09-3961-cv
Lipin v. Saw yer

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 12 th day of October, two thousand ten.

PRESENT:           ROGER J. MINER,
                   BARRINGTON D. PARKER,
                   REENA RAGGI,
                             Circuit Judges.

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JOAN C. LIPIN,
                                          Plaintiff-Appellant,
                 v.                                                     No. 09-3961-cv

DANA A. SAWYER, J. DOE, NOS. 1-5, being the
fictional first and last names of the individuals who
conspired with the trespasser, DAVID E. HUNT, who
engaged in the tortious actions from which substantial
revenue has been and/or is expected to be derived,
that have caused injury to the plaintiff,
                                          Defendants-Appellees.
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APPEARING FOR APPELLANT:                          JOAN C. LIPIN, pro se, New York, New York.

APPEARING FOR APPELLEES:                          DAVID A. BERGER, Allegaert Berger & Vogel,
                                                  LLP, New York, New York, for Defendant-
                                                  Appellee Dana A. Sawyer.
       Appeal from the United States District Court for the Southern District of New York

(Richard J. Holwell, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on August 7, 2009, is VACATED and the case is

REMANDED to the district court for further proceedings consistent with this order.

       Plaintiff Joan C. Lipin, proceeding pro se, appeals from a judgment dismissing her

constitutional and statutory claims against defendants and holding her in civil contempt with

an attendant $5,000 fine for failure to comply with an August 2008 filing injunction. She

further appeals the district court’s decision not to consider her motion for judicial

disqualification.   “We review the scope of a district court’s injunction for abuse of

discretion.” Catanzano by Catanzano v. Wing, 103 F.3d 223, 228 (2d. Cir. 1996) (internal

quotation marks omitted). “We review a finding of contempt under an abuse of discretion

standard that is more rigorous than usual.” In re Grand Jury Subpoena Issued June 18, 2009,

593 F.3d 155, 157 (2d Cir. 2010) (internal quotation marks omitted). We review the denial

of a recusal motion for abuse of discretion. See LoCascio v. United States, 473 F.3d 493,

495 (2d Cir. 2007). We assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision.

       1.     Dismissal for Violation of Filing Injunction

       We have already dismissed Lipin’s previous appeal from the imposition of the August

2008 filing injunction pursuant to our inherent authority to dismiss an appeal that “presents


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no arguably meritorious issue for our consideration.” Pillay v. INS, 45 F.3d 14, 17 (2d Cir.

1995); see Lipin v. Hunt, No. 08-1514-cv (2d Cir. Nov. 14, 2008). In this appeal, however,

Lipin challenges the application of the district court’s filing injunction to a lawsuit she filed

in state court that was removed to federal court.

       In In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984), we held that the district court

erred in issuing a filing injunction to the extent it included a “blanket extension of the

injunction to state courts,” because “[a]buse of state judicial processes is not per se a threat

to the jurisdiction of Article III courts and does not per se implicate other federal interests.”

Id. at 1263. We upheld the injunction to the extent it required Martin-Trigona “to append

pertinent informational materials to pleadings in state courts” and recommended that the

district court

                 fashion an injunction prohibiting Martin-Trigona from bringing
                 new actions in any tribunal without leave from the district court
                 against persons who have encountered him in any capacity in
                 litigation in the District of Connecticut or in this court,
                 including, but not necessarily limited to, court personnel,
                 counsel, and the families and professional associates of such
                 persons.

Id.

       As Lipin initially filed the complaint here at issue in state rather than federal court,

In re Martin-Trigona compels us to conclude that the district court erred in dismissing her

action based on a violation of the filing injunction. In ruling otherwise, the district court

relied on the fact that the language of the filing injunction does not limit its application to any


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particular court and observed that the state action related to the Moose Pond property dispute

that had triggered the filing injunction. We nevertheless conclude that In re Martin-Trigona

does not permit a district court to enforce a blanket filing injunction against a party that

requires her to seek permission from a federal district court before filing claims in state court.

See id. What In re Martin-Trigona approved was an injunction that prohibited new actions

in “any tribunal” against “persons who have encountered [plaintiff] in any capacity in

litigation in the” federal district court. See id.

       2.      Contempt

       Additionally, as the applicability of the filing injunction to state court filings was not

clear and unambiguous from the language of the injunction, we are compelled to conclude

that the district court exceeded its discretion in holding Lipin in contempt and imposing

monetary sanctions for violating the injunction. See, e.g., Southern New Eng. Tel. Co. v.

Global NAPs Inc., --- F.3d ----, ----, 2010 WL 3325962, at *16 (2d Cir. Aug. 25, 2010)

(noting that court may hold party in contempt for failure to comply with order only where

order is “clear and unambiguous”).1

       3.      Recusal

       To the extent Lipin appeals from the district court’s order declining to consider the

motion to disqualify itself, we identify no abuse of discretion because Lipin’s notice of


       1
        We have cautioned plaintiff that if she maintains this action in the district court, that
court may consider the imposition of sanctions pursuant to Fed. R. Civ. P. 11(c) or 28 U.S.C.
§ 1927.

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appeal removed the case from the district court’s jurisdiction. See Griggs v. Provident

Consumer Disc. Co., 459 U.S. 56, 58 (1982). While Lipin may renew the motion on remand,

we note that adverse “judicial rulings alone almost never constitute a valid basis for a bias

or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994).

       For the foregoing reasons, the August 7, 2009 judgment of the district court is

VACATED and the case is REMANDED to the district court for further proceedings

consistent with this order.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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