The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge
On July 21, 2011, the Court issued an Order to Show Cause to Plaintiff Anshu Pathak ("Plaintiff") as to why the Court should not enter the March 28, 2011 Pre-Filing Order in this Present Action and require Plaintiff to make an initial showing of likelihood of success on the merits in order for this Action to move forward .
The Court finds that Plaintiff has failed to show good cause as to why this Pre-Filing Order should not be entered in this Present Action. As such, for the reasons previously stated by the Court in its March 28, 2011 and July 21, 2011 Orders, the Court finds that the entry of the March 28, 2011 Pre-Filing Order in this current Action is warranted here in order to control Plaintiff's vexatious conduct. C.D. Local R. 83-8.2.
Therefore, the Court hereby enters the March 28, 2011 Pre-Filing Order in this current Action. As such, Plaintiff is required to make an initial showing of likelihood of success on the merits in this present Action in order for this Case to move forward.
Here, the Court finds that Plaintiff has not met his burden to establish a likelihood of success on the merits here. In this Current Action, Plaintiff brings a cause of action pursuant to Federal Rules of Civil Procedure 60(d)(1) and 60(d)(3) for relief from the judgment issued against Plaintiff by this Court in Omaha Steaks International, Inc., v. Pathak, Case No. 03-cv-1401 ("the Omaha Proceeding"), on the basis that Defendant Omaha Steaks International, Inc. ("Defendant"), the Plaintiff in the Omaha Proceeding, obtained that judgment by committing "Fraud on the Court." Specifically, Plaintiff claims that Defendant and its attorneys "made an unconscionable scheme to file 'False Evidence' with the District court which was designed to improperly influence the court in its decision at every step of the legal process to proceed with the Trademark Infringement lawsuit against Plaintiff in 2003." [Compl. ¶ 2.]
Federal Rule of Civil Procedure 60(d) sets forth that the Court has the power to entertain an independent Action to relieve a party from a judgment or set aside a judgment for fraud on the Court. Fed. R. Civ. P. 60(d)(1), (3).
The Ninth Circuit has held that fraud on the court embraces "only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." In re Intermagnetics Am., Inc., 926 F.2d 912, 916-17 (9th Cir. 1991). "Fraud on the court should be read narrowly, in the interest of preserving the finality of judgments." Id. (quotation omitted). As such, the Ninth Circuit places a "high burden on a plaintiff seeking relief from a judgment based on fraud on the court." Id. Courts have noted that the fraud must involve egregious conduct that attacks the judicial machinery itself, such as bribing a judge, the existence of an "unconscionable plan or scheme ... designed to improperly influence the court in its decision" or conduct by an adverse party that effectively prevented the losing party from fully and fairly presenting his case or defense. Id. See Keys v. Dunbar, 405 F.2d 955, 957-58 (9th Cir. 1969).
Here, Plaintiff attempts to show likelihood of success on the merits in this Action by arguing, in part,*fn1 that: Defendant did not have a valid trademark in the word "Omaha Steaks" for on-line retail store services featuring food and food related items in International Class 035 in "standard characters" in order to file the trademark infringement action against Plaintiff in the Omaha Proceeding; that Defendant illegally transferred Plaintiff's domain name, "www.omahabeef.com" without a Court Order; that Defendant's counsel conspired to steal Plaintiff's domain names; that the United States Patent and Trademark Office would not have issued a trademark to Defendant for the word "Omaha Steaks" if they would have observed similarities in Plaintiff's on-line retail store, doing business as "Omaha Beef;" Defendant's counsel filed false evidence with the Court and made false misrepresentations to the Court regarding the alleged trademarks owned by Defendant in order to influence the Court in the Omaha Proceeding and therefore made a scheme to defraud the Court; Defendant's counsel failed to serve Plaintiff with a Summons, Complaint, and Notice of Motion for Preliminary Injunction before the June 9, 2003 hearing in the Omaha Proceeding and obtained this preliminary injunction by filing false evidence with this Court; and that Defendant has closed down Plaintiff's on-line retail stores. [Pl.'s Initial Likelihood of Success on the Merits.]
The Court finds that Plaintiff has failed to establish an initial likelihood of success on the merits here. Specifically, the Court finds no reasonably probability that Plaintiff will prevail on the claim presented herein. Plaintiff fails to put forth sufficient evidence here to establish that Defendant and its counsel engaged in the allegedly egregious conduct that Plaintiff asserts constitutes fraud on the Court and requires the Court to relieve him of the judgment in the Omaha Proceeding. Instead, Plaintiff makes merely conclusory statements here regarding the alleged scheme on part of Defendants and its counsel to file false evidence with the Court and commit this alleged fraud on the Court, failing to put forth evidence to substantiate these claims. Therefore, the Court finds that Plaintiff has failed to establish that he has an initial likelihood of success on the merits, as required by the pre-filing Order in this Action.
For the reasons stated above, the Court hereby enters the March 28, 2011 Pre-Filing Order in this Action. Furthermore, the Court finds that Plaintiff has failed to make a required showing under this Pre-Filing Order of an initial likelihood of success on the merits in order for this Case to move forward. As such, this Action is hereby DISMISSED WITHOUT PREJUDICE.