Da Encarnacao v. Beryozkina

Filing 92

Order by Magistrate Judge Maria-Elena James granting 81 Motion to Dismiss and Motion to Declare Plaintiff a Vexatious Litigant.(mejlc3, COURT STAFF) (Filed on 9/8/2017)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 EDER NASCIMENTO DA ENCARNACAO, 7 Plaintiff, 8 v. 9 Case No. 16-cv-02522-MEJ ORDER RE: MOTION TO DISMISS AND MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT Re: Dkt. No. 81 ANNA BERYOZKINA, 10 Defendant. 11 United States District Court Northern District of California INTRODUCTION 12 13 Pending before the Court is Defendant’s Motion to Dismiss Plaintiff’s remaining claim for intentional infliction of emotional distress (“IIED”) and have Plaintiff declared a vexatious 14 litigant. See Mot., Dkt. No. 81. Counsel for both parties argued the Motion on August 31, 2017. 15 Defendant moves to dismiss the IIED claim on the ground this Court lacks jurisdiction over the 16 sole remaining state law claim, and on the ground the claim is barred by res judicata. See Mot. 17 Having considered the parties’ arguments, and with the benefit of oral argument, the Court issues 18 the following order. 19 BACKGROUND1 20 By signing an I-864 immigration form, Defendant undertook to support Plaintiff and his 21 young son financially when Defendant sponsored them to immigrate into the United States. See 22 23 Second Am. Compl. (“SAC”), Dkt. No. 33; Order Screening SAC, Dkt. No. 36. The relationship ended, and Plaintiff filed this case to obtain a court order enforcing Defendant’s financial 24 obligations. 25 26 27 28 1 Additional factual and procedural background information can be found in the docket. See, e.g., Order Screening SAC; Order Consolidating Case, Dkt. No. 28; Order re Related Case, Dkt. No. 71. In the SAC, Plaintiff asserts a breach of contract claim based on Plaintiff’s alleged failure 1 2 to perform her obligations under the Form I-864. On February 27, 2017, the parties settled this 3 claim, at least to the extent any claims for support had accrued as of December 31, 2016. See Dkt. 4 No. 59.2 Plaintiff also asserts an IIED claim under California state law: 5 6 Plaintiff alleges Defendant withheld financial support from him and his son knowing he could not provide basic necessities without her support, stole important documents from him, made false reports to the police accusing him of abusing his child, made false statements about him to third parties, and threatened him with bodily harm, all for the purpose of avoiding compliance with her support obligations. . . . He also alleges . . . he has been humiliated, he fears for his life, and he has been diagnosed with “depression and panic syndrome” for which he receives treatment, including medication. Finally, he alleges the distress was caused by Defendant’s conduct. 7 8 9 10 United States District Court Northern District of California 11 12 Order Screening SAC at 4 (citing SAC). The threat of bodily harm was based on Plaintiff’s 13 allegation that Defendant sped towards Plaintiff in her car, causing Plaintiff to fall when he got out 14 of her way after hearing the noise of the engine. SAC ¶ 13; see also Issues, Dkt. No. 52 at ECF 15 p.6 (declaring Plaintiff had been feeling pains in wrist and ankle since March 2015 after Defendant 16 attempted to kill him using her car; he “fell on the floor, and got up it felt painful. . . . I will have 17 to begin physical therapy due to the gravity of the fracture, and maybe undergo surgery.”). 18 On April 3, 2017, Plaintiff filed an action in small claims court asserting a claim for “IIED 19 under California Law for extrem[e] and outrageou[s] conduct by [Defendant] with the intention of 20 causing or with reckless disregard for the probability of causing emotional stress. I suffered 21 severe or extreme emotiona[l] distress, and for broken wrist and ankle.” First Finn Decl., Ex. 1, 22 Dkt. No. 81-2. Plaintiff alleged this conduct took place between April 21, 2015 until December 3, 23 2016. Id. Plaintiff requested $10,000 in damages, which he calculated based on “moral damages, 24 psychologic[al] damages and false accusations, false denunces, took all of immigrations 25 documents and SSN and premeditated plot.” Id. 26 27 28 2 Plaintiff represents the last day for seeking additional support for new claims under Form I-864 was June 2, 2017, and that he has “resolve[d] not to make any further claims on the I-864 contract” for himself. Opp’n to Mot. to Relate at ¶ 12, Dkt. No. 82. 2 The small claims court conducted a trial in Plaintiff’s case on June 13, 2017. First Finn 1 2 Decl. ¶ 4, Dkt. No. 81-1. Plaintiff argues he presented evidence during the trial, and that the small 3 claims court allowed him to submit medical bills afterward. Opp’n at 2-3. The medical bills he 4 submitted to the small claims court and filed in this action show claims for services rendered to 5 Plaintiff by Stanford Hospital for repair/graft wrist bone, lower arm surgery, imaging, pharmacy, 6 and other associated costs. See Gray Decl., Ex. 2, Dkt. No. 85-3. On August 3, 2017, the small claims court entered judgment on Plaintiff’s IIED claim, and 7 8 found Defendant did not owe Plaintiff any money. Second Finn Decl., Ex. 1, Dkt. No. 88-2. Defendant now seeks to dismiss Plaintiff’s remaining IIED claim and to declare Plaintiff a 10 vexatious litigant. The basis for the res judicata argument is that the identical claim was fully and 11 United States District Court Northern District of California 9 finally adjudicated in small claims court. See id. DISCUSSION – MOTION TO DISMISS3 12 13 A. Legal Standard “Res judicata, also known as claim preclusion, bars litigation in a subsequent action of any 14 15 claims that were raised or could have been raised in the prior action.” Owens v. Kaiser Found. 16 Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (internal quotation marks and citation 17 omitted). In order to bar a claim under res judicata, the prior case must: (1) involve the same 18 claim as the later suit, (2) have reached a final judgment on the merits, and (3) involve the same 19 parties. Id.; see also Nordhorn v. Ladish Co., 9 F.3d 1402, 1404 (9th Cir. 1993) (citations 20 omitted). The “central criterion” in determining whether the same claims are asserted is “whether 21 the two suits arise out of the same transactional nucleus of facts.” Owens, 244 F.3d at 714 22 (internal quotation marks and citation omitted). For purposes of res judicata, “[a]n involuntary 23 dismissal generally acts as a judgment on the merits . . . regardless of whether the dismissal results 24 from procedural error or from the court’s considered examination of the plaintiff’s substantive 25 claims.” In re Schimmels, 127 F.3d 875, 884 (9th Cir. 1997) (citing cases). “It is well established 26 27 28 3 Defendant also asked the Court to dismiss Da Encarnacao VI, 17-cv-3410-MEJ, with prejudice. See Mot. at 1. As discussed during the hearing, the Court lacks jurisdiction to do so, as Plaintiff already dismissed the action voluntarily. Da Encarnacao VI, Dkt. No. 8. 3 1 that the claim preclusion aspect of the doctrine of res judicata applies to small claims judgments.” 2 Pitzen v. Superior Court, 120 Cal. App. 4th 1374, 1381-82 (2004) (citation omitted). 3 B. Analysis 4 Res judicata bars Plaintiff’s IIED claim in this action. 5 First, the two suits arise out of the same nucleus of facts: both suits involve the same 6 allegations of stealing important documents, making false accusations about Plaintiff, and injuring 7 Plaintiff’s wrist and ankle. Out of these facts, Plaintiff asserted an IIED claim in the small claims 8 court action, and asserts the same IIED claim before this Court. Second, the judgment entered on August 3, 2017 is a final judgment on the merits, finding 10 Defendant did not owe Plaintiff any money.4 Second Finn Decl., Ex. 1; see Pitzen, 120 Cal. App. 11 United States District Court Northern District of California 9 4th at 1381. Third, Plaintiff filed the small claims court action against Defendant; that action therefore 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Counsel for Plaintiff did not represent Plaintiff in the small claims court action. Counsel explained he understood that “the evidence relating to [Plaintiff’s] medical injuries caused by the most outrageous conduct by the Defendant, namely her running [Plaintiff] over with her car, [was] not before that Court. As such, we don’t believe there could be res judicata” as to the claim. 8/31/2017 FTR Rec. at 10:52-58 (res judicata discussion). Plaintiff had filed a brief stating small claims court “Judge Susan M. Jakubowski did not allow[] payment of damages caused by [Defendant]” because Plaintiff had failed to serve his medical records upon Defendant. See Pl.’s Br., Dkt. No. 89. The Court struck that brief (Order Striking Pl.’s Br., Dkt. No. 90), but at the hearing, counsel asked the Court to take the Declaration as evidence in connection with this Motion. Plaintiff misapprehends the nature of this evidence: Plaintiff’s Declaration and the documents attached thereto do not show the small claims court decided not to award Plaintiff any damages because he failed to serve Plaintiff with copies of his medical bills; nor do they show evidence of Plaintiff’s injuries and medical bills were not before the small claims court. The minute order Plaintiff attaches to his Declaration shows Judge Jakubowski held a small claims hearing on June 13, 2017, accepted exhibits, allowed Plaintiff to submit medical bills to the Court “with a copy served on Defendant by 7/13/17[,]” allowed Defendant to respond by July 27, 2017, and took the matter under submission. See Pl.’s Br. at ECF p.7. Counsel for Defendant stated in open court that she had attended the June 13th trial, that both Plaintiff and Defendant testified about their versions of the events surrounding the car accident, that Plaintiff produced evidence, that he subsequently provided his medical bills to the small claims court, and that Defendant had an opportunity to respond. See 8/31/2017 FTR Rec. at 10:52-58. Moreover, in opposing the Motion to Dismiss, counsel for Plaintiff appears to suggest Plaintiff did in fact submit those medical bills to the small claims court. See Opp’n at 3 & Gray Decl., Ex. 2 (attaching medical bills). The small claims court judgment thus did encompass the injuries allegedly caused by Defendant “running [Plaintiff] over with her car.” 4 1 involved identical parties. 2 For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s 3 IIED claim on res judicata grounds. The dismissal is WITH PREJUDICE, and Plaintiff may not 4 refile the IIED claim in federal or state court. The Court also declines to exercise supplemental jurisdiction over Defendant’s remaining 5 6 IIED claim. That claim is dismissed without prejudice to Defendant refiling it in state court. DISCUSSION—VEXATIOUS LITIGANT 7 8 A. Legal Standard District courts have the inherent power to enter pre-filing orders against vexatious litigants. 9 See 28 U.S.C. § 1651(a); Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 11 United States District Court Northern District of California 10 2007). Although the Ninth Circuit has cautioned that they “should rarely be used” (id.), such pre- 12 filing orders may nevertheless be appropriate because “[f]lagrant abuse of the judicial process . . . 13 enables one person to preempt the use of judicial time that properly could be used to consider the 14 meritorious claims of other litigants.” De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 15 1990). Before imposing a pre-filing order, courts must (1) give the litigant notice and an 16 opportunity to be heard before the order is entered; (2) compile an adequate record for review; (3) 17 make substantive findings as to the frivolous or harassing nature of the litigant’s actions; and (4) 18 draft an order that is “narrowly tailored to closely fit the specific vice encountered.” Id. at 1147- 19 48. 20 B. Application of the De Long Factors 21 The De Long factors weigh in favor of a limited pre-filing order. 22 Plaintiff was given notice and opportunity to be heard multiple times. The Court ordered 23 him to file two declarations to explain why his conduct should not be considered an abuse of the 24 judicial process. Dkt. Nos. 71, 76. Defendant thereafter moved to have Plaintiff declared a 25 vexatious litigant and Plaintiff, represented by counsel, responded in writing and was heard by the 26 Court. This provides fair notice. See Molski, 500 F.3d at 1057. 27 28 There is an adequate record for review. The Court has repeatedly listed the cases Plaintiff filed against Defendant. See supra; see also Order Consolidating Cases; Order Screening SAC; 5 1 Order re Related Case; Order Granting in Part Pl.’s Request for Extension, Dkt. No. 76. Most of 2 these cases involved duplicative claims for support under Form I-864 and/or for IIED based on 3 allegations Defendant important documents, made false accusations, or assaulted Plaintiff with her 4 car. See 16-cv-2899 DMR (I-864; alleging Defendant stole immigration documents) (remanded 5 because Plaintiff improperly removed action he filed in state court); 16-cv-4918 MEJ (I-864, 6 stealing immigration and Social Security documents) (related to this action); 16-cv-4707 MEJ 7 (alleging Defendant stole immigration documents, filed false police reports, attacked Plaintiff with 8 car) (dismissed with prejudice with instructions: “To the extent Plaintiff wishes to amend to assert 9 allegations he raised in this action against Defendant, he may do so by joining these claims to those he asserts in the Related Case No. 16-cv-2522, in which he alleges similar claims against the 11 United States District Court Northern District of California 10 same Defendant pertaining to the same underlying facts as this case. Under Federal Rule of Civil 12 Procedure 18, Plaintiff may assert independent or alternative claims against a party—in other 13 words, it is not necessary for Plaintiff to file separate cases to alleged different claims against one 14 defendant. Filing multiple separate actions against the same Defendant is often inefficient and 15 wastes both the parties’ and the Court’s time and resources.”); 17-cv-2504 MEJ (asserting claims 16 arising out of Form I-864 Form I-134 for support on behalf of Plaintiff’s son, and stolen 17 immigration documents) (Defendant was served on August 17, 2017 and instructed by this Court 18 not to respond at this juncture); 17-cv-3410 MEJ (accusing Defendant of committing tax fraud; 19 “[m]isappropriations of documents . . . with the intention of committing fiscal crime against the 20 federal treasury”; referring to Defendant’s obligation of support) (voluntarily dismissed after 21 Court asked Plaintiff to demonstrate filing was not abuse of process and not intended to harass 22 Defendant).5 In addition, this Court and others have repeatedly ordered Plaintiff to cease filing 23 Defendant’s confidential personal information publicly, and to cease filing random documents on 24 the docket that were not requested by the Court or connected to any motion. See, e.g., Order 25 26 27 28 5 To the extent Plaintiff contends he did not understand the Court’s order not to file additional cases also extended to these allegations of criminal conduct, the Court already explained that “Plaintiff does not have standing to prosecute criminal claims in this Court.” Order Dismissing Compl., 16-cv-4707, Dkt. No. 7 at 4. 6 1 Sealing Document, Dkt. No. 38; Order Striking Pl.’s Br.; 12/1/2016 FTR Rec. at 10:34-10:48; 17- 2 cv-2504, Dkt. Nos. 5, 10. 3 The five factors set forth in Safir v. United States Lines, Inc., 792 F.2d 19 (2d Cir. 1986) 4 provide “a helpful framework for applying the two substantive factors (factors three and four)” of 5 the De Long test. Molski , 500 F.3d at 1058. The Safir factors are: “(1) the litigant’s history of 6 litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the 7 litigant’s motive in pursuing the litigation, e.g., does the litigant have an objective good faith 8 expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the 9 litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts 11 United States District Court Northern District of California 10 and other parties.” Safir, 792 F.2d at 24. The Court already has summarized Plaintiff’s history of 12 litigation above and now addresses the remaining Safir factors. 13 The Court cannot find that Plaintiff lacked an objective good faith expectation of 14 prevailing on his original claim for support; indeed, he successfully settled that claim in February 15 2017. With respect to some of his other actions, the Court observes Plaintiff has a young son 16 whom he is trying to support, is not familiar with the American legal system, is representing 17 himself, and is not fluent in English. In Declarations, Plaintiff assured the Court he did not 18 attempt to harass Defendant or abuse the judicial process. See, e.g., Dkt. No. 79 ¶ 6. The Court is 19 loath to impugn a nefarious motive to Plaintiff under these circumstances, and finds no conclusive 20 objective evidence of such motive for the first four cases he filed in this Court. Nevertheless, 21 Plaintiff continued to file new cases after the Court expressly informed him of the improper nature 22 of such conduct, and after the Court ordered him to stop filing new cases against Defendant; this 23 evidences an improper motive. 24 Plaintiff argues the newest two new cases he filed are not duplicative, and he did not 25 understand they fell within the Court’s order to stop filing new cases. Setting aside the fact these 26 filings violated the Court’s order, the Court cannot find Plaintiff had a good faith basis for filing 27 them. Plaintiff filed the tax evasion case (17-cv-3410) after being informed by the Court that he 28 lacked standing to pursue criminal claims against Defendant in this Court (see supra, n.5). 7 1 Plaintiff also argues case 17-cv-2504 is not duplicative because it is filed on behalf of his son and 2 requests support based on Form I-134 – not Form I-864. See Opp’n to Mot. to Relate at Ex. 2; 3 Decl., Dkt. No. 83. As an initial matter, the Second Amended Complaint refers both to Form I- 4 134 and Form I-864 and appears to request support under both “contracts.” See Case No. 17-cv- 5 2504, Dkt. No. 14. It is thus duplicative, at least to some extent.6 Second, Plaintiff cannot have 6 had a good faith expectation of prevailing on this claim because an I-134 Form does not carry the 7 same contractual obligations created by an I-864 Form. See Kalincheva v. Neubarth, 2012 WL 8 5328616, at *4 (E.D. Cal. Oct. 26, 2012) (“‘The contractual obligations imposed by the [Illegal 9 Immigration Reform and Immigrant Responsibility Act of 1996] on an affidavit of support made on an I-864 Form do not attach to affidavits of support made on an old I-134 Form.’” (quoting 11 United States District Court Northern District of California 10 Cobb v. Cobb, 2012 WL 2620524, at *3 (E.D. Cal. July 5, 2012))); Cheshire v. Cheshire, 2006 12 WL 1208010, at *2 (M.D. Fla. May 4, 2006) (“[F]ederal courts have consistently found that Form 13 I-134 is not a legally enforceable contract against a sponsor by a sponsored immigrant”) (citing 14 cases)); Tornheim v. Kohn, 2002 WL 482534, at *4 (E.D. N.Y. Mar. 26, 2002) (contractual 15 obligations imposed through I-864 Form “do not attach to affidavits of support made on an old I- 16 134 Form. As such, this Court finds that an affidavit of support on an I-134 Form is not a legally 17 binding contract”). The Court is especially concerned because Plaintiff was represented by 18 counsel in this action. His conduct suggests he either failed to consult counsel about filing the two 19 new actions or ignored counsel’s advice not to do so. In each of the aforementioned cases, Plaintiff requested to proceed in forma pauperis, 20 21 which required the assigned judges to review his IFP applications, screen his complaints pursuant 22 to 28 U.S.C. § 1915, order service through the U.S. Marshals, wade through duplicative claims, 23 24 25 26 27 28 6 To the extent Plaintiff argues the claim for support is not duplicative because it was made on behalf of his son, the Court notes Plaintiff appears to have released claims for support for both him and his son through 2016. Plaintiff’s complaint in the instant case alleged Defendant failed in her obligation to support “Plaintiff and his minor child in the United States. . . . Defendant gave Plaintiff and his son no support . . . the income for Plaintiff and his son is not at the required level, and has not been compensated for the many months last year.” FAC ¶¶ 7-9. Plaintiff settled his support claim and dismissed it with prejudice. See Dkt. No. 63 (dismissal); Opp’n to Mot. to Relate, Ex. A (Plaintiff agreed to settle breach of contract claim through 2016). 8 1 and coordinate the cases appropriately. Plaintiff also repeatedly filed in the public docket 2 confidential information that needed to be redacted, and repeatedly filed documents that were not 3 requested by the Court nor connected to any motion. Through such acts, Plaintiff imposed 4 unnecessary burdens on the Court. The multiple actions also imposed unnecessary burdens on 5 Defendant, who was forced to respond to each new filing. 6 Plaintiff is proceeding IFP, and therefore does not have the resources to pay financial 7 sanctions. Plaintiff was ordered to stop filing additional cases against Defendant without prior 8 authorization of this Court. See Order Consolidating Case. Any case Plaintiff filed that asserted 9 related claims against Defendant arising out of the breach of support, IIED, theft, false accusations, etc., would be related to this case and assigned to the undersigned. See Civ. L.R. 3- 11 United States District Court Northern District of California 10 12. The Court had inherent authority to control its docket, and Plaintiff shared the responsibility 12 “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. 13 R. Civ. P. 1. Despite being represented by counsel, Plaintiff filed two additional cases against 14 Defendant in direct violation of the Court’s order prohibiting him to do so. As other sanctions 15 have been ineffective, the Court cannot find that other sanctions would be adequate. 16 Based on this record, the Court finds a narrowly drawn pre-filing order closely fitting the 17 specific conduct is warranted: Plaintiff Eder Da Encarnacao shall obtain pre-filing review of any 18 new action he files or causes to be filed against Defendant Anna Beryozkina in the Northern 19 District of California. 20 The Clerk of the Court shall not file or accept any further complaints filed by Plaintiff 21 against Anna Beryozkina. If Plaintiff wishes to file a complaint against Anna Beryozkina, he must 22 first provide a copy of such complaint, a letter requesting that the complaint be filed, and a copy of 23 this order to the Clerk of the Court. The Clerk shall forward the complaint, letter and copy of this 24 order to the general duty judge for a determination of whether the complaint should be accepted 25 for filing. Any violation of this order will expose Plaintiff to a contempt hearing and appropriate 26 sanctions, and any action filed in violation of this order will be subject to dismissal. 27 28 CONCLUSION Defendant’s Motion to Dismiss the remaining IIED claim is GRANTED. As the claim is 9 1 barred by res judicata, it is dismissed with prejudice to refiling it in state court. Defendant’s 2 Motion to Declare Plaintiff a Vexatious Litigant is GRANTED as described above. 3 IT IS SO ORDERED. 4 5 6 7 Dated: September 8, 2017 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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