Mergenthaler v. Thaler et al
MEMORANDUM & ORDER granting in part and denying in part 14 Motion to Reopen Case; granting in part and denying in part 14 Motion for Extension of Time to File; denying 16 Motion for Preliminary Injunction; For the foregoing reasons, Appell ant's motion to reopen (Docket Entry 14) is GRANTED IN PART AND DENIED IN PART. The Clerk of the Court is directed to reopen the instant appeal and obtain the record from the bankruptcy court. Appellant must file a brief within thirty (30) days of the date of this Memorandum and Order. Should Appellant fail to file a timely brief, the appeal will be dismissed with prejudice. Appellant is advised that no extensions of this deadline will be granted absent extraordinary circumstances. Osekava ge's cross-motion for an injunction (Docket Entry 16) is DENIED WITHOUT PREJUDICE. The Clerk of the Court is directed to mail a copy of this Order to the pro se Appellant. Should Appellant seek in forma pauperis status on appeal, the Court certi fies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and therefore in forma pauperis status is DENIED for purposes of an appeal. So Ordered by Judge Joanna Seybert on 3/13/2017. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
In re MERGENTHALER,
DEAN OSEKAVAGE d/b/a PATHFINDERS USA
as assignee of Judith Wetzstein,
MEMORANDUM & ORDER
SEYBERT, District Judge:
Currently pending before the Court are: (1) Appellant
Peter Mergenthaler’s (“Appellant”) motion to re-open the instant
February 12, 2016 and (2) Appellee Dean Osekavage’s (“Osekavage”)
cross-motion for an injunction
(Docket Entry 16).
following reasons, Appellant’s motion is GRANTED IN PART and DENIED
IN PART, and Osekavage’s cross motion is DENIED WITHOUT PREJUDICE.
The Court assumes familiarity with the facts of this
appeal, which are detailed in this Court’s Orders dated April 29,
2015 and January 15, 2016 (the “April 2015 Order,” Docket Entry 9;
the “January 2016 Order,” Docket Entry 12).
This appeal is the
latest in a series of efforts by Appellant and his wife Rosemary
to attempt to prevent the sale of their residence.
secured a divorce judgment against Appellant which was never
(April 2015 Order at 2.)
Subsequently, she assigned
the debt to Dean Osekavage d/b/a Pathfinders USA (“Osekavage”).
(April 2015 Order at 3.)
After litigating the matter against
Appellant in state court, Osekavage obtained a lien on the home
that Appellant shares with his second wife, Rosemary, and a courtappointed receiver began the eviction process.1
(April 2015 Order
Before the eviction process was completed, and while a
contract for the sale of the property was pending, Appellant filed
(April 2015 Order at 4.)
Osekavage subsequently commenced an adversary proceeding
against Appellant to prevent him from discharging the lien during
the bankruptcy proceedings.
(April 2015 Order at 4-5.)
adversary proceeding, the bankruptcy court judge found that the
debt was not dischargeable because it was a domestic support
obligation and granted summary judgment for Osekavage.
2015 Order at 5-6.)
Additionally, the bankruptcy court judge
lifted the automatic stay with regard to the property.
2015 Order at 6.)
On April 10, 2015, Appellant filed four appeals
Although the residence is owned by Appellant’s wife, the state
court judge found that a lien on the property was appropriate
pursuant to New York Debtor and Creditor Law Section 273 because
Appellant acquired and maintained the property using funds he
should have paid to his former wife. (April 2015 Order at 4.)
reconsideration of those decisions.
(Notice of Appeal, Docket
On April 17, 2015, Appellant filed a proposed order to
show cause to stay the bankruptcy court’s orders pending resolution
of his appeals.
(Unsigned Order to Show Cause, Docket Entry 5.)
On April 29, 2015, this Court consolidated the pending appeals
under the above-referenced docket number and denied Appellant’s
request for a stay of the bankruptcy court’s orders.
Order at 14.)
On May 4, 2015, Appellant filed a motion for
(Recons. Mot., Docket Entry 10.)
denied Appellant’s motion for reconsideration on January 15, 2016.
(January 2016 Order at 6.)
On February 12, 2016, this Court sua sponte dismissed
(Electronic Order, February 12, 2016.)
Appellant’s Motion to Reopen
On March 14, 2016, Appellant filed a motion to reopen
(Mot. to Reopen, Docket Entry 14.)
not dispute that he failed to file a brief or request an extension
of time to do so.
(Mot. to Reopen at 5-6.)
Appellant argues that: (1) he was not provided with a briefing
schedule by the Court; (2) reopening the appeal will not prejudice
Osekavage; and (3) his underlying appeal is meritorious.
Reopen at 5-7.)
In opposition, Osekavage argues that Appellant
should not be granted additional time to file his brief because he
has not demonstrated excusable neglect.
(Levine Decl., Docket
Entry 16-1, ¶ 3.)
Federal Rule of Bankruptcy 8018(a) states in relevant
part: “unless the district court . . . in a particular case excuses
the filing of briefs or specifies different time limits [t]he
appellant must serve and file a brief within 30 days after the
docketing of notice that the record has been transmitted or is
FED. R. BANKR. P. 8018(a).
(a)(4) states: “If an appellant fails to file a brief on time or
within an extended time authorized by the district court . . .
court . . . after notice, may dismiss the appeal on its own
FED. R. BANKR. P. 8018(a)(4).
strictly enforced” and “a bankruptcy appellant’s failure to timely
dismissal of the appeal.”
In re Segal, 557 B.R. 46, 49 (E.D.N.Y.
However, even if the appeal suffers from procedural
discretion to consider dismissal if appropriate.
See FED. R. BANKR.
P. 8003(a)(2) (“An appellant’s failure to take any step other than
the timely filing of a notice of appeal does not affect the
validity of the appeal, but is ground only for the district
court . . .
dismissing the appeal.”).
Generally, the appellant must receive
notice that his failure to comply will lead to dismissal.
Segal, 557 B.R. at 49 (declining to dismiss bankruptcy appeal due
to lack of notice); see also In re Hawkins, 295 F. App’x 452, 453
(2d Cir. 2008) (quoting In re Harris, 464 F.3d 263, 272 (2d. Cir.
2006)) (“[D]istrict courts ‘will generally need to provide notice
of the potential dismissal and an opportunity for the errant
litigant to explain its conduct.’”).
Because the Court did not set an alternative briefing
schedule, Appellant’s deadline to file his brief was thirty (30)
days from the docketing of a notice indicating that the record on
Appellant’s time to file his appeal brief did not begin to run.
compliance would result in dismissal.
As such, Appellant should
It appears that the parties filed their designations of the
record, but the record was never received by the district court.
Because the record was never received, the notice was never
be given an opportunity to file a brief.3
Although the Court
strongly suspects that the appeal will be unsuccessful, the Court
must follow the applicable procedural rules.
Accordingly, Appellant’s motion to reopen is GRANTED in
part and DENIED IN PART. Appellant must file a brief within thirty
(30) days of the date of this Memorandum and Order.
Appellant fail to file a timely brief, the appeal will be dismissed
Appellant is advised that no extensions of this
deadline will be granted absent extraordinary circumstances.
[Appellant] from making any further motions or filings related to
Osekavage correctly identifies the standard for accepting late
filings under Federal Rule of Bankruptcy Procedure 9006(b)(1),
that is, the Court may permit a late filing “where the failure
to act was the result of excusable neglect.” See In re Lynch,
430 F.3d 600, 603 (2d Cir. 2005) (quoting FED. R. BANKR. P.
9006(b)(1)). However, because Appellant’s time to file his
brief did not begin to run, he need not demonstrate that his
failure to file a brief was the result of excusable neglect.
Appellant also seeks: (1) an order directing that “all actions
in any courts or outside of courts by any concerned parties,
including but not limited to plaintiff Dean Osekavage . . . are
stayed regarding the prosecution or enforcement of the New York
Supreme Court, Suffolk County” and (2) an order directing “that
the [a]utomatic [s]tay in this proceeding be restored and
remains in full force in effect.” (Mot. to Reopen at 2.)
3 Wood Edge Court, Water Mill, NY . . . and enjoining him from
interfering with the duties of the State Court Receiver . . . in
(Levine Decl. ¶ 2.)
Osekavage argues that an injunction
is warranted based on Appellant and his wife’s long history of
frivolous litigation and attempts to obstruct the sale of their
(Levine Decl. ¶¶ 5-6.)
Appellant opposed the cross-motion
but failed to put forward any arguments addressing why the Court
should deny the motion.
(See generally Reply, Docket Entry 19.)
Malcolm v. Bd. of Educ. of Honeoye Falls-Lima Cent. School Dist.,
506 F. App’x 65, 69 (2d Cir. 2012) (quoting Shafii v. British
Airways, PLC, 83 F.3d 566, 571 (2d Cir. 1996), overruled on other
grounds by Sullivan v. Am. Airlines, 424 F.3d 267 (2d Cir. 2005)).
When a litigant has “a demonstrated history of frivolous and
vexatious litigation or a failure to comply with sanctions imposed
for such conduct,” a court may bar that litigant from filing
additional motions or appeals.
Malcolm, 506 F. App’x at 69.
Moreover, the court may enter an injunction only after the litigant
is “provided notice and an opportunity to be heard.”
determine whether an injunction is appropriate, the Second Circuit
has instructed district courts to consider: “‘(1) the litigant’s
vexatious, harassing or duplicative lawsuits; (2) the litigant’s
motive in pursuing the litigation, e.g., does the litigant have an
objective good faith expectation of prevailing?; (3) whether the
litigant is represented by counsel; (4) whether the litigant has
unnecessary burden on the courts and their personnel; and (5)
whether other sanctions would be adequate to protect the courts
and other parties.’”
Duran v. Kiley, 586 F. App’x 598, 600 (2d
Cir. 2013) (quoting Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d
In light of the Court’s decision on Appellant’s motion
to reopen the instant appeal, the Court declines to enter a filing
injunction at this time.
However, the Court shares Osekavage’s
concerns regarding Appellant’s conduct.
Appellant is cautioned
that if the instant appeal is unsuccessful and Appellant continues
to file appeals and motions requesting the same relief, the Court
will impose sanctions, including but not limited to, an injunction
barring him from seeking any relief without prior permission from
Accordingly, Osekavage’s cross-motion is DENIED WITHOUT
For the foregoing reasons, Appellant’s motion to reopen
(Docket Entry 14) is GRANTED IN PART AND DENIED IN PART.
of the Court is directed to reopen the instant appeal and obtain
the record from the bankruptcy court.
Appellant must file a brief
within thirty (30) days of the date of this Memorandum and Order.
Should Appellant fail to file a timely brief, the appeal will be
dismissed with prejudice.
Appellant is advised that no extensions
Osekavage’s cross-motion for an injunction (Docket
Entry 16) is DENIED WITHOUT PREJUDICE.
The Clerk of the Court is directed to mail a copy of
this Order to the pro se Appellant. Should Appellant seek in forma
pauperis status on appeal, the Court certifies pursuant to 28
U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order
would not be taken in good faith and therefore in forma pauperis
status is DENIED for purposes of an appeal. Coppedge v. United
States, 369 U.S. 438, 444–45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
13 , 2017
Central Islip, New York
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