United States District Court, E.D. New York
MEMORANDUM & ORDER
SEYBERT U.S.D. JUDGE.
pending before the Court is an appeal filed by Rosemary Ida
Mergenthaler (”Appellant”) from two orders issued
by Judge Robert E. Grossman in her Chapter 7 bankruptcy
proceeding, which was commenced on May 11, 2015. (See In
re Mergenthaler, No. 15-72040.) On May 13, 2016,
Appellant filed a Notice of Appeal in this Court seeking
review of: (1) an order denying Appellant's motion
seeking the return of a $180, 000 asset, entered on May 3,
2016 (the ”May 3, 2016 Order”); and (2) an order
granting creditor and Appellee Dean Osekavage's
(”Osekavage”) motion to enjoin Appellant from
filing additional motions or requests for relief without
written permission from the Bankruptcy Court, entered on May
5, 2016 (the ”Filing Injunction”). (See In re
Mergenthaler, No. 15-72040, May 3, 2016 Order, Docket
Entry 164; Filing Injunction, Docket Entry 165.)
Appellant failed to file a brief as required by Federal Rule
of Bankruptcy Procedure 8018; however, after she was notified
that the appeal would be dismissed, she filed her brief on
July 27, 2017. (Appellant's Br., Docket Entry 6.) Trustee
R. Kenneth Barnard (”Barnard”) filed his brief on
August 10, 2017, and Osekavage filed a brief adopting
Barnard's arguments on August 22, 2017. (Barnard Br.,
Docket Entry 7; Osekavage Br., Docket Entry 8.) Appellant
filed a reply brief on August 21, 2017. (Appellant's
Reply, Docket Entry 9.)
tactics employed by Appellant and her husband, Peter
Mergenthaler, are well known to this Court. Over the last two
years, they filed ten bankruptcy appeals before this Court in
an effort to prevent their former residence, located at 3
Wood Edge Court, Water Mill, New York (the
“Property”) from being sold to satisfy a lien
held by Osekavage. The Court issued several opinions
addressing the appeals, each time finding the arguments to be
meritless. See, e.g., Mergenthaler v.
Barnard, No. 15-CV-05078, 2016 WL 3080808, at *1
(E.D.N.Y. May 27, 2016); Mergenthaler v. Thaler, No.
15-CV-2034, Docket Entries 9, 12, (E.D.N.Y April 29, 2015).
On September 21, 2016, this Court barred Appellant 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.” Mergenthaler v. Barnard, Nos.
16-CV-4390, 15-CV-5078, 2016 WL 5173261, at *2 (E.D.N.Y.
Sept. 21, 2016).
appeal, this Court reviews the Bankruptcy Court's
“legal conclusions de novo and its factual
findings for clear error.” Townsend v. Ganci,
566 B.R. 129, 133 (E.D.N.Y. 2017). Factual findings are
clearly erroneous when, “after reviewing the evidence
as a whole, ‘the reviewing court is left with the
definite and firm conviction that a mistake has been
committed.'” In re Thakur, 498 B.R. 410,
419 (S.D.N.Y. 2013) (quoting In re AMR Corp., 490
B.R. 470, 475 (S.D.N.Y. 2013)). The district court reviews
mixed questions of law and fact de novo.
Appeal of the May 3, 2016 Order
April 5, 2016, Appellant filed a motion seeking the return of
$180, 000 she turned over to the Trustee on March 24, 2015.
(In re Mergenthaler, No. 15-72040, Appellant's
Mot., Docket Entry 146.) Judge Grossman denied the motion on
May 3, 2016. (See, Docket Entry 164.)
brief, Appellant fails to address the May 3, 2016 Order.
Instead, she focuses on why the Bankruptcy Court's
“order enjoining appellant from making further motions
or appeals should be reversed” and why the Bankruptcy
Court's “order overruling appellant's
opposition to any order of the court authorizing Trustee
Barnard to pay $2, 096, 976.36 to Dean Osekavage must be
reversed.” (Appellant's Br. at 12, 13.) Further,
as Barnard points out, she failed to attach a copy of the May
3, 2016 Order to the Notice of Appeal as required by Federal
Rule of Bankruptcy Procedure 8003(3). See
Fed.R.Bankr.P. 8003(3) (“The notice of appeal must . .
. be accompanied by the judgment, order, or decree, or the
part of it, being appealed.”). In light of
Appellant's failure to raise any ground for vacating the
Order, the appeal as to the May 3, 2016 Order is DISMISSED.
Appeal of the Filing Injunction
April 14, 2016, Osekavage filed a motion to enjoin Appellant
from “making any further motions and/or filings and/or
proceedings in this Court, without first obtaining written
permission from this Court . . . related to . . . 3 Wood Edge
Court, Water Mill, NY . . . and/or any and all attorneys and
court personnel connected to proceedings concerning the
Premises.” (In re Mergenthaler, No. 15-72040,
Not. of Mot., Docket Entry 149-1, at 1-2.) Judge Grossman
granted the motion during a hearing on May 2, 2016, and
endorsed the Filing Injunction on May 5, 2016. (See In re
Mergenthaler, No. 15-72040, Electronic Entry, May 2,
2016; Filing Injunction.) Appellant maintains that the Filing
Injunction should be vacated because it violates her
“rights to due process and to redress [her] grievances
in a court of law.” (Appellant's Br. at 12.)
deciding whether a filing injunction is warranted, a court
should consider “‘whether a litigant who has a
history of vexatious litigation is likely to continue to
abuse the judicial process and harass other
parties.'” In re Truong, No. 09-CV-11047,
2009 WL 2929261, at *7 (S.D.N.Y. Sept. 3, 2009) (quoting
Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir.
1986)). The Second Circuit has instructed district courts to
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.'”
Duran v. Kiley, 586 F. App'x 598, 600 (2d Cir.
2013) (quoting Safir, 792 F.2d at 24).
discussed, on September 21, 2016, this Court entered an
injunction barring Appellant from filing further cases,
motions, or appeals without this Court's permission.
See Mergenthaler, 2016 WL 5173261, at *1-2. This
Court found that “the Mergenthalers have filed numerous
vexatious cases in this Court in an effort to delay the sale
of [the] Property” and that of the ten bankruptcy
appeals filed by the Mergenthalers, none were meritorious.
Id. at *2. In light of this Court's finding that
a filing injunction was appropriate based on Appellant's