Opinion
CIVIL NO. 4:16-CV-02559
11-09-2018
YAN YAN Plaintiff, v. PENNSYLVANIA STATE UNIVERSITY, et al., Defendants.
(Judge Brann) () REPORT AND RECOMMENDATION
I. Introduction.
This case is the sixth related lawsuit filed by Yan Yan ("Yan") against Pennsylvania State University ("Penn State") over allegations related to her failure to obtain a PhD. Throughout those six suits, Yan has abused the judicial process through a string of frivolous, meritless, and vexatious filings. In a previous report and recommendation (doc. 17), we recommended that all of Yan's claims in the present suit be dismissed for a variety of reasons, including failure to state a claim upon which relief could be granted, res judicata, and violation of applicable statutes of limitations. In this report and recommendation, we address Yan's abuse of the judicial system. For the reasons that follow, we recommend that the court declare Yan a vexatious litigant and impose a series of sanctions on her ability to file future lawsuits against Penn State.
We take judicial notice of Yan's five previous lawsuits. See Yan v. Trustee of University Pennsylvania, No. 2:16-CV-05706 (E.D. Pa. closed Nov. 10, 2016); Yan v. Penn State University, No. 151104285 (Phila. Ct. Com. Pl. Judgment of Non Pros entered July 11, 2016); Yan v. Pennsylvania State University, No. 4:14-CV-01590 (M.D. Pa. dismissed with prejudice Sep. 1, 2015); Yan v. Pennsylvania State University, No. 4:14-CV-01373 (M.D. Pa. dismissed with prejudice June 29, 2015); Yan v. Pennsylvania State University, 4:10-CV-00212 (M.D. Pa. summary judgment granted August 3, 2012).
II. Background and Procedural History.
This is the sixth suit Yan has filed Against Penn State. In order to give a complete picture of Yan's abuse of the judicial system, we begin our analysis by going through her five previous cases before moving on to the current one and the legal standards governing the imposition of sanctions.
A. Yan's First Suit.
Yan first filed suit against Penn State on January 26, 2010. In her first suit, Yan v. Pennsylvania State University, 4:10-CV-00212 (M.D. Pa. summary judgment granted August 3, 2012) [hereinafter Yan I], Yan raised claims under Title IX, 42 U.S.C. § 1983, and the Rehabilitation Act, alleging discrimination by Penn State arising out of alleged harassment by Ho Li-Lun, her coworker in a research lab at Penn State, and Penn State's subsequent denial of her PhD. See Yan I doc. 33.
For a more complete recap of the factual allegations and procedural history in Yan's five previous lawsuits, see our report and recommendation addressing Penn State's motion to dismiss in this case. Doc. 17.
Throughout the majority of her first suit, Yan was represented by counsel. James J. West and Edward A. Olds represented Yan from March 8, 2010 to January 31, 2011. Docs. 2, 4, 39. West and Olds were subsequently replaced by David M. Koller and David C. Shipman, who represented Yan from June 22, 2011 through the end of the case. Yan I docs. 42-43.
On August 3, 2012, Judge John E. Jones, writing for this court, granted the motion for summary judgment filed by Penn State and the other defendants. Yan I doc. 88. Judge Jones, repeatedly noting Yan's lack of evidence to support her claims, see id. at 14-15, 17, 21, 26, 29-30, admonished her for proceeding with the case at the summary judgment stage:
Plaintiff may not simply rest on her laurels once litigation has progressed to the summary judgment phase; she must demonstrate to the Court that a factual basis exists from which a reasonable jury could find in her favor. Plaintiff has failed utterly in this endeavor. Because Plaintiff has failed to put before the Court any record evidence substantiating her claims or demonstrating that arguments set forth in her brief are anything beyond mere speculation, the Court will grant the Defendants' Motion for summary judgment.Id. at 31-32 (emphasis in original). On appeal, the Third Circuit affirmed this court's granting of summary judgment. Yan I doc. 98.
B. Yan's Second Suit.
Likely because she was represented by counsel, Yan's filings remained traditional in her first suit, and she followed rules of procedure and court orders. This drastically changed beginning with her second suit, which raised causes of action under Title IX, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. Yan v. Pennsylvania State University, No. 4:14-CV-01373 (M.D. Pa. dismissed with prejudice June 29, 2015) [hereinafter Yan II], doc. 42-1.
Beginning with her second suit against Penn State, all of Yan's subsequent lawsuits have been brought pro se.
Almost immediately after she filed Yan II, we were compelled to admonish Yan for communicating with the court via ex parte emails. Yan II doc. 6. We directed her to communicate with the court via a properly filed letter or motion and warned her that "failure to comply with this Order may result in appropriate sanctions." Id. at 2.
On September 15, 2014, Penn State's attorneys—James M. Horne and Philip K. Miles, entered their appearances. Yan II docs. 9-10. On the very same day, Yan filed a motion to compel Penn State to produce documents and an objection "to Defendants to delay answer to the complaint." Yan II doc. 13. We denied her motion on September 22, 2014. Yan II doc. 19. In that same order, we granted Penn State's motion for a protective order, stating:
Discovery is stayed pending the entry of an order deciding the defendant's forthcoming motion to dismiss. Nothing about discovery should be filed on the docket, or otherwise communicated to the Court, until an order has been entered on the forthcoming motion to dismiss. Furthermore, Yan shall not directly communicate with the defendant about this action, through its employees or staff; instead, Yan shall direct any correspondence about this action to defendant's counsel, and her communications shall be limited to those that are reasonably necessary for the conduct of this action. A failure to comply with this Order may warrant sanctions.
Id.
On September 24, 2014, Yan sent a letter to Chief Judge Christopher C. Conner, seeking to vacate the final judgment that this court issued in Yan I because "[t]he case was misrepresented with fraud by Defendant PSU and its representatives before Court." Yan II doc. 23. Yan went onto accuse Penn State of fabricating evidence in Yan I. Id.
On October 10, 2014, Penn State filed a motion for sanctions against Yan "for her continual and blatant violations of the Protective Order entered by this Court on September 22, 2014." Yan II doc. 24. Penn State explained that "[s]ince this Court's order of September 22, 2014, counsel for Penn State has received at least 45 email communications from Yan," Penn State noted that many of the emails were "inappropriate, harassing, and/or nonsensical." Id. at 2. Penn State gave a number of examples, including Yan's demand that she be given $900 billion in damages as well as a PhD; Yan's emails concerning her relationship with her husband; Yan's demands that Ho Li-Lun be fired; and Yan's accusations that Penn State had stolen documents from her. Id. at 3. Penn State further explained that Yan had continued to demand documents despite the court's order staying discovery. Id. at 3-4. "Of more concern," Penn State continued, "Yan has now undertaken to subvert this Court's Protective Order by attempting to secure documents from Penn State under the guise of a 'subpoena' issued in connection with other third party lawsuits Yan has pending in the United States District Court for the Eastern District." Id. at 4.
In support of its motion for sanctions, Penn State attached a number of Yan's emails. See Yan II docs. 24-2 to 24-6. Most relevant for the present purposes, Penn State attached emails from Yan in which she indicated a clear intent to abuse the judicial process so as to harm Penn State. See doc. 24-6. In one email, Yan stated "I have 9 more civil cases and criminal cases have not filed yet. Let's keep doing these. You will be busy till you client will agree to that they did very bad things to me." Id. In another, Yan stated "I will keep an eye on upenn faculty job opens till I will be offered one. And I will keep a civil lawsuit filing." Id. In a third email, Yan stated that she needed reference letters from a number of Penn State faculty members for her application to a faculty position and stated that "[i]f they fail to provide a reference letter to me by next [M]onday[,] I will file police case of theft, and new complaint against each of them for discrimination and plagiarisms." Id.
We note here that Yan refers to "Upenn" faculty jobs, an abbreviation more commonly used to refer to the University of Pennsylvania, rather than Pennsylvania State University. However, Yan has shown a pattern of confusing the University of Pennsylvania and Pennsylvania State University. For example, in Yan V, Yan v. Trustee of University Pennsylvania, No. 2:16-CV-05706 (E.D. Pa. closed Nov. 10, 2016) [hereinafter Yan V], she named the Trustees of the University of Pennsylvania as defendants, but all of the factual allegations related to her claims against Penn State. See Yan V doc. 1-1. Therefore, we will assume that any references made by Yan to "Upenn" are really meant as references to Penn State.
Yan responded to Penn State's motion for sanctions by filing her own motion for sanctions, in which she argued that Penn State should be sanctioned for failing to produce documents through the discovery process. Yan II doc. 27. Yan acknowledged that the protective order had been issued, but stated that she "requests documents that are at Penn State University, thus Protective Order of Middle District Court does[ ]not cover these documents since they are NONE of court record." Id. ¶ 5. On October 15, 2014, Yan appealed this court's protective order to the United States Court of Appeals for the Third Circuit (Yan II doc. 29), which dismissed the case for lack of appellate jurisdiction since there was not a final judgment in the case. Yan v. Pennsylvania State University, No. 14-4142, at *1 (3d Cir. Jan. 30, 2015).
On October 17, 2014, Penn State filed a motion to quash Yan's subpoena for the production of documents as well as her request for the production of documents. Yan II doc. 30. On October 18, 2014, Yan filed a motion to stay the case. Yan II doc. 32. On October 24, 2014, we granted Penn State's motion to quash and denied Yan's motion to stay the case, noting that "Yan has provided no justifiable reason for staying this matter and I am aware of none." Yan II Doc. 34 at 1. Yan again appealed our order to the Third Circuit (Yan II doc. 35), which again dismissed the appeal for lack of appellate jurisdiction. Yan v. Pennsylvania State University, No. 14-4297, at *1 (3d Cir. Apr. 9, 2015).
On October 27, 2014, Yan filed a response to Penn State's motion for sanctions. Yan II doc. 37. Yan argued that her communications did not violate this court's protective order since she "made documents request and discovery with proper way such as emails compel motions and subpoena ... which does[]not violate[] Protective Order because 'her communications' are 'reasonably necessary.'" Id. ¶ 32. Yan further argued that the emails Penn State had attached to its motion for sanctions did not "show Yan's violations of court order nor did they show anything harassing." Id. ¶ 34. On October 28, 2014, Penn State filed a response in which it argued that "Yan's response makes clear that she has no intention of complying with this Court's directive that discovery be held in abeyance pending a ruling on Penn State's Motion to Dismiss." Doc. 39 at 2. Penn State's counsel noted that since Penn State had filed its motion for sanctions, he had received fifty more emails from Yan, one of which was 362 pages in length. Id.
On March 16, 2015, following a long period of briefing on Penn State's motion to dismiss, we issued an order for a telephonic conference call to take place on April 9, 2015. Two days after our order, Penn State filed a motion to compel Yan to give her telephone number, noting that Yan had refused to give a number at which she could be reached. Doc. 68 ¶ 4. In support of its motion, Penn State attached an email exchange between Yan and Penn State's counsel in which Yan seemingly alleged that she did not have a cellphone because Penn State had "sent a thief" to steal it and argued that Penn State needed to pay her damages, "the cost [of which] is no less than 900000billions plus late fee at the daily rate of ... $10580 /day/." Yan II doc. 68-1 at 2. In another email, Yan stated that Penn State's law firm would need to pay for her to get a phone card to attend the telephonic status conference. Id. at 3. On March 18, 2015, we issued an order granting Penn State's motion to compel Yan's production of a telephone number. Doc. 69.
On March 13, 2015 and March 18, 2015, Yan filed two separate frivolous motions for sanctions (docs. 66, 70) against Penn State. In the first motion, Yan alleged with no evidence that Penn State had violated the court's protective order and argued that she should be given damages as a sanction. Doc. 66. She also broadly pointed to alleged violations by Penn State in Yan I. Id. In the second motion, Yan argued that Penn State had "abused litigation procedure" by filing its motion to compel Yan to produce a telephone number and that Penn State therefore "must be sanctioned for their litigation misconduct since Court ordered to limited any discovery at this stage." Doc. 70 ¶ 8. On April 8, 2015, we denied Yan's motion for sanctions. Yan II doc. 75.
On May 11, 2015, Yan filed a motion to "stop" Penn State from "filing any objections to Yan's complaint ... since the evidence on Court Record that are against Defendants but favors Plaintiff's all claims." Doc. 80. On May 14, 2015, we denied this motion: "Though it is not entirely clear to this Court as to what objections Plaintiff is referring, Defendants do have a right to object to the claims in Plaintiff's complaint...." Doc. 81 at 2.
On June 29, 2015, District Judge Matthew W. Brann, writing for this court, adopted our report and recommendation and dismissed Yan's amended complaint with prejudice. Yan II doc. 83. Yan appealed that dismissal to the Third Circuit on July 1, 2015. Yan II doc. 84. The Third Circuit dismissed her appeal, noting "[b]ecause there is no arguable basis for challenging the District Court's order, we will dismiss the appeal as frivolous." Yan II doc. 104-1 at 3.
C. Third Circuit Reprimand.
On December 7, 2015, shortly after Yan had filed Yan IV in the Philadelphia Court of Common Pleas, the United States Court of Appeals issued a stern reprimand to Yan arising out of cases unrelated to any of the six cases against Penn State discussed here. See Yan v. Fox Chase Cancer Ctr., No. 14-4670 (3d Cir. order entered Dec. 7, 2015) doc. 003112150350. The Third Circuit began by noting that "the in forma pauperis affidavits [Yan] has filed in these and other cases omit significant information regarding her finances" and that "the number, content, and frequency of Ms. Yan Yan's filings show an especially abusive pattern aimed at taking advantage of the in forma pauperis privilege." Id. at 1. Based on those findings, the court noted that "Ms. Yan Yan's in forma pauperis privileges and electronic filing privileges are hereby revoked" and that "[t]he Clerk of any District Court shall not file a notice of appeal submitted in a civil action filed by Ms. Yan Yan unless and until the filing and docketing fees for that case have been paid in full." Id. at 2. The court went on to state that "[s]hould the District Courts in this Circuit find after notice and opportunity to respond that Ms. Yan Yan has shown a similar pattern of abuse in district court filings, they are authorized to enter a similar order." Id.
D. Yan's Third Suit.
While Yan II was still ongoing, Yan filed another suit against Penn State in this district. Yan v. Pennsylvania State University, No. 4:14-CV-01590 (M.D. Pa. dismissed with prejudice Sep. 1, 2015) [hereinafter Yan III]. Yan's third suit brought claims under Title VII, the Pennsylvania Human Relations Act, the Equal Pay Act, the First and Fourteenth Amendments, the Pregnancy Discrimination Act, the ADEA, and the ADA. Yan III doc. 41-1 ¶ 1.
Because Yan II and Yan III concerned substantially similar subject matter and the same parties, this court docketed filings in the two cases together in the early stages of the two cases. Compare Yan II docs. 1-49, with Yan III docs. 1-51. The two cases began to differ on December 10, 2014, when Yan filed a motion for sanctions against Penn State for Penn State having filed a motion to dismiss. Yan III Doc. 50. Yan argued that Penn State should be sanctioned for having filed a motion to dismiss because Penn State "stated no objection to Yan's amended complaint." Id. ¶ 6. We denied Yan's motion for sanctions on December 11, 2014, noting "a motion to dismiss the amended complaint is an appropriate type of motion at this stage of the proceedings." Yan III Doc. 52. On January 18, 2015, Yan again filed a motion for sanctions against Penn State, again alleging violations in the discovery process with very little evidence. Doc. 57. On January 22, 2015, we denied her newest motion for sanctions:
Yan asserts that the defendants have failed to serve her hard copies of documents that they filed and they failed to provide electronic copies via email. Yan is an electronic filer under the Court's CM/ECF system, and every time a document is filed she receives notice of that document through the CM/ECF system. That is all she is entitled to. See Local Rule 5.7. More specifically, Yan asserts that she did not receive a copy of Document 57, which she asserts was docketed on January 16, 2015, and she requests that the defendants be compelled to serve that document and sanctioned for not doing so. We have no
idea what Yan is talking about. Document 57 is Yan's own motion—the motion at issue in this order.Yan III Doc. 58 at 1-2.
On August 11, 2015, we recommend dismissing Yan's complaint because she had not shown that she was qualified for the positions in question sufficient to state a claim for employment discrimination. Yan III doc. 73 at 11-12. Judge Brann adopted our report and recommendation in its entirety on September 1, 2015. Yan III doc. 76. Yan appealed this court's judgment to the Third Circuit on September 22, 2015. Yan III doc. 78. The Third Circuit rejected Yan's appeal, noting its previous ruling that Yan could not file an appeal unless and until she had paid all filing and docketing fees in full. Yan III doc. 81. On September 2, 2015, while our report and recommendation was pending before Judge Brann, Yan filed a "Motion for a Relief," in which she argued that she should be granted default judgment because Penn State had failed to object to "a few" of her myriad motions for sanctions. Yan III doc. 77 ¶ 14. Following the judgment against her, Yan then filed a motion to reopen the case (doc. 83), which we denied (doc. 84); a motion for reconsideration (doc. 86), which we denied (doc. 92); and another motion for sanctions (doc. 89), which we denied (doc. 92).
E. Yan's Fourth and Fifth Suits.
Yan's fourth and fifth suits were dismissed quickly: Yan's fourth suit for her failure to properly serve the defendants, Yan v. Penn State University, No. 151104285 (Phila. Ct. Com. Pl. Judgment of Non Pros entered July 11, 2016) [hereinafter Yan IV], and Yan's fifth suit for her failure to provide sufficient financial information for the Court to determine plaintiff's ability to pay the requisite filing fee. Yan v. Trustee of University Pennsylvania, No. 2:16-CV-05706 (E.D. Pa. closed Nov. 10, 2016) [hereinafter Yan V], doc. 2. F. The Present Case—Yan's Sixth Suit.
In the present case, Yan raises claims under Title VII, the ADEA, the ADA, the EPA, the PHRA, the First and Fourteenth Amendments, and the Pregnancy Discrimination Act, as well as claims for breach of contract, wrongful termination, and personal injury. Doc. 1 ¶ 1. On June 5, 2018, Penn State filed a motion to dismiss (Doc. 10), and on June 27, 2018, Penn State filed the instant motion to declare Yan a vexatious litigant and enjoin her from future filings. Doc. 14.
On September 27, 2018, we issued two documents: a report and recommendation recommending that the court dismiss Yan's claims with prejudice for failure to state a claim upon which relief could be granted, res judicata, and non-compliance with applicable statutes of limitations (doc. 17) and an order for Yan to show cause why she should not be declared a vexatious litigant and appropriately sanctioned. Doc. 16. In that order, we gave Yan specific notice of the sanctions that we were prepared to recommend:
By way of notice to Ms. Yan of the appropriate sanctions, the undersigned Chief Magistrate Judge is prepared to recommend that Ms. Yan be enjoined from filing any future claims against Pennsylvania State University or related entities without leave of the court; that Ms. Yan would only be able to obtain leave of the court upon a showing that her claims were not meritless and were not based on facts that had already been litigated; and that Ms. Yan could potentially be held in contempt of court if the court found that Ms. Yan had made any misrepresentations as to the merits of the claim or whether the claim had already been litigated.Id. at 1-2. We gave Yan a month to show cause why she should not be declared vexatious. Id. at 1. Her response was due by October 27, 2018. Id. To date, she has not responded to our order.
III. Discussion.
Under the All Writs Act, "[t]he Supreme Court and all courts established by Act of Congress 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 (2018). The Act allows a district court to issue "injunctions to preclude abusive, groundless and vexatious litigation." Brow v. Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993) (citing In re Oliver, 682 F.2d 443, 445 (3d Cir. 1982)). "The broad scope of the District Court's power, however, is limited by two fundamental tenets of our legal system—the litigant's rights to due process and access to the courts." Id. "A pre-filing injunction is an exception to the general rule of free access to the courts and its use against a pro se plaintiff must be approached with caution." Grossberger v. Ruane, 535 F. App'x 84, 86 (3d Cir. 2013) (citing Oliver, 682 F.2d at 445).
While we must be mindful of the extraordinarily important considerations of due process and access to the courts, the Third Circuit has long recognized that the All Writs Act allows us to place restrictions on the behavior of litigants who have egregiously abused the court system:
It is well within the broad scope of the All Writs Act for a district court to issue an order restricting the filing of meritless cases by a litigant whose manifold complaints raise claims identical or similar to those that already have been adjudicated. The interests of repose, finality of judgments, protection of defendants from unwarranted harassment, and concern for maintaining order in the court's dockets have been deemed sufficient by a number of courts to warrant such a prohibition against relitigation of claims.Oliver, 682 F.2d at 445.
In order to ensure due process and access to the courts, we must comply with a three-part test before issuing any restrictions:
A District Court may enjoin a pro se litigant from future filings so long as the injunction complies with three requirements: (1) the litigant must be continually abusing the judicial process; (2) the litigant must be given notice of the potential injunction and an opportunity to oppose the court's order; and (3) the injunction must be narrowly tailored to fit the specific circumstances of the case.Grossberger, 535 F. App'x at 86 (citing Brow, 994 F.2d at 1038).
In order to provide proper notice to a litigant, a district court will generally have to issue a show-cause order to the plaintiff. See Telfair v. Office of U.S. Attorney, 443 F. App'x 674, 677 (3d Cir. 2011) ("the District Court must give notice to the litigant to show cause why the proposed injunctive relief should not issue." (quoting Brow, 994 F.2d at 1038)); Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987) (vacating district court's injunctive order and remanding "with instructions that the court give notice to Gagliardi to show cause why injunctive relief should not issue"). Such a show-cause order should give the litigant specific notice of the sanctions that the court plans to issue. See Hoffenberg v. Bumb, 446 F. App'x 394, 399 (vacating the district court's injunctive order where the court had only given notice that the litigant's actions would result in "sanctions.").
In addition to proper notice, a court's injunctive order must be based on sufficient evidence in the record. In Brow, the Third Circuit vacated the district court's order where "the District Court offered no justification for its imposition of the order" and where "there [was] no evidence in the record to demonstrate that Brow [was] an abusive litigant who repeatedly file[d] baseless actions." Brow, 994 F.2d at 1038.
The Third Circuit "has concluded that district courts may issue an injunction requiring a litigant who has repeatedly filed complaints alleging claims that have already been fully litigated to receive court approval before filing further complaints." In re Packer Ave. Assocs., 884 F.2d 745, 747 (3d Cir. 1989) (citing Chipps v. United States District Court for the Middle District of Pennsylvania, 882 F.2d 72 (3d Cir. 1989)). "In appropriate circumstances, courts have gone beyond prohibitions against relitigation and enjoined persons from filing any further claims of any sort without the permission of the court." Oliver, 682 F.2d at 445. "[S]uch injunctions should 'remain very much the exception to the general rule of free access to the courts,' and ...'the use of such measures against a pro se plaintiff should be approached with particular caution.'" Id. at 446 (citing Pavilonis v. King, 626 F.2d 1075, 1079 (1st Cir. 1980)). Nevertheless, "a continuous pattern of groundless and vexatious litigation can, at some point, support an order against further filings of complaints without the permission of the court." Id.
Courts that have imposed sanctions on future filings have taken a variety of approaches. For example, in Grossberger, the district court precluded Grossberger "from filing any further motions or pleadings in [the matter] without the [District Judge's] express written permission." Grossberger, 535 F. App'x 84, 85 (3d Cir. 2013). "[T]he injunction was limited to non-prescreened motions or other litigation documents submitted by or on behalf of Grossberger against the Defendants named in [the same] action." Id.
In Packer Ave. Assocs., the district court initially entered an order that enjoined a litigant "from filing any further petitions, pleadings or documents whatsoever." Packer Ave. Assocs., 884 F.2d at 747. On appeal, the Third Circuit did not allow this injunction to go forward as written, but instead edited to state that "Appellant may not file any action dealing with any issues resolved in [the prior case between the parties] without leave of the district court. In seeking leave of court, appellant must certify that the claims he wishes to present are new claims, never before raised and disposed of on the merits by any federal court. Upon a failure to certify or upon a false certification, appellant may be found in contempt of court and punished accordingly." Id. at 749.
A. Yan Has Continually Abused the Judicial Process.
Yan has shown a continuous pattern of abusing the judicial process through a variety of means. Most notably, Yan has filed six separate lawsuits against Penn State, all stemming from Penn State's denial of her PhD. In this, her sixth suit against Penn State, she has raised nine separate claims, all of which we recommended dismissing with prejudice for either (a) failing to state a claim upon which relief could be granted, (b) violating the doctrine of res judicata, or (c) violating applicable statutes of limitations. See doc. 17.
In addition to her repetitive lawsuits, Yan's conduct during her six suits against Penn State also shows a clear pattern of abusing the judicial process. In Yan II and Yan III, for example, Yan repeatedly filed baseless motions for sanctions against Penn State, all of which were summarily denied by the court. See, e.g., Yan II docs. 47, 66; Yan III docs. 50, 57, 74, 89. On at least two occasions, in fact, Yan filed the exact same motion for sanctions in both cases with nothing but the caption at the top of the document changed. Compare Yan II docs. 27, 70, with Yan III docs. 27, 63. The bases on which Yan moved the court to sanction Penn State included Penn State's filing a motion to dismiss her complaint (Yan III doc. 52); Penn State's failing to serve her with a copy of her own motion (Yan III doc. 57); and Penn State's asking for her phone number (Yan II doc. 70). After filing so many motions for sanctions in both cases, Yan then argued that she should be given default judgment in Yan III because Penn State had failed to respond to "a few" of her motions for sanctions. Yan III doc. 77 ¶ 14.
While her baseless and harassing motions for sanctions in Yan II and Yan III are perhaps the starkest examples of Yan's inappropriate behavior during litigation, they are by no means the only examples. On at least one occasion, Yan has blatantly and willfully disregarded a court order. On September 22, 2014, in Yan II, we ordered that "[d]iscovery is stayed pending the entry of an order deciding the defendant's forthcoming motion to dismiss." Yan II doc. 19. Following that order, Yan sent at least forty-five emails to Penn State's counsel between September 22, 2014, and October 10, 2014 (Yan II doc. 24 ¶ 6), many of which were very clearly requests for production of documents. See, e.g., doc. 24-3 at 1 ("Yan requests Ho Li Lun's student file. Yan requests the positions Yan applied and the personal file of final candidates who took the positions."). Yan further tried to conduct discovery in the case through a subpoena in an unrelated case. See doc. 24-4 at 2. Yan later acknowledged that she was aware of our order staying discovery but stated that the "Protective Order [did not] inhibit reasonable and necessary discovery," which very clearly contradicted our order. Another example of Yan's inappropriate behavior came in her motion to stay in the present case, in which she falsely stated that she was represented by attorney Edward A. Olds, who had not represented her since January 31, 2011, during Yan I. See Yan I doc. 39.
We denied her motion to stay in our September 27, 2018 order. See doc. 16.
In addition to her baseless, harassing filings, Yan has also shown a clear pattern of inappropriate communication, both with Penn State and with the court. On at least two occasions, Penn State's counsel has informed the court of the harassing nature of Yan's emails, both in substance and quantity. See Yan II docs. 24, 39. On October 10, 2014, Penn State's counsel informed the court that he had received at least forty-five emails from Yan between September 22, 2014 and October 10, 2014. Yan II doc. 24 ¶ 6. In one email in that period, Yan requested $900 billion and a PhD. Yan II doc. 24-2 at 2. In another, she requested that Ho Li-Lun be arrested "for his harassment and personal injury." Id. at 5. In another email, she accused Penn State of stealing her "documents." Id. at 10. She also threatened to continue filing civil lawsuits as long as Penn State continued to not offer her faculty positions (Yan II doc. 24-6 at 2), and threatened to bring criminal charges and civil cases against members of Penn State's faculty if they did not write her reference letters. Id. On October 28, 2014, Penn State's counsel informed the court that he had received over fifty emails from Yan between October 10, 2014, and October 28, 2014, one of which was 362 pages long. Yan II doc. 39 at 2. This court was also compelled to admonish Yan not to communicate with the court via ex parte emails on August 25, 2014. See Yan II doc. 6.
Our admonishment of Yan for her ex parte communications was also not the last time that we had to admonish her. Indeed, our order to show cause why Yan should not be declared a vexatious litigant represented the fourth time that this judge alone has specifically warned Yan of the possibility of sanctions. See doc. 16; Yan II docs. 6, 44, 69.
All three of our sanction warnings in Yan II were also docketed in Yan III. See Yan III docs. 7, 43, 62. --------
Nor is this court the first court to find it necessary to sanction Yan. Most notably, the United States Court of Appeals for the Third Circuit issued serious sanctions against Yan on December 9, 2015, based on the fact that she filed "more than 25 meritless appeals" to the court, the fact that her in forma pauperis affidavits "omit significant information regarding her finances," and the fact that "the number content and frequency of [her] filings show an especially abusive pattern aimed at taking advantage of the in forma pauperis privilege." Yan v. Fox Chase Cancer Ctr., No. 14-4670 at *1. The Third Circuit issued a number of sanctions in that case, including: (1) revoking Yan's in forma pauperis and electronic filing privileges in that court; (2) prohibiting her from calling the clerk's office; and (3) directing the district courts in the Third Circuit not to file a notice of appeal in any of her cases unless and until she had paid the full filing and docketing fees. Id. at *1-2. The Third Circuit also specifically stated that "[s]hould the District Courts in this Circuit find after notice and opportunity to respond that Ms. Yan Yan has shown a similar pattern of abuse in district court filings, they are authorized to enter a similar order." Id. at *2.
Perhaps the most troubling and most serious indication that this court should issue sanctions comes from the substantial evidence that Yan has acted through a subjective intent to use the judicial process to harass Penn State. In Yan II, Penn State's counsel pointed the court to a series of emails between him and Yan in which Yan suggested that she meant to harass Penn State through litigation. See Yan II doc. 24. In one email, Yan stated "I have 9 more civil cases and criminal cases have not filed yet. Let's keep doing these. You will be busy till you client will agree that they did very bad things to me." Yan II doc. 24-6 at 2. In another email, Yan suggested that she would continue to file civil suits against Penn State until the school offered her a faculty position. Id. In a third email, Yan threatened to file criminal charges and civil suits against members of Penn State's faculty if they did not write letters of recommendation for her. Id. Nor are Yan's emails the only indications of her intent to harass Penn State through litigation: in the present case, Yan's complaint contains two headings that appear to have been copied and pasted from her amended complaint in Yan III. Compare doc. 1 Counts XIII, XIV, with Yan III doc. 41-1 Counts XIII, XIV. Similarly, as previously mentioned, Yan twice filed the same motion for sanctions in Yan II and Yan III, with nothing but the caption at the top of the document changed. Compare Yan II docs. 27, 70, with Yan III docs. 27, 63. Yan's apparent readiness to borrow from her filings in her previous lawsuits against Penn State suggests that she is subjectively aware that her claims have already been litigated and that she is not proceeding with previously litigated claims merely by mistake or negligence. She is clearly proceeding with the subjective intent to use the judicial process to harass Penn State.
B. Yan Was Given Ample Notice of Possible Sanctions and an Opportunity to Respond.
On September 27, 2018, we issued an order for Yan to show cause why she should not be declared a vexatious litigant and sanctioned appropriately. In that order, we specifically stated that we were giving notice of the sanctions that we were prepared to recommend:
By way of notice to Ms. Yan of the appropriate sanctions, the undersigned Chief Magistrate Judge is prepared to recommend that Ms. Yan be enjoined from filing any future claims against Pennsylvania State University or related entities without leave of the court; that Ms. Yan would only be able to obtain leave of the court upon a showing that her claims were not meritless and were not based on facts that had already been litigated; and that Ms. Yan could potentially be held in contempt of court if the court found that Ms. Yan had made any misrepresentations as to the merits of the claim or whether the claim had already been litigated.Doc. 16.
The sanctions that we suggested in our previous order are "narrowly tailored to fit the specific circumstances of the case." Grossberger, 535 F. App'x at 86 (citing Brow, 994 F.2d at 1038). We do not suggest barring Yan from the filing of any case in this district, nor do we even suggest barring Yan from the filing of any claim against Penn State. Instead, our recommended sanctions are meant to deter her only from filing any more baseless, already-litigated claims against Penn State. Furthermore, our recommended sanctions are in line with Third Circuit precedent. In fact, they are substantially similar to the sanctions that the Third Circuit itself wrote in Packer Ave. Assocs., 884 F.2d at 749.
Thus, given Yan's long history of abuse of the judicial system, the ample notice she received of possible sanctions, and the fact that our sanctions are narrowly tailored to the circumstances of the case and in line with Third Circuit precedent, we recommend imposing the exact sanctions we outlined in our prior order.
IV. Recommendation.
Based on the foregoing analysis, we recommend declaring Ms. Yan a vexatious litigant and imposing the following sanctions:
(1) Ms. Yan is enjoined from filing any future claims against Pennsylvania State University or related entities without leave of this court;
(2) Ms. Yan will only be able to obtain leave of the court upon a showing that her claims are not meritless and are not based on facts that have already been litigated;
(3) Ms. Yan may be held in contempt of court if the court finds that she has made any misrepresentations as to the merits of the claim or whether the claim has already been litigated.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The
briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 9th day of November, 2018.
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge