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Livecchi v. Gordon and Schall, LLP

United States District Court, W.D. New York

January 22, 2015

CHARLES R. LIVECCHI, SR., Plaintiff,
v.
GORDON AND SCHALL, LLP, Defendant.

DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

Plaintiff, a bankruptcy debtor, alleges that Defendant, a law firm that represents the Chapter 7 Trustee in his bankruptcy action, violated his federal right of due process by subpoenaing documents from a third party, Plaintiff's wife's bank, as part of an adversary proceeding in the bankruptcy case. Now before the Court is Defendant's motion (Docket No. [#13]) for judgment on the pleadings and to enjoin the pro se Plaintiff from commencing any further actions or proceedings against the Trustee or his law firm, unless he first either obtains leave of court or is represented by an attorney. The application for judgment on the pleadings is granted, and the application for sanctions is denied.

BACKGROUND

Defendant has moved for judgment on the pleadings pursuant to Fed.R.Civ. P. 12(c). In deciding such a motion, the Court is limited as to what it can consider:

In ruling on a 12(b)(6) motion, and thus on a 12(c) motion, a court may consider the complaint as well as "any written instrument attached to [the complaint] as an exhibit or any statements or documents incorporated in it by reference." Yak v. Bank Brussels Lambert, 252 F.3d 127, 130 (2d Cir.2001) (internal quotation marks omitted). Moreover, "on a motion to dismiss, a court may consider... matters of which judicial notice may be taken, [and] documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (internal quotation marks omitted).

Kalyanaram v. American Ass'n of University Professors at New York Institute of Technology, Inc., 742 F.3d 42, 44 (2d Cir. 2014). "Moreover, where public records that are integral to a complaint are not attached to it, the court, in considering a Rule 12(b)(6) motion, is permitted to take judicial notice of those records." Swiatkowski v. Citibank, 446 Fed.Appx. 360, 361 (2d Cir. Nov. 16, 2011) (citations and internal quotation marks omitted). Here, in addition to the Complaint, the Court has considered public records from the underlying bankruptcy action, an examination of which is necessary to fully understand Plaintiff's contentions.

On April 8, 2009, Livecchi filed a voluntary Chapter 11 petition.[1] On January 21, 2010, the U.S. Trustee moved to have the Chapter 11 case converted to a Chapter 7, and on September 21, 2010, Bankruptcy Court granted the Trustee's application and converted the case to a Chapter 7. Livecchi bitterly opposed the conversion of his Chapter 11 action to a Chapter 7, [2] and continues to maintain that the former Bankruptcy Judge who converted the action, the Hon. John Ninfo, did so improperly.[3] Since at least October, 2010, Livecchi has been proceeding pro se in the bankruptcy court.

Subsequently, Bankruptcy Court assigned Kenneth Gordon, Esq. ("Gordon") as the Chapter 7 Trustee. Later, Bankruptcy Court approved Gordon's request to employ his law firm, Gordon and Schaal, LLP ("Gordon and Schaal"), as attorney to Gordon in his capacity as Chapter 7 Trustee.[4]

Gordon, in his capacity as Trustee, has commenced various adversary proceedings against Plaintiff, seeking, for example, an order denying Plaintiff from being discharged in bankruptcy on the grounds that Plaintiff defrauded creditors. One such alleged act of fraud involved Plaintiff's transfer of a Ferrari automobile to his wife just days prior to filing his Chapter 11 petition.[5] In connection with the alleged fraudulent transfer of the Ferrari, Gordon, in his capacity as Trustee, commenced an adversary proceeding against Livecchi's wife, Sherrie Lee Livecchi.[6] Livecchi indicates that he was "not a party" to that adversary proceeding.[7] As part of that adversary proceeding against Mrs. Livecchi, Gordon made discovery demands for Mrs. Livecchi's bank records pertaining to her alleged payment to Livecchi for the Ferrari. However, Mrs. Livecchi claimed that she did not have such records.

On September 12, 2013, at an appearance in Bankruptcy Court, the Honorable Paul Warren, Bankruptcy Judge, alluded to the fact that, inasmuch as Mrs. Livecchi claimed that she did not have the bank records, Gordon would need to conduct "third-party discovery."[8] During that same court appearance, Gordon indicated that he could obtain the records by serving a subpoena on Mrs. Livecchi's bank.[9]

On or about September 23, 2013, Gordon, in his capacity as Trustee, served such a subpoena on Mrs. Livecchi's bank, Lexington Federal Credit Union ("Lexington").[10] The Court observes, however, that although Livecchi was not a party to the adversary proceeding, the subpoena requested bank records pertaining to both him and his wife. Specifically, the subpoena sought records "in the name of" either Livecchi or Mrs. Livecchi.[11] Gordon eventually received bank records pertaining to Mrs. Livecchi's account, which, he maintains, indicate that the transfer of the Ferrari to Mrs. Livecchi was intended to defraud creditors, though that issue is not before this Court.

As a result of Livecchi's disagreements with Gordon, Livecchi sued Gordon, in his capacity as Chapter 7 Trustee, on multiple occasions. For example, Livecchi sued Gordon in the U.S. District Court for the Northern District of Texas, alleging that Gordon "devaluated" [sic] certain real property in Texas belonging to the bankruptcy estate.[12] The Texas District Court dismissed the action, and in so doing, advised Livecchi that Gordon was immune from being sued in his capacity as Chapter 7 Trustee.[13] Nevertheless, Livecchi filed a motion for reconsideration, which the court denied.

Despite having been educated on the law by the Texas District Court, Livecchi subsequently commenced an action against Gordon, in his capacity as Chapter 7 Trustee, in the U.S. Bankruptcy Court for the Western District of New York. On December 29, 2011, Bankruptcy Court dismissed the action, reiterating that Gordon was immune from suit.[14] Once again, Livecchi filed a motion for reconsideration. Bankruptcy Court denied the motion, and again emphasized that "a trustee is immune from ...


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