New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Sanctions — Vexatious Litigant Injunction: 4 Factors (9th Circuit) — Failure to Give Notice of Possible Injunction (Imposed on Rule 11 Motion) Requires Vacatur

Download PDF

Block v. Wash. State Bar Ass'n, 2019 U.S. App. LEXIS 4089 (Feb. 11, 2019) (unpublished):

MEMORANDUM* and ORDER

Plaintiff-appellant Anne Block appeals the district court's orders dismissing her amended complaint against defendants-appellees City of Gold Bar, Washington State Bar Association (WSBA), Snohomish County, Kenyon Disend, Sky Valley, City of Duvall, Port of Seattle, King County, and various individuals. She also appeals a vexatious litigant pre-filing order and orders awarding attorneys' fees to Kenyon Disend, Snohomish County, and City of Gold Bar. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part and vacate and remand in part.

1. Block's motion for judicial notice is DENIED. WSBA's motion to strike [*7]  the brief of proposed intervenor William Scheidler is GRANTED. Block's motions to strike are DENIED.

2. The district court did not abuse its discretion by denying Block's motions to disqualify because Block failed to identify any grounds for recusal. See 28 U.S.C. §§ 144, 455; DeNardo v. Municipality of Anchorage, 974 F.2d 1200, 1201 (9th Cir. 1992) ("The fact that a plaintiff sues a bar association does not require recusal of judges who are members of that bar association."). We therefore affirm the orders denying Block's motions to disqualify.

3. The district court had discretion to award attorneys' fees to Kenyon Disend, Snohomish County, and City of Gold Bar pursuant to Federal Rule of Civil Procedure 11 and 42 U.S.C. § 1988 if it determined that Block's complaint was frivolous. See Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 524 (9th Cir. 1994) (per curiam) (observing that fee awards pursuant to Rule 11 and § 1988 are warranted in response to frivolous actions). The district court concluded that Block's claims were frivolous, and Block fails to demonstrate on appeal that the district court erred in so concluding. We therefore affirm the fee awards.

4. Block argues that the district court abused its discretion when it imposed a vexatious litigant pre-filing order. Before imposing such an order, a district court must:

(1) give litigants notice and "an opportunity to oppose the order before it [is] [*8]  entered"; (2) compile an adequate record for appellate review, including "a listing of all the cases and motions that led the district court to conclude that a vexatious litigant order was needed"; (3) make substantive findings of frivolousness or harassment; and (4) tailor the order narrowly so as "to closely fit the specific vice encountered."

Ringgold-Lockhart v. Cty. of Los Angeles, 761 F.3d 1057, 1062 (9th Cir. 2014) (quoting De Long v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir. 1990)). We strictly enforce these four requirements because this type of order affects a litigant's fundamental right to access the courts. See id. at 1061. The district court imposed its pre-filing order sua sponte in response to Kenyon Disend's motion for Rule 11 sanctions. There is no indication that Block had notice of the pre-filing order or an opportunity to oppose it. We therefore conclude that the district court abused its discretion by issuing the pre-filing order without appropriate notice and opportunity to oppose. We vacate the order and remand for further proceedings in accordance with the four requirements set forth in De Long.

5. The district court did not abuse its discretion by denying Block's requests for extensions of time because Block failed to demonstrate good cause. See Fed. R. Civ. P. 6(b)(1). Block did not seek extensions in advance of the time her oppositions [*9]  were due (in violation of the local rules), and she filed multiple motions of her own during the period in which she claimed she was unable to file oppositions. We therefore affirm the district court's orders denying extensions of time.

6. Because Block fails to coherently argue that the district court erred by granting defendants' motions to dismiss on res judicata grounds, we affirm the district court's order. Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) ("We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim, particularly when, as here, a host of other issues are presented for review.").1

7. The district court did not err by dismissing Block's remaining claims against the WSBA, City of Duvall, Sky Valley, Port of Seattle, and King County, and various individual defendants. The district court correctly dismissed Block's suit against the WSBA and WSBA individual defendants on Eleventh Amendment and quasi-judicial immunity grounds. See Hirsh v. Justices of Supreme Court of Cal., 67 F.3d 708, 715 (9th Cir. 1995) (per curiam) (discussing immunity of a state bar and state bar judges and prosecutors); Clark v. Washington, 366 F.2d 678, 681 (9th Cir. 1966) (concluding the Washington State Bar Association is "an agency of the state" and not subject to liability under 42 U.S.C. § 1983).

With respect to City of Duvall, Sky Valley, Port of Seattle, King [*10]  County, and the related individual defendants, we conclude that the district court did not err by dismissing Block's defamation, civil RICO, and retaliation claims. Block does not argue that her defamation claim was adequately pleaded for purposes of Federal Rule of Civil Procedure 12(b)(6). Moreover, Block fails to demonstrate that she satisfied her burden for alleging retaliation and civil RICO claims. See, e.g., Arizona Students' Ass'n v. Arizona Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016) (discussing requirements for retaliation claim); Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996) (discussing requirements for civil RICO claim). Accordingly, we affirm the orders dismissing Block's claims.

VACATED AND REMANDED IN PART, AFFIRMED IN PART. Each party to bear its own costs on appeal.

 

 

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1 We deem Block to have waived all other claims that were dismissed by the district court and not distinctly raised on appeal, such as Block's claim that the defendants violated the Americans with Disabilities Act. See Greenwood, 28 F.3d at 977.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

Rule 37 Default Judgment Sanction: (1) Abuse of Discretion Review = Legal Conclusions De Novo. Factual Findings for Clear Error — (2) Client May Be Sanctioned for Misconduct of Its Counsel, Though Here Client Was Directly Involved in Bad Faith Misbehavior — (3) Is There A Difference, Under Rule 11 As Opposed to Rule 37, Concerning Whether A Client Can Be Sanctioned for Its Counsel’s Misconduct? — (4) While Sanctions of Last Resort (Dismissal/Default) Are Apt Only If Lesser Sanctions Wouldn’t Ensure Compliance, Rule 37 Doesn’t Require the Vain Gesture of First Imposing Lessert Sanctions When It Is Clear They Would be Ineffective — (5) Court’s Reconsideration of Non-Final Orders Is Governed by Rule 54(b), And Court’s Discretion under That Rule Is Governed by the Law-of-the-Case-Doctrine

RICO: (1) Special Pleading Requirements? — (2) Although Enterprise Must Be More Than a Summation of the Predicate Acts, The Predicate Acts Can Demonstrate the Existence of the Enterprise — (3) Requirement That Association-in-Fact Exist For Purposes Other Than Just to Commit Predicate Acts Merely Requires Continuity — (4) To State an Association-in-Fact Enterprise Consisting of One Natural Person and Collection of Legal Fictions Requires Factual Detail As to How They Acted Together — (5) “A § 1962(c) Enterprise Must Be More Than An Association of Individuals Or Entities Conducting the Normal Affairs of a Defendant Corporation” (Good Quote)

RICO: (1) Fee Award May Exceed Amount Recovered — Strict Proportionality Not Required — (2) Nonmonetary Benefits and Injunctive Relief Recovered Also Relevant Factors — (3) Loss on Some Claims Need Not Result in Lowered Fees, Especially When Both Arise Out of The Same Nucleus of Operative Facts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice