1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 PARNELL COLVIN, ) 4 ) Plaintiff, ) Case No.: 2:20-cv-00343-GMN-NJK 5 vs. ) ) ORDER 6 AHP REALTY LLC; QINGWEN KONG, ) 7 ) Defendants. ) 8 ) 9 Pending before the Court are the Motion to Dismiss, (ECF No. 5), and the Motion to 10 Declare Plaintiff a Vexatious Litigant, (ECF No. 6), filed by Defendant Qingwen Kong 11 (“Defendant”). Plaintiff Parnell Colvin (“Plaintiff”) filed a Response, (ECF No. 14), and 12 Defendant filed a Reply, (ECF No. 15). For the reasons discussed below, the Court GRANTS 13 Defendant’s Motion to Dismiss and DENIES the Motion to Declare Plaintiff a Vexatious 14 Litigant. 15 I. BACKGROUND 16 This case arises from Plaintiff’s allegations that Defendants have attempted to evict 17 Plaintiff from his residence without due process of law. (See Compl. 1:17–3:10, ECF No. 1). 18 Defendant moves to dismiss the Complaint for lack of subject matter jurisdiction because Las 19 Vegas Justice Court has exclusive jurisdiction over eviction disputes in Las Vegas, Nevada. 20 (Mot. Dismiss (“MTD”) 1:25–2:15, 5:1–20, ECF No. 5). Defendant also seeks to have Plaintiff 21 declared a vexatious litigant because Plaintiff has allegedly attempted to stay his eviction in bad 22 faith by initiating seven bankruptcy cases and two cases in federal district court. (See Mot. 23 Declare Plaintiff Vexatious Litigant (“Mot. Sanctions”) 4:6–6:7, ECF No. 6). 24 // 25 // 1 II. LEGAL STANDARD

(b)(1) 3 Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for lack of 4 subject matter jurisdiction. A motion to dismiss for lack of subject matter jurisdiction may take 5 one of two forms: either a “facial” or “factual” challenge. Thornhill Publishing Co. v. General 6 Tel. & Elec. Corp.,

, 733 (9th Cir. 1979). “In a facial attack, the challenger asserts 7 that the allegations contained in a complaint are insufficient on their face to invoke federal 8 jurisdiction.” Safe Air for Everyone v. Meyer,

(9th Cir. 2004). 9 Alternatively, “[a] factual challenge relies on affidavits or any other evidence properly before 10 the court to contest the truth of the complaint’s allegations.” Courthouse News Serv. v. Planet, 11

(9th Cir. 2014). When, as here, a court considers a “facial” attack made 12 pursuant to Rule 12(b)(1), it must consider the allegations of the complaint to be true and 13 construe them in the light most favorable to the plaintiff. Love v. United States,

, 14 1245 (9th Cir. 1989). 15 B. Vexatious Litigant Sanction 16 The All Writs Act,

(a), empowers federal district courts to enjoin 17 vexatious litigants who have a history of abusing the court’s limited resources. De Long v. 18 Hennessey,

(9th Cir. 1990). Under the All Writs Act, a district court can 19 order a person with lengthy histories of abusive litigation—a vexatious litigant—to obtain leave 20 of court before filing any future lawsuits. Molski v. Evergreen Dynasty Corp.,

, 21 1057 (9th Cir. 2007). 22 “Flagrant abuse of the judicial process cannot be tolerated because it enables one person

23 to preempt the use of judicial time that properly could be used to consider the meritorious 24 claims of other litigants.” De Long,

. However, the Ninth Circuit has 25 cautioned that vexatious litigant orders are an extreme remedy and should rarely be entered.

1 (citing Wood v. Santa Barbara Chamber of Commerce, Inc.,

, 1523–26 (9th Cir. 2 1984)). This is because such an order restricts access to the courts—the litigant’s “final 3 safeguard for vitally important constitutional rights.” Wood,

. “An injunction 4 cannot issue merely upon a showing of litigiousness. The plaintiff’s claims must not only be 5 numerous, but also be patently without merit.” Moy v. United States,

(9th 6 Cir. 1990). 7 In deciding whether to restrict a litigant’s access to the courts, “[u]ltimately, the question 8 the court must answer is whether a litigant who has a history of vexatious litigation is likely to 9 continue to abuse the judicial process and harass other parties.” Molski v. Mandarin Touch 10 Rest.,

, 863–64 (C.D. Cal. 2004) (quoting Safir v. United States Lines, Inc., 11

(2d Cir. 1986)). “In doing so, the court should examine five factors: (1) the 12 litigant’s history of litigation and in particular whether it entailed vexatious, harassing, or 13 duplicative lawsuits; (2) the litigant’s motive in pursuing the litigation, e.g., does the litigant 14 have an objective good faith expectation of prevailing?; (3) whether the litigant is represented 15 by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an 16 unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be 17 adequate to protect the courts and other parties.” Id. at 864. 18 III. DISCUSSION 19 The Court’s below discussion first addresses its subject matter jurisdiction over the case 20 before considering whether to designate Plaintiff a vexatious litigant. 21 A. Subject Matter Jurisdiction 22 Defendant argues that the Court lacks subject matter jurisdiction over the case because

23 Las Vegas Justice Court has exclusive jurisdiction to hear Plaintiff’s challenge to his eviction. 24 (MTD 5:15–17). Plaintiff responds that this Court has jurisdiction over his case because his 25 1 Complaint asserts claims for civil rights and due process violations. (Pl.’s Resp. 1:22–25, ECF 2 No. 14). 3 Although federal courts have jurisdiction over claims arising under federal law, see 28

, Plaintiff’s Complaint does not state a cognizable federal cause of action despite 5 his assertion that Defendants’ tactics violate his constitutional rights. Plaintiff’s claims allege 6 that Defendants have not complied with state law in attempting to evict him from his residence. 7 (See Compl. 2:7–3:4, ECF No. 1). Plaintiff’s claims, while cloaked in the language of federal 8 civil rights, exclusively implicate matters of landlord-tenant law, which arise under state law. 9 See, e.g., Los Cabos 1 v. Ross, No. 2:16-cv-00817-GMN-GWF,

182962,

, at *2 (D. Nev. Oct. 14, 2016) (explaining that the Court lacked 11 jurisdiction over alleged eviction-related due process violations “[b]ecause landlord-tenant 12 disputes are matters of state law they cannot form the basis for federal question jurisdiction.”); 13 Thompson v. Wells Fargo, Inc., 2:08-cv-01227-RCJ-GWF,

, at 14 *5–*6 (D. Nev. July 14, 2009); cf. Powers v. United States Postal Service,

, 1045 15 (7th Cir. 1982) (“a federal common law of landlord and tenant does not exist.”); Evans v. 16 Sentry Property Management Corp.,

(D. Mass. 1994) (“A tenant’s claims 17 arising out of a landlord-tenant relationship were state law claims not subject to removal under 18 federal question jurisdiction, even if the housing authority received federal funding.”). 19 Therefore, the Court lacks jurisdiction over Plaintiff’s case, and the Court dismisses the 20 Complaint without prejudice. The Court next considers whether to designate Plaintiff as a 21 vexatious litigant. 22 B. Vexatious Litigant Sanction

23 Defendant seeks to have Plaintiff declared a vexatious litigant because Plaintiff has 24 allegedly lodged frivolous federal lawsuits and bankruptcy petitions in order to delay his 25 eviction. (Mot. Sanctions 5:7–6:7). Plaintiff responds that his bankruptcy petitions have 1 “nothing to do with defendants,” and Defendants could have sought relief from the automatic 2 stay to proceed with eviction. (Pl.’s Resp. 2:23–5). 3 The Court finds that Defendant has not met her burden to show that Plaintiff has acted 4 vexatiously. Defendant alleges that Plaintiff is delinquent by at least $26,000.00 in rent that 5 has been accruing since May of 2019, which Defendant corroborates with an “accounting 6 ledger,” attached to her Motion as Exhibit B. (See Mot. Sanctions 1:26–2:4, 3:24–27). 7 However, the ledger calculating Plaintiff’s delinquency—which appears to be a table generated 8 by Microsoft Word that has no surrounding context—is not a judicially noticeable document 9 and is not verified with a supporting affidavit. (See Ex. B to Mot. Sanctions, ECF No. 6-2). 10 Defendant also discloses Plaintiff’s seven prior bankruptcy proceedings, but only three of the 11 seven were filed after Plaintiff’s delinquent rent allegedly began to accrue. (See Pacer Case 12 Search Results, Ex. C to Mot. Sanctions, ECF No. 6-3) (showing only three cases initiated after 13 May of 2019). Additionally, Defendant provides no copies of the courts’ orders indicating why 14 Plaintiff’s previous bankruptcy cases, or his other case in federal district court, have been 15 dismissed. The Court is not inclined to issue a severe sanction against Plaintiff based on 16 inferences the Court may make about Plaintiff’s repetitive filings without evidence regarding 17 the merits of his claims. Accordingly, the Court denies without prejudice Defendant’s Motion 18 to Declare Plaintiff a Vexatious Litigant. 19 // 20 // 21 // 22 //

23 // 24 // 25 // 1 IV. CONCLUSION 2 IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, (ECF No. 5), is 3 GRANTED. 4 IT IS FURTHER ORDERED that Defendant’s Motion to Declare Plaintiff a Vexatious 5 Litigant, (ECF No. 6), is DENIED without prejudice. 6 The Clerk of Court shall close the case. 7 Dated this _2_8_ day of December, 2020. 8 9 ___________________________________ Gloria M. Navarro, District Judge 10 UNITED STATES DISTRICT COURT 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25