3 * * *
4 GENAY L. AMERSON, an individual, Case No. 2:24-cv-01589-RFB-EJY
5 Plaintiff,
6 v. ORDER
EDUCATION CORPORATION, a domestic 8 corporation; PETER MIKHAIL, PRESIDENT OF MIKHAIL EDUCATION 9 CORPORATION; DOES 1 through 10; ROE Entities 11 through 20, inclusive jointly and 10 severally,
11 Defendants.
12 13 Pending before the Court are Defendants’ Motions for Sanctions (ECF Nos. 64, 90) along 14 with their respective Oppositions and Replies. ECF Nos. 77, 81, 98. 104. The Court reviewed all 15 of these documents. Defendants’ Motion at ECF No. 64 primarily arises from and addresses 16 Plaintiff’s Motion for Summary Judgment (ECF No. 53). Defendants’ Motion at ECF No. 90 17 primarily arises from and addresses Plaintiff’s Motion for Preliminary Injunction (ECF No. 65), 18 which was denied on May 6, 2025. ECF No. 82. Defendants’ Motions for Sanctions are denied 19 without prejudice and Plaintiff is warned regarding continued frivolous filings. 20 I. Discussion 21 Defendants’ arguments center on Plaintiff’s court filing, which Defendants contend establish 22 Plaintiff is in violation of Rule 11 of Federal Rule of Civil Procedure and properly found to be a 23 vexatiousness litigant under 28 U.S.C. § 1927. Specifically, Defendants point to Plaintiff’s Motion 24 for Summary Judgment (sometimes the “MSJ”) that appears to argue, at least in part, her mistaken 25 belief that because Defendants’ Motion to Dismiss treats the facts alleged by Plaintiff in her 26 Complaint as true, Defendants have admitted all the wrongdoing Plaintiff alleges. Plaintiff is wrong. 27 The law is clear that when a party files a motion to dismiss, that party must treat all factual 1 allegations as true.1 This does not mean the party who files the motion—here Defendants—admits 2 to or agrees with the accuracy of any facts stated by Plaintiff in her Complaint. Rather, Plaintiff is 3 advised that this is a mandatory standard applicable to motions to dismiss under Federal Rule of 4 Civil Procedure 12(b)(6). See Horizon AG-Products v. Precision Systems Engineering, Inc., Case 5 No. CIV 09-1109-JB/DJS, 2010 WL 4054131, at *1 n.2 (D. N.M. Sept. 28, 2010) (finding defendant 6 treated the plaintiff’s statements of facts “as true because it must for the purposes of its Motion to 7 Dismiss,” but doing so is “not an admission.”). Plaintiff’s continued assertion that Defendants have 8 admitted all facts as she states them must stop as Defendants have not done so and the Court has not 9 found Plaintiff has proven her case. 10 Defendants further contend (1) Plaintiff’s MSJ is wholly unsupported by facts and law, and 11 (2) was brought for an improper purpose; that is, “solely to increase the cost of litigation for 12 Defendants.” Defendants seek relief through reimbursement of their increased attorney fees in the 13 amount of $26,451.00. ECF No. 64 at 12-13. Defendants further seek an admonishment of Plaintiff 14 that “it will not allow continued frivolous filings to clutter its docket.” Id. at 13-14. 15 Defendants’ Second Motion for Sanctions, addresses Plaintiff’s motion seeking a 16 preliminary injunction (ECF No. 65). Here, the Court found Plaintiff’s underlying action “arises 17 from an alleged Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”) violation,” 18 while the motion for injunctive relief sought “monetary damages and injunctive relief related to 19 Defendant’s alleged hacking of her phone.” ECF No. 82. Citing Oncology, LLC v. Queens Med. 20 Ctr., 810 F.3d 631, 636 (9th Cir. 2015), the Court held “there must be a relationship between the 21 injury claimed in the motion for injunctive relief and the conduct asserted in the underlying 22 complaint.” Id. For this reason, the Court denied Plaintiff’s request for a preliminary injunction. 23 Id. Defendants seek relief in their Second Motion for Sanctions by once again requesting attorney’s 24 25
1 When considering a motion to dismiss, “[a]ll allegations of material fact in the complaint are taken as true and 26 construed in the light most favorable to the plaintiff.” McGary v. City of Portland, 386 F.3d 1259, 1261 (9th Cir. 2004). “However, the court is not required to accept legal conclusions cast in the form of factual allegation if those conclusions 27 cannot reasonably be drawn from the facts alleged.” Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) 1 fees (in the amount of $9,788.00), “and either termination sanctions or such sanctions a[s] … the 2 Court believes will reign in Plaintiff and dissuade further frivolous filings.” ECF No. 90 at 12. 3 A. The Applicable Legal Standards. 4 1. 28 U.S.C. § 1927. 5 Section 1927 of United States Code 28 states: “[a]ny attorney ... who so multiplies the 6 proceedings in any case unreasonably and vexatiously may be required by the court to satisfy 7 personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such 8 conduct.” Before sanctions are properly granted under this code section, U.S. district courts must 9 develop detailed factual findings regarding unreasonable and vexatious, bad faith conduct by a 10 litigant. Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997); see also Barnd 11 v. City of Tacoma, 664 F.2d 1339, 1343 (9th Cir. 1982) (remanding to the district court to either 12 withdraw the personal sanctions or enter specific findings of fact on whether defense counsel acted 13 in bad faith). While “[t]he district court has broad fact-finding powers with respect to sanctions, and 14 its findings warrant great deference,” the appellate court “must know to what … [it] defer[s].” 15 Primus, 115 F.3d at 649 (internal citation and quotation marks omitted). Litigation “tactics 16 undertaken with the intent to increase expenses, or delay, may … support a finding of bad faith.” 17 New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1306 (9th Cir. 1989) (referring to 28 U.S.C. 18 § 1927). The Ninth Circuit states: “Bad faith is present when an attorney knowingly or recklessly 19 raises a frivolous argument or argues a meritorious claim for the purpose of harassing an opponent”). 20 Id. (internal citations omitted); Gomez v. Vernon, 255 F.3d 1118, 1134 (9th Cir. 2001) 21 (“Recklessness, when combined with an additional factor such as frivolousness, harassment, or an 22 improper purpose, may support sanctions”). These standards are equally applicable to a pro se 23 plaintiff. Wages v. Internal Revenue Serv., 915 F.2d 1230, 1235-36 (9th Cir. 1990). 24 2. Federal Rule of Civil Procedure 11. 25 Federal Rule of Civil Procedure
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3 * * *
4 GENAY L. AMERSON, an individual, Case No. 2:24-cv-01589-RFB-EJY
5 Plaintiff,
6 v. ORDER
EDUCATION CORPORATION, a domestic 8 corporation; PETER MIKHAIL, PRESIDENT OF MIKHAIL EDUCATION 9 CORPORATION; DOES 1 through 10; ROE Entities 11 through 20, inclusive jointly and 10 severally,
11 Defendants.
12 13 Pending before the Court are Defendants’ Motions for Sanctions (ECF Nos. 64, 90) along 14 with their respective Oppositions and Replies. ECF Nos. 77, 81, 98. 104. The Court reviewed all 15 of these documents. Defendants’ Motion at ECF No. 64 primarily arises from and addresses 16 Plaintiff’s Motion for Summary Judgment (ECF No. 53). Defendants’ Motion at ECF No. 90 17 primarily arises from and addresses Plaintiff’s Motion for Preliminary Injunction (ECF No. 65), 18 which was denied on May 6, 2025. ECF No. 82. Defendants’ Motions for Sanctions are denied 19 without prejudice and Plaintiff is warned regarding continued frivolous filings. 20 I. Discussion 21 Defendants’ arguments center on Plaintiff’s court filing, which Defendants contend establish 22 Plaintiff is in violation of Rule 11 of Federal Rule of Civil Procedure and properly found to be a 23 vexatiousness litigant under 28 U.S.C. § 1927. Specifically, Defendants point to Plaintiff’s Motion 24 for Summary Judgment (sometimes the “MSJ”) that appears to argue, at least in part, her mistaken 25 belief that because Defendants’ Motion to Dismiss treats the facts alleged by Plaintiff in her 26 Complaint as true, Defendants have admitted all the wrongdoing Plaintiff alleges. Plaintiff is wrong. 27 The law is clear that when a party files a motion to dismiss, that party must treat all factual 1 allegations as true.1 This does not mean the party who files the motion—here Defendants—admits 2 to or agrees with the accuracy of any facts stated by Plaintiff in her Complaint. Rather, Plaintiff is 3 advised that this is a mandatory standard applicable to motions to dismiss under Federal Rule of 4 Civil Procedure 12(b)(6). See Horizon AG-Products v. Precision Systems Engineering, Inc., Case 5 No. CIV 09-1109-JB/DJS, 2010 WL 4054131, at *1 n.2 (D. N.M. Sept. 28, 2010) (finding defendant 6 treated the plaintiff’s statements of facts “as true because it must for the purposes of its Motion to 7 Dismiss,” but doing so is “not an admission.”). Plaintiff’s continued assertion that Defendants have 8 admitted all facts as she states them must stop as Defendants have not done so and the Court has not 9 found Plaintiff has proven her case. 10 Defendants further contend (1) Plaintiff’s MSJ is wholly unsupported by facts and law, and 11 (2) was brought for an improper purpose; that is, “solely to increase the cost of litigation for 12 Defendants.” Defendants seek relief through reimbursement of their increased attorney fees in the 13 amount of $26,451.00. ECF No. 64 at 12-13. Defendants further seek an admonishment of Plaintiff 14 that “it will not allow continued frivolous filings to clutter its docket.” Id. at 13-14. 15 Defendants’ Second Motion for Sanctions, addresses Plaintiff’s motion seeking a 16 preliminary injunction (ECF No. 65). Here, the Court found Plaintiff’s underlying action “arises 17 from an alleged Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”) violation,” 18 while the motion for injunctive relief sought “monetary damages and injunctive relief related to 19 Defendant’s alleged hacking of her phone.” ECF No. 82. Citing Oncology, LLC v. Queens Med. 20 Ctr., 810 F.3d 631, 636 (9th Cir. 2015), the Court held “there must be a relationship between the 21 injury claimed in the motion for injunctive relief and the conduct asserted in the underlying 22 complaint.” Id. For this reason, the Court denied Plaintiff’s request for a preliminary injunction. 23 Id. Defendants seek relief in their Second Motion for Sanctions by once again requesting attorney’s 24 25
1 When considering a motion to dismiss, “[a]ll allegations of material fact in the complaint are taken as true and 26 construed in the light most favorable to the plaintiff.” McGary v. City of Portland, 386 F.3d 1259, 1261 (9th Cir. 2004). “However, the court is not required to accept legal conclusions cast in the form of factual allegation if those conclusions 27 cannot reasonably be drawn from the facts alleged.” Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) 1 fees (in the amount of $9,788.00), “and either termination sanctions or such sanctions a[s] … the 2 Court believes will reign in Plaintiff and dissuade further frivolous filings.” ECF No. 90 at 12. 3 A. The Applicable Legal Standards. 4 1. 28 U.S.C. § 1927. 5 Section 1927 of United States Code 28 states: “[a]ny attorney ... who so multiplies the 6 proceedings in any case unreasonably and vexatiously may be required by the court to satisfy 7 personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such 8 conduct.” Before sanctions are properly granted under this code section, U.S. district courts must 9 develop detailed factual findings regarding unreasonable and vexatious, bad faith conduct by a 10 litigant. Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997); see also Barnd 11 v. City of Tacoma, 664 F.2d 1339, 1343 (9th Cir. 1982) (remanding to the district court to either 12 withdraw the personal sanctions or enter specific findings of fact on whether defense counsel acted 13 in bad faith). While “[t]he district court has broad fact-finding powers with respect to sanctions, and 14 its findings warrant great deference,” the appellate court “must know to what … [it] defer[s].” 15 Primus, 115 F.3d at 649 (internal citation and quotation marks omitted). Litigation “tactics 16 undertaken with the intent to increase expenses, or delay, may … support a finding of bad faith.” 17 New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1306 (9th Cir. 1989) (referring to 28 U.S.C. 18 § 1927). The Ninth Circuit states: “Bad faith is present when an attorney knowingly or recklessly 19 raises a frivolous argument or argues a meritorious claim for the purpose of harassing an opponent”). 20 Id. (internal citations omitted); Gomez v. Vernon, 255 F.3d 1118, 1134 (9th Cir. 2001) 21 (“Recklessness, when combined with an additional factor such as frivolousness, harassment, or an 22 improper purpose, may support sanctions”). These standards are equally applicable to a pro se 23 plaintiff. Wages v. Internal Revenue Serv., 915 F.2d 1230, 1235-36 (9th Cir. 1990). 24 2. Federal Rule of Civil Procedure 11. 25 Federal Rule of Civil Procedure 11(b) provides that an attorney or pro se party is subject to 26 sanctions under this Rule if he/she presents a “pleading, written motion, or other paper” to the Court 27 that is for an “improper purpose, such as to harass, cause unnecessary delay, or needlessly increase 1 existing law,” “the factual contentions [do not] have evidentiary support,” or if “denials of factual 2 contentions are [not] warranted.” “If, after notice and a reasonable opportunity to respond, the court 3 determines that Rule 11(b) has been violated, the court may impose an appropriate sanction.” Fed. 4 R. Civ. P. 11(c)(1). 5 While a district court may impose Rule 11 sanctions against a pro se litigant, courts construe 6 pro se filings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Cook v. Peter Kiewit Sons 7 Co., 775 F.2d 1030, 1037 & n.13 (9th Cir. 1985). Further, the Court has “sufficient discretion to 8 take account of the special circumstances that often arise in pro se situations.” Adv. Comm. Notes 9 to the 1983 amendment to Fed. R. Civ. P. 11. However, “Rule 11’s express goal is deterrence: … 10 litigants, proceeding at the expense of taxpayers, need to be deterred from filing frivolous lawsuits 11 as much as litigants who can afford to pay their own fees and costs.” Warren v. Guelker, 29 F.3d 12 1386, 1390 (9th Cir. 1994); see also Adv. Comm. Notes to the 1993 amendments to Fed. R. Civ. P. 13 11.
14 B. 28 U.S.C. § 1927 as Applied to Plaintiff’s MSJ, Motion for Preliminary Injunction, and Prior Motion History. 15 16 In Defendants’ first Motion for Sanctions, which appears prompted by the frustration of 17 responding to Plaintiff’s MSJ, they cite to six filings and two refusal to file by Plaintiff that 18 Defendants label as frivolous. ECF No. 64. These filings include a motion to remand, a first 19 amended complaint, an objection to a report and recommendation, an unauthorized second amended 20 complaint, the MSJ, an opposition to a motion to extend discovery, a refusal to file a joint status 21 report, and a second opposition to a motion to extend discovery. Id. at 5. In Goolsby v. Gonzales, 22 Case No. 1:11-cv-00394-LJO-GSA-PC, 2014 WL 2330108, at *1-2 (E.D. Cal. May 29, 2014), the 23 court found, “[u]nder federal law ... the mere fact that a plaintiff has had numerous suits dismissed 24 against him is an insufficient ground upon which to make a finding of vexatiousness.” In Stringham 25 v. Bick, Case No. CIV S-09-0286 MCE DAD P, 2011 WL 773442, at *3 (E.D. Cal. Feb. 28, 2011), 26 the court found the fact that the plaintiff filed more than five unsuccessful lawsuits in the preceding 27 seven years was not so “numerous or abusive” or “inordinate” to warrant a vexatiousness 1 not limited to, six “motion for sanctions against the Government on the basis that the Government 2 lacks standing,” the court reiterated “its vexatious litigant warning.” Case No. 3:09-cr-05703-DGE, 3 2024 WL 3253033, at **1-2 (W.D. Wash. July 1, 2024). 4 While Plaintiff has certainly demonstrated a penchant for bringing motions that lack merit, 5 refusing to cooperate in simple extension requests, and misunderstanding communications from 6 opposing counsel, the Court finds Plaintiff’s conduct has not yet risen to the level that would support 7 the finding of vexatiousness. This is not to say the Court is without deep concern. In fact, the Court 8 takes note of the fact that Plaintiff’s most recent filings—commencing on March 16, 2025 and ending 9 on May 14, 2024 (including the first Motion for Preliminary Injunction (ECF No. 65) that was denied 10 (ECF No. 82), the second Motion for Preliminary Injunction that remains pending (ECF No. 84), 11 Plaintiff’s MSJ (ECF No. 53), and the first and second Motions to Stay Discovery (ECF Nos. 60, 12 87, neither of which addressed the standard required for such a stay, nor provided a factual basis for 13 a stay))—border on vexatious conduct as each motion appears or was found to be largely without 14 any merit and without regard to the legal standards applicable to such motion. Plaintiff’s motions 15 also increase the cost of litigation and substantially burden the Court delaying its ability to address 16 more substantive issues that are pending in this case. 17 The Court is compelled to caution Plaintiff to abstain from frivolous filings—that is, filings 18 that ignore controlling law, misrepresent facts, and repeat arguments previously rejected by the 19 Court. Plaintiff has a Motion for Summary Judgment pending. Defendants’ Motion to Dismiss is 20 also pending. And, Plaintiff now has a second Motion for Preliminary Injunction pending. 21 Discovery is not stayed. Plaintiff should focus on completing discovery. If Plaintiff continues to 22 file motions that fail to address applicable, well-settled legal concepts, fail to cite discernable facts 23 in support of the applicable law, and otherwise simply clog the Court’s docket while increasing costs 24 to Defendants, the Court may find cause to recommend a declaration that Plaintiff is vexatious and 25 should be precluded from further filings with the Court absent express permission to do so.
27 1 C. Rule 11 as Applied to Plaintiff’s MSJ, Motion for Preliminary Injunction and Filing History. 2 3 Defendants’ Second Motion for Sanctions addresses Plaintiff’s meritless Motion for 4 Preliminary Injunction (ECF No. 65),2 which the Court summarily denied. ECF No. 82. No 5 attorney’s fees were requested by Defendants when they opposed Plaintiff’s Motion. Id. 6 Nonetheless, the Court’s Order denying the Motion for Preliminary Injunction makes clear it was 7 without any merit—indeed, Plaintiff’s first Motion for Preliminary Injunction if not delusional, 8 bordered on that precipice. A review of this Motion may demonstrate Plaintiff’s failure to 9 understand the process in which she is engaged and, therefore, evidence an inability to proceed 10 appropriately in this dispute. And, while Plaintiff’s Motion for Preliminary Injunction, and overall 11 meritless filings, may support the conclusion that Rule 11(b) has been violated and, thus, sanctions 12 in the form of attorneys’ fees, as a minimum, incurred by Defendants for responding to such filings 13 could be awarded, this does not mean the Court should order such an award. Smith v. Scalia, 44 14 F.Supp.3d 28, 46 (D.D.C. 2014) (“[T]he fact that monetary sanctions can appropriately be assessed 15 against a pro se party ... does not necessarily mean that they should be.”) (Emphasis in original.) 16 While Plaintiff’s pro se status is no excuse for wasting the opposing counsel’s and Court 17 resources through the repeated filing of frivolous motions, the Court gives Plaintiff this opportunity 18 to cease her apparent misunderstanding and misuse of the Court’s process. Plaintiff’s claims are 19 based on an alleged violation of the Americans with Disabilities Act. The ADA provides Plaintiff 20 with a cause of action, but that cause of action is not a license for Plaintiff to raise wholly unrelated 21 claims and fantastic allegations of wrongdoing that have nothing to do with the actual ADA claims 22 she alleges in her case. Plaintiff must confine her filings to the issues she has raised before the Court. 23 Continued frivolous and/or unrelated motion practice by Plaintiff may result in awards of attorneys’ 24 fees in favor of Defendants and other sanctions including, ultimately, a striking of Plaintiff’s 25 operative Complaint. 26 27 1 II. Order 2 Accordingly, and based on the foregoing, IT IS HEREBY ORDERED that Defendants’ 3 Motion for Sanctions (ECF No. 64) and Second Motion for Sanctions (ECF No. 90) are DENIED, 4 without prejudice. 5 Dated this 27th day of June, 2025.
7 ELAYNA J. YOUCHAH 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27