Anne Block v. Washington State Bar Assoc. ( 2021 )

FILED
NOT FOR PUBLICATION
JUL 2 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNE BLOCK, No. 18-35690
Plaintiff-Appellant, D.C. No. 2:18-cv-00907-RSM
v.
MEMORANDUM*
WASHINGTON STATE BAR
ASSOCIATION; et al.,
Defendants-Appellees.
ANNE BLOCK, No. 20-35025
Plaintiff-Appellant, D.C. No. 2:15-cv-02018-RSM
v.
WASHINGTON STATE BAR
ASSOCIATION; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted June 8, 2021**
Seattle, Washington
Before: W. FLETCHER, WATFORD, and COLLINS, Circuit Judges.
Anne Block has filed several actions alleging that various state and local
government entities, officials, and individuals, including the Washington State Bar
Association (“WSBA”), targeted her in order to stop her from exposing
government wrongdoing and cover-ups. These prior actions were dismissed, and
two of those dismissals were affirmed by this court. See, e.g., Block v. Snohomish
County, 733 F. App’x 884 (9th Cir. 2018); Block v. WSBA, 761 F. App’x 729 (9th
Cir. 2019).
In connection with one of those prior dismissals, the district court sua sponte
imposed a vexatious litigant bar (hereinafter the “Initial Bar Order”). Block v.
WSBA, 2016 WL 1464467 (W.D. Wash. Apr. 13, 2016). Block appealed the Initial
Bar Order. Before this court ruled on that appeal, Block filed a new cause of
action in the Middle District of Pennsylvania. That action was transferred to the
Western District of Washington and then dismissed pursuant to the Initial Bar
Order. After that dismissal, this court ruled on the appeal in the earlier case and
vacated the Initial Bar Order for lack of notice. Block, 761 F. App’x at 731. On
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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remand in that case, the district court reimposed the vexatious litigant pre-filing
order (hereinafter the “Reimposed Bar Order”), which is identical to the Initial Bar
Order.
We have two appeals before us. We address them in turn.
20-35025 Appeal
This court vacated the “Initial Bar Order” for lack of notice. Block, 761 F.
App’x at 731. On remand, Judge Martinez reimposed the vexatious litigant
prefiling order. Block appeals the Reimposed Bar Order.
Before imposing a vexatious litigant bar, a district court must:
(1) give litigants notice and “an opportunity to oppose the order
before it [is] entered”; (2) compile an adequate record for appellate
review, including “a listing of all the cases and motions that led the
district court to conclude that a vexatious litigant order was needed”;
(3) make substantive findings of frivolousness or harassment; and (4)
tailor the order narrowly so as “to closely fit the specific vice
encountered.”
Ringgold-Lockhart v. County of L.A., 761 F.3d 1057, 1062 (9th Cir. 2014) (quoting
De Long v. Hennessey, 912 F.2d 1144, 1147–48 (9th Cir. 1990)). We strictly
enforce these four requirements because this type of order affects a litigant’s
fundamental right to access the courts. See id. at 1061.
(1) There is no dispute that Block had adequate notice and an opportunity to
oppose the order on remand.
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(2) The district court had an adequate record. “An adequate record for
review should include a listing of all the cases and motions that led the district
court to conclude a vexatious litigant order was needed.” De Long, 912 F.2d at
1147. Here, to show why a vexatious litigant bar was necessary, the district court
referred to the long list of cases identified in opposing counsel’s declaration that
were previously dismissed, including two in which fees were awarded for frivolous
litigation. See Block, 733 F. App’x at 889 (affirming district court order
concluding that Block’s claims were “entirely groundless and frivolous” and
awarding fees under 42 U.S.C. § 1988); Block, 761 F. App’x at 730 (affirming
Rule 11 sanctions). Moreover, contrary to Block’s contention that the emails
attached to the Soto declaration are barred under Federal Rule of Evidence 408, the
emails do not seriously attempt to settle any action, but instead threaten Defendants
with additional action. Because the emails were offered to prove Block’s pattern
of harassment, they were not offered “to prove or disprove the validity or amount
of a disputed claim or to impeach,” as is required under the rule. Fed. R. Evid.
408(a).
(3) Before a district court may issue a pre-filing injunction against a pro se
litigant, it must make “substantive findings as to the frivolous or harassing nature
of the litigant’s actions.” De Long, 912 F.2d at 1148 (quotation marks and citation
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omitted). To make such findings, the district court needs to look at “both the
number and content of the filings as indicia” of the frivolousness of the litigant’s
claims. Id. (quotation marks and citation omitted). Here, the district court noted
that Block continued to send harassing emails threatening additional frivolous
litigation. In addition, Block has filed numerous unmeritorious suits, some of
which were expressly found to be frivolous. These facts demonstrate the frivolous
and harassing nature of Block’s actions.
(4) The vexatious litigant order must be “narrowly tailored” to the vexatious
litigant’s wrongful behavior. The district court’s order is narrowly tailored. Block
is not prevented from filing a lawsuit; she is only subject to a pre-filing order that
requires a prescreening review to ensure that she does not continue to re-litigate
claims. Block is free to file potentially meritorious claims. See Molski v.
Evergreen Dynasty Corp., 500 F.3d 1047, 1061 (9th Cir. 2007). Block argues the
order is not narrowly tailored because Judge Martinez did not consider alternatives
to the vexatious litigant order. As support, she relies on Safir v. U.S. Lines, Inc.,
792 F.2d 19 (2d Cir. 1986). While the Safir factors may provide a “helpful
framework” for analyzing the third and fourth De Long factors, the Safir factors
have never been adopted by the Ninth Circuit. Molski, 500 F.3d at 1057–58. But,
in any event, they would not warrant a different outcome here.
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We therefore conclude that the district court properly reimposed the
vexatious litigant order. We affirm the court’s order in appeal No. 20-35025.
18-35690 Appeal
Block filed her 18-35690 action in the Middle District of Pennsylvania. She
requests that the case be “remanded back to the third circuit for litigation to
proceed there.” This court lacks jurisdiction to review the Pennsylvania district
court’s transfer order. See Posnanski v. Gibney, 421 F.3d 977, 978, 980 (9th Cir.
2005). Accordingly, her request to remand is denied.
Block seeks to disqualify Judge Martinez from hearing her case based on his
membership in the WSBA. This court has already rejected this argument. See
Block, 761 F. App’x at 730. We again reject it in this appeal. Block supports
neither her argument that Judge Martinez is biased or prejudiced against her, nor
her argument that he has an economic interest in the outcome of the litigation. See
Riss v. Angel, 934 P.2d 669, 682 (Wash. 1997) (“[T]here is considerable authority
that the member of a nonbusiness nonprofit unincorporated association is
liable . . . for torts only if the member participated in or ratified the action resulting
in liability.”); DeNardo v. Municipality of Anchorage, 974 F.2d 1200, 1201 (9th
Cir. 1992) (“The fact that a plaintiff sues a bar association does not require recusal
of judges who are members of that bar association.”).
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Judge Martinez was properly assigned to Block’s action. The district court
clerk had authority to reassign this case to Judge Martinez. While 28 U.S.C. § 137provides that work must be divided among the judges of the court; it does not
mandate how labor is divided. There is no appearance of impropriety. Judge
Martinez was properly assigned to Block v. WSBA because it is a related case to
Block’s previous case. See W.D. Wash. Civ. L.R. 3(g).
Although the district court dismissed this action under the Initial Bar Order,
the terms of the Reimposed Bar Order are identical, and we have affirmed that
reimposed order. No purpose would be served by remanding the case for the
ministerial purpose of dismissing it again under the identically worded Reimposed
Bar Order. Under the now-validated terms of the bar order, the district court
properly dismissed Block’s complaint.
We affirm the court’s orders in appeal No. 18-35690.
AFFIRMED.1
1
In 18-35690, the motion for judicial notice (DE 84) is GRANTED, but the
first motion for judicial notice (DE 37), the motion to file a supplemental brief (DE
86), the motion for reconsideration of the clerk’s order denying the motion to
extend (DE 121), and the motion to consolidate cases (DE 122) are DENIED. In
20-35025, the motion to allow for correction of excerpts of record (DE 70) is
GRANTED, but the motion to extend the time to file a reply brief and the motion
to consolidate cases (DE 77, 78) are DENIED.
7