Anshu Pathak v. Omaha Steaks International Inc et al

Filing 25

ORDER by Judge Ronald S.W. Lew: granting in part and denying in part 8 Defendant Omaha Steaks International, Inc.'s Motion for Order for Security and Control. The Court finds that Plaintiff's vexatious and harassing litigation requires t he entry of a prefiling order against Plaintiff, and therefore GRANTS Defendant's request here for the entry of a pre-filing Order. However, the Court DENIES Defendant's request that this Court order Plaintiff to post Security here in the amount of $17,000.00. Finally, the Court DENIES Defendant's request for an Order that Plaintiff be required to file a copy of this Order and notice of his status as a vexatious litigant in the Central District prior to filing any actions in state or federal courts or agencies against Defendant, as the Court finds that Defendant has not sufficiently shown that this type of Order is necessary. (See Order for details.) (lom)

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Anshu Pathak v. Omaha Steaks International Inc et al Doc. 25 1 2 3 4 5 6 7 8 9 10 11 Anshu Pathak, an individual, 12 Plaintiff, ) ) ) ) 13 v. ) ) 14 ) Omaha Steaks International, ) 15 Inc., a Nebraska ) corporation; and Does 1 ) 16 through 10, ) Defendants. ) 17 ) ) 18 ) 19 CV 10-7054 RSWL (RZx) ORDER Re: Defendant's Motion for Order for Security and Control [8] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Defendant Omaha Steaks International, Inc.'s Motion 20 for Order for Security and Control was set for hearing 21 on January 26, 2011 [8]. Having taken this matter under 22 submission on January 21, 2011, and having reviewed all 23 papers submitted pertaining to this Motion, the Court 24 NOW FINDS AND RULES AS FOLLOWS: 25 A. 26 Legal Standard A district court has the authority under the All 27 Writs Act, 28 U.S.C. 1651(a), to enjoin litigants who 28 abuse the judicial system. 28 U.S.C. 1651(a). See De 1 Dockets.Justia.com 1 Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) 2 (recognizing that "there is strong precedent 3 establishing the inherent power of federal courts to 4 regulate the activities of abusive litigants by imposing 5 carefully tailored restrictions under the appropriate 6 circumstances"). The Court therefore may enter orders 7 "in order to control the conduct of a vexatious 8 litigant." C.D. Local R. 83-8.2. 9 Specifically, the Court may enter an order 10 requiring that the litigant obtain the approval of a 11 judge before being allowed to file an action. See C.D. 12 Local R. 83-8.2 (providing for such an order); Molski v. 13 Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 14 2007) (recognizing that district courts have "inherent 15 power to enter pre-filing orders against vexatious 16 litigants"). However, the entry of such a pre-filing 17 order must be preceded by (1) notice and opportunity to 18 be heard before the Court enters the order; (2) the 19 compilation of an adequate record for review, that is, a 20 listing of the cases and/or abusive activities 21 undertaken by the litigant; and (3) substantive findings 22 concerning the frivolous and harassing nature of the 23 plaintiff's litigation. See De Long, 912 F.2d at 114724 48. Moreover, the pre-filing order must be the narrowly 25 tailored to deter the specific vice encountered. Id. 26 /// 27 /// 28 /// 2 1 B. 2 Analysis Defendant Omaha Steaks International, Inc.'s Motion 3 for Order for Security and Control is GRANTED IN PART 4 AND DENIED IN PART. 5 As a preliminary matter, the Court GRANTS Defendant 6 Omaha Steaks International, Inc.'s ("Defendant") Request 7 for Judicial Notice pursuant to Federal Rule of Evidence 8 201. See Fed. R. Evid. 201. See also Phillips v. Bank of 9 Am. Corp., 2011 WL 132861, at *3 (N.D. Cal. Jan. 14, 10 2011)(noting that the Court may take judicial notice of 11 matters of public record, including prior federal and 12 state court proceedings). 13 Defendant moves this Court to declare Plaintiff 14 Anshu Pathak ("Plaintiff") a vexatious litigant, enter a 15 pre-filing Order requiring Plaintiff to make an initial 16 showing of likelihood of success on the merits before 17 bringing any more actions in this District, Order that 18 Plaintiff be required to post Security in the amount of 19 $17,000.00 and Order that Plaintiff be required file a 20 copy of this Order and a notice of his status as a 21 vexatious litigant in the Central District prior to 22 filing any actions in state or federal courts or 23 agencies against Defendant. 24 In determining whether Plaintiff qualifies as a 25 vexatious litigant, the Court may look to California's 26 Vexatious Litigant Statute1 for guidance. See C.D. Local 27 28 California's Vexatious Litigant Statute defines a "vexatious litigant" as a person who does any of the following: 3 1 1 R. 83-8.4 (providing that the Court, in its discretion, 2 may look to California's Vexatious Litigants Statute for 3 guidance in determining vexatious litigant status). 4 Court finds that Plaintiff meets three of the four 5 definitions of a vexatious litigant that are set forth 6 under this Statute. As such, given Plaintiff meets The 7 these statutory definitions, as well as the fact that 8 Plaintiff has demonstrated an extensive history of 9 litigation as discussed below, the Court finds Plaintiff 10 to be a vexatious litigant. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal. Civ. Proc. Code 391(b)(1)-(4). 4 (1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing; (2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined; (3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay; (4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence. 1 Specifically, the Court finds that Plaintiff meets 2 the first definition of a vexatious litigant under the 3 California Statute because he has commenced at least six 4 litigations in propria persona in the last seven years 5 that were finally determined adversely to him.2 Next, 6 Plaintiff has repeatedly re-litigated or attempted to 7 re-litigate in propria persona the validity of the 8 Judgment that was entered against Plaintiff by this 9 Court on September 22, 2004 in Omaha Steaks 10 International, Inc., v. Pathak, Case No. 03-cv-1401, an 11 action for trademark infringement that was brought by 12 Defendant against Plaintiff ("the Omaha Proceeding"). 13 After the Ninth Circuit affirmed this Court's entry of 14 Judgment on December, 8, 2005 following Plaintiff's 15 appeal of that Judgment, Plaintiff filed a new action in 16 this District in 2009 against Defendant, its officers 17 and its representing law firm, alleging that Defendant 18 had committed fraud against Plaintiff and had defrauded 19 the Court in the Omaha Proceeding (the "Omaha Proceeding 20 II"), Pathak v. United States of America, Case No. 0921 cv-8287. This case was dismissed in April, 2010 for 22 Plaintiff's failure to effect service and failure to 23 prosecute. [Def.'s Req. for Judicial Notice, Exh. 58.] 24 2 25 8287 (C.D. Cal. Nov. 24, 2010); Pathak v. United States Patent and Trademark Offices, Case No. 10-cv-0489 (C.D. Cal. Oct. 8, 26 2010); Pathak v. Automobile Club of So. Cal., Case No. 07-cv-0878 27 (C.D. Cal. May 15, 2008); Pathak v. Siddiqui, Case No. 07-cv-0073 (C.D. Cal. Oct. 23, 2007); Pathak v. Humboldt Bank, Inc., Case See Pathak v. United States of America, Case No. 09-cv- 28 No. 04-cv-0447 (N.D. Cal. Dec. 14, 2004); Pathak v. The Spinella Family Trust, Case No. 04-cv-0385 (D. Nev. May 24, 2004). 5 1 In this present Action, Plaintiff seeks to re-litigate 2 the same theory of fraud that Plaintiff had asserted in 3 the Omaha Proceeding II, again alleging that Defendant 4 has committed fraud on the Court and that the Judgement 5 entered in the Omaha Proceeding should be set aside. 6 [Compl., 1-2.] As Plaintiff has repeatedly re- 7 litigated or attempted to re-litigate a controversy 8 already determined against him against the same 9 Defendant, the Court finds that Plaintiff meets this 10 second definition of vexatious litigant under the 11 statute. 12 The Court next finds that Plaintiff meets the third 13 definition of a vexatious litigant because he has filed 14 a series of unmeritorious motions and engaged in other 15 frivolous, or unnecessarily delaying tactics before this 16 Court while acting in propria persona during the Omaha 17 Proceeding. For example, after the Court entered an 18 Order that no motions to vacate be brought unless 19 Plaintiff complies with the Local Rules, Plaintiff filed 20 a motion to vacate that failed to comply with Local Rule 21 7-3, and the Court subsequently dismissed this motion. 22 [Doc. Nos. 50, 87.] Furthermore, Plaintiff filed 23 requests and motions that the Court found did not comply 24 with the relevant Local or Federal Rules or failed to 25 allege an adequate legal basis, and were therefore 26 subsequently denied by this Court.3 27 28 For example, Plaintiff filed a request for judicial notice of a letter to Defendant's attorney and a motion to provide 6 3 Finally, the Court 1 finds that Plaintiff has engaged in tactics resulting in 2 the unnecessary delay of the enforcement of the Judgment 3 issued against him in the Omaha Proceeding, such as his 4 failure to attend scheduled debtor's examinations. 5 such, the Court finds that the combination of 6 Plaintiff's failure to comply with Local and Federal 7 rules in his various motions and requests in the Omaha 8 Proceeding, along with his failure to attend the 9 debtor's examination hearings, are indicative of an 10 intent to cause unnecessary delay. Therefore, the Court As 11 finds that Plaintiff meets this third definition of a 12 vexatious litigant under the California Statute. 13 As such, as Plaintiff meets the first three 14 definitions of a vexatious litigant under the California 15 Statute4 and has demonstrated a history of filing 16 unmeritorious filings and litigation, as discussed in 17 more detail below, the Court hereby deems Plaintiff a 18 vexatious litigant. C.D. Local R. 83-8.4. 19 20 21 attorney or allow Plaintiff to bring money to the United States. 22 23 24 25 26 27 28 [Doc. Nos. 77, 87.] It should be noted that while Plaintiff has been declared a vexatious litigant by the Los Angeles Superior Court in the matter of Pathak v. Ornelas, Case No. KC033801, it is unclear if this was based upon the same or substantially similar facts, transaction, or occurrence. See Cal. Civ. Proc. Code 391(b)(4). However, as the Statute states that a vexatious litigant is a person who engages in any of the conduct subsequently set forth in the Statute, the Court finds that because Plaintiff meets the first three definitions of a vexatious litigant under the Statute Plaintiff qualifies as a vexatious litigant here. 7 4 Next, the Court finds that Plaintiff's vexatious 1 and harassing litigation requires the entry of a pre2 filing order against Plaintiff, and therefore GRANTS 3 Defendant's request here for the entry of a pre-filing 4 Order. 5 First, the Court finds that Plaintiff has been 6 afforded proper notice and a chance to be heard on this 7 Motion. Defendant filed this Motion within the 8 requested notice period, the Motion is properly 9 paginated and Defendant was properly served with this 10 Motion [6]. Plaintiff's Opposition to this Motion 11 evidences that not only was Plaintiff on notice here, 12 but that Plaintiff also had the opportunity to oppose 13 any pre-filing order. Thus, the Court finds that the 14 first De Long requirement has been met. 15 Second, the Court finds that the history of 16 Plaintiff's vexatious filings here is manifest and the 17 record for review meets the second De Long requirement. 18 See De Long, 912 F.2d at 1147. The record before the 19 Court includes docket reports, documents, motions and 20 orders from earlier litigation that has been initiated 21 by Plaintiff in both state and federal court.5 The 22 record illustrates that since 1991, Plaintiff has filed 23 forty-two actions in state and federal court that were 24 all subsequently dismissed either on the merits or for 25 26 27 28 This record was provided to the Court as exhibits to Defendant's Request for Judicial Notice [10]. Pursuant to Defendant's request here, the Court takes judicial notice of Plaintiff's numerous filings of actions, motions and petitions across multiple state and federal courts. See Fed. R. Evid. 201. 8 5 1 reasons such as lack of prosecution, failure to comply 2 with local rules and lack of personal jurisdiction.6 3 [Def.'s Request for Judicial Notice, Exs. 1-42.] 4 Moreover, the record lists Plaintiff's numerous motions 5 and requests in the Omaha Proceeding that were either 6 found to be without merit or dismissed for failure to 7 comply with the Local and Federal Rules. As such, the 8 Court finds that the record here before the Court 9 creates an adequate record for review, and that the 10 second De Long requirement has been met. 11 Next, the Court finds that the third De Long In making this 12 requirement has been satisfied. 13 determination, the Court must look at the number and 14 content of a party's filings when examining the 15 frivolousness of the claims asserted. De Long, 912 F.2d 16 at 1148. The Court should also "discern whether the 17 filing of several similar types of actions constitutes 18 an intent to harass the defendant or the court." Powell, 19 851 F.2d at 431. Moreover, pursuant to the Central 20 District Local Rules, any pre-filing order must be 21 "based on a finding that the litigant to whom the order 22 is issued has abused the Court's process and is likely 23 24 25 26 27 28 Notably, in the last ten years, Plaintiff has filed numerous actions in this District that were all subsequently dismissed, such as: 1) Pathak v. Rao, No. 2-03-cv-0165; 2) Pathak v. Singh, Case No. 5:03-cv-0213; 3) Pathak v. CitiFinancial Svcs., Case No. 2-03-cv-6502; 4) Pathak v. Siddiqui, Case No. 507-cv-0073; 5) Pathak v. Automobile Club of So. Cal., Case No. 507-cv-0878; 6) Pathak v. United States of America, Case No. 09cv-8287; and 7) Pathak v. United States Patent and Trademark Office, Case No. 5-10-cv-0489. 9 6 1 to continue such abuse, unless protective measures are 2 taken." C.D. Local R. 83-8.3. 3 Here, the Court finds Plaintiff has demonstrated a 4 history of filing frivolous and harassing lawsuits, 5 motions and requests, and that Plaintiff has shown a 6 likelihood that he will continue to file such lawsuits 7 in the future. As noted above, Plaintiff has filed 8 numerous lawsuits in both federal and state court that 9 were subsequently dismissed either on the merits or as a 10 result of Plaintiff's failure to prosecute or comply 11 with the Federal Rules of Civil Procedure, illustrating 12 that Plaintiff has demonstrated a history of filing 13 frivolous and unmeritorious lawsuits.7 [Def.'s Request 14 for Judicial Notice, Exs. 1-42.] Moreover, the record 15 reflects the motions and requests filed by Plaintiff in 16 the Omaha Proceeding that were denied by the Court, as 17 well as the fact that for the last several years, 18 Plaintiff has attempted to evade the Judgment rendered 19 by the Court in the Omaha Proceeding and has failed to 20 cooperate with Defendant or this Court in the 21 enforcement of that Judgment. [Id., Exh. 61-69.] 22 23 24 25 26 27 28 For example, in an action brought by Plaintiff for conversion in this District, Pathak v. Automobile Club of Southern California, Case No. 5-07-cv-0878, the District Court dismissed this action because Plaintiff had no ownership rights in the vehicles at issue in that action. In addition, in Pathak v. The Spinella Family Trust, Case No. 2-04-cv-0385, the District Court for the District of Nevada granted the defendant's motion to expunge the lis pendens because the state court had already determined that Plaintiff had no rights in the property and had prohibited him from filing further lis pendens in state court proceedings. [Def.'s Req. for Judicial Notice Exhs. 45, 47.] 10 7 In 1 addition, in this present Action, Plaintiff seeks to re2 litigate the allegation that Defendant committed fraud 3 on the Court in the Omaha Proceeding, despite the fact 4 that in the Omaha Proceeding, this Court dismissed 5 Plaintiff's cross-complaint, which contained these same 6 allegations of fraud, the Ninth Circuit upheld the 7 Judgment by this Court in the Omaha Proceeding on appeal 8 and the Omaha Proceeding II was dismissed by another 9 court in this District for failure to prosecute and 10 failure to effect proper service. See Pathak v. United 11 States of America, Case No. 09-cv-8287; Omaha Steaks 12 International, Inc., v. Pathak, Case No. 03-cv-1401. 13 Plaintiff's continued allegations that Defendant engaged 14 in a concerted effort to commit fraud upon the Court is 15 contrary to past findings of federal courts, and 16 therefore the Court finds that these repeated assertions 17 here may be a basis for determining that Plaintiff's 18 cases are vexatious. Molski, 500 F.3d at 1061. Finally, 19 as Plaintiff qualifies as a vexatious litigant under the 20 California statute, the Court finds that this supports a 21 finding that the third substantive De Long requirement 22 has been met. See C.D. Local R. 83-8.7. 23 The stream of litigation and motion practice that 24 has been initiated by Plaintiff in the last twenty years 25 suggests he will continue to file claims against 26 Defendant in the absence of a pre-filing Order. 27 Accordingly, the Court finds that Plaintiff has "abused 28 the Court's process and is likely to continue . . . 11 1 unless protective measures are taken." C.D. Local R. 832 8.3. Pursuant to the fourth requirement set forth in De 3 Long, the Court must therefore fashion an Order that is 4 narrowly tailored to remedy the particular ills posed by 5 Plaintiff. See De Long, 912 F.2d at 1148. 6 Defendant requests that this Court enter a pre- 7 filing Order that requires Plaintiff obtain leave of the 8 Court prior to filing any future actions in the Central 9 District of California. However, the Court finds this 10 requested pre-filing Order is not sufficiently narrowly 11 tailored pursuant to the guidelines set forth in De 12 Long. See id. See also Molski v. Evergreen Dynasty 13 Corp., 500 F.3d 1047, 1061 (9th Cir. 2007)(noting that a 14 pre-filing order should be tailored to fit the 15 particular ills suffered by the defendant). The Court 16 finds the particular ills suffered by Defendant as a 17 result of Plaintiff's conduct concern Plaintiff's 18 attempts to evade enforcement of the Judgment rendered 19 against Plaintiff in the Omaha Proceeding and 20 Plaintiff's repeated attempts to re-litigate the 21 validity of that Judgment. See Molski, 500 F.3d at 1061. 22 As such, the Court finds a pre-filing Order that is 23 directed toward those concerns is appropriate here under 24 De Long. Therefore, the Court hereby orders that 25 Plaintiff, any person acting on his behalf, or any 26 entity that he controls, directly or indirectly, be 27 required to submit for screening to a judge of this 28 court any pleading that Plaintiff, any person acting on 12 1 his behalf, or any entity that he controls, directly or 2 indirectly, proposes to file to initiate a new action, 3 where the pleading asserts claims against Defendant 4 based the validity of the Judgment rendered against 5 Plaintiff in the matter of Omaha Steaks International, 6 Inc., v. Pathak, Case No. 03-cv-1401, and Defendant's 7 alleged fraud on the Court in that Action, and that 8 Plaintiff must make an initial showing of likelihood of 9 success on the merits in order for the new claim to be 10 filed and move forward. 11 However, the Court DENIES Defendant's request that 12 this Court order Plaintiff to post Security here in the 13 amount of $17,000.00. Pursuant to Local Rule 83-8.2, 14 the Court may order a party to "give security in such 15 amount as the Court determines to be appropriate to 16 secure the payment of any costs, sanctions or other 17 amounts which may be awarded against a vexatious 18 litigant." C.D. Local R. 83-8.2. However, the Court 19 finds that Defendant has not adequately shown that an 20 Order of Security is necessary here to secure the 21 payment of these costs, as Defendant's request for 22 Security in the amount of $17,000.00 does not relate to 23 the costs that may be awarded against Plaintiff in this 24 Action, but instead represents Defendant's own expected 25 reasonable costs in connection with litigating this 26 Action. As such, the Court finds that Defendant does 27 not sufficiently show that this amount of Security is 28 necessary and appropriate here in order to secure the 13 1 payment of any "costs or sanctions, or other amounts 2 which may be awarded against the vexatious litigant." 3 Id. Accordingly, the Court DENIES Defendant's request 4 for an Order for Security. 5 Finally, the Court DENIES Defendant's request for 6 an Order that Plaintiff be required to file a copy of 7 this Order and notice of his status as a vexatious 8 litigant in the Central District prior to filing any 9 actions in state or federal courts or agencies against 10 Defendant, as the Court finds that Defendant has not 11 sufficiently shown that this type of Order is necessary. 12 Accordingly, Defendant's Motion for Order for 13 Security and Control is GRANTED IN PART AND DENIED IN 14 PART. 15 16 DATED: March 28, 2011 17 IT IS SO ORDERED. 18 19 20 21 22 23 24 25 26 27 28 14 HONORABLE RONALD S.W. LEW Senior, U.S. District Court Judge

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