Abalos et al v. Greenpoint Mortgage Funding, Inc. et al

Filing 17

ORDER DECLARING PLAINTIFF DAVID WYNN MILLER A VEXATIOUS LITIGANT AND SUBJECTING HIS SUBMISSIONS TO PRE-FILING REVIEW re 14 ORDER DISMISSING COMPLAINT SUA SPONTE AND ISSUING ORDER TO SHOW CAUSE WHY PLAINTIFF DAVID WYNN MILLER SHOULD NOT BE DECLARED A VEXATIOUS LITIGANT AND BE REQUIRED TO OBTAIN LEAVE OF COURT BEFORE FILING ANY NEW ACTION. Signed by Judge Jon S. Tigar on July 25, 2013. (Attachments: # 1 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 7/26/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ESTRELLA G. ABALOS, et al.,

Case No. 13-cv-00681-JST

Plaintiffs,
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v.
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GREENPOINT MORTGAGE FUNDING,
INC., et al.,

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Defendants.

ORDER DECLARING PLAINTIFF
DAVID WYNN MILLER A VEXATIOUS
LITIGANT AND SUBJECTING HIS
SUBMISSIONS TO PRE-FILING
REVIEW

United States District Court
Northern District of California

Re: ECF No. 14
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I.

BACKGROUND
Plaintiffs Estrella Abalos, Jose Abalos, Rolando Lavarias and David Wynn Miller lodged a

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complaint with this Court naming as Defendants Greenpoint Mortgage Funding, Inc. and Marin
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Coveyancing Corporation. ECF No. 1. The complaint is unintelligible. It begins:
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FOR THE WORD-TERMS OF THIS C.-S.-S.-C.-P.-S.-G.NOW-TIME-VESSEL:
:DOCUMENT-CONTRACT-FEDERAL-POSTAL-VESSELFEDERAL-COURT-VENUE=D.-C.-F.-P.-V.-F.-C.-V.
:VASSALEE-(WORD-MEANING) VASSAL=SERVANT OF
THIS DOCUMENT, EE=PLOYEE OF THIS VESSEL.
:C.-S.-S.-C.-P.-S.-G.=
:CORRECT-SENTENCE-STRUCTURECOMMUNICATION-PARSE-SYNTAX-GRAMMAR.
:D.-C.-C. = FOR THE DOCUMENT-CONTRACT-CLAIM OF
THIS DOCUMENT-VESSEL-FEDERAL-COURT-VENUE.
:D.-C.-C.-S. = FOR THE DOCUMENT-CONTRACT-CLAIMSSECTION,
OF
THIS
PARSE-SYNTAX-GRAMMARCOMMUNICATION- WORD-CORRECTIONS ARE WITH THE
CORRECTION-CLAIM OF THE FRAUDULENT-FEDERALTITLES-PARSE-SYNTAX-GRAMMAR
and:
FEDERALCODES-FRAUDULENT-PARSE-SYNTAX GRAMMAR WITH
THE SYNTAX-CORRECTIONS OF THE C.-S.-S.C.-P.-S.-G.NOW-TIME-d.-C.-F.-P.-V.-F.-C.-V.

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Id., at 1. It continues in this vein for thirteen pages. Plaintiffs have also appended what is

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apparently a copy of a deed of trust signed by Ms. Abalos, Mr. Abalos, and Mr. Lavarias, which is

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annotated in an intricate but inscrutable manner.

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Since this is far from the first filing of this sort that David Wynn Miller has made in the

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federal courts, the Court set an Order to Show Cause to consider whether Mr. Miller should be

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declared a vexatious litigant. Order Dismissing Complaint Sua Sponte and Issuing an Order to

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Show Cause Why Plaintiff David Wynn Miller Should Not Be Declared a Vexatious Litigant and

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Be Required to Obtain Leave of Court before Filing any New Action (“Order”), ECF No. 14.

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II.

VEXATIOUS LITIGANT DETERMINATION
“Flagrant abuse of the judicial process cannot be tolerated because it enables one person to

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preempt the use of judicial time that properly could be used to consider the meritorious claims of

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other litigants.” De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990). “The All Writs Act,
28 U.S.C. § 1651(a), provides district courts with the inherent power to enter pre-filing orders

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United States District Court
Northern District of California

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against vexatious litigants.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir.

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2007). The Ninth Circuit has established “four factors for district courts to examine before

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entering pre-filing orders.” Id. “First, the litigant must be given notice and a chance to be heard

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before the order is entered,” second, the court “must compile ‘an adequate record for review,’”

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third, the court “must make substantive findings about the frivolous or harassing nature of the

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plaintiff’s litigation,” and fourth, “the vexatious litigant order ‘must be narrowly tailored to closely

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fit the specific vice encountered.’” Id. (citing DeLong, 912 F.2d at 1147-49).

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A.

Notice and Opportunity to Be Heard
In the previous order, the Court provided clear notice to Mr. Miller that it was considering

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declaring him a vexatious litigant and subjecting him to a pre-filing order. Order, at 4:19-7:2.

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The order advised Mr. Miller of the time and place of the hearing on the matter, invited him to

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submit a brief in response, and even invited him to participate at the hearing by telephone. Id.

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That order was served on Mr. Miller at the address he provided in filing his materials with the

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Court. See Certificate of Service, ECF No. 14-2. Mr. Miller neither appeared at the hearing nor

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took advantage of any of the other opportunities to be heard before this order was entered. See

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Civil Minutes, ECF No. 16.

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B.

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Record for Review
A search for Mr. Miller’s name in the Public Access to Court Electronic Records (PACER)
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database reveals that he has filed at least 82 lawsuits in federal courts throughout the country since

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1995, and may have helped prepare many more. See, e.g., Deutsche Bank Nat. Trust Co. v.

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Halajian, Case No. 1:12-CV-00447 LJO, 2012 WL 1076218, at *4 (E.D. Cal. Mar. 29, 2012)

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(noting that the defendant who filed an “incomprehensible and plainly frivolous” submission in

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that case was “apparently employing activist David Wynn Miller’s” language). Recently,

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Mr. Miller’s pace has quickened; he has filed 40 lawsuits in the past twelve months. The court has

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reviewed all 40 of these complaints. Each one is written in the same unintelligible style as the

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complaint in this action.

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At least four district courts have imposed pre-filing screening orders that bar Mr. Miller
from filing future suits in those districts without first obtaining leave of court. Lawerenez v. Finn,

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United States District Court
Northern District of California

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Case No. 2:97-cv-00781-RTR (E.D. Wis. Oct. 31, 1997); Brooker v. United States, 107 Fed. Cl.

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52, 58 (Fed. Cl. 2012); Giron v. Chase Home Mortgage Finance, LLC, Case No. 1:12-cv-00033-

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MV-RHS, ECF No. 37 (D. N.M. July 28, 2012); In re David Wynn Miller, Case No. 1:12-cv-

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00672-SOM-BMK, ECF No. 6 (D. Haw. Jan. 2, 2013).

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In this district, Mr. Miller has filed at least 18 other suits. It appears that all of them have

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been dismissed. Most dismissals were for failure to prosecute, often because Mr. Miller and his

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co-plaintiffs failed to adequately amend their complaint after courts initially found them

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unintelligible. Cardona v. Aurora Loan Services, Inc., Case No. 10-cv-05416-SBA, 2011 WL

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2039415, at *2-3 (May 25, 2011); Robledo v. Chase Bank, Case No. 4:11-cv-01292-CW (June 1,

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2011); Atienza v. Bayview Financial, L.P. Case No. 3:11-cv-03155-RS (Dec. 15, 2011); Atienza

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v. American Brokers Conduit, Case No. 3:11-cv-3152-SBA, 2012 WL 359737, at *2 (Feb. 2,

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2012); Abalos v. Bank of America Home Loan Servicing, L.P., Case No. 4:11-cv-03150-SBA,

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2012 WL 691768, at *1-2 (Mar. 2, 2012); Villanueva et al v. Countrywide Home Loans, Case No.

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3:11-cv-06712-JSW (June 4, 2012); Jones v. Deutsche Bank National Trust Co., Case No. 3:12-

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cv-02624-JSW (Oct. 5, 2012); Miller v. Mortgage Investors Group, Case No. 5:12-cv-04764-EJD

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(Dec. 4, 2012, report and recommendation adopted, Jan. 2, 2013); Miller v. Greenpoint Mortgage

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Funding, Inc., Case No. 5:12-cv-04110-EJD (Dec. 18, 2012); Balgos v. American Brokers

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Conduit, Case No. 5:12-cv-04035-EJD (Jan. 28, 2013, report and recommendation adopted, Feb.
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12, 2013); Lapat v. WMC Mortg. Corp., 12-cv-05529-WHA (Feb. 1, 2013); Abalos v. Bank of

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America Home Loans Servicing, Case No. 4:12-cv-05237-YGR (Feb. 22, 2013); Miller v. Bank of

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America, NA, Case No. 5:12-cv-05585-LHK (Apr. 18, 2013); Miller v. Wells Fargo Bank, Case

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No. 4:12-cv-05711-CW (March 28, 2013, report and recommendation adopted, Apr. 16, 2013);

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Sacayanan et al v. IndyMac Bank, FSB, Case No. 5:12-cv-04107-LHK (July 17, 2013).
The few times a court of this district has reached the merits of one of Mr. Miller’s

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complaints, it has dismissed it. Miller v. Washington Mutual Bank, Case No. 5:12-cv-03979-

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RMW (Oct. 23, 2012, report and recommendation adopted, Dec. 3, 2012) (dismissal for failure to

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satisfy Rule 8); Pastor v. New Century Mortgage Corporation, Case No. 4:12-cv-01253-DMR
(June 27, 2012) (dismissal for failure to prosecute and for lack of subject-matter jurisdiction). See

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United States District Court
Northern District of California

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also San Juan v. Wells Fargo Bank, Case No. 3:12-cv-02529-CRB, 2013 WL 1501458, at *2

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(N.D. Cal. Apr. 11, 2013) (concluding that Mr. Miller’s complaint was “largely nonsensical,” but

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dismissing instead on the grounds that the complaint had been voluntarily dismissed).
In addition to the districts listed above, numerous other district courts have dismissed Mr.

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Miller’s complaints for being unintelligible. See, e.g., Miller v. Korte, Case No. 02-C-504-C,

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2002 WL 32350068, at *1 (W.D. Wis. Sep. 11, 2002); Packer v. Rowe, Case No. CIV S–07–

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1358–JAM–CMK2008 WL 1946036, at *3 (E.D. Cal. May 1, 2008); Tomas v. Aegis Mortgage

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Co., Case No. 10–CV–2286 BEN (BLM), 2011 WL 320901, at *3 (S.D. Cal. Jan. 28, 2011);

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Charov v. Greenpoint Mortgage Funding Inc., Case No. CV-11-0007-PHX-LOA, 2011 WL

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767296, at *1 (D. Ariz. Mar. 1, 2011); Schwartz v. Interra Credit Union, Case No. 3:12 CV 413,

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2012 WL 4741588, at *2 (N.D. Ind. Oct. 3, 2012).

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C.

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Substantive Findings
The Ninth Circuit has held that a five-factor test from the Second Circuit provides “a

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helpful framework for applying the two substantive factors (factors three and four) of [the Ninth

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Circuit’s] own four-factor standard.” Molski, 500 F.3d at 1058. The Second Circuit’s test

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considers “(1) the litigant’s history of litigation and in particular whether it entailed vexatious,

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harassing or duplicative lawsuits; (2) the litigant’s motive in pursuing the litigation, e.g., does the

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litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is
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represented by counsel; (4) whether the litigant has caused needless expense to other parties or has

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posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions

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would be adequate to protect the courts and other parties.” Safir v. U.S. Lines, Inc., 792 F.2d 19,

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The filing of numerous lawsuits does not necessarily make a litigant’s conduct vexatious.

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However, in this case, Mr. Miller’s extraordinary prolificacy weighs heavily in favor of finding

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frivolousness. Since his complaints are regularly dismissed, Mr. Miller cannot possibly have an

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objectively reasonable, good faith expectation that he is likely to prevail in the suits that he files.

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Mr. Miller does not appear to be represented by counsel, but it appears that he may advise others

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to file lawsuits of this kind. In view of this history, lesser sanctions are unlikely to be adequate to

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United States District Court
Northern District of California

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protect the courts and other parties, because Mr. Miller has a demonstrated incapacity to follow

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the rules and requirements of the courts.
Most importantly, Mr. Miller has placed an inordinate burden on the courts and on other

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parties. The record clearly reflects that Mr. Miller regularly files complaints that are so

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unintelligible that courts cannot construe them and defendants cannot respond to them.

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Courtroom personnel must spend significant time and taxpayer resources attempting to understand

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Mr. Miller’s filings, resources that could otherwise be spent dealing with the many litigants who

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adhere to court rules and requirements. When Mr. Miller or his co-plaintiffs succeed in serving

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their complaints, defendants must waste significant time and expense attempting to defend

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themselves from incoherent allegations. Needless to say, this is a flagrant abuse of the judicial

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system.

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D.

Narrow Tailoring
The Court believes that the order entered infra is narrowly tailored to meet only the goal of

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relieving this court and other parties from having to respond to Mr. Miller’s unintelligible

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complaints.

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III.

PRE-FILING ORDER

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The Court hereby enters the following pre-filing order.

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1.

David Wynn Miller is hereby barred from participating in the filing of any lawsuit,
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either alone or with other plaintiffs, in the United States District Court for the Northern District of

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California, without first obtaining leave of court.
2.

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To obtain leave of court, Mr. Miller must seek leave in writing to file a new action,

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and must include with his request (a) a copy of the complaint he proposes to file, and (b) the

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following statement in capital letters on the first page of the request: “THIS PLEADING IS

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SUBJECT TO AN ORDER REQUIRING LEAVE OF COURT TO FILE A NEW ACTION.

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PURSUANT TO THE ORDER OF THIS COURT IN CASE NUMBER 3:13-CV-00681, THE

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DUTY JUDGE MUST DETERMINE WHETHER THIS SUBMISSION IS INTELLIGIBLE

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BEFORE IT CAN BE FILED.”
3.

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If Mr. Miller requests leave of court in the manner required by ¶ 2, supra, the Clerk

United States District Court
Northern District of California

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of Court shall refer his request to the duty judge, who shall determine whether the submission is

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capable of being understood. If it is, the duty judge shall so advise the Clerk of Court, and the

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submission will be filed and assigned as if no pre-filing order were in place. If the duty judge

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determines that the submission is not intelligible, the Clerk shall not file it and shall instead follow

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the procedures in the following paragraph.
4.

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If Mr. Miller participates in the filing of a lawsuit without requesting leave of court,

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or requests such leave and is denied, the Clerk of Court shall not docket any such submission. The

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Clerk shall advise Mr. Miller and all other parties to the suit in writing that the submission has not

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been filed because Mr. Miller is not permitted to participate in lawsuits before this court without

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receiving advance permission. No filing fee shall be accepted in that case.
5.

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This order shall not apply to any suit in which a licensed attorney represents

Mr. Miller, or to any action in which Mr. Miller appears as a criminal defendant.
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This order shall remain in effect until further order by this Court. Mr. Miller may

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petition for this order to be repealed after two years from the date of this order, but must

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demonstrate in any such request that he has entirely ceased his practice of filing unintelligible

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complaints and has not advised any other party to do the same.

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IT IS SO ORDERED.
Dated: July 25, 2013

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______________________________________
JON S. TIGAR
United States District Judge

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United States District Court
Northern District of California

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