usa's motion to declare me as "vexatious litigant" for suing government
DESCRIPTION
A Chinese immigrant sued US government for threats of death and enforced disappearance, violation of equal protection clause in criminal law enforcement, and for crimes committed by US government officials, etc..TRANSCRIPT
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MELINDA HAAG (SBN 132612)United States AttorneyJOANN M. SWANSON (SBN 88143)Chief, Civil DivisionVictoria R. Carradero (SBN 217885)Assistant United States Attorney
450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-7181 Facsimile: (415) 436-6748 Email: [email protected]
Attorneys for the United States of America
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
WANXIA LIAO,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
)))))))))))))))
No. C-11-2494 JSW
THE UNITED STATES OF AMERICA’SRE-NOTICE OF MOTION ANDMOTION FOR ORDER DECLARINGPLAINTIFF VEXATIOUS LITIGANTAND FOR PREFILING SCREENING
Date: March 16, 2012Time: 9:00 a.m. Location: Courtroom 11, 19th FloorJudge: Honorable Jeffrey S. White
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TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
RE-NOTICE OF MOTION AND MOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES TO BE DECIDED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RELIEF SOUGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. STATEMENT OF RELEVANT FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Plaintiff’s Lawsuits In California Superior Court . . . . . . . . . . . . . . . . 3
B. Plaintiff’s Lawsuits In Federal Court . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1. Liao v. Cahill, et al., Case No. C 03-2906-SBA . . . . . . . . . . . . . . 4
2. Liao v. Quidachay, et al., Case No. C 05-1888-CW . . . . . . . . . . . 5
3. Liao v. Ashcroft, et al., Case No. C 08-2776-PJH . . . . . . . . . . . . . 6
4. Liao v. United States of America, et al.,
Case No. C 11-2494-JSW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
III. PLAINTIFF’S CONDUCT MEETS THE STANDARD OF A
VEXATIOUS LITIGANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1. Plaintiff Will Have Sufficient Notice And
Opportunity To Be Heard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2. Plaintiff Has A Pattern Of Filing Numerous Actions
Against The Federal Government And Its Employees. . . . . . . . . 11
3. Plaintiff’s Lawsuits And Filings Are Frivolous . . . . . . . . . . . . . . 12
VEXATIOUS LITIGANT MOTIONC-11-2494 JSW
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4. Breadth of Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
VEXATIOUS LITIGANT MOTIONC-11-2494 JSW
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TABLE OF AUTHORITIES
FEDERAL CASES
Beachboard v. United States, 727 F.2d 1092 (Fed. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 15
DeLong v. Hennessey, 912 F.2d 1144 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Kent v. DaimlerChrysler Corp., 200 F. Sup. 2d 1208 (N.D. Cal. 2002) . . . . . . . . . . . . . . . . . 2, 3,
Liao v. Ashcroft, et al., Case No. C 08-2776-PJH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6
Liao v. Cahill, et al., Case No. C 03-2906-SBA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,5
Liao v. Quidachay, et al., Case No. C 05-1888-CW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,5
Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . passim
Moy v. United States, 906 F.2d 467 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14
O'Loughlin v. Doe, 920 F.2d 614 (9th Cir.1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Shafler v. HSBC Bank USA, 2007 U.S. Dist. LEXIS 15400 (N.D. Cal. February 21, 2007) 10, 13
Stone v. Maricopa County, et al., 2008 U.S. Dist. LEXIS 84030 (D. Ariz. September 29, 2008)13
United States v. Wilson, 631 F.2d 118 (9th Cir.1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
U.S. v. Southern California Edison Co., 300 F. Supp. 2d 964 (E.D. Cal. 2004) . . . . . . . . . . . . . . 2
Weissman v. Quail Lodge Inc., 179 F.3d 1194 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 10
FEDERAL STATUTES
Fed. R. Evid. 201(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 1651(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
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RE-NOTICE2 OF MOTION AND MOTION
TO PLAINTIFF WANXIA LIAO AND ALL DEFENDANTS OF RECORD:
PLEASE TAKE NOTICE that on March 16, 2012, at 9:00 a.m., or as soon thereafter as
the matter may be heard in Courtroom 11, 19th Floor, 450 Golden Gate, San Francisco,
California, the Honorable Jeffrey S. White presiding, the United States of America (“USA”) will
appear3 and move the Court for an order declaring Plaintiff a vexatious litigant and imposing a
pre-filing screening order on any new action brought by her in this Court.
This motion is brought on the grounds that Plaintiff Liao has filed and continues to file
frivolous pleadings, complaints, and motions, including the complaint in the instant case, which
pleadings, complaints, and motions are numerous, abusive, and harassing in violation of the
holdings of Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th Cir. 2007) and DeLong v.
Hennessey, 912 F.2d 1144 (9th Cir. 1990). This motion is based on this notice, the ensuing points
and authorities, the declaration of Victoria R. Carradero (“Carradero Decl.,”) and accompanying
exhibits, the Request for Judicial Notice, the pleadings on file with the Court, and any such other
evidence or argument that the Court may hear.
ISSUES TO BE DECIDED
Whether Plaintiff should be considered a vexatious litigant due to the repetitive and
numerous non-meritorious suits and filings that she has brought in this Court and whether a
broad pre-filing screening order is warranted.
RELIEF SOUGHT
The USA seeks an order requiring Plaintiff to submit any further proposed actions to the
Court for prefiling review and approval before Plaintiff is allowed to file such actions with this
Court. The USA also seeks an order requiring that, should after prefiling review the Court
deems an action appropriate for filing, the Plaintiff pay all court filing and other fees and not be
2This is the third time since December 2011 that the USA has filed and served thismotion, refiling it after each time a judge has recused himself/ herself and the matter has beenreassigned. See Docket Entry Nos. 44, 54.
3Plaintiff has not effected proper service of the summons and complaint or first amendedcomplaint on federal defendants. Carradero Decl., ¶ 2. See also Docket Entry No. 20, 63.VEXATIOUS LITIGANT MOTIONC-11-2494 JSW
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permitted to proceed in forma pauperis.
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
In 1991, while a graduate student at the University of Toronto, Plaintiff Wanxia Liao, a
Canadian citizen of Chinese decent, had an academic dispute with a professor. This event has
spawned, over the course of the last nearly ten years, at least two state court actions, four federal
court actions, and numerous appeals (including to the United States Supreme Court), all of which
have been resolved against Plaintiff. The history giving rise to these actions4 is well chronicled
in this Court’s multiple orders in Liao v. Cahill, et al., Case No. C 03-2906-SBA, Liao v.
Quidachay, et al., Case No. C 05-1888-CW, and Liao v. Ashcroft, et al., Case No. C 08-2776-
PJH. This particular action is Plaintiff’s fourth lawsuit in this Court alleging the same elaborate
conspiracy to cover up a claimed violation of her self labeled “constitutional” rights. The
alleged conspirators include the USA, the Department of Justice, the Department of State, four of
this Court’s judges, two court clerk employees, the clerk of the Ninth Circuit, numerous federal
government employees and national media organizations.
Plaintiff generally alleges that the Canadian, United States, California state and San
Francisco County governments, and their employees, have conspired to cover up purported
“criminal” acts, “constitutional violations,” and “frauds” each supposedly linked to the fallout of
her dispute with one Professor Cahill at the University of Toronto in 1991. In each of the
4The USA provides a brief summary of the numerous proceedings in the actions Plaintiffhas filed. Because the docket proceedings are extensive, with Plaintiff filing numerous impropermotions (including, but not limited to, repeated motions for reconsideration, motions “forinvestigation,” motions to stay, and motions to disqualify counsel and the judge), for the Court’sconvenience, the USA submits the dockets for each of Plaintiff’s actions, along with selectdocuments from each case to demonstrate to the Court the duplicative and meritless nature ofPlaintiff’s abusive filings. The USA requests that the Court take judicial notice of these courtrecords, available on the San Francisco Superior Court website, Pacer and Lexis. Request forJudicial Notice, Carradero Decl., Exs. 1-43. See Fed. R. Evid. 201(d); see also United States v.Wilson, 631 F.2d 118, 119 (9th Cir.1980) (“[A] court may take judicial notice of its own recordsin other cases, as well as the records of an inferior court in other cases.”); U.S. v. SouthernCalifornia Edison Co., 300 F. Supp. 2d 964, 974 (E.D. Cal. 2004); Kent v. DaimlerChryslerCorp., 200 F. Sup. 2d 1208 (N.D. Cal. 2002). VEXATIOUS LITIGANT MOTIONC-11-2494 JSW
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lawsuits, Plaintiff’s facts generally do not change. Rather, the list of defendants gets longer and
longer each time Plaintiff tacks on a judge who rules against her, court personnel whom she
claims conspired to dismiss her complaint, a media outlet whom she claims did not post her
story, a third party whom she claims “unlawfully” refused to “investigate” her “human rights
case,” or a lawyer appears in the action.
Although Plaintiff has not effected proper service on any federal defendant in the instant
matter, the USA files the instant motion to declare Plaintiff a vexatious litigant, and will soon
file a motion to dismiss the complaints. The parties and the Court have been burdened long
enough. Plaintiff’s lawsuits amount to no more than a substantial waste of time and limited
judicial and taxpayer resources.5 The order sought is necessary to stop Plaintiff, or at the very
least, temper her abuse of the judicial system. The USA’s motion should be granted.
II. STATEMENT OF RELEVANT FACTS
A. Plaintiff’s Lawsuits In California Superior Court
On May 9, 2002, Plaintiff filed a lawsuit in San Francisco Superior Court (Case No.
407661) against Professor Cahill and the University of California alleging civil conspiracy and
racial discrimination. Carradero Decl., Exs. 1-4 (Docket, Complaint and Amended Complaints).
The facts underlying Plaintiff’s case are as follows. In 1991, as a masters student at the
University of Toronto, Plaintiff had an academic dispute with professor David Waterhouse in the
University’s East Asian Studies Department. Carradero Decl., Ex. 2 (Complaint). Plaintiff
submitted a term paper in which she challenged Waterhouse’s previously published contention
that “beautiful” is a European concept. Id., at ¶¶ 6-7. Waterhouse then allegedly retaliated
against her by interfering with her Ph.D application through a series of “fraud,” such as awarding
Plaintiff a “B” as her final grade while the course was in progress, submitting Plaintiff’s grade
without having it reviewed by the Department Chair, providing a reference letter for Plaintiff’s
Ph.D application fraudulently identifying himself as her program supervisor, and objecting to
Plaintiff’s Ph.D application on an erroneous ground. Id., ¶ 8. According to Plaintiff,
5Plaintiff, a Canadian citizen, has never once appeared in person in this Court. Rather,she abuses the system from her residence in Canada. Docket Nos. 18, 19, 24, 35. VEXATIOUS LITIGANT MOTIONC-11-2494 JSW
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Waterhouse’s fraud directly caused her application for the Ph.D program to be unsuccessful. Id.
Plaintiff subsequently filed a complaint with the Ontario Human Rights Commission (“OHRC”).
Id. While not entirely clear from the complaint allegations, James Cahill (“Cahill”), a professor
at UC Berkeley, allegedly became involved in a conspiracy with the Canadian government to
cover up Waterhouse’s fraud and racial prejudice after learning of Plaintiff’s complaint to the
OHRC. Id., ¶¶ 9-25. In May 1995, the OHRC dismissed Plaintiff’s complaint, which led to her
arrest and subsequent conviction for uttering a death threat to Waterhouse. Id., at ¶¶ 26-36.
Defendants filed a demurrer, which was sustained and the case was dismissed. Carradero
Decl., Exs. 1, 5. Plaintiff’s appeal was subsequently dismissed. Id., Ex. 6.
On March 8, 2004, Plaintiff filed another lawsuit in San Francisco Superior Court (Case
No. 429421), this time against the San Francisco Superior Court and Michael Laurenson
(Professor Cahill’s attorney in the previous superior court action), stylized as a “Complaint in
Equity to Declare Orders Sustaining Demurrer and Dismissing Action Void for Action No.
407761.” Carradero Decl., Exs. 7-9 (Docket, Complaint and Amended Complaint). The
Complaint alleged that the Court’s order sustaining demurrers to her complaint should be voided
because they were “obtained by extrinsic fraud and in excess of the jurisdiction of the Court for
not being accomplished in the manner prescribed by statute” and the Court issued them without
“subject matter jurisdiction.” Id., Ex. 8, Complaint ¶ 1. The Complaint also attempted to allege a
claim for fraud and misrepresentation against defendant’s counsel in her prior case. Id.
Defendant’s demurrer was sustained. Carradero Dec., Ex. 12 (Court of Appeal Order, at *2).
Plaintiff moved to vacate the order and disqualify San Francisco Superior Court Judge
Quidachay and filed a first amended complaint. Exs. 7, 12 (at *2). Defendant moved for an
order requiring Plaintiff to furnish security on the ground that she was a vexatious litigant, which
was granted.. Exs. 7, 10-11 (Order and Judgment), 12 (at *2-3). Plaintiff moved unsuccessfully
for reconsideration and the actions were dismissed Exs. 7, 12 (at *2-3). Plaintiff unsuccessfully
appealed the order granting security and the order denying reconsideration. Exs. 12, 13.
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B. Plaintiff’s Lawsuits In Federal Court
1. Liao v. Cahill, et al., Case No. C 03-2906-SBA
While her first superior court action was pending, on June 23, 2003, Plaintiff filed her
first district court action (Case No. 4:03-2906 SBA) against Professor Cahill and the University
of California based on the same set of facts - the dispute with Professor Cahill and the
conspiracy to cover it up. Carradero Decl., Ex. 14 (Docket). The case was assigned to Judge
Armstrong. Plaintiff filed an array of “motions” in that matter, ranging from appeals of orders
dismissing claims (see e.g., Docket No. 32), motions to amend the complaint (Docket Nos. 34,
77), motions to remove counsel (Docket No. 34), and motions for “relief” (Docket Nos. 55, 77,
90, 108). Id. The Court’s Order dismissing Plaintiff’s action reflects the duplicative nature of
Plaintiff’s allegations and claims as those set forth in her superior court actions. Id., Ex. 15
(Order denying Plaintiff’s “Motion for Rule 56(f) Discovery and Stay of Summary Judgment”
and “Motion for Relief Under Rule 60(b)(6),” p. 1-2). The Court specifically admonished
Plaintiff about her repeated filing of meritless motions seeking relief from the same judgment,
and ordered Plaintiff to not file any further documents in the action without leave of court or
they would be stricken from the record. Id., at p. 9. Plaintiff subsequently appealed, but failed
to pay the filing fees and the appeals were dismissed for failure to prosecute. Id., Exs. 16-18
(Oder denying Plaintiff’s Motion to Set Aside Clerk’s Filing Fee Payment Notice, Docket for
Appeal 04-16009, Docket for Appeal 06-15544).
2. Liao v. Quidachay, et al., Case No. C 05-1888-CW
On May 9, 2005, Plaintiff filed a second district court action (Case No. 4:05-1888-CW),
this time against numerous San Francisco Superior Court Judges and staff, as well as state
appellate court and supreme court justices, in addition to James Cahill and Michael Laurenson.
Carradero Decl., Exs. 19, 20 (Docket, Second Amended Complaint). The case was assigned to
Judge Wilken. Plaintiff regurgitated the very same allegations and “constitutional” violations as
in her two prior state court actions and her first district court action and added to her conspiracy
theory. Id., Ex. 20, ¶¶ 9-19. Plaintiff added allegations that various judges and court personnel
conspired to “sabotage” her case based on the dismissals in her prior actions. Id., ¶¶ 3-8, 22-76.
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Plaintiff sought, among other things, declaratory relief that “the Judicial Council of California
has created an underground room for California judges to freely commit unlawful acts in courts
to deprive litigants’ constitutional rights.” Id., ¶ 8. Plaintiff filed numerous similar improper
motions as in her prior district court action, as well as motions to disqualify the district court
judge assigned to hear the matter. Id., Ex. 19 (see e.g., Docket Nos. 28, 33, 34). The Court
denied various of Plaintiff’s motions, including her motions for a stay and for telephonic
appearance, denied Plaintiff’s motion for removal of counsel and recusal of the judge, dismissed
Plaintiff’s Complaint and Second Amended Complaint on the grounds of absolute and quasi-
immunity and failure to affect service, and denied her motions for reconsideration. Id., Exs. 21-
24. In February and June 2007, Plaintiff’s appeals were dismissed for lack of jurisdiction and
failure to prosecute. Id., Ex. 25-28. On May 27, 2008, Plaintiff’s petition for a writ of certiorari
to the United States Supreme Court was also denied. Id., Ex. 29.
3. Liao v. Ashcroft, et al., Case No. C 08-2776-PJH
On June 4, 2008, Plaintiff filed her third district court action (Case No. 4:08-2776 PJH),
again based on the same set of facts regarding the dispute with Professor Cahill at the University
of Toronto and the alleged failure to investigate her complaints arising out of that dispute. This
time, instead of suing Professor Cahill and the University of California as she did in her prior
state and federal court actions, she named as defendants former Attorney Generals John Ashcroft
and Alberto Gonzalez, persons alleged to be paralegals of the Department of Justice, the Section
Chief of the Civil Rights Division of the Department of Justice, various FBI personnel, various
San Francisco Police Department personnel, various members of the civil grand jury, the City
and County of San Francisco, the Deputy State Attorney General, CNN, You Tube, District
Court Judge Claudia Wilken, and lawyers for defendants in her prior action. Carradero Decl.,
Ex. 30, 31 (Docket and Complaint). The case was originally assigned to Judge Armstrong.
After Judge Armstrong issued an order requiring Plaintiff to effect proper service on defendants,
Plaintiff subsequently amended her complaint to name Judge Armstrong as a defendant (in
addition to a new defendant, “the Chairman of the 109th Congress Subcommittee on Africa,
Global Human Rights, and International Operations”) and the case was reassigned to Judge
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Hamilton. Id., Ex. 30, 32 (Amended Complaint).
Plaintiff alleged that her case was “a constitutional, civil, and human rights case
challenging the racially motivated refusals by United States government (“Federal”) officials and
California state officials to investigate [her] criminal complaints, and the conspiracy by federal
justice administrative officials with the US major media to place a secret prior restraint on [her]
Internet free speech about [her] human rights case without due process of law in purpose to
cover up [her] human rights case against the US.” Id., Ex. 31, ¶ 1. Plaintiff regurgitated the very
same allegations and claims as in her prior cases. Id., ¶¶ 26-34. Plaintiff added allegations that
Judge Wilken and Judge Armstrong violated Plaintiff’s due process rights when Judge Wilken
refused to recuse herself and by Judge Armstrong’s handling of her case “in favor of Cahill.”
Ex. 32, ¶¶ 80-88. Plaintiff also alleged that the media defendants joined “the oppression by
government” based on her alleged inability to post on CNN and You Tube message boards about
her “human rights case.” Id., ¶¶ 93-103. Plaintiff also alleged that the remaining federal and
county defendants unlawfully refused to investigate or respond to her complaints to look into the
allegations that she raised in her lawsuits, including an alleged threatening internet posting from
someone “who was undoubtedly speaking for the US and Canadian governments and did so as a
knowledgeable insider of the governments.” Id., ¶¶ 37-79, 104-111. Finally, plaintiff alleged
that the attorney defendants (Kay Yu from the state Attorney General’s office and Gordon and
Reese) committed wrongs by filing demurrers and declarations in her prior court actions. Id., ¶¶
89-92.
Plaintiff failed to effect proper service of that action and, as a result, her case was
dismissed as to all but four defendants in the case (CNN, Kay Yu, Judge Armstrong, and
Christopher Smith). Carradero Dec., Exs. 33, 34 (Orders re Service and dismissal). In the Order
dated March 11, 2009, the Court expressly warned Plaintiff that as to the latter three defendants,
that even if Plaintiff were to properly effect service, they would likely be found immune from
suit. Id., Ex. 34, at *22. Plaintiff also filed numerous similar improper “motions” as in her prior
district court actions, including motions to stay, a motion for “investigation” of “changes in the
docket,” motions for “relief,” and a motion to recuse the judge, all of which were denied. Exs.
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30, 36. The Court granted the media defendants’ motion to dismiss, as well as the remaining
federal defendants’ motions to dismiss on the grounds that Judge Armstrong and U.S. House of
Representative Smith are immune from suit. Exs. 35, 37, 38. On September 30, 2009, Plaintiff’s
appeals were dismissed for failure to pay the docketing fees. Ex. 39, 40 (Docket, Order).
4. Liao v. United States of America, et al., Case No. C 11-2494-JSW
On May 23, 2011, Plaintiff filed the fourth and instant action in this Court, this time
suing various federal defendants (the USA, the Department of Justice, Attorney General Eric
Holder, FBI agent Stephanie Douglas, former U.S. Attorney Joseph Russioniello (identified as
“U.S. Attorney for California”), the Honorable Saundra Brown Armstrong, the Honorable
Phyllis Hamilton, district court staff “JLM” (identified as “clerk to Judge Armstrong”; known as
Jessie Mosley), “Financial Technician” Quelita Bourgeois, and Clerk of the Ninth Circuit, Molly
Dwyer); media defendants CNN, Washington Post, Wall Street Journal and Topix.com; and
Assistant State Attorney General Kay Yu. Carradero Decl., Exs., 41, 42 (Docket and
Complaint). Plaintiff alleges the very same accusations as in her prior cases - a conspiracy
between various governments, government employees, lawyers, and the media to violate her
“constitutional” rights in dismissing her prior lawsuits and failing to investigate her claimed
“human rights cases” and the same claims for purported “constitutional violations” and “fraud.”
Exs. 42 (Complaint). Plaintiff seeks to use this case to challenge orders in her prior district court
action, Case No. 08-2776 PJH, orders which Plaintiff appealed and subsequently abandoned. Id.,
(Complaint ¶¶ 1, 5-8, 35-91); Ex. 40 (order dismissing appeal for failure to prosecute).
On November 19, 2011, Plaintiff filed a first amended complaint adding District Court
Judge William Alsup and Assistant U.S. Attorney Victoria Carradero as defendants based on
allegations that the newly named defendants “started to conspire to sabotage [her] case through
ways of fraud” because the Court issued an order requiring Plaintiff to personally appear for the
Case Management Conference, as all parties are required to, and because of her complaints about
e-filing. Id., Ex. 43 (Amended Complaint, ¶¶ 84-97). Plaintiff also added the U.S. Department
of State and Voice of America as defendants claiming that each “joined the media conspiracy”
and refused to post her comments on their websites in violation of her purported right to free
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speech. Id. (¶¶ 8, 109-118, 136). Plaintiff also appears to attempt to allege a new cause of action
purporting to challenge the constitutionality of the Immigration and Nationality Act based upon
a claimed inability to enter the United States because she is a foreign national with a criminal
record. Id., Ex. 43 (FAC, ¶¶ 11, 139-40).
On December 9, 2012, the USA filed and served a motion to declare Plaintiff a vexatious
litigant. Docket No. 44. On December 12, 2011, Judge Alsup recused himself and the matter
was reassigned to Judge Wilken, who Plaintiff then demanded recuse herself. Docket Nos. 45-
46, 51. On December 20, 2011, the USA refiled and reserved its motion. Docket No. 54. On
December 23, 2011, Judge Wilken denied Plaintiff’s request for recusal and issued a briefing
schedule on the defendants’ pending motions to be decided on the papers. Docket No. 56. The
Court’s order noted that Plaintiff had not complied with Rule 4, and ordered her to serve the
federal defendants and file proof of service within 30 days or her claims would be dismissed for
failure to prosecute. Id. On December 26, 2011, Plaintiff filed an “emergency motion” to vacate
the order, claiming that she was never served with the USA’s motion to declare her a vexatious
litigant (which was incorrect as she had been served with it twice) and needed more time to
respond, and repeating her demand for Judge Wilken to recuse herself. Docket No. 57. That
motion, while granted on January 6, 2012, specifically provided that Plaintiff was to file and
serve her opposition to each of the defendant’s pending motions within 21 days of the date of the
order. Docket No. 59. On January 9, 2012, this matter was reassigned to Judge White. As of
this filing, Plaintiff has not filed or served her opposition to any of the Defendants’ motions. See
Docket. Further, as of this filing, Plaintiff has not effected proper service on any federal
defendant. Docket No. 63, Carradero Decl., ¶ 2.
III. PLAINTIFF’S CONDUCT MEETS THE STANDARD OF A VEXATIOUS
LITIGANT
A. Legal Standard
The Ninth Circuit has long recognized that “[t]here is strong precedent establishing the
inherent power of federal courts to regulate the activities of abusive litigants by imposing
carefully tailored restrictions under appropriate circumstances.” De Long v. Hennessey, 912
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F.2d 1144, 1147 (9th Cir. 1990). Pursuant to the All Writs Act, 28 U.S.C. § 1651(a), district
courts have “the inherent power to enter pre-filing orders against vexatious litigants.” Molski v.
Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) (citing to Weissman v. Quail
Lodge Inc., 179 F.3d 1194, 1197 (9th Cir. 1999)).
In De Long, the Ninth Circuit established a four factor analysis to be applied when
determining the propriety of a pre-filing order. 912 F.2d at 1148. Here, those factors weigh in
favor of a pre-filing order against Plaintiff. First, Plaintiff has had plenty of notice and
opportunity to respond appropriately to this motion. Second, there is a substantial record of
Plaintiff’s abuse of the judicial system in the Northern District of California and in the Ninth
Circuit. Specifically, Plaintiff has filed four separate actions with this Court - with frivolous
appeals in each one - all arising from the same set of operative facts. Third, Plaintiff’s claims
patently lack merit. Finally, because Plaintiff has demonstrated that she is unable to police
herself, the Court should require a pre-filing review for all of Plaintiff’s future filings with this
Court.
The parties and the Court have spent substantial time and money on Plaintiff’s meritless
claims. Plaintiff, as a citizen and resident of Canada, does not have a right to access this court
and abuse the judicial system. Further, Plaintiff has never once made a personal appearance in
any of her numerous lawsuits, but has continued to file meritless actions and motions ad
nauseum when she receives an unfavorable ruling in her case. Plaintiff’s conduct far surpasses
attempting the proverbial “second bite at the apple,” and represents - at best - a flagrant violation
of the federal rules and disrespect for the Court’s orders. As such, the Court should use its
inherent power to enter a pre-filing review order due to the numerous and meritless claims and
motions Plaintiff has filed in her past and present actions. See All Writs Act, 28 U.S.C. §
1651(a); Molski, 500 F.3d at 1057; Shafler v. HSBC Bank USA, 2007 U.S. Dist. LEXIS 15400
(N.D. Cal. February 21, 2007) (declaring plaintiff vexatious litigant after filing duplicative state
and federal court actions and abusive pleadings).
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1. Plaintiff Will Have Sufficient Notice And Opportunity To Be Heard
Pursuant to De Long, a pre-filing order should not be entered unless the plaintiff has
notice and opportunity to be heard regarding the issue. De Long, 912 F.2d at 1147. This first
prong is satisfied when a proper motion is “filed by the defendants ... and [plaintiff] ha[s] the
opportunity to oppose the motion, both in writing and at a hearing.” Molski, 500 F.3d at 1058.
The USA filed and served the instant motion back on December 9, 2011 and re-filed and re-
served it again on December 20, 2011 after Judge Alsup recused himself. This is the third time
that the USA has filed and served this motion. Thus, Plaintiff has had sufficient time to respond.
2. Plaintiff Has A Pattern Of Filing Numerous Actions Against The FederalGovernment And Its Employees.
The second factor of the De Long analysis is whether the district court created an
adequate record for review. “An adequate record for review should include a listing of all the
cases and motions that led the district court to conclude that a vexatious litigant order was
needed.” De Long, 912 F.2d at 1147. With respect to this factor the Ninth Circuit is concerned
with establishing a pattern of behavior by the plaintiff to show that the litigation is so
voluminous as to be vexatious. Id.; Molski, 500 F.3d at 1059.
Here, the record demonstrates the number of repetitive and meritless lawsuits and
motions that plaintiff has filed in this Court and others, as well as several abandoned appeals.
Carradero Decl., Exs. 1-43. Plaintiff has named as federal defendants no less than three Attorney
Generals, numerous FBI and Department of Justice personnel (including the former FBI director,
various agents, the former U.S. Attorney for the Northern District of California, and various
paralegals), four district court judges, three court personnel (including the Clerk of the Ninth
Circuit), an AUSA, and various federal agencies (including, the Department of Justice and
Department of State), and the United States of America. Furthermore, the voluminous record
confirms Plaintiff’s stubborn insistence on filing similar claims and motions, disregarding the
local and federal rules, as well as the Court’s orders. Id. Indeed, the record provides an
adequate basis for determining that Plaintiff’s filing behavior warrants - at a minimum - a
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prefiling review order. Id.
3. Plaintiff’s Lawsuits And Filings Are Frivolous.
The third factor set forth in De Long gets to the heart of the vexatious litigant analysis,
inquiring as to the frivolous nature of the litigant's actions. De Long, 912 F.2d at 1148. “Before
a district court issues a pre-filing injunction against a pro se litigant, it is incumbent on the court
to make ‘substantive findings as to the frivolous ... nature of the litigant’s actions.’” Id. That
determination is made by looking at “both the number and content of the filings.” Id. (internal
citations omitted). “Plaintiff’s claims must not only be numerous, but also be patently without
merit.” Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990).
Here, Plaintiff has an established history of filing frivolous lawsuits and other abusive
filings in this Court and others. Carradero Decl., Exs. 1-43. Since 2003, plaintiff has filed four
separate lawsuits in this Court (and of those has taken four appeals to the Ninth Circuit and one
petition to the United States Supreme Court), all arising from the same set of operative facts. Id.
Indeed, her very first district court action was filed only after she received several negative
rulings in her identical state court action. Id., Exs. 1-3, 14, 15. Her successive complaints add
judges and other court personnel from her previous actions whose outcomes she was displeased
with, as well as other federal defendants (such as former Attorney Generals, numerous FBI and
Department of Justice personnel, and agencies) whom she simply renames after dismissal of her
prior actions. Id., Exs. 14, 20, 31, 32, 42, 43. The frivolous nature of Plaintiff’s filings is further
evidenced by, among other things, her repeated assertion that she is entitled to rights under this
country’s constitution, when she does not even live within this country’s borders and has
apparently never stepped foot in this country, even to pursue her frivolous claims. Moreover,
while Plaintiff claims ad nauseum that she has a “due process right” to access this country’s
judicial system - a right that she does not have as a matter of law (see the USA’s motion to
dismiss Plaintiff’s complaints) - she definitively refuses to abide by any of the Court’s rules or
orders. Plaintiff’s complaints are later abandoned on appeal, only for her to refile a new district
court action in an improper attempt to revive her claims and avoid the legal and binding effect of
the Court’s orders. Id., Exs. 14, 16-18, 20, 25-29, 40, 42, 43.
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As the dockets and Court’s orders reflect, each of the orders were issued only after great
time and expenditure by the parties and the Court in responding to Plaintiff’s numerous baseless
“motions” and after repeated opportunities for Plaintiff to be heard, even on non-sensical matters
and on the same matters. Id., Exs. 14-39. The complaints themselves are repetitive, incoherent
and meritless alleging a grand conspiracy between various governments, the media, and any
lawyer, judge or court personnel who has any involvement in Plaintiff’s lawsuits. Id., Exs. 1-43.
The only noticeable difference in the complaints are the growing list of defendants who are
allegedly conspiring against plaintiff with each adverse ruling. Id., Exs., 8, 9, 20, 31, 32, 42, 43.
Plaintiff’s meritless complaints and motions have wasted a great deal of the Court’s and the
parties’ resources attempting to re-litigate claims that the Court has already found cannot be
supported by the facts or the law. See Moy, 906 F.2d at 470. This Court has exhibited great
patience with Plaintiff, patience which Plaintiff has taken advantage of with her successive
meritless filings. Plaintiff does not have a constitutional right to file claims over and over again
or to abuse the judicial forum to make unfounded allegations against multiple individuals,
judges, court personnel, and lawyers involved in her cases, past or present, or harass the parties
and the Court with meritless motions. Shafler, 2007 U.S. Dist. LEXIS 15400 at *20 (N.D. Cal.
February 21, 2007). The Court in Stone v. Maricopa County, et al., 2008 U.S. Dist. LEXIS
84030 at *24 (D. Ariz. September 29, 2008), granting defendant’s motion to declare plaintiff’s
vexatious litigant, said it well:
“[T]he Stones have a long history of filing abusive and harassing lawsuits against these defendants. The suits have ended with judgments against Plaintiffs on the merits, and multiple courts have explained to Plaintiffs why principals of claim and issue preclusion and judicial immunity prevent any further litigation. Yet, the Stones only respond to these courtroom defeats with more lawsuits. When, in turn, the next lawsuit has been thrown out of court, Plaintiffs file suit again hoping that the newest lawsuit will finally bring relief that the others have denied. This is a cycle of litigation that must come to an end.”
Similarly, Plaintiff’s filings are not only frivolous, but they reflect a pattern of abuse and
harassment. All of the current defendants had no involvement in Plaintiff’s underlying dispute
with Professor Cahill. Yet, Plaintiff continues to harass the government with her repeated
frivolous filings that are unnecessarily wasting the resources of the defendants, the U.S.
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Attorney’s Office, and the Court. De Long, 912 F2d at 1148 (“Flagrant abuse of the judicial
process cannot be tolerated because it enables one person to preempt the use of judicial time that
properly could be used to consider the meritorious claims of other litigants.”). Consequently, the
Court should issue an injunction prohibiting any other filings from Plaintiff without first being
reviewed and approved by the Court.
4. Breadth of Order
The fourth and final factor in the De Long analysis is that the prefiling order be
sufficiently tailored to the vexatious litigant's wrongful behavior. De Long, 912 F.2d at 1148;
see also Molski, 500 F.3d at 1060-1061.
The record proves that Plaintiff cannot police herself. The repetitive and frivolous nature
of the complaints and other filings cause an undue waste of judicial time and resources, at
everyone’s expense but Plaintiff’s. As such, the prefiling review order should require that the
Court not accept for filing any further actions from Plaintiff until such documents have been
subjected to a pre-filing review by a judge of this Court and should further require that Plaintiff
pay all required fees and not be permitted to proceed in forma pauperis. See Moy, 906 F.2d at
471 (forbidding pro se plaintiff from filing further complaints without prior approval of district
court because complaints all arose from the same set of operative facts); see also,
e.g.,O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir.1990)(requiring pro se inmate deemed
vexatious litigant to show good cause before being permitted to file future actions); De Long,
912 F.2d at 1146-47 (prohibiting filings of pro se litigant proceeding in forma pauperis without
leave of the district court).
Without the order it is highly probable that Plaintiff will continue to bring substantially
similar meritless lawsuits and motions, only adding to her list of defendants. A review of each of
her past actions demonstrates this substantial likelihood. Carradero Decl., Ex. 1-43.
Accordingly, the Court should impose a pre-filing screening order.
Such an order should require that, prior to the Court permitting any filing, Plaintiff must
first make an application to the Honorable Jeffrey S. White (or another judge designated by the
Chief Judge of the Northern District of California) for review. The USA proposes that the
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application be required to contain a copy of the proposed filing, along with evidence that
supports the allegations in the proposed filing and the propriety of the proposed filing. A copy
of the application and proposed filing shall be sent by overnight mail to all defendants named in
Plaintiff’s proposed action. The defendants will be given 30 days from the date of service to
respond to the application. Should Judge White wish further input, the Office of the United
States Attorney should be given notice and an opportunity to be heard. In reviewing any future
proposed actions, the Court can determine if they are unrelated to the numerous meritless
complaints that have been adjudicated, including whether the new action raises any issues that
could have been raised in any of the previous actions. If unrelated, and if they state colorable
claims, they can be allowed. The order would, however, inhibit Plaintiff’s ability to continue to
abuse the legal system and will save the defendants, related individuals and entities, the general
public, and the Court from the time, annoyance, and expense of responding to Plaintiff’s
continued frivolous claims and filings.
A less restrictive order would not achieve this result. In sum, “[t]he unescapable
conclusion is that [Plaintiff Liao] is engaged . . . in ‘recreational’ litigation, misusing precious
and limited resources better spent on meritorious claims of his fellow citizens to whom those
resources belong.” Beachboard v. United States, 727 F.2d 1092, 1095 (Fed. Cir. 1984).
IV. CONCLUSION
For the forgoing reasons, the United States of America requests that the Court grant this
motion and enter an order requiring prefiling review of any future actions presented by Plaintiff
for filing in this court (with or without attorney representation) and, should any future action be
appropriate for filing, to require Plaintiff to pay all filing fees and not be permitted to proceed in
forma pauperis.
DATED: February 6, 2012 Respectfully submitted,
MELINDA HAAGUnited States Attorney
________/s/________________Victoria R. CarraderoAssistant United States Attorney
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