3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 HEATH VINCENT FULKERSON, Case No. 3:20-cv-00399-MMD-CLB
7 Plaintiff, ORDER v. 8 ALLSTATE INSURANCE, 9 Defendant. 10
11 I. SUMMARY 12 Pro se Plaintiff Heath Fulkerson (“Plaintiff” or “Fulkerson”) filed a complaint 13 against Defendant Allstate Insurance alleging property liability and insurance bad faith 14 related to two separate incidents on Plaintiff’s late father’s property. (ECF No. 1-1 15 (“Complaint”).) Plaintiff also filed an application to proceed in forma pauperis (ECF No. 16 1), along with a motion to submit his Complaint (ECF No. 1-2 (“Submission Motion”)). 17 Defendant has moved to dismiss Plaintiff’s Complaint. (ECF No. 7 (“Dismissal 18 Motion”).)1 19 Before the Court is the Report and Recommendation (ECF No. 10 (“R&R”)) of 20 United States Magistrate Judge Carla L. Baldwin. The R&R recommends the Court 21 deem Plaintiff a vexatious litigant, this case be dismissed, and Plaintiff’s in forma 22 pauperis application along with his Submission and Dismissal Motions be denied as 23 moot. (Id. at 1.) Plaintiff filed a “reply” to Judge Baldwin’s R&R, which the Court will 24 interpret as an objection to the R&R. (ECF No. 11 (“Objection”).)2 Additionally, Plaintiff’s 25 26 1Plaintiff did not file a response to Defendant’s Dismissal Motion. In any event, Defendant was not required to file any responsive pleading because the Court has not 27 directed the Complaint to be filed and served. 2Plaintiff’s objection to the R&R and his request for a change of venue were filed 28 in the same motion. Plaintiff’s Objection and his Venue Motion thus appear respectively as ECF Nos. 11 and 12 on the docket. 2 to transfer venue. (ECF No. 12 (“Venue Motion”).) 3 The Court will overrule Plaintiff’s Objection because the Court agrees with Judge 4 Baldwin’s recommendations, and will fully adopt the R&R. Additionally, the Court denies 5 Plaintiff’s Venue Motion as there is insufficient factual or legal basis to grant the Motion. 6 II. BACKGROUND 7 The Court incorporates by reference Judge Baldwin’s recitation of the factual 8 background of this case (ECF No. 10 at 4) and the list of (22) cases Fulkerson has filed 9 in this Court (id. at 5-6), and does not recite it here. 10 III. PLAINTIFF’S OBJECTION 11 A. Review of the Magistrate Judge’s Recommendation 12 The Court “may accept, reject, or modify, in whole or in part, the findings or 13 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 14 timely objects to a magistrate judge’s report and recommendation, the Court is required 15 to “make a de novo determination of those portions of the [report and recommendation] 16 to which objection is made.” Id. Because of Plaintiff’s Objection to the R&R (ECF No. 17 11), the Court undertakes a de novo review of it. 18 B. Failure to State a Claim 19 Judge Baldwin recommends that Plaintiff’s Complaint be dismissed for failure to 20 state a claim and because Plaintiff has not shown he has standing to bring this action. 21 (ECF No. 10 at 4-5.) Plaintiff counters that his case is “brought on factual grounds” and 22 “his claim brought has factual basis.” (ECF No. 11 at 1.) However, a de novo review of 23 Plaintiff’s Complaint reveals that Plaintiff’s factual allegations are indeed—as Judge 24 Baldwin determined—"conclusory, vague, and ambiguous.” (ECF No. 10 at 4.) Rule 25 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain “a short 26 and plain statement of the claim showing that the pleader is entitled to relief.” Bell 27 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Here, Plaintiff’s 28 Complaint fails to show Defendant acted in bad faith and Plaintiff is entitled to relief. Nor 2 agrees with Judge Baldwin’s recommendation that the Complaint be dismissed. 3 C. Vexatious Litigant 4 Judge Baldwin’s R&R recommends that Plaintiff be deemed a vexatious litigant 5 and be “enjoined from filing any further action or papers in the district without first 6 obtaining leave of the Chief Judge of this court.” (ECF No. 10 at 5-8.) Plaintiff’s 7 Objection does not address this recommendation. The Court need only “make a de 8 novo determination of those portions of the [report and recommendation] to which 9 objection is made.” 28 U.S.C. § 636(b)(1). However, a court must approach the fact of 10 declaring a litigant vexatious with caution and pre-filing orders to that effect “should 11 rarely be filed.” De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990). 12 The Ninth Circuit has provided guidelines for courts to apply before ordering pre- 13 filing restrictions. Id. at 1146-48. First, to be compliant with the requirements of due 14 process, a court must provide the litigant with notice and “an opportunity to oppose the 15 order before it is entered.” Id. at 1147. Second, to ensure adequate review, a court must 16 provide “a listing of all the cases and motions that led the district court to conclude that 17 a vexatious litigant order was needed.” Id. Third, the district court must make 18 “substantive findings as to the frivolous or harassing nature of the litigant’s action.” Id. at 19 1148 (citation omitted). Finally, a vexatious litigant order “must be narrowly tailored to 20 closely fit the specific vice encountered.” Id. 21 Here, Judge Baldwin’s R&R provided Plaintiff with notice and the objection 22 process gave Plaintiff an opportunity to oppose the R&R and this order. Plaintiff forwent 23 his opportunity in not raising his opposition in his Objection. Judge Baldwin’s citation to 24 22 different cases in the District of Nevada where Plaintiff is a pro se litigant (ECF No. 25 10 at 5-7), establishes a case list on the record that leads the Court to conclude a 26 /// 27 /// 28 /// 2 dismissed based on lack of jurisdiction, failure to state a claim, duplicative, or because 3 they were frivolous. (Id. at 6-7.) These cases show Plaintiff’s “activities [are] numerous” 4 and “abusive.” De Long, 912 F.2d at 1147. Moreover, the Court agrees with Judge 5 Baldwin that “[r]equiring Plaintiff to seek leave prior to filing new lawsuits is narrowly 6 tailored because he will still have access to this court by requesting leave.” (ECF No. 10 7 at 8.) See Tagle v. Dep’t of Homeland Sec., Case No. 2:15-cv-02506-APG-VCF, 2019 8 WL 2305155, *1 (D. Nev. May 30, 2019) (requiring a vexatious litigant to seek leave of 9 court before filing any additional actions). For the foregoing reasons, the Court agrees 10 with Judge Baldwin and adopts the R&R in its entirety. 11 IV. VENUE 12 Plaintiff asks for a transfer of venue “due to the Cvourt [sic] being prejudicial and 13 violating his right to a fair court case” (ECF No. 12 at 1), because of “the inequalities 14 and rampid [sic] violations” of his rights. (Id.) For Plaintiff to transfer venue, two 15 requirements must be met on its face: “(1) that the district to which [Plaintiff] seeks to 16 have the action transferred is one in which the action ‘might have been brought,’ and (2) 17 that the transfer be for the convenience of parties and witnesses, and in the interest of 18 justice.” Amazon.com v. Cendant Corp., 404 F. Supp. 2d 1256 (W.D. Wash. 2005) 19 (citing 28 U.S.C. § 1404(a)). Plaintiff’s Venue Motion does neither.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 HEATH VINCENT FULKERSON, Case No. 3:20-cv-00399-MMD-CLB
7 Plaintiff, ORDER v. 8 ALLSTATE INSURANCE, 9 Defendant. 10
11 I. SUMMARY 12 Pro se Plaintiff Heath Fulkerson (“Plaintiff” or “Fulkerson”) filed a complaint 13 against Defendant Allstate Insurance alleging property liability and insurance bad faith 14 related to two separate incidents on Plaintiff’s late father’s property. (ECF No. 1-1 15 (“Complaint”).) Plaintiff also filed an application to proceed in forma pauperis (ECF No. 16 1), along with a motion to submit his Complaint (ECF No. 1-2 (“Submission Motion”)). 17 Defendant has moved to dismiss Plaintiff’s Complaint. (ECF No. 7 (“Dismissal 18 Motion”).)1 19 Before the Court is the Report and Recommendation (ECF No. 10 (“R&R”)) of 20 United States Magistrate Judge Carla L. Baldwin. The R&R recommends the Court 21 deem Plaintiff a vexatious litigant, this case be dismissed, and Plaintiff’s in forma 22 pauperis application along with his Submission and Dismissal Motions be denied as 23 moot. (Id. at 1.) Plaintiff filed a “reply” to Judge Baldwin’s R&R, which the Court will 24 interpret as an objection to the R&R. (ECF No. 11 (“Objection”).)2 Additionally, Plaintiff’s 25 26 1Plaintiff did not file a response to Defendant’s Dismissal Motion. In any event, Defendant was not required to file any responsive pleading because the Court has not 27 directed the Complaint to be filed and served. 2Plaintiff’s objection to the R&R and his request for a change of venue were filed 28 in the same motion. Plaintiff’s Objection and his Venue Motion thus appear respectively as ECF Nos. 11 and 12 on the docket. 2 to transfer venue. (ECF No. 12 (“Venue Motion”).) 3 The Court will overrule Plaintiff’s Objection because the Court agrees with Judge 4 Baldwin’s recommendations, and will fully adopt the R&R. Additionally, the Court denies 5 Plaintiff’s Venue Motion as there is insufficient factual or legal basis to grant the Motion. 6 II. BACKGROUND 7 The Court incorporates by reference Judge Baldwin’s recitation of the factual 8 background of this case (ECF No. 10 at 4) and the list of (22) cases Fulkerson has filed 9 in this Court (id. at 5-6), and does not recite it here. 10 III. PLAINTIFF’S OBJECTION 11 A. Review of the Magistrate Judge’s Recommendation 12 The Court “may accept, reject, or modify, in whole or in part, the findings or 13 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 14 timely objects to a magistrate judge’s report and recommendation, the Court is required 15 to “make a de novo determination of those portions of the [report and recommendation] 16 to which objection is made.” Id. Because of Plaintiff’s Objection to the R&R (ECF No. 17 11), the Court undertakes a de novo review of it. 18 B. Failure to State a Claim 19 Judge Baldwin recommends that Plaintiff’s Complaint be dismissed for failure to 20 state a claim and because Plaintiff has not shown he has standing to bring this action. 21 (ECF No. 10 at 4-5.) Plaintiff counters that his case is “brought on factual grounds” and 22 “his claim brought has factual basis.” (ECF No. 11 at 1.) However, a de novo review of 23 Plaintiff’s Complaint reveals that Plaintiff’s factual allegations are indeed—as Judge 24 Baldwin determined—"conclusory, vague, and ambiguous.” (ECF No. 10 at 4.) Rule 25 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain “a short 26 and plain statement of the claim showing that the pleader is entitled to relief.” Bell 27 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Here, Plaintiff’s 28 Complaint fails to show Defendant acted in bad faith and Plaintiff is entitled to relief. Nor 2 agrees with Judge Baldwin’s recommendation that the Complaint be dismissed. 3 C. Vexatious Litigant 4 Judge Baldwin’s R&R recommends that Plaintiff be deemed a vexatious litigant 5 and be “enjoined from filing any further action or papers in the district without first 6 obtaining leave of the Chief Judge of this court.” (ECF No. 10 at 5-8.) Plaintiff’s 7 Objection does not address this recommendation. The Court need only “make a de 8 novo determination of those portions of the [report and recommendation] to which 9 objection is made.” 28 U.S.C. § 636(b)(1). However, a court must approach the fact of 10 declaring a litigant vexatious with caution and pre-filing orders to that effect “should 11 rarely be filed.” De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990). 12 The Ninth Circuit has provided guidelines for courts to apply before ordering pre- 13 filing restrictions. Id. at 1146-48. First, to be compliant with the requirements of due 14 process, a court must provide the litigant with notice and “an opportunity to oppose the 15 order before it is entered.” Id. at 1147. Second, to ensure adequate review, a court must 16 provide “a listing of all the cases and motions that led the district court to conclude that 17 a vexatious litigant order was needed.” Id. Third, the district court must make 18 “substantive findings as to the frivolous or harassing nature of the litigant’s action.” Id. at 19 1148 (citation omitted). Finally, a vexatious litigant order “must be narrowly tailored to 20 closely fit the specific vice encountered.” Id. 21 Here, Judge Baldwin’s R&R provided Plaintiff with notice and the objection 22 process gave Plaintiff an opportunity to oppose the R&R and this order. Plaintiff forwent 23 his opportunity in not raising his opposition in his Objection. Judge Baldwin’s citation to 24 22 different cases in the District of Nevada where Plaintiff is a pro se litigant (ECF No. 25 10 at 5-7), establishes a case list on the record that leads the Court to conclude a 26 /// 27 /// 28 /// 2 dismissed based on lack of jurisdiction, failure to state a claim, duplicative, or because 3 they were frivolous. (Id. at 6-7.) These cases show Plaintiff’s “activities [are] numerous” 4 and “abusive.” De Long, 912 F.2d at 1147. Moreover, the Court agrees with Judge 5 Baldwin that “[r]equiring Plaintiff to seek leave prior to filing new lawsuits is narrowly 6 tailored because he will still have access to this court by requesting leave.” (ECF No. 10 7 at 8.) See Tagle v. Dep’t of Homeland Sec., Case No. 2:15-cv-02506-APG-VCF, 2019 8 WL 2305155, *1 (D. Nev. May 30, 2019) (requiring a vexatious litigant to seek leave of 9 court before filing any additional actions). For the foregoing reasons, the Court agrees 10 with Judge Baldwin and adopts the R&R in its entirety. 11 IV. VENUE 12 Plaintiff asks for a transfer of venue “due to the Cvourt [sic] being prejudicial and 13 violating his right to a fair court case” (ECF No. 12 at 1), because of “the inequalities 14 and rampid [sic] violations” of his rights. (Id.) For Plaintiff to transfer venue, two 15 requirements must be met on its face: “(1) that the district to which [Plaintiff] seeks to 16 have the action transferred is one in which the action ‘might have been brought,’ and (2) 17 that the transfer be for the convenience of parties and witnesses, and in the interest of 18 justice.” Amazon.com v. Cendant Corp., 404 F. Supp. 2d 1256 (W.D. Wash. 2005) 19 (citing 28 U.S.C. § 1404(a)). Plaintiff’s Venue Motion does neither. Plaintiff has failed to 20 meet his burden of proof. See Amini Innovation Corp. v. JS Imports, Inc., 497 F. Supp. 21 2d 1093, 1109 (C.D. Cal. 2007) (“The burden is on the moving party to establish that a 22 transfer would allow a case to proceed more conveniently and better serve the interest 23 of justice.”). The Court thus denies Plaintiff’s Venue Motion. 24 /// 25 /// 26
27 3Judge Baldwin additionally took judicial notice that Plaintiff has also made filings 28 in the Second Judicial District Court for the State of Nevada, U.S. District Court for the Northern District of California, and the Ninth Circuit. (Id. at 7.) 2 It is therefore ordered that the Report and Recommendation of Magistrate Judge 3 Carla L. Baldwin (ECF No. 10) is accepted and adopted in full. 4 It is further ordered that Plaintiff’s objection (ECF No. 11) is overruled. 5 The Court declares that Heath Vincent Fulkerson is a vexatious litigant. The 6 Court invokes its inherent authority under 28 U.S.C. § 1651(a) to enjoin and prohibit 7 Fulkerson from filing any complaint, petition, or other document in this Court without first 8 obtaining leave of this Court. In order to file any papers in this Court, Fulkerson must 9 first file an application for leave. The application must be supported by a declaration of 10 Fulkerson stating: (1) that the matters asserted in the new complaint or papers have 11 never been raised and disposed of on the merits by any court; (2) that the claim or 12 claims are not frivolous or made in bad faith; and (3) that Fulkerson has conducted a 13 reasonable investigation of the facts and investigation supports Fulkerson’s claim or 14 claims. A copy of this order declaring that Fulkerson is a vexatious litigant must be 15 attached to any application submitted to this Court. Failure to comply with these 16 instructions will be sufficient grounds for denial of an application. 17 It is further ordered that Plaintiff’s application to proceed in forma pauperis (ECF 18 No. 1) is denied as moot. 19 It is further ordered that Plaintiff’s complaint (ECF No. 1-1) be filed. 20 It is further ordered that Plaintiff’s complaint (ECF No. 1-1) is dismissed for failure 21 to state a claim. 22 It is further ordered that Plaintiff’s motion to submit (ECF No. 1-2) his complaint is 23 denied as moot. 24 It is further ordered that Defendant’s motion to dismiss (ECF No. 7) is denied as 25 moot. 26 It is further ordered that Plaintiff’s motion to transfer venue (ECF No. 12) is 27 denied. 28 /// 1 The Clerk of Court is directed to close the case and enter judgment accordingly. 2 DATED THIS 25" Day of November 2020.
4 MIRANDA M. DU 5 CHIEF UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28