Missud v. State of Nevada et al

Filing 88

ORDER by Judge Edward M. Chen Adopting Magistrate Judge Ryu's Report and Recommendation as Modified; Granting Defendant's Motion to Declare Plaintiff a Vexatious Litigant; and Dimissing Action. (emcsec, COURT STAFF) (Filed on 3/22/2012)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

PATRICK A. MISSUD,

9

Plaintiff,
v.

11
For the Northern District of California

United States District Court

10

STATE OF NEVADA, et al.,

12

Defendants.
___________________________________/

13

No. C-11-3567 EMC
ORDER ADOPTING MAGISTRATE
JUDGE RYU’S REPORT AND
RECOMMENDATION AS MODIFIED;
GRANTING DEFENDANT’S MOTION
TO DECLARE PLAINTIFF A
VEXATIOUS LITIGANT; AND
DISMISSING ACTION
(Docket Nos. 53, 59)

14
15
16

Plaintiff Patrick A. Missud, an attorney licensed in California1 and representing himself, has

17

filed suit against Defendant D.R. Horton, Inc. (“Horton”) and numerous state and federal judicial

18

defendants and public offices, including Special Magistrate Curtis Coltrane of Beaufort County,

19

South Carolina; Court Clerk Steven Grierson and Judge Elizabeth Gonzales of the Clark County

20

Courts of Nevada; Discovery Commissioner Bonnie Bulla of Nevada’s Eighth Judicial District

21

Court; Chief Justice Nancy M. Saiita and Justices Michael L. Douglas, James W. Hardesty, Kristina

22

Pickering, Mark Gibbons, Michael Cherry, and Ron Parraguirre of the Supreme Court of Nevada;

23

San Francisco Superior Court Judges Charlotte Woolard and Loretta Giorgi; Judge Saundra

24

Armstrong of the U.S. District Court for the Northern District of California; Judge Roger Hunt of the

25

U.S. District Court for the District of Nevada; Judge Roger Benitez of the U.S. District Court for the

26

Southern District of California; the Nevada Supreme Court; the Eighth Judicial District Court of

27
28

1

State Bar No. 219614.

1

County of Clark; the State of Nevada; Susan Eckhardt; David Sarnowski; the Nevada State Bar; and

2

Constance Akridge. Mr. Missud brings unspecified claims under 42 U.S.C. § 1983 for public

3

corruption and civil rights violations, on behalf of an unspecified class of purported victims. First

4

Amended Complaint (“FAC”), Docket No. 18, at 4.

5

In response to Defendant Horton’s motion to dismiss and orders to show cause issued by the

6

Court, Magistrate Judge Ryu has issued a Report and Recommendation (“R&R”), recommending

7

dismissal of Mr. Missud’s claims against all Defendants. Docket No. 53. In addition, Defendant

8

Horton has filed a motion to declare Plaintiff a vexatious litigant. Docket No. 59. Both matters are

9

pending before the Court.
I.

FACTUAL & PROCEDURAL BACKGROUND

11
For the Northern District of California

United States District Court

10

In his FAC, Mr. Missud alleges broadly that Defendants, led by Defendant Horton, have

12

“conspired to buy the judiciary, this Country and its Constitution.” FAC at 3. Mr. Missud lays

13

much of the blame for the success of this purported conspiracy on the Supreme Court’s recent

14

decisions in Citizens United v. FEC, 130 S. Ct. 876 (2010), and AT&T Mobility v. Concepcion, 131

15

S.Ct. 1740 (2011), which he claims have “allowed corporate ‘citizens’ to buy America’s court[s] and

16

alternative dispute forum[s].” Id. at 2. He claims that those Defendants in the judiciary have acted

17

with bias against him in prior proceedings due to the influence of Horton and its subsidiaries,

18

including DHI Mortgage Company Ltd. (“DHI”).2 Id. at 8, 10. Although he does not describe the

19

particular transaction(s) that give rise to his complaint, it appears the root of his dissatisfaction with

20

Horton originates from his dealings with Horton and DHI in conjunction with his purchase of a

21

home in Nevada. See 07-2625 SBA, Docket No. 38, at 1-3 (summarizing previous similar claims

22

against same defendants). Nearly all of his allegations herein stem from judicial decisions that have

23

disagreed with his positions, which he equates with per se evidence of those judges’ bias and

24

indebtedness to Horton. See, e.g., FAC at 12. Although his allegations are broad and not entirely

25

clear, he asserts, inter alia, the following allegations of wrongdoing against specific Defendants:

26
27
28

2

Mr. Missud does not always distinguish between D.R. Horton, Defendant in this action,
and DHI Mortgage, which is not a defendant in the instant case but has previously been a defendant
in other cases brought by Mr. Missud.

2

alleges that Commissioner Eckhardt wrongfully refused to investigate consumer complaints against

3

Horton. FAC at 5-6.

4

•

5

wrongfully issued an injunction against picketers protesting Horton’s sale of a golf course. FAC at

6

6-7.

7

•

8

dishonestly claimed not to have received Mr. Missud’s document submissions to the court. FAC at

9

7.

10

•

11
For the Northern District of California

•

2

United States District Court

1

records “regarding DHI’s interstate financial crimes,” blocked media from court proceedings, struck

12

Plaintiff’s case despite its merit (according to Mr. Missud), and failed to recuse herself despite

13

Plaintiff’s motion to disqualify her based on bias. FAC at 7-8.

14

•

15

that these Defendants failed to respond to subpoenas to produce video evidence of Judge Gonzales’s

16

bias. FAC at 9-10.

17

•

18

alleges that these Defendants failed to investigate Plaintiff’s claims of judicial misconduct against

19

Judge Gonzales. FAC at 10.

20

•

21

Nevada Attorney General investigate Plaintiff after receiving Plaintiff’s amicus brief in another

22

action, and denied his Emergency Motion to Compel production of the video and documents

23

regarding his accusations of bias against Judge Gonzales. FAC at 11, 12. The Court also reduced

24

the damages a jury awarded to another plaintiff (Betsinger) in another action against Horton. FAC

25

at 11. Mr. Missud summarily alleges that the Nevada Supreme Court is “the Country’s 8th most

26

beholden state supreme court to the special interests.” FAC at 12. The link Mr. Missud provides in

27

support of this statement is an article stating that the court ranks eighth in election fundraising. Id.

28

•

Nevada Division of Mortgage Lending (“NDML”) Commissioner Susan Eckhardt – Plaintiff

South Carolina Special Magistrate Coltrane – Plaintiff alleges that Magistrate Coltrane

Nevada Discovery Commissioner Bulla – Plaintiff alleges that Commissioner Bulla

Nevada Judge Gonzales – Plaintiff alleges that Judge Gonzales wrongfully sealed court

Clark County’s Eighth District Court & Court Executive Officer Grierson – Plaintiff alleges

Nevada Commission on Judicial Discipline and Executive Director Sarnowski – Plaintiff

Nevada Supreme Court – Plaintiff alleges that the Court wrongfully requested that the

San Francisco Superior Court Judges Woolard and Giorgi – Plaintiff alleges that Judge

3

1

Woolard confirmed an arbitration award against Mr. Missud’s evidence of fraud in the arbitration

2

proceedings. FAC at 14. Judge Giorgi then denied a motion for reconsideration of Judge Woolard’s

3

decision. Id. Judge Giorgi also denied a motion to vacate based on fraud an order in favor of

4

Horton in San Francisco Superior Court case CPF-10-510876, and a later motion for

5

reconsideration. FAC at 15. Mr. Missud states that her failure to consider his conclusive evidence

6

renders her biased. Id. at 15-16.

7

•

8

2625, another case by Plaintiff against Horton, dismissing his case for lack of personal jurisdiction

9

and failing to consider certain evidence he submitted, were incorrect and evinced bias in favor of

U.S. District Court Judge Armstrong – Plaintiff alleges that Judge Armstrong’s rulings in 07-

Horton. FAC at 17-18.

11
For the Northern District of California

United States District Court

10

•

12

and DHI’s request for arbitration in a suit against them by five class action representatives in San

13

Diego, 08-592-RBB, on the basis of bias. FAC at 19.

14

•

15

summary judgment in favor of Horton in a suit filed by a different plaintiff unrelated to Mr. Missud.

16

FAC at 21-22.

U.S. District Court Judge Roger Benitez – Plaintiff alleges that Judge Benitez granted Horton

U.S. District Court Judge Hunt – Plaintiff alleges that Judge Hunt wrongfully granted

17

Plaintiff asserts that Horton has essentially purchased cooperation from each of these

18

Defendants. Mr. Missud also includes allegations of corruption among Texas officials, not named as

19

Defendants in this complaint. See FAC at 22-25.3 Plaintiff further alleges that California Superior

20

Court Mediator/Arbitrator Michael Carbone – also not named in this action – dismissed Mr.

21

Missud’s arbitration case against Allstate Insurance on the basis of bias toward a repeat client. FAC

22

at 13. Mr. Missud summarily connects this particular arbitration decision to allegations of arbitral

23

fraud in other courts and in the media without any factual allegations as to how his particular case

24

was improper. He requests disgorgement of profits, restitution, treble damages, injunctive relief, an

25

order vacating prior judgments in other courts in favor of Horton, attorney’s fees and costs, and

26

prejudgment interest. FAC at 28.

27
3

28

Mr. Missud also included claims against the SEC, SEC Chairwoman Mary Shapiro, and
the United States, but those parties have now been severed from this case. See Docket No. 52.

4

1

On December 1, 2011, Defendant Horton filed a motion to dismiss Plaintiff’s complaint

conveniens. Docket No. 37. On December 5, 2011, Judge Ryu issued an order to show cause why

4

the Court should not dismiss Judicial Defendants4 on grounds of judicial immunity. Docket No. 41.

5

On December 22, 2011, Judge Ryu further ordered Plaintiff to show cause why the Court should not

6

dismiss Unserved Defendants5 on the grounds of lack of service under Rule 4(m). Docket No. 49.

7

After reviewing the parties’ submissions as to each of these issues, Judge Ryu issued an R&R

8

recommending: (1) that Defendant Horton’s motion to dismiss for lack of personal jurisdiction be

9

granted; (2) that Plaintiff’s complaint be dismissed with prejudice as to Judicial Defendants on the

10

basis of judicial immunity; and (3) that Plaintiff’s complaint be dismissed without prejudice as to

11
For the Northern District of California

against it for lack of personal jurisdiction, or in the alternative, on the grounds of forum non

3

United States District Court

2

Unserved Defendants on the basis of Plaintiff’s failure to serve them within 120 days pursuant to

12

Rule 4(m).

13

Plaintiff objected to Judge Ryu’s R&R and filed voluminous documents with this Court,

14

including several Requests for Judicial Notice. See Docket Nos. 58, 63, 69, 71, 73, 74, 79-81, 83-

15

86. He has also filed requests for the Court to issue subpoenas and order U.S. Marshals to effect

16

service on Defendants. See Docket Nos. 55, 65.

17

Defendant Horton filed a Reply in support of Judge Ryu’s R&R, along with a motion to

18

declare Plaintiff a vexatious litigant, on January 25, 2012. Docket No. 59. Horton asserts that

19

Plaintiff has filed seven frivolous lawsuits against it in Nevada and California state and federal

20

courts since 2005, and that previous sanctions have not deterred Plaintiff from filing additional

21

frivolous suits and engaging in abusive and harassing litigation tactics. Horton requests a

22
4

23
24
25
26
27

Special Magistrate Curtis Coltrane of Beaufort County, South Carolina; Court Clerk
Steven Grierson and Judge Elizabeth Gonzales of the Clark County Courts of Nevada; Discovery
Commissioner Bonnie Bulla of Nevada’s Eighth Judicial District Court; Chief Justice Nancy M.
Saiita and Justices Michael L. Douglas, James W. Hardesty, Kristina Pickering, Mark Gibbons,
Michael Cherry, and Ron Parraguirre of the Supreme Court of Nevada; San Francisco Superior
Court Judges Charlotte Woolard and Loretta Giorgi; Judge Saundra Armstrong of the U.S. District
Court for the Northern District of California; Judge Roger Hunt of the U.S. District Court for the
District of Nevada; Judge Roger Benitez of the U.S. District Court for the Southern District of
California; the Nevada Supreme Court; and the Eighth Judicial District Court of County of Clark.
5

28

State of Nevada, Susan Eckhardt, David Sarnowski, the Nevada State Bar, and Constance

Akridge.

5

1

declaration that Mr. Missud is a vexatious litigant and an order requiring him to: (1) post Security of

2

Costs in this action in the amount of $50,000, absent which the complaint would be subject to

3

dismissal with prejudice; (2) obtain pre-filing permission before filing any actions on his behalf or

4

on behalf of his spouse, Julie Missud, if those complaints name as parties Horton, DHI, their

5

affiliates, their employees, and their attorneys or other individuals associated with this action.

6

Defendant requests that Plaintiff be ordered to provide a copy of any proposed complaint along with

7

a letter requesting that the complaint be filed and copies of the Nevada State Court orders finding

8

him in contempt and sanctioning him, proof of satisfaction of the Judgments of Sanctions against

9

him, and a copy of this Court’s order in this case; (3) post Security of Costs in any future action
against the Parties in this matter, in an amount to be determined by this Court; and (4) pay sanctions

11
For the Northern District of California

United States District Court

10

in an amount determined by this Court and report said sanctions to the State Bar for any appropriate

12

disciplinary review due to his violations of Local Rule 11-4. Defendant also suggests a possible

13

order requiring Plaintiff to complete anger management and ethics continuing education. Finally,

14

Defendant proposes that any violation of the pre-filing order would expose Plaintiff to a contempt

15

hearing and injunctive relief consistent with the order, and that any action filed in violation of the

16

order be subject to dismissal. See Docket No. 59 at 17-18. Plaintiff opposes Defendant’s motion to

17

declare him a Vexatious Litigant. Docket No. 62.

18
19
20

II.
A.

DISCUSSION

Judge Ryu’s Report and Recommendation
Judge Ryu recommends dismissing Plaintiff Missud’s complaint as against all Defendants

21

on the basis of (1) lack of personal jurisdiction as against Defendant DR Horton; (2) judicial

22

immunity as against the Judicial Defendants; and (3) failure to effect proper service of process as

23

against Defendants State of Nevada, Susan Eckhardt, David Sarnowski, the Nevada State Bar, and

24

Constance Akridge. R&R, Docket No. 53, at 1-2. The Court ADOPTS Judge Ryu’s R&R as

25

modified herein for the reasons set forth below.

26

1.

27

The Court adopts Judge Ryu’s R&R with respect to Defendant Horton in its entirety. Mr.

28

Personal Jurisdiction – Defendant Horton

Missud fails to provide any basis for challenging Magistrate Judge Ryu’s conclusion that Horton has

6

1

no contacts with California that would give rise to personal jurisdiction. See R&R, Docket No. 53,

2

at 6-7 (concluding that filing a state court judgment in another state does not confer jurisdiction; that

3

the Court cannot treat Plaintiff’s allegations as to DHI’s contacts with California as relevant to

4

Horton’s contacts because the two are “distinct legal entities” and DHI is a non-party; and that

5

Plaintiff has failed to produce evidence of Horton’s contacts). Judge Ryu’s conclusion is also in

6

accord with the numerous other state and federal courts in California in which Mr. Missud has

7

attempted to bring suit against Horton. Those courts have concluded that they lack personal

8

jurisdiction over Defendant Horton. See, e.g., Missud v. D.R. Horton, et al., U.S. District Court for

9

the Northern District of California, C-07-2625 SBA, Defendant’s RJN, Docket No. 61, Ex. 6
(dismissing the action for lack of personal jurisdiction and forum non conveniens); Missud v. D.R.

11
For the Northern District of California

United States District Court

10

Horton, et al., San Francisco Superior Court, CGC 05-447499, Defendant’s RJN, Docket No. 61,

12

Ex. 2-4 (finding lack of personal jurisdiction with respect to Defendant Horton); Missud v. D.R.

13

Horton, et al., San Francisco Superior Court, CGC 06-457207, Defendant’s RJN, Docket No. 61,

14

Ex. 5 (dismissing action without prejudice for lack of personal jurisdiction).

15

2.

16

Judge Ryu recommends dismissing Plaintiff’s complaint against the Judicial Defendants on

Judicial Immunity – Judicial Defendants

17

the basis of judicial immunity. R&R at 3 (“Judges and ‘individuals necessary to the judicial

18

process’ at the state and federal levels are ‘generally immune from civil liability under [§] 1983.’”)

19

(quoting Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 923 (9th Cir. 2004) (citations and quotation

20

marks omitted); Meek v. Cnty. of Riverside, 183 F.3d 962, 965 (9th Cir. 1999) (citing Mireles v.

21

Waco, 502 U.S. 9, 9-10 (1991))). As Judge Ryu concluded, Plaintiff provided no evidence to

22

support a conclusion that Judicial Defendants acted “in the clear absence of all jurisdiction” so as to

23

strip them of judicial immunity. See Sadoski v. Mosley, 435 F.3d 1076, 1079 (9th Cir. 2006)

24

(quoting Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (quotation marks omitted)). While

25

Plaintiff asserts that they acted without authority, he fails to explain how they have done so. See

26

Obj. at 3. In fact, Plaintiff’s own allegations evince otherwise, as his complaint about Judicial

27

Defendants is not that they had no authority to act, but that they made the wrong decisions. Id. at 3-

28

4. Judge Hamilton has just so ruled in another case involving Plaintiff, filed against some of the

7

1

same Judicial Defendants as the instant case. See Missud v. San Francisco Superior Court et al., 11-

2

1856 PJH, Docket No. 54, at (granting motion to dismiss complaint against, inter alia, Judges

3

Woolard and Giorgi, among other judicial defendants not named in this action, on the basis of

4

judicial immunity). Some of the conduct alleged in this case against Judges Woolard and Giorgi –

5

their confirmation of an arbitration award in favor of Allstate Insurance against Plaintiff – is also

6

alleged in Plaintiff’s case before Judge Hamilton and covered by her ruling on judicial immunity.

7

Compare 11-3567 EMC, FAC at 14, with 11-1856 PJH, Docket No. 19, at 6-8.

8

It is worth noting that, unlike federal judges who are absolutely immune from all suits, see

very limited circumstances, be subject to suit under § 1983. See 42 U.S.C. § 1983 (as amended by

11
For the Northern District of California

Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1394 (9th Cir. 1987), state judges may, in

10

United States District Court

9

Pub. L. 104-317, Title III, § 309(c), 110 Stat. 3853 (Oct. 19, 1996)) (“[I]n any action brought against

12

a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief

13

shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”);

14

Flanders v. Snyder Bromley, No. 09-01623 CMA-KMT, 2010 WL 2650028, at *7 (D. Colo., Jun.

15

30, 2010) (“If these special circumstances do not exist in a § 1983 action, absolute judicial immunity

16

bars claims for injunctive relief.”) (citing Lawrence v. Kuenhold, 271 F. App’x. 763, 766 n. 6 (10th

17

Cir. 2008)); Brandon E. ex rel. Listenbee v. Reynolds, 201 F.3d 194, 197 (3d Cir. 2000) (same).

18

Plaintiff has made no showing that those circumstances obtain here.

19

Even if state Judicial Defendants were not protected by judicial immunity, Plaintiff’s claims

20

would still be barred for two reasons. First, Plaintiff’s claims are barred by the Rooker-Feldman

21

doctrine because he seeks to overrule previous state court rulings against him. “[A] federal district

22

court does not have subject matter jurisdiction to hear a direct appeal from the final judgment of a

23

state court.” Manufactured Home Communities, Inc. v. City of San Jose, 420 F.3d 1022, 1029 (9th

24

Cir. 2005). “As the Ninth Circuit has explained, Rooker-Feldman prohibits a federal district court

25

from exercising jurisdiction over a suit that is a ‘de facto appeal from a state court judgment.’”

26

Khanna v. State Bar of California, 505 F. Supp. 2d 633, 640-41 (N.D. Cal. 2007) (quoting

27

Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004)); Cunningham v. Mahoney, No. C 10-

28

01182 JSW, 2010 WL 2560488, at *3 (N.D. Cal. June 22, 2010). Here, Plaintiff is essentially

8

1

appealing various state court decisions rejecting his arguments and purported evidence of corruption

2

on the part of Defendant Horton and the Judicial Defendants. Because Plaintiff complains “of a

3

legal wrong allegedly committed by the state court and seeks relief from the judgment of that court,”

4

this Court lacks jurisdiction to consider his claims. Khanna, 505 F. Supp. 2d at 641 (quoting Noel v.

5

Hall, 341 F.3d 1148, 1163 (9th Cir. 2003)).

6

Second, to the extent that any of Plaintiff’s claims against Judicial Defendants would survive

7

both judicial immunity and Rooker-Feldman, Plaintiff has wholly failed to state a claim as against

8

any Judicial Defendant. Instead of facts, Plaintiff recounts in detail the Judicial Defendants’

9

decisions against him and then concludes, ipso facto, that they are corrupt. Such allegations are
entirely conclusory and therefore lacking in merit. See Moss v. United States Secret Serv., 572 F.3d

11
For the Northern District of California

United States District Court

10

962, 969, 971 (9th Cir. 2009) (assigning no weight to conclusory allegations); see also Bell Atlantic

12

Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). As Judge Ryu

13

noted, Plaintiff’s FAC “does not set forth clear causes of action, but lambastes prior judicial

14

decisions against Plaintiff, corporate influence in American politics, and pervasive corruption in the

15

judiciaries and regulatory agencies of the United States, California, and Nevada.” R&R at 2 (citing

16

FAC at 5-28). Although a pro se plaintiff would ordinarily be given some degree of leniency, in the

17

instant case, Plaintiff is an attorney who has filed numerous similar claims. See Missud v. San

18

Francisco Sup. Ct., No. 11-1856 PJH (N.D. Cal. April 18, 2011); Missud v. D.R. Horton, Inc., No.

19

10-235-SI (N.D. Cal. Jan. 19, 2010); Missud v. D.R. Horton, Inc., No. 07-2625-SBA (N.D. Cal. filed

20

May 17, 2007); Missud v. D.R. Horton, Inc., No. A551662 (Nev. Dist. Ct. filed Nov. 13, 2007);

21

Missud v. D.R. Horton, Inc., No. 06-457207 (Cal. Super. Ct. filed Oct. 23, 2006); Missud v. D.R.

22

Horton, Inc., No. 05-447499 (Cal. Super. Ct. filed Dec. 9, 2005); Missud v. D.R. Horton, Inc., No.

23

05-444247 (Cal. Super. Ct. filed Aug. 22, 2005). In each one, Plaintiff has flouted the requirements

24

of Rule 11 and made sweeping, frivolous accusations without factual support. See, e.g., Missud v.

25

San Francisco Sup. Ct., No. 11-1856 PJH, Docket No. 54, at 2 (N.D. Cal. Feb. 13, 2012) (“[T]he

26

details of plaintiff’s allegations are elusive; the complaint is loaded with vague, conclusory, and

27

hyperbolic statements, as well as what appear to be nonsensical and far-flung facts. The court also

28

notes that some of the allegations are quite reckless given plaintiff’s status as an officer of the very

9

1

court he is suing.”). Accordingly, dismissal with prejudice as against the Judicial Defendants is

2

warranted.

3

3.

4

Judge Ryu recommends dismissing Plaintiff’s complaint as against the Unserved

Service of Process – Unserved Defendants

5

Defendants6 without prejudice based on Plaintiff’s failure to serve them within 120 days as required

6

by Federal Rule of Civil Procedure 4(m). The Court finds the report correct, well-reasoned, and

7

thorough, and ADOPTS the R&R in full as to Unserved Defendants.

8

B.

Plaintiff’s Requests for Judicial Notice

of documents. Plaintiff asks the Court to take judicial notice of documents that, e.g., “provide proof

11
For the Northern District of California

Plaintiff has filed sixteen requests for judicial notice in this action, totaling over 1,300 pages

10

United States District Court

9

of ALL the allegations in the [FAC].” Plaintiff’s Request for Judicial Notice (“RJN”), Docket No.

12

58, at 2. While many of these documents (i.e., filings and orders in other court proceedings) are

13

judicially noticeable for certain purposes, such as to demonstrate the existence of other court

14

proceedings, they are not judicially noticeable for Mr. Missud’s purpose, which is to demonstrate

15

that his arguments and allegations against Defendants are true.7 See Fed. R. Evid. 201. Other

16

documents, such as articles about judicial fund-raising, are not judicially noticeable for any purpose,

17

much less Plaintiff’s proffered purpose of demonstrating improper conduct on the part of any

18

Defendant. See, e.g., Docket No. 58 at Chapter 5. As with Mr. Missud’s other filings, he equates

19

denial of any of his requests with corruption, such that the more he loses, the greater the proof of

20

corruption he has purportedly unveiled. These documents are not judicially noticeable as any kind

21

of substantive proof of his claims.

22

Accordingly, the Court GRANTS Plaintiff’s Request for Judicial Notice as to the official

23

court documents from other proceedings, and DENIES the request as to all other documents. In

24

addition, the Court emphasizes that the fact it takes judicial notice of court documents does not mean

25
26
27

6

State of Nevada, Susan Eckhardt, David Sarnowski, the Nevada State Bar, and Constance

Akridge.
7

28

In addition, many of the documents contain Mr. Missud’s own annotations, which are
argument and not judicially noticeable.

10

1

that it agrees with Plaintiff’s characterization of the meaning of those documents.

2

C.

3

Requests for Subpoenas and Marshal Service
Mr. Missud has filed a request for subpoenas due to what he describes as officials’ disregard

production of video evidence, rulings, and other documents from the Nevada District Court which

6

Mr. Missud contends would demonstrate Judge Gonzales’s bias. See Docket No. 55-2. Similarly, at

7

Docket No. 73, Plaintiff requests judicial notice of the fact that the California Superior Court has

8

acknowledged receipt of his subpoenas. However, the document to which Mr. Missud points is a

9

letter from the Superior Court’s attorney noting that a subpoena is unnecessary to obtain transcripts

10

of proceedings. Instead, the letter provides contact information for the court reporters from whom

11
For the Northern District of California

of his previous subpoenas. Specifically, he requests that the Court sign subpoenas demanding

5

United States District Court

4

Mr. Missud can request the transcripts he seeks. See id. Ex. 1.

12
13

Because the Court has already dismissed Plaintiff’s claims against Judge Gonzales with
prejudice as described above, the Court DENIES Plaintiff’s request as moot.

14

Plaintiff also requests that this Court appoint federal Marshals to serve the Summons and

15

complaint on state judges and officials. See Docket No. 55-1, 65. Plaintiff cites to Federal Rule of

16

Civil Procedure 4(c)(3), which gives the Court discretion to order U.S. Marshals to effect service.

17

However, most of the defendants on whom Plaintiff requests service are already covered by the

18

Court’s ruling above to dismiss the complaint with prejudice as against Judicial Defendants. Indeed,

19

Plaintiff’s request at Docket No. 65 requests service only on Judge Gonzales and Court CEO

20

Grierson. Moreover, with respect to the Unserved Defendants, as Judge Ryu found, Plaintiff has

21

failed to show any cause for why he has failed to properly serve Defendants prior to the Rule 4(m)

22

deadline. Plaintiff’s requests for service are well past the 120-day deadline imposed by Rule 4(m).

23

Accordingly, the Court DENIES Plaintiff’s requests to appoint U.S. Marshals to effect service on

24

any Defendants.

25

D.

26

Motion to Declare Plaintiff a Vexatious Litigant
Defendant Horton has filed a motion to declare Plaintiff a vexatious litigant and to impose a

27

pre-filing order on him. “The All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the

28

inherent power to enter pre-filing orders against vexatious litigants. However, such pre-filing orders

11

1

are an extreme remedy that should rarely be used.” Molski v. Evergreen Dynasty Corp., 500 F.3d

2

1047, 1057 (9th Cir. 2007) (internal citations omitted). A pre-filing review order is appropriate if

3

(1) the plaintiff is given adequate notice and an opportunity to oppose the order; (2) the Court

4

compiles an adequate record for review; (3) the Court makes substantive findings as to the frivolous

5

or harassing nature of the litigant’s actions; and (4) the order is narrowly tailored “to closely fit the

6

specific vice encountered.” Id. (quoting De Long v. Hennessey, 912 F.2d 1144, 1145-48 (9th Cir.

7

1990)); see also Johns v. Town of Los Gatos, 834 F. Supp. 1230, 1232 (N.D. Cal. 1993) (applying

8

De Long).

9

1.

Notice

In the instant case, the Court finds that the notice requirement has been satisfied, as

11
For the Northern District of California

United States District Court

10

Defendant Horton’s motion to declare Plaintiff a Vexatious Litigant provided him with notice, and

12

he has received an opportunity to be heard by filing his opposition to said motion and through the

13

hearing set for March 9, 2012. See Molski, 500 F.3d at 1057 (“Molski had fair notice of the

14

possibility that he might be declared a vexatious litigant . . . because the district court’s order was

15

prompted by a motion filed by the defendants and served on Molski’s counsel. Also, Molski had the

16

opportunity to oppose the motion, both in writing and at a hearing.”).

17

2.

18

The second requirement is that the Court compile an adequate record for review. “An

Adequate Record

19

adequate record for review should include a listing of all the cases and motions that led the district

20

court to conclude that a vexatious litigant order was needed.” Id. (quoting De Long, 912 F.2d at

21

1147).

22

In the instant case, Mr. Missud has been involved in the following prior actions against

23

Defendant Horton, for which the record contains orders and filings supplied by the parties:

24

•

25

RJN, Docket No. 61, Ex. 1. The court sustained a motion to quash service of summons and

26

complaint on grounds of forum non conveniens and dismissed the case without prejudice on

27

November 9, 2005.

28

•

Missud v. D.R. Horton, et al., CGC 05-444247, San Francisco Superior Court. Defendant’s

Missud v. D.R. Horton, et al., CGC 05-447499, San Francisco Superior Court. Defendant’s

12

1

RJN, Docket No. 61, Ex. 2. The court sustained a motion to quash service of summons and

2

complaint on grounds of lack of personal jurisdiction against Horton, sustained the motion on

3

grounds of failure to effect proper service as to the remaining defendants (including DHI), and

4

dismissed the case against Horton without prejudice on April 25, 2006. Id. The court quashed

5

service of summons as against the remaining defendants again on September 13, 2006. Defendant’s

6

RJN, Docket No. 61, Ex. 3. Finally, the court dismissed the action without prejudice as against the

7

remaining defendants based on lack of personal jurisdiction on January 11, 2007. Defendant’s RJN,

8

Docket No. 61, Ex. 4.

9

•

Missud v. D.R. Horton, et al., CGC 06-457207, San Francisco Superior Court. Defendant’s

RJN, Docket No. 61, Ex. 5. On February 15, 2007, the court dismissed the action without prejudice

11
For the Northern District of California

United States District Court

10

against all defendants for lack of personal jurisdiction and took defendants’ motion to declare Mr.

12

Missud a vexatious litigant off calendar in light of its dismissal. Id.

13

•

14

District of California. Defendant’s RJN, Docket No. 61, Ex. 6. On October 30, 2007, the court

15

dismissed the action for lack of personal jurisdiction, forum non conveniens, and statute of

16

limitations. The court also issued an order noting that Plaintiff had submitted numerous post-

17

judgment documents to the court that failed to comply with the applicable Local Rules.

18

Defendant’s RJN, Docket No. 61, Ex. 9. The court therefore ordered Plaintiff to comply with said

19

rules, and authorized the Case Systems Administrator to “return all non-conforming papers to

20

Plaintiff.” Id.

21

•

22

Defendant’s RJN, Docket No. 61, Ex. 7. In this case, the court held Mr. Missud in contempt for

23

knowingly and intentionally violating the terms of a stipulated protective order and for sending

24

threatening communications to witnesses and counsel involved in the litigation. Id. at 2. The court

25

granted defendants an award of attorney’s fees and costs in conjunction with enforcing the

26

protective order and the contempt proceedings, in the amount of over $48,000. Id. at 5. The court

27

justified its fee award in part on the basis that Mr. Missud “continuously and unrelentingly refused

28

to comply with this Court’s various Orders” and that he had engaged in “continuous improper

Missud v. D.R. Horton, et al., C 07-2625 SBA, United States District Court for the Northern

Missud v. D.R. Horton, et al., No. A551662, Nevada District Court, Clark County.

13

1

conduct,” which drove up the cost of litigation. Id. at 6-7. Excerpts of the transcript from the show

2

cause proceedings before Judge Gonzales – in which Mr. Missud was instructed to show cause why

3

he should not be sanctioned – as well as Judge Gonzales’s previous order finding Mr. Missud in

4

contempt, are also in the record, Plaintiff’s Request for Judicial Notice (“RJN”), Docket No. 58,

5

Chapter 4, as well as transcripts of previous proceedings in the matter before Commissioner Bulla,

6

RJN, Docket No. 84, Ex. 3. On appeal, the Supreme Court denied Mr. Missud’s motion for a stay,

7

motion for a moratorium on all nonjudicial foreclosures, and motion to compel discovery on June

8

20, 2011, noting that Plaintiff had not sought a stay in the district court and that such relief was

9

unwarranted nonetheless. Missud v. D.R. Horton, et al., No. 56502, Nevada Supreme Court.
Defendant’s RJN, Docket No. 61, Ex. 10. In addition, the court noted that “Mr. Missud’s filings in

11
For the Northern District of California

United States District Court

10

this matter have been voluminous and meritless thus far. We caution him that further abuse will

12

result in the imposition of sanctions.” Id. The Supreme Court later affirmed the District Court’s

13

order imposing sanctions, finding that Mr. and Mrs. Missud had failed to “raise any challenge on

14

appeal as to the district court’s findings that appellants engaged in abusive litigation tactics by

15

contacting and threatening [Horton’s] employees.” Plaintiff’s RJN, Docket No. 58, Chapter 5,

16

November 22, 2011 Order at 2. The Court rejected Mr. Missud’s claims that the district court failed

17

to consider his evidence, that the court violated his due process rights, and that the order was

18

procured by fraud. Id. It later denied rehearing of Mr. Missud’s claims in response to his petition

19

for rehearing en banc. Plaintiff’s RJN, Docket No. 74, February 24, 2012 Order.

20

•

21

District of California. Defendant’s RJN, Docket No. 61, Ex. 8. On April 2, 2010, Judge Illston

22

dismissed Defendant Judges Armstrong, Benitez, Edenfield, and Redinger with prejudice on the

23

grounds of absolute judicial immunity. The court dismissed Plaintiff’s remaining claims against

24

other defendants without prejudice based on his voluntary dismissal.

25

•

26

Defendant’s RJN, Docket No. 61, Ex. 12. Horton initiated this case to domesticate the Nevada State

27

Court judgment to California. See Docket No. 59 at 14-15. The Superior Court, Judge Giorgi,

28

denied Mr. Missud’s motion to vacate the Nevada judgment. See Plaintiff’s RJN, Docket No. 58,

Missud v. D.R. Horton, et al., No. 10-235 SI, United States District Court for the Northern

Missud v. D.R. Horton, et al., No. CPF 10-510876, San Francisco Superior Court. See

14

2011 proceedings regarding motion for reconsideration). In case no. No. A131566, the Court of

3

Appeal, First Appellate District, struck a “Declaration in Support of Already Registered Evidence”

4

which Plaintiff claimed listed “examples of ‘official and judicial corruption’ supported by citations

5

to specified internet addresses.” Defendant’s RJN, Docket No. 61, Ex. 12. The court struck the

6

declaration as unauthorized under the rules of court. Id. The court later affirmed the Superior

7

Court’s denial of Mr. Missud’s motion to vacate the Nevada state court judgment. Defendant’s

8

RJN, Docket No. 61, Ex. 12. The Court of Appeal noted numerous “procedural inadequacies” in

9

Plaintiff’s submissions to the Court. Id. at 2. Nonetheless, considering the appeal on the merits, the

10

Court found that “Missud’s briefs contain no comprehensible legal argument as to why the order he

11
For the Northern District of California

Chapter 6 (partial transcript of January 19, 2011 proceedings); see also id. (transcript of June 30,

2

United States District Court

1

challenges should be reversed.” Id. On further appeal in Case No. S1983532, the California

12

Supreme Court denied Mr. Missud’s request for judicial notice and petition for writ of mandate. See

13

Defendant’s RJN, Docket No. 61, Ex. 13; see also Plaintiff’s RJN, Docket No. 58, Chapter 10

14

(attaching petition for writ of mandate).

15

•

16

District of California. In the instant case, Plaintiff again attempts to subject Horton to personal

17

jurisdiction in California, despite the fact that numerous courts have already rejected such claims

18

and despite the fact that he offers no evidence of Horton’s contacts with California that would be

19

sufficient to confer general or specific jurisdiction. In addition, as other courts have noted, Plaintiff

20

has continued to file voluminous and procedurally improper documents with this Court, including

21

successive requests for judicial notice discussed further below.

22

Missud v. D.R. Horton, et al., No. 11-3567 EMC, U.S. District Court for the Northern

Accordingly, given the record compiled from Mr. Missud’s prior actions against Horton,

23

listed above, and the record on file in the case at bar, the Court concludes the record is adequate for

24

review. Molski, 500 F.3d at 1057.

25

3.

26

Under the third prong, the Court must “look at both the number and content of the filings as

Substantive Findings as to the Frivolous or Harassing Nature of Plaintiff’s Actions

27

indicia of the frivolousness of the litigant’s claims.” Molski, 500 F.3d at 1059 (citations and

28

quotation marks omitted). “An injunction cannot issue merely upon a showing of litigiousness. The

15

1

plaintiff’s claims must not only be numerous, but also be patently without merit.” Id. (citations and

2

quotation marks omitted). In the instant case, the Court finds that there is a sufficient basis to

3

conclude that Mr. Missud’s litigation against Defendant Horton and its affiliates, subsidiaries, and

4

employees has been abusive and frivolous.

5

First, Plaintiff’s claims against Horton have lacked any credible factual basis and Plaintiff

problem with Mr. Missud’s tautological claims against Horton succinctly: “[H]e alleges that he lost

8

his prior six cases against D.R. Horton because the courts were ‘corrupt.’ As proof, he points to the

9

fact that he lost these six prior cases.” Reply, Docket No. 70, at 6. Plaintiff’s failure to comply with

10

Rule 11 and Civil Rule 11-4 is all the more troubling given his status as a member of the California

11
For the Northern District of California

has refused to comply with Court rules and procedures in making his claims. Defendant sums up the

7

United States District Court

6

Bar. In the instant case, for example, besides his citation to § 1983 and general references to

12

racketeering, he has failed to provide Horton with notice of any concrete claims he raises against it.

13

Instead, his complaint is filled with summary accusations of corruption. See, e.g., FAC at 4 (stating

14

that Horton has “caused thousands of consumers’ financial evisceration through illegal means and

15

by corrupting public figures”); Objection to R&R, Docket No. 55, at 2 (“This has already become a

16

landmark case. It already showcases absolute corruption of 23 judges made possible by the Citizen$-

17

United ruling which has paved a long, tortuous path for ordinary, real, flesh-and-blood, non-

18

corporate, fleece-able, citizen-litigants.”); id. at 5 (stating that in comparison the Defendants in this

19

case, “Not even Hosni Mubarak financially raped Egypt quite so much.”); id. at 12 (“Billion dollar

20

DHI was not content with just the purchase of Nevada’s di$trict and $upreme court$. DHI also had

21

to prove that it could buy California’s.”). These are just a small sampling of Plaintiff’s unsupported

22

accusations against Horton and other Defendants.

23

Plaintiff’s opposition, Docket No. 67, continues this tactic, as he merely restates his

24

conclusory claims that Horton has “bought” numerous federal and state judges and public officials,

25

with no factual allegations to support such a claim. See, e.g., Opp. at 6 (alleging that DHI “bought”

26

Commissioner Bulla and Judge Gonzales, with no support other than the fact that those officials

27

ruled against Mr. Missud); Opp. at 7 (speculating that Horton has wired money to the Cayman

28

Islands as payment to corrupt judges). He also seems to assume that one decision against Horton in

16

1

an unrelated case would be sufficient to constitute “proof” of his own claims. See, e.g., Opp. at 7

2

(faulting Judge Armstrong for disregarding a verdict against Horton in a different case in Nevada

3

state court, in which Mr. Missud was not involved).

4

As another example, Mr. Missud filed a request for judicial notice in conjunction with his

5

opposition to Defendant’s motion to declare him a vexatious litigant. Docket No. 63. This RJN

6

attaches numerous documents – including purported sales numbers for DR Horton and its

7

subsidiaries, waivers of service of summons from prior cases, a National Labor Relations Board

8

order from an unrelated case, the stipulated protective order in the Nevada state court case,

9

transcripts of proceedings in prior cases, affidavits of service of subpoenas, and court orders in prior
cases – that are either unauthenticated, unrelated to the present action, and/or not judicially

11
For the Northern District of California

United States District Court

10

noticeable for Mr. Missud’s supposed purpose of demonstrating corruption and conspiracy. These

12

documents merely provide further support to Horton’s claim that Mr. Missud’s tactics are abusive

13

and that he routinely violates the Local Rules8 and Federal Rules of Civil Procedure.9

14
8

15

Local Rule 11-4, Standards of Professional Conduct, provides in relevant part:
(a)
Duties and Responsibilities. Every member of the bar of this
Court and any attorney permitted to practice in this Court under Civil
L.R. 11 must:

16
17

(1)
Be familiar and comply with the standards of
professional conduct required of members of the State
Bar of California;

18
19
20

(2)

21

(3)
Maintain respect due to courts of justice and
judicial officers;

22

(4)
Practice with the honesty, care, and decorum
required for the fair and efficient administration of
justice; [and]

23
24

(5)
Discharge his or her obligations to his or her
client and the Court.

25
9

26
27
28

Comply with the Local Rules of this Court;

Rule 11 provides in pertinent part as follows:
(b)
Representations to the Court. By presenting to the court a
pleading, written motion, or other paper-whether by signing, filing,
submitting, or later advocating it-an attorney or unrepresented party
certifies that to the best of the person’s knowledge, information, and

17

1

These tactics are similar to those for which the Nevada courts previously sanctioned Mr.

2

Missud. See Defendant’s RJN, Docket No. 61, Ex. 7, at 6 (Nevada District Court sanctioned Mr.

3

Missud for “continuously and unrelentingly refus[ing] to comply with this Court’s various Orders”

4

and for his “continuous improper conduct”). In addition, California state courts have noted Mr.

5

Missud’s failure to comply with the rules and his refusal to provide cogent legal and factual bases

6

for his arguments. See id. Ex. 12 at 2 (California Court of Appeal noted numerous “procedural

7

inadequacies” in Plaintiff’s submissions to the Court, and found on the merits that “Missud’s briefs

8

contain no comprehensible legal argument as to why the order he challenges should be reversed.”).

9

Judge Armstrong has also noted Plaintiff’s unwillingness to comply with Court rules in this District.
See Order, 07-2625-SBA, Docket No. 54 (noting that Missud “has submitted numerous papers to

11
For the Northern District of California

United States District Court

10

this Court which do not conform to the local rules governing the form and manner of papers,” and

12

ordering Plaintiff to comply with the Local Rules). Accordingly, Plaintiff’s failure to provide

13

factual support for his claims and failure to comply with Court rules weighs in favor of declaring

14

him a vexatious litigant. See Molski, 500 F.3d at 1059 (upholding district court’s conclusion “that

15

the large number of complaints filed by Molski containing false or exaggerated allegations of injury

16
17

belief, formed after an inquiry reasonable under the circumstances:

18

(1)
it is not being presented for any improper
purpose, such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation;

19
20

(2)
the claims, defenses, and other legal contentions
are warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing
existing law or for establishing new law;

21
22

(3)
the factual contentions have evidentiary support
or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for
further investigation or discovery; and

23
24
25
26
27
28

....
(c)

Sanctions.
(1)
In General. If, after notice and a reasonable
opportunity to respond, the court determines that Rule
11(b) has been violated, the court may impose an
appropriate sanction on any attorney, law firm, or party
that violated the rule or is responsible for the violation.

18

1
2

[and] were [therefore] vexatious”).
Second, Mr. Missud appears to be motivated more by obtaining press for himself and

3

imposing expense on Horton than by any legitimate claim for relief. In addition to his own

4

representations to this Court in his filings, see Objection to R&R, Docket No. 55, at 2 (“Prior to

5

PACER registration this pleading was transmitted to over 500 syndicated media contacts in only

6

minutes.”), Horton provides copies of Plaintiff’s prior communications indicating an intent to harass

7

and increase expense for Horton. See Docket No. 59, Ex. A (fax from Mr. Missud to Horton counsel

8

Odou stating that his goal was to make things “horrendously expensive” for them and that he would

9

initiate as many class action lawsuits and investigations as possible, along with press notifications
designed to embarrass Defendant). Plaintiff does not dispute the authenticity of this communication,

11
For the Northern District of California

United States District Court

10

nor its meaning. See Opposition, Docket No. 67, at 20 (“If these matters have become ‘horrendously

12

expensive’ for DHI, then so be it.”). Defendant’s Reply attaches additional communications from

13

Plaintiff to attorneys and large media lists, attempting to gain traction for his cases in the press. See

14

Reply, Docket No. 70, Exs. A-C. Plaintiff’s apparent intent to harass Horton through litigation

15

regardless of how many times Horton prevails, see Opp. at 10 (stating that prior sanctions have not

16

deterred him), weighs in favor of designating him a vexatious litigant. See Rule 11(b)(1) (requiring

17

party to certify that filings with the Court are “not being presented for any improper purpose, such as

18

to harass, cause unnecessary delay, or needlessly increase the cost of litigation”); Eng v. Marcus &

19

Millichap Co., No. C 10-05050 CRB, 2011 WL 2175207, at *2 (N.D. Cal. June 3, 2011)

20

(considering fact that plaintiff filed suit the same day he had been declared a vexatious litigant in

21

another court, and fact that plaintiff had sent threatening emails to defendants, as probative of his

22

“improper purpose of harassing Defendants” and justification for declaring him a vexatious litigant).

23

Third, Plaintiff continues to attempt to sue Horton in California despite multiple court rulings

24

that Horton is not subject to personal jurisdiction in California. Such conduct is harassing. See

25

Zaldivar v. City of Los Angeles, 780 F.2d 823, 832 (9th Cir.1986) (“Without question, successive

26

complaints based upon propositions of law previously rejected may constitute harassment under

27

Rule 11.”); McMahon v. Pier 39 Ltd. Partnership, No. C03-00251 CRB, 2003 WL 22939233, at *6,

28

*8 (N.D. Cal. Dec. 5, 2003) (finding plaintiff had violated Rule 11 through harassing conduct and

19

1

repeatedly filing claims based on the same basic issues, and using Rule 11 violations as support for

2

declaring plaintiff a vexatious litigant).

3

Fourth, Plaintiff’s successive complaints have alleged similar misconduct against Horton and

4

other common defendants despite multiple court rulings against him. As noted above, all of Mr.

5

Missud’s actions involving Horton appear to relate, at bottom, to his dealings with Horton and DHI

6

in 2003 and 2004 in conjunction with his purchase of a home in Nevada and his allegations that

7

Horton and its affiliates committed fraud and tortuous misconduct against him at that time. See 07-

8

2625 SBA, Docket No. 38, at 1-3 (summarizing three California state court claims – two of which

9

alleged emotional distress claims and one of which alleged fraud and intentional misrepresentation
claims – and 2007 federal claim before Judge Armstrong alleging similar claims against same

11
For the Northern District of California

United States District Court

10

defendants). Judge Armstrong ruled that not only did California courts lack personal jurisdiction

12

over Horton and its affiliates, but also that Mr. Missud’s claims were barred by the statute of

13

limitations. Id. at 4-7, 8-10.

14

Rather than abandon his claims, however, Mr. Missud has simply ratcheted up his litigious

15

conduct in the aftermath of Judge Armstrong’s ruling, threatening her and other allegedly “corrupt”

16

judges with lawsuits based on their adverse rulings. See 07-2625 SBA, Docket No. 45 (filing post-

17

judgment letters accusing various judicial officers, including present Defendants Armstrong,

18

Benitez, and Coltrane, of corruption and threatening legal action against them); id. Docket No. 55

19

(post-judgment letter indicating his intent to file RICO claims against Horton for its apparent

20

conspiracy with judges). Plaintiff’s subsequent federal suits against Horton and various judicial

21

defendants have continued the same allegations of conspiracy and corruption. See 10-235 SI,

22

Docket No. 1 (alleging racketeering, corruption, whistle-blower retaliation, and various

23

constitutional claims against Horton and affiliates, as well as present Defendants Coltrane, Eckhardt,

24

Armstrong, and Benitez, among others). Although Judge Illston dismissed the federal judicial

25

defendants with prejudice based on judicial immunity, see id. Docket No. 47, Mr. Missud

26

nonetheless re-names Judges Armstrong and Benitez in the instant case. Indeed, Mr. Missud

27

confirmed at oral argument that sanctions against him have not and will not deter him from

28

continuing this course of conduct. Accordingly, Mr. Missud has demonstrated intent to continue

20

1

frivolously litigating against Defendant Horton and others in spite of judicial rulings against him.

2

Absent a pre-filing order, there is every indication from the record that Mr. Missud will continue to

3

harass Defendant Horton and its affiliates and employees.

4
5

Accordingly, the Court finds that Plaintiff’s conduct against Horton has been both frivolous
and harassing.

6

4.

7

As to the fourth factor, Defendant Horton requests an order requiring the following:

8

(1)

9

Post Security of Costs in this action in the amount of $50,000, absent which the

complaint would be subject to dismissal with prejudice;
(2)

Obtain pre-filing permission before filing any actions on his behalf or on behalf of his

11
For the Northern District of California

United States District Court

10

Narrowly Tailored Order

spouse, Julie Missud, if those complaints name as parties Horton, DHI, their affiliates, their

12

employees, and their attorneys or other individuals associated with this action. Defendant requests

13

that Plaintiff be ordered to provide a copy of any proposed complaint along with a letter requesting

14

that the complaint be filed and copies of the Nevada State Court orders finding him in contempt and

15

sanctioning him, proof of satisfaction of the Judgments of Sanctions against him, and a copy of this

16

Court’s order in this case;

17
18
19
20
21

(3)

Post Security of Costs in any future action against the Parties in this matter, in an

amount to be determined by this Court; and
(4)

Pay sanctions of at least $1,000 in an amount determined by this Court and report

said sanctions to the State Bar for any appropriate disciplinary review.
Defendant also suggests a possible order requiring Plaintiff to complete anger management

22

and ethics continuing education. Finally, Defendant proposes that any violation of the pre-filing

23

order would expose Plaintiff to a contempt hearing and injunctive relief consistent with the order,

24

and that any action filed in violation of the order be subject to dismissal.

25

Although Defendant’s requests are reasonable, they are more extreme than the orders the

26

Ninth Circuit found to be appropriately tailored in Molski. In Molski, the district court imposed a

27

pre-filing order that covered only “actions under Title III of the ADA in the Central District of

28

California” and subjected such claims to a pre-filing review. Molski, 500 F.3d at 1061; Cf. De Long,

21

1

912 F.2d at 1148 (finding an order preventing the plaintiff from filing any suit in a particular district

2

court overbroad). In the instant case, the Court finds that a narrow order requiring Plaintiff to obtain

3

pre-filing review of any new action he files or causes to be filed against Defendant Horton or its

4

affiliates/subsidiaries/employees in the Northern District of California is appropriate.

5

5.

6

Finally, the Court notes that a pre-filing order is also an appropriate sanction for attorney

Attorney Sanctions

pursuant to the court’s “inherent power to regulate abusive or bad-faith litigation”). Grounds for

9

sanctioning attorneys are similar to the bases discussed above for the vexatious litigant standard,

10

including findings that the attorney has “willful[ly] abuse[d] [] the judicial process,” engaged in

11
For the Northern District of California

misconduct. See Molski, 500 F.3d at 1062 (upholding a pre-filing order imposed against a law firm

8

United States District Court

7

“bad faith conduct during litigation,” “fil[ed] frivolous papers,” or “violat[ed] [] ethics rules.” Id. at

12

1063 (citations omitted). An attorney, like a potential vexatious litigant, must be given notice and

13

an opportunity to be heard before imposing sanctions, and the sanctions must be tailored to the

14

misconduct. Id. For the reasons stated above, Missud’s conduct qualifies for the Court’s

15

discretionary imposition of sanctions, including a pre-filing order. Thus, the Court’s power to

16

sanction attorney misconduct offers another independent grounds for its order.

17

Accordingly, Defendant’s motion to declare Plaintiff a vexatious litigant is GRANTED.

18

Plaintiff is adjudged a vexatious litigant and ordered to obtain leave of Court before filing or causing

19

to be filed any new action in this District against D.R. Horton or any of its affiliates (including DHI

20

Mortgage), subsidiaries, and/or employees.

21

III.

22
23

CONCLUSION

For the foregoing reasons, the Court orders as follows:
(1)

Magistrate Judge Ryu’s R&R is ADOPTED as modified herein. Plaintiff’s claims against

24

Defendant Horton are dismissed for lack of personal jurisdiction. Plaintiff’s claims against

25

the Judicial Defendants10 are dismissed with prejudice on the grounds of judicial immunity,

26
10

27
28

Special Magistrate Curtis Coltrane of Beaufort County, South Carolina; Court Clerk
Steven Grierson and Judge Elizabeth Gonzales of the Clark County Courts of Nevada; Discovery
Commissioner Bonnie Bulla of Nevada’s Eighth Judicial District Court; Chief Justice Nancy M.
Saiita and Justices Michael L. Douglas, James W. Hardesty, Kristina Pickering, Mark Gibbons,

22

1

the Rooker-Feldman doctrine, and failure to state a claim. Plaintiff’s claims against the

2

Unserved Defendants11 are dismissed for failure to effect proper service under Rule 4(m).

3

Judgment will be entered in favor of Defendants and against Plaintiff. The Clerk of the

4

Court is instructed to close the file.

5

(2)

6

Plaintiff’s Requests for Judicial Notice are GRANTED as to official court documents from
other proceedings, and DENIED as to all other documents he has submitted to this Court.

7

(3)

Plaintiff’s Requests for Subpoenas and U.S. Marshal Service are DENIED.

8

(4)

Defendant Horton’s motion to declare Plaintiff a vexatious litigant is GRANTED. The

9

Clerk of this Court may not file or accept any further complaints filed by or on behalf of Mr.
Missud (as a named Plaintiff) that name as defendants D.R. Horton or any of its affiliates

11
For the Northern District of California

United States District Court

10

(including DHI Mortgage), subsidiaries, and/or employees. If Mr. Missud wishes to file a

12

complaint against any of these entities and/or individuals, he shall provide a copy of any

13

such complaint, a letter requesting that the complaint be filed, and a copy of this Order to the

14

Clerk of this Court. The Clerk shall then forward the complaint, letter, and copy of this

15

Order to the Duty Judge for a determination whether the complaint should be accepted for

16

filing. Any violation of this Order will expose Plaintiff to a contempt hearing and

17

appropriate sanctions, and any action filed in violation of this Order will be subject to

18

dismissal.

19

(5)

Mr. Missud is forewarned that any future suit he files with the Court which does not comply

20

with the good faith requirements of Fed. R. Civ. P. 11 will be subject to sanctions including

21

monetary sanctions.

22

///

23

///

24
25
26
27

Michael Cherry, and Ron Parraguirre of the Supreme Court of Nevada; San Francisco Superior
Court Judges Charlotte Woolard and Loretta Giorgi; Judge Saundra Armstrong of the U.S. District
Court for the Northern District of California; Judge Roger Hunt of the U.S. District Court for the
District of Nevada; Judge Roger Benitez of the U.S. District Court for the Southern District of
California; the Nevada Supreme Court; and the Eighth Judicial District Court of County of Clark.
11

28

State of Nevada, Susan Eckhardt, David Sarnowski, the Nevada State Bar, and Constance

Akridge.

23

1

(6)

Mr. Missud is referred to the State Bar and the Standing Committee on Professional Conduct

2

pursuant to Civ. L.R. 11-6(a)(3)-(4) for any appropriate disciplinary action.

3

This Order disposes of Docket Nos. 37, 53, 59, 65.

4
5

IT IS SO ORDERED.

6
7

Dated: March 22, 2012

8
_________________________
EDWARD M. CHEN
United States District Judge

9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

24