Rogers v. State Farm Insurance Company, et al
Filing
117
ORDER signed by Magistrate Judge Gregory G. Hollows on 8/4/11 ORDERING that the 8/11/11 hearing on the motion to declare plaintiff a vexatious litigant and for pre-filing order, filed 7/1/11, is VACATED from the calendar; and RECOMMENDING that the Defendants' motion 113 should be DENIED. Referred to Judge Garland E. Burrell, Jr; Objections due within 21 days after being served with these findings and recommendations. (Becknal, R)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
MARY A. NELSON ROGERS,
11
12
13
Plaintiff,
vs.
No. CIV S-09-0419 GEB GGH PS
FDIC AS RECEIVER FOR DOWNEY
SAVINGS AND LOAN, et al.,
ORDER and
FINDINGS AND RECOMMENDATIONS
14
Defendants.
15
16
/
Defendants’ motion to declare plaintiff a vexatious litigant and for pre-filing
17
order presently is calendared for hearing on August 11, 2011. Having reviewed the record, the
18
court has determined that oral argument would not be of material assistance in determining the
19
pending motion. Accordingly, the court will not entertain oral argument, and will determine the
20
motion on the record, including the briefing in support of and in opposition to the pending
21
motion. See E.D. Cal. L.R. 230(g).
22
Defendants seek an order preventing plaintiff from further advocating the issue of
23
fiduciary duty owed by defense counsel to her, before this court or any other governmental entity
24
(an issue pending before the district judge on Findings and Recommendations).
25
When a person has been a successive filer, either raising the same argument over and over again,
26
or otherwise simply bringing numerous frivolous suits on a myriad of issues, federal courts may
1
1
declare a litigant vexatious, and impose filing restrictions. See De Long v. Hennessey, 912 F.2d
2
1144 (9th Cir. 1990); Wood v. Santa Barbara Chamber of Commerce, 705 F.2d 1515 (9th Cir.
3
1983). However, orders imposing filing restrictions should be rarely used. DeLong, 912 F.2d
4
at1147.
5
Defendants have made insufficient record of a number of seriatim filings or
6
motions containing frivolous arguments which could permit such a restriction in this court.
7
Moreover, this court could not restrain plaintiff from making a particular argument in the Ninth
8
Circuit in this case in that she has apparently never raised the issue before in a previous litigation.
9
District courts restraining what they perceive as frivolous arguments to be made in a court of
10
appeal engage in an unseemly exercise of lower court authority–especially if the argument is first
11
made in a case which has not yet gone to appeal. While defendant’s invitation may be appealing
12
for some cases, the impulse to accept must be denied. If the rule were otherwise, lower court
13
judges could insulate their decisions from review by way of enjoining “frivolous arguments” in
14
the Court of Appeal.1
15
Finally, monetary sanctions should generally be sought as a first resort before the
16
ultimate sanction of filing restriction, or argument restriction, is warranted. See e.g.,
17
Fed.R.Civ.P. 11; 28 U.S.C. § 1927, E.D. Cal. LR 110.
18
////
19
////
20
////
21
////
22
////
23
////
24
1
25
26
Such a power vested in the lower courts must find its authority in written law where
Congress or a national court rule precludes review. Examples of such are the statute requiring a
certificate of appealability in habeas actions, 28 U.S.C. § 2254(c)(1), and the preclusion of
review of certain remand orders, 28 U.S.C. § 1447(d).
2
1
Accordingly, IT IS ORDERED that:
2
1. The August 11, 2011 hearing on the motion to declare plaintiff a vexatious
3
litigant and for pre-filing order, filed July 1, 2011, is vacated from the calendar; and
4
IT IS HEREBY RECOMMENDED:
5
2. Defendants’ motion, (dkt. # 113), should be denied.
6
These findings and recommendations are submitted to the United States District
7
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty
8
days after being served with these findings and recommendations, any party may file written
9
objections with the court and serve a copy on all parties. Such a document should be captioned
10
“Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections
11
shall be served and filed within ten days after service of the objections. The parties are advised
12
that failure to file objections within the specified time may waive the right to appeal the District
13
Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
14
DATED: August 4, 2011
15
16
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:076:Rogers0419.vex.wpd
17
18
19
20
21
22
23
24
25
26
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?