Greenspan v. IAC/InterActiveCorp et al

Filing 161

ORDER by Judge Ronald M. Whyte re: granting 150 , 151 Motion to Declare Plaintiff a Vexatious Litigant and granting in part Motions for Attorneys' Fees. (rmwlc1, COURT STAFF) (Filed on 9/30/2016)

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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
Northern District of California

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BRAD GREENSPAN,

Case No. 14-cv-04187-RMW

Plaintiff,
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v.

ORDER GRANTING MOTION TO
DECLARE PLAINTIFF A VEXATIOUS
LITIGANT AND GRANTING IN PART
MOTIONS FOR ATTORNEYS’ FEES

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IAC/INTERACTIVECORP, et al.,
Defendants.

Re: Dkt. Nos. 150, 151

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Defendant Google brings this motion to declare plaintiff Brad Greenspan a vexatious

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litigant and seeks to recover its attorneys’ fees incurred in bringing the motion. Dkt. No. 150.

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Defendant IAC joins Google’s motion for an order declaring plaintiff a vexatious litigant and

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seeks to recover its attorneys’ fees and costs incurred in preparing the notice of joinder, as well as

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attorneys’ fees incurred after this court’s November 10, 2015 order. Dkt. No. 151. Plaintiff did not

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file a written opposition to the motion. The court heard argument on September 23, 2016.

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At the hearing on this motion, plaintiff’s new counsel requested an opportunity to file a

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written opposition because of plaintiff’s important interest in avoiding a vexatious litigant order.

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On August 26, 2016, at the hearing on several of plaintiff’s motions, plaintiff represented that he

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had obtained new counsel and that counsel would appear that day. Plaintiff’s new counsel,

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however, did not appear until the day before the hearing on this motion. Plaintiff does not explain

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14-cv-04187-RMW
ORDER GRANTING MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT
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his failure to file a written opposition to defendants’ motion, but did file another motion of his

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own after defendants’ filing. Under these circumstances, the court finds that no extension of time

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to file an opposition is warranted.
For the reasons set forth below, the court grants defendants’ motion to declare plaintiff a

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vexatious litigant and grants in part defendants’ requests for attorneys’ fees.

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I.

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BACKGROUND
Plaintiff is a former employee and shareholder of Intermix, Inc. Compl. ¶ 8. In 2005,

Intermix sold the social media website MySpace to News Corp. Id. ¶¶ 15-16. Plaintiff filed this

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action on September 16, 2015, alleging that several defendants conspired to depress MySpace’s

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sales price. See id. ¶¶ 20-30. On May 15, 2015, this case was dismissed with prejudice for failure

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United States District Court
Northern District of California

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to prosecute, and judgment was entered against plaintiff. Dkt. Nos. 29, 30. Plaintiff then filed

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several motions for relief. See Dkt. Nos. 32, 39, 47, 57, 58, 59, 60. The court denied all of

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plaintiff’s motions except for plaintiff’s motion to set aside the judgment. Dkt. No. 66.

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The court deferred ruling on plaintiff’s motion to set aside the judgment, stating that the

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court would grant plaintiff’s requested relief if plaintiff 1) obtained new counsel and 2) reimbursed

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defendants for costs and expenses incurred as a result of the entry of judgment. Id. Plaintiff

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obtained new counsel, but plaintiff did not reimburse defendants. The court set a deadline for

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plaintiff to reimburse defendants and granted plaintiff’s request for an extension. Dkt. Nos. 84, 90.

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Plaintiff did not request another extension. Accordingly, the court denied plaintiff’s motion to set

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aside judgment on May 15, 2016. Dkt. No. 99. In the same order, the court granted plaintiff’s

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counsel’s motion to withdraw. Id.

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Proceeding pro se, plaintiff then filed several motions. See Dkt. Nos. 111, 116, 121, 124,

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127, 131, 132, 144. Defendants then moved to declare plaintiff vexatious. Dkt. Nos. 150, 151.

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Plaintiff did not file a response to defendants’ motion, but did file another motion of his own. Dkt

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153. All of plaintiff’s motions have been denied by the court. See Dkt. Nos. 114, 154.New counsel

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for plaintiff appeared on September 22, 2016, the day before the hearing on this motion. Dkt. Nos.

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156-59.

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14-cv-04187-RMW
ORDER GRANTING MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT
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II.

MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT
“Federal courts can ‘regulate the activities of abusive litigants by imposing carefully

tailored restrictions under . . . appropriate circumstances.’” Ringgold-Lockhart v. Cty. of Los

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Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014) (alteration in original) (quoting De Long v.
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Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990)). “Pursuant to the All Writs Act, 28 U.S.C. §
1651(a), ‘enjoining litigants with abusive and lengthy [litigation] histories is one such . . .
restriction’ that courts may impose.” Id. (alterations in original) (quoting De Long, 912 F.2d at
1147). “Out of regard for the constitutional underpinnings of the right to court access, ‘pre-filing

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orders should rarely be filed,’ and only if courts comply with certain procedural and substantive
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requirements.” Id. (quoting De Long, 912 F.2d at 1147). A district court must: (1) give the litigant
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United States District Court
Northern District of California

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“notice and an opportunity to be heard;” (2) “create an adequate record for review;” (3) make
“substantive findings as to the frivolous or harassing nature of the litigant’s actions;” and (4)
narrowly tailor the order “to closely fit the specific vice encountered.” De Long, 912 F.2d at 1147-

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48.
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A. Notice
Plaintiff was provided adequate notice and an opportunity to be heard. Google timely

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served plaintiff with the instant motion. See Dkt. No. 150 at 13. A hearing was held on September
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23, 2016. Plaintiff, therefore, was “provided with an opportunity to oppose the order before it was

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entered.” De Long, 912 F.2d at 1147.
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B.

Record for Review

“An adequate record for review should include a listing of all the cases and motions that

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led the district court to conclude that a vexatious litigant order was needed. At the least, the record
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needs to show, in some manner, that the litigant’s activities were numerous or abusive.” De Long

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v. Hennessey, 912 F.2d at 1147 (internal citations omitted). Plaintiff has filed sixteen substantive
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motions since judgment was entered in this case. See Dkt. Nos. 32, 39, 47, 57, 58, 59, 91, 111,
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116, 121, 124, 127, 131, 133, 144, 153. All of plaintiff’s motions have been denied. See Dkt. Nos.

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66, 99, 114, 154. The court also notes that plaintiff has litigated or attempted to litigate claims
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ORDER GRANTING MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT
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arising out of the MySpace sale in several other cases: Greenspan v. Intermix Media, Inc, No. BC

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338786, filed in the Superior Court of California, County of Los Angeles; Brown v. Brewer, No.

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2:06-cv-03731-GHK-SH, filed in the Central District of California; Greenspan v. News Corp., No.

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CV 9567-VCG, filed in the Delaware Court of Chancery; In re High-Tech Employee Antitrust

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Litigation, No. 5:11-CV-02509-LHK, filed in the Northern District of California; Huthard v. News

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Corp., No. 2:13-cv-04253-MWF-AJW, filed in the Central District of California.

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C. Substantive Findings

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To make a substantive finding as to the frivolousness nature of plaintiff’s activities, the
court must “look at ‘both the number and content of the filings as indicia’ of the frivolousness of

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the litigant’s claims.” De Long, 912 F.2d at 1148 (quoting In re Powell, 851 F.2d 427, 431 (D.C.

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United States District Court
Northern District of California

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Cir. 1988)). Plaintiff has an extensive history of duplicative and frivolous filings.

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Plaintiff did not respond to this court’s order to show cause why the action should not be

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dismissed, resulting in entry of judgment against plaintiff. Plaintiff then proceeded to file six

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separate motions seeking post-judgment relief. Instead of complying with the court’s conditions

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for setting aside the judgment, plaintiff let the already-extended deadline for payment come and go

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without requesting a second extension. The court, therefore, denied plaintiff’s motion to set aside

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the judgment.

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Plaintiff responded by filing a series of frivolous motions. For example, plaintiff argued

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that “newly discovered evidence” warranted relief from the court’s order denying of his motion to

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set aside the judgment, but cited no new evidence related to the denial. See Dkt. Nos. 111, 116.

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Plaintiff later filed a second motion citing the same irrelevant evidence. See Dkt. No. 127. Plaintiff

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also moved to strike the date “July 5, 2015” from the opposition brief filed by IAC on July 5,

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2016. See Dkt. No. 145. Plaintiff’s “motion for administrative relief” alleged misconduct by

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parties in other cases. See Dkt. No. 153. None of plaintiff’s filings included a reasonable

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explanation for plaintiff’s failure to comply with the conditions set by the court.

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Plaintiff’s practice of filing of frivolous motions is not limited to this case. After his claims
were dismissed in Brown v. Brewer, plaintiff made two unsuccessful attempts to intervene in the
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ORDER GRANTING MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT
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case. See No. 2:06-cv-03731-GHK-SH, Dkt. Nos. 341 (order rejecting motion to intervene), 391

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(order striking three of plaintiff’s motions). The Ninth Circuit then dismissed plaintiff’s appeal of

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the settlement in the case as untimely. See id., Dkt. No. 454. Plaintiff’s motion to intervene and his

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motion for recusal in In re High-Tech Employee Antitrust Litigation were denied. See Dkt. No.

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150-1, Rubin Decl., at Ex. D. The court found the plaintiff’s motions lacking in merit, but also

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noted that the attorney who purportedly signed the motions had informed the court that she did not

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file them. See id. In Huthart v. News Corporation, plaintiff filed three motions after the court

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denied his motion to intervene, all of which were denied. See id. at Ex. C. The district court found

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plaintiff’s argument irrelevant to the challenged order. Id. The Delaware Court of Chancery

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returned a motion to plaintiff because it was filed after the case was closed. See id. at Ex. B.

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United States District Court
Northern District of California

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Plaintiff’s filings in other cases suggest that plaintiff’s pattern of filings may continue in the

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absence of a pre-filing order.

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D. Narrow Tailoring

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The requested pre-filing order limits plaintiff’s ability to file motions in this case only. It is

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therefore narrowly tailored to fit the specific vice encountered by defendants—plaintiff’s frivolous

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motions practice in this case.

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III.

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MOTIONS FOR ATTORNEYS’ FEES
Under 28 U.S.C. § 1927, “[a]ny attorney or other person admitted to conduct cases in any

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court” who “multiplies the proceedings in any case unreasonably and vexatiously may be required

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by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably

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incurred because of such conduct.” Section 1927 sanctions “must be supported by a finding of

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subjective bad faith. Bad faith is present when an attorney knowingly or recklessly raises a

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frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent.” In re

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Keegan Mgmt. Co., Sec. Litig., 78 F.3d 431, 436 (9th Cir. 1996) (internal citations and quotation

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marks omitted). Section 1927 sanctions “may be imposed on a pro se plaintiff.” See Wages v.

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I.R.S., 915 F.2d 1230, 1235-36 (9th Cir. 1990).

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Plaintiff’s motions have undoubtedly been burdensome for defendants. Although pro se,
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ORDER GRANTING MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT
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plaintiff appears to be familiar with litigation and was acting knowingly or recklessly when he

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filed his numerous motions. The court finds that he acted in subjective bad faith. An award of

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attorneys’ fees is appropriate. The fees requested are at a rate that exceeds those charged for

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similar work in the area where defendants’ counsel practice and location of the litigation. The

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court accepts the time records of defendants’ counsel, but awards an hourly billing rate of $500 for

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time spent in bring this motion. Therefore, Google is awarded $15,100.00 and IAC is awarded

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$3,750.00.

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IV.

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ORDER
The court hereby declares plaintiff Brad Greenspan to be a vexatious litigant and orders

Mr. Greenspan to obtain leave of court before filing any further motions in this case. Motions that

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United States District Court
Northern District of California

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are frivolous or duplicative will be returned. Plaintiff is ordered to pay $15,100.00 to Google and

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$3,750.00 to IAC in attorneys’ fees.

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IT IS SO ORDERED.
Dated: September 30, 2016
______________________________________
Ronald M. Whyte
United States District Judge

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14-cv-04187-RMW
ORDER GRANTING MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT
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