United States District Court, D. Nevada
HERBERT S. PENROSE, Plaintiff,
QUALITY LOAN SERVICE CORP., et al., Defendants.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
March 25, 2019, the Court issued its order (“MTD
Order”) granting MTD Defendants' motion to dismiss
(“Motion”) pro se Plaintiff Herbert S.
Penrose's Complaint. (ECF No. 11.) In their Motion, MTD
Defendants asked the Court to declare Plaintiff a vexatious
litigant based on Plaintiff filing the same types of claims
which he has failed to succeed on (ECF No. 8 at 14). Having
provided Plaintiff notice and opportunity to respond, the
Court will now grant MTD Defendants' request and declares
Plaintiff a vexatious litigant to the extent provided below.
Defendants particularly seek a declaration preventing
Plaintiff from filing any further litigation for claims
arising from a loan borrowed by Randall G. Sotka against MTD
Defendants. (ECF No. 8 at 14.) The Court declined to rule on
the vexatious litigant issue at the time it issued the MTD
Order because Plaintiff had not been provided notice and an
opportunity to be heard regarding the extreme remedy (ECF No.
11 at 7-9). See, e.g., Molski v. Evergreen
Dynasty, 500 F.3d 1047, 1056-57 (9th Cir. 2007); De
Long v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir.
1990). However, the MTD Order informed Plaintiff that he was
effectively put on notice of MTD Defendants' request to
have him declared a vexatious litigation. (Id. at
8.) The Court also gave Plaintiff 15 days from the entry of
the MTD Order to “explain in writing why he should not
be declared a vexatious litigant.” (Id.) To
date, Plaintiff has failed to respond to the MTD Order.
Court has “inherent power” to “regulate the
activities of abusive litigants by imposing carefully
tailored restrictions under the appropriate
circumstances.” De Long, 912 F.2d at 1147
(quotation and citation omitted); see also 28 U.S.C.
§ 1651(a) (“The Supreme Court and all courts
established by Act of Congress may issue all writs necessary
or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.”).
However, a court must approach the act of declaring a
litigant vexatious with caution and pre-filing orders to that
effect “should rarely be filed.” Id.
Ninth Circuit has provided guidelines for courts to apply
before ordering pre-filing restrictions. Id. First,
to be compliant with the requirements of due process the
court must provide the litigant “an opportunity to
oppose the order before it is entered” Id.
Second, to ensure adequate review, the court should provide
“a listing of all the cases and motions that led the .
. . court to conclude that a vexatious litigant order was
needed.” Id. (citation omitted). “At the
least, the record needs to show, in some manner, that the
litigant's activities were numerous or abusive.”
Id. (citations omitted). The court must look at
“both the number and content” of the
litigant's filing and make substantive findings regarding
the frivolousness or harassing nature of the filings.
Ringgold-Lockhart v. County of Los Angeles, 761 F.3d
1057, 1064 (9th Cir. 2014). While the court's
frivolousness finding is not number-dependent, litigiousness
alone is insufficient-the litigant's claims must be
without merit. Id. Finally, the court “should
consider whether other, less restrictive options, are
adequate to protect the court and parties.”
Id. (citations omitted). /// Here, the first
guideline requirement was met when the Court provided
Plaintiff notice and opportunity to respond per the MTD
Order. As to the second and third requirements, Plaintiff has
filed at least three cases in this Court-including this case-
asserting the same claims, concerning the same Property,
against the same Defendants or their
predecessors-in-interest. See Penrose v. First Magnus
Fin. Corp., No. 3:18-cv-00276-RCJ-VPC, 2018 WL 3550249
(D. Nev. July 24, 2018); Penrose v. First Magnus Fin.
Corp., No. 3:18-cv-00576-MMD-CBC. All three cases
have been found unmeritorious. Because the Court's
finding of frivolousness is not based on numbers, the Court
finds that the repetitious content of these filings warrants
the conclusion that Plaintiff is a vexatious litigant in such
respects-filing the same frivolous claims. The Court finds
that it would not be overbroad or unfair to preclude
Plaintiff from filing any further litigation based on claims
arising from a loan borrowed by Randall G. Sotka concerning
real property Plaintiff later purchased from Sotka against
named Defendants without first seeking Court approval. An
order in this regard serves the aims of conserving the
resources of the Court and parties, to prevent (or limit)
abuse of the judicial system, and is no more restrictive than
necessary to meet such aims while protecting Plaintiff's
right to bring legitimate actions in the future.
therefore ordered that MTD Defendants' request to have
Plaintiff declared a vexatious litigant is granted. The Court
declares that Plaintiff is a vexatious litigant in accordance
with this order.
further order that Plaintiff is specifically precluded from
filing any further litigation based on claims arising from a
loan borrowed by Randall G. Sotka concerning real property
Plaintiff later purchased from Sotka against named Defendants
(or their predecessors or successors-in-interest) without
first seeking Court approval. Named Defendants includes MTD
Defendants-U.S. Bank, Nationstar, MERS-and Defendants Quality
Loan Service Corp, First Magnus Financial Corporation,
Greenwich Capital Financial Products, Inc., Greenwich Capital
Acceptance, Inc., and Countrywide Home Loan Servicing LP.
Court has dismissed claims against all Defendants. (ECF Nos.
11, 15.) Accordingly, the Clerk is instructed to enter
judgment in favor of Defendants and close this case.