In re Agrawal

• Decision Date: 04 October 2018
• Docket Number: Case No. 16-11253-JDL
• Parties: In re: KHRISHNA KUMAR AGRAWAL, Debtor.
• Court: United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — Western District of Oklahoma

In re: KHRISHNA KUMAR AGRAWAL, Debtor.

Case No. 16-11253-JDL

UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

October 4, 2018

The following is ORDERED:

Involuntary Chapter 7

ORDER TO SHOW CAUSE WHY DEBTOR SHOULD NOT BE DECLARED A "VEXATIOUS LITIGANT" AND A SCREENING ORDER BE ENTERED

This matter comes on for consideration, sua sponte, for an Order to Show Cause Why Debtor Should Not Declared A "Vexatious Litigant" and a Screening Order Be Entered (the "Order"). This matter is before the Court because the Debtor, Krishna (Kris) Kumar Agrawal ("Agrawal") has engaged in the filing of repetitive, frivolous, barely comprehensible pleadings characterized by scurrilous attacks upon judges, counsel, parties and non-parties. Agrawal has been continuously admonished for his disregard of the provisions of the United States Bankruptcy Code, Federal Rules of Bankruptcy Procedure and the Local Rules of this Court and that his continuation in doing so would result in the imposition of sanctions. In light of Agrawal's behavior the Court finds it necessary to consider implementing such orders as are appropriate to control the conduct of a vexatious litigant, including the implementation of a "Screening Order" requiring Agrawal to obtain leave/authorization from the Court prior to filing any further pleadings.

Pursuant to 28 U.S.C. §1651(a), referred to as 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 usages and principles of law." Federal courts have discretion to enjoin parties from frivolous litigation under the All Writs Act. See e.g. Tripati v. Beaman, 878 F.2d 351, 352 (10^th Cir. 1989) ("A district court has power under 28 U.S.C. § 1651(a) to enjoin litigants who abuse the court system by harassing their opponents. (Citations omitted).**** There is strong precedent establishing the inherent power of federal courts to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances.") (quoting Cotner v. Hopkins, 795 F.2d 900, 902-03 (10^th Cir. 1986)); Chandler v. O'Bryan, 445 F.2d 1045, 1056 (10^th Cir. 1971) (federal court has power to enjoin harassing and vexatious litigation in appropriate circumstances) cert. denied, 405 U.S. 964, 92 S.Ct. 1176 (1972); Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9^th Cir. 2007) ("The All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the inherent power to enter pre-filing orders against vexatious litigants."); Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1197 (9^th Cir. 1999) ("District courts have the inherent power to file restrictive pre-filing orders against vexatious litigants with abusive and lengthy histories of litigation.").

Bankruptcy courts, being courts established by Act of Congress, "have the power to regulate vexatious litigation pursuant to 11 U.S.C. § 105 and 28 U.S.C. § 1651." In reInternational Power Securities Corp., 170 F.2d 399, 402 (3d Cir.1948); In re Armstrong, 309 B.R. 799 (10^th Cir. BAP 2004) ("abuses of the court system and vexatious litigation may warrant the imposition of filing restrictions and conditions"); Winslow v. Hunter (In re Winslow), 17 F.3d 314, 315 (10^th Cir. 1994); In re GTI Capital Holdings, LLC, 420 B.R. 1, 11 (Bankr. D. Ariz. 2009); In re Stanwyck, 450 B.R. 181, 200 (Bankr. C.D. Cal. 2011).

Bankruptcy courts have noted that 11 U.S.C. § 105(a), which empowers the bankruptcy courts to issue "any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title... or to prevent an abuse of process," was an "Intentionally broad grant of authority" to the bankruptcy courts "in order to facilitate the orderly administration of bankruptcy cases." In re Howell, 4 B.R. 102, 105 (Bankr. M.D. Tenn. 1980). The Howell court even suggested that "[t]he power contained in § 105 is arguably more extensive than that contained in the All Writs Statute, 28 U.S.C. § 1651. Id. See also In re Meltzer, 535 B.R. 803, 821 (Bankr. N.D. Ill.2015) (Federal courts have the power to protect their dockets from abusive litigants, and that "[b]ankruptcy courts are granted that same authority in section 105(a) of the Bankruptcy Code...which confers 'broad powers ... to prevent an abuse of the bankruptcy process'").

Considering the constitutional underpinnings of the general right to court access, "'pre-filing orders should rarely be filed,' and only if courts comply with certain procedural and substantive requirements'". Ringgold-Lockhart, 761 F.3d 1057, 1062 (9th Cir. 2014). "Courts should not enter pre-filing orders with undue haste because sanctions can tread on a litigant's due process right of access to courts." Molski, 500 F.3d at 1057. Furthermore, the court should exercise particular caution for using such measures againsta pro se plaintiff. Pavilonis v. King, 626 F.2d 1075, 1079 (1^st Cir.1980); In re Greenstein, 576 B.R. 139 (Bankr. C.D. Cal. 2017). That being said, the right of access to the courts is neither absolute nor unconditional, Tripati, 878 F.2d at 353, and there is no constitutional right of access to the courts to prosecute an action that is frivolous or malicious. Id. (citing Phillips v. Carey, 638 F.2d 207, 208 (10^th Cir. 1981)), cert. denied 450 U.S. 985, 101 S.Ct. 1524 (1981). "No one, rich or poor, is entitled to abuse the judicial system." Id. (citing Hardwick v. Brinson, 523 F.2d 798, 800 (5^th Cir. 1975)). That a vexatious litigant is pro se offers "no impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets." Farguson v. MBank Houston, NA, 808 F.2d 358, 359 (5^th Cir. 1986).

Agrawal's pro se Motions which have been stricken and Show Cause Orders include¹:

1. Motion of Putative Debtor to Vacate All Void Orders of This Court Acquired Without Jurisdcitioin of This Court by the Petitioning Crditors [Doc. 86]. Order Striking Debtor's Motion dated April 6, 2017 [Doc. 87]. The Motion was stricken due to non compliance with Local Rule 9013-1(G) and filed pro se when he had counsel of record. Agrawal was admonished that if he continued to represent himself pro se he must follow the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, the local rules and all orders of the Court.

2. Motion for Relief from Automatic Stay [Doc. 80]. Order Striking Motion For Relief from Automatic Stay dated April 25, 2017 [Doc. 93]. The Motion was stricken as Agrawal was requesting relief for non-debtor parties, to which he claimed the automatic stay was applicable.

3. On May 3, 2017, Order to Show Cause entered why Agrawal should not be held in contempt for failure to file Schedules and other documents. [Doc. 100]. Debtor had been directed to file schedules by April 11, 2017. [Doc. 82].

4. Entry of Appearance, Notice of Opportunity for Hearing and Motion for Trustee to Assist [Doc. 137]. Order Striking Pleading dated September 28, 2017 [Doc. 139]. This was a rambling confusing pleading consisting of sixty-two (62) pages. Agrawal was admonished again that if he continued to represent himself pro se he had to follow the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, the Local Rules and all orders entered by the Court.

5. Motion for Summary Judgment And Declaratory Ruling Against Christopher Holland Since He was Overpaid And Application to Enjoin Christopher Holland As A Creditor Since His Judgment Was Discharged In the Bankruptcy of Geo Exploration, LLC Or Became Stale And Not Enforceable [Doc.144]. This Motion claimed that Chris Holland violated the automatic stay in another bankruptcy case and sought the recusal of the judge. Order Overruling Motion for Summary Judgment was entered on numerous grounds, including that the Motion was patently frivolous and once again failed to comply with Local Rule 9013-1(B) which prohibits multiple requests for relief in a single Motion [Doc. 149].

6. Objection to Extension of Dead Lines and Motion for Sanctions Against Jeffery Tate and Motion to Dismiss Bankruptcy. [Doc. 148]. Agrawal's Objection was stricken as violating Local Rule 9013-1(B). [Doc. 151]. Agrawal's Objection included allegations (1) that "Jeffery Tate, like wise other CO&G attorneys has been committing fraud upon this Court from the beginning". [Doc. 148, ¶ 17]; (2) "This is such nonsense which deserves Sanctions by this Court in the amount of $100,000 against Tate for such an outlandish claim in the Public forum tainting Agrawal as a Forgerer" [Doc. 148, ¶ 19]; (3) "All the CO&G Lawyers are unethical and outright LIARS." [Doc. 148, ¶ 23].

7. Motion to Re-Consider All Orders of This Court as They Are Affected by These Attachments and Dismiss Bankruptcy. [Doc. 157]. The Motion alleges that CO&G committed "the fraud upon Court, is such that this Court also fell Pray of CO& G/Parent/Ron Walker fraud of stealing thru a Lawyer, Jeffery Tate." [Doc. 157, ¶ 9]. Order Striking Pleading was entered November 9, 2017 [Doc. 158]. The Order was entered based on Agrawal's failure to follow Local Rules and reminding him that he had been previously admonished to follow all rules of the Court.

8. Emergency Application to Vacate the Order Dated March 27, 2017 and Reinstate Appeal to Consider New Facts to Dismiss Involuntary Bankruptcy and to Turn Over the Matter to the U.S. Attorney General for Further Action. [Doc. 171]. Order Striking Emergency Application to Vacate Order to Reinstate Appeal was entered December 14, 2017 [Doc. 172]. The Application/Motion sought the Bankruptcy Court to vacate an order dismissing appeal entered by the U.S. District Court for the Western District of Oklahoma.

9. Debtors' Emergency Motion to Enforce the Automatic Stay and Shorten Time for Hearing [Doc. 169]. Order Denying Debtor's Emergency Motion to Enforce Automatic Stay was entered December 14, 2017 [...