Opinion
CASE NO. C07-0276RSM.
May 16, 2008
ORDER GRANTING IN PART DEFENDANTS' MOTION FOR ORDER RESTRICTING FILING OF FUTURE ACTIONS
I. INTRODUCTION
This matter comes before the Court on "Defendants' Motion for Order Restricting Filing of Future Actions." (Dkt. #65). Defendants move the Court, pursuant to the All Writs Act, to enter an injunction restricting Plaintiff Gregory Tift ("Mr. Tift") from filing any further actions in federal or state court that are related to the instant lawsuit. Mr. Tift, appearing pro se, responds that this Court lacks subject matter jurisdiction to rule on Defendants' motion because he has filed an appeal of an underlying Order entered into by this Court granting Defendants' motion to dismiss. Alternatively, Mr. Tift argues that an evidentiary hearing is required in order for the Court to rule on the instant motion.
For the reasons set forth below, "Defendants' Motion for Order Restricting Filing of Future Actions" is GRANTED IN PART.
II. DISCUSSION
A. BackgroundOn January 4, 2008, this Court granted Defendants' motion to dismiss on the grounds that Mr. Tift's claims were barred by the doctrine of res judicata. (Dkt. #57). Mr. Tift subsequently appealed this Court's decision to the Ninth Circuit on February 1, 2008. (Dkt. #62). Shortly thereafter, Mr. Tift also filed a lawsuit in this district court on February 20, 2008, against various Unions, Union officials, and attorneys representing the Unions, all of whom are associated with the Defendants in the case that this Court dismissed on January 4, 2008. Defendants also indicate that Mr. Tift has previously filed three state court proceedings that are related to the instant lawsuit, and that Mr. Tift has clearly stated his intention to continue filing lawsuits against Defendants, and those associated with the Defendants. (Dkt. #65 at 4-5). Consequently, Defendants argue that this Court must enter a pre-filing order pursuant to the All Writs Act to prevent Mr. Tift from further abusing the judicial process.
The facts that gave rise to the motion to dismiss were previously discussed by the Court in its Order dismissing Mr. Tift's claims. Accordingly, the Court finds it unnecessary to repeat those facts in this Order.
This lawsuit is styled Tift v. Painters Allied Trades District Council No. 5 of the Int'l Union Painters and Allied Trades AFL-COP-CLC, et al., and is currently pending before the Honorable Benjamin H. Settle. See C08-0290BHS.
B. The All Writs Act
The All Writs Act expressly states that district courts "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). The Ninth Circuit has interpreted this statute to provide "district courts with the inherent power to enter pre-filing orders against vexatious litigants." Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) (citation omitted); see also De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) ("Under the power of 28 U.S.C. § 1651(a) , enjoining litigants with abusive and lengthy histories is one such form of restriction that the district court may take"). Therefore district courts clearly have jurisdiction "`to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances.'" Id. at 1147 (quoting Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989)). As a result, Mr. Tift's argument that this Court lacks subject matter jurisdiction simply because he has appealed this Court's Order dismissing his claims is without merit.
The Court recognizes, however, that "such pre-filing orders are an extreme remedy that should rarely be used." Molski, 500 F.3d at 1057 (citation omitted). Courts are well-advised against entering such pre-filing orders because this sanction "can tread on a litigant's due process right of access to the courts." Id. (citation omitted). Moreover, the Ninth Circuit has outlined four factors for district courts to examine before entering pre-filing orders. See De Long, 912 F.2d at 1147-48; Molski, 500 F.3d at 1057. First, a litigant must be provided with an opportunity to oppose the order before it is entered. De Long, 912 F.2d at 1147. Second, the district court must create an adequate record for review. Id. Third, the district court must make substantive findings as to the frivolousness or harassing nature of the litigant's actions. Id. at 1148. Lastly, the order must be narrowly tailored to closely fit the specific vice encountered. Id. Accordingly, the Court discusses these four factors below.
1. Notice
"`Due process requires notice and an opportunity to be heard.'" De Long, 912 F.2d at 1147 (quoting In re Powell, 851 F.2d 427, 431 (D.C. Cir. 1988)). An individual has fair notice of the possibility that he might be declared a vexatious litigant where defendants file a motion to that end. Molski, 500 F.3d at 1058. However, an opportunity to be heard does not require an oral or evidentiary hearing on the issue. Pac. Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000). Instead, "[t]he opportunity to brief the issue fully satisfies due process requirements." Id. (citing Resolution Trust Corp. v. Dabney, 73 F.3d 262, 268 (10th Cir. 1995)).
Here, there can be no dispute that the notice requirements set forth in De Long were met. Defendants have filed this motion in this Court, and Mr. Tift was given the opportunity to brief this issue fully. (Dkt. #75). Thus, Mr. Tift has been given the opportunity to be heard that he may be declared a vexatious litigant, and any due process concerns have been ameliorated.
2. Adequate Record for Review
"An adequate record for review should include a listing of all the cases and motions that [leads] the district court to conclude that a vexatious litigant order [is] needed." De Long, 912 F.2d at 1147 (citing Martin-Trigona v. Lavien, 737 F.2d 1254, 1260 (2d Cir. 1984)). At a minimum, the record needs to show, in some manner, that the litigant's activities are numerous or abusive. De Long, 912 F.2d at 1147.
In the instant case, Mr. Tift's litigious history began when certain trusts filed suit against him for delinquent payments. While Mr. Tift was not the one who initiated the litigation, he filed three subsequent motions for reconsideration after the Court entered a default judgment against him. See Employee Painters' Trust, et al. v. Ethan Enterprises et al., C03-2904RSM. Each motion was denied, and Mr. Tift appealed to the Ninth Circuit. The Ninth Circuit affirmed this Court's judgment. See Employee Painters' Trust v. Ethan Enterprises, Inc., 480 F.3d 993 (9th Cir. 2007).
Mr. Tift subsequently initiated the instant lawsuit against Michael D. Ball ("Mr. Ball") and Robert A. Bohrer ("Mr. Bohrer"), alleging that Mr. Ball and Mr. Bohrer intentionally made false and deceptive representations in their declarations to this Court in obtaining the default judgments against Mr. Tift. (Dkt. #1, Pl.'s Compl. ¶ 17). This Court proceeded to dismiss Mr. Tift's complaint on the basis of res judicata. (Dkt. #57). Meanwhile, Mr. Tift also filed three separate state court actions against Union officials who represented the underlying trusts and provided favorable testimony for the trusts. This Court has ruled that those state court proceedings must be stayed pending Mr. Tift's appeal to the Ninth Circuit pursuant to the relitigation exception of the Anti-Injunction Act. (Dkt. #78). In addition, Mr. Tift recently filed a lawsuit in this district court against various Unions, Union officials, and attorneys representing the Unions, all of whom are associated with the underlying trust fund litigation. The cases and motions filed by Mr. Tift are summarized by the two tables below: Motions Filed by Mr. Tift Case Motion Disposition Employee Painters' Trust, et al. v. Ethan Enterprises et al. Employee Painters' Trust, et al. v. Ethan Enterprises et al. Employee Painters' Trust, et al. v. Ethan Enterprises et al. Cases Filed by Mr. Tift Parties Cause No. Disposition Employee Painters' Trust v. Ethan Enterprises, Inc. See 480 F.3d 993 Tift v. Ball, et. al. Tift v. Carter Tift v. Ball Tift v. Lindquist Tift v. Painters Allied Trades, et. al.
The Washington State Court actions are: (1) Tift v. Carter, No. 06-2-13304-6 SNO filed in Snohomish County Superior Court; (2) Tift v. Ball, No. 06-2-39490-9 SEA filed in King County Superior Court; and Tift v. Lindquist, No. 06-2-39483-6 SEA, in King County Superior Court. (Dkt. #65 at 3); (Dkt. #83 at 3).
3. Frivolous or Harassing Nature of Litigant's Actions
Before a district court issues a pre-filing injunction, "it is incumbent on the court to make `substantive findings as to the frivolousness or harassing nature of the litigant's actions.'" De Long, 912 F.2d at 1148 (quoting Powell, 851 F.2d at 431) (emphasis added). With respect to frivolousness, a district court must "look at `both the number and content of the filings as indicia' of the frivolousness of the litigant's claims." De Long, 912 F.2d at 1148 (quoting Powell, 851 F.2d at 431). "`An injunction cannot issue merely upon a showing of litigiousness. The plaintiff's claims must not only be numerous, but also patently without merit.'" Molski, 500 F.3d at 1059 (quoting Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990)). Alternatively, a pattern of harassment is sufficient to justify the issuance of a pre-filing order. De Long, 912 F.2d at 1148; see also Scott v. Weinberg, 2007 WL 963990, *4 (W.D. Wash. 2007) (recognizing that a pattern of harassment warrants entry of a pre-filing restriction). "The district judge needs to `discern whether the filing of several similar types of actions constitutes an intent to harass the defendant or the court.'" De Long, 912 F.2d at 1148 (quoting Powell, 851 F.2d at 431).
In the instant case, notwithstanding whether Mr. Tift's claims have been frivolous, the Court finds that there is sufficient evidence in the record to establish that Mr. Tift has engaged in a pattern of harassment. Not only has Mr. Tift filed the instant case, three separate state court cases, and a subsequent federal court case against individuals and Unions all associated with the underlying trust fund litigation, Mr. Tift has also filed bar complaints against two attorneys who are representing the Defendants in the instant case. (Dkt. #66, Aff. of Bohrer, ¶¶ 3, 4, Exs. A, B, C, and D). Notably, all three bar complaints have been dismissed. ( Id.). In addition, Mr. Tift has indicated that he will continually file lawsuits against the Union, individuals representing the Union, and the attorneys associated with this case. Mr. Tift left voicemails to the attorneys in the instant action to that effect. A voicemail left on January 18, 2008 provides in pertinent part:
Mr. Robblee, this is Greg Tift, and this is going to be the most cordial phone call you are going to get from me in the future . . . I swear to God I will work 24 hours a day, 24/7. I will continue to sue the union. I will go after the trust. I will go after every goddamn one of you as long as you are attempting to get my girlfriend, who has done nothing to you [expletive] people . . . We are done, and you can play this to that [expletive] Martinez, as well, because that cocksucker is as corrupt as you [expletives]. Goddamn you. I will not rest until I beat your [expletive] union asses down. Goodbye. [Expletive].
(Dkt. #70, Decl. of Simmons) (emphasis added).
Mr. Tift left a subsequent voicemail three days later, indicating that he was apologetic about the first voicemail, but nevertheless affirming his intention to sue. This voicemail provides in pertinent part:
My message was probably not the most eloquent message . . . [s]o, first of all, I am deeply sorry for my poor language . . . I am only retaliating and fighting with vigor and tenacism because of that. I believe that your clients lied. I believe that Judge Martinez gave me an extremely unfair ruling, and quite frankly, sometimes we have to live with things that happen, but I can't allow you to quite frankly hurt my family any longer, hurt my children. So it's gotta stop. The trust needs to make a deal. Otherwise, it's just gonna go on forever. It's just that you must know by now that I'm not the kind of person that's going to just give up and roll over.
( Id.) (emphasis added).
Mr. Tift also left a message on January 31, 2008 for Mike Cassidy ("Mr. Cassidy"), a trustee for one of the trusts that obtained a default judgment against Mr. Tift. (Dkt. #68, Aff. of Cassidy at 2). In this message, Mr. Tift clearly indicates to Mr. Cassidy of his intention to continue filing lawsuits. The voicemail provides in pertinent part:
I still maintain that I do not owe the Union a million dollars . . . And whatever your Union lawyers are telling you, is a complete utter mistruth lie . . . I would appreciate it if the Union would just stop their Union thugary and take the protection money because you are hurting a lot of people. Now I'm about to file some more lawsuits against the Trust and every member of the Trust and all of the attorneys of the Trust. And I will continue to do that until this is resolved.
( Id. at 4) (emphasis added).
Based on this evidence, the Court finds that Mr. Tift's conduct both in and out of court establish a pattern of harassment. Mr. Tift has shown no indication that he will stop filing lawsuits, and he has shown that he is ultimately the type of litigant who intends to "harass the defendant or the court.'" See De Long, 912 F.2d at 1148. Therefore the nature of Mr. Tift's actions clearly support an entry of a pre-filing order restricting his ability to file.
4. Breadth of Order
Where a court enters a pre-filing order, the order must be narrowly tailored to closely fit the specific vice encountered. De Long, 912 F.2d at 1148. "Narrowly tailored orders are needed `to prevent infringement on the litigator's right of access to the courts.'" Id. (quoting Sires v. Gabriel, 748 F.2d 49, 51 (1st Cir. 1984)). The pre-filing restriction must fit the plaintiff's specific practices. See, e.g., Wood, 705 F.2d at 1525 (finding that the injunction must describe in reasonable detail the act or acts sought to be restrained). Here, the Court finds that the proposed order submitted by Defendants is narrowly tailored to restrict Mr. Tift's actions that arise from the underlying trust fund litigation. Accordingly, the Court incorporates the majority of the proposed language in the "Conclusion" section below.
C. Restriction of State Court Filings
Defendants also argue that the All Writs Act permits the Court to prohibit Mr. Tift's ability to file state court actions that are related to the instant lawsuit. Importantly, the All Writs Act is not a grant of jurisdiction itself. Malone v. Calderon, 165 F.3d 1234, 1237 (9th Cir. 1999); Stafford v. Superior Ct., 272 F.2d 407, 409 (9th Cir. 1959) ("The All Writs Act . . . does not operate to confer jurisdiction . . . since it may be invoked by a district court only in aid of jurisdiction which it already has."). "Rather, it is designed to aid the courts in the exercise of their jurisdiction." Jackson v. Vasquez, 1 F.3d 885, 889 (9th Cir. 1993) (citation omitted). Therefore this Court can only enjoin Mr. Tift from filing future state court claims if it acquired the jurisdiction to do so from some independent source in law. See Doe v. Immigration and Naturalization Serv., 120 F.3d 200, 204-05 (9th Cir. 1997).
In the instant case, the Court finds that no such independent authority exists. While the relitigation exception of the Anti-Injunction Act potentially provides this Court with jurisdiction as it permits a federal court to enjoin state proceedings when necessary to "protect or effectuate its judgments," 28 U.S.C. § 2283, it very clearly does not operate to bar suits that have not yet been filed in state court. See Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, 85 S.Ct. 1116 (1965) (noting that "[ 28 U.S.C. § 2283] and its predecessors do not preclude injunctions against the institution of state court proceedings, but only bars stays of suits already instituted.") (emphasis added); see also Retirement Systems of Ala. v. J.P. Morgan Chase Co., 386 F.3d 419, 427 n. 6 (2d. Cir. 2004) ("The Anti-Injunction Act does not apply where . . . a state court action has not yet been filed.") (emphasis added). As a result, the Court does not have any independent jurisdiction that justifies the restriction of Mr. Tift's ability to file future actions in Washington State Court. In any event, Defendants do not cite to any authority that establishes such independent jurisdiction.
D. Evidentiary Hearing
Lastly, the Court addresses Mr. Tift's argument that an evidentiary hearing must take place before the Court can enter a pre-filing order restricting his filing activities. Specifically, Mr. Tift argues that whether he is a vexatious litigant is an issue of fact which requires proof that he has engaged in "vexatious" behavior. However, an evidentiary hearing is unnecessary where there are no disputed facts. See, e.g., Doi v. Halekulani, 276 F.3d 1131, 1139 (9th Cir. 2002) (finding no need for an evidentiary hearing where there was no disagreement over whether an agreement existed and what its terms were); see also Sameena Inc. v. U.S. Air Force, 147 F.3d 1148, 1154 (9th Cir. 1998) (finding that only where there is a genuine factual dispute should an evidentiary hearing be necessary). And as indicated above, an opportunity to be heard does not require an oral or evidentiary hearing on the issue. Pac. Harbor Capital, 210 F.3d at 1118. Instead, "[t]he opportunity to brief the issue fully satisfies due process requirements." Id. (citing Resolution Trust, 73 F.3d at 268).
Mr. Tift was given the opportunity to refute the statements made by the Defendants in this case, including the affidavits and declarations which establish Mr. Tift's harassing behavior. However, Mr. Tift did not choose to contradict any of the facts set forth by Defendants in his responsive brief. Consequently, there are no factual disputes for the Court to resolve and an evidentiary hearing would serve no purpose in the instant case.
Overall, the pre-filing restriction upon Mr. Tift is necessary because it is consistent with this Court's obligation to conserve judicial resources. See O'Loughlin v. Doe, 920 F.2d 614, 618 (9th Cir. 1990) ("While district courts may not restrict filings in an overly broad manner . . . they also bear an affirmative obligation to ensure that judicial resources are not needlessly squandered on repeated attempts by litigants to misuse the courts"). "Frivolous and harassing claims crowd out legitimate ones and need not be tolerated by the district courts." Id. This is particularly the case here, where Mr. Tift seemingly refuses to be bound by decisions made by this Court and the Ninth Circuit. And as further evidenced by Mr. Tift's conduct towards individuals associated with the underlying trust fund litigation, Mr. Tift has stated no intention of stopping such behavior. Under these circumstances, the proper remedy is to prevent Mr. Tift from further abusing the judicial system and its resources.
III. CONCLUSION
Having reviewed Defendants' motion, Plaintiff's response, Defendants' reply, the declarations and exhibits attached thereto, and the remainder of the record, the Court hereby finds and orders:
(1) "Defendants' Motion for Order Restricting Filing of Future Actions" is (Dkt. #65) GRANTED IN PART. Specifically, Gregory Tift is hereinafter declared a vexatious litigant in this district, and is restricted from filing:
(a) any claim in the Western District of Washington
(b) against:
(i) Employee Painters' Trust Health Welfare Fund, the Resilient Floorcovering Pension Fund, the Western Washington Floorcovering Apprenticeship Fund, the Western Washington Floorcovering Industry Promotion Fund, or Rebound (collectively the "Trust Funds"), and/or other entities to which Ethan Enterprises was required to contribute or remit monies to, that were concerned in earlier litigation with Mr. Tift, or any present of former trustee, agent, attorney or service provider to any such Trust Fund; or
(ii) District Council No. 5 of the International Union of Painters and Allied Trades and/or its affiliate labor organizations ("Unions"), or their present and former officers, employees, agents, and attorneys; or
(iii) any individual who has provided testimony by affidavit or otherwise in a lawsuit to which Mr. Tift was a party
(c) relating to
(i) claims or defenses made or which could have been made in Employee Painters Trust v. Ethan Enterprises, et al, Case No. 03-2904RSM (W.D. Wash.) ("Tift I"), collection actions arising from the judgment entered in Tift I, or this action ("Tift II"), including the claims of false testimony, conspiracy, or racketeering;
(ii) the presentation of evidence or the representations made by the attorneys for the Trust Funds in Tift I to this Court, or in any collection action arising from the judgment entered in Tift I or Tift II; or
(iii) the conduct of the Unions insofar as it relates to the Union's assistance to the Trust Funds, its representation of employees employed by Tift Young Enterprises or Ethan Enterprises, or its administration of the collective bargaining agreement with Tift Young Enterprises or Ethan Enterprises.
(2) There is no mechanism this Court can employ to ensure that each and every Washington State Court is advised of this Order. Nor have Defendants provided this Court with any authority which justifies extending the scope of this Order to every claim brought by Gregory Tift in every jurisdiction. Therefore the scope of this Order is limited only to future actions filed by Gregory Tift in this district and will not be extended to apply to actions that Gregory Tift may potentially file in Washington State Court.
(3) Should Gregory Tift proceed to initiate any future claims in this district, each filing shall be accompanied by a statement entitled, "Rule 11 Certification." The certification shall provide the factual and legal basis for the claim, and the reasons for why it falls outside the scope of this Order.
(4) The Clerk is directed to docket any future claims by Gregory Tift made in this district within this case number, C07-276RSM, for review by the undersigned judge consistent with the pre-filing restrictions of this Order. However, the Clerk SHALL NOT docket any future filings made by Gregory Tift in his pending lawsuit before the Honorable Benjamin H. Settle, C08-290BHS, within this case number. Defendants moved to restrict Gregory Tift's ability to file future claims, and Gregory Tift filed the pending lawsuit before Judge Settle prior to the entry of this Order.
(5) The Clerk is directed to forward a copy of this Order to all counsel of record and pro se Plaintiff at the following address: 40 Lake Bellevue, Suite 100, Bellevue, WA 98005.