F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 8, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DONALD JOHNSON; MERRIE
LING; JAYE GORDON,
Plaintiffs,
No. 03-4219
and (D.C. No. 2:97-CV-951-TS)
(D. Utah)
HOLLI LUNDAHL; KASSI
LUNDAHL; KELLI LUNDAHL,
Plaintiffs-Appellants,
v.
NANCY WEIBEN STOCK; EMPIRE
OF AMERICA; CALIFORNIA
FRANCHISE TAX BOARD;
MARCH FONG EU, Secretary of
State; GERALD, Commissioner, in
his personal capacity; LORRAINE
ALTHEA WELLS; EVE CHAPLIN;
PATRICIA DEVLIN, in her personal
capacity; STACEE NELSON, in her
personal capacity; LOS ANGELES
COUNTY; AETNA CASUALTY
AND SURETY COMPANY;
CALIFORNIA IRONWORKERS
HEALTH & WELFARE PLAN;
PATRICIA RICH, in her personal
capacity; THOMPSON AND
COLGATE; RAY BICKNELL, in his
personal capacity; CHA BIC, CORP.;
THERESA MCDEVITT, in her
personal capacity,
Defendants,
and
SOURCE ONE MORTGAGE
SERVICE; LORI PIVO;
CONTINENTAL ASSURANCE
COMPANY, also known as CNA
Insurance, Inc.; STEPHEN
CUNNISON, Honorable; VICTOR
MICELLI; COUNTY OF
RIVERSIDE; KENT LIVINGSTON,
in his personal capacity; UNITED
STATES OF AMERICA; GENERAL
SERVICES
ADMINISTRATION/FEDERAL
PROTECTIVE SERVICE;
INTERNAL REVENUE SERVICE;
HAROLD GRIMES; FRED
TILLMAN; GEORGE SANTOS;
JESSE GONZALES, also known as
Jesse Lemeli; CHRISTINA
JOHNSON; EARL ESTRADA;
GREG ESTES; ANNE TRAN;
DAREN LEON; GEORGE YEE;
WILLIAM SMITH; STEVEN
LINICK; JACK WEISS; BUREAU
OF PRISONS; W. LESTER also
known as W. VOGEL; R.
BUSTAMANTE; S. DOBBS; JUDGE
ROBERT J. TIMLIN; MAGISTRATE
JUDGE BRIAN ROBBINS; JUDGE
LORDES G. BAIRD; CATHY
CATERSON; JERI CURTIS;
GABRIELLA DOE, also known as
Gabriella Van Allen; PETER SHAW;
PROFESSIONAL RISK
MANAGEMENT; POTTS, Officer;
CORBETT, Officer; HAMILTON,
Sergeant; FULLERTON POLICE
DEPARTMENT; PRUDENTIAL
ASSET MANAGEMENT
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COMPANY, INC.; ROYALE
HEALTH CARE; ; BARNEY
UNGERMANN AND ASSOCIATES;
ANGELA SABERI; ROXANNE
TAKEUCHI; ELI LILLY & CO.,
INC; MORRIS, POLICH & PURDY;
CONNIE ELLIANO; MOONRAKER
APARTMENTS; VERIZON
CALIFORNIA INC., formerly known
as GTE; CAROL HUMISTON; CITY
OF GARDEN GROVE;
MURTAUGH, MILLER, MEYER
AND NELSON; TRAVELERS
INSURANCE COMPANY;
ADVANCED CARDIOVASCULAR
SYSTEMS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , KELLY , and McCONNELL , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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Plaintiffs filed this action in the District of Utah against dozens of federal,
state, and private defendants, alleging causes of action ranging from civil rights
claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics ,
403 U.S. 388 (1971) and 42 U.S.C. § 1983 to antitrust violations to state law tort
claims. They appeal from interlocutory orders dismissing certain defendants
named in their 171-page first amended complaint, and from the district court’s
ultimate order dismissing their action for failure to prosecute. We affirm the
dismissals, deny all pending appellate motions, enter proposed filing restrictions
against plaintiffs, and vacate as moot our previously-issued order to show cause
concerning alleged fraud upon the court.
MERITS OF APPEAL
Plaintiffs raise the following issues on appeal:
1. Federal District Judge Tena Campbell was mandatorily disqualified from
sitting on this case, and therefore all orders she entered were void as a matter of
law.
2. Plaintiffs’ Federal Tort Claims Act (FTCA), tax injunction and Quiet
Title Act claims against the United States should not have been dismissed for
failure to comply with administrative filing requirements.
3. Individual federal defendants named in the action should not have been
dismissed for lack of personal jurisdiction.
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4. The district court should not have dismissed defendants on the basis of
res judicata.
5. The district court should not have dismissed defendants on the basis of
statute of limitations.
6. The district court should not have dismissed defendants for lack of
personal jurisdiction.
7. The district court should not have dismissed claims against Eli Lilly &
Company, Inc., for improper venue.
8. The district court should not have dismissed plaintiffs’ Administrative
Procedures Act (APA) claims against the State of California.
9. The district court erred in entering certain rulings while the case was
subject to an automatic stay created due to Holli Lundahl’s bankruptcy.
10. Clerks of court committed Westfall Act violations by failing to enter
default judgments against certain defendants.
Having reviewed the briefs, pertinent portions of the record, and the
applicable law in light of the pertinent standards of review, this court affirms the
challenged orders of the district court and the dismissal of this case, for
substantially the same reasons stated by the district court.
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PENDING MOTIONS
An extraordinary number of motions have been filed in this appeal. The
internal docket for the appeal contains over 350 entries, a quantity highly unusual
in appellate litigation. Motions pending on this court’s docket include motions to
strike, motions for permission to file over-length briefs, motions to supplement
the record, motions to dismiss the appeal, and motions to impose filing
restrictions and/or sanctions. Many of these motions include voluminous
appendices, affidavits and accompanying memoranda. Upon consideration, we
have determined that none of the motions affect the disposition of this appeal and
that each of these motions should be denied. Therefore, all pending motions are
denied.
FILING RESTRICTIONS
Federal courts have the inherent power to regulate the activities of abusive
litigants by imposing carefully tailored restrictions under appropriate
circumstances. Tripati v. Beaman , 878 F.2d 351, 352 (10th Cir. 1989).
Injunctions restricting further filing are appropriate where (1) the litigant’s
lengthy and abusive history is set forth; (2) the court provides guidelines as to
what the litigant may do to obtain its permission to file an action; and (3) the
litigant receives notice and an opportunity to oppose the court’s order before it is
implemented. See id. at 353-54.
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1. Lengthy and abusive filing history
Plaintiffs (hereafter meaning those plaintiffs in the district court who are
named as appellants in this appeal), and in particular plaintiff Holli Lundahl, have
a lengthy and abusive history of filing frivolous, prolix and vexatious actions and
pleadings, both in this court and in other state and federal courts. Ms. Lundahl’s
litigation tactics, in which the other plaintiffs have participated in this case, have
not escaped notice by the courts before which she has appeared. The Utah
Supreme Court, for example, noted that in approximately four years, Ms. Lundahl
filed nineteen appeals, four writ petitions, two petitions for certiorari, and two
petitions for interlocutory appeal before that court. Lundahl v. Quinn , 67 P.3d
1000, 1001 (Utah 2003). That court opined that her filings were “routinely
frivolous” and “brought with the apparent purpose, or at least effect, of
harassment, not only of opposing parties, but of the judicial machinery itself.” Id.
at 1002. Noting Ms. Lundahl’s “history of consuming judicial resources without
demonstrating adequate legal justification,” id. at 1005, the Utah Supreme Court
imposed restrictions on her future filings, including making future fee waivers
conditional upon compliance with that state’s rules of appellate procedure.
The Ninth Circuit has also imposed pre-filing restrictions on Ms. Lundahl,
In re Lundahl , No. 97-80258 (9th Cir. Jul. 17, 1997) (order imposing pre-filling
review), as has the United States District Court for the District of Utah, see In re
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Lundahl (D. Utah July 8, 2004) (general order imposing filing restrictions), and
the United States Supreme Court, see Lundahl v. Eli Lilly & Co. , 73 USLW 3631,
2005 WL 461288 (U.S. Apr. 25, 2005). In her most recent maneuver,
Ms. Lundahl sought to “remove” cases filed in California and Utah to the district
of Idaho; that court not only resisted her attempt at forum-shopping, it also denied
her leave to proceed in forma pauperis, finding that she is a vexatious litigant.
See Los Angeles Home-Owners Aid Inc. v. Lundahl , No. Civ. 05-126-E-BL-W,
2005 WL 1140649, at *3-*4 (D. Idaho May 13, 2005).
This court has previously dismissed a number of appeals filed by Lundahl
as frivolous or meritless. Lundahl v. Lewis , Nos. 04-4038, 04-4039, 2005 WL
984400, at *1 (10th Cir. Apr. 28, 2005) (denying IFP “[b]ecause we deem these
matters frivolous” and dismissing appeals); Lundahl v. Robbins , No. 04-4236,
2005 WL 984486 (10th Cir. Apr. 28, 2005) (denying IFP and dismissing appeal);
Lundahl v. Fireman’s Fund Ins. Co. , No. 04-4243, 2005 WL 984490, at *1 (10th
Cir. Apr. 28, 2005) (same; noting that “Ms. Lundahl’s arguments border on
specious” and that her “pattern of vexatious litigation may warrant the imposition
of sanctions or other restrictions”).
In the present action, Lundahl filed a complaint substantially similar to one
pending in the California federal courts. She also filed a separate action in Utah
for relief from the California judgments under Rule 60(b), Lundahl v. Compton ,
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No. 99-CV-15 (D. Utah) , in which she attempted to create a colorable basis for
jurisdiction over California defendants by advancing the frivolous argument that
the defendants were agents or instrumentalities of a “foreign” state (i.e.,
California) within the meaning of the Foreign Sovereign Immunities Act,
28 U.S.C. § 1602(b), and the Torture Victim Protection Act, id. § 1350. She also
filed a third action for Rule 60(b) relief in Utah, later consolidated with this case,
containing similar claims and assertions. Lundahl v. United States , No. 98-CV-
639 (D. Utah). The costs of this duplicative litigation, often pursued in forma
pauperis by plaintiffs, have been enormous. 2
Additionally, Lundahl’s complaint in the present action, along with her
parallel complaints in the Utah district court, are replete with fanciful,
implausible and bizarre factual assertions. Her legal claims, including antitrust
claims, are virtually all meritless. If there is a viable argument lurking within one
of the claims, it is obscured by Ms. Lundahl’s abusive litigation practices.
Lundahl has named opposing attorneys, judges, court clerks, and other
court personnel as defendants, accusing them of joining in a massive conspiracy
against her. In this court, she has requested, among other things, that oral
2
Defendants Eli Lilly and Company, Inc. and Advanced Cardiovascular
Systems, Inc. have informed this court in a signed pleading that their legal costs
alone to date in defending against Ms. Lundahl’s claims exceed one million
dollars.
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argument be conducted on all pending motions and that a media consultant be
present to videotape such oral arguments for purposes of broadcast. Her
vexatious litigiousness has resulted in an immense waste of judicial resources.
“The right of access to the courts is neither absolute nor unconditional, and there
is no constitutional right of access to the courts to prosecute an action that is
frivolous or malicious.” Winslow v. Hunter (In re Winslow) , 17 F.3d 314, 315
(10th Cir. 1994) (quotation omitted).
2. Filing restrictions to be imposed
Because plaintiffs, and in particular plaintiff Holli Lundahl, have abused
the appellate process, we impose the following reasonable filing restrictions upon
them, see id. at 315-16, subject to their opportunity to file written objections as
we outline below. 3
If the written objections are overruled, plaintiffs or any of
them, individually or collectively, will be ENJOINED from proceeding as
petitioners in an original proceeding or as appellants in this court unless they are
3
Although plaintiffs other than Ms. Lundahl were apparently not personally
involved in many of the previous actions in which filing restrictions were
imposed against Ms. Lundahl, we cannot exclude them from the present order
because to do so would create a large loophole for continued abuse of the courts
through surrogate litigation by Ms. Lundahl. Ms. Lundahl has used these
plaintiffs to engage in her practice of frivolous litigation. To the extent that these
plaintiffs may have legitimate claims separate and apart from those of
Ms. Lundahl that they wish to pursue in this court, the guidelines we announce for
future filings will permit the clerk of this court as gatekeeper to permit such
actions to go forward. Moreover, plaintiffs are to be given notice of this order
and an opportunity to respond to it.
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represented by a licensed attorney admitted to practice in this court or unless they
first obtain permission to proceed pro se. To obtain permission to proceed pro se,
plaintiffs must take the following steps:
1. File a petition with the clerk of this court requesting leave to file a pro se
action;
2. Include in the petition the following information:
A. A list of all lawsuits currently pending or filed previously with this
court, including the name, number, and citation, if applicable, of each case, and
the current status or disposition of the appeal or original proceeding; and
B. A list apprising this court of all outstanding injunctions or orders
limiting plaintiffs’ access to federal court, including orders and injunctions
requiring plaintiffs to seek leave to file matters pro se or requiring them to be
represented by an attorney, including the name, number, and citation, if
applicable, of all such orders or injunctions; and
3. File with the clerk a notarized affidavit, in proper legal form, which
recites the issues they seek to present, including a short discussion of the legal
basis asserted therefor, and describing with particularity the order being
challenged. The affidavit also must certify, to the best of plaintiffs’ knowledge,
that the legal arguments being raised are not frivolous or made in bad faith, that
they are warranted by existing law or a good faith argument for the extension,
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modification, or reversal of existing law, that the appeal or other proceeding is
not interposed for any improper purpose such as delay or to needlessly increase
the cost of litigation, and that they will comply with all appellate and local rules
of this court.
These documents shall be submitted to the clerk of the court, who shall
forward them to the chief judge of this court. The chief judge or her designee
shall review the documents to determine whether to permit the pro se appeal or
other proceeding. Without the approval of the chief judge or her designee, the
matter will be dismissed. If the chief judge or her designee approves the
submission, an order will be entered indicating that the matter shall proceed in
accordance with the Federal Rules of Appellate Procedure and the Tenth Circuit
Rules.
3. Opportunity to be heard
Plaintiffs (meaning those plaintiffs in the district court who are named as
appellants in this appeal) shall have ten days from the date of this order to file
written objections, limited to fifteen pages, to these proposed sanctions. See
Winslow , 17 F.3d at 316-17. If plaintiffs do not file objections, the sanctions
shall take effect twenty days from the date of this order. Id. at 316-17. The filing
restrictions shall apply to any matter filed after that time. If plaintiffs do file
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timely objections, these sanctions shall not take effect until after this court has
ruled on those objections.
ORDER TO SHOW CAUSE
On November 9, 2004, this court entered an order to show cause why this
appeal should not be dismissed for fraud upon the court. Plaintiffs filed multiple
voluminous pleadings in response. While the panel remains unconvinced that the
challenged documents plaintiffs submitted to this court are genuine and/or
unaltered, the court concludes that judicial economy is best served by foregoing
the appointment of a special master and/or the institution of extensive hearings on
the fraud on the court issue at this time. Because affirmance is appropriate on the
merits, and because the filing restrictions proposed in this order are designed to
prevent further abuse of the litigation process in this court, the goals of deterring
fraud on the court and vindicating the dignity of this court are adequately served
by measures taken in this order. We therefore discharge the order to show cause
as moot.
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The judgment of the district court is AFFIRMED. All pending motions are
DENIED. Plaintiffs (appellants in this appeal) are ENJOINED from further
filings in accordance with the restrictions set out in this order and judgment,
subject to their opportunity to respond to the proposed filing restrictions as stated
herein. The order to show cause entered November 9, 2004 is DISCHARGED as
moot.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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