United States District Court, N.D. California
ORDER DISMISSING CASE WITH PREJUDICE; DECLARING
PLAINTIFF A VEXATIOUS LITIGANT RE: DKT. NO. 9
A. WESTMORE United States Magistrate Judge.
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.
Dismissal Without Prejudice
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).
instant case, Plaintiff was ordered to submit an amended
complaint within 30 days of the March 2, 2017 order, or April
3, 2017. 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.
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).
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.
Notice and Opportunity to be Heard
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).
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).