US federal court declared me as a "vexatious litigant" for suing US government

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NOT FOR CITATION

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

WANXIA LIAO,

Plaintiff,

v.

UNITED STATES OF AMERICA, et al.,

Defendants. /

No. C 11-02494 JSW

ORDER GRANTING UNITEDSTATES’ MOTION TO DECLAREPLAINTIFF A VEXATIOUSLITIGANT AND INSTRUCTIONSTO CLERK RE SAME

INTRODUCTION

Now before the Court for consideration is the Motion to Declare Plaintiff a Vexatious

Litigant, filed by the United States. On April 3, 2012, Plaintiff, Wanxia Liao (“Liao”),

requested that the Court decide the motion on the papers. Because the Court found the motion

suitable for disposition without oral argument, the Court granted her request and vacated the

hearing on this motion. The Court has considered the parties’ papers, relevant legal authority,

and the record in this case and in other cases filed by Liao, and for the reasons set forth in the

remainder of this Order, the Court HEREBY GRANTS the United States’ motion. The Court,

however, finds the United States proposed pre-filing requirements overbroad.

ANALYSIS

“The All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the inherent

power to enter pre-filing orders against vexatious litigations. However, such pre-filing orders

are an extreme remedy that should rarely be used.” Molski v. Evergreen Dynasty Corp., 500

F.3d 1047, 1057 (9th Cir. 2007) (internal citations omitted). Before it grants a request for a

Case3:11-cv-02494-JSW Document97 Filed04/16/12 Page1 of 9

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prefiling review order, a court should: (1) give the litigant adequate notice and an opportunity to

be heard; (2) compile an adequate record for review; (3) make substantive findings as to the

frivolous or harassing nature of the litigant’s actions; and (4) narrowly tailor the order “to

closely fit the specific vice encountered.” Id. (quoting DeLong v. Hennessey, 912 F.2d 1144,

1145-48 (9th Cir. 1990)).

1. Notice and Opportunity to Be Heard on the Motion.

Pursuant to Molski and DeLong, before a party can be declared a vexatious litigant, that

party must have notice and an opportunity to be heard. The United States’ motion provided

Liao with notice of the basis of the request to declare her a vexatious litigant. The Court

provided her with ample time to file her written opposition to the motion. In addition, this

Court was fully prepared to accommodate Liao, who resides in Canada, by holding the hearing

on the motion by telephone. However, three days before the scheduled hearing, Liao asked that

the Court resolve the matters on the papers, citing various reasons why it would be too difficult

for her to participate in oral argument. The Court granted that request. Thus, Liao also has had

an adequate opportunity to be heard on the motion. See Molski, 500 F.3d at 1058-59 (“Molski

had fair notice of the possibility that he might be declared a vexatious litigant ... because the

district court’s order was prompted by a motion filed by the defendants and served on Molski’s

counsel. Also, Molski had the opportunity to oppose the motion, both in writing and at a

hearing.”); cf. Pacific Capital Harbor, Inc. v. Carnival Airlines, Inc., 210 F.3d 1112, 1118 (9th

Cir. 2000) (imposing sanctions against attorney and holding that evidentiary and oral hearing is

not necessary to satisfy “opportunity to be heard” requirement).

2. Record for Review.

The second requirement under Molski and DeLong is that a court compile an adequate

record for review, i.e. “a listing of all the cases and motions that lead the district court to

conclude that a vexatious litigant order was needed.” Molski, 500 F.3d at 1059 (quoting

DeLong, 912 F.2d at 1147). As set forth in the Court’s Order, issued this date, granting motions

to dismiss filed by the United States, CNN and Dow Jones, this litigation stems from a dispute

over a term paper, which prompted Liao to file a complaint with the Ontario Human Rights


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281 This opinion is attached as Exhibit 12 to the Carradero Declaration.

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Commission (“OHRC”), which then led Liao to file a complaint in San Francisco Superior

Court against James Cahill and the University of California at Berkeley, captioned Liao v.

Cahill, No. CGC-02-407761 (the “original Cahill litigation”). (See Docket No. 70, Declaration

of Victoria R. Carradero (“Carradero Decl.”), ¶¶ 3-6, Exs. 1-4.) That court ultimately sustained

the defendants’ demurrers without leave to amend and dismissed the case with prejudice. Liao

unsuccessfully attempted to get the court to revisit certain orders in that case. (Id.; see also

Carradero ¶ 7, Ex. 5.) She appealed, but the Court of Appeal granted the respondent’s motion

to dismiss the appeal. (Id., ¶ 8, Ex. 6.)

On March 4, 2004, Liao filed a complaint against Michael Laurensen, who represented

Mr. Cahill in the original Cahill litigation, and the San Francisco Superior Court, captioned

Liao v. San Francisco Superior Court, No. CGC-04-429421 (the “Laurensen litigation”). In

that case, Liao asserted that the orders sustaining demurrers and the judgment in the Cahill

litigation should be declared void. (Carradero Decl., ¶¶ 9-11, Exs. 7-9.) Liao also alleged that

Mr. Laurenson had made fraudulent statements to the court and that the court acted improperly

when it entered orders and dismissed the original Cahill litigation. (See, e.g., Carradero, Ex. 8

at ¶¶ 4-22.) The court sustained defendants’ demurrers, without leave to amend, and it also

granted a motion declaring Liao a vexatious litigant. When Liao failed to post the required

security to pursue the case, the court entered an order of dismissal and judgment. Liao also

filed several motions, in which she asked the court to reconsider earlier orders. (Id.,¶¶ 9, 12-13,

Exs. 7, 10-11.) Liao also was unsuccessful in her efforts to appeal those rulings. (Id. ¶¶ 14-15,

Ex. 13.) See also Liao v. Laurenson, 2005 Cal. App. Unpub. LEXIS 5029 (Cal. App. June 9,

2005).1

On June 23, 2003, Liao filed her first lawsuit in this District, Liao v. Cahill, No. 03-cv-

2906-SBA (the “second Cahill litigation”). (Carradero Decl., ¶ 16, Ex. 14 (Docket Sheet))

Judge Armstrong presided over that case, and she ultimately dismissed it and denied several

motions for relief from judgment. (Id.; see also id. ¶ 17, Ex. 15.) Liao also appealed orders


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282 These orders are attached as Exhibits 21-24 to the Carradero Declaration.

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issued in the second Cahill litigation, but the Ninth Circuit dismissed the appeals for failure to

prosecute. (Id., ¶¶ 19-20, Exs. 17-18.)

On May 9, 2005, Liao filed her second lawsuit in this District, Liao v. Quidachay, No.

05-cv-1888-CW (the “Quidachay litigation”). (Id., ¶¶ 21-22, Exs. 18-19.) In the Quidachay

litigation, Liao alleged, inter alia, that the defendants “engage[d] in a cover up” and sabotaged

the original Cahill litigation. She also claimed that the defendants violated her rights to due

process, equal protection and access to the courts. (See, e.g., Carradero Decl., Ex. 19 (First

Amended Complaint, ¶ 5).) Ultimately, the court dismissed the Quidachay litigation. Liao also

filed three motions in that case, in which she asked Judge Wilken, who was presiding over the

case, to recuse herself. The court also denied those motions. (Id. ¶ 21, Ex. 18.) See also Liao

v. Quidachay, 2005 U.S. Dist. LEXIS 42097 (N.D. Cal. Oct. 12, 2005); Liao v. Quidachay,

2006 U.S. Dist. LEXIS 81094 (N.D. Cal. Oct. 25, 2006); Liao v. Quidachay, 2007 U.S. Dist.

LEXIS 8060 (N.D. Cal. Jan 24, 2007); Liao v. Quidachay, 2007 U.S. Dist. LEXIS 30825 (N.D.

Cal. April 11, 2007).2 Liao appealed orders issued in the Quidachay litigation. However, the

Ninth Circuit dismissed those appeals for lack of jurisdiction and for failure to prosecute. The

Supreme Court also denied Liao’s petition for a writ of certiorari. (Carradero Decl., ¶¶ 27-31,

Exs. 25-29.)

On June 4, 2008, Liao filed her third lawsuit in this district, Liao v. Ashcroft, 08-cv-

2776-PJH (the “Ashcroft litigation”). (Id., ¶¶ 32-34, Exs. 30-32.) Liao named as defendants,

among others, former Attorney Generals John Ashcroft and Roberto Gonzales, Robert Mueller,

Director of the Federal Bureau of Investigation, the San Francisco Superior Court, Mr.

Laurenson, and Judges Armstrong and Wilken, and CNN. Liao described the nature of the

action as a

constitutional, civil, and human rights case challenging the raciallymotivated refusals by United States government and California officials toinvestigate my criminal complaints, and the conspiracy by federal justiceadministrative officials with the US major media to place a secret priorrestraint on my Internet free speech about my human rights case withoutdue process of law in purpose to cover up my human rights cases againstthe US, etc.


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3 This order is attached as Exhibit 33 to the Carradero Declaration.

4 These orders are attached as Exhibits 34 and 35 to the Carradero Declaration.



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(Carradero Decl., Ex. 32 (First Amended Complaint, ¶ 1).) Judge Armstrong initially presided

over the Ashcroft litigation, and Liao moved to disqualify her on the basis that she had presided

over the second Cahill litigation. Judge Armstrong denied that motion and issued an order

admonishing Liao to serve the defendants. See Liao v. Ashcroft, 2008 U.S. Dist. LEXIS 103251

(N.D. Cal. Dec. 22, 2008).3

Thereafter, Liao amended the complaint to include Judge Armstrong as a defendant, and

filed additional motions seeking to disqualify Judge Armstrong. Judge Armstrong eventually

recused herself from the case, and the Ashcroft litigation was reassigned to Judge Hamilton.

(See Carradero Decl., ¶ 32, Ex. 30.) On March 11, 2009, Judge Hamilton issued an order

dismissing the claims against many of the defendants, on the basis that Liao had not properly

served them. Judge Hamilton also granted CNN’s motion to dismiss, with leave to amend, on

the basis that Liao had not alleged facts to show that CNN was a state actor and, thus, Liao

failed to state a claim under 42 U.S.C. § 1983. Liao v. Ashcroft, 2009 U.S. Dist. LEXIS 23741

(N.D. Cal. Mar. 11, 2009); Liao v. Ashcroft, 2009 U.S. Dist. LEXIS 23410 (N.D. Cal. Mar. 11,

2009).4 Liao also filed several motions seeking relief from Judge Hamilton’s orders and asked

Judge Hamilton to recuse herself. (Carradero Decl., ¶ 32, Ex. 30.) See also Liao v. Ashcroft,

2009 U.S. Dist. LEXIS 36197 (N.D. Cal. April 16, 2009).5 Judge Hamilton also: granted Judge

Armstrong’s motion to dismiss, with prejudice, on the basis that she was absolutely immune

from suit; dismissed, with prejudice, claims against U.S. House of Representative Christopher

Smith; and dismissed, with prejudice, the claims against CNN because Liao failed to amend her

complaint. See Liao v. Ashcroft, 2009 U.S. Dist. LEXIS 37537 (N.D. Cal. April 21, 2009).6

Judge Hamilton granted Deputy A.G. Yu, motion to dismiss, with prejudice, on the basis that,

inter alia, she too was immune from suit. Liao v. Ashcroft, 2009 U.S. Dist. LEXIS 41901 (N.D.


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Cal. May 15, 2009).7 Liao also filed a notice of appeal, but the Ninth Circuit dismissed for

failure to prosecute. (Carradero Decl., ¶¶ 41-42, Exs. 39-40.)

On May 23, 2011, Liao filed the original complaint in this action. The procedural

history and factual background pertaining to this case are set forth in the Court’s Order granting

motions to dismiss filed by CNN, Dow Jones & Company, Inc. (“Dow Jones”), and the United

States, issued this date.

The Court has considered the United States’ declaration and request for judicial notice,

which provides the listing, set forth above, of Liao’s state court complaints, the three earlier-

filed actions District, and the case at bar. The Court concludes that there is an adequate record

for review.

3. The Frivolous or Harassing Nature of Liao’s Actions.

“The third factor set forth by De Long gets to the heart of the vexatious litigant analysis,

inquiring whether the district court made substantive findings as to the frivolous or harassing

nature of the litigant’s actions.” Molski, 500 F.3d at 1059 (quoting De Long, 912 F.2d at 1148,

in turn quoting In re Powell, 851 F.2d 427, 431 (D.C. Cir. 1988)) (internal quotation marks

omitted). In order to make this determination, the Court looks at the number of filings as well

as the content of those filings. Id. (citing DeLong, 912 F.2d at 1148; Powell, 851 F.2d at 431).

“‘An injunction cannot issue merely upon a showing of litigiousness. The plaintiff’s claims

must not only be numerous, but also be patently without merit.’” Id. (quoting Moy v. United

States, 906 F.2d 467, 470 (9th Cir. 1990).

Liao argues that the United States exaggerates the number of cases that are pending.

According to Liao, her two state cases and two of her four federal cases were dismissed because

of purported frauds and conspiracies among the defendants in those cases. Thus, according to

Liao, the judgments in those cases should be considered null and void. (See Docket No. 78

(Opp. Br. at 2:18-3:2).) Liao’s argument does not aid her cause, and the Court finds it entirely

unpersuasive.


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As set forth above, Liao has demonstrated a pattern of filing a new case or adding new

defendants to an existing case when she obtains unfavorable outcomes. Liao also continues to

name judges and court employees as defendants, in spite of the fact that courts have dismissed

those claims on the basis of judicial immunity and in spite of the fact that courts have rejected

her arguments that the judicial defendants acted in excess of their jurisdiction. See, e.g, Liao v.

Ashcroft, 2009 U.S. Dist. LEXIS 37537 (N.D. Cal. April 21, 2009); Liao v. Quidachay, 2005

U.S. Dist. LEXIS 42097 (N.D. Cal. Oct. 12, 2005). Liao’s actions in this case are consistent

with this behavior. For example, when Judge Alsup denied her request to appear by telephone,

she added him as a defendant. Similarly, Liao attempts to bring an “independent action” to

obtain relief from the judgment in the Ashcroft litigation, and she alleges that the Clerk of Court

of the Ninth Circuit Court of Appeals was responsible, at least in part, for the dismissal of the

appeal in the Ashcroft litigation.

In addition, Liao has been warned in the past about the rules regarding service. Indeed,

Judge Hamilton dismissed many of the defendants in the Ashcroft litigation on the basis that

Liao failed to properly serve them under Federal Rule of Civil Procedure 4. Liao received

similar warnings in this case but still failed to properly serve the defendants.

The Court has carefully considered the materials submitted by the United States,

documenting the number and nature of Liao’s filings in state court and in this Court, and it

concludes that Liao is more than just litigious. Rather, her conduct has become harassing and

her claims are frivolous.

4. Narrowly Tailored Order.

“The fourth and final factor in the De Long standard is that the pre-filing order must be

narrowly tailored to the vexatious litigant’s wrongful behavior.” Molski, 500 F.3d at 1061. The

United States asks that the Court require Liao to make an application to the undersigned judge

or another judge designated by the Chief Judge of the Northern District of California for review.

The Court finds that this request is appropriate, and it shall set forth the specifics of this order

below.


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The United States also suggests that the Court require Liao to include with a proposed

filing “evidence that supports the allegations” and the propriety of the proposed filing. The

United States also asks that the Court order Liao to send her application and proposed filing by

overnight mail to any defendant named in the action, who would then be given an opportunity

to respond. Finally, the United States asks that the Court to preclude Liao from proceeding in

forma pauperis. The Court finds that these requests are overbroad, unworkable and likely to

spawn further litigation, a result the United States seeks to avoid. Therefore, the Court shall not

include these requirements in its order.

CONCLUSION

For the foregoing reasons, the Court GRANTS the United States motion to declare

Plaintiff, Wanxia Liao, a vexatious litigant. The Clerk of this Court may not file or accept any

further complaints filed by or on behalf of Wanxia Liao that names any of the defendants named

in this case or in Liao v. Cahill, No. 03-cv-2906-SBA; Liao v. Quidachay, No. 05-cv-1888-CW,

or Liao v. Ashcroft, 08-cv-2776-PJH. The Clerk also shall not accept any further complaints

filed by or on behalf of Wanxia Liao that arise out or relate to claims asserted in this case or any

of those actions. If Ms. Liao wishes to file a complaint, she must submit a copy of her proposed

complaint, a letter requesting that the complaint be filed, and a copy of this Order, to the Clerk

of this Court. The Clerk shall then forward the letter, the complaint, and a copy of this Order to

the General Duty Judge for a determination whether the complaint should be accepted for filing.

If the General Duty Judge is a judge that has been previously named as a defendant in these

cases, the Court recommends that the General Duty Judge direct that the request for prefiling

review be randomly assigned to another District Judge. Any action filed in contravention of

this Order will be subject to dismissal.

IT IS SO ORDERED.

Dated: April 16, 2012 JEFFREY S. WHITEUNITED STATES DISTRICT JUDGE


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US federal court declared me as a "vexatious litigant" for suing US government