 38) and Motion for Leave to Vacate 11.13.2020
Order (Doc. No. 39) are denied. Golub is enjoined from filing any new documents in this case
and any new actions in this district without first obtaining leave of the Court. The Clerk of Court
is directed not to file but to immediately return to Golub any documents that are received from
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him without an application seeking leave to file. If the Court grants Golub leave to file a new
action, the civil action shall be filed and assigned a civil docket number; if leave to file is denied,
Golub’s submission shall be filed on the Court’s miscellaneous docket. Nothing herein shall be
construed to prohibit Golub from filing an appeal of this Order but Golub is advised that he must
comply with all applicable Second Circuit mandates.
Although the pro se plaintiff has consented to electronic notification, the Clerk of Court
is respectfully directed to mail a copy of this Memorandum and Order to Golub and to note the
mailing on the docket sheet. 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 purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.
Dated: Brooklyn, New York
September 30, 2021

Roslynn R. Mauskopf
ROSLYNN R. MAUSKOPF
United States District Judge

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