May 9, 2013
SOLADIGM, INC., Plaintiff(s),
MIN MING TARNG, Defendant(s)
ORDER DENYING PLAINTIFF'S MOTION TO DECLARE DEFENDANT A VEXATIOUS LITIGANT [Docket Item No(s). 204]
EDWARD J. DAVILA, District Judge.
This action for declaratory judgment, breach of contract, breach of confidential relationship and unfair competition was commenced by Plaintiff Soladigm, Inc. ("Plaintiff") on November 8, 2011. See Docket Item No. 1. A year later, Plaintiff and Defendant Min Ming Tarng ("Defendant") reached a written resolution of all claims at a settlement conference supervised by a magistrate judge. See Docket Item No. 147. But in the end, the parties could not agree to a stipulated dismissal and appeared before this court in order to address that issue. See Docket Item No. 174. After considering the arguments for and against enforcement of the settlement agreement, the court found that it constituted a complete document to which all parties had agreed and, as contemplated in the agreement, dismissed this action with prejudice on December 17, 2012. See Docket Item No. 179.
Unfortunately, the case lives on despite the settlement and dismissal. Indeed, the court has issued five orders in response to eight motions - all filed by Defendant - since January, 2013. See Docket Item Nos. 186, 203, 224, 228, 231. One of those orders warned Defendant that his conduct could result in the imposition of sanctions or his designation as a vexatious litigant. See Docket Item No. 186.
Presently before the court is Plaintiff's motion requesting just that - an order declaring Defendant a vexatious litigant. See Docket Item No. 204. Plaintiff also requests a pre-filing order requiring Defendant to obtain leave of court before filing anything related to this case. Defendant, as would be expected, disagrees with Plaintiff's request in written opposition. See Docket Item No. 209.
Whether Defendant's conduct to this point supports a vexatious declaration is a close question. After careful review, however, the court will find that Defendant's actions have not become vexatious - yet. Accordingly, Plaintiff's motion will be denied for the reasons explained below.
II. LEGAL STANDARD
Federal courts may subject vexatious litigants to pre-filing orders pursuant to the All Writs Act. See 28 U.S.C. § 1651(a) ("The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."); see also Moy v. United States , 906 F.2d 467, 469 (9th Cir. 1990) ("[I]t is clear that the district court has authority to issue pre-filing injunctions pursuant to 28 U.S.C. § 1651."). Such orders should not be issued lightly; they are "an extreme remedy that should rarely be used." Molski v. Evergreen Dynasty Corp. , 500 F.3d 1047, 1057 (9th Cir. 2007). "Courts should not enter pre-filing orders with undue haste because such sanctions can tread on a litigant's due process right of access to the courts." Id.
There can come a time, though, when an abusive litigant's right of access must be curtailed by court order so as to control the type of "[f]lagrant abuse of the judicial process" that "enables one person to preempt the use of judicial time that properly could be used to consider the meritorious claims of other litigants." De Long v. Hennessey , 912 F.2d 1144, 1148 (9th Cir. 1990). This can be especially pertinent to individuals proceeding without counsel because "fewer sanctions are available against a pro per litigant." Doran v. Vicorp Rests., Inc. , 407 F.Supp.2d 1115, 1118 (C.D. Cal. 2005). Absent an available means of restraint, such as an order requiring a litigant to obtain leave of court prior to filing documents, some cases may never come to an end.
The Ninth Circuit has articulated factors for the district courts to examine before issuing a pre-filing order:
First, the litigant must be given notice and a chance to be heard before the order is entered. Second, the district court must compile an adequate record for review.' Third, the district court must make substantive findings about the frivolous or harassing nature of the plaintiff's litigation. Finally, the vexatious litigant order must be narrowly tailored to closely fit the specific vice encountered.'
Molski , 500 F.3d at 1057 (quoting De Long , 912 F.2d at 1147-48) (internal citations omitted).
Of the four factors relevant to the issuance of a pre-filing order, it is the third factor requiring substantive findings that is the most important to this analysis. The court proceeds to it directly because it is dispositive.
Whether Defendant's litigation activity can be determined "frivolous or harassing" depends on "both the number and content of the filings as indicia' of the frivolousness." De Long , 912 F.2d at 1148 (quoting In re Powell , 851 F.2d 427, 431 (D.C. Cir. 1988). "An injunction cannot issue merely upon a showing of litigiousness." Moy, 906 F.2d at 460. Defendant's "claims must not only be numerous, but also be patently without merit." Id.
Here, Defendant's filings can be described in various ways using various adjectives. Many are in excess of the page limitations imposed by the Civil Local Rules, some to a great extent. Others contain page after page of pictures, Chinese characters, or self-made charts, the relevance of which is not always clear. Still others contain various parts of pleadings previously filed or are simply the re-filing of motions previously denied. A couple of Defendant's filings appear to include altered copies of e-mails or manufactured evidence. Furthermore, Defendant has filed a series of pleadings which attempt to raise claims against Plaintiff and other parties even though this case has been dismissed. These filings could be found frivolous or harassing.
But other filings were not entirely improper. For example, Defendant's motion for new trial, although unsuccessful, was nonetheless presented with some arguable basis in law and required analysis by the court in the ensuing order. And the recently-filed motion to disqualify the court, while perhaps misguided, could also be characterized as non-frivolous under a liberal construction of the pleading. This motion was still pending at the time Defendant filed the disqualification motion, after all.
Defendant walks both sides of the fence, into and out of frivolity. Without doubt, he has been a litigious individual. Litigiousness alone, however, is not enough to justify a pre-filing order. Moreover, the number and content of Defendant's filings to date show that Defendant has not yet stepped so far into the realm of frivolity such that he has moved from being just litigious to being impermissibly vexatious. On these grounds, Plaintiff's motion will be denied.
That said, Defendant should not take comfort in this result. If Defendant continues to engage in frivolous behavior, the court will issue its own Order to Show Cause why he should not be subjected to a pre-filing order, and will reconsider the conduct described in this Order when making that determination. Before filing anything further, Defendant should keep in mind that this case has been dismissed and is closed. It is only under a very limited set of circumstances that motions or additional documents should be filed in a dismissed, closed case. Absent those limited circumstances, any further attempts by Defendant to unjustifiedly maintain this litigation will be met with orders summarily terminating or striking the motion, request or improper pleading.
Plaintiff's Motion to Declare Defendant a Vexatious Litigant (Docket Item No. 204) is DENIED. The hearing scheduled for May 17, 2013, is VACATED.
IT IS SO ORDERED.