Mergenthaler v. Barnard et al

Filing 4

ORDER; For the foregoing reasons, it is hereby ORDERED that Rosemary Mergenthaler is barred from filing any additional cases, motions, or appeals concerning the assets in her bankruptcy estate before this Court without first obtaining written p ermission from the Court. In addition, Rosemary Mergenthaler's most recent bankruptcy appeal, Case Number 16-CV-4390 is DISMISSED because it was filed in contravention of the Court's July 25, 2016 Order. The Clerk of the Court is directed file this Order on the docket in Case No. 16-CV-4390 and mark that case CLOSED. U.S. Bankruptcy Court, Case No. 8-15-72040-reg. So Ordered by Judge Joanna Seybert on 9/21/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
ROSEMARY IDA MERGENTHALER,
Plaintiff-Appellant,

ORDER
15-CV-05078(JS)
16-CV-4390(JS)

-against–
KENNETH R. BARNARD, UNITED STATES
TRUSTEE, DEAN OSEKAVAGE, and
MARK CUTHBERTSON,
Defendant-Appellees.
---------------------------------------X
SEYBERT, District Judge:
Pending before the Court is a motion filed by creditor
Dean

Osekavage

Wetzstein

d/b/a

Pathfinders

(“Osekavage”)

seeking

USA
to

as

assignee

prohibit

Debtor

of

Judith

Rosemary

Mergenthaler from filing any further actions or appeals before the
Court without first obtaining written permission to do so. (Docket
Entry 25.)

For the reasons that follow, Osekavage’s motion is

GRANTED.
The Court assumes familiarity with the history of this
case, which is discussed in the Court’s prior orders.

Briefly,

Rosemary and Peter Mergenthaler (the “Debtors”) collectively filed
ten bankruptcy appeals before this Court during the last two years
in an effort to prevent their property, located at 3 Wood Edge
Court, Water Mill, New York (the “Property”) from being sold to

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satisfy a lien held by Osekavage.1

In addition, the Court issued

several opinions addressing the Mergenthalers’ appeals, each time
finding the Debtors’ arguments to be meritless.

See, e.g.,

Mergenthaler v. Barnard, No. 15-CV-05078(JS), 2016 WL 3080808, at
*1 (E.D.N.Y. May 27, 2016); Mergenthaler v. Thaler, No. 15-CV-2034
(E.D.N.Y April 29, 2015).
On April 25, 2016, Osekavage filed the pending motion by
Order to Show Cause, asserting that he has been trying to sell the
Mergenthalers’

Property

since

August

2014,

but

that

the

Mergenthalers continue to bring vexatious actions to prevent him
from doing so.

(See Levine Decl., Docket Entry 25-1, ¶ 5.)

As a

result of the Mergenthalers’ conduct in bankruptcy court, Judge
Grossman issued an order enjoining Rosemary Mergenthaler from
submitting any further filings without first obtaining written
permission from the bankruptcycourt.

(See May 5, 2016 Order,

Bankr. Case No. 15-72040, Docket Entry 165.)
On July 25, 2016, the Court signed Osekavage’s proposed
Order to Show Cause, temporarily barring Rosemary Mergenthaler
from filing “any further motions or appeals in this Court” related
to her Property pending a hearing on the motion.
28.)

(Docket Entry

However, in contravention of the Court’s Order, Rosemary

The actions filed by the Mergenthalers bear the following case
numbers: 15-CV-2031, 15-CV-2034, 15-CV-02032, 15-CV-02033, 15CV-5078, 15-CV-7301, 16-CV-1113, 26-CV-3466, and 16-CV-4390.
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2

Mergenthaler filed an additional bankruptcy appeal on August 5,
2016, bearing Case Number 16-CV-4390. The Court held oral argument
on

Osekavage’s

motion

on

August

12,

2016,

Mergenthaler did not attend the hearing.

however,

Rosemary

Instead her husband

informed the Court by phone on the day of the hearing that she was
not feeling well.

During the hearing, however, the attorneys

present informed the Court that Rosemary Mergenthaler has not
voluntarily appeared for any of the approximately 20-30 hearings
and appearances held in her underlying bankruptcy case.
DISCUSSION
In rare cases, federal district courts within the Second
Circuit have issued injunctions barring litigants from filing
additional actions without express permission from the Court.
Second Circuit has explained that:
the district court, in determining whether or not to
restrict a litigant’s future access to the courts,
should consider the following factors: (1) the
litigant’s history of litigation and in particular
whether it entailed 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 caused needless expense to other parties or
has posed an unnecessary burden on the courts and their
personnel; and (5) whether other sanctions would be
adequate to protect the courts and other parties.
Ultimately, the question the court must answer is
whether a litigant who has a history of vexatious
litigation is likely to continue to abuse the judicial
process and harass other parties.

3

The

Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986); see
also Malley v. N.Y. City Bd. of Educ., No. 94–CV-7186, 1997 WL
570501, at *1 (S.D.N.Y. Sept. 15, 1997) (issuing an injunction
barring a pro se litigant from filing further actions because of
“Plaintiff’s history of abusing the process of this and other
courts

by

repeatedly

filing

actions

based

on

the

same

allegations”).
The record before the Court shows that the Mergenthalers
have filed numerous vexatious cases in this Court in an effort to
delay the sale of her Property.

The Mergenthalers have filed ten

similar bankruptcy appeals before this Court, none which have been
meritorious.

In addition, the Mergenthalers have a history of

filing meritless motions in bankruptcy court and were barred from
filing further motions in that court without permission from Judge
Grossman.
Rosemary

Finally,

when

Mergenthaler

from

the

undersigned

filing

any

temporarily

additional

barred

bankruptcy

appeals pending a hearing, she nevertheless filed an appeal days
later, and then did not attend the hearing to discuss Osekavage’s
Order to Show Cause.

Based upon these facts, the Court finds that

it

to

is

appropriate

issue

an

order

preventing

Rosemary

Mergenthaler from filing further cases, motions, or appeals before
the undersigned absent permission.

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CONCLUSION
For the foregoing reasons, it is hereby ORDERED that
Rosemary Mergenthaler is barred from filing any additional cases,
motions, or appeals concerning the assets in her bankruptcy estate
before this Court without first obtaining written permission from
the Court.

In addition, Rosemary Mergenthaler’s most recent

bankruptcy appeal, Case Number 16-CV-4390 is DISMISSED because it
was filed in contravention of the Court’s July 25, 2016 Order.
The Clerk of the Court is directed file this Order on the docket
in Case No. 16-CV-4390 and mark that case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

September
21 , 2016
Central Islip, New York

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