Opinion
No. C-03-3313 MMC (Docket Nos. 3, 7, 9, 10)
September 9, 2003
ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE; VACATING HEARING
In this action between plaintiff Patricia H. Powell ("Powell") against Fidelity National Financial, Inc. ("Fidelity National"), Chicago Title Ins. ("Chicago Title"), and various individuals associated therewith, defendants now move to dismiss the action or, in the alternative, to change venue, pursuant to Rules 12(b)(6) and 12(b)(3) of the Federal Rules of Civil Procedure, respectively, and to have Powell declared a vexatious litigant. The Court finds the matter suitable for decision without oral argument, pursuant to Civil Local Rule 7-1(b), and VACATES the September 12, 2003 hearing.
The caption of the complaint identifies the individual defendants as "Wm. P. FOLEY II, And Individually As Chr. Of The Board And CEO, FIDELITY NAT'L FIN. CORP., CHICAGO TITLE INS CO., FNIS, FNTI CO.; MARK E. SCHIFFMAN Individually And As SR. VICE PRES. CHICAGO TITLE TRUST, FNF, CHIEF LITIGATION COUNSEL; W. DEAN CLOUD Individually And ASSOCIATE COUNSEL FID. NAT'L. FIN.; MARK J. SARNI COUNSEL FID. NAT'L FIN. CORP.; MICHAEL E. DULLEA, Individually And As VICE PRESIDENT AND COUNSEL CHICAGO TITLE INS. CO.; CTI'S CONTROLLED ESCROW CO.; And DOES 1-10[.]"
BACKGROUND
Exhibit 1 to Powell's complaint is an order in the case of Powell v. Alleqhanv Corporation, CV-01-2546 FMC (C.D. Cal. 2001). That order sets forth a lengthy history of litigation by Powell over the court-ordered sale of her home to Frank and Sherrie Boone in 1991:
In 1988, Frank and Sherrie Boone leased a home from Plaintiff Powell and her sister, Barbara Hendricks. The lease agreement contained an option to purchase the home. When the Boones attempted to exercise their option to purchase the home, Plaintiff refused to honor the option and denied the existence of such an option. In 1989, the Boones filed an action in the San Diego County Superior Court to enforce the option agreement and to compel the sale of the home. A trial on the matter was held in 1991, and the jury returned a verdict in favor of the Boones, specifically finding that Plaintiff had committed fraud in denying the existence of an option to purchase the home. The Court ordered the sale of the home to the Boones.
On October 3, 1991, the Court ordered escrow on the home to be opened with Chicago Title, which is a Defendant in this action. When Plaintiff and Hendricks refused to sign documents necessary to complete the transfer of ownership of the home, the court appointed the clerk of the court as an elisor with the power to sign escrow papers and to grant deeds on behalf of Plaintiff and Hendricks. On January 9, 1992, escrow was closed and the home was transferred to the Boones.
On June 1, 1992, Plaintiff appealed the court's order. On September 10, 1993, the Court of Appeal issued an opinion affirming the verdict, the judgment, and the court's award of sanctions against Plaintiff.
Over one year later, Plaintiff filed a complaint against Defendants and others in the Los Angeles Superior Court, basing her claims on their actions in carrying out the court-ordered escrow. On September 12, 1995, the Superior Court sustained Defendants' demurrer without leave to amend as to the Chicago Title Defendants. Plaintiff was granted leave to amend her claims as to other entities named in the action. When Plaintiff filed her amended complaint, however, she added a claim under the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"), [footnote omitted] The Superior Court concluded that no facts supported this cause of action and sustained Chicago Title's second demurrer without leave to amend.
Approximately one year thereafter, Plaintiff, as counsel, filed the same lawsuit, in the same court, against the same defendants, in her sister's name, [citation omitted] The Superior Court sustained Defendants' demurrer without leave to amend. Plaintiff was sanctioned for her conduct.
Undeterred, Plaintiff filed an action against the Defendants in the District Court for the Central District of California in June 1997.-This action again involved allegations concerning Defendants' involvement in the 1991-92 court-ordered escrow, [citations omitted] In dismissing the claims filed in that action, the court concluded that Plaintiff's claims were barred by the doctrine of res judicata. The court held that the general demurrer issued by the Superior Court constituted a judgment on the merits, that the same parties were involved in the state court actions, and that the actions involved the same cause of action as the state court actions.
(Id at 2-4.) The court went on to find that Powell's then-current action was a fourth lawsuit based on the same set of facts, and that it likewise was barred by the doctrine of res judicata. (Id. at 2) The court then declared Powell to be a vexatious litigant, Id. at 7-9.)
In a judgment filed July 31, 2001, which is attached as Exhibit 2 to Powers current complaint, the court ordered, adjudged, and decreed that:
Plaintiff Patricia H. Powell shall now and forever be required to seek and obtain an order of the court before filing any further actions in any Federal Court of the United States against any of the named Defendants or any party in privity with the named Defendants. Said order shall be made by the court only upon a satisfactory showing by Patricia H. Powell to the court which includes a certification that the proposed action is brought in good faith, that the issues to be addressed in the proposed action have not been raised in la prior lawsuit, and that security in the amount of $50,000.00 shall be posted before the action is to be filed.
(Compl., Ex. 2 at 2.)
Powell has now filed a fifth complaint, this time in the District Court for the Northern District of California.
DISCUSSION
A. Rule 12(f) Motion
In response to defendants' motion to dismiss, Powell has filed a motion to strike defendants' motion, pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. The Court finds Powell's motion frivolous, as it consists primarily of argument as to why defendants' motion to dismiss should be denied. It does not address the grounds upon which a motion to strike may be granted, specifically, that a "pleading" contains "redundant, immaterial, impertinent, or scandalous matter," see Rule 12(f), and, in any event, a motion to dismiss is not a "pleading."See Crum v. Circus Circus Enterprises, 231 F.3d 1129, 1130 n. 3 (9th Cir. 2000); see also Fed.R.Civ.P. 7 (distinguishing between pleadings and motions).
Accordingly, the Court DENIES Powell's motion, brought under Rule 12(f), to strike defendants' motion to dismiss.
B. Request to File Supplemental Briefing
Powell has submitted a "Request to File Objection and Objection" to defendants' reply brief. Civil Local Rule 7-3(d) provides that "once a reply is filed, no additional memoranda, papers or letters may be filed without prior court approval." Civ. L.R. 7-3(d). The Court finds Powell's "Objection" to be unhelpful and unnecessary, DENIES Powell's request that it be filed, and orders that it be STRICKEN from the record. The Court also orders STRICKEN defendants' "Reply to Plaintiffs' Request to File Objection," which was filed without prior permission of the Court.
C. Defendants' Motion to Dismiss
Defendants move to dismiss the instant complaint on the ground that the current action, like the others before it, is barred by the doctrine of res judicata or, alternatively, that venue is lacking in the Northern District. The Court, however, will not decide these issues, as Powell was required to obtain court permission and to post a $50,000 bond before filing any complaint, and failed to do so.
Pursuant to the order of the court in the Central District, Powell is not permitted to file an action in any federal court against any of the named defendants in the Alleqhanv action, or any party in privity with them, without first (1) obtaining prior permission from the court; (2) certifying that the proposed action is brought in good faith and that the issues to be addressed in the proposed action have not been raised in a prior lawsuit; and (3) posting a $50,000 bond. (Compl., Ex. 2 at 2.) The judgment in the Alleahanv action identifies Chicago Title as a defendant, (Id. at 1.) Chicago Title is also a defendant in the current action. Powell's current complaint alleges that Chicago Title has been integrated into defendant Fidelity National, "which assumed its liabilities as well as its assets." (Compl. ¶ 7.) Thus, by Powell's own allegations, Fidelity National is in privity with Chicago Title. The individual defendants are all alleged to be officers, employees, or counsel of Chicago Title and/or Fidelity National, (id. ¶ 9), and thus they also are in privity with Chicago Title and Fidelity National.
As a consequence, Powell was not permitted to file the current action unless she first obtained' court permission to do so. Indeed, Powell acknowledges in her complaint that she filed the action in the Northern District because "the Central Dist. twice refused jurisdiction of RICO under pretense it re-litigated Boons v. Powell/Henricks' specific performance suit, thus barred by res judicata," and if she filed it in the Central District of California, "Judge Cooper would be re-assigned this action and would never consent[.]" (Compl. ¶¶ 6, 8.) Although the Court appreciates Powell's candor, her displeasure with the orders of the Central District does not authorize her to disregard them.
Accordingly, Powell's complaint must be dismissed, without prejudice to filing a new action if she first obtains court permission and files a $50,000 bond, in compliance with the Alleqhanv judgment.
Defendants also seek to have Powell declared a vexatious litigant in this district, but as noted, Powell has already been declared a vexatious litigant by the Central District of California in an order that requires Powell to obtain court permission before filing an action against the defendants in any federal court. The Ninth Circuit affirmed that decision in an unpublished opinion, holding that "[t]he district court did not abuse its discretion in designating Powell as a vexatious litigant because Powell received adequate notice to oppose the motion, the district court recounted and made substantive findings as to the frivolous nature of Powell's filings, and the order was narrowly tailored to remedy Powell's particular abuses." Powell v. Allegheny Corp., 52 Fed. Appx. 18, 20 (9th Cir. 2002). As Powell is already barred, nationwide, from filing her action without prior court permission, defendants would gain nothing by obtaining a vexatious litigant order against Powell from this Court.
CONCLUSION
For the reasons set forth above, and for good cause shown,
1. Poweirs motion to strike defendants' motion to dismiss is DENIED.
2. Poweirs request to file an "Objection" to defendants'-reply brief is DENIED. Plaintiffs' Objection, and defendants' Reply to Plaintiffs Request To File Objection, are both STRICKEN from the record.
3. Defendants' motion to dismiss is GRANTED, and Powell's complaint is DISMISSED, without prejudice to filing a new action if she first obtains court permission and posts a $50,000 bond, in full compliance with the July 31, 2001 judgment in Powell v. Alleqhanv Corporation, CV-01-2546 FMC (C.D. Cal. 2001).
4. Defendants' request for an order declaring Powell a vexatious litigant is DENIED as moot.
The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial by jury, The issues have been tried and — the jury has rendered its verdict.
Decision by Court. This action came to trial or hearing before the Court. The issues have been — tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED
1. Powell's motion to strike defendants' motion to dismiss is DENIED.
2. Powell's request to file an "Objection" to defendants' reply brief is DENIED. Plaintiff's Objection and defendants' Reply to Plaintiff's Request to File Objection, are both STRICKEN from the record.
3. Defendants' motion to dismiss is GRANTED, and Powell's complaint is DISMISSED, without prejudice to filing a new action if she first obtains court permission and posts a $50,000 bond, in full compliance with the July 31, 2001 judgment in Powell v. Alleghany Corporation, CV-01-2546 FMC(C.D. Cal. 2001).
4. Defendants' request for an order declaring Powell a vexatious litigant is DENIED as moot.