Opinion
2:20-cv-10680-PA (SHK)
04-07-2021
TODD ALAN DUELL, Petitioner, v. WILLIAM GORE, et al., Respondents.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE TO DENY PETITION FOR RECONSIDERATION [ECF No. 17] AND DEEM PETITIONER A VEXATIOUS LITIGANT
SHASHI H. KEWALRAMANI UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Percy Anderson, United States District Judge, under 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons stated below, the undersigned United States Magistrate Judge recommends that Petitioner's Petition for Reconsideration (“Third Motion”) that is presently before the Court be DENIED and that Petitioner Todd Alan Duell (“Petitioner”) be DEEMED a vexatious litigant consistent with this Report and Recommendation (“R&R”). Electronic Case Filing Number (“ECF No.”) 17, Third Motion.
I. BACKGROUND
On July 11, 2020, Petitioner, proceeding pro se, constructively filed a Petition for Writ of Habeas Corpus, under 28 U.S.C. § 2254 (“§ 2254”) (“Petition” or “Pet.”), in the United States District Court for the Southern District of California (“Southern District”). ECF No. 1, Pet. at 1. Petitioner is purportedly attacking a February 2019 judgment of conviction that was entered in the Ventura County Superior Court. Id. The portion of the case related to Ventura County Superior Court conviction was transferred to this Court from the Southern District on September 15, 2020. ECF No. 3, Transfer Order. On November 24, 2020, the Court received a document titled “Petition for Review in Support of Writ of Habeas Corpus under 28 USC 2254 Fraud Upon the Court by the Clerk of Court by a Person in State Custody” (“Supplement” or “Supp.”). ECF No. 9, Supp. at 1.
Under the “mailbox rule, ” when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009).
On December 7, 2020, after considering all documents filed by Petitioner, the Court denied the Petition, dismissed the case with prejudice, and denied a Certificate of Appealability (“COA”). ECF No. 10, Order Denying Pet., Dismissing Case, and Denying a COA (“Dismissal Order”); ECF No. 11, Judgment.
Thereafter, the Court received another “Petition for Review in Support of Writ of Habeas Corpus under 28 USC 2254 Fraud Upon the Court by the Clerk of Court by a Person in State Custody” (“Second Supplement” or “Second Supp.”), ECF No. 13, Second Supp., and a “Declaration of War” (“War Declaration” or “War Decl.”), ECF No. 12, War Decl., from Petitioner. The Court construed Petitioner's War Declaration as a Motion for Reconsideration. ECF No. 14, Order Denying War Decl. and Second Supp. at 3. The Court found, however, that neither filing provided good cause for the Court to vacate its denial of the Petition, dismissal of the case with prejudice, or denial of a COA and, therefore, the Court denied Petitioner's War Declaration and Second Supplement. See id.
On January 13, 2021, the Court received another Motion for Reconsideration (“Second Motion” or “Second Mot.”) from Petitioner. ECF No. 15, Second Mot. On January 21, 2021, the Court denied the Second Motion and warned Petitioner that his “multiple and duplicative filings [we]re approaching a flagrant abuse of the judicial process because Petitioner is preempting the use of judicial time that properly could be used to consider the meritorious claims of other litigants. ECF No. 16, Order Denying Motion for Reconsideration [ECF No. 15] (“Order”) at 4 (citing Rejeanne M. Bernier, et al., v. Travelers Prop. Cas. Ins. Co., Inc. (“Bernier”), No. 8:19-cv-00657-PA-FFM, 2019 WL 4865017, at *3 (C.D. Cal.Sept. 5, 2019)). Further, Petitioner was:
admonished that if Petitioner continues to file motions in this closed case that simply rehash arguments that have already been raised and rejected, this Court may find such filings to be a flagrant abuse of the judicial process, which will result in the undersigned United States Magistrate Judge issuing a Report and Recommendation to the United States District Judge recommending that Petitioner be deemed a vexatious litigant “ who must obtain leave of court before filing suit and/or furnish security for costs which may be awarded against the litigant.”Id. (quoting Bernier, 2019 WL 4865017, at *3; citing Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) and Central District of California Local Rule (“Local Rule” or “L.R.”) 83-8.2) (emphasis in original).
On March 11, 2021, Petitioner filed the instant Third Motion that is presently before the Court. ECF No. 17, Third Motion. Petitioner also later filed another lengthy forty-two page document titled “Notice of Settlement Agreement by Arbitration Agreement” (“Settlement Notice”) that the Court rejected on March 30, 2021 for a variety of deficiencies present in the document, most notably, because the document lacked a file number indicating which case it pertained to and because upon inspection of the document, it did not appear to apply to this matter. ECF No. 18, Notice of Discrepancy and Order.
II. ANALYSIS
A. Legal Standards
1. Motion For Reconsideration
The governing standards for a motion for reconsideration are set forth in Federal Rule of Civil Procedure 59(e) and Local Rule 7-18. See State Comp. Ins. Fund v. Drobot, 192 F.Supp.3d 1080, 1116 (C.D. Cal. 2016). Local Rule 7-18 provides:
A motion for reconsideration of the decision on any motion may be made only on the grounds of (a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (b) the emergence of new material facts or a change of law occurring after the time of such decision, or (c) a manifest showing of a failure to consider material facts presented to the Court before such decision.L.R. 7-18. “No motion for reconsideration shall in any manner repeat any oral or written argument made in support of or in opposition to the original motion.” Id.
2. Vexatious Litigant
“‘[F]lagrant 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.'” Molski, 500 F.3d at 1057 (quoting De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990)). “[T]he All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the inherent power to enter pre-filing orders against litigants who engage in such abuse.” Bernier, 2019 WL 4865017, at *3 (citing 28 U.S.C. § 1651(a); Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1197 (9th Cir. 1999)). “This power encompasses the entry of orders requiring a vexatious litigant to obtain leave of court before filing suit and/or furnish security for costs which may be awarded against the litigant.” Id. (citing Molski, 500 F.3d at 1057); see also L.R. 83-8.2 (authorizing orders requiring furnishment of security and/or leave of court prior to filing suit). “‘A court should enter a pre-filing order constraining a litigant's scope of actions in future cases only after cautious review of the pertinent circumstances[, ]'” id. (quoting Molski, 500 F.3d at 1057), and “such pre-filing orders should rarely be filed[, ]” De Long, 912 F.2d at 1147 (citations omitted).
District courts must consider four factors when determining whether to enter pre-filing orders. De Long, 912 F.2d at 1147-48; Molski, 500 F.3d at 1057. “First, the litigant must be given notice and a chance to be heard before the order is entered.” Molski, 500 F.3d at 1057 (citing De Long, 912 F.2d at 1147). “Second, the district court must compile ‘an adequate record for review.'” Id. (quoting DeLong, 912 F.2d at 1148). “Third, the district court must make substantive findings about the frivolous or harassing nature of the plaintiff's litigation.” Id. (citing DeLong, 912 F.2d at 1148). “Finally, the vexatious litigant order ‘must be narrowly tailored to closely fit the specific vice encountered.” Id. (citing De Long, 912 F.2d at 1148).
B. Application
1. The Third Motion Should Be Denied.
As an initial matter, the Court notes that Petitioner's Third Motion is once again redundant of many of the assertions made in the Petition and Petitioner's previously filed motions for reconsideration. The Court summarizes Petitioner's claims raised in his Third Motion below.
Petitioner asserts again that he appears before this Court as a “living man, in his capacity as Principal . . ., an International Organization in accord with premises of 18 USC § 112 (an Internationally Protected Person) who petitions the court for relief.” ECF No. 17, Third Motion at 1. Petitioner asserts that pursuant to “5 USC § 552a, Principal appears and reminds the court that he is the known CUSIP Creditor over Plaintiff, sole Beneficiary and legal and equity title Owner of all securities and property, and the known Executor of the named Defendant TODD ALAN DUELL, which is a legal fiction, ESTATE.” Id. at 2 (incorrect capitalization in original). Petitioner also, again, “reminds the court that there is no agency agreement with Respondents or the United States. Thereby revoking legal title to said TODD ALAN DUELL ESTATE/TRUST from U.S. Attorney General and State of California and merged legal and equity title, thereby collapsing said trust.” Id. (incorrect capitalization in original).
In short, Petitioner again repeats arguments that “Commercial liability applies” to him, that Respondents are “not allowed to keep Petitioner in custody[, ]” and that the Court should, therefore, “settle, set off, and discharge all civil and criminal liabilities, charges, and taxes, redeem the penalty sum amount(s), balance all accounts to zero $0, and set Principal at liberty.” Id.
Here, Petitioner's Motion provides no basis to change the Court's Dismissal Order because Petitioner has failed to allege a material difference in fact or law from those presented to the Court initially, or to demonstrate that the Court failed to consider material facts presented to the Court before it when it issued its Dismissal Order. See L.R. 7-18. Rather, Petitioner has merely rehashed the arguments he raised in his Petition, Second Supplement, War Declaration, and Second Motion that the Court has repeatedly rejected. Consequently, Petitioner's Motion should be DENIED.
2. Petitioner Is Deemed A Vexatious Litigant.
Here, all four De Long factors have been satisfied and a finding that Petitioner is a vexatious litigant is warranted.
a. Notice
The first De Long factor-notice-has been satisfied. As discussed above, Petitioner was warned that his “multiple and duplicative filings are approaching a flagrant abuse of the judicial process because Petitioner is preempting the use of judicial time that properly could be used to consider the meritorious claims of other litigants.” ECF No. 16, Order at 4 (citation omitted). Further, Petitioner was admonished that if Petitioner “continues to file motions in this closed case that simply rehash arguments that have already been raised and rejected, ” this “ will result in . . . [a] Recommendation to the United States District Judge . . . that Petitioner be deemed a vexatious litigant who must obtain leave of court before filing suit and/or furnish security for costs which may be awarded against the litigant.” Id. (citations and internal quotation marks omitted and emphasis in original). Consequently, Petitioner had sufficient notice that he would be deemed a vexatious litigant if he continued to file additional motions, like his instant Third Motion, that merely rehashed arguments that have already been raised and rejected. As such, the Court finds that the first De Long factor has been satisfied.
b. Adequate Record
The second De Long factor-developing an adequate record-has been satisfied. “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.” Ringgold-Lockhart v. Cnty of Los Angeles, 761 F.3d 1057, 1063 (9th Cir. 2014) (quoting De Long, 912 F.2d at 1147). “‘At the least, the record needs to show, in some manner, that the litigant's activities were numerous or abusive.'” Bernier, 2019 WL 4865017, at *3 (quoting De Long, 912 F.2d at 1147 (internal citation omitted)).
Here, as discussed above, Petitioner has repeatedly argued-and the Court has repeatedly rejected Petitioner's arguments-that habeas relief is warranted in this case because only “Commercial liability applies” to Petitioner, rather than criminal laws of the United States and the State of California, because Petitioner is the principal or executor of a trust or international organization that is a separate entity than the “named Defendant TODD ALAN DUELL, which is a legal fiction, ESTATE.” ECF No. 17, Third Motion at 2 (incorrect capitalization in original); see also ECF Nos. 1, 9, 12, 13, 15 (duplicative arguments raised); ECF Nos. 10, 14, 16 (Orders rejecting arguments).
As also discussed above, Petitioner was warned that his “multiple and duplicative filings are approaching a flagrant abuse of the judicial process because Petitioner is preempting the use of judicial time that properly could be used to consider the meritorious claims of other litigants[, ]” ECF No. 16, Order at 4, and the Court has repeatedly referenced Petitioner's previous, duplicative, filings, and its Orders rejecting those filings in its Orders. Consequently, the Court finds that the second De Long factor has been satisfied because the record has been adequately developed as to Petitioner's duplicative filings.
c. Substantive Findings As To The Frivolous Or Harassing Nature Of Petitioner's Claims
The third De Long factor-making substantive findings as to the frivolous or harassing nature of Petitioner's claims-has been satisfied. “Under the third De Long factor, the Court must look at ‘both the number and contents of the [litigant's] filings as indicia of the frivolousness of the litigant's claims.'” Bernier, 2019 WL 4865017, at *3 (quoting De Long, 912 F.2d at 1148). “In the alternative, the district court may review the filings and find that they ‘show a pattern of harassment.'” Id. (quoting Ringgold-Lockhart, 761 F.3d at 1064). “The court may find a pattern of harassment even if some of the litigant's claims have merit.” Id. (citing Ringgold-Lockhart, 761 F.3d at 1064; Molski, 500 F.3d at 1060).
“In determining whether a pattern of harassment exists, the court must ‘be careful not to conclude that particular types of actions filed repetitiously are harassing.'” Id. (quoting Ringgold-Lockhart, 761 F.3d at 1064 (internal quotation marks omitted)). “Rather, the court must discern ‘whether the filing of several similar types of actions constitutes an intent to harass the defendant or the court.'” Id. (quoting Ringgold-Lockhart, 761 F.3d at 1064 (internal quotation marks omitted)).
Here, the record shows that Petitioner continues to file multiple duplicative filings with the Court after this case has been closed and those arguments have been rejected. See ECF Nos. 1, 9, 12, 13, 15, 17 (duplicative arguments raised); ECF Nos. 10, 14, 16 (Orders rejecting arguments). Petitioner has even declared war against the United States and the State of California in apparent retaliation of the Court's rejection of Plaintiff's arguments. See, e.g., ECF No. 12, War Decl. at 2 (Petitioner asserting that “Be it resolved on this 10th day of December, 2020 that War Is Hereby Declared by and against the fictional corporations of the STATE OF CALIFORNIA and the UNITED STATES/UNITED STATES OF AMERICA . . . .” (incorrect capitalization in original)). The Court finds that Petitioner's retaliatory and duplicative filings are harassing to the Court and that Petitioner's repeatedly rejected arguments-that the laws of the United States and the State of California do not apply to Petitioner because Petitioner is the principal or executor of a trust or international organization that is a separate entity than the “named Defendant TODD ALAN DUELL, which is a legal fiction, ESTATE”-are frivolous. ECF No. 17, Third Motion at 2 (incorrect capitalization in original). Consequently, the Court finds that the third De Long factor has been satisfied.
d. Narrowly Tailored Order
A pre-filing order is narrowly tailored when it restrains the litigant from filing “only the type of claims [the litigant] ha[s] been filing vexatiously” and does not “deny [the litigant] access to courts on any . . . claim that is not frivolous.” Ringgold-Lockhart, 761 F.3d at 1066 (ellipses in original; internal quotation marks and citation omitted).
Here, the Court orders that Petitioner must seek leave from a judge of the Central District of California before filing any pleading seeking habeas corpus relief on the basis of agency theory-specifically, that Petitioner is not subject to the laws of the United States or the State of California because he is the principal of a trust or an international organization-to ensure that they are not duplicative and not frivolous. Because the aforementioned remedy is narrowly tailored to prevent only the types of filings Petitioner has been filing vexatiously, the Court finds that the fourth De Long factor has been satisfied.
Consequently, because all four of the De Long factors have been satisfied, the Court finds that Petitioner is a vexatious litigant and that pre-filing approval of the above discussed type of documents, in the above discussed manner, is appropriate here.
III. CONCLUSION
For the reasons set forth above, the undersigned United States Magistrate Judge recommends that:
1) The findings in this R&R be ACCEPTED;
2) Petitioner's Third Motion [ECF No. 17] be DENIED; and
3) Petitioner be DEEMED a vexatious litigant and from the date this R&R is accepted, Petitioner must seek leave from a judge of the United States District Court for the Central District of California before filing any pleading seeking habeas corpus relief in the United States District Court for the Central District of California on the basis of agency theory-specifically, that Petitioner is not subject to the laws of the United States or the State of California because he is the principal of a trust or an international organization-so as to ensure that Petitioner's filings are not harassing, frivolous, or duplicative of those already repeatedly rejected in this case.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file Objections as provided in Local Civil Rule 72 and review by the District Judge whose initials appear in the docket number. No Notice of Appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the Judgment of the District Court.