Shek v. Children Hospital Research Center in Oakland et al

Filing 143

ORDER DENYING AS MOOT DEFENDANT NLRB'S MOTION TO DECLARE PLAINTIFF VEXATIOUS LITIGANT, DENYING PLAINTIFF'S MOTIONS, AND VACATING HEARING [re 137 Opposition/Response to Motion filed by John Shek]. Signed by Judge William Alsup on 1/16/2014. (whasec, COURT STAFF) (Filed on 1/16/2014) (Additional attachment(s) added on 1/16/2014: # 1 Certificate/Proof of Service) (dt, COURT STAFF).

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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,
No. C 13-02017 WHA
Plaintiff,

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For the Northern District of California

United States District Court

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v.
CHILDREN’S HOSPITAL & RESEARCH
CENTER OAKLAND, et al.,

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Defendants.
/

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ORDER DENYING AS MOOT
DEFENDANT NLRB’S MOTION
TO DECLARE PLAINTIFF
VEXATIOUS LITIGANT, DENYING
PLAINTIFF’S MOTIONS, AND
VACATING HEARING

INTRODUCTION
Following the dismissal of pro se plaintiff’s wrongful termination action, a December 12

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order granted a motion by defendant Children’s Hospital to declare plaintiff a vexatious litigant

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and to require pre-filing review. Four days earlier, defendant NLRB had filed a very similar

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motion against plaintiff. On December 16 and 20, plaintiff made separate motions to vacate,

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amend, or reconsider the December 12 order. To the extent stated below, defendant NLRB’s

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motion is DENIED AS MOOT, plaintiff’s motions are DENIED, and the January 23 hearing is

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VACATED.

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1.

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On December 9, defendant NLRB moved for an order declaring plaintiff a vexatious

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litigant and requiring pre-filing review of any claims made by plaintiff (1) in the Northern District

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of California (2) against NLRB or its employees (3) related to plaintiff’s employment at

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DEFENDANT’S MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT.

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Children’s Hospital and Research Center Oakland leading to his January 2011 dismissal.

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A December 12 order declared plaintiff a vexatious litigant. This order also specified that:

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Plaintiff must submit to pre-filing review of any pro se complaint
filed in the Northern District of California against Children’s
Hospital and Research Center in Oakland, the California Nurses
Association, the National Labor Relations Board, Cedric Wilson,
Brenda Husband, Holly Miller, Nato Green, Joanne Jung, Randy
Mortensen, Joseph Robinson, Bruce Anderson, Brian Seeley also
known as Gary Seeley, Micah Berul, Linda Dreebun, Susanna
Ziegler, George Freeman, and Joseph Frankl or anything having to
do with his employment at or termination by Children’s Hospital
and Research Center in Oakland. The clerk shall then forward any
complaints or notices of appeal submitted by plaintiff to the
undersigned for pre-filing review

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(Docket No. 136). The relief requested by defendant’s motion is completely addressed by the
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permission is ever necessary. Accordingly, defendant’s motion is DENIED AS MOOT.
For the Northern District of California

United States District Court

December 12 order. Defendant NLRB will be allowed to enforce the December 12 order, if such
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PLAINTIFF’S MOTIONS.

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On December 16, plaintiff moved to vacate the December 12 order on jurisdictional
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grounds. Plaintiff refers to a lone, non-binding decision in the Central District of California,
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where the court found it lacked jurisdiction to declare the plaintiff vexatious after dismissing the
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federal claim for lack of standing. Harris v. Del Taco, Inc., 396 F.Supp.2d 1107, 1116 (C.D.
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Cal). The cited decision has no authority in this district. Our circuit recognizes a district court’s
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inherent power to declare litigants vexatious under 28 U.S.C. 1651, independent of its
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jurisdiction over plaintiff’s claims. Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057
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(9th Cir. 2007).
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On December 20, plaintiff moved to reconsider or alter the December 12 order under
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FRCP 59(e), based on defendants’ acts of “bad faith.” FRCP 59(e) is used to request
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reconsideration of a final judgment, not relief from an order, but even a liberal construction of
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plaintiff’s motion under FRCP 60(b) is unavailing. The acts alleged, including discriminatory
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remarks, harassment, and FOIA violations, are largely recycled from plaintiff’s initial complaint
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and have no bearing on the December 12 order. The allegations are uniformly beside the point;
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it is inescapable that plaintiff’s own repeated, frivolous, and abusive litigation has resulted in his
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designation as a vexatious litigant.
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Plaintiff additionally argues in the motion of December 20 that his actions do not qualify

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him as vexatious under California Code of Civil Procedure 391(b). For the reasons outlined

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extensively in the December 12 order, plaintiff readily meets the standard for vexatious litigants

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set out by our court of appeals. Plaintiff has maintained six actions on the same set of

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underlying facts, and has enjoyed ample opportunity to be heard. Plaintiff’s motions to

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reconsider, amend, or vacate the order declaring him a vexatious litigant and requiring pre-filing

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review are DENIED.

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CONCLUSION
For the foregoing reasons, defendant NLRB’s motion to declare plaintiff a vexatious
litigant and requesting a pre-filing order is DENIED AS MOOT. Plaintiff’s motions are DENIED.

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For the Northern District of California

United States District Court

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The hearing on January 23 is hereby VACATED.

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IT IS SO ORDERED.

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Dated: January 16, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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