Espinosa v. Persopo.com, Inc.

Filing 6

ORDER signed by District Judge Kimberly J. Mueller on 10/31/2016 ORDERING the court finds that plaintiff has failed to comply with the pre-filing review order and STRIKES plaintiff's pre-filing declaration. The court GRANTS plaintiff 14 days fro m the date of this order to file a declaration that complies with the pre-filing review order. If plaintiff fails to submit a declaration that complies with the pre-filing review order, plaintiff is warned that the case may be subject to dismissal or other appropriate sanction. (Reader, L)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DARREL L. ESPINOSA,

12

Plaintiff,

13
14

No. 2:16-mc-00168-KJM

v.

ORDER

PERSEPO.COM, INC., et al.,

15

Defendants.

16
This case is before the court as required by a pre-filing review order issued in a

17
18

prior case. See Espinosa v. Marshall et al., Case No. 2:06-cv-01192-MCE-GGH (E.D. Cal.

19

June 15, 2007), ECF No. 92. The pre-filing review order declared plaintiff a “vexatious litigant”

20

and required, inter alia, plaintiff to submit a declaration certifying that any new litigation is not

21

related to prior cases brought by plaintiff and that the new claims are not frivolous or made in bad

22

faith. Id. at 2-3. For the following reasons, the court finds that plaintiff has failed to comply with

23

the pre-filing order. As a result, the court strikes plaintiff’s pre-filing review declaration, ECF

24

No. 3.

25

In the previous action, the court’s pre-filing review order stated, in relevant part:

26

(1) Plaintiff shall not initiate any further pro se action in this court
unless the pleadings initiating the action are accompanied by a
declaration under penalty of perjury that explains why plaintiff
believes he has meritorious claims. The declaration shall include a

27
28

1

1
2
3
4
5
6
7
8
9
10
11
12

list of all previous actions plaintiff has filed in this or any court,
identifying named defendants and all claims made in the previous
actions. Plaintiff shall certify that the defendants named in the
proposed action have never before been sued by plaintiff, or
alternatively that any claims against previously sued defendants are
not related to previous action[s]. The declaration shall also state that
the claims are not frivolous or made in bad faith, and that plaintiff
has conducted a reasonable investigation of the facts and the
investigation supports his claim(s). Finally, a copy of this order
shall be attached to any application. (2) The Clerk shall not file or
lodge any action submitted pro se by plaintiff unless it is
accompanied by the required declaration and a copy of the instant
order; any such incomplete filings shall be returned to plaintiff
without further action of the court. (3) If plaintiff files a pro se
action accompanied by the required declaration, the Clerk shall
open the matter as a miscellaneous case to be considered by the
General Duty Judge of this court. The judge will issue necessary
orders after making a determination whether the case is in fact
related to a previous case filed by plaintiff, and whether it is nonfrivolous.

13

Id. As the pre-filing review order makes clear, plaintiff must list “all previous actions plaintiff

14

has filed in this or any court, identifying named defendants and all claims made in the previous

15

actions.” Id. However, plaintiff’s declaration does not list any of plaintiff’s prior cases or

16

identify the named defendants or claims made in those cases. Espinosa Decl., ECF No. 3. As a

17

result, the court cannot make a determination “whether the case is in fact related to a previous

18

case filed by plaintiff,” as required by the pre-filing review order.

19

Accordingly, the court finds that plaintiff has failed to comply with the pre-filing

20

review order and STRIKES plaintiff’s pre-filing declaration. The court GRANTS plaintiff

21

fourteen (14) days from the date of this order to file a declaration that complies with the pre-filing

22

review order. If plaintiff fails to submit a declaration that complies with the pre-filing review

23

order, plaintiff is warned that the case may be subject to dismissal or other appropriate sanction.

24
25

IT IS SO ORDERED.
DATED: October 31, 2016.

26
27

UNITED STATES DISTRICT JUDGE
28
2