Shek v. Children Hospital Research Center in Oakland et al

Filing 136

ORDER DECLARING JOHN SHEK A VEXATIOUS LITIGANT by Judge William Alsup [granting 120 Motion]. (whasec, COURT STAFF) (Filed on 12/12/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JOHN SHEK,
Plaintiff,

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For the Northern District of California

United States District Court

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No. C 13-02017 WHA

v.
CHILDREN HOSPITAL RESEARCH
CENTER IN OAKLAND, et al.,

ORDER DECLARING JOHN
SHEK A VEXATIOUS LITIGANT

Defendants.
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INTRODUCTION
In this wrongful-termination action, pro se plaintiff’s complaint has been finally

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dismissed and defendant Children’s Hospital and Research Center in Oakland now moves to

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declare plaintiff a vexatious litigant. To the extent stated below, the motion is GRANTED.

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STATEMENT

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This action arises from the termination of plaintiff’s employment. It is one of six

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actions all based on the same set of underlying facts. Pro se plaintiff John Shek was employed

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by defendant Children’s as a radiologic technologist from March 2006 until January 2011.

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In April 2010, plaintiff’s employment was terminated, but he was subsequently offered another

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position in May 2010, which he accepted. In October 2010, plaintiff filed a complaint against

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Children’s and others including the California Nurses Association alleging retaliation and

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breach of the collective bargaining agreement under the LMRDA (Civ. No. 10-4684 DMR).

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In December 2010, plaintiff dismissed his own action.

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In January 2011, plaintiff was again terminated from his position, this time permanently.

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Plaintiff then filed a complaint against Children’s (Civ. No. 11-1968 PJH). This complaint

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alleged employment discrimination as well as violations of the ERISA, the ADA, and the

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ADEA. That action was before Judge Phyllis J. Hamilton. Plaintiff moved to have Judge

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Hamilton disqualified. The motion was denied. Plaintiff then moved to dismiss his own action

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in order to achieve “change of venue.”

(Civ. No. 11-212 WHA). That action alleged that the union “failed to process a grievance on

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[his behalf]” (Civ. No. 11-212 WHA, Dkt. No. 12-1 at 4). That action was also based on

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the same facts as plaintiff’s previous and subsequent actions. It was dismissed for lack of

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For the Northern District of California

Also in January 2011, plaintiff sued the NLRB and the California Nurses Association

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United States District Court

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subject-matter jurisdiction.

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In August 2012, plaintiff brought another action alleging wrongful termination against

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Children’s and others, this one being assigned to the undersigned judge (Civ. No. 12-4517

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WHA). In that action, plaintiff was sanctioned for intentionally serving the wrong person and

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causing that person grief and trouble (Civ. No. 12-4517 WHA, Dkt. No. 66 at 4). Plaintiff’s first

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amended complaint was dismissed and plaintiff’s request for appointment of counsel was denied.

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Plaintiff then moved to disqualify the undersigned judge. That motion was denied by another

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judge. Plaintiff’s motion for leave to file a second amended complaint was denied and judgment

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was entered. Plaintiff then appealed. The appeal remains pending. Along the way, plaintiff

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also filed two state actions based on the same underlying facts (Case No. RG12616848, Case

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No. RG12660358). Both were eventually dismissed by plaintiff.

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One month after plaintiff’s previous federal action (the one after Judge Hamilton) was

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closed and judgment entered against him, plaintiff filed the present action. In an apparent

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attempt to avoid returning to this Court, plaintiff filed this action in the Oakland division.

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Plaintiff once again sued his former employer, defendant Children’s, asserting wrongful

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termination, breach of contract, and breach of fiduciary duty, as well as other defendants

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(including the same individual that plaintiff had been sanctioned for serving in the previous

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action). This action arises out of the same set of facts as his previous actions, namely the

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termination of his employment by Children’s.

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Defendant Children’s moved to dismiss the complaint on June 20. The matter was

(Dkt. Nos. 20, 24). Although the prior briefing deadlines remained in place, plaintiff failed to

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file an opposition or a statement of non-opposition to the motion to dismiss. An order to show

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cause why the motion should not be granted issued on July 10. The deadline to respond was

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July 16 at noon. Instead of responding to the order to show cause, plaintiff filed a motion to

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disqualify the undersigned judge. On the July 16 deadline to respond to the motion to dismiss,

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plaintiff filed an “amended” motion to disqualify the undersigned judge. On July 25 (nine days

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For the Northern District of California

deemed related to the 12-4517 action and reassigned to the undersigned judge on July 5

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United States District Court

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after the deadline for the order to show cause), plaintiff filed an opposition to the motion to

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dismiss. On July 29, plaintiff filed an amended opposition to the motion containing an additional

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50 pages of exhibits.

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The motion to disqualify the undersigned judge was denied by Judge Edward Chen on

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August 5. Plaintiff filed a motion to “set aside” Judge Chen’s ruling, which Judge Chen also

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denied. A subsequent order on August 14 by the undersigned put the motion to dismiss back

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on the calendar for a hearing. On August 16, plaintiff filed a “motion to dismiss” certain

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defendants, which was interpreted to be an opposition to Children’s June 20 motion to dismiss.

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Plaintiff failed to appear at the August 22 hearing. Children’s motion to dismiss was granted

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on August 26 and judgment was entered (Dkt. Nos. 90, 91).

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After plaintiff unsuccessfully made several additional motions, Children’s moved

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to declare plaintiff a vexation litigant (Dkt. No. 120). Plaintiff failed to file an opposition

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or statement of non-opposition by the deadline on November 21. Plaintiff was nonetheless

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given extra time. On December 4, an order to show cause was issued giving plaintiff until

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December 11 to file an opposition or statement of non-opposition. Plaintiff was also ordered to

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appear at the December 12 hearing. Plaintiff did neither. At the hearing, the Court waited one

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hour and fifteen minutes to call this action. Plaintiff was not present. In the December 4 order

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to show cause, plaintiff was warned that “failure to timely respond or appear may result in the

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motion to declare plaintiff a vexatious litigant being granted” (Dkt. No. 129).

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ANALYSIS
Our court of appeals recognizes “the inherent power of federal courts to regulate the

circumstances.” De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) (quotation

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omitted). A request to declare a party a vexatious litigant entails consideration of four factors:

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(1) the party must have had adequate notice and a chance to be heard; (2) there must be an

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adequate record for review, including a list of all cases and motions that led the court to conclude

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that a vexatious litigant order was necessary; (3) the court must make a substantive finding as to

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For the Northern District of California

activities of abusive litigants by imposing carefully tailored restrictions under appropriate

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United States District Court

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the frivolous or harassing nature of the litigant’s actions; and (4) the order must be narrowly

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tailored to fit the particular problem involved. Molski v. Evergreen Dynasty Corp., 500 F.3d

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1047, 1057 (9th Cir. 2007). “[P]re-filing orders are an extreme remedy that should rarely be

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used . . . because such sanctions can tread on a litigant’s due process right of access to the

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courts.” Ibid. “Nevertheless, [f]lagrant abuse of the judicial process cannot be tolerated because

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it enables one person to preempt the use of judicial time that properly could be used to consider

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the meritorious claims of other litigants.” Ibid. (quotation omitted).

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1.

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Where a motion to declare the plaintiff a vexatious litigant was filed and served on the

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plaintiff and the plaintiff had an opportunity to be heard opposing the motion, this requirement

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is satisfied. Id. at 1058. Here, defendant’s motion provided plaintiff with notice and plaintiff

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has received an opportunity to be heard by filing his opposition and at the hearing held on

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December 12. Plaintiff was given ample opportunity to respond to defendant’s motion.

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Plaintiff was given notice that he failed to timely oppose the motion and was given nearly

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three extra weeks to file an opposition. Plaintiff failed to respond or attend the hearing.

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Accordingly, this requirement has been satisfied.

NOTICE AND OPPORTUNITY TO BE HEARD.

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ADEQUATE RECORD.

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“An adequate record for review should include a listing of all the cases and motions that

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led the district court to conclude that a vexatious litigant order was needed,” but the court

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need not list every case in which the litigant has appeared. Molski, 500 F.3d at 1059 (internal

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quotation omitted). Plaintiff has filed two state actions and four federal actions based on the

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same underlying facts. These actions are listed in the statement of facts.

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In addition to the six actions listed, plaintiff has filed numerous motions within each

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action. These include three motions to disqualify, each of which was denied. Finally, plaintiff

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was already sanctioned for deliberately serving the wrong person, but has continued to list that

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For the Northern District of California

United States District Court

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individual as a defendant.
From the record of plaintiff’s prior actions against defendant, listed above, and that

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established in the instant action, this order finds the record is adequate to conclude that plaintiff

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is a vexatious litigant.

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3.

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Under the third factor, courts must examine “both the number and content of the filings

FRIVOLOUS AND HARASSING NATURE OF PLAINTIFF’S ACTIONS.

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

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omitted). “An injunction cannot issue merely upon a showing of litigiousness. The plaintiff’s

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claims must not only be numerous, but also be patently without merit.” Ibid. (quotation

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omitted). Because plaintiff has sued defendant multiple times on the same termination event,

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this order finds there is a sufficient basis to conclude that plaintiff’s litigation against defendant

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has been abusive and frivolous.

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None of plaintiff’s actions has survived the motion to dismiss stage. Though plaintiff

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has employed a variety of claims for relief, all of plaintiff’s actions have been based on the same

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underlying facts. Plaintiff’s complaints are almost uniformly incomprehensible and argue almost

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no cognizable legal theory.

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An order filed on November 30, 2012, found that most of plaintiff’s discrimination

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claims were time-barred. The remaining claims did not contain allegations that plaintiff suffered

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an adverse employment action (Civ. No. 12-4517 WHA, Dkt. No. 47 at 4–6). In an order filed
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on August 26, 2013, plaintiff’s claims were dismissed on the ground of res judicata (Dkt. No. 90

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at 5–6).

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Plaintiff has tried to relitigate the same claim over the course of six actions. This is

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vexatious in and of itself and is dispositive. This order finds that plaintiff intends to harass the

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defendants by filing multiple suits on the same subject matter.

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NARROWLY-TAILORED ORDER.

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Orders “must be narrowly tailored to closely fit the specific vice encountered.” De Long,

pre-filing review order is warranted. This is not a bar on bringing suits, but a pre-filing review.

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Plaintiff must submit to pre-filing review of any pro se complaint filed in the Northern District

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For the Northern District of California

912 F.2d at 1148. This order finds that plaintiff is a vexatious litigant and that an appropriate

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United States District Court

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of California against Children’s Hospital and Research Center in Oakland, the California Nurses

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Association, the National Labor Relations Board, Cedric Wilson, Brenda Husband, Holly Miller,

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Nato Green, Joanne Jung, Randy Mortenson, Joseph Robinson, Bruce Anderson, Brian Seeley

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also known as Gary Seeley, Micah Berul, Linda Dreeben, Susanna Ziegler, George Freeman,

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and Joseph Frankl or anything having to do with his employment at or termination by Children’s

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Hospital and Research Center in Oakland. The Clerk shall then forward any complaints or

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notices of appeal submitted by plaintiff to the undersigned for pre-filing review. If the Court

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ascertains that the complaint or notice of appeal is duplicative or frivolous, it will not be filed

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and will be returned to plaintiff. If the Court finds that the proposed pleading meets the pleading

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standards, it will be given to the Clerk with instructions to file it.

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CONCLUSION
For the reasons stated above and to that extent, defendant’s motion to declare plaintiff

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John Shek a vexatious litigant is GRANTED. It is ORDERED that plaintiff may not file, nor

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the Clerk accept for filing, any further complaints from plaintiff that: (1) name any of the

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above-listed defendants, or (2) have to do with his employment at or termination by Children’s

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Hospital and Research Center in Oakland, without obtaining prior leave from the Court.

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The Clerk shall forward any complaints or notices of appeal submitted by plaintiff to the

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undersigned for pre-filing review.

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IT IS SO ORDERED.

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Dated: December 12, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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