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Case 5:17-cv-00521-SJO-DTB Document

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CASE NO.: EDCV 17-00521 SJO (DTBx) DATE: July 24, 2017
TITLE: Anshu B. Pathak v. Sunil Bhasin, et al.

========================================================================
PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE

Victor Paul Cruz Not Present


Courtroom Clerk Court Reporter

COUNSEL PRESENT FOR PLAINTIFF: COUNSEL PRESENT FOR DEFENDANTS:

Not Present Not Present

========================================================================
PROCEEDINGS (in chambers): ORDER GRANTING DEFENDANT TOM LAWYER AKA
THOMAS LAWYER'S MOTION TO DISMISS COMPLAINT [Docket No. 25]; ORDERING
PLAINTIFF TO SHOW CAUSE WHY HE SHOULD NOT BE DECLARED A VEXATIOUS
LITIGANT; DENYING AS MOOT ALL PENDING MOTIONS AND REQUESTS FOR ENTRY OF
DEFAULT [Docket Nos. 44, 45, 48, 51, 83, 84, 85, 86]; VACATING ALL PENDING HEARINGS;
SETTING ASIDE ENTRIES OF DEFAULT [Docket Nos. 41, 74, 76]

This matter is before the Court on the Motion to Dismiss or Motion for More Definitive Statement
filed by Defendant Tom Lawyer a/k/a Thomas Lawyer's ("Lawyer"), proceeding pro se, on June
19, 2017 ("Motion"). Plaintiff Anshu Bharat Pathak ("Plaintiff"), proceeding pro se, opposed the
Motion on July 8, 2017; Lawyer did not file a reply. The Court found the matter suitable for
disposition without oral argument and vacated the hearing set for July 24, 2017. See Fed. R. Civ.
P. 78(b). For the following reasons, the Court GRANTS the Motion; ORDERS Plaintiff to show
cause why he should not be declared a vexatious litigant; DENIES AS MOOT all pending motions
and requests for entry of default; VACATES all pending hearings; and SETS ASIDE entries of
default.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 20, 2017, Plaintiff, proceeding pro se, filed a Complaint in this Court alleging fraud
against the following 18 defendants, all of whom are proceeding pro se: Lawyer, Thoms Gillen
("Gillen"), Sunil Bhasin ("Bhasin"), Dolores Jojola ("Jojola"), David Alan Hicks ("Hicks"), Charlotte
Spadaro ("Spadaro"), Gary Redinger ("Redinger"), Leonard Medina ("Medina"), Jon Mauk
("Mauk"), John Warner ("Warner"), Charles Pember ("Pember"), Ted Y. Ong ("Ong"), Allied Global
Care, Inc. ("Allied, Inc."), Allied Global Care ("Allied"), City of San Bernardino ("City"), Martin
Martinez ("Martinez"), Angelica Juana Hernandez ("Hernandez"), and Dennis McMullin
("McMullin") (collectively, "Defendants"). (Compl., ECF No. 1.)

Pursuant to Plaintiff's requests, default was entered against Bhasin on June 20, 2017 and against
Allied, Inc., Allied, Pember, and Spadaro on July 17, 2017. (ECF Nos. 41, 74, 76.) Plaintiff filed
motions for default judgment against Allied, Inc.; Allied; Pember; and Spadaro on July 22, 2017.

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Case 5:17-cv-00521-SJO-DTB Document
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CASE NO.: EDCV 17-00521 SJO (DTBx) DATE: July 24, 2017

(ECF Nos. 83-86.) Plaintiff's requests for entry of default against Jojola, Martinez, Hernandez, and
Ong, filed July 16, 2017, are pending. (ECF Nos. 51, 70-72.) On July 12, 2017, the City filed a
Notice of Automatic Stay of Litigation pursuant to 11 U.S.C. §§ 362(a) and 922(a)(1) in light of the
City's Chapter 9 bankruptcy case, Case No. 6:12-bk-28006-MJ (C.D. Cal.). (ECF No. 59.) On
July 14, 2017, Plaintiff dismissed the City without prejudice. (ECF No. 79.)

Defendants Redinger, Gillen, and Mauk filed Motions to Dismiss on June 29, 2017, July 3, 2017,
and July 3, 2017, respectively, (ECF Nos. 44, 45, 48), which Plaintiff opposed. (ECF Nos. 73, 78,
81.) On July 14, 2017, Plaintiff filed subpoenas as to Hicks, Lawyer, Mauk, Gillen, and Redinger
to appear at the hearing on the Motion. (ECF Nos. 62-66.)

II. DISCUSSION

In the instant Motion, Lawyer argues, in relevant part, that the Court lacks personal and subject
matter jurisdiction and that the Complaint fails to state a claim upon which relief can be granted.
(See generally Mot., ECF No. 25.) The Court concludes that subject matter jurisdiction is lacking
and, in the alternative, Plaintiff fails to sufficiently state a claim for fraud.

A. Plaintiff Does Not Demonstrate Subject Matter Jurisdiction

Lawyer argue that the case must be dismissed for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure ("Rule") 12(b)(1). (Mot. 4-5.) Lawyer argues that, because the evidence
demonstrates that Plaintiff is a citizen of California and all Defendants are also citizens of
California, diversity jurisdiction is lacking.

"Federal courts are courts of limited jurisdiction [and] possess only that power authorized by the
Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
"When subject matter jurisdiction is challenged under [Rule] 12(b)(1), the plaintiff has the burden
of proving jurisdiction in order to survive the motion." Tosco Corp. v. Comtys. For a Better Env't,
236 F.3d 495, 499 (9th Cir. 2001), abrogated on other grounds by Hertz Corp. v. Friend, 559 U.S.
77 (2010); see also Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986) ("[T]he party asserting
diversity jurisdiction bears the burden of proof."). To satisfy this burden, the plaintiff "must show
in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal
jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on
discovering the same, must dismiss the case, unless the defect be corrected by amendment."
Tosco, 236 F.3d at 499 (emphasis added) (citing Smith v. McCullough, 270 U.S. 456, 459 (1926)).

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CASE NO.: EDCV 17-00521 SJO (DTBx) DATE: July 24, 2017

Here, the sole purported basis for conferring federal subject matter jurisdiction over this fraud
action is diversity jurisdiction under 28 U.S.C. section 1332.1 For purposes of determining whether
diversity jurisdiction exists, an individual is a citizen of his or her state of domicile, which is
determined at the time the lawsuit was filed. See Lew, 797 F.2d at 750. "A person is 'domiciled'
in a location where he or she has established a 'fixed habitation or abode in a particular place, and
[intends] to remain there permanently or indefinitely.'" Id. (quoting Owens v. Huntling, 115 F.2d
160, 162 (9th Cir. 1940). Even after "liberally constru[ing]" Plaintiff's Complaint, as the Court must
for pro se litigants, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation and quotation
marks omitted), Plaintiff has failed to demonstrate that the parties are completely diverse.

First, Plaintiff's allegation that he is a "residence [sic] of Las Vegas, Nevada" and that he has an
address of 5615 Cameron St., #7, Las Vegas, NV 89118, (Compl. ¶ 1), do not show, affirmatively
and distinctly, that Plaintiff is domiciled in Nevada. Indeed, Plaintiff has alleged no facts that he
intends to remain at this address "permanently or indefinitely."

Second, even assuming Plaintiff's allegations were sufficient to establish he is a citizen of


Nevada–which they are not–Lawyer presents a factual attack by offering evidence that Plaintiff's
actual address and/or business activities are in California. "In resolving a factual attack on
jurisdiction, the district court may review evidence beyond the complaint without converting the
motion to dismiss into a motion for summary judgment. The court need not presume the
truthfulness of the plaintiff's allegations." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004). "Once the moving party has converted the motion to dismiss into a factual motion
by presenting affidavits or other evidence properly brought before the court, the party opposing
the motion must furnish affidavits or other evidence necessary to satisfy its burden of
establishing subject matter jurisdiction." Savage v. Glendale Union High Sch., 343 F.3d 1036,
1039 n.2 (9th Cir. 2003) (emphasis added).

In support of his argument that Plaintiff is a California citizen, Lawyer attaches (1) a print-out from
the Riverside Superior Court Public Access website indicating that, as of February 2017, Plaintiff's
address of record was 25517 Los Cabos Dr., Moreno Valley, California 92551; (2) a print-out from
the San Bernardino County Recorder-Clerk's Office's Fictitious Business Names Search database,

1
Although Plaintiff does not cite to the statutory section, it is clear that he attempts to
assert diversity jurisdiction under 28 U.S.C. section 1332. In the Civil Cover Sheet for the
Complaint, Plaintiff selected "diversity" as the basis of jurisdiction and seeks, inter alia,
"$1,000,00,000.00" in damages. (Civil Cover Sheet 1, ECF No. 1-1; see also Compl.
¶¶ 49-55.) Moreover, although Plaintiff references a bankruptcy action filed by Bhasin,
Plaintiff has not shown that this action arises out of the bankruptcy action. Rather than
selecting "Bankruptcy" as the nature of suit, Plaintiff selected "Other Contract." (Civil Cover
Sheet 1.)
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listing Plaintiff as the business owner of eight businesses in San Bernardino, four of which are
active; and (3) a declaration regarding his personal knowledge that Plaintiff lives and conducts
business in California. (Mot. 5, Ex. A; Decl. of Tom Lawyer in Supp. Mot. ("Lawyer Decl.") ¶ 18.)
In his Opposition to the instant Motion, Plaintiff fails to address Lawyer's argument that the parties
are not diverse, let alone present affidavits or other evidence to establish that he is domiciled in
Nevada.2 On this ground, the Complaint is dismissed for lack of subject matter jurisdiction.

B. Plaintiff Does Not Sufficiently State a Claim for Fraud

In the alternative, Lawyer correctly points out that Plaintiff has failed to state a claim for fraud
under Rule 12(b)(6). "Under California law, the indispensable elements of a fraud claim include
a false representation, knowledge of its falsity, intent to defraud, justifiable reliance, and
damages," Moore v. Brewster, 96 F.3d 1240, 1245 (9th Cir. 1996), none of which Plaintiff has
sufficiently alleged. Moreover, Plaintiff's allegations do not meet the heightened pleading standard
of Rule 9(b), which requires a party alleging fraud to "state with particularity the circumstances
constituting fraud or mistake . . . ." Fed. R. Civ. P. 9(b); see Vess v. Ciba-Geigy Corp. USA, 317
F.3d 1097, 1106 (9th Cir. 2003) ("Averments of fraud must be accompanied by 'the who, what,
when, where, and how' of the misconduct charged."). For example, Plaintiff fails to allege what
representations were made to him by Defendants, and why he justifiably relied on these
misrepresentations.

C. Plaintiff's Vexatious Litigant Status

Finally, Lawyer argues that this action should be dismissed with prejudice in light of the fact that
the Los Angeles Superior Court declared Plaintiff a vexatious litigant and that Plaintiff's meritless
Complaint is an effort to "use the judicial process to annoy, harass or financially punish others .
. . ."3 (Mot. 2, Exs. B-D.) Under California law, a vexatious litigant is defined as a person

2
Plaintiff does not oppose the merits of the Motion. Instead, Plaintiff disputes that, inter
alia, he was not properly served with the Motion and that the Local Rule 7-3 meet and
confer was not held; Plaintiff also requests that the Court sanction Lawyer in the amount
of $1,750 for Plaintiff's expenses to "come to Los Angeles for the hearing for a frivolous
motion which was not filed pursuant to" the Local Rules. (Opp'n 6.) According to the proof
of service, the Motion was served on Plaintiff at the Las Vegas address, and Lawyer states
that meet and confer efforts were made. (Mot. 29.) Plaintiff's Oppositions to the three
other pending Motions to Dismiss similarly fail to dispute subject matter jurisdiction or
otherwise argue the merits.
3
The Court takes judicial notice of the fact that, on October 19, 2000, the Los Angeles
Superior Court issued a pre-filing order deeming Plaintiff a vexatious litigant pursuant to
California Code of Civil Procedure section 391.7 in Case No. KC033801. See California
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CASE NO.: EDCV 17-00521 SJO (DTBx) DATE: July 24, 2017

proceeding in propria persona who: (1) in the preceding seven-year period has commenced at
least five litigations that have been determined adversely; (2) repeatedly relitigates or attempts to
relitigate either against the same defendants as to whom the litigation was finally determined or
the same cause of action, claim, or controversy; (3) repeatedly files unmeritorious motions,
pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are
frivolous or solely intended to cause unnecessary delay; or (4) has previously been declared to
be a vexatious litigant by any state or federal court in any action based upon the same or
substantially similar facts, transaction, or occurrence. See Cal. Code Civ. Proc. § 391.

"The Central District of California has adopted a policy 'to discourage vexatious litigation,' and has
enacted Local Rules to augment the inherent judicial power to control such litigation." Kelmar v.
Bank of Am. Corp., No. CV 12-06826 PSG, 2012 WL 12850425, at *4 (C.D. Cal. Oct. 26, 2012)
(citing L.R. 83-8.1). Under the Local Rules, a vexatious litigant is a "litigant . . . [who] has abused
the Court's process and is likely to continue such abuse, unless protective measures are taken."
L.R. 83-8.3. The Court is authorized to, "at its discretion, proceed by reference to the Vexatious
Litigants statute of the State of California, Cal. Code Civ. Proc. §§ 391-391.8." L.R. 83-8.4.

While the Court may use its authority to declare Plaintiff a vexatious litigant, it may not do so or
enter a pre-filing order before giving Plaintiff notice and an opportunity to be heard. See De Long
v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir. 1990); Kelmar, 2012 WL 12850425, at *4
(dismissing action and issuing order to show cause as to why plaintiff should not be declared
vexatious litigant, where plaintiff was previously deemed vexatious by state court). Accordingly,
before the Court can impose restrictions such as those authorized under Local Rule 83-8.2–which
the Court intends to do–it affords Plaintiff one opportunity to show cause in writing why he should
not be declared a vexatious litigant.

III. RULING

For the foregoing reasons, the Court GRANTS the Motion based on Rules 12(b)(1) and 12(b)(6).
This action is DISMISSED with leave to amend. All pending motions and requests for entry of
default (docketed as ECF Nos. 44, 45, 48, 51, 83, 84, 85, 86) are DENIED AS MOOT; all pending
hearings are VACATED. On the Court's own motion, the Court SETS ASIDE the entries of default
against Bhasin; Allied, Inc.; Allied; Pember; and Spadaro (docketed as ECF Nos. 41, 74, 76).

Vexatious Litigant List Prepared and Maintained by the Administrative Office of the Courts
dated July 3, 2017 (http://www.courts.ca.gov/documents/vexlit.pdf). Records of state
agencies and other undisputed matters of public record and undisputed information on a
government website are proper matters for judicial notice. See Disabled Rights Action
Committee v. Las Vegas Events, Inc., 375 F.3d 861, 866 n.1 (9th Cir. 2004).
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CASE NO.: EDCV 17-00521 SJO (DTBx) DATE: July 24, 2017

Plaintiff is hereby ORDERED to file the following by Tuesday, August 8, 2017: (1) an amended
Complaint, which must cure the deficiencies flagged by the Court; and (2) a written response to
this Order to Show Cause as to why he should not be declared a vexatious litigant. Failure to
comply may be construed as Plaintiff's assent to the issuance of a pre-filing order declaring him
to be a vexatious litigant. Strict adherence to this Order, the Federal Rules of Civil Procedure, the
Local Rules, and this Court's Initial Standing Order is required. If Plaintiff files an amended
Complaint, Defendants' responses are due within fourteen (14) days of being served with the
amended Complaint.

IT IS SO ORDERED.

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