Leo v. Garmin International, Inc.

Filing 290

MEMORANDUM AND ORDER - The Clerk is directed to terminate plaintiffs electronic filing privileges. If plaintiff seeks to conventionally file any further motion, document or exhibit in this case or to file a new case against Garmin which appears to re late to the issues which plaintiff has raised in this case the Clerk shall submit such motion, document or exhibit to the undersigned judge. The Court will then determine whether plaintiff may file the document or case in question. Plaintiff is furth er warned that if he seeks to file in this Court any document which requests post-judgment reconsideration, alteration or modification of the Courts Memorandum And Order (Doc. #200) or Judgment (Doc. #201), the Court will sanction plaintiff a minimum of $500.00 for each violation. The court overrules 264 Motion to Recognize Facts; overrules 270 Motion Recognize Facts; overrules 272 Motion Recognize Facts; overrules 279 Motion Recognize Facts; overrules 281 Motion Recognize Facts; overrules 286 Motion Recognize Facts; overrules 289 Motion Recognize Facts.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ALEX HUAQIANG LEO,

)
)
Plaintiff,
)
v.
)
)
GARMIN INTERNATIONAL,
)
)
Defendant.
)
__________________________________________)

CIVIL ACTION
No. 09-CV-2139-KHV

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff’s Motion To Recognize The Concerned Facts
(Doc. #264) filed July 25, 2011; Plaintiff’s Motion To Recognize Material Facts (Doc. #270) filed
August 15, 2011; Plaintiff’s Motion To Recognize Material Facts (Doc. #272) filed August 17,
2011; Plaintiff’s Motion To Recognize Material Facts (Doc. #279) filed September 9, 2011;
Plaintiff’s Motion To Recognize Material Facts (Doc. #281) filed September 12, 2011, Plaintiff’s
Motion To Recognize Material Facts (Doc. #286) filed September 15, 2011 and Plaintiff’s Motion
To Recognize Material Facts (Doc. #289) filed September 26, 2011. For reasons set forth below,
the Court overrules plaintiff’s motions and imposes restrictions on any further filings by plaintiff in
this case or against Garmin concerning the issues raised in this case.
Factual And Procedural Background
On March 20, 2009, pro se plaintiff filed this lawsuit claiming that Garmin failed to hire him
in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq., and
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e. On September 24, 2009,
the Court sustained defendant’s partial motion to dismiss plaintiff’s disparate impact and Title VII
claims. See Memorandum And Order (Doc. #63). On May 21, 2010, the Court sustained
defendant’s motion for summary judgment on plaintiff’s remaining claims of employment

discrimination. Memorandum And Order (Doc. #200). On June 18, 2010, plaintiff filed a notice of
appeal. See Doc. # 207, appeal No. 10-3146. On April 18, 2011, plaintiff filed a motion to vacate
the judgment under Fed. R. Civ. P. Rules 60(b)(1), (b)(2) and b(4). Plaintiff’s Motion For Relief
From The Judgment And Orders Because The Court Lacks Jurisdiction Over The Subject Matter
(Doc. # 224). On June 21, 2011, the Court overruled that motion. Order (Doc. #258). On June 24,
2011, plaintiff filed a Motion For Reconsideration Re [Doc. #258] Order On Motion For Relief
(Doc. #259).
On August 16, 2011, the Tenth Circuit affirmed this Court’s rulings which dismissed
plaintiff’s disparate impact and Title VII claims and granted defendant summary judgment. See
Order And Judgment in Tenth Circuit appeal No. 10-3146 (Doc. #274 in this case) (also finding no
merit in plaintiff’s allegations of attorney misconduct against defendant’s lawyers).
Meanwhile, on July 21, 2011, plaintiff filed a second notice of appeal of this Court’s Order
of June 21, 2011 (Doc. #258) which overruled plaintiff’s motion for relief from judgment. See
Doc. #262 (appeal No. 11-3213). On July 25, 2011, the Tenth Circuit abated plaintiff’s appeal No.
11-3213 “pending notification that the district court has entered an order disposing Plaintiff Alex
Leo’s motion for reconsideration [doc. 259], which was filed in the district court on June 24, 2011.”
Doc. #266. On July 25, 2011, the Court overruled plaintiff’s motion for reconsideration. Order
(Doc. #267). On July 28, 2011, the Tenth Circuit lifted the abatement of Appeal No. 11-3213.
Thus, plaintiff’s second appeal remains pending before the Tenth Circuit.
Analysis
Plaintiff’s motions to recognize material facts address the same arguments which the Court
has repeatedly rejected. For reasons set forth in previous rulings, the Court therefore finds that the

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motions should be overruled. Further, the Court notes that it has warned plaintiff of possible
sanctions for further frivolous filings in this case. See Doc. #267 at 5.1 The right of access to the
courts is neither absolute nor unconditional and the Constitution confers no right to prosecute
frivolous or malicious actions. See Winslow v. Hunter, 17 F.3d 314, 315 (10th Cir. 1994). The goal
of fairly dispensing justice is compromised when the Court is forced to devote limited resources to
processing repetitious and frivolous claims. In re Sindram, 498 U.S. 177, 180 (1991). Federal courts
have inherent power to regulate the activities of abusive litigants by imposing carefully tailored
restrictions under appropriate circumstances. See Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir.
1989); see also Phillips v. Carey, 638 F.2d 207, 209 (10th Cir. 1981) (exercise of power to limit
filing limited to well-documented and extreme cases; litigant’s history must indicate that his filings
are predominantly malicious, frivolous or otherwise abusive).
The Tenth Circuit has applied a five-factor test in determining whether a court may limit a
litigant’s filing. See, e.g., United States v. Kettler, 934 F.2d 326 (Table), 1991 WL 94457, at *6
(10th Cir. 1991) (citing Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)). These factors
include (1) the litigant’s history of litigation and whether it entails vexatious, harassing or duplicative
lawsuits; (2) the litigant’s motive in pursuing litigation, e.g. whether the litigant has 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 lesser sanctions would be adequate to protect the courts

1

Specifically, the Court stated as follows: “The Court cautions plaintiff that any
further request to this Court for post-judgment reconsideration, alteration or modification of
the Court’s Memorandum And Order (Doc. #200) or Judgment (Doc. #201) may result in
monetary sanctions.” Memorandum And Order (Doc. #267) filed July 25, 2011 (also overruling
plaintiff’s 12 separate Motion[s] For Relief From Judgment).
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and other parties. Id. Ultimately, the question is whether a litigant is likely to continue to abuse the
judicial process and harass other parties. Safir, 792 F.2d at 24.
Here, the Court finds that all five factors weigh in favor of limiting plaintiff’s pro se filings
in this case and as to this defendant. First, plaintiff has filed numerous successive motions, most of
which were vexatious and meritless efforts to overcome the Court’s summary judgment ruling, which
the Tenth Circuit has now affirmed. Plaintiff has authored the majority of the 288 documents on the
docket sheet. Plaintiff’s abusive and repetitive filings have strained the resources of the Court, and
undoubtedly those of defendant as well. See In re McDonald, 489 U.S. 180, 184 (1989); see also
Zhu v. Fed. Hous. Fin. Bd, No. 04-2539, 2007 WL 1266887, at * 4 (D. Kan. May 1, 2007). As to
the second factor, plaintiff has repeatedly sought to reassert dismissed claims. Plaintiff could not
have had an objective good faith expectation that he would prevail on his repetitive motions to
reconsider issues already ruled upon. The third factor also weighs in favor of filing limitations
because plaintiff is not represented by counsel. As to the fourth factor, plaintiff has repeatedly filed
motions to reconsider and made numerous attempts to reassert claims which the Court has
dismissed.2 Defendant has incurred needless expense in responding to plaintiff’s repetitive motions.
This factor weighs in favor of filing restrictions. Finally, regarding the fifth factor, the Court has
already issued a $2,000 sanction against plaintiff for misconduct during depositions.

See

Memorandum And Order (Doc. #186) filed April 7, 2010. Further, the Court has warned plaintiff
concerning further monetary sanctions. The monetary sanction and the warnings did not deter
plaintiff from making groundless attempts to revive this case. The five factors all weigh in favor of

2

Plaintiff also filed two additional lawsuits against defendant; those suits are currently
on appeal. See Leo v. Garmin, Tenth Circuit Case Nos. 11-3109; 11-3145.
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filing limitations.
IT IS THEREFORE ORDERED that the Clerk is directed to terminate plaintiff’s
electronic filing privileges. If plaintiff seeks to conventionally file any further motion,
document or exhibit in this case – or to file a new case against Garmin which appears to relate
to the issues which plaintiff has raised in this case – the Clerk shall submit such motion,
document or exhibit to the undersigned judge. The Court will then determine whether plaintiff
may file the document or case in question. Plaintiff is further warned that if he seeks to file
in this Court any document which requests post-judgment reconsideration, alteration or
modification of the Court’s Memorandum And Order (Doc. #200) or Judgment (Doc. #201),
the Court will sanction plaintiff a minimum of $500.00 for each violation.
IT IS FURTHER ORDERED that Plaintiff’s Motion To Recognize The Concerned
Facts (Doc. #264) filed July 25, 2011; Plaintiff’s Motion To Recognize Material Facts (Doc. 270)
filed August 15, 2011; Plaintiff’s Motion To Recognize Material Facts (Doc. #272) filed August
17, 2011; Plaintiff’s Motion To Recognize Material Facts (Doc. #279) filed September 9, 2011;
Plaintiff’s Motion To Recognize Material Facts (Doc. #281) filed September 12, 2011;
Plaintiff’s Motion To Recognize Material Facts (Doc. #286) filed September 15, 2011 and
Plaintiff’s Motion To Recognize Material Facts (Doc. #289) filed September 26, 2011 be and
hereby are OVERRULED.
Dated this 26th day of September, 2011, at Kansas City, Kansas.
s/ Kathryn H. Vratil
Kathryn H. Vratil
United States District Judge

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