17-1742 Vassel v. Firststorm Properties 2 LLC 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 19 th day of September, two thousand eighteen. 3 4 PRESENT: 5 JOHN M. WALKER, JR., 6 DENNIS JACOBS, 7 ROSEMARY S. POOLER, 8 Circuit Judges. 9

_____________________________________ 10 11 PAUL ANTHONY VASSEL, son of 12 VASSEL, living man, EXECUTOR EX 13 REALATIONE PAUL VASSEL, 14 15 Plaintiff-Appellant , 16 17 v. 17-1742 18 19 FIRSTSTORM PROPERTIES 2 LLC, 20 FIRSTSTORM PARTNERS 2 LLC, Trustee 21 (TBD) as Trustee for Securitized Trust, Servicer 22 (TBD), MORTGAGE ELECTRONIC 23 REGISTRATION SYSTEMS, INC., MICHAEL 24 F. KING, PLAZA GARDENS REAL ESTATE 25 CORP., WILLIAM MCDONALD, MARK 26 R. CASHMAN, ALBERT BASAL, FARREL R. 27 DONALD, STEPHEN SAMUEL WEINTRAUB, 28 DAVID GONGORA, OLD REPUBLIC 29 NATIONAL TITLE INSURANCE COMPANY, 30 TRIMONT REAL ESTATE ADVISORS, LLC, 31 and DOES, 1-100, 32Defendants-Appellees , 1 2 GREYSTONE BANK, AKA 3 GREYSTONE COMPANY, INC., AKA 4 GREYSTONE MULTIUNIT LLC, 5 JEFFREY A. BODOFF, and 6 ABRAMSON LAW GROUP, PLLC, 7 8 Defendants . 9

_____________________________________ 10 11 FOR PLAINTIFF-APPELLANT: Paul Anthony Vassel, pro se, Jamaica, NY. 12 FOR DEFENDANTS-APPELLEES: Barry G. Felder, Rachel E. Kramer, Foley & 13 Lardner LLP, New York, NY, for Mortgage 14 Electronic Registration Systems, Inc. 15 16 Alan F. Kaufman, Hinshaw & Culbertson LLP, 17 New York, NY, for Firststorm Properties 2 LLC, 18 Firststorm Partners 2 LLC, William McDonald, 19 Mark R. Cashman, David Gongora and Trimont 20 Real Estate Advisors, LLC. 21 22 Michael J. Siris, Solomon & Siris, P.C., Garden 23 City, NY, for Plaza Gardens Real Estate Corp. 24 and Old Republic National Title Insurance Co. 25 26 Mark Kenneth Anesh, Lewis Brisbois Bisgaard & 27 Smith LLP, New York, NY, for Michael F. King. 28 29 Appeal from a judgment and order of the Un ited States District Court for the Eastern 30 District of New York (Matsumoto, J .). 31 32 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 33 DECREED that the judgment of the district court is AFFIRMED , and that the injunction 34 ordered by the district court is AFFIRMED in part, and VACATED and REMANDED in part. 35 36 Paul Anthony Vassel, pro se, sued several i ndividuals and entities in connection with a 37 foreclosure proceeding initiated against him after he allegedly defaulted on a mortgage. The 38 district court dismissed Vassel’ s complaint as barred by both claim and issue preclusion, and 39 imposed a filing injunction on Vassel, prohibiting him from (among other things) filing further 40 related actions. Vassel a ppeals the dismissal as well as the in junction. We assume the parties’ 413 familiarity with the underlying facts, the procedur al history, and the issues presented for review. 1 1. We review de novo the district court’s res ju dicata ruling. Brown Media Corp. v. K&L 2
Gates , LLP , 854 F.3d 150, 157 (2d Cir. 2017). “The doctrin e of res judicata, or claim preclusion, 3 holds that a final judgment on the merits of an ac tion precludes the parties or their privies from 4 relitigating issues that were or could have been raised in that action.” Id. (internal quotation 5 marks and italics omitted). Res judicata bars an ac tion if “(1) the previous action involved an 6 adjudication on the merits; (2) the previous action i nvolved the plaintiffs or those in privity with 7 them; [and] (3) the claims asserted in the subseq uent action were, or coul d have been, raised in 8 the prior action.” Monahan v. N.Y.C. Dep’t of Corr. , 214 F.3d 275, 285 (2d Cir. 2000). 9 Vassel’s action is barred by the doctrine of res judicata. First, his previous action 10 involved an adjudication on the merits. Second, Vassel was a plaintiff in both actions. And 11 third, Vassel either raised, or could have raised, the same claims in his first action. Because we 12 hold that dismissal on the basis of res judicata was proper, we need not consider whether 13 dismissal was also proper on the basis of issue preclusion. Nonetheless, we further hold that, 14 even assuming some of Vassel’s claims fall outsi de the scope of both preclusion doctrines, they 15 were properly dismissed as patently meritless. 16 2. We review the imposition of a filing injunc tion under the district court’s inherent 17 authority for abuse of discretion. Gollomp v. Spitzer , 568 F.3d 355, 368 (2d Cir. 2009). “A 18 district court may, in its disc retion, impose sanctions against lit igants who abuse the judicial 19 process,” and “[t]he filing of repetitive and fri volous suits constitutes the type of abuse for which 20 an injunction forbidding further litigati on may be an appropriate sanction.” Shafii v. British 21 Airways, PLC , 83 F.3d 566, 571 (2d Cir. 1996); see also Sassower v. Field , 973 F.2d 75, 80–81 224 (2d Cir. 1992) (noting that a district court may sanction a pa rty for litigating “in bad faith, 1 vexatiously, wantonly, or for oppressive reasons”). 2 We consider several factors in determining wh ether and to what extent a litigant should 3 be prohibited from filing future actions: “(1) the litigant's history of litigation and in particular 4 whether it entailed vexatious, harassing or dupl icative lawsuits; (2) th e litigant’s motive in 5 pursuing the litigation,” including whether the litigant has “an object ive good faith expectation of 6 prevailing[]; (3) whether the litigant is repr esented by counsel; (4) whether the litigant has 7 caused needless expense to other parties or ha s posed an unnecessary burden on the courts and 8 their personnel; and (5) whether other sanctions would be adequa te to protect the courts and 9 other parties.” Safir v. U.S. Lines Inc. , 792 F.2d 19, 24 (2d Cir. 1986). 10 The district court acted within its discretion when it decide d to impose a filing injunction 11 on Vassel. Vassel has filed multiple actions re lated to the same foreclosure proceeding and 12 against many of the same defendants. The claims raised in these actions have been duplicative, 13 precluded, or patently meritless. In the district court, Vassel was recalc itrant and non-compliant. 14 And the district court warned Vassel before i ssuing the injunction and permitted him to respond. 15 See Moates v. Barkley , 147 F.3d 207, 208 (2d Cir. 1998). Ci rcumstances like these warrant 16 “some restriction” on a litigant’s ability to file future actions. Safir , 792 F.2d at 24. However, 17 the injunction imposed on Vassel exceeds the bou nds of the district court’s discretion in two 18 respects. 1 19

1 “We address only [those two] issues. . . . [T]o the extent that certain provisions of the [injunction] order are not mentione d [herein], we agree with and affirm the district court.” In re Martin-Trigona , 737 F.2d 1254, 1262 (2d Cir. 1984) (reviewing a filing injunction).5 First, the district court’s injunction--whi ch prohibits Vassel from initiating lawsuits 1 related to the foreclosure proceeding or against th e parties named in his ear lier suits--is imposed 2 with equal force in both federal and state court. However, principles of federalism and comity 3 counsel against the “blanket extension” of fili ng injunctions to proceedings in state court. 4 Martin-Trigona , 737 F.2d at 1262–63. Accordingly, we have vacated filing injunctions insofar 5 as they prohibit filings in state court that concern a particular subject. See id. at 1263; Lipin v. 6 Sawyer , 395 F. App'x 800, 801–02 (2d Cir. 2010). At th e same time, the protection of parties 7 abused in federal litigation falls within the province of the fede ral courts; so we have upheld 8 filing injunctions “pr ohibit[ing] [the plaintiff] from initiating lawsuits or other matters in any . . . 9 state[] or local forum against persons or entiti es that have encountered him [in] or had any 10 connection with” the various federa l court proceedings that gave ri se to the injunction order. In 11 re Martin-Trigona , 763 F.2d 140, 142 (2d Cir. 1985); see also Doe v. Republic of Poland , 531 F. 12 App'x 113, 115–16 (2d Cir. 2013) (noting that a distri ct court may enjoin a “vexatious litigant 13 ‘from bringing new actions in any tribunal’ . . . against persons whom the litigant has previously 14 harassed through [federal] judi cial proceedings” (quoting Martin-Trigona , 737 F.2d at 1263)). 15 We therefore affirm the district court’s order to th e extent that it restricts Vassel’s ability to file 16 suit in state court against specifie d parties, but vacate it in part a nd remand for the district court 17 to remove the broader prohibition on filing state court actions. The district court is not precluded 18 on remand from placing further permissible “quali fications” on Vassel’s access to state court. 2 19

2 For example, the district court may, in its discretion, modify the injunction order to require Vassel to append a copy of it “to [any fu ture] pleading[] [he files] in state court[].” Martin-Trigona , 737 F.2d at 1262

– 63; accord Republic of Poland , 531 F. App’x at 115.6 Martin-Trigona , 737 F.2d at 1263. 1 Second, the injunction prohibits Vassel outri ght from filing certain lawsuits, without 2 permitting him to seek leave of the court to do so . Although “we are unable to divine any relief 3 still available to [Vassel] . . . relating to” th e foreclosure proceeding or against the relevant 4 parties, an injunction precluding him--a pro se litigant--from instituting an action under any 5 circumstance is “overly broad,” as it “foreclose[s] what might be a meritorious claim.” Safir , 6 792 F.2d at 25. Accordingly, we vacate the distri ct court’s order in relevant part and remand 7 with instructions that the district court “modi fy the injunction to provi de that [Vassel] is 8 prevented only from commencing [the specified] actions . . . without first obtaining leave of the 9 district court .” Id. (emphasis added). 10



### * * * 11 We have considered Vassel’s remaining arguments--including his jurisdictional 12 challenges--and find them to be without merit. For the foregoing reasons, the judgment of the 13 district court is AFFIRMED , and the order enjoining Vassel’s activities is AFFIRMED in part, 14 and VACATED and REMANDED in part, with instructions th at the district court enter a 15 revised injunction consiste nt with this Order. 16
FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk of Court 18