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Levy v. First Group/Greyhound

United States District Court, N.D. California

June 28, 2017

MARC OLIN LEVY, Plaintiff,
v.
FIRST GROUP/GREYHOUND, Defendant.

          ORDER DISMISSING CASE WITH PREJUDICE; DECLARING PLAINTIFF A VEXATIOUS LITIGANT RE: DKT. NO. 9

          KANDIS A. WESTMORE United States Magistrate Judge.

         I. INTRODUCTION

         On January 26, 2017, Plaintiff filed the instant suit against Defendant First Group/Greyhound, alleging breach of contract and negligence. (Compl., Docket No. 1.) Plaintiff also filed an application to proceed in forma pauperis, which the Court granted on February 8, 2017. (Dkt. Nos. 2, 8.) On March 2, 2017, the Court dismissed Plaintiff's complaint with leave to amend, finding that Plaintiff had not alleged adequate facts to support his claims. (Ord. at 3-4, Dkt. No. 9.) In that order, the Court also required Plaintiff to show cause why he should not be declared a vexatious litigant and have a pre-filing order entered against him, based on the 21 lawsuits he had filed in this district, "nearly all of which were dismissed at an early stage for having no merit." (Id. at 6.) The Court gave Plaintiff thirty days to file an amended complaint that corrected the deficiencies identified in the order, and to respond to the order to show cause. (Id. at 7.) As of the date of this order Plaintiff has not filed an amended complaint or responded to the order to show cause.

         II. DISCUSSION

         A. Dismissal Without Prejudice

         Federal Rule of Civil Procedure 41(b) permits the involuntary dismissal of an action or claim for a plaintiff's failure to prosecute. See Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962) ("authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an 'inherent power'"). Unless otherwise stated, a dismissal under Rule 41(b) "operates as an adjudication on the merits." Fed.R.Civ.P. 41(b).

         In the instant case, Plaintiff was ordered to submit an amended complaint within 30 days of the March 2, 2017 order, or April 3, 2017.[1] The Court warned that "[f]ailure to file a first amended complaint within 30 days of this order may result in dismissal of this action for failure to prosecute." Plaintiff did not file an amended complaint. Because Plaintiff has failed to comply with the Court's order, the Court DISMISSES Plaintiff's case with prejudice, for failure to prosecute.[2]

         B. Vexatious Litigant

         When a litigant has filed numerous harassing or frivolous lawsuits, the Court has the power to declare him a vexatious litigant and enter an order requiring that any future complaints be subject to an initial review before they are filed. District courts have the power to enter pre-trial filing orders against a vexatious litigant under the All Writs Act. 28 U.S.C. § 1651(a); Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir 2007). The Ninth Circuit has cautioned that "such pre-filing orders are an extreme remedy that should rarely be used" because of the danger of "tread[ing] on a litigant's due process right of access to the courts." Molski, 500 F.3d at 1057. Nevertheless, such pre-filing orders may be appropriate because "[f]lagrant abuse of the judicial process . . . 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).

         The Ninth Circuit lists the following requirements for entering pre-filing orders against vexatious litigants. First, the Court must give the litigant notice and an opportunity to be heard before the order is entered. Second, the Court must compile an adequate record for review, including a list of all filings leading to the conclusion that the individual is a vexatious litigant. Third, the Court must make a substantive finding that the litigant's filings are frivolous or harassing. Finally, the pre-filing order cannot be overly broad, but must be "narrowly tailored to closely fit the specific vice encountered." De Long, 912 F.2d at 1147-48.

         i. Notice and Opportunity to be Heard

         The first factor requires that the litigant be given an opportunity to oppose the order before it is entered. De Long, 912 F.2d at 1147. "Courts in this circuit have held that a motion to declare a litigant vexatious does not require oral argument." Gavin v. City & Cty. of SF, Case No. 15-cv-5202-EMC, 2016 WL 126937, at *2 (N.D. Cal. Jan. 12, 2016); see also Reddy v. MedQuist, Inc., No. 12-cv-1324-PSG, 2012 WL 6020010, at *3 (N.D. Cal. Dec. 3, 2012) ("The requirement that the plaintiff receive an opportunity to be heard does not require an oral hearing; the opportunity to brief the issue fully satisfies due process requirements") (internal quotation omitted).

         The Court finds that the first De Long factor is satisfied because the Court issued an order to show cause, and Plaintiff had the opportunity to file a written opposition. (Ord. at 5-7.) Courts in this district have found the first De Long factor to be satisfied under similar circumstances. See Gavin, 2016 WL 126937, at *2 (finding that the first De Long factor was met because the district court issued an order to show cause and gave the plaintiff an opportunity to file a written opposition, even though no opposition was filed).

         ii. Adequate ...


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