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 response to Plaintiff's counsel's questions, the following back-and-forth occurred, in which Defendant attempted to depose himself:

[Defendant Deposition, p. 56, ll. 15-25; p. 57, ll. 1-10].

At Plaintiff's deposition on August 7, 2018, Defendant exhibited behavior unacceptable to the practice of law and basic civility:

[ECF 123, Ex A., p. 14, ll. 21-25; p. 15, ll. 1-3].

[ECF 123, Ex. A, p. 19, ll. 2-25; pp. 20-22; p. 23, ll. 1-6].

[ECF 123, Ex. A, p. 26, ll. 16-25; p. 27, ll. 1-5].

On August 7, 2018, Defendant's wife was also deposed. [ECF 105]. According to Plaintiff, Plaintiff questioned Defendant's wife for "approximately five (5) minutes" before "De[fendant] thereafter insisted on asking wholly asking irrelevant and leading questions of his wife on `re-direct' for approximately one hour." [ECF 105].

On August 8, 2018, Plaintiff filed a Motion to Compel Defendant to Produce a Privilege Log [ECF 101]. The Motion to Compel [ECF 101] states, "at [Defendant's] deposition conducted on August 6, 2018, Debtor testified of the existence of relevant and responsive documents in his possession that he withheld from producing to Plaintiff under the claim of attorney-client privilege." [ECF 101, p. 2]. At no time did Defendant produce a privilege log, and Defendant "testified that he has practiced civil litigation during his career" but claimed not to know "what a privilege log is or what one looks like." [ECF 101, p. 2]. Without a hearing, this Court granted Plaintiff's Motion to Compel Defendant to Produce a Privilege Log. [ECF 102]. The Court's Order instructed Defendant to provide a privilege log "detailing which documents or other communications are protected under the attorney-client privilege" between Defendant and Sara Howeller, Esq. [ECF 102].

On August 14, 2018, Plaintiff submitted his Supplemental Motion for the Imposition of Sanctions against the Debtor [ECF 105]. In this Supplemental Motion, Plaintiff alleged that during Defendant's wife's deposition, Plaintiff's counsel "questioned Defendant's wife for approximately five (5) minutes," whereas Defendant "insisted on asking wholly irrelevant and leading questions of his wife on `re-direct' for approximately an hour." [ECF 105]. Plaintiff also alleged that "Debtor thereafter began questioning Plaintiff on a myriad of wholly irrelevant issues," such as childhood incidents and a 2004 domestic violence case. [ECF 105].

On August 16, 2018, Plaintiff filed another motion for sanctions in its Motion for Order to Show Cause Why Defendant Should Not be Held in Contempt of Court or Alternatively, to Compel Defendant to Produce an Adequate Privilege Log and for Attorney's Fees [ECF 107] pursuant to 11 U.S.C. § 105(a). This Court entered an Order to Show Cause [ECF 110], which directed Defendant (1) to provide Plaintiff with a privilege log that complies with the Court's Order Granting Motion to Compel [ECF 102] and Federal Rule of Civil Procedure 26(b)(5), and (2) to appear at the Order to Show Cause hearing on August 29, 2018. [ECF 110]. On September 20, 2018, this Court issued an Order awarding attorney's fees to Plaintiff [ECF 129] pursuant to the Court's Order to Show Cause [ECF 110] due to Defendant's "failure to fully comply with the Order Granting Motion to compel [ECF 102] without justification." On September 26, 2018, Defendant appealed stating that he "in complete good faith, was unaware (and had totally forgotten from Evidence class taken fifteen years prior) that Defendant was required to send Plaintiff a privilege log, and Defendant did not do so." [ECF 142, p. 2].

On August 22, 2018, Plaintiff filed his Motion to Strike Defendant's Trial Exhibits and to Preclude Sara Howeller from Testifying at Trial and for Attorney's Fees and Sanctions [ECF 116]. The basis of ECF 116 was that Defendant emailed Plaintiff a trial exhibit register two weeks after Defendant's deposition—on August 19, 2018—listing previously undisclosed emails between Defendant and Sara Howeller as well as a MasterCard statement. [ECF 116].

At the hearing on August 29, 2018, on the First Motion for Sanctions [17-23522-JKO, ECF 31], the Court first addressed the issue of Defendant claiming not to know about privilege logs: "[L]et's start with the issues relating to the privilege log. I'm unhappy with you, Mr. [Peter] Wizenberg. You hold yourself out as a lawyer, and you've been in practice for many years. Not knowing what a privilege log is and what is required is shocking to me." [17-23522-JKO, ECF 39, p. 3]. Next, Mr. Roher, Plaintiff's attorney, requested the Court exclude two evidence documents submitted by Plaintiff because Defendant did not produce them prior to Defendant's deposition even though they were in existence when Defendant submitted his other evidence prior to the deposition; Mr. Roher claimed the documents were "intentionally withheld and untimely produced." [17-23522-JKO, ECF 37, pp. 6-7]. At that First Motion for Sanctions [17-23522-JKO, ECF 31] hearing, while addressing ECF numbers 107, 110, and 116, this Court stated, "I'm satisfied that what was done here by you, Mr. [Peter] Wizenberg, was, intentionally or not, gamesmanship, and the way to deal with discovery improprieties is to exclude all exhibits which were produced by you subsequent to the taking of your deposition." [ECF 154, p. 9, ll. 4-9].

On August 22, 2018, the Court granted ECF 116 in part (Defendant was precluded from introducing into evidence or utilizing any exhibits at trial that were not produced to Plaintiff prior to Defendant's August 6, 2018 deposition) and denied in part (Sara Howeller would not be prohibited from testifying at trial). [ECF 132]. The Court also awarded attorneys fees and costs incurred by Plaintiff against the Debtor. [ECF 132]. As of September 4, 2018, Plaintiff's attorney, Mark S. Roher, filed his Affidavit of attorney's fees. The Affidavit states that he billed Plaintiff a total of $2,880.00 "at the discounted rate of $300 per hour for a total hour of 9.6 hours ... in connection with compelling Defendant to produce a privilege log and to strike Defendant's trial exhibits." [ECF 125]. Mr. Roher's normal hourly rate is $400.00. [ECF 125].

On October 1, 2018, Defendant filed a 132-page Motion for Leave to Appeal Order Striking Defendant/Appellant's Trial Exhibits and Awarding Fees and Sanctions [ECF 149]. District Court Judge Cecilia Altonaga denied Defendant's Motion. [ECF 153].

On November 5, 2018, Defendant filed a 104-page Motion for Partial Summary Judgment for Count 1 against Plaintiff [ECF 172] regarding the dischargeability of debt under 11 U.S.C. § 523(a)(6) claimed by Plaintiff. See [ECF 8]. In Defendant's Motion for Partial Summary Judgment, Defendant (apparently unknowingly) demonstrates why it should not have been granted by presenting an abundance of disputed facts. [ECF 172]. Plaintiff filed a Motion [ECF 175] to Extend Time to File a Response to Defendant's Motion for Partial Summary Judgment, which was granted [ECF 178], but not before Defendant filed its Opposition Response [ECF 176] to Plaintiff's request to extend time. In Defendant's Opposition Response [ECF 176], he disputed the length of an appropriate "Thanksgiving holiday" in trying to discredit Plaintiff's request for more time; this attempt seems, to this Court, unnecessary and uncivil.

On December 10, 2018, Defendant filed his Reply to Plaintiff's Response to Defendant's Motion for Partial Summary Judgment for Count I against Plaintiff [ECF 180]. In that filing, Defendant hurls insults and provides narration that is both lengthy and unhelpful to the litigation.

Defendant filed his Witness Statement Sworn Declaration of Fact of Sara Howeller, Esq. [ECF 188] on January 19, 2019. Plaintiff then filed a Joint Pretrial Stipulation of Uncontested Facts [ECF 189] on January 22, 2019. Plaintiff also filed a Motion to Extend Time to File Opening Statement [ECF 191] and it was granted [ECF 195], and Plaintiff filed his Opening Statement [ECF 194] on January 24, 2019.

On January 26, 2019, Plaintiff filed a Motion in Limine [ECF 198] as to Exhibits "F" and "G" Attached to Defendant's Opening Statement and Request for the Imposition of Sanctions for Violations of Two Court Orders. The Motion in Limine was prompted by Defendant attaching to his 326-page Opening Statement [ECF 190] two exhibits that were not produced prior to Defendant's deposition, which, Plaintiff asserted, brazenly violated the Court's Order Setting Trial [ECF 183]. The Order Setting Trial provides, "Pursuant to this Court's Order [ECF No. 132], Defendant is precluded from introducing into evidence or utilizing any exhibits at trial which were not produced prior to Defendant's August 6, 2018 deposition." [ECF 183, p. 2]. In response, Defendant filed a 58-page Response Opposing Plaintiff's Motion in Limine and Request for the Imposition of Sanctions, etc. [ECF 201]. This Court, on January 28, 2019, granted Plaintiff's Motion in Limine in part (by striking Exhibits "F" and "G") and denied in part as to the request for sanctions. [ECF 203].

In the process of preparing for trial, Defendant also filed a Supplement to Witness Statement Sworn Declaration of Fact of Sara Howeller, Esq. [ECF 196] on January 26, 2019. Plaintiff objected based of relevance, speculation, inadmissible hearsay, the best evidence rule, and the presence of legal conclusions. [ECF 199]. This Court sustained Plaintiff's objection by Order [ECF 204] and struck the Supplement to the Witness Statement Sworn Declaration [ECF 196] stating:

This Court also denied Plaintiff's "137-page Opposition Response [ECF 202]" in its request for a trial continuance. [ECF 204].

B. Trial

On January 29, 2019—the day of trial— Plaintiff was forced to object to two witness statements filed by Defendant the night before trial: the Witness Statement & Sworn Declaration of Fact of Peter Wizenberg [ECF 205], and the Witness Statement and Sworn Declaration of Fact of Defendant's wife, Pantanassa Wizenberg [ECF 206]. Defendant filed ECF 205 and ECF 206 at 10:05 p.m. and 10:11 p.m., respectively, the night before trial. Plaintiff's objections to the two witness statements [ECF 207, 208], were sustained. [ECF 209]. This method of filing documents just hours before trial is utterly unprofessional, and it required Plaintiff and the Court to scramble. The Court found itself obliged to adjudicate motions on the morning of trial, which is why the Court entered ECF 209 at 9:37 a.m., even though the trial was supposed to begin at 9:30 a.m. This Court sustained Plaintiff's objections, and struck Peter Wizenberg and Pantanassa Wizenberg's witness statements. [ECF 209].

In Court, at trial, Defendant—when asked if he had his exhibit register4— stated that he did not have a register because his printer broke, and that he "expect[ed] [the Court] to accept the original copy of the deposition" and witness statements without an exhibit register. [ECF 260, p. 9, ll. 2-17]. Upon the sustained objection of Plaintiff, the transcript offered by Defendant was deemed inadmissible since the transcription's deponent, Howard Wizenberg, was present at trial and, thus, was available for cross-examination. [ECF 260, p. 10, ll. 16-18].

This Court was forced to orally reprimand Defendant. Specifically, at trial, Defendant continuously, bizarrely, and brazenly ignored clear rulings by the Court and attempted to coach his witness, Sara Howeller, Esq., while she was on the witness stand.

Howard Wizenberg's Witness Examination

At trial, during cross-examination of the Plaintiff:

[ECF 260, p. 35, ll. 8-18].

[ECF 260, p. 45 ll. 10-25, p. 46, ll. 1-15].

[ECF 260, p. 47, ll. 24-25; p. 48, ll. 1-25; p. 49, ll. 1-22].

[ECF 260, p. 59, ll. 16-24].

[ECF 260, p. 62, ll. 8-25; p. 63, ll. 1-20].

1. Sara Howeller, Esq.'s Witness Examination

During the examination of the Defendant's witness, Sara Howeller, Esq., who is the Defendant's probate attorney, the Defendant tried to coach the witness:

[ECF 260, p. 118, ll. 17-24].

[ECF 260, p. 125, ll. 8-19].

[ECF 260, p. 131, ll. 18-25; p. 132, ll. 1-13].

[ECF 260, p. 136, ll. 4-25; p. 137, ll. 1-6].

C. Post-Trial

On February 1, 2019, Plaintiff filed a Renewed and Supplemental Motion [ECF 215] for Attorney's Fees as an Appropriate Sanction for Defendant's Conduct as an Appropriate Sanction for Defendant's Conduct throughout this Case for excessive costs pursuant to 11 U.S.C. § 105(a) and 28 U.S.C. § 1927. Plaintiff, in his prayer for relief, is asking for $24,880.00. [ECF 215]. This amount, when divided by Plaintiff's counsel's discounted rate of $300 per hour, comes out to about eighty-three (83) hours' worth of work. This is an absurd number of hours for this relatively simple case, but the Court realizes that Mr. Roher had to put in that work because Mr. Peter Wizenberg's unreasonable and vexatious actions in multiplying these proceedings.

On February 5, the Court entered its Memorandum Opinion [ECF 218] and Judgment in Favor of Plaintiff Howard Wizenberg on Counts I and II of the Amended Complaint [ECF 219].

In pertinent part from the Memorandum Opinion [ECF 218]:

In pertinent part from the Final Judgment [ECF 219]:

On March 19, 2019, one day before the hearing on the Renewed Motion for Sanctions [ECF 215], Defendant filed his Response to Plaintiff's Renewed Motion for Sanctions [ECF 255] in violation of Local Rules.9 Later that same day, Plaintiff's attorney Mark Roher filed his Reply [ECF 256] to Defendant's Response. On March 20, 2019, the Court conducted a hearing on the Renewed Motion for Sanctions [ECF 215] and heard argument from Peter Wizenberg and Plaintiff's attorney Mark Roher. Since the Final Judgment in this case has now been entered and the life of the case has been observed, the issue of sanctions under § 1927, which was initially brought up ten (10) months ago, is now ripe for this Court to consider.

II. Application of Controlling § 1927 Law to the Facts of this Case

To impose sanctions under 28 U.S.C. § 1927 there are three elements that must be satisfied. Section 1927 provides:

First, the person whom sanctions are sought against must be an attorney; second, the court considering the imposition of sanctions must be a court of the United States; and, finally, the conduct of the attorney against whom sanctions are sought must have "unreasonably and vexatiously" multiplied the proceedings. 28 U.S.C. § 1927.

As to the first element, there is no dispute that Peter Wizenberg, a pro se defendant, is an attorney who represented himself throughout this adversary proceeding. Peter Wizenberg is a current member of The Florida Bar (Florida Bar No. 34500) who has practiced in this Court in the past. See [ECF 215, p. 1].10 In fact, Defendant has practiced in this Court with at least forty (40) different cases stemming from 2009 to the present. Even if Defendant were a non-attorney pro se party, the Court would still consider sanctions here. See In re Ocean 4660 LLC, 569 B.R. 850, 874-76 (Bankr. S.D. Fla. 2017) (holding that 28 U.S.C. § 1927 can apply to pro se litigants under the circumstances set forth therein).

Second, this Court has already determined that a bankruptcy court is a "court of the United States." See Ocean 4660, 569 B.R. at 874-76 (providing a thorough discussion of why a bankruptcy court is a "court of the United States").

Id. at 876 (quoting In re Lawrence, No. 97-BKC-AJC, 2000 WL 33950028 (Bankr. S.D. Fla. 2000)); In re Moran Lake Convalescent Ctr., LLC, No. 10-43405-MGD, 2012 WL 470433, 2012 Bankr. LEXIS 465 (Bankr. N.D. Ga. 2012); see also In re Mroz, 65 F.3d 1567 (11th Cir. 1995) (holding that bankruptcy courts have the power to assess sanctions pursuant to their inherent powers). Furthermore, since this case took place in this Bankruptcy Court, this Court is best suited to make a determination of whether sanctions should be imposed. See generally In re Lisse, 921 F.3d 629 (7th Cir. 2019) ("Because trial judges are best positioned to detect bad faith litigation conduct, they possess broad discretion in exercising the § 1927 power." ((citing Bell v. Vacuforce, LLC, 908 F.3d 1075, 1082 (7th Cir. 2018) (quoting Boyer v. BNSF Ry. Co., 824 F.3d 694, 708 (7th Cir. 2016))). However, if the District Court on appeal determines otherwise, this Order should be treated as a Report and Recommendation pursuant to the provisions of Local Rule 87.2(c) of the United States District Court for the Southern District of Florida, and the District Court should impose sanctions pursuant to 28 U.S.C. § 1927 against Defendant.

Having determined that § 1927 is applicable to Peter Wizenberg and that this Court has the statutory power to impose sanctions pursuant to § 1927, the analysis turns to whether Peter Wizenberg's conduct multiplied the proceedings in an unreasonable and vexatious manner. Conduct violating § 1927 has three requirements: "(1) the litigant must engage in unreasonable and vexatious conduct, (2) the unreasonable and vexatious conduct must multiply the proceedings, and (3) the dollar amount of the sanction must bear a financial nexus to the excess proceedings." Ocean 4660, 569 B.R. at 876 (citing Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th Cir. 1997)).

The Eleventh Circuit has "consistently held that an attorney multiplies proceedings `unreasonably and vexatiously' within the meaning of the statute only when the attorney's conduct is so egregious that it is `tantamount to bad faith.'" Amlong & Amlong, P.A. v. Denny's, Inc., 457 F.3d 1180, 1190 (11th Cir. 2006) (quoting Avirgan v. Hull, 932 F.2d 1572, 1582 (11th Cir. 1991)). Bad faith is determined on an objective—not a subjective—basis. Amlong, 457 F.3d at 1190 ("[I]t is clear from the statutory language and the case law that for purposes of § 1927, bad faith turns not on the attorney's subjective intent, but on the attorney's objective conduct."). An attorney's conduct is "`tantamount to bad faith' when he `either carelessly or deliberately' covered up evidence." Id. at 1191 (quoting Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1544 (11th Cir. 1993)). Moreover, "a determination of bad faith is warranted where an attorney knowingly or recklessly pursues a frivolous claim or engages in litigation tactics that needlessly obstruct the litigation of non-frivolous claims." Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003); see also Amlong, 457 F.3d at 1191 ("[O]bjectively reckless conduct is enough to warrant sanctions even if the attorney does not act knowingly and malevolently.").

III. Defendant-Attorney's Conduct

Whether Peter Wizenberg unreasonably and vexatiously multiplied proceedings is determined by objectively reviewing his conduct. See Amlong, 457 F.3d at 1190. Throughout the course of this case, Defendant, Peter Wizenberg, has:

Although Peter Wizenberg has stated on the record that he believes his actions have been "in good faith and based in law and fact,"13 it holds no weight in this objective-lens analysis. See Amlong, 457 F.3d at 1190 ("[F]or purposes of § 1927, bad faith turns not on the attorney's subjective intent, but on the attorney's objective conduct."). Based on Peter Wizenberg's actions listed above and throughout this case, this Court finds that Peter Wizenberg has acted in bad faith. Peter Wizenberg has suffocated the Court's docket with painfully long and frivolous pleadings, many of which are based in neither law nor fact, including his motion [ECF 62] claiming this Bankruptcy Court did not have subject matter jurisdiction to determine the dischargeability of a debt. See 28 U.S.C. § 157(b)(2)(I).14 Bad faith can also be found by his withholding documentary evidence he claimed to be relevant prior to and throughout his deposition, and eventually submitting such documents some two weeks after his Deposition. In depositions of other witnesses, Peter Wizenberg inefficiently, continuously, needlessly and rudely carried on repetitive questions triggering the same objections repeatedly; in contrast, Plaintiff's counsel expressly stated his intention not to make transcripts "very long." The effort to prolong depositions began prior to the actual events; for example, Defendant told Plaintiff that he would need multiple days to depose Plaintiff, which—based on the nature of the case, the amount dispute, and the facts present—was a grossly unnecessary and unreasonable projection. Although Defendant was representing himself, he is nonetheless an attorney with a duty to act appropriately both in this Court and in ancillary proceedings.

Whether a claim is dischargeable is wholly within this Court's jurisdiction and is routinely brought before this Court for determination. At the end of the day, this case should have taken a fraction of the time and energy spent by not only the Parties, but by this Court. More than fourteen months and over 250 docket entries later, this Court can say that the proceedings have multiplied as a result of Peter Wizenberg's unreasonable and vexatious conduct, and Plaintiff's counsel's bill for services rendered is a direct result of the excess proceedings. See [ECF 125, 258]. Therefore, this Court, having considered the life of the case and Defendant's conduct throughout, now finds it appropriate to sanction Defendant pursuant to 28 U.S.C. § 1927.

Specifically, the Court has reviewed the invoices provided by Plaintiff's attorney Mark Roher [ECF 215, ex. E]. The Court has analyzed which billable hours are directly attributable and were reasonably incurred because of Peter Wizenberg's unreasonable and contemptuous behavior, and has reproduced those hours below, with the last column representing this Court's determination of the dollar amount of the time needlessly incurred which is now recoverable as a sanction against Peter Wizenberg pursuant to 28 U.S.C. § 1927. Invoice items that would have been incurred regardless of Peter Wizenberg's behavior are omitted.

  Date                 Description           Billable Hours     Fee at      Amount Recoverable as a
                                                                $300/hr     28 U.S.C. § 1927 Sanction

  2/26/2018            Prepare Rule          1                  $300        $300
                       9011 Motion

  3/25/2018            Prepare and file      1.5                $450        $450
                       Motion to strike
                       affirmative
                       defenses

  3/29/2018            Prepare motion to     2                  $600        $450
                       strike amended                                       ¾ of fee recoverable
                       affirmative
                       defenses and
                       motion for
                       summary
                       judgment on
                       count 2

  4/21/2018            Prepare order         0.5                $150        $150
                       from April 18
                       hearings

  6/5/2018             Review of             2.5                $750        $750
                       renewed motion
                       to dismiss
                       adversary
                       proceeding and
                       prepare motion
                       for sanctions

  6/15/2018            File motion to        0.5                $150        $150
                       direct depositions
                       to be conducted
                       at courthouse

  6/19/2018            Prepare for and       3.0                $900        $600
                       attend hearings                                      2/3 of fee recoverable
                       on 28 USC 1927
                       motion and
                       debtor's other
                       motions

  7/12/2018            Emails with           0.7                $210        $210
                       Debtor and file
                       motion to compel

  7/12/2018            Numerous emails       1.0                $300        $300
                       with debtor and
                       with chambers
                       regarding
                       scheduling
                       depositions

  7/19/2018            Numerous emails       1.0                $300        $300
                       with debtor and
                       with chambers
                       regarding
                       scheduling
                       depositions

  8/6/2018             Prepare for and       6.8                $2,040      $1,020
                       conduct                                              ½ of fee recoverable
                       deposition of

                       defendant and
                       meet with client

  8/7/2018             Attend                4.0                $1,200      $600
                       depositions                                               ½ of fee recoverable

  9/4/2018             Prepare and file      0.3                $90         $90
                       affidavit of fees
                       and costs

  10/9/2018            Review of             1.5                $450        $450
                       motions for leave
                       to appeal and
                       research

  10/17/2018           Review of reply       0.3                $90         $90
                       DE 164

  10/24/2018           Attend hearings       2.0                $600        $300
                                                                            ½ of fee recoverable

  11/30/2018           Prepare response      1.0                $300        $300
                       to motion for
                       partial summary
                       judgment

  1/26/2019            Prepare motion in     0.1                $30         $30
                       limine and for
                       sanctions

  1/27/2019            Prepare objection     0.8                $240        $240
                       to Sara
                       Howeller's sworn
                       statement

  1/29/2019            Prepare for and       10                 $3,000      $1,000
                       attend trial                                         1/3 of fee recoverable

  3/19/2019            Prepare reply to      3.0                $900        $900
                       response to
  (ECF 256, ex. F)     motion for
                       sanctions

  3/20/2019            Actions taken on      Unknown            $1,170      $1,170
                       March 19 and 20,
  (ECF 2580            201915

Total Costs Recoverable as a 28 U.S.C. § 1927 sanction: $9,850

Upon consideration, it is ORDERED:

Attachment

APPENDIX A

A Sample of Malicious, Vexatious and/or Objectively Pointless and Irrelevant Pleadings Filed by Peter Wizenberg

As a preliminary matter, the Court is appalled with the behavior of Defendant Peter Wizenberg, an attorney licensed to practice in the State of Florida, throughout this case. But beyond the in court, in deposition, and out of court behavior, the length and content of many filings from the Defendant were malicious, vexatious, and altogether pointless in a way that increased the workload exponentially not only for Plaintiff's Attorney Mark Roher, but for this Court. The Court takes very seriously its obligation to read and dutifully contemplate every filing, and has accordingly slogged through every single page. Unfortunately, it is clear that from the beginning that Defendant Peter Wizenberg only had one goal in mind: extend this litigation as much as possible in an effort to drain his brother's financial resources. In the process, Defendant Peter Wizenberg has debased himself as an attorney.

The below is merely some selected portions of the filings from Mr. Peter Wizenberg that this Court finds to be either vexatious, malicious, or such an irrelevant or objectively pointless statement as to multiply these proceedings in an unreasonable manner. This following list is by no means an exhaustive catalogue of misconduct, but meant only to be illustrative.

ECF 36 Defendant's Motion for Summary Judgment Against Plaintiff (67 pages)

7. While the plaintiff does indeed make an allegation of "theft" against defendant, the plaintiff pleads no facts whatsoever in his First Amended Complaint that support his mere allegation of theft. None. Zip. Nada. Rien. Zero. Gornisht.

8. Absolutely no evidence whatsoever is proffered or adduced in support of plaintiff's allegation of willful and malicious injury, or the mental states required to sustain an allegation of bothe [sic] willful and malicious injury. None. Zip. Nada. Rien. Zero. Gornisht.

14. It is noteworthy, that plaintiff has a very long history of making false allegations. One incredible example that can be adduced with documentation is his not credible allegation of "domestic violence" against his octogenarian mother, Ann Wizenberg, in 2005. Plaintiff is a tall, large, and very strong man, with a history of domestic violence against others, and his octogenarian mother was short, sickly with numerous medical problems, had trouble walking, and was very frail. A copy of the docket evidencing plaintiff's incredible allegation against his mother is attached hereto as Exhibit "B"

19. During the period of Ann Wizenberg's hospitalization and hospice stay, plaintiff Howard Wizenberg repeatedly came to the hospital and hospice and screamed at defendant, Peter Wizenberg, that he was a "murderer" for following his mother's frequently expressed wishes that if she were incapacitated and the doctors' stated that there was no hope of recovery, that she be allowed to die. Her wishes were stated in writing, and also were very often verbally expressed. Plaintiff Howard Wizenberg stated that he wanted his mother to be kept alive so that she would continue to receive monies monthly because she would still be alive, and he would inherit half those monies

20. While plaintiff Howard Wizenberg was engaging in extreme, vehement, nearly violent, animus, enmity, and hatred directed at defendant Peter Wizenberg, defendant Peter Wizenberg, could have, while Ann Wizenberg was still alive and incapacitated, lawfully gifted items of her personal property to anyone. Incredibly, plaintiff, Howard Wizenberg alleges that Peter Wizenberg, a licensed attorney, instead of lawfully gifting items during his mother's incapacity, foolishly waited for her to die, and then foolishly illegally stole items from the estate.

21. During Ann Wizenberg's hospitalization and hospice stay up to her death, defendant, Peter Wizenberg slept, every night overnight by his mother's bedside, and was with her almost virtually around the clock. Defendant's wife, Pantanassa Wizenberg, had to go to the home of Ann Wizenberg, to take our dog out for walks, where she encountered plaintiff Howard Wizenberg, illegally trespassing along with sister Genia Silverberg, (who was purposefully left out of Ann Wizenberg's will. (There was extreme enmity between mother and daughter for decades. Mother turned out to be totally in the right.) ransacking the house for things to steal. Pantanassa Wizenberg also, on or about Wednesday, September 8, 2010, three days before my mother's death, encountered plaintiff Howard Wizenberg having hired a locksmith to illegally change the locks on Ann Wizenberg's house. Howard Wizenberg and Genia Silverberg were frequently in and out of the house in the weeks and days prior to their mother's death, because Howard Wizenberg had the keys, and Pantanassa Wizenberg and defendant Peter Wizenberg were at the hospital and hospice. Plaintiff Howard Wizenberg had keys to Ann Wizenberg's house, and so, Peter Wizenberg, acting within the scope of his authority as Durable Power of Attorney, and fulfilling his fiduciary duty to protect his mother's assets, from the hospice telephoned a different locksmith to change the locks on his mother's house, to prevent plaintiff Howard Wizenberg from stealing property in the future, while Pantanassa Wizenberg paid for the locksmith's services. A copy of the locksmith's receipt is attached hereto as Exhibit "E"

22. The aforementioned events add background to understand the horrendous human drama that has played out culminating in plaintiff's breathtakingly diabolical and false and audacious "big lie" technique of filing thoroughly false, malicious, frivolous suits against his brother, defendant, Peter Wizenberg, with absolutely no evidentiary basis whatsoever, just a claimed and feigned "assumption"! There are many more horrendous facts about plaintiff's atrocious behavior, not mentioned herein.16

ECF 62 Motion to Dismiss Count II For Lack of Subject Matter Jurisdiction (69 pages)

The Court finds it unnecessary to reproduce the entirety of this document here, but simply states that the entire motion is preposterous on its face. As an attorney who practiced bankruptcy law in this Court, Peter Wizenberg must have known that this Court has subject matter jurisdiction to determine the dischargeability of debts under the express provisions of 28 U.S.C. § 157(b)(2)(I).

ECF 68 Defendant's Motion for Reconsideration of Order and Motion to Vacate Order Denying Defendant's Motion for Summary Judgment (153 pages)

The document is so ridiculous that it has warranted attachment (without exhibits), and is included in these materials as Appendix B.

61. This error, if not remedied, will cause a monumental waste in time, energy, and resources of this Honorable Court, the parties, prospective jurors, appeals courts, etc., and will facilitate great harm and injustice to the Defendant and his wife.

Defendant ends his pleading with some pointless poetry.

Haiku

All know: talk is cheap;

Liars can claim anything;

No evidence?! Balk!

ECF 114 Defendant Shows Cause in Response to Order to Show Cause Why Sanctions Should Not Be Imposed Upon Defendant Peter Allan Wizenberg (6 pages)17

3. Defendant admits that at the time that defendant responded to plaintiff's Request for Production that defendant, in good faith, did not know that defendant was required to send plaintiff a privilege log.

6. Defendant responded that he was unaware that he was required to do so.

22. Defendant is innocent of plaintiff's malicious, meritless, false, and scurrilous charges. After further consideration, defendant, being innocent and having nothing to hide, decided to waive his attorney/client privilege and on August 19, 2018 sent links to copies of all of the emails listed in the privilege log to plaintiff. Hence, there are no more issues concerning the privilege log.

ECF 123 Defendant's Response in Opposition to Plaintiff's Supplement to Motion for the Imposition of Sanctions Against Defendant (96 pages)

13. However, below is a list of supporting evidence of Defendant's highly germane questions relevant to Plaintiff's false accusations and his long history of dishonesty and ill will, questions focused on:

j. Plaintiff's history of violence against Defendant, violence committed by Plaintiff against Defendant decades ago while Plaintiff was an adult, contrary to Plaintiff's attorney's utterly false and unsupported assertion that it was when the Plaintiff was a child;

k. Plaintiff's long history and propensity for false allegations, including utterly bogus and false allegations to the police of "domestic violence" against his frail, sickly mother (in 2005 when she was age 80!) and his ex-wife;

l. Plaintiff's history of dishonesty and theft by frequently criminally using his mother's credit card while she was unconscious and dying as evidenced by a MasterCard statement;

m. Plaintiff's extreme hostility towards Defendant evidence by Plaintiff's calling social services to investigate Defendant, falsely accusing Defendant of abusing his unconscious dying mother in the hospice;

n. Plaintiff's maniacal hatred of Defendant evidenced by his repeatedly screaming at the top of his lungs, "murderer" at Defendant, while hospice staff and Defendant's wife were present.

ECF 165 Supplement to Defendant's Response in Opposition to Plaintiff's Supplement to Motion for the Imposition of Sanctions Against Defendant (9 pages)

6. The Defendant himself erred in not immediately appealing the Court's clearly erroneous Order [ECF 84]. It is, however, relevant, that Defendant's Motion, under the law and the facts, should have been granted by the Court as the just granting of said motion would have precluded the Plaintiff's frivolous, malicious, greedy quest for sanctions.

28. Unfortunately, if the Court clearly errs yet again, and goes on to clearly erroneously and egregiously impose sanctions against Defendant for Defendant's good faith Motion to Dismiss for Lack of Subject Matter Jurisdiction [ECF 62] said motion being both amply grounded in both the law and in fact, Defendant will of course, timely appeal, and, unfortunately, many people will need to devote their time and energies over the appeal of a clearly erroneous Order.18

ECF 176 Defendant's Response in Opposition to Plaintiff's Motion for Two Day Extension to File Response to Defendant's Motion for Partial Summary Judgment (3 pages)19

2. Pursuant to the Scheduling Order, Plaintiff had until November 28, 2018 to file his response to the Motion.

3. On November 28, 2018 at approximately 7:29 pm, approximately 4.5 hours before the deadline, Plaintiff filed his Motion for Two-Day Extension to File Response to Defendant's Motion for Partial Summary Judgment [ECF 175].

4. Plaintiff had 21 calendar days, which is more than 500 hours for Plaintiff to prepare a response to Defendant's Motion for Partial Summary Judgment.

5. Plaintiff himself admits that his vacation was a "pre-planned vacation over the Thanksgiving holiday". The "Thanksgiving holiday" would, at most, be four calendar days, from Thursday through Sunday.

6. If Plaintiff had devoted a minuscule 1% of the more than 500 hours of time he had to respond, he would have had more than 5 hours to work on and file a response.

7. Plaintiff's utter failure to do his duty and his irresponsibility in planning when he had a completely planned and foreseeable vacation should not relieve him of his responsibility to obey deadlines.

8. Plaintiff's neglect is inexcusable.

9. Defendant does not believe for one moment that Plaintiff acts in good faith. On the contrary, there is ample evidence that Plaintiff's behavior has been in extremely bad faith, and his egregious and false and malicious behavior, including but not limited to outright lying to the court, shocks the conscience.

10. Defendant asserts that the granting of Plaintiff's motion would evince extreme prejudice against Defendant by the court, most especially compared to the way the court has treated the Defendant.

ECF 180 Defendant's Report to Plaintiff's Response to Defendant's Motion for Partial Summary Judgment for Count I Against Plaintiff (6 pages)

12. In addition to attempting to mislead the Court into clear error, by citing an inapt case, i.e., one that is off point, Plaintiff makes risible and demonstrably false claims in his Response. We will examine his ludicrously false claims in order of their occurrence. Parenthetically, Defendant cannot emphasize enough, that despite Plaintiff having a completely meritless and frivolous suit, a pure totally evidence-free complaint — one totally devoid of even a scintilla of evidence implicating Defendant — Plaintiff's claims are also substantively malicious, utterly false in substance — hence wicked — and his entire complaint is based upon nothing but his own numerous conclusory false allegations with absolutely ZERO corroborating evidence. It is Defendant's view that it would be breathtakingly astonishing — especially to appeals courts — if such a meritless, flagrantly evidence-free case was erroneously won by Plaintiff.20

13. In paragraph 5 of Plaintiff's Response, Plaintiff writes: "In fact, the following testimony of Plaintiff cited by Defendant in the motion demonstrates that Defendant stole some of Plaintiff's own personal items ..." Plaintiff's feeble and failed attempt at reasoning is, to pull no punches, quite sad. Plaintiff's own uncorroborated false assertions at what he claims existed, and when he claims it existed, and where he claims it existed, and what he claims was his, and what he claims was not his, does not and indeed cannot "demonstrate" that Defendant "stole" anything. 14. In paragraph 6 of Plaintiff's Response, Plaintiff falsely writes "where he [Defendant] admits that there are also items at issue that belonged to Plaintiff." This is not only flat out false, it is an outright lie, apparently in an attempt to deceive the Court. Defendant admitted no such thing. Plaintiff's numerous claims are riddled with lies. Plaintiff lies about what existed, when it existed, where it existed, and that Defendant "stole" the allegedly existing items. Plaintiff cannot cite and is unable to point to any record evidence where Defendant "admits that there are items at issue that belonged to Plaintiff[.]" Defendant admitted nothing to Plaintiff's lies.

ECF 190 Defendants Opening Statement (326 pages)

"You shall not judge unfairly" — Deuteronomy 16:19

12. Plaintiff must prove by a preponderance of evidence that each and every item was located in a place that was not accessible to any other human beings on planet Earth other than the defendant!

13. Plaintiff must prove by a preponderance of evidence that each and every item was not taken by other people, e.g., burglars, Howard Wizenberg, his sons, the people in Sara Howeller's law office in Seminole County where Sara Howeller swore under penalty of perjury [ECF 188] that she kept a key to the home, Pantanassa Wizenberg, etc.

23. Plaintiff failed to even bother to allege in his false complaint [ECF 8] that he had title to the items listed in Exhibit C of his false complaint! This is easily proven by reading his false complaint and noting his abject failure to even allege title — Oy!

35. Defendant knows, extremely well, that plaintiff has a very, VERY long history of extreme lying, and is an ardent practitioner of the "big lie" technique. Plaintiff understands perfectly well that one who lies as much and as HUGELY as he does is an outlier in the normal human population, and most people have no such experience with the vastness and depth of such pathological lying. So, they naively and credulously, when confronted with plaintiff's HUGE false accusations, that so much stuff was stolen — a long laundry list — these credulous people figure to themselves — because they're used to dealing with normal human behavior — `well, at least some of what he claims is likely true'. This is precisely how plaintiff gets away with and is rewarded for his telling big lies. The "big lie" strategy is to throw enough "stuff" against the wall and hope that some credulous people will believe some of it, so some of it "sticks."

36. Plaintiff is so shameless and brazen with his false accusations, one small example will suffice: On September 6, 2005 he accused to the police his 80-year-old mother, Anna Wizenberg, who plaintiff testified on p. 63 of the transcript of his August 7, 2018 deposition, was sick and elderly and who had trouble walking, he accused her of domestic violence! Howard Wizenberg actually filed a petition against his own octogenarian mother for domestic violence! I leave Howard Wizenberg's veracity for any and all readers of this to judge. A copy of the docket evidencing his not credible accusation against his mother is attached hereto as Exhibit F.

37. Defendant takes solace in the hope that court decisions in the United States are supposed to be based solely on admissible evidence and nothing but admissible evidence, and that there are higher courts which exist to correct the clear errors of the lower courts. In this case, plaintiff has no evidence, absolutely ZERO evidence for each of the elements of his false accusations, and it is absolutely impossible for a reasonable and unbiased factfinder to find in plaintiff's favor. This is defendant's ace in the hole — especially if appeals will happen.21

66. This, finally, concludes defendant's Opening Statement.

ECF 255 Defendant's Response in Opposition to Plaintiff's Renewed and Supplement Motion for Attorney's Fees (5 pages)

2. Plaintiff's [ECF 215] falsely imputes — with absolutely zero evidence — bad faith conduct on the part of Defendant, but does not discuss, of course, Plaintiff's own provable bad faith conduct, frivolous and vexatious actions, in his purposefully malicious, bad faith scheme of seeking to "railroad" the Defendant with respect to Plaintiff's bad faith transgressions regarding the privilege log. The issues specifically concerning Plaintiff's bad faith scheme regarding the privilege log and Defendant's good faith innocent conduct, is now outside of this Bankruptcy Court's hands and is currently the subject of an appeal in U.S. District Court, case number: 18-cv-62321-MGC and, of course, will likely ultimately be resolved there, or perhaps in the Eleventh Circuit Court of Appeals.22

APPENDIX B

Defendant's Motion for Reconsideration of Order And Motion to Vacate Order Denying Defendant's Motion for Summary Judgment

[ECF 68]

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

In re: Peter Allan Wizenberg, Debtor.

Howard Wizenberg, Plaintiff

v.

Peter Allan Wizenberg, Defendant.

Case No. 17-23522-JKO

Chapter 7

Adv. No. 18-01019-JKO

DEFENDANT'S MOTION FOR RECONSIDERATION OF ORDER AND MOTION TO VACATE ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

COMES NOW the Defendant, PETER WIZENBERG, "Defendant", and, in accordance with F. R. Civ. P. 60(b) made applicable through F. R. Bank. P. 9024 herein files this, his Motion for Reconsideration of the Order [ECF 50] and Motion to Vacate the Order [ECF 50] which Denied Defendant's Motion for Summary Judgment [ECF 36], and in support thereof states as follows:

Haiku

All know: talk is cheap; Liars can claim anything; No evidence?! Balk!

WHEREFORE, Defendant, Peter Wizenberg, respectfully requests that this Honorable Court GRANT this Motion to Reconsider the Order denying Defendant's Motion for Summary Judgment, and issue an Order Vacating its prior Order denying Defendant's Motion for Summary Judgment and, also issue an order GRANTING Defendant's Motion for Summary Judgment, or, in the alternative, schedule a hearing for oral arguments regarding this instant motion, (a hearing on Defendant's Motion to Dismiss Count II is already calendared for Tuesday, June 19, 2018 at 2:30 pm and a hearing on this motion can be scheduled that day), so that Defendant's Motion for Summary Judgment can be heard by this Honorable Court, and where Plaintiff will have his opportunity to finally present any evidence in support of his allegation that Defendant stole the items listed in his Count I, and attempt to defeat Defendant's Motion, and all other such relief that this Honorable Court deems to be just and proper.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this the 5th day of June, 2018, a true and correct copy of the foregoing was served by CM/ECF on all parties listed below.