Wizenberg v. Wizenberg (In re Wizenberg)

602 B.R. 372

IN RE: Peter Allan WIZENBERG, Debtor.

Howard Wizenberg, Plaintiff

v.Peter Wizenberg, Defendant.

Case No. 17-23522-JKO

Adv. No. 18-01019-JKO

United States Bankruptcy Court, S.D. Florida, Fort Lauderdale Division.

Signed May 15, 2019

Filed May 16, 2019

Mark S. Roher, Esq., Law Office of Mark S. Roher, P.A., Plantation, FL, for Plaintiff.

Peter Wizenberg, Pembroke Pines, FL, for Defendant.

ORDER GRANTING PLAINTIFF'S RENEWED AND SUPPLEMENTAL MOTION FOR ATTORNEY'S FEES AS AN APPROPRIATE SANCTION FOR DEFENDANT'S CONDUCT THROUGHOUT THIS CASE [ECF 215] PURSUANT TO 28 U.S.C. § 1927

John K. Olson, Judge United States Bankruptcy Court

THIS CASE came before the Court for a hearing on March 20, 2019, upon Howard Wizenberg's ("Plaintiff") Renewed and Supplemental Motion for Attorney's Fees as an Appropriate Sanction for Defendant's Conduct throughout Case (the "Renewed Motion for Sanctions") [ECF 215].¹ Plaintiff has requested the imposition of sanctions against Peter Wizenberg ("Debtor" or "Defendant") on multiple occasions, as described below. At each juncture of Plaintiff requesting sanctions against Defendant, this Court pushed the matter along in order to obtain a plenary understanding of the case and Defendant's behavior.² At the June 19, 2018 hearing for Plaintiff's First Motion for Sanctions [ECF 31 in case 17-23522-JKO], this Court stated that it believed § 1927 sanctions are only appropriate "late in the day" particularly when litigation is ongoing—that day has now arrived. Upon consideration of the pleadings, reported out-of-court practices, and observed courtroom behavior, this Court finds that Peter Wizenberg unreasonably and vexatiously multiplied these proceedings, and, therefore, sanctions against Debtor-Defendant, Peter Wizenberg, are appropriate under 28 U.S.C. § 1927.

I. Background

Defendant filed his Chapter 7 bankruptcy petition on November 8, 2017. [17-23522-JKO, ECF 1]. Plaintiff, Defendant's brother, filed this adversary proceeding on January 16, 2018 [ECF 1], seeking to recover or turnover of money or property; to object to or revoke a discharge, to determine the dischargeability of Plaintiff's claim; to obtain an injunction from Defendant discharging his debt due to willful and malicious actions; and to determine a claim or cause of action removed from state court pursuant to 28 U.S.C. § 1452.

Defendant Peter Wizenberg is a lawyer who was admitted to The Florida Bar in 2007.³ Peter Wizenberg has represented parties in 40 cases before this Court, including his own current case as a Chapter 7 debtor and this current adversary proceeding, which involves disputes between Peter Wizenberg and his brother, the Plaintiff Howard Wizenberg. Those disputes arise out of property and other disputes following the death of their mother, Ann Wizenberg. Peter Wizenberg served as original personal representative of their mother's estate, was removed from that office by the Circuit Court for Seminole County, Florida, at the insistence of Plaintiff, and was succeeded by Plaintiff.

A. Pre-Trial

Defendant filed a Partial Motion to Dismiss [ECF 11] on February 23, 2018, in response to Plaintiff's Amended Complaint [ECF 8]. This Court denied the Partial Motion to Dismiss on February 27, 2018, stating that the Amended Complaint was sufficient because it "plead a prima facie case for each claim at this early stage in the litigation" by providing a "short and plain statement of the claim showing that the pleader is entitled to relief ... [with] factual allegations presented rais[ing] the right to relief above the speculative level." [ECF 12]. Defendant filed his 43-page Answer and Affirmative Defenses on March 13, 2018 [ECF 18]. Between March 25 and March 28, 2019, initial disclosures were filed [ECF 20, 21, 22, 23], and Defendant's wife, Pantanassa Wizenberg, was subpoenaed [ECF 24] and served notice [ECF 25]. Defendant then filed a 46-page Amended Answer and Affirmative Defenses [ECF 32] on March 28, 2018.

On March 23, 2018, Defendant filed a 33-page Response [ECF 35] to Plaintiff's pleadings [ECF 32, 33, 34], and a 67-page Motion for Summary Judgment [ECF 36] on March 30, 2018. Defendant's Motion for Summary Judgment [ECF 36], as well as Plaintiff's Motion for Summary Judgment on Count II of the Complaint [ECF 34], were denied later on April 24, 2018 [ECF 50], due to the existence of genuine issues of material fact that must be resolved at trial.

On April 18, 2018, this Court held a hearing on Plaintiff's Motion to Strike All of Defendant's Affirmative Defenses, and Defendant's First and Thirteenth Affirmative Defenses were stricken without prejudice. [ECF 48]. At the April 18 hearing, the Court pointed out to Defendant that he had "asserted two affirmative defenses of the statute of limitations" but he failed to say what the statute of limitation is or what statute applies. [ECF 59, p. 4]. The Court also highlighted that the "rest of what [he] assert[ed] as affirmative defenses, are not affirmative defenses, the nature of which are set forth in the rules, but are simply elaborations on denials of various aspects of [P]laintiff's case in chief. [The Court] d[id] not understand why [Defendant] would call them affirmative defenses." [ECF 59, pp. 4-5]. The Court proceeded to strike two affirmative defenses, as they were just denials. [ECF 59, p. 18]; see also [ECF 48]. Defendant then filed Motion for Leave to Amend First and Thirteenth Affirmative Defenses Which Were Struck without Prejudice, and Second Amended First and Thirteenth Affirmative Defenses [ECF 58]. This Court entered an Order [ECF 50] on April 24, 2018, denying Plaintiff's Motion for Summary Judgment on Count II of the Complaint [ECF 34] and denying Defendant's Motion for Summary Judgment against Plaintiff [ECF 36].

On May 20, 2018, Defendant filed a 69-page Motion to Dismiss Count II for Lack of Subject Matter Jurisdiction (the "Second Motion to Dismiss") [ECF 62]. The hearing for the Second Motion to Dismiss was set for June 19, 2018 [ECF 65]. On June 5, 2018, in the main bankruptcy case, Plaintiff responded to the Motion to Dismiss for Lack of Jurisdiction by filing a Motion for the Imposition of Sanctions against Defendant pursuant to 28 U.S.C. § 1927 (the "First Motion for Sanctions") [17-23522-JKO, ECF 31]. As Plaintiff stated in its First Motion for Sanctions, "[o]ther than to needlessly increase the costs of litigation to Plaintiff, there can be no good faith basis for the Debtor to take the position that this Court lacks subject matter jurisdiction to determine whether his debt to the Plaintiff is dischargeable." [17-23522-JKO, ECF 31, p. 3].

Then, on June 5, 2018, Defendant filed a 153-page Motion for Reconsideration of Order and Motion to Vacate Order Denying Defendant's Motion for Summary Judgment ("Motion for Reconsideration") [ECF 68], even though the 14-day filing deadline from the time of the entry of the Order had lapsed, making the pleading untimely pursuant to Bankruptcy Rule 9023 (albeit timely under Bankruptcy Rule 9024, applying Fed. R. Civ. P. 60(b) ). In Defendant's Motion for Reconsideration, Defendant states that the Court erred [ECF 68, pp. 12-13] in regards to the standard applied to deny Defendant's Motion for Summary Judgment [ECF 36]. This Court's Order [ECF 36], however, clearly states that Defendant's Motion for Summary Judgment was denied "due to the existence of genuine issues of material fact that must be resolved at trial" [ECF 50], which is the correct standard. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact."). Defendant filed a 9-page Response in Opposition to Plaintiff's Motion for Imposition of Sanctions against Defendant [ECF 73] on June 13, 2018.

The first hearing on the First Motions for Sanctions, on June 19, 2018, was continued to August 29, 2018, but the Court took time to address the implications of the then-pending motion for sanctions at the June 19 hearing. The Court began by stating that it believes (1) § 1927 relief is available against pro se parties who are not members of the bar, although, here, Defendant is a member of The Florida Bar, and (2) this Court has the ability and the constitutional and statutory right to grant § 1927 sanctions. In choosing not to rule on whether § 1927 sanctions should be imposed yet, the Court reasoned that it is reluctant to do so in a matter of ongoing litigation, and that such sanctions were more appropriate to consider "late in the day." In an attempt to caution the Parties, the Court expressed its hope that the pending sanctions motion would encourage better behavior from the Parties since the Court—even at that point—believed the pleadings and motions filed in the case were overwrought. At multiple times throughout the hearing, the Court acknowledged the difficulty presented with family disputes but also urged the parties to use caution and act as professionals for the remainder of the case.

On June 11, 2018, Defendant filed a 53-page Motion to Compel Response to First Request for Production Filed by Defendant [ECF 69], which was subsequently withdrawn the same day [ECF 70]. On June 13, 2018, Defendant filed a 25-page Motion for Leave to Amend [ECF 71] his 153-page Motion to Reconsider [ECF 68]. On July 12, 2018, Defendant filed his 25-page Opposition [ECF 95] to Plaintiff's Motion to Compel and Motions to Limit Plaintiff's Deposition to One Day [ECF 92].

At Defendant's deposition on August 6, 2018, Plaintiff's counsel claimed on the record that Defendant raised his voice to him. [Defendant Deposition, p. 14, ll. 1-13]. At this deposition, Defendant also claimed he did not know what a privilege log is. [Defendant Deposition, p. 22, ll. 9-24]. Moreover, in...