1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HERBERT EDWARD MILLER, No. 2:21-cv-00061-JAM-KJN 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANTS

CALIBER HOME LOANS, INC. AND

14 JP MORGAN CHASE BANK, N.A. et U.S. BANK TRUST, N.A. AS TRUSTEE al, FOR LSF9 MASTER PARTICIPATION 15 TRUST’S MOTION FOR ENTRY OF Defendant. VEXATIOUS LITIGANT ORDER 16

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18 “The All Writs Act, 28 U.S.C. § 1651(a), provides district 19 courts with the inherent power to enter pre-filing orders against 20 vexatious litigants.” Molski v. Evergreen Dynasty Corp., 500 21 F.3d 1047, 1057 (9th Cir. 2007) (internal citation omitted). 22 Although pre-filing orders are an extreme remedy that should be 23 used cautiously, “[f]lagrant abuse of the judicial process cannot 24 be tolerated because it enables one person to preempt the use of 25 judicial time that properly could be used to consider the 26 meritorious claims of other litigants.” Id. at 1057. This is 27 especially true in the Eastern District of California where 28 1 judges carry the heaviest caseloads in the nation. Immobiliare, 2 LLC v. Westcor Land Title Ins. Co., 424 F.Supp.3d 882, 885 (E.D. 3 Cal. 2019). Before entering a pre-filing order, the Court must 4 ensure the following four factors are satisfied: (1) the litigant 5 has received notice and an opportunity to be heard; (2) there is 6 an adequate record for review; (3) the district court has made 7 substantive findings about the frivolous or harassing nature of 8 the plaintiff’s litigation; and (4) the order must be narrowly 9 tailored to the circumstances. Id. 10 Here, the Court finds all four factors have been satisfied. 11 First, Plaintiff had fair notice of the possibility he might be 12 declared a vexatious litigant and have a pre-filing order against 13 him because Defendants’ filed a motion, which he had the 14 opportunity to oppose and in fact, did so oppose. See id. at 15 1058; Opp’n, ECF No. 10. Second, there is an adequate record for 16 review. Defendants have requested the Court take judicial notice 17 of three actions filed in State Court by Plaintiff, one adversary 18 complaint filed in the Bankruptcy Court for the Eastern District 19 of California, and the subsequent orders granting dismissal.1 20 See Defs.’ Req. for Judicial Notice (“RJN”), ECF No. 11 Ex. D, E, 21 F, I, J, K, M, V, W, X, Y. This Vexatious Litigant Order is 22 based on these prior cases. 23 Third, for the reasons stated in this Court’s Order granting 24 Defendants Caliber and LSF9 MPT’s Motion to Dismiss in part, the 25 Court finds the first, second, third, fourth, fifth, and seventh 26 1 As matters of public record these documents are proper subjects 27 of judicial notice. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001). Accordingly, Defendants’ request for 28 judicial notice is GRANTED. 1 causes of action to be frivolous. As discussed more thoroughly 2 in that Order, those claims are premised on the theory that 3 Defendants or their assignors, had no right to foreclose upon the 4 property, something the State Court rejected not once but twice. 5 RJN Ex. F, Q. Accordingly, these claims are all barred by the 6 doctrine of res judicata. The Court also finds this has been 7 done in a harassing manner. This is the fourth suit Plaintiff 8 has brought to disrupt foreclosure of the Property. RJN Ex. D, 9 F, I, L, M, O. This is in addition to numerous bankruptcy 10 proceedings and an adversary complaint. RJN Ex. X at 2-11. As 11 Bankruptcy Judge Sargis stated dismissing Plaintiff’s 2020 12 bankruptcy filing, finding it was brought in bad faith: 13 Rather than a “reorganization” purpose, Debtor Herbert 14 Miller is instead demonstrating a “court shopping” effort and is seeking to obtain an injunction free of complying 15 with the requirements of Federal Rule of Civil Procedure 65 16 or the state law equivalent. It appears that Debtor Herbert Miller having tried to, and failed, in litigating through 17 the front doors of the state court and the district court, is attempting now to litigate in Federal Court through the 18 side door of the Bankruptcy Court. RJN Ex. X at 37. 19 This Court agrees with Bankruptcy Judge Sargis that Plaintiff has 20 improperly used the judicial process to prolong the foreclosure 21 process and now hamper Defendants’ right to transfer the 22 Property. 23 Fourth, the pre-filing order is narrowly tailored to the 24 circumstances as it only restricts Plaintiff’s future filings 25 regarding the Subject Property against these Defendants. 26 Accordingly, Defendants’ Motion is GRANTED. IT IS HEREBY ORDERED 27 that: 28 eee me RII I OS III II IE III I IEE IEEE OSE IGE IIR ESO

1 1. Plaintiff shall not file any additional pleadings, 2 motions, or other materials against Caliber Home Loans, 3 Inc. or U.S. Bank Trust, N.A. as Trustee for LSF9 Master 4 Participation Trust concerning the real property commonly 5 known as 305 Hilton Drive, Applegate, California 95703 6 before the United States District Court or Superior Court 7 of California, until all such complaints have been 8 subjected to pre-filing review by a Judge of this Court. 9 2. Defendants are entitled to attorneys’ fees from 10 Plaintiff’s attorney Judson Henry pursuant to 28 U.S.C. 11 § 1927. If the parties cannot agree on an amount 12 Defendant may bring a motion for attorneys’ fees but must 13 do so in accordance with Local Rule 293, 14 15 IT IS SO ORDERED. 16 Dated: June 9, 2021 Me 17 Benlek, sunk 18 19 20 21 22 23 24 25 26 27 28