Ferri v. Berkowitz et al

Filing 162

MEMORANDUM AND ORDER denying 149 Motion for Writ; denying 161 Motion for Permanent Injunction; In view of the fact that this case is currently pending before the Court of the Appeals for the Second Circuit, the Court denies the motions at DE 14 7 and 149 for lack of jurisdiction. Similarly and for the same reason, the Court denies Patisso's requests for pre-motion conferences (DE 155,156 & 157), and his request for a default against the State of New Jersey and that a writ for a permane nt injunction be issued. DE 161. Until the Second Circuit issues a mandate returning the case, this Court lacks jurisdiction to hear Patisso's motion and requests. Doe v. Gonzalez, 449 F.3d 415.420 (2d Cir. 2006) (the district court cannot entertain a motion until the Court of Appealsissues a mandate returning the case to the district court) (citations omitted).(Ordered by Judge Leonard D. Wexler on 1/21/2014.) (Fagan, Linda)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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ANTONIO FERRI,
MEMORANDUM AND ORDER

cv 09-182

Plaintiff,
-against-

(Wexler, J.)

JAN M. BERKOWITZ, EDWARD GRIECO,
EDWARD WILSON, and JMB GROUP, LLC.

Defendants.
JAN M. BERKOWITZ and JMB GROUP,
LLC.,
Third Party Plaintiffs,

-againstMATTEO PATISSO, LIQUID BRICK, INC.,
and NATIONAL FRAUD CONSTABLE,
Third Party Defendants.

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APPEARANCES:
BRUCE H. KAPLAN, ESQ.
Attorney for Plaintiff
35 Pinelawn Road, S I 04E
Melville, New York 11747
LAW OFFICES OF BRUCE E. BALDINGER, LLC.
BY: BRUCE BALDINGER, ESQ.
Attorneys for Defendants Jan Berkowitz and JMB Group, LLC
365 South Street, Morristown, NJ 07960
MATTEO PATISSO
Third Party Defendant, Pro Se
57 A Hill wood Drive
I

Huntington Station, NY 11746

WEXLER, District Judge
This is an action that, as originally stated, set forth state law claims for fraud and breach
of agreement as well as federal claims brought pursuant to the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1962 ("RICO"). This court dismissed all claims against
Defendant Edward Wilson for lack of personal jurisdiction. In a Memorandum and Order dated
August 25, 2009, this court dismissed all claims alleged pursuant to RICO, for failure to state a
claim. A motion to reconsider that decision was similarly denied. A Memorandum and Order
dated July 29,2010, denied Plaintiff's motion to amend the complaint. On November 16,2010,
Plaintiff discontinued the action against Jan Berkowitz and JMB Group, LLC, the last remaining
named Defendants.
At that point in the proceedings, the only action remaining was the Third-Party Complaint
asserted by Jan Berkowitz and JMB Group, LLC (collectively herein "Berkowitz") against ThirdParty Defendants Matteo Patisso, Liquid Brick, Inc. and National Fraud Constable (collectively
herein "Patisso"). 1 Discovery was ordered to proceed.

In a Memorandum and Order dated May 10, 2011, this Court considered and accepted, a
Report and Recommendation ("R&R") of the assigned Magistrate Judge, Arlene R. Lindsay, which
recommended, and this court agreed, that the answer of Patisso be stricken, and that Berkowitz be

1

Patisso appears herein prose. The attorney that represented all Third-Party Defendants
was relieved in June of2010, and no counsel was ever obtained to represent the corporate ThirdParty Defendants. Accordingly, the only Third-Party Defendant able to continue to appear in this
matter is the individual Matteo Patisso.
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given leave to apply for a judgment of default.
In its Memorandum and Order dated November 15, 2011 (the "'Order"), the Court denied
Berkowitz' request for a default judgment in the amount of$1 0 million and injunctive relief.
Various motions filed by Patisso at that time were also denied. Pursuant to the Order, the Clerk of
the Court entered final judgment in the Third-Party Action against Patisso and in favor of
Berkowitz, but denied monetary or injunctive relief. The case was thus closed. (Docket Entry
"DE" 35)
On December 15,2011, Berkowitz filed a Notice of Appeal in this case on the Court's
November 15, 2011 order. DE 135. That appeal is still pending before the Court of Appeals for
the Second Circuit.
Before this Court, Patisso has recently filed a motion to vacate (DE 147) and a motion for a
writ for a pennanent injunction against the State of New Jersey (DE 149). He also has flied three
letters seeking pre-motion conferences to move: to disqualifY the Law Office of Bruce E.
Baldinger, LLC (DE 155), to create a constructive trust (DE 156), and to hold Bruce E. Baldinger
in contempt. Finally, Patisso has filed a letter seeking a default against the State of New Jersey
and that the Court enter a writ ofpennanent injunction. DE 161.
In view of the fact that this case is currently pending before the Court of the Appeals for the
Second Circuit, the Court denies the motions at DE 147 and 149 for lack of jurisdiction. Similarly
and for the same reason, the Court denies Patisso's requests for pre-motion conferences (DE 155,
156 & 157), and his request for a default against the State of New Jersey and that a writ for a
pennanent injunction be issued. DE 161. Until the Second Circuit issues a mandate returning the
case, this Court lacks jurisdiction to hear Patisso's motion and requests. Doe v. Gonzalez, 449

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F.3d 415.420 (2d Cir. 2006) (the district court cannot entertain a motion until the Court of Appeals
issues a mandate returning the case to the district court) (citations omitted).

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SO ORDERED.

{

LEONARD D. WEXLER
UNITED STATES DISTRICT
Dated: Central Islip, New York
January2(. 2014

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DGE