Opinion
CV 03-1401 RSWL (RZx)
08-12-2014
Omaha Steaks International, Inc., Plaintiff, v. Anshu Pathak, et al., Defendants.
ORDER RE: DEFENDANT PATHAK'S MOTION TO RELIEF FROM JUDGMENT BASED ON FRAUD ON THE COURT BY COURT APPOINTED COUNSEL MR. GREGORY NICOLAYSEN AND PLAINTIFF'S COUNSELS
[191]
Currently before the Court is Defendant Anshu Pathak's ("Defendant Pathak") Motion to Relief from Judgment Based on Fraud on the Court by Court Appointed Counsel Mr. Gregory Nicolaysen and Plaintiff's Counsels [191]. The Court, having considered all papers submitted pertaining to this Motion, NOW FINDS AND RULES AS FOLLOWS: Defendant Pathak's Motion is DENIED.
I. BACKGROUND
A. Omaha Steaks Int'l, Inc. v. Anshu Pathak et al. -03-01401-RSWL (RZx)
On September 21, 2004, Plaintiff Omaha Steaks International, Inc. ("Plaintiff" or "Omaha Steaks") obtained a default judgment for trademark infringement in this Action against Defendants Mark Ihrig and Pathak ("Omaha Steaks I"). Omaha Steaks I, Dkt. # 94. To date, Defendant Pathak has failed to pay any portion of the monetary judgment ("Omaha Steaks I judgment") and has continuously avoided appearing for judgment debtor examinations to the point that he has been arrested and held for contempt. Id., Dkt. # 169. More specifically, Defendant Pathak was ordered on November 16, 2010 to appear for his judgment debtor examination on November 30, 2010 but failed to appear. Id., Dkt. # 145. On April 5, 2011, the Court set a criminal contempt hearing to address Defendant Pathak's failure to appear and produce documents at the judgment debtor examination. Id., Dkt. # 156. The Court appointed Gregory Nicolaysen as the criminal appointed counsel for Defendant Pathak at that hearing. Id. The Court found Defendant Pathak in criminal contempt of the Court's November 16, 2010 order and sentenced Defendant Pathak to thirty days incarceration. Id. , Dkt. # 169.
On July 3, 2014, Defendant filed the instant Motion to Relief from Judgment Based on Fraud on the Court by Court Appointed Counsel Mr. Gregory Nicolaysen and Plaintiff's Counsels. Id., Dkt. # 191. Plaintiff filed an Opposition on July 22, 2014 (Id., Dkt. # 195) and Defendant Pathak filed a Reply on August 5, 2014 (Id., Dkt. # 196). B. Anshu Pathak v. Omaha Steaks Int'l Inc., et al. -10-07054-RSWL (RZx)
On September 22, 2010, Defendant Pathak initiated a new matter, Anshu Pathak v. Omaha Steaks Int'l Inc., et al., Case No. 10-cv-7054 ("Omaha Steaks II") against Omaha Steaks in an attempt to set aside the Omaha Steaks I judgment. Omaha Steaks II, Dkt. # 1. Defendant Pathak sought to set aside the Omaha Steaks I judgment on the ground that Omaha Steaks committed fraud on the Court because Omaha Steaks had not obtained registrations for certain specific classes of goods and services at the time it brought the action for trademark infringement against Defendant Pathak in Omaha Steaks I.
Omaha Steaks moved to declare Defendant Pathak a vexatious litigant in Omaha Steaks II and filed a Motion for Security and Control. Id., Dkt. # 8. The Court granted Omaha Steaks' Motion for Security and Control in part ("the Vexatious Litigant Order"), deeming Pathak a vexatious litigant. Id., Dkt. # 25. Pursuant to the Vexatious Litigant Order, if Defendant Pathak decides to file any pleading asserting claims against Omaha Steaks based on the validity of the judgment rendered against him in Omaha Steaks I and Omaha Steaks' alleged fraud on the Court in that Action, Defendant Pathak is required to submit that pleading for screening to a judge of this Court as well as make an initial showing of likelihood of success on the merits in order for the new claim to be filed. Id. at 12-13.
Omaha Steaks moved to dismiss Omaha Steaks II on the ground that Pathak failed to comply with the Vexatious Litigant Order and for failure to properly serve the Complaint. Id., Dkt. # 29, 42. Following Pathak's failure to justify his claims, the Court dismissed Omaha Steaks II. Id., Dkt. # 46.
II. LEGAL STANDARD
A. Motion for Relief from Judgment or Order under Fed. R. Civ. P. 60(d)
Under Fed. R. Civ. P. 60(d), the Court has the power to entertain an independent action to relieve a party from a judgment or set aside a judgment for fraud on the court. Fed. R. Civ. P. 60(d)(1), (3); See also Zone Sports Center Inc. LLC v. Red Head, Inc., No. 11-cv-00634-JST, 2013 WL 2252016, at *7 (N.D. Cal. May 22, 2013). In order to prevail on a motion under Fed. R. Civ. P. 60(d)(3), the moving party must establish fraud on the court by clear and convincing evidence. Hsu v. UBS Fin. Servs., Inc., No. C 11-02076 WHA, 2014 WL 939290, at *3 (N.D. Cal. Mar. 6, 2014) (citing United States v. Estate of Stonehill, 660 F.3d 415, 443 (9th Cir. 2011)).
The Ninth Circuit has held that fraud on the court embraces "only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetuated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." In re Intermagnetics Am., Inc., 926 F.2d 912, 916 (9th Cir. 1991). "Fraud on the court should be read narrowly, in the interest of preserving the finality of judgments." Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1104 (9th Cir. 2006) (quoting Toscano v. Comm'r of Internal Revenue, 441 F.2d 930, 934 (9th Cir. 1971)). As such, the Ninth Circuit places a "high burden on a plaintiff seeking relief from a judgment based on fraud on the court." Id. Courts have noted that the fraud must involve egregious conduct that attacks the judicial machinery itself, such as the existence of an "unconscionable plan or scheme . . . designed to improperly influence the court in its decision" (Id. (quoting Abatti v. Comm'r of Internal Revenue, 859 F.2d 115, 118 (9th Cir. 1988)), or conduct by an adverse party that effectively prevented the losing party from fully and fairly presenting his case or defense (Keys v. Dunbar, 405 F.2d 955, 957-58 (9th Cir. 1969).
III. ANALYSIS
On balance, the Court DENIES Defendant Pathak's Motion. The Court entered a Vexatious Litigant Order in Omaha Steaks II against Defendant Pathak in which the Court deemed Pathak a vexatious litigant. Omaha Steaks II, Dkt. #25 at 7, 10. As part of its reasoning, the Court recognized that Defendant Pathak had a demonstrated history of filing unmeritorious filings, repeatedly re-litigating, or attempting to re-litigate in propria persona the validity of the Omaha Steaks I judgment. Id. at 5. The Court also recognized that Defendant Pathak attempted to evade the Omaha Steaks I judgment and failed to cooperate with Plaintiff and the Court in the enforcement of that judgment. Id. at 10.
The Court also clarified in a subsequent order that the Vexatious Litigant Order was to apply to "any new and future actions initiated by [Defendant Pathak] in which the claims against [Plaintiff] are based on the validity of the Judgment rendered against him in [Omaha Steaks I]." Omaha Steaks II, Dkt. # 42 at 4.
Defendant Pathak filed the present Motion on July 3, 2014, again challenging the Omaha Steaks I judgment on the ground that Plaintiff, counsel for Plaintiff and Mr. Nicolaysen committed a fraud on the Court. The Court finds that this Motion falls within the purview of the Vexatious Litigant Order in Omaha Steaks II. See Omaha Steaks II, Dkt. # 42 at 4. Indeed, the present Motion represents the very ills against which the Vexatious Litigant Order is designed to guard against, namely, Defendant Pathak's attempts to evade enforcement of the Omaha Steaks I judgment and his repeated attempts to re-litigate the validity of that judgment. See Omaha Steaks II, Dkt. # 25 at 12.
The Court explicitly stated in its Vexatious Litigant Order that if Defendant Pathak files any pleading challenging the validity of the Omaha Steaks I judgment based on a fraud on the Court, Defendant Pathak is required to submit the instant Motion to the Court for screening before filing and make an initial showing of likelihood of success on the merits in order for the new claim to be filed. See Omaha Steaks II, Dkt. # 25 at 12-13. However, Defendant Pathak did not submit the instant Motion to the Court for screening before filing, nor did he make any initial showing of a likelihood of success on the merits. Without such, Defendant Pathak undercuts the explicit purpose of the Vexatious Litigant Order. On this basis, therefore, the Court DENIES Defendant Pathak's Motion.
Furthermore, even construing the instant Motion as an attempt to show an initial likelihood of success on the merits in this Action, the Court finds that Defendant Pathak has failed to establish an initial likelihood of success on the merits here.
Throughout his Motion, Defendant Pathak alleges: (1) that Plaintiff did not have a valid trademark in the word, "Omaha Steaks" for on-line retail store services featuring food and food related items in International Class 035 in "standard characters" in order to file the trademark infringement action against Defendant Pathak; (2) that Plaintiff did not acquire a trademark right in the phrase "Omaha Steaks;" (3) that Plaintiff illegally transferred Defendant Pathak's domain name, "www.omahabeef.com" without a court order; (4) that Plaintiff's counsel stole Defendant Pathak's domain name "omahabeef.com" by making false representations to the domain registrar; and (5) that Mr. Nicolaysen committed fraud on the Court by failing to inform the Court of the above.
To support his Motion, Defendant Pathak refers the Court to a series emails between Mr. Nicolaysen and Plaintiff's counsel, Mr. Huber, wherein Mr. Nicolaysen informs Mr. Huber that Defendant Pathak believed that the Omaha Steaks I judgment was paid in full by way of an offset arising out of Plaintiff's "unlawful transfer to its own control of Defendant Pathak's domain name www.omahabeef.com&rdquo>." Mot. 12:24-25.
On balance, the Court finds that Defendant Pathak fails to meet an initial showing of success on the merits in this Action. As noted above, the Ninth Circuit places a "high burden on a plaintiff seeking relief from a judgment based on fraud on the court," Latshaw, 452 F.3d at 1104. Here, however, the evidence presented by Defendant Pathak does nothing more than show that Mr. Nicolaysen and Mr. Huber consulted through a series of email exchanges to resolve Defendant's criminal contempt hearing. The emails do not, as Defendant Pathak submits, support that Plaintiff, Plaintiff's counsel, or Mr. Nicolaysen engaged in the allegedly egregious conduct that Defendant Pathak asserts constitutes fraud on the Court and requires the Court to relieve him of the Omaha Steaks I judgment. The Court further notes that Plaintiff has previously made conclusory statements regarding Plaintiff's alleged fraud on the Court, and the Court has already found that these allegations are without merit or lack supporting evidence. See, e.g., Omaha Steaks II, Dkt. # 46 at 4-6. As Defendant Pathak raises the same arguments again in the instant Motion, which are similarly unavailing, the Court finds that Plaintiff has failed to establish that he has an initial likelihood of success on the merits as required by the Vexatious Litigant Order in Omaha Steaks II. Thus, the Court DENIES Defendant Pathak's Motion.
IV. CONCLUSION
Based on the foregoing, the Court DENIES Defendant Pathak's Motion.
IT IS SO ORDERED. DATED: August 12, 2014
RONALD S.W. LEW
HONORABLE RONALD S.W. LEW
Senior U.S. District Judge