BSI 254 Westfield, LLC et al v. Fiorillo

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
____________________________________
LOUIS DELPIDIO, as TRUSTEE OF THE 	:
LEWIS BAY BEACH HOUSE TRUST, THE 	:
116 BAXTER ROAD BEACH HOUSE TRUST, :
AND THE 63 TN BEACH HOUSE TRUST, 	:
Plaintiff, 	:
: 	C.A. No. 23-349WES
v. 	:
:
NICHOLAS FIORILLO, et al. 	:
Defendants. 	:
___________________________________:
BSI 254 WESTFIELD, LLC, et al., 	:
Plaintiffs, 	:
:
v. 	: 	C.A. No. 23-363WES
:
NICHOLAS FIORILLO, 	:
Defendant. 	:
___________________________________:
GF FUNDING SWANSEA, LLC, et al., 	:
Plaintiffs, 	:
:
v. 	: 	C.A. No. 23-364WES
:
OCEAN INVESTMENT HOLDINGS, 	:
LLC, et al., 	:
Defendants. 	:
___________________________________:
RAYMOND C. GREEN, INC., as 	:
TRUSTEE OF THE RAYMOND C. 	:
GREEN TRUST, 	:
Plaintiff, 	:
:
v. 	: 	C.A. No. 23-365WES
:
LOUIS DELPIDIO, et al., 	:
Defendants. 	:
___________________________________:
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SAMUEL B. SPITALNY, et al. 	:
Plaintiffs, 	:
:
v. 	: 	C.A. No. 23-366WES
:
NICHOLAS FIORILLO, et al., 	:
Defendants. 	:
___________________________________:
NORTHERN BANK & TRUST CO., 	:
Plaintiff, 	:
:
v. 	: 	C.A. No. 23-368WES
:
BRIAN D. SHEEHAN and 	:
NICHOLAS FIORILLO, 	:
Defendants. 	:
___________________________________:
TODD STAMOULIS, 	:
Plaintiff, 	:
:
v. 	: 	C.A. No. 23-419WES
:
OCEAN REALTY PARTNERS, LLC, et al.,:
Defendants. 	:
___________________________________:
GOTSPACE DEVELOPMENT LLC, 	:
Plaintiff, 	:
:
v. 	: 	C.A. No. 23-420WES
:
SFBC, LLC, et al., 	:
Defendants. 	:
___________________________________:
:
GOTSPACE SPRINGFIELD EQUITY 	:
FUND 1, LLC, 	:
Plaintiff, 	:
:
v. 	: 	C.A. No. 23-422WES
:
ROBERT KUSHNER, et al., 	:
Defendants. 	:
___________________________________:
ORDER
WILLIAM E. SMITH, District Judge.
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Before 	the 	Court 	is 	Magistrate 	Judge 	Sullivan’s 	“Report 	and
Recommendation that the Court Impose Prefiling Injunctions to Stop
Vexatious 	and 	Abusive 	Removals” 	(“R&R”), 	issued 	on 	December 	5,
2023, in the above-captioned cases either sua sponte or in response
to 	injunction 	requests 	filed 	in 	Northern 	Bank 	& 	Trust 	Co. 	v.
Fiorillo et al., No. 1:23-cv-00368-WES-PAS (ECF No. 10), Spitalny
et al. v. Fiorillo et al., No. 1:23-cv-00366-WES-PAS (ECF Nos. 7,
10), 	and 	Delpidio 	v. 	Fiorillo 	et 	al., 	No. 	1:23-cv-00349-WES-PAS
(ECF No. 5).
In 	Northern 	Bank 	& 	Trust 	Co., 	No. 	1:23-cv-00368-WES-PAS,
Nicholas Fiorillo filed “Omnibus Objections” (ECF No. 23) as well
as a Motion to Stay (ECF No. 25), in conjunction with a Notice of
Appeal (ECF No. 24). 	Despite Fiorillo’s appeal, the Court retains
jurisdiction to address the R&R because the R&R is not a judgment
or 	an 	action 	subject 	to 	interlocutory 	appeal. 	See 	Rivera-Torres
v. 	Ortiz 	Velez, 	341 	F.3d 	86, 	96 	(1st 	Cir. 	2003) 	(holding 	when 	a
notice 	of 	appeal 	is 	“patently 	meritless,” 	it 	“fail[s] 	to 	divest
the 	district 	court 	of 	jurisdiction”); 	Athens 	v. 	Primmer 	Piper
Eggleston 	& 	Cramer 	PC, 	No. 	21-CV-1025-SM, 	2021 	WL 	6113417, 	at 	*1
(D.N.H. 	Dec. 	27, 	2021), 	appeal 	dismissed, 	No. 	22-1030, 	2022 	WL
2398891 (1st Cir. Mar. 7, 2022).
The Court adopts in full Magistrate Judge Sullivan’s R&R over
Fiorillo’s objections. 	In the R&R, Judge Sullivan recommends the
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following injunction:
1. 	Nicholas 	Fiorillo 	is 	hereby 	enjoined 	from 	removing 	any
case to any federal district court in the First Circuit,
whether 	pro 	se 	or 	through 	counsel, 	that 	is 	now 	pending
or 	that 	was 	pending 	within 	the 	past 	five 	years 	in 	any
state 	court 	in 	Massachusetts 	in 	which 	is 	joined 	or
purported 	to 	be 	joined 	as 	a 	party 	at 	the 	time 	of 	the
purported removal any of the following:
Louis 	Delpidio, 	as 	Trustee 	of 	the 	Lewis 	Bay 	Beach
House 	Trust, 	the 	116 	Baxter 	Road 	Beach 	House 	Trust,
and the 63 TN Beach House Trust;
BSI 254 Westfield, LLC;
BSI 254 Westfield Member, LLC;
GF Funding Swansea, LLC;
Swansea Holdings, LLC;
SMI Holdings LLC;
Raymond C. Green, Inc., as Trustee of the Raymond C.
Green Trust;
Louis Delpidio;
One Seven One LLC;
Wonderland Properties, LLC;
Tremont Entertainment Enterprises, Inc.;
Samuel B. Spitalny;
Jacob L. Spitalny;
Stephen Quillinan;
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S&Q Data, LLC;
Northern Bank & Trust Company;
Brian D. Sheehan;
Todd Stamoulis;
SFBC, LLC;
Allen Rabinow;
Justin Gelinas;
Gelinas and Ward;
Robert Kushner;
U-Name-It Self Storage, LLC.
2. 	Notwithstanding 	this 	injunction, 	Mr. 	Fiorillo 	may 	seek
to 	remove 	any 	such 	action 	with 	leave 	of 	any 	judge 	of
this 	Court 	or 	of 	the 	District 	of 	Massachusetts. 	To
obtain 	leave, 	Mr. 	Fiorillo 	must 	file 	a 	written
application 	captioned 	“Application 	Pursuant 	to 	Court
Order 	Seeking 	Leave 	to 	Remove” 	and 	must 	either 	cite 	or
affix to such application (a) a copy of this Order; (b)
copies 	of 	any 	Orders 	issued 	by 	the 	District 	of 	Rhode
Island 	applicable 	to 	the 	case 	to 	be 	removed 	imposing 	§
1447(c) 	or 	sua 	sponte 	sanctions; 	and 	(c) 	copies 	of 	any
Orders 	issued 	by 	the 	District 	of 	Massachusetts
applicable to the case to be removed imposing a prefiling
injunction, § 1447(c) or sua sponte or other sanctions.
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The 	application 	must 	certify1 	that 	the 	basis 	and/or
validity for such removal has not already been addressed
by 	any 	federal 	court; 	that 	there 	is 	an 	objectively
reasonable 	basis 	for 	removal; 	that 	removal 	is
procedurally 	appropriate 	(it 	is 	timely, 	venue 	is
appropriate 	and 	the 	removal 	petition 	will 	be 	duly 	and
timely 	filed 	in 	the 	state 	court 	case 	affording 	timely
notice 	to 	the 	state 	court 	litigants); 	and 	that 	all
sanctions, 	fines, 	and 	§ 	1447(c) 	fees 	and 	costs 	imposed
by 	any 	federal 	court 	with 	respect 	to 	the 	case 	to 	be
removed have been paid in full.
3. 	Any 	removal 	attempt 	in 	breach 	of 	this 	Order 	that 	fails
to 	comply 	with 	the 	process 	for 	obtaining 	leave 	may 	be
rejected ab initio by the Clerk’s Office of the court in
which the removal attempt is made.
The Court has considered Fiorillo’s objections and finds that
none of them have merit. 	See generally Omnibus Objs., ECF No. 23.
Given 	Fiorillo’s 	abusive 	actions 	as 	thoroughly 	outlined 	in 	the
R&R, 	the 	Court 	finds 	the 	recommended 	injunction 	is 	appropriately
within 	its 	discretion 	and 	is 	“narrowly 	drawn 	to 	counter 	the
specific offending conduct.” 	Cok v. Fam Ct. of R.I., 985 F.2d 32,
1 To certify means to include a sworn affidavit under penalty of
perjury.
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36 (1st Cir. 1993) (per curiam).
Accordingly, 	the 	Court 	ADOPTS 	Judge 	Sullivan’s 	Report 	and
Recommendation 	and 	ORDERS 	the 	injunction 	as 	stated 	above 	shall
issue.
Additionally, the Court ORDERS as follows:
• 	In 	Northern 	Bank 	& 	Trust 	Co. 	v. 	Fiorillo 	et 	al., 	No.
1:23-cv-00368-WES-PAS, 	Plaintiff’s 	request 	for
injunction (ECF No. 10) is GRANTED IN PART to the extent
it 	comports 	with 	this 	Order 	and 	is 	otherwise 	DENIED.
With 	no 	further 	issues 	pending, 	Fiorillo’s 	Motion 	to
Stay (ECF No. 25) is DENIED as MOOT.
• 	In 	Spitalny 	et 	al. 	v. 	Fiorillo 	et 	al., 	No. 	1:23-cv-
00366-WES-PAS, Plaintiff Stephen Quillinan’s request for
injunction 	(ECF 	Nos. 	7, 	10) 	is 	GRANTED 	IN 	PART 	to 	the
extent 	it 	comports 	with 	this 	Order 	and 	is 	otherwise
DENIED.
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• 	In 	Delpidio 	v. 	Fiorillo 	et 	al., 	No. 	1:23-cv-00349-WES-
PAS, 	Plaintiff’s 	request 	for 	injunction 	(ECF 	No. 	5) 	is
GRANTED IN PART to the extent it comports with this Order
and is otherwise DENIED.
IT IS SO ORDERED.
William E. Smith
District Judge
Date: December 27, 2023
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