-GGH (PS) Rogers v. State Farm Insurance Company, et al, No. 2:2009cv00419 - Document 117 (E.D. Cal. 2011)

Court Description: ORDER signed by Magistrate Judge Gregory G. Hollows on 8/4/11 ORDERING that the 8/11/11 hearing on the motion to declare plaintiff a vexatious litigant and for pre-filing order, filed 7/1/11, is VACATED from the calendar; and RECOMMENDING that the Defendants' motion 113 should be DENIED. Referred to Judge Garland E. Burrell, Jr; Objections due within 21 days after being served with these findings and recommendations. (Becknal, R)

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-GGH (PS) Rogers v. State Farm Insurance Company, et al Doc. 117 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MARY A. NELSON ROGERS, 11 12 13 Plaintiff, vs. No. CIV S-09-0419 GEB GGH PS FDIC AS RECEIVER FOR DOWNEY SAVINGS AND LOAN, et al., ORDER and FINDINGS AND RECOMMENDATIONS 14 Defendants. 15 16 / Defendants’ motion to declare plaintiff a vexatious litigant and for pre-filing 17 order presently is calendared for hearing on August 11, 2011. Having reviewed the record, the 18 court has determined that oral argument would not be of material assistance in determining the 19 pending motion. Accordingly, the court will not entertain oral argument, and will determine the 20 motion on the record, including the briefing in support of and in opposition to the pending 21 motion. See E.D. Cal. L.R. 230(g). 22 Defendants seek an order preventing plaintiff from further advocating the issue of 23 fiduciary duty owed by defense counsel to her, before this court or any other governmental entity 24 (an issue pending before the district judge on Findings and Recommendations). 25 When a person has been a successive filer, either raising the same argument over and over again, 26 or otherwise simply bringing numerous frivolous suits on a myriad of issues, federal courts may 1 Dockets.Justia.com 1 declare a litigant vexatious, and impose filing restrictions. See De Long v. Hennessey, 912 F.2d 2 1144 (9th Cir. 1990); Wood v. Santa Barbara Chamber of Commerce, 705 F.2d 1515 (9th Cir. 3 1983). However, orders imposing filing restrictions should be rarely used. DeLong, 912 F.2d 4 at1147. 5 Defendants have made insufficient record of a number of seriatim filings or 6 motions containing frivolous arguments which could permit such a restriction in this court. 7 Moreover, this court could not restrain plaintiff from making a particular argument in the Ninth 8 Circuit in this case in that she has apparently never raised the issue before in a previous litigation. 9 District courts restraining what they perceive as frivolous arguments to be made in a court of 10 appeal engage in an unseemly exercise of lower court authority–especially if the argument is first 11 made in a case which has not yet gone to appeal. While defendant’s invitation may be appealing 12 for some cases, the impulse to accept must be denied. If the rule were otherwise, lower court 13 judges could insulate their decisions from review by way of enjoining “frivolous arguments” in 14 the Court of Appeal.1 15 Finally, monetary sanctions should generally be sought as a first resort before the 16 ultimate sanction of filing restriction, or argument restriction, is warranted. See e.g., 17 Fed.R.Civ.P. 11; 28 U.S.C. § 1927, E.D. Cal. LR 110. 18 //// 19 //// 20 //// 21 //// 22 //// 23 //// 24 1 25 26 Such a power vested in the lower courts must find its authority in written law where Congress or a national court rule precludes review. Examples of such are the statute requiring a certificate of appealability in habeas actions, 28 U.S.C. § 2254(c)(1), and the preclusion of review of certain remand orders, 28 U.S.C. § 1447(d). 2 1 Accordingly, IT IS ORDERED that: 2 1. The August 11, 2011 hearing on the motion to declare plaintiff a vexatious 3 litigant and for pre-filing order, filed July 1, 2011, is vacated from the calendar; and 4 IT IS HEREBY RECOMMENDED: 5 2. Defendants’ motion, (dkt. # 113), should be denied. 6 These findings and recommendations are submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 8 days after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections 11 shall be served and filed within ten days after service of the objections. The parties are advised 12 that failure to file objections within the specified time may waive the right to appeal the District 13 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 DATED: August 4, 2011 15 16 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE GGH:076:Rogers0419.vex.wpd 17 18 19 20 21 22 23 24 25 26 3

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