O'Neal v. Zurich Ins. Co.
| Decision Date | 25 August 2021 |
| Docket Number | 2:18-cv-01677-RFB-BNW |
| Court | U.S. District Court — District of Nevada |
| Parties | Wendell Dwayne O'Neal, Plaintiff, v. Zurich Insurance Company Inc., Empire Fire & Marine Insurance Company Inc, Corey Eichelberger, Bradley M Marx, Cisneros & Marias, Roadrunner Auto Group Rentals Inc., Lewis, Brisbois, Bisgaard and Smith LLP, Mannion Gray Uhl & Hill Co., Carol Millaud, Cymbalista Boaz, Janet Pancoast, Defendants. |
Before the Court for consideration is Defendants' Motion to Designate Wendell Dwayne O'Neal a Vexatious Litigant Pursuant to 28 U.S.C. § 1651 [ECF No. 22]. On August 13 2021, the Court dismissed the operative complaint with prejudice [ECF No. 93]. In addition to their motion to dismiss [ECF No. 22], Defendants also made a motion to declare Plaintiff a vexatious litigant pursuant to the court's power under 28 U.S.C. § 1651.
On August 31, 2018, Plaintiff filed his original complaint. ECF No. 1. On July 22, 2019, Plaintiff filed an Amended Complaint with the same allegations. ECF No. 6. On July 2, 2020, this Court granted leave for Plaintiff to file his amended complaint. ECF No. 11. Plaintiff filed two subsequent amended complaints without leave. ECF No. 12, 15. On November 3, 2020, Defendants filed a Motion to Dismiss and Motion to Designate Wendell Dwayne O'Neal a Vexatious Litigant. ECF No. 22. Between July 20, 2020 and June 9, 2021, Plaintiff filed over twenty motions that were procedurally improper. On June 9, 2021, The Court ordered that Plaintiff shall not file any additional filings and the Court shall not accept any additional filings from the Plaintiff. The Court also stayed the case at that time. ECF No. 86. On June 21, 2021, the Plaintiff sought a writ of mandamus against this Court seeking to lift the Court's June 9, 2021 order prohibiting additional filings until the motion to dismiss was decided. ECF No. 88. On July 15, 2021, the Ninth Circuit denied Plaintiff's petition stating that “Petitioner has not demonstrated that this case warrants the intervention of this court.” ECF No. 90. On August 13, 2021, the Court held a hearing on Defendants' Motion to Dismiss and Motion to Designate Wendell Dwayne O'Neal a Vexatious Litigant. The Court granted the Motion to Dismiss with prejudice on the record. ECF No. 93.
Despite the Court's explicit direction, Plaintiff filed five more documents between August 16 and 20. ECF No. 94-98, see also Tr. of Hearing at 19-20, ln. 23-10, ECF No. 99 .
The Plaintiff's complaint and subsequent papers are difficult to meaningfully decipher. However, the allegations in this case seem to center around an automobile accident in which an underage driver, who is related to the Plaintiff, drove a rental car vehicle into a wall. Individuals involved in the accident appeared to then hire the Plaintiff to file their insurance claims for the accident, which were denied by Defendants Zurich and Empire Fire & Marine Insurance Company Inc. Plaintiff alleges that various entities named in the suit have conspired and “falsified fiduciary relationship and commercial coverage existed in Nevada.” ECF No. 9 at 1. These entities include the Nevada DMV, the named insurance companies, and the named law firms.
“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” but such pre-filing orders should be “rarely used” to avoid “tread[ing] on a litigant's due process right of access to the courts.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) (citations omitted). A pre-filing order is only appropriate “after a cautious review of the pertinent circumstances.” Id.
“Nevertheless, ‘[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.'” Id. (quoting De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir.1990)). To determine whether a pre-filing order is warranted, four factors must be examined. “First, the litigant must be given notice and a chance to be heard before the order is entered.” Id. (citing De Long, 912 F.2d at 1147). “Second, the district court must compile ‘an adequate record for review.'” Id. (quoting De Long, 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. “Finally, the vexatious litigant order ‘must be narrowly tailored to closely fit the specific vice encountered.'” Id. (quoting De Long, 912 F.2d at 1148). The “ultimate substantive issue in resolving a motion for a pre-filing order” is “‘whether a litigant who has a history of vexatious litigation is likely to continue to abuse the judicial process and harass other parties.'” Id. at 1058 (quoting Safir v. United States Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)).
A district court may satisfy “the requirement of providing an opportunity to be heard by written submission rather than an oral or evidentiary hearing.” Windsor v. Boushie, 677 Fed.Appx. 311, 312 (9th Cir. 2017).
Defendants argue in their motion that Plaintiff is a vexatious litigant who has filed four nearly identical cases in the state of Nevada: one case in state court and three other cases in federal court, all of which were dismissed. ECF No. 22 at 18-19. Each of these cases went up on appeal and none of those appeals overturned the Courts' initial determination on the merits of the claims. Id. Furthermore, Defendants claim that Plaintiff has filed over 100 lawsuits in courts in other venues, including: seventy-four appeals before the Eight Circuit between 2005 and 2016, ECF No. 22-22, thirteen cases in the U.S. District Court for the District of Minnesota from 2005 to 2012, ECF No. 22-24, and eight cases in the U.S. District Court for the District of Arizona from 2010-2016, ECF No. 22-25. Defendants contend that “none of these cases appear to be successful, but were rather dismissed on a motion to dismiss, motion for summary judgement, or sua sponte by the Court.” ECF No. 22 at 21. Defendant notes that both state and federal courts in Nevada have previously declared Plaintiff to be a vexatious litigant. Id. at 19-20.
Plaintiff argues that Defendants' motion to declare Plaintiff a vexatious litigant cannot prevail “where [Defendant] falsified a fiduciary relationship exists between Zurich and Roadrunner during ever prior litigation episode for judgement.” ECF No. 28 at 14. Essentially, Plaintiff seems to rest his argument against the designation on the merits of the claim about “falsified coverage, ” which the Court here has deemed is a claim that he does not have standing to pursue. ECF No. 93. At the August 13, 2021 hearing, in response to the Court's questioning of the Plaintiff on the vexatious litigant motion, Plaintiff argued again that he should not be deemed a vexatious litigant because “I can establish that the defendants falsified that commercial coverage exists and that a valid rent-a-car lease agreement exists.” Tr. of Hearing at 14, ln. 6-8, ECF No. 99.
The Court turns to the De Long factors to determine whether a pre-filing order should issue against Plaintiff. The Court finds that the first factor of notice and an opportunity to be heard has been satisfied. Plaintiff was given the opportunity to file a written brief in opposition to Defendant's motion and did so. See ECF No. 28. Additionally, Plaintiff was given an opportunity to argue against the motion at the August 13, 2021 hearing.
The Court now turns to a review of the record to satisfy the second De Long factor. Defendant has provided an Index of Exhibits in support of its motion that details Plaintiff's various litigation efforts in state and federal court in Nevada and with details on the docket numbers of cases in other federal circuits. ECF No. 22-1-25. Pursuant to Federal Rule of Evidence 201(b), the Court takes judicial notice of the docket in these cases as they are “documents on file in federal or state courts.” Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012).
The exhibits indicate that Plaintiff has initiated four separate suits on these claims against similar sets of Defendants. Those cases are:
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