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Anshu Pathak, An Individual v. Omaha Steaks International

March 28, 2011

ANSHU PATHAK, AN INDIVIDUAL, PLAINTIFF,
v.
OMAHA STEAKS INTERNATIONAL, INC., A NEBRASKA CORPORATION; AND DOES 1 THROUGH 10, DEFENDANTS.



The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge

ORDER Re: Defendant's Motion for Order for Security and Control [8]

Defendant Omaha Steaks International, Inc.'s Motion for Order for Security and Control was set for hearing on January 26, 2011 [8]. Having taken this matter under submission on January 21, 2011, and having reviewed all papers submitted pertaining to this Motion, the Court NOW FINDS AND RULES AS FOLLOWS:

A. Legal Standard

A district court has the authority under the All Writs Act, 28 U.S.C. § 1651(a), to enjoin litigants who abuse the judicial system. 28 U.S.C. § 1651(a). See De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) (recognizing that "there is strong precedent establishing the inherent power of federal courts to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances"). The Court therefore may enter orders "in order to control the conduct of a vexatious litigant." C.D. Local R. 83-8.2.

Specifically, the Court may enter an order requiring that the litigant obtain the approval of a judge before being allowed to file an action. See C.D. Local R. 83-8.2 (providing for such an order); Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) (recognizing that district courts have "inherent power to enter pre-filing orders against vexatious litigants"). However, the entry of such a pre-filing order must be preceded by (1) notice and opportunity to be heard before the Court enters the order; (2) the compilation of an adequate record for review, that is, a listing of the cases and/or abusive activities undertaken by the litigant; and (3) substantive findings concerning the frivolous and harassing nature of the plaintiff's litigation. See De Long, 912 F.2d at 1147-48. Moreover, the pre-filing order must be the narrowly tailored to deter the specific vice encountered. Id. /// /// ///

B. Analysis

Defendant Omaha Steaks International, Inc.'s Motion for Order for Security and Control is GRANTED IN PART AND DENIED IN PART.

As a preliminary matter, the Court GRANTS Defendant Omaha Steaks International, Inc.'s ("Defendant") Request for Judicial Notice pursuant to Federal Rule of Evidence 201. See Fed. R. Evid. 201. See also Phillips v. Bank of Am. Corp., 2011 WL 132861, at *3 (N.D. Cal. Jan. 14, 2011)(noting that the Court may take judicial notice of matters of public record, including prior federal and state court proceedings).

Defendant moves this Court to declare Plaintiff Anshu Pathak ("Plaintiff") a vexatious litigant, enter a pre-filing Order requiring Plaintiff to make an initial showing of likelihood of success on the merits before bringing any more actions in this District, Order that Plaintiff be required to post Security in the amount of $17,000.00 and Order that Plaintiff be required file a copy of this Order and a notice of his status as a vexatious litigant in the Central District prior to filing any actions in state or federal courts or agencies against Defendant.

In determining whether Plaintiff qualifies as a vexatious litigant, the Court may look to California's Vexatious Litigant Statute*fn1 for guidance. See C.D. Local R. 83-8.4 (providing that the Court, in its discretion, may look to California's Vexatious Litigants Statute for guidance in determining vexatious litigant status). The Court finds that Plaintiff meets three of the four definitions of a vexatious litigant that are set forth under this Statute. As such, given Plaintiff meets these statutory definitions, as well as the fact that Plaintiff has demonstrated an extensive history of litigation as discussed below, the Court finds Plaintiff to be a vexatious litigant.

(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing;

(2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined;

(3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay;

(4) 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 ...


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