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Shek v. Children Hospital Research Center In Oakland

United States District Court, Ninth Circuit

December 12, 2013

JOHN SHEK, Plaintiff,


WILLIAM ALSUP, District Judge.


In this wrongful-termination action, pro se plaintiff's complaint has been finally dismissed and defendant Children's Hospital and Research Center in Oakland now moves to declare plaintiff a vexatious litigant. To the extent stated below, the motion is GRANTED.


This action arises from the termination of plaintiff's employment. It is one of six actions all based on the same set of underlying facts. Pro se plaintiff John Shek was employed by defendant Children's as a radiologic technologist from March 2006 until January 2011. In April 2010, plaintiff's employment was terminated, but he was subsequently offered another position in May 2010, which he accepted. In October 2010, plaintiff filed a complaint against Children's and others including the California Nurses Association alleging retaliation and breach of the collective bargaining agreement under the LMRDA (Civ. No. 10-4684 DMR). In December 2010, plaintiff dismissed his own action.

In January 2011, plaintiff was again terminated from his position, this time permanently. Plaintiff then filed a complaint against Children's (Civ. No. 11-1968 PJH). This complaint alleged employment discrimination as well as violations of the ERISA, the ADA, and the ADEA. That action was before Judge Phyllis J. Hamilton. Plaintiff moved to have Judge Hamilton disqualified. The motion was denied. Plaintiff then moved to dismiss his own action in order to achieve "change of venue."

Also in January 2011, plaintiff sued the NLRB and the California Nurses Association (Civ. No. 11-212 WHA). That action alleged that the union "failed to process a grievance on [his behalf]" (Civ. No. 11-212 WHA, Dkt. No. 12-1 at 4). That action was also based on the same facts as plaintiff's previous and subsequent actions. It was dismissed for lack of subject-matter jurisdiction.

In August 2012, plaintiff brought another action alleging wrongful termination against Children's and others, this one being assigned to the undersigned judge (Civ. No. 12-4517 WHA). In that action, plaintiff was sanctioned for intentionally serving the wrong person and causing that person grief and trouble (Civ. No. 12-4517 WHA, Dkt. No. 66 at 4). Plaintiff's first amended complaint was dismissed and plaintiff's request for appointment of counsel was denied. Plaintiff then moved to disqualify the undersigned judge. That motion was denied by another judge. Plaintiff's motion for leave to file a second amended complaint was denied and judgment was entered. Plaintiff then appealed. The appeal remains pending. Along the way, plaintiff also filed two state actions based on the same underlying facts (Case No. RG12616848, Case No. RG12660358). Both were eventually dismissed by plaintiff.

One month after plaintiff's previous federal action (the one after Judge Hamilton) was closed and judgment entered against him, plaintiff filed the present action. In an apparent attempt to avoid returning to this Court, plaintiff filed this action in the Oakland division. Plaintiff once again sued his former employer, defendant Children's, asserting wrongful termination, breach of contract, and breach of fiduciary duty, as well as other defendants (including the same individual that plaintiff had been sanctioned for serving in the previous action). This action arises out of the same set of facts as his previous actions, namely the termination of his employment by Children's.

Defendant Children's moved to dismiss the complaint on June 20. The matter was deemed related to the 12-4517 action and reassigned to the undersigned judge on July 5 (Dkt. Nos. 20, 24). Although the prior briefing deadlines remained in place, plaintiff failed to file an opposition or a statement of non-opposition to the motion to dismiss. An order to show cause why the motion should not be granted issued on July 10. The deadline to respond was July 16 at noon. Instead of responding to the order to show cause, plaintiff filed a motion to disqualify the undersigned judge. On the July 16 deadline to respond to the motion to dismiss, plaintiff filed an "amended" motion to disqualify the undersigned judge. On July 25 (nine days after the deadline for the order to show cause), plaintiff filed an opposition to the motion to dismiss. On July 29, plaintiff filed an amended opposition to the motion containing an additional 50 pages of exhibits.

The motion to disqualify the undersigned judge was denied by Judge Edward Chen on August 5. Plaintiff filed a motion to "set aside" Judge Chen's ruling, which Judge Chen also denied. A subsequent order on August 14 by the undersigned put the motion to dismiss back on the calendar for a hearing. On August 16, plaintiff filed a "motion to dismiss" certain defendants, which was interpreted to be an opposition to Children's June 20 motion to dismiss. Plaintiff failed to appear at the August 22 hearing. Children's motion to dismiss was granted on August 26 and judgment was entered (Dkt. Nos. 90, 91).

After plaintiff unsuccessfully made several additional motions, Children's moved to declare plaintiff a vexation litigant (Dkt. No. 120). Plaintiff failed to file an opposition or statement of non-opposition by the deadline on November 21. Plaintiff was nonetheless given extra time. On December 4, an order to show cause was issued giving plaintiff until December 11 to file an opposition or statement of non-opposition. Plaintiff was also ordered to appear at the December 12 hearing. Plaintiff did neither. At the hearing, the Court waited one hour and fifteen minutes to call this action. Plaintiff was not present. In the December 4 order to show cause, plaintiff was warned that "failure to timely respond or appear may result in the motion to declare plaintiff a vexatious litigant being granted" (Dkt. No. 129).


Our court of appeals recognizes "the inherent power of federal courts to regulate the activities of abusive litigants by imposing carefully tailored restrictions under appropriate circumstances." De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) (quotation omitted). A request to declare a party a vexatious litigant entails consideration of four factors: (1) the party must have had adequate notice and a chance to be heard; (2) there must be an adequate record for review, including a list of all cases and motions that led the court to conclude that a vexatious litigant order was necessary; (3) the court must make a substantive finding as to the frivolous or harassing nature of the litigant's actions; and (4) the order must be narrowly tailored to fit the particular problem involved. Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007). "[P]re-filing orders are an extreme remedy that should rarely be used... because such sanctions can tread on a litigant's due process right of access to the courts." ...

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