Banga v. Gundumolgula et al

Filing 40

ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/23/13 ORDERING that defendants' vexatious litigant motion (ECF No. 13) is denied without prejudice; and RECOMMENDING that this action be remanded to the Superior Court of California, County of Solano, Vallejo Branch. Referred to Judge Morrison C. England, Jr; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KAMLESH BANGA,

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Plaintiff,

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No. 2:13-cv-0667 MCE CKD PS

v.

ORDER AND

PRASAD GUNDUMOLGULA, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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Pending before the court is a motion to have plaintiff declared a vexatious litigant and to

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require plaintiff to post security before proceeding on any claims against defendants

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Gundumolgula and Anolik. Plaintiff has dismissed the moving defendants, thereby mooting

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defendants’ request to have plaintiff post security. To the extent defendants seek an order

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prohibiting plaintiff from filing any actions in the courts of this state in propria persona without

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first obtaining leave of court, the court finds such an expansive order is not sufficiently tailored or

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appropriate under the circumstances presented in this action. See De Long v. Hennessey, 912

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F.2d 1144, 1147-1148 (9th Cir.1990) (pre-filing review orders, in which a complainant is required

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to obtain approval from a United States Magistrate Judge or District Judge prior to filing a

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complaint, can be appropriate in certain occasions but “should rarely be filed” and must be

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narrowly tailored).1 The vexatious litigant motion will therefore be denied.2

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The court has previously recommended that defendant Emirates Airlines be dismissed

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with prejudice. ECF No. 30. Defendant Emirates Airlines removed this action from state court

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under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1603. With dismissal of

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defendant Emirates Airlines and dismissal of defendants Gundumolgula and Anolik, the only

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remaining claims are state law claims against defendant Sheen Travel.3 The court will therefore

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recommend that the exercise of supplemental jurisdiction be declined under 28 U.S.C. § 1367(c)

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and the action be remanded to state court.
Accordingly, IT IS HEREBY ORDERED that defendants’ vexatious litigant motion (ECF

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No. 13) is denied without prejudice; and

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IT IS HEREBY RECOMMENDED that:

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1. The court decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c); and

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2. This action be remanded to the Superior Court of California, County of Solano, Vallejo

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Branch.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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The court notes, however, that plaintiff’s litigation history appears to demonstrate that she
meets the definition of a vexatious litigant. E.D. Cal. Local Rule 151(b); Cal. Code Civ. Proc. §
391(b)(1).

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Plaintiff’s dismissal of the moving defendants was without prejudice. Plaintiff is cautioned
that should she re-file the claims against the moving defendants, the court may recommend that
plaintiff be declared a vexatious litigant and that she be required to post security before
proceeding on any claims against the dismissed defendants.
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Defendant Sheen Travel has not appeared in this action and there is no indication on the docket
that this defendant has been served with summons.
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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: August 23, 2013

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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