Smith v. Phoenix Technologies Ltd.

Filing 58

ORDER by Judge Lucy H. Koh granting 42 Motion to Dismiss with prejudice; denying 43 Motion to Declare Plaintiff a Vexatious Litigant (Attachments: # 1 Certificate of Mailing) (lhklc3, COURT STAFF) (Filed on 11/9/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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CHARMANE SMITH,
Plaintiff,
v.
PHOENIX TECHNOLOGIES LTD.,
Defendant.

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Case No.: 11-CV-01479-LHK
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS, AND DENYING
DEFENDANT’S MOTION TO
DECLARE PLAINTIFF A VEXATIOUS
LITIGANT

On March 25, 2011, Plaintiff Charmane Smith (“Smith”) filed in forma pauperis a civil

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complaint and demand for jury trial against Defendant Phoenix Technologies, Ltd. (“Phoenix

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Technologies”), seeking $2.8 billion in damages on a theory of strict products liability. See ECF

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No. 1. Defendant moves to dismiss with prejudice for lack of subject matter jurisdiction and

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failure to state a claim upon which relief can be granted, pursuant to Federal Rules of Civil

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Procedure 12(b)(1) and 12(b)(6), respectively, and to dismiss the Complaint as frivolous or

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malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). See ECF No. 42. In addition, Defendant

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moves to declare Plaintiff a “vexatious litigant” and seeks a pre-filing order directing the Clerk not

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to accept further filings from Plaintiff absent written authorization from the Judge of the Court.

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See ECF No. 43. The Court held a hearing on Defendant’s motions on November 8, 2011, at

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which Plaintiff failed to appear. Having considered the parties’ submissions and arguments and the

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Case No.: 11-CV-01479-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS, AND DENYING DEFENDANT’S MOTION TO
DECLARE PLAINTIFF A VEXATIOUS LITIGANT

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relevant law, the Court GRANTS Defendant’s motion to dismiss the Complaint for lack of subject

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matter jurisdiction, failure to state a claim, and as frivolous, without leave to amend. However, the

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Court DENIES Defendant’s motion to declare Plaintiff a vexatious litigant and declines to issue a

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pre-filing injunction.

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I.

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BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed her Complaint on March 25, 2011, alleging that security design defects in

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Defendant’s hardware and software “allowed theft of data, money, services, and U.S. mail by

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computer hackers who used Phoenix Technologies products to control and redirect [her]

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computer,” resulting in the following damages: “damaged appliances, computers, bank account

United States District Court
For the Northern District of California

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thefts/closures, loss of expected benefit for sale items, loss of potential income from businuss [sic],

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wasted phone + internet services, damaged credit rating, damaged televisions, loss of

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$40,000,000.00 business loan, etc.” Compl. ¶¶ 3-5. Plaintiff seeks damages in the amount of $2.8

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billion plus costs and fees. Id. at ¶ 3.

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Also on March 25, 2011, Plaintiff filed an application to proceed in forma pauperis, which

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was granted by Judge Edward Chen. See ECF Nos. 2, 6. On August 24, 2011, following

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Defendant’s motion for an intradistrict venue transfer, see ECF No. 21, the present action was re-

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assigned to this Court in the San Jose Division, see ECF Nos. 38 and 41. Defendant claims that,

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after reviewing the Complaint, it attempted on numerous occasions to speak with Plaintiff

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regarding her claims, to no avail. See, e.g., ECF No. 46-1 at ¶¶ 3-5.

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On August 29, 2011, Defendant filed a motion to dismiss and a motion to declare Plaintiff a

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vexatious litigant, requesting that the Court issue a pre-filing order enjoining Plaintiff from filing

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future complaints without first seeking leave of the court. See ECF Nos. 42, 43. Pursuant to Civil

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Local Rule 7-3(a), Plaintiff’s opposition to these motions was due on September 15, 2011.

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Plaintiff failed to file an opposition or statement of nonopposition to either of Defendant’s motions.

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Plaintiff also failed to appear at the hearing on these motions held on November 7, 2011.

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II.

LEGAL STANDARDS AND ANALYSIS
A. Motion to Dismiss

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Case No.: 11-CV-01479-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS, AND DENYING DEFENDANT’S MOTION TO
DECLARE PLAINTIFF A VEXATIOUS LITIGANT

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Defendant moves to dismiss Plaintiff’s action on grounds that (1) the Court lacks subject

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matter jurisdiction; (2) Plaintiff fails to state a claim upon which relief can be granted; and (3)

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Plaintiff’s action is frivolous. See ECF No. 42. The Court addresses each argument in turn.

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1. Lack of Subject Matter Jurisdiction

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a.

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Legal Standard

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss an action

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for lack of subject matter jurisdiction. Regardless of whether the defense is raised, federal courts

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have an independent obligation to determine federal subject matter jurisdiction before proceeding

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to the merits of a case. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577, 583 (1999). The

United States District Court
For the Northern District of California

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party seeking to invoke a federal court’s jurisdiction bears the burden of establishing subject matter

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jurisdiction, which is not presumed. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

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(1994). 1 “The basic statutory grants of federal-court subject-matter jurisdiction are contained in 28

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U.S.C. §§ 1331 and 1332.” Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006).

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b. Analysis

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Defendant asserts that the Court lacks subject matter jurisdiction under § 1331 because

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Plaintiff alleges no federal question and lacks jurisdiction under § 1332 because Plaintiff fails to

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allege sufficient facts to establish diversity jurisdiction. See Def.’s Mot. to Dismiss at 4-5.

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Under § 1331, a federal court has federal question jurisdiction in “all civil actions arising

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under the Constitution, laws or treaties of the United States.” 28 U.S.C. § 1331. In the instant

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case, Plaintiff brings only a state law products liability action against Defendant, and no federal

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question is presented on the face of the complaint. See Rivet v. Regions Bank, 522 U.S. 470, 475

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(1998). Because Plaintiff alleges no federal question, the Court does not have federal question

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“When considering a motion to dismiss pursuant to Rule 12(b)(1) the district court is not
restricted to the face of the pleadings, but may review any evidence, such as affidavits and
testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v.
United States, 850 F.2d 558, 560 (9th Cir. 1988) (citing Land v. Dollar, 330 U.S. 731, 735 n.4
(1947) (“[W]hen a question of the District Court’s jurisdiction is raised . . . the court may inquire
by affidavits or otherwise, into the facts as they exist.”)).
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Case No.: 11-CV-01479-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS, AND DENYING DEFENDANT’S MOTION TO
DECLARE PLAINTIFF A VEXATIOUS LITIGANT

1

jurisdiction over this state law products liability action. See Grable & Sons Metal Prods., Inc. v.

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Darue Eng’g Mfg., 454 U.S. 308, 312 (2005).

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Under § 1332, a federal court has diversity jurisdiction “where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of

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different States.” 28 U.S.C. § 1332(a). Furthermore, in a diversity action, “the plaintiff must state

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all parties’ citizenships such that the existence of complete diversity can be confirmed.” Kanter v.

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Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). In the instant action, the Court is unable

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to infer diversity jurisdiction for two reasons: (1) Plaintiff does not allege her State citizenship; and

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(2) Plaintiff’s request for damages in the amount of $2.8 billion is “not made in good faith.” See

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United States District Court
For the Northern District of California

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Smith v. Visa U.S.A., Inc., No. C11-01634, 2011 WL 2709819, at *2 n.1 (N.D. Cal. July 12, 2011)

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(Illston, J.) (noting, in a nearly identical complaint to the instant case, that Smith’s request for

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damages in the amount of $2.8 billion is “clearly not made in good faith” and causes the court to

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have “serious reservations” as to whether Smith satisfied the amount in controversy requirement of

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§ 1332); Smith v. Adaptec, “Order to Show Cause,” No. C11-1481 (N.D. Cal. July 29, 2011)

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(Armstrong, J.) (ordering, in an action containing identical jurisdictional allegations, that Smith

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show cause why the case should not be dismissed for lack of diversity jurisdiction in light of

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Smith’s failure to allege her State of citizenship).

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Plaintiff has failed to meet her burden of establishing subject matter jurisdiction, and
therefore the Court must dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(1).
2. Failure to State a Claim Upon Which Relief May Be Granted
a. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if

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it fails to state a claim upon which relief can be granted. “To survive a motion to dismiss, a

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complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

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plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks

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omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint need not

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contain detailed factual allegations, but the plaintiff must “provide the ‘grounds’ of his

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Case No.: 11-CV-01479-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS, AND DENYING DEFENDANT’S MOTION TO
DECLARE PLAINTIFF A VEXATIOUS LITIGANT

1

‘entitle[ment]’ to relief,” which “requires more than labels and conclusions,” and merely “a

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formulaic recitation of the elements of a cause of action” is insufficient. Iqbal, 129 S. Ct. at 1949;

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see also Twombly, 550 U.S. at 555.

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b. Analysis
Defendant seeks to dismiss Plaintiff’s action pursuant to Federal Rule of Civil Procedure

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12(b)(6) on the ground that Plaintiff has failed to sufficiently allege the elements of a tort liability

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claim. In California, “[a] manufacturer is strictly liable in tort when an article he places on the

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market, knowing that it is to be used without inspection for defects, proves to have a defect that

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causes injury to a human being.” Vandermark v. Ford Motor Co., 61 Cal. 2d 256, 260-61 (1964).

United States District Court
For the Northern District of California

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“[A]ppreciable, nonspeculative, present injury is an essential element of a tort cause of action.”

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Jimenez v. Superior Court, 29 Cal. 4th 473, 483 (2002) (citations omitted). In a strict products

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liability case, damages are not available for economic loss, which includes “damages for

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inadequate value, costs of repair and replacement of the defective product or consequent loss of

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profits—without any claim of personal injury or damages to other property.” Id. at 482-83

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(internal quotation marks and citation omitted).

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Most of Plaintiff’s allegations of harm are couched as allegations of economic loss, which

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are not compensable under a theory of products liability. See ECF No. 1 at 2 (alleging, among

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other things, loss of expected benefit for sale items, loss of potential income from business, wasted

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phone and internet services, and loss of a $40,000,000.00 business loan). Plaintiff also alleges non-

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economic harm in the form of “damaged appliances” and “damaged televisions,” id, but Plaintiff

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does not identify whether the damaged appliances and damaged televisions are Defendant’s

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products, or even whether she has ever owned or used any of Defendant’s products. Without a

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claim for non-economic damages, Plaintiff fails to establish “appreciable, nonspeculative, present

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injury,” which is an essential element of any tort action under California law. See Jimenez, 29 Cal.

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4th at 483.

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Plaintiff’s complaint suffers generally from a lack of factual support. While a complaint
need not contain detailed factual allegations, the plaintiff must “provide the ‘grounds’ of his
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Case No.: 11-CV-01479-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS, AND DENYING DEFENDANT’S MOTION TO
DECLARE PLAINTIFF A VEXATIOUS LITIGANT

1

‘entitle[ment]’ to relief,” which “requires more than labels and conclusions,” and merely “a

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formulaic recitation of the elements of a cause of action” in insufficient. Iqbal, 129 S. Ct. at 1949;

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see also Twombly, 550 U.S. at 555. Accordingly, dismissal is also warranted under Rule 12(b)(6)

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for failure to state a claim upon which relief can be granted.

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3. Frivolous In Forma Pauperis Action

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a.

Legal Standard

The Court must dismiss an in forma pauperis action if the Court finds that the action “fails

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to state a claim on which relief may be granted” (comparable to the Fed. R. Civ. P. 12(b)(6)

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standard) or that the action “is frivolous or malicious.” 28 U.S.C. § 1915(e)(2)(B) (2006); see

United States District Court
For the Northern District of California

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Neitzke v. Williams, 490 U.S. 319, 324 (1989). As the United States Supreme Court has explained,

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“[the in forma pauperis statute] is designed largely to discourage the filing of, and waste of judicial

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and private resources upon, baseless lawsuits that paying litigants generally do not initiate because

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of the costs of bringing suit.” Neitzke, 490 U.S. at 327-28. A complaint, containing as it does both

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factual allegations and legal conclusions, is “frivolous” where it lacks an arguable basis either in

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law or in fact. Neitzke, 490 U.S. at 325 (definition of “frivolous . . . embraces not only the arguable

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legal conclusion, but also the fanciful factual allegation”). When determining whether to dismiss a

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complaint as “frivolous” under 28 U.S.C. § 1915(e)(2)(B)(i), the Court has “‘the unusual power to

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pierce the veil of the complaint’s factual allegations,’” meaning that the Court “is not bound, as it

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usually is when making a determination based solely on the pleadings, to accept without question

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the truth of the plaintiff’s allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992) (quoting

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Nietzke, 490 U.S. at 327).

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b. Analysis
The Ninth Circuit has expressly held that frivolous litigation “is not limited to cases in

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which a legal claim is entirely without merit . . . . [A] person with a measured legitimate claim may

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cross the line into frivolous litigation by asserting facts that are grossly exaggerated or totally

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false.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1060-61 (9th Cir. 2007). For example,

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in Molski v. Evergreen Dynasty Corp., the plaintiff, who was disabled and confined to a

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Case No.: 11-CV-01479-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS, AND DENYING DEFENDANT’S MOTION TO
DECLARE PLAINTIFF A VEXATIOUS LITIGANT

1

wheelchair, had alleged multiple similar injuries occurring on the same day in different

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establishments as a result of various American Disabilities Act (ADA) violations. Id. at 1059. The

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court concluded that the plaintiff “plainly lied,” since “[c]ommon sense dictates that [the plaintiff]

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would have figured out some way to avoid repetitive injury-causing activity.” See id.

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Here, the Court finds that Plaintiff has asserted grossly exaggerated, if not totally false,

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facts. As previously discussed, Plaintiff seeks damages in the amount of $2.8 billion for damage to

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appliances, computers, bank account thefts, loss of potential business income, loss of expected

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sales, and loss of a $40 million business loan, among other injuries. See ECF No.1. As previously

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discussed, however, Plaintiff alleges no facts supporting the plausibility of her claim for $2.8

United States District Court
For the Northern District of California

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billion in damages, the credibility of which is undermined by her application for in forma pauperis

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status on the basis of her alleged poverty. See ECF No. 2. Moreover, Plaintiff filed a nearly

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identical complaint against Defendant in Tennessee state court just two years ago based on the

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same allegations, but there she sought less than $25,000 in damages. See ECF No. 44, Salceda

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Decl. Ex. 1. The Court therefore finds Plaintiff’s allegations of economic loss in the billions to be

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grossly exaggerated, at best, and therefore frivolous. Accordingly, the Court GRANTS

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Defendant’s motion to dismiss with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

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B. Motion to Declare Plaintiff a Vexatious Litigant and to Issue a Pre-filing Order

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Defendant moves to declare Plaintiff a “vexatious litigant” and requests that the Court issue

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a pre-filing order directing the Clerk not to accept further filings from Plaintiff without written

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authorization from a Judge of the Court. See Def.’s Mot. to Declare Plaintiff a Vexatious Litigant;

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Memorandum of Points and Authorities in Support Thereof (“Def.’s Mot. to Declare”), ECF No.

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43. For the following reasons, Defendant’s motion is DENIED.

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1. Legal Standard

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“[T]here is a strong precedent establishing the inherent power of federal courts to regulate

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the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate

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

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is well established that the All Writs Act, 28 U.S.C. § 1651(a), provides courts with the inherent

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Case No.: 11-CV-01479-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS, AND DENYING DEFENDANT’S MOTION TO
DECLARE PLAINTIFF A VEXATIOUS LITIGANT

1

power to enter pre-filing orders restricting future filings by vexatious litigants. 2 Molski, 500 F.3d

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at 1061 (citing Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1197 (9th Cir. 1999)). However,

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“[c]ourts should not enter pre-filing orders with undue haste because such sanctions can tread on a

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litigant’s due process right of access to the courts.” Id. at 1057. Indeed, the Ninth Circuit has

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cautioned that “such pre-filing orders are an extreme remedy that should rarely be used,” id. (citing

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De Long, 912 F.2d at 1147) (emphasis added), particularly when the plaintiff is pro se. See

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Pavilonis v. King, 626 F.2d 1075, 1079 (1st Cir.) (“The use of such measures against a pro se

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plaintiff should be approached with particular caution.”), cert. denied, 449 U.S. 829 (1980); cf. De

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Long, 912 F.2d at 1147 (citing approvingly Pavilonis, 626 F.2d at 1079 and vacating a district

United States District Court
For the Northern District of California

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court’s order that enjoined an in forma pauperis litigant from further filings).

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2. Analysis

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The Ninth Circuit has identified four factors for district courts to consider before entering

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pre-filing orders “to maintain this delicate balance between broad court access and prevention of

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court abuse.” O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990). The first two factors are

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procedural in nature: (1) the litigant must be granted due process, i.e., “notice and an opportunity to

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be heard,” before the order is entered, and (2) the court must compile an “adequate record for

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review,” which includes a listing of “all the cases and motions that led the district court to conclude

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that a vexatious litigant order was needed.” De Long, 912 F.2d at 1147 (citations omitted). The

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latter two factors are substantive: (3) the district court must make “substantive findings” about the

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frivolous or harassing nature of the plaintiff’s litigation, and (4) the vexatious litigant order must be

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“narrowly tailored to closely fit the specific vice encountered.” Id. at 1148; see also Molski, 500

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F.3d at 1061.

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a. Notice and Opportunity to be Heard

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The first factor is easily satisfied here. Defendant’s August 29, 2011 motion (ECF No. 43)
put Plaintiff on notice that the Court may declare her vexatious or impose a pre-filing injunction

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When a district court encounters vexatious litigation, it is under no obligation to issue a pre-filing
order. Molski, 500 F.3d at 1065 n.8. Rather, the district court “may exercise its sound discretion
under the facts presented to choose any appropriate sanction.” Id.

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Case No.: 11-CV-01479-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS, AND DENYING DEFENDANT’S MOTION TO
DECLARE PLAINTIFF A VEXATIOUS LITIGANT

1

against her. Pursuant to Civil Local Rule 7-3(a), Plaintiff’s opposition was due on September 15,

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2011, but Plaintiff failed to file an opposition or statement of nonopposition. The Court also held a

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hearing on this motion, as well as on Defendant’s motion to dismiss, on November 8, 2011, at

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which Plaintiff failed to appear. Where a plaintiff had the opportunity, both in writing and at a

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hearing, to oppose a motion to have a pre-filing order issued against her, due process requirements

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are satisfied. De Long, 912 F.2d at 1059 (citing Pac. Harbor Capital, Inc. v. Carnival Air Lines,

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Inc., 210 F.3d 1112, 1118 (9th Cir. 2000)). The Court therefore finds that the first De Long factor

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is satisfied.

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United States District Court
For the Northern District of California

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b. Adequate Record of Frivolous Findings
The second De Long factor requires that the district court create an “adequate record for

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review,” which means a “listing of all the cases and motions that led the district court to conclude

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that a vexatious litigant order was needed.” Molski, 500 F.3d at 1059 (citing De Long, 912 F.2d at

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1147). “At the least, the record needs to show, in some manner, that the litigant’s activities were

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numerous or abusive.” De Long, 912 F.2d at 1148 (emphasis added). In De Long, the Ninth

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Circuit noted that the “numerous or abusive” standard was met in one case where “50 frivolous

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cases” were filed, and in another where “600 complaints” were filed. See id.

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In the instant case, Defendant alleges that Plaintiff has a “long history of filing frivolous

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claims,” and has provided the Court with a list of seventy-four federal lawsuits filed by Plaintiff

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over the past fifteen years. See Def.’s Mot. to Declare at 3; Salceda Decl., Ex. 14. However, “[a]n

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injunction cannot issue merely upon a showing of litigiousness.” Moy v. United States, 906 F.2d

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467, 470 (9th Cir. 1990); accord Molski, 500 F.3d at 1059. Rather, the plaintiff’s claims “ must not

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only be numerous, but also be patently without merit.” Moy, 906 F.2d at 470.

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Defendant cites to a number of instances where Plaintiff has been sanctioned or issued a
pre-filing injunction against her for the filing of frivolous lawsuits, including:
•

In September of 2000, the Federal District Court for the District of Columbia barred
Smith from filing complaints in forma pauperis, unless Smith faces imminent
danger of serious physical danger. See Ex. 13 at 3 n.6 (citing Smith v. United States,
“Memorandum & Dismissal Order,” No. C00-2302 (D.D.C. Sept. 27, 2000)).

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Case No.: 11-CV-01479-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS, AND DENYING DEFENDANT’S MOTION TO
DECLARE PLAINTIFF A VEXATIOUS LITIGANT

•

On May 31, 2001, the District Court for the Northern District of Texas enjoined
Smith from filing cases in that district without judicial permission. See Ex. 13 at 3
n.7 (citing Smith v. United States, “Order of Dismissal & Order Imposing Sanction,”
No. C 01-0450 (N.D. Tex. May 30, 2011)).

•

When Smith ignored the May 31, 2001 N.D. Texas Order by filing an additional
complaint, the Northern District of Texas ordered a monetary sanction. See Ex. 13
at 3 n.8 (citing Smith v. Shadduck, “Order Denying Motion for Leave, Imposing
Additional Sanctions & Order of dismissal,” No. C04-0242 (N.D. Tex. Apr. 16,
2004).

•

In an order entered on January 24, 2007, the Western District of Tennessee revoked
Plaintiff's ability to file any more actions in that district without payment of the full
civil filing fee. Smith v. Dell, Inc., No. 06-2496 (W.D.Tenn. Jan. 24, 2007). Those
restrictions were imposed because Plaintiff had filed fifteen (15) civil actions in the
district since 2003, most of which had been dismissed, sua sponte, for failure to
state a claim or as frivolous. The sanctions order did not address cases filed in state
court and removed to federal court.

•

On May 20, 2010, the Western District of Tennessee issued an order modifying the
previous restrictions and imposing further restrictions applicable to removed cases.
Smith v. Federal Judges & Court Clerks, Memphis, TN, No. C09-2772 (W.D. Tenn.
May 20, 2010).

•

1

On June 21, 2010, the Western District for Tennessee reaffirmed the sanctions
imposed in the May 20, 2010 Order. Smith v. Breen, No. C09-2770, 2010 WL
2557447, at *16 (W.D. Tenn. June 21, 2010) (citing Smith v. Federal Judges &
Court Clerks, Memphis, TN, No. C09-2772 (W.D.Tenn. May 20, 2010)).

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United States District Court
For the Northern District of California

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See ECF No. 43 at 3-4.

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Although the Court recognizes a mounting record of frivolous findings against Plaintiff, the

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Court also finds that the vast majority of Plaintiff’s earlier-filed actions alleged claims wholly

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unrelated to the products liability suit at issue here. 3 See Salceda Decl., Ex. 14. Only a dozen or so

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of Plaintiff’s actions have been brought as products liability claims, all filed within the past year,

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and the Court is not aware that any of these products liability cases have thus far been dismissed

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Whether the frivolous actions in question arise from a similar set of facts is important for
determining an adequate record insofar as this informs a court of the extent to which a pre-filing
order may be narrowly tailored. See, e.g., Moy, 906 F.2d at 470-71 (striking as “overly broad” a
district court’s order that prevented the plaintiff from filing—not only “any other claim based upon
the facts and issues involved” in the case under review—but which also “prevented [the plaintiff]
from filing actions without leave of court based upon all other disputes in which he might be
involved”).
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Case No.: 11-CV-01479-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS, AND DENYING DEFENDANT’S MOTION TO
DECLARE PLAINTIFF A VEXATIOUS LITIGANT

1

for frivolousness. Defendant cites to two recent cases in the Northern District of California, in

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which Plaintiff filed nearly identical claims against other defendants. See Smith v. Visa U.S.A.,

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Inc., No. C 11-01634, 2011 WL 2709819 at *1 (N.D. Cal. July 12, 2011) (Illston, J.); Smith v.

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Adaptec, No. C11-01481 (July 25, 2011) (Armstrong, J.). Judge Illston dismissed Plaintiff’s

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complaint against Visa sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a

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claim on which relief can be granted, but granted leave to amend. After Plaintiff failed to file an

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amended complaint, Judge Illston dismissed the case with prejudice. Because the defendant in that

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case did not move to dismiss, the court had no occasion to consider whether Plaintiff’s complaint

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was frivolous or whether she was a “vexatious litigant.” Similarly, in Smith v. Adaptec, Judge

United States District Court
For the Northern District of California

10

Armstrong issued an order to show cause why the case should not be dismissed for lack of subject

11

matter jurisdiction. Upon Plaintiff’s failure to respond, the court dismissed the action without

12

prejudice for failure to prosecute. Again, the court did not consider whether Plaintiff’s complaint

13

was frivolous or whether Smith was a vexatious litigant.

14

Just as the simple fact that a plaintiff has filed a large number of complaints is not by itself

15

a sufficient basis for finding a party to be a vexatious litigant, nor is the mere textual and factual

16

similarity of multiple complaints sufficient. Molski, 500 F.3d at 1061. Because neither of the two

17

cases filed in the Northern District of California even considered whether Plaintiff’s actions were

18

frivolous or vexatious, let alone made any such findings, the Court is reluctant to count these cases

19

as part of a record of abusive litigation warranting a pre-filing order. See De Long, 912 F.2d at

20

1148 (refusing to uphold a district court’s order absent a substantive finding of frivolousness or

21

harassment). The Court therefore does not find an adequate record indicating that Plaintiff’s

22

“activities were [sufficiently] numerous or abusive” to warrant a pre-filing order at this time. De

23

Long, 912 F.2d at 1148.

24
25

c. Substantive Findings of Frivolousness or Harassment
Absent “explicit substantive findings as to the frivolous or harassing nature of the plaintiff’s

26

findings,” a district court may not issue a pre-filing order. O’Loughlin, 920 F.2d at 618. As

27

previously discussed, the Court finds Plaintiff’s current complaint frivolous because it alleges facts,

28

11
Case No.: 11-CV-01479-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS, AND DENYING DEFENDANT’S MOTION TO
DECLARE PLAINTIFF A VEXATIOUS LITIGANT

1

such as economic losses in the tens of millions of dollars, that are fanciful or clearly baseless.

2

However, this is the first court to make a substantive finding of the frivolousness of Plaintiff’s

3

complaint based on a theory of strict products liability. The Court does not find this single finding

4

of frivolousness sufficient justification for imposing the extreme remedy of a pre-filing order.

5

d. Narrowly Tailored Pre-Filing Restrictions

6

Finally, even if the Court did find the record sufficient to declare Plaintiff a vexatious
litigant and to impose a pre-filing restriction, the Court finds that the restriction Defendant

8

proposes is not “narrowly tailored to closely fit the specific vice encountered.” De Long, 912 F.2d

9

at 1148-49. Defendant seeks a general pre-filing order restraining Plaintiff from being able to file

10
United States District Court
For the Northern District of California

7

any complaints with the Clerk of the Court absent written authorization from a Judge of the Court,

11

regardless of whether those complaints are related in nature to the complaint at issue here. Such a

12

broad pre-filing restriction is not narrowly tailored. To the contrary, the Ninth Circuit has

13

repeatedly struck down as “overly broad” similar orders that are not sufficiently tailored to address

14

“the specific vice encountered.” See De Long, 912 F.2d at 1148; Moy, 906 F.2d at 470-741;

15

O’Loughlin, 920 F.2d at 618 (reversing an order that enjoined plaintiff from filing any complaint in

16

forma pauperis). As previously noted, although Plaintiff has brought twelve similar cases against

17

different defendants in the past year, thus far no other court has made a finding of frivolousness or

18

harassment in these cases. To the extent this Court finds that Plaintiff’s action against Defendant

19

Phoenix Technologies is frivolous, the Court dismisses this matter with prejudice, thus insulating

20

Defendant from the specific vice encountered. The Court does not find any other remedy justified

21

by the record at this time.

22
23

III.

CONCLUSION
For all the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss with

24

prejudice, but DENIES Defendant’s motion to declare Plaintiff a vexatious litigant.

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IT IS SO ORDERED.

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Dated: November 9, 2011

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_________________________________
LUCY H. KOH
United States District Judge

12
Case No.: 11-CV-01479-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS, AND DENYING DEFENDANT’S MOTION TO
DECLARE PLAINTIFF A VEXATIOUS LITIGANT