Opinion
Civil No. 05-CV-352-WQH (RBB).
February 27, 2006
ORDER
Before the Court are Defendants' Motion to Dismiss [Doc. No. 25], and Plaintiff's "Petition/Application for a Bill of Review in the Nature of a Collateral Attack to Vacate a Void Judgment" [Doc. No. 29]. The Court finds the parties' motions suitable for decision on the papers without oral argument, pursuant to Local Civil Rule 7.1(d)(1).
On May 24, 2005, the Court issued an order (the "May 24 Order") denying Plaintiff's summary judgment motion; denying in part and granting in part Defendants' motion to dismiss; and granting Defendants' motion for a more definite statement. The May 24 Order also ordered Plaintiff to file and serve an amended complaint within 30 days of the Order's date of entry. Plaintiff failed to do so — indeed, to this date, he has not filed an amended complaint. Instead, Plaintiff has seen fit to allege that the undersigned is not an actual judge, is under criminal investigation, is obstructing justice, is biased, has tampered with court records, and is guilty of various other iniquitous or improper acts — as purportedly determined by the "Wampanoag Nation Tribe of Grayhead Wolf Band Law Enforcement Officer Martin T. Campbell." [Doc. No. 26]. Plaintiff states:
The Clerk of the Court and the U.S. Attorney in San Diego have been notified of the ongoing Criminal Investigation of Judge William Hayes. Judge William Hayes had Legal Authority to Rule on the Plaintiff's Motion to Set Aside Court's Order to Dismiss Case, but he did not have the Legal Right or Jurisdiction to Remove the Motion to Set Aside the Court's Order to Dismiss from the Court Record and deny the Plaintiff his Constitutional Right of Due Process. This was an Unlawful Act, so sayeth the Tribal Law Enforcement Officer Martin T. Campbell.
[Doc. No. 26]. The Court assumes that Plaintiff is referring here to the July 6, 2005 rejection, on discrepancy, of his Motion to Set Aside Court's Order to Dismiss Case Due to Void Judgment Per Fed. Rule Civ. Proc. Rule 60(b). [Doc. No. 23] Plaintiff further warns the Court:
The Plaintiff has a Duty and Obligation to File Another Criminal Complaint if Judge William Hayes does not allow this or the previously Rejected Motion to Set Aside Court's Order to Dismiss Case to be filed for the Record. . . . The Plaintiff will not allow his Constitutional Rights to be trampled upon without going to War Legally. Chief Dale Stevens and Tribal Law Enforcement Officer Martin T. Campbell are much more outraged when Tribal Member Rights are being Violated than the Plaintiff. . . . If Judge Hayes believes he is above the Law, then we are going to War. . . . The Tribe will win the easy way or the hard way. The choice is that of Judge William Hayes. In the meantime, he is under Criminal Investigation.
[Doc. No. 26].
The Court has the power to dismiss this case with prejudice under Fed.R.Civ.P. 41(b), for failure to comply with a court order — in this instance, the Court's May 24 Order to file an amended complaint within 30 days. "In determining whether to dismiss a claim for failure to prosecute or failure to comply with a court order, the Court must weigh the following factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits." Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). In the instant matter, the Court concludes that the first and second factors weigh heavily in favor of dismissal; the third factor also weighs in favor of dismissal, in light of Plaintiff's unnecessary and excessive delay; and the fifth factor weighs only slightly in Plaintiff's favor, given the dubious merits of this case. As for the fourth factor, the Court recognizes that dismissal is a drastic remedy. However, Plaintiff has been found a vexatious litigant by numerous courts, including the Southern District of California. See Case No. 04-CV-0304 LAB (BLM) Doc. No. 166. He has been previously admonished for choosing to sue judges and file frivolous "objections" to court orders instead of obeying them. Therefore, the Court concludes that the case at bar presents the rare instance in which dismissal with prejudice is the appropriate remedy for failure to comply with a court order. Defendants' Motion is GRANTED and this case is DISMISSED WITH PREJUDICE.
Plaintiff's Petition/Application for a Bill of Review in the Nature of a Collateral Attack to Vacate a Void Judgment [Doc. No. 29], which asserts that the Court's previous orders are "Void On Their Face Due to No Judicial Oath On File," is DENIED. This is a frivolous pleading, as already indicated in the Court's (Hon. Larry A. Burns, United States District Judge) December 20, 2005 Order declaring Plaintiff a vexatious litigant. [Case No. 04-CV-0304 LAB (BLM) Doc. No. 166, p. 4].
"The certification requirements of Rule 11 are violated if the paper filed . . . is frivolous, legally unreasonable or without factual foundation, even though . . . not filed in subjective bad faith." Himaka v. Buddhist Churches of America, 917 F. Supp. 698, 710 (N.D. Cal. 1995) (internal quotations omitted). In the context of Rule 11, "well grounded in fact" means that an independent examination reveals "some credible evidence" in support of a party's statements; in addition, a cause of action is said to be not "warranted by law" where no plausible, good faith argument can be made by a competent attorney in support of the proposition asserted. Id. "Where there is no legal or factual basis for a claim, improper purpose may be deduced." Id. (citing Huettig Schromm, Inc. v. Landscape Contractors, 790 F.2d 1421, 1427 (9th Cir. 1986)). Particularly when considered in light of Plaintiff's litigation history, the outlandish factual and legal arguments made in Plaintiff's Petition/Application for a Bill of Review [Doc. No. 29] are neither well-grounded in fact nor warranted by law.
The Court notes that, under Fed.R.Civ.P. 11, sanctions may be imposed where an attorney or party has signed pleadings, motions or other papers that are frivolous or without merit, or which were filed for an improper purpose, such as to harass, vex or delay an opponent or the course of the litigation. See, e.g., Damiani v. Adams, 657 F. Supp. 1409, 1417 (S.D. Cal. 1987) (applying previous version of Rule 11, under which sanctions were mandatory). In Damiani, the court found that "the legal arguments proffered by Plaintiffs are frivolous on their face. They have presented legal arguments already aired, and rejected, in numerous other lawsuits. If anything, the papers submitted by Plaintiffs are indicative of subjective bad faith." Id. at 1418 (emphasis in original). However, despite certain similarities between Damiani and the instant matter, the Court declines to initiate the imposition of sanctions on its own motion.
IT IS SO ORDERED.