Hambolu et al v. Wasserman-Stern Attorneys et al

Filing 18

ORDER Denying Motion to Reconsider Determination to Decline to Accept Filing of the Complaint re 15 Notice of Motion and Motion to Appeal filed by Bamidele Hambolu, Lynn Gavin. Signed by Judge Phyllis J. Hamilton on 03/02/2017. (Attachments: # 1 Pre-filing Order)(pjhlc2S, COURT STAFF) (Filed on 3/2/2017) (Additional attachment(s) added on 3/2/2017: # 2 Certificate/Proof of Service) (kcS, COURT STAFF).

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Case 3:15-cv-05202-EMC Document 9 Filed 01/12/16 Page 1 of 7 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 Plaintiff, 8 9 10 11 Case No. 15-cv-05202-EMC LYNN GAVIN, ORDER DECLARING PLAINTIFF A VEXATIOUS LITIGANT v. CITY AND COUNTY OF SAN FRANCISCO, et al., For the Northern District of California United States District Court Defendants. 12 13 14 I. INTRODUCTION On November 13, 2015, Plaintiff Lynn Gavin filed the instant pro se suit against multiple 15 defendants, alleging various federal and state law violations. Docket No. 1 (Compl.). This suit 16 was the tenth in a series of suits filed by Plaintiff and/or her son, Bamidele Hambolu, in the 17 Northern District of California. See Hambolu v. Parkmerced Investors Props., No. 12-cv-3824- 18 PJH; Gavin v. Murphy, No. 12-cv-5864-RS; Gavin v. Arntz, No. 13-56-PJH, Hambolu v. San 19 Francisco Hous. Auth., No. 14-cv-3020-JSC; Gavin v. FCOF PM EQ LLC, No. 14-4582-RS; 20 Gavin v. Bd. Of Supervisors, No. 14-cv-4583-RS; Hambolu v. San Francisco Hous. Auth., No. 14- 21 cv-4975-RS; Hambolu v. PCOF PM EQ, LLC, No. 15-cv-2780-RS; Gavin v. San Francisco Hous. 22 Auth., No. 15-cv-4097-RS. Each of these suits alleges that Plaintiff was wrongfully evicted from 23 the Parkmerced apartments in 2012, after she failed to pay allegedly usurious utility bills. Compl. 24 at ¶¶ 99, 100; see also Hambolu v. PCOF PM EQ, LLC, Nos. 15-cv-2780-RS and 15-cv-4097-RS, 25 2015 U.S. Dist. LEXIS 123876, at *1-2 (N.D. Cal. Sep. 16, 2015). 26 Plaintiff‟s cases have been dismissed on various grounds, including preclusion, statute of 27 limitations, failure to prosecute, failure to state a viable claim, and failure to comply with 28 administrative requirements such as the California Torts Claims Act. See Docket No. 7, Exh. A Case 3:15-cv-05202-EMC Document 9 Filed 01/12/16 Page 2 of 7 1 (listing cases). This case was no different, with this Court dismissing the case with prejudice 2 based on claim preclusion, failure to provide a short and plain statement of the claim, time bar, and 3 failure to state a viable claim. Id. at 3-5. The Court also issued an Order to Show Cause as to why 4 Plaintiff should not be declared a vexatious litigant, given her history of litigation in this district. 5 Id. at 6. Plaintiff did not file a response. For the reasons listed below, the Court finds that Plaintiff is a vexatious litigant. 6 II. 7 8 A. DISCUSSION Legal Standard District courts have the inherent power to enter pre-filing orders against vexatious litigants 9 1047, 1057 (9th Cir. 2007). The Ninth Circuit has cautioned, however, that “such pre-filing orders 12 For the Northern District of California under the All Writs Act. 28 U.S.C. § 1651(a); see Molski v. Evergreen Dynasty Corp., 500 F.3d 11 United States District Court 10 are an extreme remedy that should rarely be used” because of the danger of “tread[ing] on a 13 litigant‟s due process right of access to the courts.” Id. Nevertheless, such pre-filing orders are 14 sometimes appropriate because “[f]lagrant abuse of the judicial power . . . enables one person to 15 preempt the use of judicial time that properly could be used to consider the meritorious claims of 16 other litigants.” De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990). 17 B. 18 19 20 21 22 23 24 25 26 De Long Factors In De Long, the Ninth Circuit set forth the requirements for entering pre-filing orders against vexatious litigants: (1) The litigant must be given notice and opportunity to be heard before the order is entered; (2) The court must compile an adequate record for review, including a list of all filings and motions leading to the conclusion that an individual is a vexatious litigant; (3) The court must make substantive findings that the litigant‟s filings are frivolous or harassing; and (4) The pre-filing order may not be overly broad, and must be “narrowly tailored to closely 27 fit the specific vice encountered.” 28 De Long, 912 F.2d at 1147-48. 2 Case 3:15-cv-05202-EMC Document 9 Filed 01/12/16 Page 3 of 7 1 1. Notice and Opportunity to be Heard 2 The first factor simply requires that the litigant be given an opportunity to oppose the order 3 before it is entered. De Long, 912 F.2d at 1147. It does not require an in-person hearing. Courts 4 in this circuit have held that a motion to declare a litigant vexatious does not require oral 5 argument. See, e.g., Reddy v. MedQuist, Inc., No. 12-cv-1324-PSG, 2012 U.S. Dist. LEXIS 6 171421, at *3 (N.D. Cal. Dec. 3, 2012) (“The requirement that the plaintiff receive an opportunity 7 to be heard; the opportunity to brief the issue fully satisfies due process requirements.”) (internal 8 quotations omitted); Fiechtner v. Young, No. CV 13-9-M-DLC, JCL, 2013 U.S. Dist. LEXIS 9 31086, at *3 (D. Mont. Feb. 6, 2013) (“An opportunity to be heard is satisfied by providing an court.”), report and recommendation adopted by 2012 U.S. Dist. LEXIS 31158 (D. Mont. Mar. 4, 12 For the Northern District of California opportunity to file a brief, and does not necessarily require an oral or evidentiary hearing in 11 United States District Court 10 2013). Additionally, at least one circuit court has held that a pro se litigant has a right to be heard 13 on paper but not necessarily in person. See, e.g., Tripati v. Beaman, 878 F.2d 351, 354 (10th Cir. 14 1989) (“The notice and opportunity requirement does not, however, require an in-person hearing 15 in the district court.”). 16 The Court finds that the first De Long factor is met because the Court issued an Order to 17 Show Cause, and Plaintiff had an opportunity to file a written opposition. Docket No. 7 at 6; see 18 also Martin v. Redwood City Dental Care, Case No. 15-cv-3151-JST, 2015 U.S. Dist. LEXIS 19 173275, at *3-4 (N.D. Cal. Dec. 29, 2015) (finding that Plaintiff was given an opportunity to be 20 heard despite not responding to the order to show cause or appearing at the hearing); Adams v. 21 Currie, Case No. EDCV 14-1838 PSG (SS), 2015 U.S. Dist. LEXIS 100684, at *14 (C.D. Cal. 22 July 6, 2015) (finding that Plaintiff was given notice and an opportunity to be heard despite not 23 responding to an OSC), report and recommendation adopted by 2015 U.S. Dist. LEXIS 100617, at 24 *1-2 (C.D. Cal. July 30, 2015); Jibreel v. Hock Seng Chin, Case No. 14-cv-02774-JST, 2014 U.S. 25 Dist. LEXIS 164359, at *3 fn. 1 (N.D. Cal. Nov. 21, 2014) (finding that Plaintiff was given 26 opportunity to be heard even when order to show cause was returned as undeliverable because per 27 Civil Local Rule 3-11, pro se parties have a duty to maintain a current address with the Court). 28 3 Case 3:15-cv-05202-EMC Document 9 Filed 01/12/16 Page 4 of 7 1 2. Adequate Record for Review 2 The second factor is merely procedural. De Long, 912 F.2d at 1147 (“An adequate record 3 for review should include a listing of all the cases and motions that led the district court to 4 conclude that a vexatious litigant was needed.”). It requires only that the court compile a list of 5 actions and filings by the litigant. See, e.g., Hurt v. All Sweepstakes Contests, No. C-12-4187- 6 EMC, 2013 U.S. Dist. LEXIS 4802, at *5 (N.D. Cal. Jan. 11, 2013) (finding the second De Long 7 factor met where the court “compiled a list of all the actions Plaintiff filed”). This factor is met 8 here as the Court has listed and discussed each of the ten actions that the Plaintiff has filed. See 9 Docket No. 7 at 2-3, Exh. A. 3. 11 Frivolous of Harassing Filings The third factor “gets to the heart of the vexatious litigant analysis,” see Molski, 500 F.3d 12 For the Northern District of California United States District Court 10 at 1059, and requires the district court to look to “both the number and content of the filings as 13 indicia” of the frivolousness of the litigant‟s claims. De Long, 912 F.2d at 1148. “An injunction 14 cannot issue merely upon a showing of litigiousness. The plaintiff‟s claims must not only be 15 numerous, but also be patently without merit.” Molski, 500 F.3d at 1059. 16 The Court notes that the number of cases filed by Plaintiff and her son (ten) is relatively 17 low compared to other cases where litigants were found vexatious. See De Long, 912 F.2d at 1147 18 (citing cases involving 35, “over 50,” and “over 600” actions); Miles v. Makishima, No. C-08- 19 4091-MMC, 2009 U.S. Dist. LEXIS 75676, at *1 (N.D. Cal. Aug. 14, 2009) (same). However, 20 the number of lawsuits filed by the litigant need not be numerous. See Boustred v. Government, 21 No. C-08-00546-RMW, 2008 U.S. Dist. LEXIS 111090, at *2 (N.D. Cal. Sept. 17, 2008) 22 (Boustred II) (finding “plaintiff has now brought three actions containing similar rambling, largely 23 incomprehensible claims against a multitude of defendants” sufficient in terms of finding an 24 “adequate record for review‟). 25 But while the number of filings here (ten) does not establish Plaintiff as vexatious per se, 26 the patently meritless nature of her filings and motions do. See, e.g., Huggins v. Hynes, 117 Fed. 27 Appx. 517, 518 (9th Cir. 2004) (unpublished disposition) (affirming district court‟s pre-filing 28 order in part because “Huggins abused the courts by repeatedly relitigating the same controversy 4 Case 3:15-cv-05202-EMC Document 9 Filed 01/12/16 Page 5 of 7 based on the same facts, namely her allegedly wrongful eviction from the Parkmerced apartments 3 in 2012, based on her failure to pay allegedly usurious utility bills. Eight of the nine previous 4 lawsuits were either dismissed with prejudice for failure to state a claim or failure to prosecute; the 5 last was voluntarily dismissed by Plaintiff after the court sua sponte dismissed the case with leave 6 to amend. See Docket No. 7, Exh. A. In addition to issues of claim preclusion, Plaintiff‟s legal 7 theories were patently flawed; each of her causes of action in this case were either time-barred or 8 based on federal criminal statutes that cannot support a civil cause of action. Docket No. 7 at 4-5. 9 Furthermore, like many of her prior complaints, Plaintiff‟s 84-page complaint simply repeated the 10 same conclusory statements, with almost no factual allegations. Even the Temporary Restraining 11 Order (TRO) application filed in this case was a repeat; Plaintiff filed the same exact TRO 12 For the Northern District of California and repeatedly filing frivolous motions and pleadings”). Here, each of Plaintiff‟s ten cases are 2 United States District Court 1 application in Gavin v. San Francisco Housing Authority, which was denied by Judge Seeborg on 13 September 16, 2015. Compare Docket No. 4 with Case No. 15-cv-4097-RS, Docket No. 3. 14 Dissatisfied with the ruling, Plaintiff filed the instant lawsuit, naming Judge Seeborg as one of the 15 over 30 named defendants. 16 Certain of the Second Circuit Safir factors, which the Ninth Circuit has found “helpful” in 17 considering the third (frivolous and harassing filings) and fourth (narrow tailoring of order) De 18 Long factors, are instructive here. See Molski, 500 F.3d at 1058 (“Thus, the Second Circuit‟s five- 19 factor standard provides a helpful framework for applying the two substantive factors (factors 20 three and four) of our own four-factor standard.”). The Second Circuit standard as articulated in 21 De Long considers: 22 23 24 25 26 (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) whether other sanctions would be adequate to protect the courts and other parties. 27 Molski, 500 F.3d at 1058 (citing Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)). Courts 28 in this district have also considered the Safir factors to augment the De Long factors. See, e.g., 5 Case 3:15-cv-05202-EMC Document 9 Filed 01/12/16 Page 6 of 7 1 Boustred II, 2008 U.S. Dist. LEXIS 111090, 2008 WL 4287570, at *2-3 (considering all five Safir 2 factors). represented by counsel and instead proceeds pro se, this Court treads carefully when considering 5 whether and how to fashion an appropriate pre-filing order. See De Long, 912 F.2d at 1147 (noting 6 use pre-filing orders to curb access to courts should be done with care where a pro se litigant is 7 involved yet recognizing the courts are also free to enjoin litigants with “abusive and lengthy 8 histories”). Second, the fourth Safir factor speaks directly to the factual scenario currently before 9 this Court -- though low in number, Plaintiff's filings and motions have imposed substantial costs 10 upon the many named defendants and the courts, both in terms of time and money. See, e.g., Moy 11 v. U.S., 906 F.2d 467, 470 (9th Cir. 1990) (finding despite fact that litigant only “filed over five 12 For the Northern District of California Most relevant here are the Safir factors three and four. First, since Plaintiff is not 4 United States District Court 3 claims,” those claims arose “out of the same set of operative facts,” expended “a great deal of the 13 district court's and defendants' time and money attempting to relitigate claims that the district 14 court” had already found unsupported by facts or law as “sufficient justification for enjoining 15 further complaints” but ultimately modifying district court's order as overbroad). Accordingly, 16 while Plaintiff has filed relatively few actions, her lawsuits are frivolous, factually and legally 17 unsupported, and seek to relitigate previously rejected claims, which have imposed substantial 18 cost to defendants and the courts. 19 4. 20 The fourth and final factor requires the pre-filing order be narrowly tailored to the 21 vexatious litigant‟s wrongful behavior. Molski, 500 F.3d at 1061. “Narrowly tailored orders are 22 needed „to prevent infringement of the litigator‟s right of access to the courts.‟” De Long, 912 23 F.2d at 1148 (citing Woods v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1525 24 (9th Cir. 1983)). 25 Narrowly Tailored Although Plaintiff has filed relatively few lawsuits, she has brought multiple lawsuits 26 before multiple judges in this district, based on previously rejected facts and theories. 27 Accordingly, the Court finds it appropriate to deem her a vexatious litigant and to fashion a 28 narrowly tailored pre-filing order as set forth below: 6 Case 3:15-cv-05202-EMC Document 9 Filed 01/12/16 Page 7 of 7 1 Plaintiff must obtain leave of court before filing any further suits based on her allegations 2 that she was wrongfully evicted from the Parkmerced apartments in 2012. The Clerk of this Court 3 shall not accept for filing any further complaints filed by Plaintiff or on behalf of Plaintiff alleging 4 any claims described herein until that complaint has first been reviewed by a judge of this court 5 and approved for filing. The pre-filing review will be made by the general duty judge who will 6 determine whether Plaintiff has stated a potentially cognizable claim in a short, intelligible, and 7 plain statement. III. 8 9 CONCLUSION For the foregoing reasons, Plaintiff is hereby DECLARED a vexatious litigant. The Clerk alleging any claims of wrongful eviction from the Parkmerced apartment in 2012. If Plaintiff 12 For the Northern District of California of this Court may not file or accept any further complaints filed by or on behalf of Plaintiff 11 United States District Court 10 wishes to file a complaint alleging any such claims, she shall provide a copy of any such 13 complaint, a letter requesting that the complaint be filed, and a copy of this Order to the Clerk of 14 this Court. The Clerk shall then forward the complaint, letter, and copy of this Order to the Duty 15 Judge for a determination whether the complaint should be accepted for filing. Any violation of 16 this Order will expose Plaintiff to a contempt hearing and appropriate sanctions, and any action 17 filed in violation of this Order will be subject to dismissal. 18 19 IT IS SO ORDERED. 20 21 22 23 Dated: January 12, 2016 ______________________________________ EDWARD M. CHEN United States District Judge 24 25 26 27 28 7

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