Bamidele Hambolu et al v. Fortress Investment Group et al

Filing 19

ORDER Declaring Bamidele Hambolu a Vexatious Litigant. Signed by Judge Edward M. Chen on 5/8/2017. (Attachments: # 1 Certificate/Proof of Service). (emcsecS, COURT STAFF) (Filed on 5/8/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BAMIDELE HAMBOLU, et al., Plaintiffs, 8 9 10 ORDER DECLARING BAMIDELE HAMBOLU A VEXATIOUS LITIGANT v. FORTRESS INVESTMENT GROUP, et al., Defendants. 12 For the Northern District of California United States District Court 11 Case No. 17-cv-01039-EMC 13 Plaintiffs Bamidele Hambolu and his mother, Lynn Gavin, initiated this putative class 14 action in the Central District of California, see Docket No. 1 (Complaint), but it was subsequently 15 transferred to this District. See Docket No. 9 (Order at 2). On April 19, 2017, the Court issued an 16 order in which it barred Ms. Gavin from asserting her claims because they were, in effect, the 17 same as those that had led Ms. Gavin to being declared a vexatious litigant and subject to a 18 prefiling review. See Docket No. 16 (Order at 8). In the same order, the Court granted Mr. 19 Hambolu‟s application to proceed in forma pauperis but dismissed his federal claims with 20 prejudice and declined to exercise supplemental jurisdiction over his state claims. See Docket No. 21 16 (Order at 8). The Court also ordered Mr. Hambolu to show cause as to why he should not be 22 declared a vexatious litigant subject to the same prefiling order to which Ms. Gavin is currently 23 subject. See Docket No. 16 (Order at 7). 24 Mr. Hambolu has failed to timely respond to the Court‟s order to show cause (“OSC”). 25 Based on the lack of an opposition, and for the reasons discussed below, the Court hereby 26 DECLARES Mr. Hambolu a vexatious litigant. Future pleadings that Mr. Hambolu files shall be 27 subject to a prefiling review by the general duty judge for this District, the terms of which are 28 specified in this order below. I. 1 FACTUAL & PROCEDURAL BACKGROUND The instant action is the seventh in a series of suits filed by Mr. Hambolu and his mother, 2 3 Ms. Gavin, in this District. Each of these suits alleges that Mr. Hambolu and his mother were 4 wrongfully evicted from the Parkmerced apartments in 2012, after the family failed to pay 5 allegedly usurious utility bills.1 Compl. ¶ 14, 49; see also Docket No. 16 (Ex. A) (listing cases). 6 Plaintiffs‟ cases have been dismissed on various grounds, including failure to prosecute and failure 7 to state a viable claim for relief. See id. In January 2016, this Court issued an order in one of the earlier cases in which it declared 8 County of San Francisco, No. 15-CV-05202-EMC, 2016 WL 126937, at *5 (N.D. Cal. Jan. 12, 11 2016). But even after this order, Ms. Gavin – along with Mr. Hambolu – continued to file suits 12 For the Northern District of California Ms. Gavin a vexatious litigant and thus imposed a prefiling requirement. See Gavin v. City & 10 United States District Court 9 related to their eviction from the Parkmerced apartments, including the instant action. 13 As noted above, in the instant case, this Court barred Ms. Gavin from proceeding with her 14 claims based on its prefiling review. The Court also dismissed Mr. Hambolu‟s claims and further 15 issued an order to show cause (“OSC”) to Mr. Hambolu as to why he should not be declared a 16 vexatious litigant. II. 17 18 A. DISCUSSION Legal Standard District courts have the inherent power to enter prefiling orders against vexatious litigants 19 20 under the All Writs Act. See 28 U.S.C. § 1651(a) (providing that “[t]he Supreme Court and all 21 courts established by Act of Congress may issue all writs necessary or appropriate in aid of their 22 respective jurisdictions and agreeable to the usages and principles of law”); Molski v. Evergreen 23 Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) (stating that “[t]he All Writs Act, 28 U.S.C. § 24 1651(a), provides district courts with the inherent power to enter pre-filing orders against 25 vexatious litigants”). The Ninth Circuit has cautioned, however, that “such pre-filing orders are an 26 extreme remedy that should rarely be used” because of the danger of “tread[ing] on a litigant‟s due 27 1 28 In addition to these seven suits, Ms. Gavin has individually filed five suits based on her eviction from Parkmerced apartments. 2 1 process right of access to the courts.” Id. Nevertheless, such prefiling orders are sometimes 2 appropriate because “[f]lagrant abuse of the judicial power . . . enables one person to preempt the 3 use of judicial time that properly could be used to consider the meritorious claims of other 4 litigants.” De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990). 5 B. 6 7 8 9 10 12 For the Northern District of California United States District Court 11 13 14 15 De Long Factors In De Long, the Ninth Circuit set forth the requirements for entering prefiling orders against vexatious litigants: 1. The litigant must be given notice and opportunity to be heard before the order is entered, see id. at 1147; 2. The court must compile an adequate record for review, including a list of all cases and motions leading to the conclusion that an individual is a vexatious litigant, see id. at 1147-48; 3. The court must make substantive findings that the litigant‟s filings are frivolous or harassing, see id. at 1148; and 4. The pre-filing order may not be overly broad, and must be “narrowly tailored to closely fit the specific vice encountered.” Id. 16 1. Notice and Opportunity to be Heard 17 The first De Long factor simply requires that the litigant be given an opportunity to oppose 18 the order before it is entered. See id. at 1147. Oral argument is not required. See, e.g., Reddy v. 19 MedQuist, Inc., No. 12-cv-1324-PSG, 2012 U.S. Dist. LEXIS 171421, at *3 (N.D. Cal. Dec. 3, 20 2012) (“The requirement that the plaintiff receive an opportunity to be heard; the opportunity to 21 brief the issue fully satisfies due process requirements.”) (internal quotation marks omitted); 22 Fiechtner v. Young, No. CV 13-9-M-DLC, JCL, 2013 U.S. Dist. LEXIS 31086, at *3 (D. Mont. 23 Feb. 6, 2013) (“An opportunity to be heard is satisfied by providing an opportunity to file a brief, 24 and does not necessarily require an oral or evidentiary hearing in court.”), report and 25 recommendation adopted by 2012 U.S. Dist. LEXIS 31158 (D. Mont. Mar. 4, 2013); see also 26 Tripati v. Beaman, 878 F.2d 351, 354 (10th Cir. 1989) (“The notice and opportunity requirement 27 does not, however, require an in-person hearing in the district court.”). 28 The Court finds that the first De Long factor has been met because the Court issued an 3 1 OSC, and Mr. Hambolu had an opportunity to file a written opposition. See Martin v. Redwood 2 City Dental Care, Case No. 15-cv-3151-JST, 2015 U.S. Dist. LEXIS 173275, at *3-4 (N.D. Cal. 3 Dec. 29, 2015) (finding that plaintiff was given an opportunity to be heard despite not responding 4 to the OSC or appearing at the hearing); Adams v. Currie, No. EDCV 14-1838 PSG (SS), 2015 5 U.S. Dist. LEXIS 100684, at *14 (C.D. Cal. July 6, 2015) (same), report and recommendation 6 adopted by 2015 U.S. Dist. LEXIS 100617, at *1-2 (C.D. Cal. July 30, 2015). 7 2. 8 The second factor is merely procedural. See De Long, 912 F.2d at 1147 (“An adequate 9 Adequate Record for Review record for review should include a listing of all the cases and motions that led the district court to of actions and filings by the litigant. See, e.g., Hurt v. All Sweepstakes Contests, No. C-12-4187- 12 For the Northern District of California conclude that a vexatious litigant order was needed.”). It requires only that the court compile a list 11 United States District Court 10 EMC, 2013 U.S. Dist. LEXIS 4802, at *5 (N.D. Cal. Jan. 11, 2013) (finding the second De Long 13 factor met where the court “compiled a list of all the actions Plaintiff filed”). This factor is met 14 here as the Court has listed and discussed each of the seven actions that Mr. Hambolu has filed. 15 See Docket No. 16 (Ex. A). 16 3. Frivolous or Harassing Filings 17 The third factor “gets to the heart of the vexatious litigant analysis,” see Molski, 500 F.3d 18 at 1059, and requires the district court to look to “both the number and content of the filings as 19 indicia” of the frivolousness or harassing nature of the litigant‟s claims. De Long, 912 F.2d at 20 1148; see also Molski, 500 F.3d at 1059 (stating that “[a]n injunction cannot issue merely upon a 21 showing of litigiousness”). 22 In considering the third De Long factor – as well as the fourth (i.e., narrow tailoring of the 23 vexatious litigant order) – the Ninth Circuit has found the following considerations helpful, as 24 outlined by the Second Circuit in Safir v. U.S. Lines, Inc., 792 F.2d 19 (2d Cir. 1986): 25 26 27 28 “(1) the litigant‟s history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant‟s motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) 4 1 whether other sanctions would be adequate to protect the courts and other parties.” 2 Molski, 500 F.3d at 1058 (citing Safir, 792 F.2d at 24); see also Boustred v. Gov’t, No. C-08- 3 00546 RMW, 2008 U.S. Dist. LEXIS 111090, at *2-4 (N.D. Cal. Sept. 17, 2008) (considering all 4 five Safir factors). These considerations lead the Court to the following conclusions. 5 First, because Mr. Hambolu is a self-represented litigant, the Court treads carefully in 6 considering whether and how to fashion an appropriate prefiling order. See De Long, 912 F.2d at 7 1147 (noting use of prefiling orders to curb access to courts should be done with care where a pro 8 se litigant is involved yet recognizing the courts are also free to enjoin litigants with “abusive and 9 lengthy histories”). 10 Second, while the number of filings (seven) itself does not establish Mr. Hambolu as vexatious per se, the duplicative and harassing nature of his filings do. The Court is not presented 12 For the Northern District of California United States District Court 11 here with a plaintiff who is filing the same type of action over and over again. See In re Powell, 13 851 F.2d 427, 431 (D.C. Cir. 1988) (“[T]he district court should be careful not to conclude that 14 particular types of actions filed repetitiously, i.e., FOIA actions, in and of themselves warrant a 15 finding of harassment. Instead, the district court should attempt to discern whether the filing of 16 several similar types of actions constitutes an intent to harass the defendant or the court.”). 17 Rather, the plaintiff is filing the same factual case over and over again. The different lawsuits 18 filed by Mr. Hambolu may have different legal theories but the legal theories are all based on the 19 same set of facts – i.e., his family‟s allegedly wrongful eviction from the Parkmerced apartments 20 in 2012 because of his family‟s failure to pay allegedly usurious utility bills. 21 In fact, it was this circumstance that led the Court to conclude that the case at bar should be 22 dismissed based on claim preclusion, i.e., res judicata. See Docket No. 16 (Order at 5-6). 23 Notably, one of the purposes underlying the doctrine is res judicata is the need to protect against 24 vexatious litigation. See Brown v. Felsen, 442 U.S. 127, 131 (1979) (noting that “[r]es judicata 25 ensures the finality of decisions” and that it “encourages reliance on judicial decisions, bars 26 vexatious litigation, and frees the courts to resolve other disputes”). 27 28 Because Mr. Hambolu is bringing the same factual case again and again, in spite of repeated dismissals by a court, he is filing not only duplicative lawsuits but also, necessarily, 5 1 frivolous and harassing ones. In this respect, it is worth emphasizing that, in several cases, Mr. 2 Hambolu was given an opportunity to amend his complaint but he failed to do so, which 3 eventually resulted in the dismissal of his case for failure to prosecute. Rather than accept the 4 consequences of his failure to litigate, Mr. Hambolu would simply file another lawsuit.2 Given the 5 above circumstances, a declaration of vexatiousness is particularly appropriate. See Broemer v. 6 Bush, No. CV 10-05193 MMM (RZX), 2014 U.S. Dist. LEXIS 190424, at *23 (C.D. Cal. Feb. 6, 7 2014) (stating that, “[i]f a litigant has a pattern of vexatious or harassing litigation, especially in 8 derogation of the doctrine of res judicata, a district court has authority under 28 U.S.C. § 1651 to 9 enter an order sua sponte enjoining the litigant from filing papers without obtaining leave of court‟s injunction of future litigation on any cause of action arising from the fact situation at issue 12 For the Northern District of California court”); see also Harrelson v. United States, 613 F.2d 114, 116 (5th Cir. 1980) (upholding district 11 United States District Court 10 in the case; noting that “[s]uch orders are generally unnecessary, as res judicata and collateral 13 estoppel are usually more than adequate to protect defendants against repetitious litigation” but 14 finding injunction was not an abuse of discretion because plaintiff had “forced defendants in and 15 out of court for almost five years and has had a full opportunity to present and litigate his 16 claims”); Martin v. Redwood City Dental Care, No. 15-CV-03151-JST, 2015 WL 9489898, at *5 17 (N.D. Cal. Dec. 29, 2015) (“find[ing] that Martin‟s conduct is harassing because she has continued 18 to file frivolous lawsuits against various defendants despite the fact that many, if not most, of her 19 previous complaints have been screened for failure to state a legally cognizable federal claims”); 20 Sepehry-Fard v. Select Portfolio Servicing, Inc., No. 14-CV-05142-LHK, 2015 U.S. Dist. LEXIS 21 29989, at *27, 29 (N.D. Cal. Mar. 10, 2015) (stating that “[t]he first [Safir] factor weighs heavily 22 in favor of declaring Plaintiff vexatious” because “Plaintiff has filed at least eight lawsuits aimed 23 at delaying nonjudicial foreclosure proceedings on the two properties he owns in Saratoga, 24 2 25 26 27 28 See, e.g., Gavin et al. v. FCOF PM EQ LLC et al., No. 14-cv-4582-RS (N.D. Cal. Jan. 21, 2015) (dismissed with prejudice for failure to prosecute, noting that “Plaintiffs were advised to file an amended complaint or complaints no later than December 17, 2014. To date, plaintiffs have filed no amended complaint or complaints and appear to have abandoned these actions. This is not the first time plaintiffs have initiated litigation in this court and then failed to pursue it.”); Hambolu v. PCOF PM EQ, LLC, No. 15-cv-2780-RS (N.D. Cal. Sept. 16, 2015) (“Like the highly-similar complaints dismissed on past occasions by courts in this district, plaintiffs‟ present pleadings fail to state any viable claim. They must therefore be dismissed.”). 6 1 California,” “Plaintiff has not prevailed in any,” and, “[d]espite repeated warnings from judges in 2 this district that Plaintiff‟s meritless theory of liability has been rejected, Plaintiff continues to file 3 lawsuits premised on the same allegations”); cf. Stone v. Baum, 409 F. Supp. 2d 1164, 1171 (D. 4 Ariz. 2005) (in the Rule 11 context, stating that, “[b]ecause the action filed here involves the same 5 parties and the same transactional nucleus of facts as the prior suits and it seeks to relitigate issues 6 that have been conclusively resolved in the prior suits, and because Plaintiffs have been repeatedly 7 informed that such repetitive suits are barred by res judicata, there can be no conclusion except 8 that Plaintiffs filed this case for an improper purpose, such as to harass Albertsons and/or cause 9 Albertsons undue litigation costs”). the courts because any attempt to obtain and collect monetary sanctions from the unrepresented 12 For the Northern District of California Moreover, it is unlikely that other sanctions would be adequate to protect Defendants or 11 United States District Court 10 pro se like Mr. Hambolu would likely increase court proceedings and the financial burden on 13 Defendants. Nor does it seem likely, in light of the litigation history here, that nonmonetary 14 directives would deter Mr. Hambolu (and his mother) from continuing to harass Defendants and 15 from abusing judicial resources. See Patterson v. Goncalves, No. C 14-01311 CRB, 2014 WL 16 4683222, at *4 (N.D. Cal. Sept. 19, 2014) (finding that monetary and nonmonetary sanctions 17 would be unlikely to deter vexatious pro se litigant in light of Plaintiffs‟ harassing litigation 18 history). Having considered alternative sanctions, a prefiling order is warranted to deter Mr. 19 Hambolu‟s harassing actions and filings of frivolous claims. 20 4. Narrowly Tailored 21 The fourth and final factor requires that the prefiling order be narrowly tailored to the 22 vexatious litigant‟s wrongful behavior. See Molski, 500 F.3d at 1061. “Narrowly tailored orders 23 are needed „to prevent infringement of the litigator‟s right of access to the courts.‟” De Long, 912 24 F.2d at 1148 (citing Woods v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1525 25 (9th Cir. 1983)). 26 As discussed above, Mr. Hambolu has brought multiple lawsuits before multiple judges in 27 this District and in the Central District of California based on previously rejected facts and 28 theories. Thus, the Court finds it appropriate to deem Mr. Hambolu a vexatious litigant and to 7 1 2 fashion a narrowly tailored prefiling order. Accordingly, like his mother (Ms. Gavin), Mr. Hambolu must obtain leave of court before 3 filing any further suits based on his allegations that he was wrongfully evicted from the 4 Parkmerced apartments in 2012. The Clerk of this Court shall not accept for filing any further 5 complaints filed by Mr. Hambolu or on behalf of Mr. Hambolu alleging any claims described 6 herein until that complaint has first been reviewed by the general duty judge of this Court and 7 approved for filing. III. 8 9 CONCLUSION For the foregoing reasons, Mr. Hambolu is hereby DECLARED a vexatious litigant. The Hambolu alleging any claims of wrongful eviction from the Parkmerced apartment in 2012 unless 12 For the Northern District of California Clerk of this Court shall not file or accept any further complaints filed by or on behalf of Mr. 11 United States District Court 10 and until that complaint has first been reviewed by the general duty judge of this Court and 13 approved for filing. If Mr. Hambolu wishes to file a complaint alleging any such claims, he shall 14 provide a copy of any such complaint, a letter requesting that the complaint be filed, and a copy of 15 this Order to the Clerk of this Court. The Clerk shall then forward the complaint, letter, and copy 16 of this Order to the general duty judge for a determination whether the complaint should be 17 accepted for filing. Any violation of this Order will expose Mr. Hambolu to a contempt hearing 18 and appropriate sanctions, and any action filed in violation of this Order will be subject to 19 dismissal. 20 21 IT IS SO ORDERED. 22 23 24 25 Dated: May 8, 2017 ______________________________________ EDWARD M. CHEN United States District Judge 26 27 28 8

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