Filed: Jun. 18, 2015
Latest Update: Jun. 18, 2015
Summary: ORDER CAROLYN K. DELANEY , Magistrate Judge . Pending before the court is plaintiff's motion to compel counter-claimants to post security for costs by plaintiffs. 1 The matter was submitted on the papers. Upon review of the documents in support and opposition, THE COURT FINDS AS FOLLOWS: By their motion, plaintiffs request that defendants be declared vexatious litigants and be required to furnish security in the amount of $700,000. Litigants who abuse the judicial process by repeatedly fi
Summary: ORDER CAROLYN K. DELANEY , Magistrate Judge . Pending before the court is plaintiff's motion to compel counter-claimants to post security for costs by plaintiffs. 1 The matter was submitted on the papers. Upon review of the documents in support and opposition, THE COURT FINDS AS FOLLOWS: By their motion, plaintiffs request that defendants be declared vexatious litigants and be required to furnish security in the amount of $700,000. Litigants who abuse the judicial process by repeatedly fil..
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ORDER
CAROLYN K. DELANEY, Magistrate Judge.
Pending before the court is plaintiff's motion to compel counter-claimants to post security for costs by plaintiffs.1 The matter was submitted on the papers. Upon review of the documents in support and opposition, THE COURT FINDS AS FOLLOWS:
By their motion, plaintiffs request that defendants be declared vexatious litigants and be required to furnish security in the amount of $700,000. Litigants who abuse the judicial process by repeatedly filing "unmeritorious motions, pleadings, or other papers," or engaging "in other tactics that are frivolous or solely intended to cause unnecessary delay" are vexatious litigants. Cal. Civ. Proc. Code § 391 (adopted in the Eastern District of California under L.R. 151(b)). In order to impose a limiting order on a vexatious litigant, four conditions must be met: (1) the litigant must have adequate notice to oppose the order; (2) an adequate record must be provided, listing the pleadings that led to the court's decision that a vexatious litigant order was necessary; (3) the court must make substantive findings that the filings were frivolous or harassing; and (4) the order must be narrowly tailored. See DeLong v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir. 1990); Molski v. Evergreen Dynasty Corp., 500 F.3d 1047,1057-58 (9th Cir. 2007).
Plaintiffs contend that defendants have been declared vexatious litigants in state court and should be declared vexatious litigants in federal court as well. Having considered the basis of the state court's determination and upon review of the pleadings in the federal action, the court declines to find defendants vexatious at this time.2 Moreover, a review of the docket in the instant matter undermines plaintiffs' assertion that defendants should be required to post security. This action was removed from state court to the District of Nevada on September 16, 2014. ECF No. 1. Defendants filed an answer and counterclaim on September 25, 2014. ECF No. 4. Plaintiffs filed an answer to the counterclaim on October 20, 2014. ECF No. 16. The action was thereafter transferred to this court on November 20, 2014. ECF No. 27. Under the law governing the action at the time plaintiffs filed their answer to the counterclaims, a demand for undertaking had to be made within the time limited for answering the complaint. See Simulnet East Associates v. Ramada Hotel Operating Co., 37 F.3d 573, 574-575 (9th Cir. 1994) (Nevada District Court adopted pertinent Nevada statute which sets outer time limit for making demand for undertaking). Having failed to make a timely demand while this action was venued in the District of Nevada, it would transgress the canons of fair forensics to allow plaintiffs, five months after the action was transferred, to essentially obtain a judgment as a matter of law on defendants' counterclaims by now requiring the posting of security in the amount of $700,000.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to compel counter-claimants to post security for costs by plaintiffs (ECF No. 40) is denied.
2. Plaintiff's motion to strike (ECF No. 53) is denied with respect to those matters which are properly subject to judicial notice.
3. This matter is set for status conference on September 2, 2015 at 10:00 a.m. in courtroom no. 24. Status reports setting forth the matters described in the civil new case documents issued November 21, 2014 (ECF No. 30) shall be filed no later than August 19, 2015.
