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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY DEMARTINI, et al.,

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Plaintiffs,

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No. 2:14-cv-2722 JAM CKD PS

v.

ORDER

MICHAEL DEMARTINI, et al.,

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Defendants.

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Pending before the court is plaintiff’s motion to compel defendants to post bond, security

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or undertaking and to dismiss defendants’ counterclaims. The matter was submitted on the

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papers. Upon review of the documents in support and opposition, THE COURT FINDS AS

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FOLLOWS:
By their motion, plaintiffs request that defendants be declared vexatious litigants and be

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required to post a bond, security or undertaking. Plaintiffs do not seek security in a specific

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amount but simply request that it be in an amount the court determines to be appropriate. As part

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of their vexatious litigant motion, plaintiffs seek the additional relief of dismissal of defendants’

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counterclaims. Plaintiffs contend that there is a lack of evidence supporting defendants’

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counterclaims. The present motion fails to make an adequate showing in this regard. Because

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plaintiffs have also filed a motion for summary judgment with respect to defendants’

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counterclaims, the court will deny without prejudice that part of plaintiffs’ motion which seeks

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dismissal of the counterclaims.

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Litigants who abuse the judicial process by repeatedly filing “unmeritorious motions,

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pleadings, or other papers,” or engaging “in other tactics that are frivolous or solely intended to

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cause unnecessary delay” are vexatious litigants. Cal. Civ. Proc. Code § 391 (adopted in the

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Eastern District of California under L.R. 151(b)). In order to impose a limiting order on a

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vexatious litigant, four conditions must be met: (1) the litigant must have adequate notice to

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oppose the order; (2) an adequate record must be provided, listing the pleadings that led to the

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court’s decision that a vexatious litigant order was necessary; (3) the court must make substantive

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findings that the filings were frivolous or harassing; and (4) the order must be narrowly tailored.

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See DeLong v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir. 1990); Molski v. Evergreen Dynasty

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Corp., 500 F.3d 1047, 1057-58 (9th Cir. 2007).

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Plaintiffs contend that defendants should be declared vexatious because defendants

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previously had a restraining order entered against them, removed this action from state court to

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the wrong District Court, filed an answer and counterclaim which expanded the scope of this

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action, filed an ambiguous amended counterclaim, failed in their attempt to disqualify plaintiffs’

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counsel, had sanctions issued against them in connection with plaintiffs’ anti-SLAPP motion,

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abused the subpoena process, were ordered to produce electronically stored information pursuant

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to a motion to compel, were compelled to serve an amended Rule 26 initial disclosure, were

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restrained again pursuant to a second temporary restraining order, failed in their motion to compel

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further deposition of one of the plaintiffs in this action, failed in a motion to extend the discovery

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cut-off, and did not prevail on a motion for protective order.

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The court has carefully reviewed the entirety of the docket in this matter. In determining

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whether defendants should be declared vexatious, the court has considered both the number and

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content of defendants’ filings. See DeLong v. Hennessey, 912 F.2d at 1148 (number and content

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indicia of frivolousness of litigant’s claims). While it appears that many times defendants’

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litigation position has been on the losing side, in light of defendants’ pro se status, allowances

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must be made for a layman’s understanding of the law. On each of the motions referenced above,
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defendants appear to have extensively researched the law and presented arguments in support of

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their positions which were apparently made in good faith. In this court’s experience, it is not

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uncommon for pro litigants to file two, and sometimes three, amended complaints before they are

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able to articulate a claim upon which relief may be granted. With respect to the discovery

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motions, it appears that sometimes defendants have either produced or identified a surplusage of

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documents in an attempt to fully disclose, an understandable position for a pro se litigant. The

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discovery motions noticed by defendants were nothing out of the ordinary for litigation in which

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both sides have vigorously advocated their positions. The kind of discovery motions plaintiffs

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complain about here are not so out of the ordinary – review of the court’s law and motion

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calendar for the past year shows that these types of motions appear frequently on the court’s

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docket. Losing a discovery motion is not necessarily indicative of frivolousness or harassment.

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When this court has directed defendants to cease and desist conduct that was not in conformance

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with the Federal Rules of Civil Procedure, defendants have complied upon being advised by the

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court of what was required under the Rules. Defendants have also fully complied with respect to

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this court’s orders regarding payment of expenses incurred by the prevailing side. Although this

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court found that plaintiffs/counterdefendants should be awarded their attorneys’ fees in

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connection with their anti-SLAPP suit, the court notes that this is a very complex area of the law,

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an award of expenses was required under the governing statute, and it is not unsurprising that a

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pro se litigant would be unaware of the nuances that bar certain claims under the anti-SLAPP

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statute. In regard to the temporary restraining orders that have been issued against defendants,

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each time they have quickly complied with the court’s restraint and it does not appear that

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defendants’ conduct which led to the restraining orders was so out of line that such conduct could

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be considered harassing.

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In sum, the court cannot find that defendants’ litigation activity reflects a “pattern of

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harassment.” See DeLong v. Hennessey, 912 F.2d at 1148. In addition, the present motion does

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not articulate a sufficient basis upon which this court can conclude that defendants have no

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reasonable probability of succeeding on the merits of their counterclaims. The present record

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fails to establish that defendants’ filings are so numerous, abusive, or inordinate such that a
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vexatious litigant order is warranted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiffs’ motion to require defendants to post bond, security or undertaking (ECF No.

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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

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