DeMartini, et al. v. DeMartini, et al.

Filing 213

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/14/2017 ORDERING that plaintiffs' 198 motion to require defendants to post bond, security or undertaking is DENIED. Plaintiffs' request to dismiss the counterclaims is DENIED without prejudice. (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY DEMARTINI, et al., 12 Plaintiffs, 13 14 No. 2:14-cv-2722 JAM CKD PS v. ORDER MICHAEL DEMARTINI, et al., 15 Defendants. 16 Pending before the court is plaintiff’s motion to compel defendants to post bond, security 17 18 or undertaking and to dismiss defendants’ counterclaims. The matter was submitted on the 19 papers. Upon review of the documents in support and opposition, THE COURT FINDS AS 20 FOLLOWS: By their motion, plaintiffs request that defendants be declared vexatious litigants and be 21 22 required to post a bond, security or undertaking. Plaintiffs do not seek security in a specific 23 amount but simply request that it be in an amount the court determines to be appropriate. As part 24 of their vexatious litigant motion, plaintiffs seek the additional relief of dismissal of defendants’ 25 counterclaims. Plaintiffs contend that there is a lack of evidence supporting defendants’ 26 counterclaims. The present motion fails to make an adequate showing in this regard. Because 27 plaintiffs have also filed a motion for summary judgment with respect to defendants’ 28 ///// 1 1 counterclaims, the court will deny without prejudice that part of plaintiffs’ motion which seeks 2 dismissal of the counterclaims. 3 Litigants who abuse the judicial process by repeatedly filing “unmeritorious motions, 4 pleadings, or other papers,” or engaging “in other tactics that are frivolous or solely intended to 5 cause unnecessary delay” are vexatious litigants. Cal. Civ. Proc. Code § 391 (adopted in the 6 Eastern District of California under L.R. 151(b)). In order to impose a limiting order on a 7 vexatious litigant, four conditions must be met: (1) the litigant must have adequate notice to 8 oppose the order; (2) an adequate record must be provided, listing the pleadings that led to the 9 court’s decision that a vexatious litigant order was necessary; (3) the court must make substantive 10 findings that the filings were frivolous or harassing; and (4) the order must be narrowly tailored. 11 See DeLong v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir. 1990); Molski v. Evergreen Dynasty 12 Corp., 500 F.3d 1047, 1057-58 (9th Cir. 2007). 13 Plaintiffs contend that defendants should be declared vexatious because defendants 14 previously had a restraining order entered against them, removed this action from state court to 15 the wrong District Court, filed an answer and counterclaim which expanded the scope of this 16 action, filed an ambiguous amended counterclaim, failed in their attempt to disqualify plaintiffs’ 17 counsel, had sanctions issued against them in connection with plaintiffs’ anti-SLAPP motion, 18 abused the subpoena process, were ordered to produce electronically stored information pursuant 19 to a motion to compel, were compelled to serve an amended Rule 26 initial disclosure, were 20 restrained again pursuant to a second temporary restraining order, failed in their motion to compel 21 further deposition of one of the plaintiffs in this action, failed in a motion to extend the discovery 22 cut-off, and did not prevail on a motion for protective order. 23 The court has carefully reviewed the entirety of the docket in this matter. In determining 24 whether defendants should be declared vexatious, the court has considered both the number and 25 content of defendants’ filings. See DeLong v. Hennessey, 912 F.2d at 1148 (number and content 26 indicia of frivolousness of litigant’s claims). While it appears that many times defendants’ 27 litigation position has been on the losing side, in light of defendants’ pro se status, allowances 28 must be made for a layman’s understanding of the law. On each of the motions referenced above, 2 1 defendants appear to have extensively researched the law and presented arguments in support of 2 their positions which were apparently made in good faith. In this court’s experience, it is not 3 uncommon for pro litigants to file two, and sometimes three, amended complaints before they are 4 able to articulate a claim upon which relief may be granted. With respect to the discovery 5 motions, it appears that sometimes defendants have either produced or identified a surplusage of 6 documents in an attempt to fully disclose, an understandable position for a pro se litigant. The 7 discovery motions noticed by defendants were nothing out of the ordinary for litigation in which 8 both sides have vigorously advocated their positions. The kind of discovery motions plaintiffs 9 complain about here are not so out of the ordinary – review of the court’s law and motion 10 calendar for the past year shows that these types of motions appear frequently on the court’s 11 docket. Losing a discovery motion is not necessarily indicative of frivolousness or harassment. 12 When this court has directed defendants to cease and desist conduct that was not in conformance 13 with the Federal Rules of Civil Procedure, defendants have complied upon being advised by the 14 court of what was required under the Rules. Defendants have also fully complied with respect to 15 this court’s orders regarding payment of expenses incurred by the prevailing side. Although this 16 court found that plaintiffs/counterdefendants should be awarded their attorneys’ fees in 17 connection with their anti-SLAPP suit, the court notes that this is a very complex area of the law, 18 an award of expenses was required under the governing statute, and it is not unsurprising that a 19 pro se litigant would be unaware of the nuances that bar certain claims under the anti-SLAPP 20 statute. In regard to the temporary restraining orders that have been issued against defendants, 21 each time they have quickly complied with the court’s restraint and it does not appear that 22 defendants’ conduct which led to the restraining orders was so out of line that such conduct could 23 be considered harassing. 24 In sum, the court cannot find that defendants’ litigation activity reflects a “pattern of 25 harassment.” See DeLong v. Hennessey, 912 F.2d at 1148. In addition, the present motion does 26 not articulate a sufficient basis upon which this court can conclude that defendants have no 27 reasonable probability of succeeding on the merits of their counterclaims. The present record 28 fails to establish that defendants’ filings are so numerous, abusive, or inordinate such that a 3 1 vexatious litigant order is warranted. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiffs’ motion to require defendants to post bond, security or undertaking (ECF No. 4 5 6 198) is denied; and 2. Plaintiffs’ request to dismiss the counterclaims is denied without prejudice. Dated: April 14, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 7 8 9 4 demartini2722.vex.sec 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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