UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 7, 2011
SUE ELLEN HOLMSTRAND,
DIXON HOUSING INVESTORS, LP; MCA HOUSING PARTNERS, LLC; FOUNDATION FOR AFFORDABLE HOUSING, INC., FPI MANAGEMENT, INC., DOES ONE THROUGH TWENTY, DEFENDANTS.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
MEMORANDUM AND ORDER
This action arises from the previous tenancy of Plaintiff Sue Ellen Holmstrand ("Plaintiff") at an apartment complex allegedly owned and operated by Dixon Housing, LP ("Dixon"), MCA Housing Partners, LLC ("MCA"), the Foundation for Affordable Housing, Inc. ("FAH"), and FPI Management, Inc. ("FPI", collectively "Defendants"). Plaintiff seeks redress for Defendants' alleged refusal to allow her to form a tenant's association, and for the alleged unauthorized entry into her apartment and destruction of her personal property.
There are two issues presently before the Court. First, Defendants have moved for an order requiring Plaintiff to post security pursuant to Local Rule 151(b), alleging that Plaintiff is a vexatious litigant. (ECF No. 13.) Second, Defendants have filed separate motions to dismiss Plaintiff's First Amended Complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1
(ECF Nos. 18 and 24.) For the reasons set below, the Motion to Require Security is denied, and the Motions to Dismiss are granted.
A. Motion to Require Security
Pursuant to Rule 151(b) of the Local Rules of Practice for the United
States District Court, Eastern District of California,*fn2
the Court may require a plaintiff to post security pursuant
to Title 3A part 2 of the California Code of Civil Procedure.
Accordingly, an order to post security is proper upon a showing that
the plaintiff is a vexatious litigant and there is no probability that
the plaintiff will prevail against the moving defendant. Cal. Civ.
Proc. § 391.1.
A 'vexatious litigant' is defined by statute, which includes a plaintiff who "has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence." Cal. Civ. Proc. § 391(b)(4).*fn3
Defendants have offered evidence that the Trinity County Superior Court declared Plaintiff a vexatious litigant in 2002, and that Plaintiff is included on the list of vexatious litigants maintained by the Administrative Office of the Courts ("AOC"). (Mem. P. & A. in Supp. of Def.'s Mot. 3, ECF 14.) However, there is no evidence that Plaintiff was declared a vexatious litigant in a case involving the same or substantially similar facts, transaction, or occurrence as the instant litigation. As a result, Defendants have not met their burden to show that Plaintiff is a vexatious litigant pursuant to the statutory definition.*fn4
Accordingly, the Court declines to require Plaintiff to post security.*fn5
B. Motions to Dismiss
Local Rule 230(c) requires that opposition to a motion must be filed not less than fourteen (14) days prior to the date of the hearing. Pursuant to Local Rule 183(a), a pro se litigant's failure to comply with the Local Rules may be grounds for dismissal. The hearing on the instant Motions to Dismiss is set for March 10, 2010. Fourteen days prior was February 24, 2011. Plaintiff has not filed an opposition as required. In light of the fact that no opposition has been filed by Plaintiff, dismissal is appropriate. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).
Based on the foregoing, the Motion to Require Security (ECF No. 13) is hereby DENIED, and Defendants' Motions to Dismiss (ECF Nos. 18 and 24) are GRANTED. Plaintiff may file an amended complaint not later than twenty (20) days after the date this Memorandum and Order is filed electronically.*fn6
If no amended complaint is filed within said twenty (20) day period, without further notice, Plaintiff's claims will be dismissed without leave to amend.
IT IS SO ORDERED.