ORDER DENYING MOTION FOR SANCTIONS AND REQUEST TO DECLARE PLAINTIFF VEXATIOUS Re: Dkt. No. 90 ORDER DENYING DEFENDANTS' MOTION FOR SANCTIONS AND REQUEST TO DECLARE PLAINTIFF VEXATIOUS

Re: Dkt. No. 90

KANDIS A. WESTMORE, Magistrate Judge.

On March 28, 2018, Defendants filed a second motion for sanctions and requested that Plaintiff Kevin Quillinan be declared a vexatious litigant. (Defs.' Mot., Dkt. No. 90.)

For the reasons set forth below, the undersigned DENIES the second motion for sanctions.

I. PROCEDURAL BACKGROUND

On August 10, 2017, Defendants filed a motion for sanctions and requested that Plaintiff Kevin Quillinan be declared a vexatious litigant. (Dkt. No. 50.) On October 5, 2018, while the undersigned found it plausible that Plaintiff's pre-filing behavior could be grounds for Rule 11 sanctions, the civil Racketeer Influenced and Corrupt Organizations Act ("RICO") statute, 18 U.S.C. § 1961 et seq., is a complicated one, so the Court declined to impose sanctions. (Dkt. No. 76 at 2.) Instead, in an order filed concurrently, the Court dismissed the case with prejudice against all defendants in lieu of granting leave to amend. (Dkt. No. 75; see Dkt. No. 76 at 2.) The undersigned similarly denied Defendants' request to declare Plaintiff vexatious, because Defendants failed to provide sufficient information on the prior cases filed "to support the conclusion that Plaintiff's filings are so numerous or abusive that they should be enjoined." (Dkt. No. 76 at 3.) Indeed, the undersigned noted "that additional [case] information could have resulted in a different outcome, so Plaintiff is advised to be more discerning in filing lawsuits going forward." Id. On October 5, 2017, the Court entered judgment against Plaintiff. (Dkt. No. 77.)

On November 15, 2017, Defendants appealed the order denying the motion for sanctions and request to declare Plaintiff vexatious. (Dkt. No. 82.) On February 27, 2018, the Ninth Circuit sua sponte vacated the judgment and October 5, 2017 order on the motions to dismiss and remanded the case for further proceedings in light of its recent ruling in Williams v. King, 875 F.3d 500, 503-504 (9th Cir. 2017), which required that all parties, including unserved defendants, consent in order for jurisdiction to vest with the magistrate judge pursuant to 28 U.S.C § 636(c)(1). (Dkt. No. 85.) The Ninth Circuit's order vacating judgment and remanding the case for further proceedings also included the case number for Defendants' appellate case. Id. While the Ninth Circuit's order referenced the October 5, 2017 order, of which there were two, a motion for sanctions does not require the consent of all parties, so the undersigned assumed that the Ninth Circuit was only vacating the order granting the motion to dismiss. (See Dkt. No. 86 at 3 n. 4.)

On March 14, 2018, the undersigned issued a report and recommendation to grant the motions to dismiss with prejudice and reassigned the case to a district judge. (Dkt. No. 86.) The case was reassigned to the Honorable Saundra Brown Armstrong. (Dkt. No. 87.)

On March 28, 2018, Defendants filed another motion for sanctions. (Defs.' Mot., Dkt. No. 90.) On April 11, 2018, Plaintiff filed a corrected opposition. (Pl.'s Opp'n, Dkt. No. 96.) On April 18, 2018, Defendants filed a reply. (Defs.' Reply, Dkt. No. 98.)

On April 11, 2018, the district court issued an order to show cause to Plaintiff regarding the dismissal of the unserved defendants. (Dkt. No. 97.) The district court noted that, despite the undersigned's deadline of July 10, 2017 to complete service, Plaintiff had failed to effectuate service on 44 defendants. Id. The district court, therefore, ordered Plaintiff to show cause why the unserved defendants should not be dismissed from the action without prejudice pursuant to Federal Rule of Civil Procedure 4(m). Id. On April 24, 2018, after Plaintiff failed to timely respond to the order to show cause, the district court issued an order dismissing the unserved defendants without prejudice. (Dkt. No. 99.) On April 25, 2018, since all remaining parties had consented to magistrate judge jurisdiction, the district court reassigned the case back to the undersigned for all purposes. (Dkt. No. 100.)

II. INSTANT MOTION

Defendants have interpreted the Ninth Circuit's remand as including their motion for sanctions and request to declare Plaintiff vexatious, because their case number was included on the remand order. In filing this motion, Defendants incorporated their prior briefing (Dkt. Nos. 50 & 60) and all exhibits. (Defs.' Mot. at 5.) Despite filing another reply on April 18, 2018, Defendants did not include additional information regarding Plaintiff's behavior nor the merits of his prior lawsuits, despite being previously advised that more information was needed to declare him vexatious or to impose sanctions under Rule 11. Simply put, they have not met their burden. Thus, even if the remand order applied to the motion for sanctions, the undersigned must again deny the motion based on insufficient information, and hereby incorporates the October 5, 2017 order denying Defendants' first motion for sanctions and request to declare Plaintiff vexatious (Dkt. No. 76), which is attached hereto.

Accordingly, Defendants' March 28, 2018 motion for sanctions and to declare Plaintiff Kevin Quillinan a vexatious litigant is DENIED.

Notwithstanding, the Court is concerned with the rambling nature of Plaintiff's opposition to the instant motion, and he is again advised to be more discerning in filing lawsuits going forward. Furthermore, Plaintiff is cautioned against filing another lawsuit concerning this incident against any unserved defendants, who were dismissed without prejudice by the district court, because that would likely be grounds for sanctions under Rule 11 and may result in him being declared a vexatious litigant.

IT IS SO ORDERED.

ORDER DENYING DEFENDANTS' MOTION FOR SANCTIONS AND REQUEST TO DECLARE PLAINTIFF VEXATIOUS Re: Dkt. No. 90 ORDER DENYING DEFENDANTS' MOTION FOR SANCTIONS AND REQUEST TO DECLARE PLAINTIFF VEXATIOUS

Re: Dkt. No. 50

On August 10, 2017, Defendants filed a motion for sanctions and requested that Plaintiff Kevin Quillinan be declared a vexatious litigant. (Defs.' Mot., Dkt. No. 50.)

Upon review of the moving papers, the Court finds this matter suitable for resolution without oral argument pursuant to Civil Local Rule 7-1(b), and, for the reasons set forth below, DENIES Defendants' motion for sanctions and their request to declare Plaintiff vexatious.

I. BACKGROUND

The undersigned incorporates the background facts described in the order granting Defendants' motions to dismiss, which was filed concurrently with this order.

II. DISCUSSION

Defendants seek an award of sanctions under Federal Rule of Civil Procedure 11 to recover their attorneys' fees and costs, and request that Plaintiff be declared a vexatious litigant. (Def.'s Mot. at 19.)

A. Sanctions

Defendants argue that Plaintiff violated Federal Rule of Civil Procedure 11 by filing a factually and legally frivolous lawsuit. (Defs.' Mot. at 13.) Rule 11 imposes upon attorneys and pro se litigants a duty to certify that they have read any pleadings or motions they file with the court and that such pleadings and motions are well-grounded in fact, have a colorable basis in law, and are not filed for an improper purpose. Fed. R. Civ. P. 11(b). If a court finds a violation of this duty, it may impose appropriate sanctions to deter similar conduct. Fed. R. Civ. P. 11(c)(1); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990) ("[T]he central purpose of Rule 11 is to deter baseless filings in district court."). Whether to award sanctions under Rule 11 is within the discretion of the district court, because the awarding of such sanctions "is an extraordinary remedy, one to be exercised with extreme caution." Fed. R. Civ. P. 11(c)(1); Operating Eng'rs Pension Trust v. A-C Co., 859 F.2d 1336, 1345 (9th Cir. 1988).

Here, Plaintiff alleges five causes of action under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and a single cause of action under 21 U.S.C. § 843(c)(2)(A). (First Am. Compl., "FAC," Dkt. No. 8.) Generally, Plaintiff claims that the defendants' alleged marijuana cultivation enterprise resulted in the termination of a month-to-month storage unit lease, which eventually led to him and his wife sustaining a financial loss to their business as a result of having to vacate.

Defendants seek to recover their attorneys' fees and costs expended in defending this litigation, which they claim is an attempt at extortion. (Defs.' Mot. at 3-4, 6.) Defendants further argue that, by Plaintiff's own admission, his damages have nothing to do with the alleged racketeering. (Defs.' Mot. at 14.) The Court agrees, and dismissed Plaintiff's lawsuit with prejudice. Notwithstanding, while the Court is concerned with Defendants' descriptions of Plaintiff's pre-filing behavior, which, if true, could be grounds for Rule 11 sanctions, civil RICO is complicated, so the Court declines to impose sanctions under Rule 11.

B. Vexatious Litigant

Defendants request that Plaintiff be declared a vexatious litigant for filing this and other purportedly harassing and frivolous lawsuits. (Defs.' Mot. at 2.) When a litigant has filed numerous harassing or frivolous lawsuits, the Court has the discretion to declare him a vexatious litigant and enter an order requiring that any future complaints be subject to an initial review before they are filed. District courts have the power to enter pre-trial filing orders against a vexatious litigant under the All Writs Act. 28 U.S.C. § 1651(a); Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir 2007). The Ninth Circuit has cautioned that "such pre-filing orders are an extreme remedy that should rarely be used" because of the danger of "tread[ing] on a litigant's due process right of access to the courts." Molski, 500 F.3d at 1057. Nevertheless, such pre-filing orders may be appropriate because "[f]lagrant abuse of the judicial process . . . enables one person to preempt the use of judicial time that properly could be used to consider the meritorious claims of other litigants." De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990).

Here, Defendants argue that Plaintiff has filed 30 lawsuits in state and federal court, 12 of which were filed in the last seven years. (Defs.' Mot. at 17.) While Defendants describe several cases in their motion, the Court is unable to evaluate whether the lawsuits were clearly frivolous. For example, Plaintiff's social security appeal, filed on October 19, 2011, was dismissed, because Plaintiff failed to exhaust his administrative remedies. See Order Granting Def.'s Mot. to Dismiss, Quillinan v. Comm'r of Soc. Sec., No. 11-cv-05136-SI (N.D. Cal. Jun. 22, 2012), ECF No. 22. Thus, at least one case cited was dismissed due to Plaintiff's ignorance of the legal process, rather than for purposefully filing a frivolous or harassing lawsuit. Moreover, in Plaintiff's declaration in support of his opposition, Plaintiff explains why he dismissed certain cases. (Decl. of Kevin Quillinan, "Quillinan Decl.," Dkt. No. 57-1 ¶¶ 2-15.) Thus, while certain cases certainly appear to lack merit and could be viewed as harassing, the record is inadequate to support the conclusion that Plaintiff's filings are so numerous or abusive that they should be enjoined. See De Long, 912 F.2d at 1148. The Court notes that additional information could have resulted in a different outcome, so Plaintiff is advised to be more discerning in filing lawsuits going forward.

Accordingly, the Court denies Defendants' request to declare Plaintiff a vexatious litigant.

III. CONCLUSION

In light of the foregoing, Defendants' motion for sanctions and request to declare Plaintiff a vexatious litigant is DENIED.

IT IS SO ORDERED.