United States District Court, N.D. New York
GARY L. SHARPE, Chief District Judge.
On August 7, 2014, United States District Judge Mae A. D'Agostino recommended that Mazzeo Unum be enjoined from further filings in this District without permission from the Chief Judge. (Dkt. Nos. 10, 14, 1:13cv-586.) As such, Unum must be given an opportunity to show cause why an anti-filing injunction should not be entered.
It is well settled that "[a] district court may, in its discretion, impose sanctions against litigants who abuse the judicial process." Shafii v. British Airways, PLC, 83 F.3d 566, 571 (2d Cir. 1996). Where a litigant persists in the filing of vexatious and frivolous suits, it may be appropriate to place certain limitations on the litigant's future access to the courts. See Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (citation omitted); see also Shafii, 83 F.3d at 571 ("The filing of repetitive and frivolous suits constitutes the type of abuse for which an injunction forbidding further litigation may be an appropriate sanction."). Before imposing such limitations, the court should consider:
(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.
Iwachiw v. N.Y. State Dep't of Motor Vehicles, 396 F.3d 525, 528 (2d Cir. 2005) (citation omitted).
After carefully reviewing the record-including Magistrate Judge Randolph F. Treece's report-recommendation and order, and Judge D'Agostino's order referring the matter, (Dkt. Nos. 10, 14, 1:13-cv-586)-the court concludes that unless Unum shows cause otherwise, he should be enjoined from any further filings in the Northern District of New York without leave of the Chief Judge. In addition to the underlying cause of action, Unum has filed nine pro se civil actions in this District-all of which have been dismissed.
There is little doubt that Unum lacks a good-faith expectation in prevailing in his lawsuits, has caused needless expense to other parties, and it appears that sanctions lesser than an anti-filing injunction would unlikely curb Unum's excessive filings. Notwithstanding the overwhelming support for the issuance of an anti-filing injunction, fairness and the interest of justice dictate that Unum be given notice and an opportunity to be heard. See Iwachiw, 396 F.3d at 529. As such, he shall have fourteen (14) days from the date of this Order to show cause, in writing, why he should not be enjoined from any further filings in the Northern District of New York without leave of the Chief Judge.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Unum shall, within fourteen (14) days of the date of this Order, show cause, in writing, why he should not be enjoined from any further filings in the Northern District of New York without leave of the Chief Judge; and it is further
ORDERED that if Unum does not fully comply with this Order, the court will issue a subsequent order, without further explanation, permanently enjoining Unum from filing a pleading or document of any kind in any other case in this District without leave of the court; and it is further
ORDERED that the Clerk provide a copy of this Order to District Judge D'Agostino; and it is further
ORDERED that the Clerk shall provide a copy of this Order to ...