1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 ANTON EWING, Case No. 20-cv-01748-BAS-WVG 11 Plaintiff, ORDER: 12 v. (1) DENYING DEFENDANTS’ 13 MOTION FOR STAY AND FOR BF ADVANCE LLC AND AN ORDER REQUIRING 14 JOSEPH COHEN, PLAINTIFF TO POST BOND AS A VEXATIOUS LITIGANT 15 Defendants. (ECF No. 7); (2) GRANTING PLAINTIFF’S 16 MOTION FOR LEAVE TO 17 AMEND (ECF No. 11); AND 18 (3) DENYING PLAINTIFF’S MOTION 19 FOR DEFAULT JUDGMENT (ECF No. 14) 20 21 Mr. Ewing brings this Complaint pursuant to the Telephone Consumer Protection 22 Act. (ECF No. 1.) He has not served the Defendants. Nonetheless, Defendant BF Advance 23 (“Defendant”) has filed a Motion to Stay the Action and to have Plaintiff post a bond as a 24 vexatious litigant before proceeding. (ECF No. 7.) Plaintiff opposes, and Defendant 25 replies. (ECF Nos. 10, 12.) 26 Plaintiff also files a Motion for Leave to File an Amended Complaint. (ECF No. 11.) 27 Defendant opposes, asking the Court to rule first on its Motion to Stay and have Plaintiff 28 declared a vexatious litigant. (ECF No. 13.) 1 Finally, Plaintiff moves for entry of default judgment against Defendant. Even 2 though Plaintiff admits he has not yet served Defendant with the Complaint, he argues that 3 its Motion to Stay qualifies as a general appearance. (ECF No. 14.) Defendant opposes. 4 (ECF No. 15.) 5 For the reasons stated below, the Court DENIES Defendant’s Motion to Stay while 6 Plaintiff is ordered to post a bond as a vexatious litigant; GRANTS Plaintiff’s Motion to 7 Amend the Complaint; and DENIES Plaintiff’s Motion for Entry of Default Judgment. 8 I. BACKGROUND 9 Plaintiff, appearing pro se, has filed numerous complaints in both federal and state 10 court. Many of them, like the one in this case, allege violations of the Telephone Consumer 11 Protection Act (“TCPA”). Apparently in one such federal case, Mr. Ewing demonstrated 12 “discourteous and unprofessional” conduct in dealing with opposing parties and counsel. 13 (See Compl. at 24–26.) Judge Burns admonished Plaintiff in a written order and ordered 14 Mr. Ewing “to be courteous and civil in all communications with opposing counsel, parties 15 and third parties and to refrain from disparaging their intelligence, ethics or behavior.” (Id.) 16 Additionally, because there was some suggestion that Mr. Ewing had represented himself 17 as a lawyer, despite not being barred in the state of California, Judge Burns ordered Mr. 18 Ewing not to use J.D. after his name. (Id.) Finally, Judge Burns ordered that a copy of his 19 order be filed along with any pro se pleading filed by Mr. Ewing in this district over the 20 next three years. (Id.) Along with the Complaint in this case, Mr. Ewing did attach a copy 21 of Judge Burns’ order and he has specifically identified himself as “not an attorney” in all 22 filings in this case. 23 This Court further grants Defendant’s request to take judicial notice of the order from 24 the San Diego Superior Court finding Mr. Ewing to be a vexatious litigant under 25 California’s vexatious litigant statute, Code of Civil Procedure § 391. (ECF No. 8-2.) See 26 Bothelho v. U.S. Bank. N.A., 692 F. Supp. 2d 1174, 1178 (N.D. Cal. 2010) (quoting United 27 States ex rel. Robinson Rancheria Citizens Council v. Borneo Inc., 971 F.2d 244, 248 (9th 28 Cir. 1992)) (holding that Rule 201 allows courts “to ‘take notice of proceedings in other 1 courts, both within and without the federal judicial system, if those proceedings have a 2 direct relation to matters at issue.’”). Specifically, the Superior Court found that Mr. Ewing 3 had had more than five matters determined adversely to him and thus found he qualified as 4 a vexatious litigant. (ECF No. 8-2.) Thus, the San Diego Superior Court ordered that any 5 future filings by Mr. Ewing in state court require leave of the presiding judge who will only 6 allow the case to proceed if it appears the litigation has merit and has not been filed for the 7 purposes of harassment or delay. (Id.) 8 II. ANALYSIS 9 A. Motion to Have Plaintiff Post Bond as a Vexatious Litigant 10 Defendant first asks that this case be stayed, that Mr. Ewing be declared a vexatious 11 litigant, and that Mr. Ewing be required to post a bond before proceeding with this 12 litigation. 13 “‘The All Writs Act, 28 U.S.C. §1651(a) provides district courts with the inherent 14 power to enter pre-filing orders against vexatious litigants.’” Kinder v. Harrah’s 15 Entertainment, Inc., No. 07-cv-2132-DMS, 2008 WL 11508682, at *1 (S.D. Cal. April 29, 16 2008) (citing Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1058 (9th Cir. 2007) (per 17 curiam), rehearing en banc denied 521 F.3d 1215 (2008), cert. denied 555 U.S. 1031 18 (2008)); see also Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1197 (9th Cir. 1999) 19 (“District courts have the inherent power to file restrictive pre-filing orders against 20 vexatious litigants with abusive and lengthy histories of litigation.”). “Such pre-filing 21 orders may enjoin the litigant from filing further actions or papers unless he or she meets 22 certain requirements, such as obtaining leave of the court or filing declarations that support 23 the merits of the case.” Id.; see also DeLong v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 24 1990) (“There is strong precedent establishing the inherent power of federal courts to 25 regulate the activities of abusive litigants by imposing carefully tailored restrictions under 26 the appropriate circumstances.”) (quotations omitted)). Nonetheless, “such pre-filing 27 orders should rarely be filed.” Id. 28 1 In DeLong, the Court laid out a four-part test before finding a litigant to be vexatious. 2 The first two requirements are procedural: the litigant must have notice and an opportunity 3 to be heard on the issue and there must be an adequate record for review. Id. at 1147–48. 4 With respect to this second factor, the court “‘should include a listing of all cases and 5 motions that led the district court to conclude that a vexatious litigant order was needed.’” 6 Molski, 500 F.3d at 1058 (quoting DeLong, 912 F.2d at 1147). 7 The last two factors are substantive. First, the court must make substantive findings 8 that the plaintiff’s litigation has been frivolous or harassing. DeLong, 912 F.2d at 1148. 9 And, finally, any restriction must be narrowly tailored “to closely fit the specific vice 10 encountered.” Id. at 1147–48. 11 With respect to substantive findings of frivolous or harassing litigation, the court 12 must find more than a show of litigiousness. Id. “[T]he simple fact that a plaintiff has filed 13 a large number of complaints, standing alone, is not a basis for designating a litigant as 14 ‘vexatious.’” Molski, 500 F.3d at 1061. Even “the textual and factual similarity of a 15 plaintiff’s complaints, standing alone, is not a basis for finding a party to be a vexatious 16 litigant.” Id. After all, “there is nothing inherently vexatious about using prior complaints 17 as a template.” Id. 18 The Second Circuit in Safir v. United States Lines, Inc., 792 F.2d 19, 24 (2d Cir. 19 1986) lays out a five-factor standard that “provides a helpful framework” for determining 20 whether the plaintiff’s litigation has been frivolous or harassing. Molski, 500 F.3d at 1058.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 ANTON EWING, Case No. 20-cv-01748-BAS-WVG 11 Plaintiff, ORDER: 12 v. (1) DENYING DEFENDANTS’ 13 MOTION FOR STAY AND FOR BF ADVANCE LLC AND AN ORDER REQUIRING 14 JOSEPH COHEN, PLAINTIFF TO POST BOND AS A VEXATIOUS LITIGANT 15 Defendants. (ECF No. 7); (2) GRANTING PLAINTIFF’S 16 MOTION FOR LEAVE TO 17 AMEND (ECF No. 11); AND 18 (3) DENYING PLAINTIFF’S MOTION 19 FOR DEFAULT JUDGMENT (ECF No. 14) 20 21 Mr. Ewing brings this Complaint pursuant to the Telephone Consumer Protection 22 Act. (ECF No. 1.) He has not served the Defendants. Nonetheless, Defendant BF Advance 23 (“Defendant”) has filed a Motion to Stay the Action and to have Plaintiff post a bond as a 24 vexatious litigant before proceeding. (ECF No. 7.) Plaintiff opposes, and Defendant 25 replies. (ECF Nos. 10, 12.) 26 Plaintiff also files a Motion for Leave to File an Amended Complaint. (ECF No. 11.) 27 Defendant opposes, asking the Court to rule first on its Motion to Stay and have Plaintiff 28 declared a vexatious litigant. (ECF No. 13.) 1 Finally, Plaintiff moves for entry of default judgment against Defendant. Even 2 though Plaintiff admits he has not yet served Defendant with the Complaint, he argues that 3 its Motion to Stay qualifies as a general appearance. (ECF No. 14.) Defendant opposes. 4 (ECF No. 15.) 5 For the reasons stated below, the Court DENIES Defendant’s Motion to Stay while 6 Plaintiff is ordered to post a bond as a vexatious litigant; GRANTS Plaintiff’s Motion to 7 Amend the Complaint; and DENIES Plaintiff’s Motion for Entry of Default Judgment. 8 I. BACKGROUND 9 Plaintiff, appearing pro se, has filed numerous complaints in both federal and state 10 court. Many of them, like the one in this case, allege violations of the Telephone Consumer 11 Protection Act (“TCPA”). Apparently in one such federal case, Mr. Ewing demonstrated 12 “discourteous and unprofessional” conduct in dealing with opposing parties and counsel. 13 (See Compl. at 24–26.) Judge Burns admonished Plaintiff in a written order and ordered 14 Mr. Ewing “to be courteous and civil in all communications with opposing counsel, parties 15 and third parties and to refrain from disparaging their intelligence, ethics or behavior.” (Id.) 16 Additionally, because there was some suggestion that Mr. Ewing had represented himself 17 as a lawyer, despite not being barred in the state of California, Judge Burns ordered Mr. 18 Ewing not to use J.D. after his name. (Id.) Finally, Judge Burns ordered that a copy of his 19 order be filed along with any pro se pleading filed by Mr. Ewing in this district over the 20 next three years. (Id.) Along with the Complaint in this case, Mr. Ewing did attach a copy 21 of Judge Burns’ order and he has specifically identified himself as “not an attorney” in all 22 filings in this case. 23 This Court further grants Defendant’s request to take judicial notice of the order from 24 the San Diego Superior Court finding Mr. Ewing to be a vexatious litigant under 25 California’s vexatious litigant statute, Code of Civil Procedure § 391. (ECF No. 8-2.) See 26 Bothelho v. U.S. Bank. N.A., 692 F. Supp. 2d 1174, 1178 (N.D. Cal. 2010) (quoting United 27 States ex rel. Robinson Rancheria Citizens Council v. Borneo Inc., 971 F.2d 244, 248 (9th 28 Cir. 1992)) (holding that Rule 201 allows courts “to ‘take notice of proceedings in other 1 courts, both within and without the federal judicial system, if those proceedings have a 2 direct relation to matters at issue.’”). Specifically, the Superior Court found that Mr. Ewing 3 had had more than five matters determined adversely to him and thus found he qualified as 4 a vexatious litigant. (ECF No. 8-2.) Thus, the San Diego Superior Court ordered that any 5 future filings by Mr. Ewing in state court require leave of the presiding judge who will only 6 allow the case to proceed if it appears the litigation has merit and has not been filed for the 7 purposes of harassment or delay. (Id.) 8 II. ANALYSIS 9 A. Motion to Have Plaintiff Post Bond as a Vexatious Litigant 10 Defendant first asks that this case be stayed, that Mr. Ewing be declared a vexatious 11 litigant, and that Mr. Ewing be required to post a bond before proceeding with this 12 litigation. 13 “‘The All Writs Act, 28 U.S.C. §1651(a) provides district courts with the inherent 14 power to enter pre-filing orders against vexatious litigants.’” Kinder v. Harrah’s 15 Entertainment, Inc., No. 07-cv-2132-DMS, 2008 WL 11508682, at *1 (S.D. Cal. April 29, 16 2008) (citing Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1058 (9th Cir. 2007) (per 17 curiam), rehearing en banc denied 521 F.3d 1215 (2008), cert. denied 555 U.S. 1031 18 (2008)); see also Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1197 (9th Cir. 1999) 19 (“District courts have the inherent power to file restrictive pre-filing orders against 20 vexatious litigants with abusive and lengthy histories of litigation.”). “Such pre-filing 21 orders may enjoin the litigant from filing further actions or papers unless he or she meets 22 certain requirements, such as obtaining leave of the court or filing declarations that support 23 the merits of the case.” Id.; see also DeLong v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 24 1990) (“There is strong precedent establishing the inherent power of federal courts to 25 regulate the activities of abusive litigants by imposing carefully tailored restrictions under 26 the appropriate circumstances.”) (quotations omitted)). Nonetheless, “such pre-filing 27 orders should rarely be filed.” Id. 28 1 In DeLong, the Court laid out a four-part test before finding a litigant to be vexatious. 2 The first two requirements are procedural: the litigant must have notice and an opportunity 3 to be heard on the issue and there must be an adequate record for review. Id. at 1147–48. 4 With respect to this second factor, the court “‘should include a listing of all cases and 5 motions that led the district court to conclude that a vexatious litigant order was needed.’” 6 Molski, 500 F.3d at 1058 (quoting DeLong, 912 F.2d at 1147). 7 The last two factors are substantive. First, the court must make substantive findings 8 that the plaintiff’s litigation has been frivolous or harassing. DeLong, 912 F.2d at 1148. 9 And, finally, any restriction must be narrowly tailored “to closely fit the specific vice 10 encountered.” Id. at 1147–48. 11 With respect to substantive findings of frivolous or harassing litigation, the court 12 must find more than a show of litigiousness. Id. “[T]he simple fact that a plaintiff has filed 13 a large number of complaints, standing alone, is not a basis for designating a litigant as 14 ‘vexatious.’” Molski, 500 F.3d at 1061. Even “the textual and factual similarity of a 15 plaintiff’s complaints, standing alone, is not a basis for finding a party to be a vexatious 16 litigant.” Id. After all, “there is nothing inherently vexatious about using prior complaints 17 as a template.” Id. 18 The Second Circuit in Safir v. United States Lines, Inc., 792 F.2d 19, 24 (2d Cir. 19 1986) lays out a five-factor standard that “provides a helpful framework” for determining 20 whether the plaintiff’s litigation has been frivolous or harassing. Molski, 500 F.3d at 1058. 21 Safir’s five-factor standard includes: (1) “the litigant’s history of litigation and in particular 22 whether it entailed vexatious, harassing, or duplicative suits”; (2) “the litigant’s motive in 23 pursuing the litigation” and “whether the litigant had a good faith expectation of 24 prevailing”; (3) “whether the litigant is represented by counsel”; (4) “whether the litigant 25 has caused unnecessary expense to the parties or placed a needless burden on the courts”; 26 and (5) “whether other sanctions would be adequate to protect the courts and other parties.” 27 Safir, 792 F.2d at 24. 28 1 Defendant cites two judicial opinions as support for its motion. The first, from Judge 2 Burns, admonished Mr. Ewing for discourteous and unprofessional behavior. Defendant 3 points to no evidence that Mr. Ewing has repeated that behavior in this case. Furthermore, 4 Mr. Ewing appears to have followed the admonition of Judge Burns, attaching the order to 5 this Complaint, and adding “(not an attorney)” after his name in all pleadings in this case. 6 This order does not support Defendant’s argument that Plaintiff’s litigation has been 7 frivolous or harassing. 8 Next, Defendant points to the fact that Mr. Ewing has been declared a vexatious 9 litigant in San Diego Superior Court because he has lost more than five matters over seven 10 years. (ECF No. 8-2.) However, one’s status as a vexatious litigant in state court is not 11 dispositive of the determination of vexatious litigant status in federal court. See Kinder, 12 2008 WL 11508682, at *2. “[T]his Court cannot simply import a state court ‘vexatious 13 litigant’ label and apply it to a litigant in federal court.” Id. “California’s definition of 14 vexatious litigation, for example, is far more inclusive than the federal standard.” Id. 15 Defendant’s reliance solely on the state court declaration of vexatious litigant status 16 is insufficient to establish that Mr. Ewing’s litigation has been frivolous or harassing in 17 federal court under the DeLong/Molski standard. Specifically, with respect to the first three 18 factors laid out in Safir: (1) Defendant has not filed sufficient support to show that Mr. 19 Ewing’s litigation has been “vexatious, harassing, or duplicative” in federal court; (2) 20 Defendant has not shown that Mr. Ewing did not have a good faith expectation of prevailing 21 in this or any other federal case; and (3) Mr. Ewing, although he claims to have a law 22 degree, is not a lawyer and is not represented by counsel. Accordingly, the Court finds 23 Defendant has provided inadequate support for its claim that Mr. Ewing should be declared 24 a vexatious litigant. 25 B. Motion to Amend Complaint 26 Plaintiff moves to amend the Complaint which has not yet been served on Defendant. 27 A party may amend a pleading once as a matter of course before the pleading is served. 28 Fed. R. Civ. P., Rule 15(a). Defendant objects only on the ground that the Court should 1 first rule on its Motion to Stay before granting Plaintiff leave to amend. Since the Court 2 has denied the Motion to Stay as indicated above, Plaintiff’s Motion to Amend the 3 Complaint is granted. 4 C. Motion for Default Judgment 5 Although Plaintiff has admittedly not yet served Defendant, Plaintiff moves for 6 default judgment, arguing that Defendant’s Motion to Stay constituted a general 7 appearance, waiving any requirement of personal service under Federal Rule of Civil 8 Procedure 4 (“Rule 4”). A defendant must be served pursuant to Rule 4 before a court can 9 exercise personal jurisdiction over the defendant. Jackson v. Hayahawa, 682 F.2d 1344, 10 1347 (9th Cir. 1982). “Neither actual notice . . . nor simply naming the person in the caption 11 of the complaint” is sufficient to bypass this requirement. Id. 12 A defendant may, however, waive the requirement of Rule 4 service by appearing 13 generally in the case without challenging the defect in a preliminary motion or responsive 14 pleading. Id. “Jurisdiction attaches if a defendant makes a voluntary general appearance.” 15 Id. “‘An appearance is general if the party contests the merits of the case or raises other 16 jurisdictional objections.’” Craters & Freighters v. Daisychain Enterprises, No. 09-04531 17 CW, 2010 WL 761310, at *3 (N.D. Cal. Mar. 2, 2010). 18 Ordinarily a general appearance requires an overt act which demonstrates both 19 “knowledge of the suit and an intention to appear.” Benny v. Pipes, 799 F.2d 489, 492 (9th 20 Cir. 1986). “Only those submissions, appearances and filings that give plaintiff a 21 reasonable expectation that defendants will defend the suit on the merits” result in waiving 22 the requirement of service under Rule 4. Gerber v. Riordan, 649 F.3d 514, 519 (6th Cir. 23 2011.) The Sixth Circuit has held that “[a] motion to stay litigation signals only that a 24 defendant wishes to postpone the court’s disposition of the case. Far from indicating that 25 a defendant intends to defend a suit on the merits, a motion to stay can serve to indicate the 26 opposite.” Id. 27 Similarly, in this case, Defendant has filed only a Motion to Stay seeking to require 28 Plaintiff to post a bond before proceeding. This does not constitute a general appearance 1 |] and, therefore, Plaintiffs Motion for Default is denied. Plaintiff must comply with Rule 4 2 ||once his amended complaint is filed. 3 CONCLUSION 4 For the above stated reasons, the Court orders as follows: 5 (1) Defendant’s Motion to Stay and to have Mr. Ewing declared a vexatious 6 || litigant (ECF No. 7) is DENIED. 7 (2) Mr. Ewing’s Motion to Amend the Complaint (ECF No. 11) is GRANTED. 8 || Mr. Ewing is ordered to file his Amended Complaint 14 days after this Order is docketed. 9 (3) Plaintiff's Motion for Entry of Default Judgment (ECF No. 14) is DENIED. 10 || Once Plaintiff files his Amended Complaint, he must serve Defendant in compliance with 11 || Rule 4. 12 IT IS SO ORDERED. 13 .. □ 14 || DATED: February 11, 2021 Cyl q | isha □ 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28