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O'Neal v. Empire Fire and Marine Insurance Company, Inc.

United States District Court, D. Nevada

April 4, 2018

WENDELL DWAYNE O'NEAL, Plaintiffs,
v.
EMPIRE FIRE & MARINE INSURANCE COMPANY, INC., et al., Defendants.

          ORDER

         Presently before the court is plaintiff Wendell Dwayne O'Neal's motion to set aside this court's order on plaintiff's motion for reconsideration. (ECF No. 165). Defendants Empire Fire and Marine Insurance Co., Zurich Insurance Company, Inc., California Roadrunner Rentals, Inc., Cisneros & Marias Esq., David (LNU), Anthony Adams, Cymbalista Boaz, Tricia Green, Carol Millaud, Janet Pancoast, Ruder Ruderhausen, Jaime Santos, and Matthew Wolf (collectively, defendants) have not filed a response, and the time for doing so has since passed

         Also before the court is defendants' motion to designate plaintiff a vexatious litigant. (ECF No. 168). Plaintiff filed a response (ECF No. 169), to which defendants replied (ECF No. 171).

         Also before the court is plaintiff's ex parte “motion for indicative ruling” regarding a memorandum plaintiff filed in support of his motion to set aside. (ECF No. 172).

         I. Background and discussion

         a. Plaintiff's motion to set aside

         On October 13, 2017, the court granted defendants' motion to dismiss, thereby dismissing plaintiff's fourth amended complaint. (ECF No. 154). On December 19, 2017, the court denied plaintiff's motion to reconsider the court's order granting defendants' motion to dismiss. (ECF No. 163). Plaintiff now requests the court set aside its order denying plaintiff's motion for reconsideration. (ECF No. 165).

         As an initial matter, the court acknowledges that the complaint was filed pro se and is therefore held to less stringent standards. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”) (internal quotations and citations omitted). However, “pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986).

         As defendants note, plaintiff's current motion effectively asks the court to reconsider the court's order denying plaintiff's original motion to reconsider. Plaintiff's current motion does not demonstrate any legal or factual grounds for this court to reconsider its ruling on the original motion or its ruling on the motion to reconsider. Accordingly, the court will deny plaintiff's motion.

         b. Defendants' motion to designate plaintiff a vexatious litigant

         Defendants request that this court designate plaintiff a vexatious litigant. (ECF No. 168). Defendants note that plaintiff has brought 108 cases in federal district courts, courts of appeals, and county courts as a pro se litigant. Id. “All of those filings were dismissed[, ] with some dismissed by the court acting sua sponte.” Id. On April 19, 2017, the Eighth Judicial District Court of Nevada designated plaintiff a vexatious litigant. Id.; see (ECF No. 168-1).

         i. Legal standard

         The All Writs Act, 28 U.S.C. § 1651(a), empowers federal district courts to enjoin vexatious litigants who have a history of abusing the court's limited resources. See Ringgold-Lockhart v. Cty. of Los Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014) (citing De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990)). Under the All Writs Act, a district court can order a person with lengthy histories of abusive litigation-a vexatious litigant-to obtain leave of the court before filing any future lawsuits. See Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) (citing 28 U.S.C. § 165l(a)).

         Flagrant abuse of the judicial process cannot be tolerated because it “enables one person to preempt the use of judicial time that properly could be used to consider the meritorious claims of other litigants.” See Molski, 500 F.3d at 1057 (quoting DeLong, 912 F.2d at 1148). Vexatious litigant orders, however, are an extreme remedy, and should rarely be entered. “[T]he right of access to the courts is a fundamental right protected by the Constitution.” See Ringgold-Lockhart, 761 F.3d at 1061 (quoting Delew v. Wagner, 143 F.3d 1219, 1222 (9th Cir. 1998)). And restricting that access is a serious matter. Id. (“The First Amendment ‘right of the people … to petition the Government for a redress of grievances, ' which secures the right to access the courts, has been termed ‘one of the most precious of the liberties safeguarded by the Bill of Rights.'” (quoting BE & K Const. Co. v. NLRB, 536 U.S. 516, 524-25 (2002))); see also Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002) (noting that the Supreme Court has located the court access right in the Privileges and Immunities clause, the First Amendment petition clause, the Fifth Amendment due process clause, and the Fourteenth Amendment equal protection clause); Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990) (comparing the profligate use of pre-filing orders to restrict the vexatious litigant's right of access to the courts to hanging a “Sword of Damocles … over his hopes for federal access for the foreseeable future.”).

         Out of regard for the constitutional underpinnings of this right, pre-filing orders should be filed only if district courts comply with certain procedural and substantive requirements. See De Long, 912 F.2d at 1147. When district courts seek to declare a litigant vexatious and impose pre-filing restrictions, they must: (1) provide litigants with notice and an opportunity to oppose the order before it is entered; (2) compile an adequate record for appellate review, including “a listing of all the cases and motions that led the district court to conclude that a vexatious litigant order was needed”; (3) make substantive findings of frivolousness or ...


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