United States District Court, E.D. California
F. BRENNAN UNITED STATES MAGISTRATE JUDGE.
matter is before the court on plaintiff Entrepreneur Media,
Inc.'s (“EMI”) ex parte application
for issuance of an order to show cause why sanctions should
not be imposed against defendant Scott Smith (ECF No. 186);
EMI's motion for reconsideration of the court's order
denying its motion to compel the production of Smith's
tax returns (ECF No. 189), and Smith's motion to quash a
subpoena plaintiff served on non-party GoDaddy.com (ECF No.
237). For the reasons stated below, the motions
Application for an Order to Show Cause
filed an ex parte application for an order directing
Smith to show cause why he should not be subject to sanctions
for engaging in conduct intended to harass EMI and its
counsel, Davis Cook. ECF No. 186. EMI claims that Smith has
submitted a series of filings with the Trademark Trial and
Appeal Board (“TTAB”) and made personal attacks
on Mr. Cook for the sole purpose of harassing EMI and Mr.
Cook. ECF No. 186-1 at 5-12. EMI contends that “[n]o
lesser sanction than a pre-filing order, judgment of contempt
(including 10 days of imprisonment), and a holding that Smith
is a vexatious litigant” will provide adequate
protection to EMI and its counsel. Id. at 13. As
discussed below, EMI has failed to demonstrate that the
relief sought is appropriate under the circumstances of this
Sanctions Under the Court's Inherent Power
Supreme Court has “recognized the well-acknowledged
inherent power of a court to levy sanctions in response to
abusive litigation practices.” Roadway Exp. Inc. v.
Piper, 447 U.S. 752, 765 (1980). “Through this
power, courts have the ability to punish conduct both within
their confines and beyond, regardless of whether that conduct
interfered with trial.” F.J. Hanshaw Enterprises,
Inc. v. Emerald River Development, Inc., 244 F.3d 1128,
1136 (9th Cir. 2001). Thus, “[a] court has the inherent
power to sanction a party or its lawyers if it acts in
‘willful disobedience of a court order . . . or when
the losing party has acted in bad faith, vexatiously,
wantonly, or for oppressive reasons, ' as well as for
‘willful[ ] abuse [of the] judicial
processes.'” Gomez v. Vernon, 255 F.3d
1118, 1133-34 (9th Cir. 2001) (modifications in original)
(citing Roadway Express, Inc. v. Piper, 447 U.S.
752, 766 (1980)).
courts must exercise their inherent powers “with
restraint and discretion, ” and may not invoke them
absent “a ‘specific finding of bad
faith.'” Yagman v. Republic Ins., 987 F.2d
622, 628 (9th Cir. 1993). “For purposes of imposing
sanctions under the inherent power of the court, a finding of
bad faith does not require that the legal and factual basis
for the action prove totally frivolous; where a litigant is
substantially motivated by vindictiveness, obduracy, or mala
fides, the assertion of a colorable claim will not bar the
assessment of attorney's fees.” Fink v.
Gomez, 239 F.3d 989, 992 (9th Cir. 2001). Nonetheless,
“the bad faith requirement sets a high
threshold.” Mendez v. County of San
Bernardino, 540 F.3d 1109, 1132 (9th Cir. 2008).
“Even in a case where the district court describes a
litigant's arguments as ‘totally frivolous, '
‘outrageous' and inexcusable' and called his
behavior ‘appalling, ' [the Ninth Circuit]
nonetheless refused to equate this characterization of
conduct as synonymous with a finding of bad faith.”
shield against potential abuse, “individuals subject to
sanction are afforded procedural protections, the nature of
which varies depending upon the violation, and the type and
magnitude of the sanctions.” F.J. Hanshaw
Enterprises Inc., 244 F.3d at 1137. A party facing
sanctions pursuant to a court's inherent power that are
criminal in nature is entitled to the same due process
protections available in criminal contempt proceedings.
Id. at 1139 (citations omitted). This includes the
right to be advised of the charges, the right to a
disinterested prosecutor, the right to assistance of counsel,
a presumption of innocence, proof beyond a reasonable doubt,
the privilege against self-incrimination, the right to
cross-examine witnesses, the opportunity to present a defense
and call witnesses, and the right to a jury trial if the fine
or sentence imposed with be serious.” Id.
Issuance of a Pre-Filing Order
courts have the inherent power under the All Writs Act, 28
U.S.C. § 1651(a), to declare a party a vexatious
litigant and impose appropriate pre-filing restrictions.
Ringgold-Lockhart v. Cnty. of L.A., 761 F.3d 1057,
1061 (9th Cir. 2014). However, such orders are an extreme
remedy and should rarely issue. Molski v. Evergreen
Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007).
“When district courts seek to impose pre-filing
restrictions, they must: (1) give litigants notice and an
opportunity to oppose the order before it is entered; (2)
compile an adequate record for appellate review, including a
listing of all the cases and motions that led the district
court to conclude that a vexatious litigant order was needed;
(3) make substantive findings of frivolousness or harassment;
and (4) tailor the order narrowly so as to closely fit the
specific vice encountered.” Ringgold-Lockhart,
761 F.3d at 1062 (brackets and internal quotation marks
threshold matter, EMI's motion for an order to show cause
was filed as an improper ex parte motion. An ex
parte application is “a request a party makes to
the court without any notice to the other side.”
Mission Power Engineering Co. v. Continental Cas.
Co., 883 F.Supp. 488, 490 (C.D. Cal. 1995). These
“applications are a form of emergency relief that will
only be granted upon an adequate showing of good cause or
irreparable injury to the party seeking relief.”
Moore v. Chase, Inc., 2015 WL 4393031, at 4 (E.D.
Cal. July 17, 2015) (quoting Clark v. Time Warner
Cable, 2007 WL 1334965, at *1 (C.D. Cal. May 3, 2007)).
EMI's motion provides no explanation for why it should be
heard ex parte. Accordingly, EMI should have served
and noticed the motion for hearing in compliance with the
court's local rules. E.D. Cal. L.R. 135.
from its procedural deficiency, EMI's motion fails to
demonstrate that the sanctions sought are appropriate here.
EMI's request seeks the incarceration of Smith for 10
days and an order declaring him a vexatious litigant and
imposing to a pre-filing order. EMI bases this request on
Smith having initiating trademark cancelation actions before
the Trademark Trial and Appeal Board (“TTAB”) and
sending EMI's counsel, Mr. Cook, harassing emails in