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MELINDA HAAG (SBN 132612) United States Attorney JOANN M. SWANSON (SBN 88143) Chief, Civil Division Victoria R. Carradero (SBN 217885) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-7181 Facsimile: (415) 436-6748 Email: victoria.carradero@usdoj.gov Attorneys for the United States of America

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WANXIA LIAO, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C-11-2494 JSW THE UNITED STATES OF AMERICAS REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER DECLARING PLAINTIFF VEXATIOUS LITIGANT AND FOR PREFILING SCREENING Date: April 6, 2012 Time: 9:00 a.m. Location: Courtroom 11, 19th Floor Judge: Honorable Jeffrey S. White

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I.

INTRODUCTION Plaintiff fails to adequately rebut the propriety of a prefiling order under the De Long test.

De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990). Instead, Plaintiff accuses the USA of outright lie[s], and devotes pages of her Opposition to facts that are entirely irrelevant under De Long. (Opp., 4, 5-30). In De Long, the Ninth Circuit established a four factor analysis to be applied when determining the propriety of a pre-filing order. 912 F.2d at 1147-49. Here, each of those factors weigh in favor of a pre-filing order against Plaintiff. First, Plaintiff does not dispute that she has had plenty of notice and opportunity to respond appropriately to this motion. Second, while Plaintiff claims that she has not filed numerous actions and further asserts that she has a constitutional right to file as many cases as she needs, (Opp., 7), the De Long test does not require a minimum threshold number of filings before one may be declared a vexatious litigant. Indeed, as discussed infra, courts have declared parties vexatious litigants for filing very few cases. Further, even if there were a threshold number, Plaintiff has far surpassed it. De Long considers the filing of both cases and motions. One need look no further than the docket for any one of Plaintiffs federal court actions, which reflect the shear volume of frivolous filings, which Plaintiff was admonished about by this Court. Carradero Decl., Ex. 15. Third, as evidenced by her recent Opposition, Plaintiffs filings are frivolous and harassing. She sues everyone in her wake when her prior lawsuit does not turn out as she hoped, accusing everyone of lies and fraud and participating in a grand conspiracy, searching ad nauseum for a different result. This is precisely the conduct that the vexatious litigant order is meant to deter. Finally, Plaintiff has not provided the Court with any reason why the USAs proposal is unworkable or overbroad. If Plaintiff does indeed have a valid claim, it will proceed through the pre-screening process and continue as would any other valid claim. The USAs intention is not to preclude a single valid claim that Plaintiff may have the USA
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simply aims to put an end to the continued expenditure of significant time and resources that have been devoted to addressing so many of Plaintiffs frivolous claims. Plaintiff cannot escape the strong precedent establishing the inherent power of federal courts to regulate the activities of abusive litigants by imposing carefully tailored restrictions under appropriate circumstances. De Long, 912 F.2d at 1147. Those circumstances are present here in abundance. Plaintiffs conduct is not just litigious, it is abusive and harassing. As such, the Court should use its inherent power to enter a pre-filing review order due to the numerous and meritless claims and motions Plaintiff has filed in her past and present actions. See All Writs Act, 28 U.S.C. 1651(a). II. PLAINTIFFS OPPOSITION BRIEF CONFIRMS THAT HER CONDUCT MEETS THE STANDARD OF A VEXATIOUS LITIGANT A. Plaintiff Does Not Deny That She Has Had Sufficient Notice And Opportunity To Be Heard On This Matter. Under De Long, the first factor in determining the propriety of a prefiling order is whether the plaintiff will have sufficient notice and opportunity to be heard regarding the issue. 912 F.2d at 1148. Plaintiff does not dispute that she has had sufficient notice and opportunity to be heard. Accordingly, this first factor is met. B. Plaintiffs Filings are Numerous, Harassing and Frivolous.

The second factor of the De Long analysis is whether the district court created an adequate record for review. An adequate record for review should include a listing of all the cases and motions that led the district court to conclude that a vexatious litigant order was needed. De Long, 912 F.2d at 1147. With respect to this factor the Ninth Circuit is concerned with establishing a pattern of behavior by the plaintiff to show that the litigation is so voluminous as to be vexatious. Id.; Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1059 (9th Cir. 2007). De Long, 912 F.2d at 1148. The third factor set forth in De Long gets to the heart of the vexatious litigant analysis, inquiring as to the frivolous nature of the litigant's actions. De Long, 912 F.2d at 1148.Before a district court issues a pre-filing injunction against a pro se litigant, it is incumbent on the court to make substantive findings as to the frivolous ... nature of the
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litigants actions. Id. That determination is made by looking at both the number and content of the filings. Id. (internal citations omitted). Plaintiffs claims must not only be numerous, but also be patently without merit. Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990). Plaintiff contends that these factors are not met because (1) she is entitled to file an unlimited number of cases and (2) she has not filed numerous cases, and some of her cases are still pending, and (3) her claims are not frivolous. Opp., 4-30. Each of these claims fail. As to her first claim, Plaintiff is not entitled to use and abuse this countrys legal system. The United States Constitution does not afford Plaintiff free access to this countrys courts. Plaintiff is a citizen and resident of Canada who has never stepped foot in this country and does not have rights under this countrys laws. See USAs Motion to Dismiss and authorities cited therein, including, Ibrahim v. Dept of Homeland Security, et al., 2009 U.S. Dist. LEXIS 64619 at *22-23 (N.D. Cal. July 27, 2009) (granting federal defendants motion to dismiss constitutional claims brought by plaintiff residing in Malaysia) citing U.S. v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (holding Fourth Amendment did not apply to the search and seizure by United States agents of property owned by a Mexican citizen and located in his Mexican residence); see also Cuban American Bar Assoc., et. al., v. Christopher, et al., 43 F3d 1412 (11th Cir. 1995) (holding aliens outside of U.S. cannot claim rights to enter or be paroled into U.S. based on the constitution). Further, the idea that a litigant is entitled to file as many cases as he/she needs has no support in the law. To the contrary, the very availability of a vexatious litigant declaration proves that litigants do not enjoy a right to unlimited filings. This is the very issue to which the Ninth Circuit spoke in De Long, Molski and Moy. As to Plaintiffs second claim, disputing that her record is so voluminous, Plaintiff claims that NONE of [her] cases qualifies for vexatious litigant determination, because she alleges that two of her four federal court cases1 are still pending and the judgments were procured by

Only one of Plaintiffs four cases is pending - the instant action. The case that she seeks to revive - 08-2776-PJH - was final when Plaintiff failed to appeal the Ninth Circuits decision dismissing her action for failure to prosecute. Carradero Dec., Ex. 39, 40 (Docket, Order).
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criminal frauds and are therefore null and void. Opp., 4-5. Plaintiff then devotes twenty-six additional paragraphs to explaining why each of her various cases either remains unresolved or, if resolved, and the judgments are null. Opp., 4-30. Yet, Plaintiff cites to no caselaw to support the idea that the resolution of a case is required under the second De Long factor. Nor does De Long provide any support for such an idea. Instead, De Long speaks to the filing of cases and motions - which Plaintiff has done in over abundance. 912 F.2d at 1147-48 (requiring a showing that the filings are so numerous or abusive that they should be enjoined.) (emphasis added)). Plaintiff cites to extreme examples of litigants with as many as 1000 filings, as if such a high number of filings is a requirement before the issuance of a prefiling order. Opp., 33. No such requirement exists. See De Long and Molski, supra; see also Beuaregard v. Lewis County, 2011 U.S. Dist. LEXIS 96762 (W.D. Wash. Aug. 29, 2011) (declaring plaintiffs vexatious litigants based on filing of two previous duplicative lawsuits); Shafler v. HSBC Bank USA, 2007 U.S. Dist. LEXIS 15400 (N.D. Cal. February 21, 2007) (declaring plaintiff vexatious litigant after filing two actions in the Northern District of California that were duplicative of several prior state court actions and federal court actions in other districts). Plaintiff acknowledges this with her own concession that the federal courts have declared litigants vexatious after very few cases lost, like 4, 5, etc. Opp., 34. Plaintiff then abruptly dismisses such examples because, according to Plaintiff, they consist of mostly litigants who challenge the US government, and litigants from other ethnic groups like [Plaintiff]. Id. This, Plaintiff contends, shows that the vexatious litigant proceeding is being used by the US courts as a tool of oppression on racial/political consideration. Id. Such conduct only further demonstrates the frivolous nature of Plaintiffs filings. Similarly, Plaintiffs claim that her resolved cases are null should play no role in the Courts determination of the propriety of a prefiling order, as such a claim is also not a factor in De Long. Sincere as Plaintiff may be in her belief that the state and federal actors have conspired

Regardless of the status of either action, both are frivolous on the face of the complaint.
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against her by ruling against her in each of her lawsuits, no court in this country has reached agreement with her, despite numerous appeals to the Ninth Circuit, and even a petition to the United States Supreme Court. Carradero Decl., Exs. 14-40. Plaintiffs conduct meets the standard of a vexatious litigant not just for the number of lawsuits that she has filed, but also the number of filings within each lawsuit, filings that this Court and the parties had to spend limited time and resources addressing. See Carradero Dec., 14 (Docket for Case No., 03-2906 SBA, approx. 18 motions filed by Plaintiff - including, but not limited to, approx. 5 motions for relief from judgment2, 2 motions to stay, 1 motion for removal of counsel, and 2 motions for contempt); Ex. 19 (Docket for Case No. 05-1888 CW, approx. 11 motions filed by Plaintiff - including, but not limited to, 1 motion to disqualify counsel, 2 motions to disqualify the judge, 3 motions to stay, 1 emergency motion to vacate order, and 1 motion for relief); Ex. 30 (Docket for Case No. 08-2776 PJH, approx. 19 motions filed including, but not limited to, 6 motions to reassign the case/disqualify a judge; 2 motions to stay, 1 motion for relief, and 1 emergency motion to vacate order). Furthermore, the voluminous record confirms Plaintiffs stubborn insistence on filing similar claims and motions, disregarding the local and federal rules, as well as the Courts orders, followed by frivolous appeals, which are then abandoned only for her to file another lawsuit over the same set of operative facts. Id., Exs. 1-43. Plaintiffs conduct also meets the standard, not only because her filings are numerous, but they are harassing. Plaintiff has named as federal defendants no less than three Attorney Generals, numerous FBI and Department of Justice personnel (including the former FBI director, various agents, the former U.S. Attorney for the Northern District of California, and various paralegals), four district court judges, three court personnel (including the Clerk of the Ninth Circuit), an AUSA, and various federal agencies (including, the Department of Justice and Department of State), and the United States of America. Notably, this Court previously considered the alleged new evidence - the Cahill declarations that Plaintiff submitted with her Opposition (Docket Nos. 78) - that Plaintiff claims is one of the alleged bases for fraud on the Court. Carradero Decl., Ex. 14 (Docket - see entry No. 89 and 120), Ex. 15 (Order denying motion for relief).
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One need look no further then the trail of judicial actors and court personnel that Plaintiff has sued to demonstrate the obvious harassing nature of Plaintiffs filings against federal actors. When Plaintiff lost her state court action, she filed the very same action in federal court. Liao v. Cahill, et al., Case No. C 03-2906-SBA, Carradero Decl., Ex. 14 (Docket). After she lost that action, she filed another federal court action, this time suing the San Francisco Superior Judges and court personnel, as well as the California appellate court justices. Liao v. Quidachay, et al., Case No. C 05-1888-CW. Id., Exs. 19, 20 (Docket, Second Amended Complaint). When Judge Claudia Wilken dismissed that case on the grounds of immunity and failure to effect service, Plaintiff sued Judge Wilken in a subsequent federal court action. Liao v. Ashcroft, et al., Case No. C 08-2776-PJH. Id., Ex. 30, 31 (Docket and Complaint). When Judge Armstrong issued an order in that suit requiring Plaintiff to effect proper service, Plaintiff amended her complaint to add Judge Armstrong as a defendant. Id., Ex. 30, 32 (Amended Complaint). When Judge Hamilton dismissed that lawsuit and Plaintiffs appeal was dismissed, Plaintiff filed the instant lawsuit naming Judge Hamilton, district court personnel, and the Clerk of the Ninth Circuit as defendants. Docket No. 42. When Judge Alsup issued orders denying Plaintiffs request to continue the Case Management Conference, Plaintiff amended her Complaint to add him as a defendant in this case. This is all despite specific prior rulings dismissing Plaintiffs prior action against judges and court personnel on the grounds of immunity. Carradero Decl., Ex. 21-24, 37. That Plaintiff responds to such clear and well-settled legal issues with continued lawsuits and wild allegations of fraud and vast government conspiracies is representative of the purely harassing nature of her filings. That Plaintiff also refuses to abide by basic rules of service of the summons and complaint further underscores her lack of respect or regard for the rules or this Courts orders. As the dockets and Courts orders reflect, each of the orders were issued only after great time and expenditure by the parties and the Court in responding to Plaintiffs numerous baseless motions and after repeated opportunities for Plaintiff to be heard, even on non-sensical matters and on the same matters. Carradero Dec., Exs. 14-39. Indeed, the record provides an adequate basis for determining that Plaintiffs filing behavior warrants - at a minimum - a prefiling review
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order. De Long, 912 F2d at 1148 (Flagrant abuse of the judicial process cannot be tolerated because it enables one person to preempt the use of judicial time that properly could be used to consider the meritorious claims of other litigants.); Shafler, 2007 U.S. Dist. LEXIS 15400 at *20 (N.D. Cal. February 21, 2007) (declaring plaintiff vexatious litigant based on abusive pleadings). D. The Order Sought Will Protect The Court And Taxpayers From Frivolous Filings And Will Permit Legitimate Claims To Proceed, Should Plaintiff Have One The fourth and final factor in the De Long analysis is that the prefiling order be sufficiently tailored to the vexatious litigant's wrongful behavior. De Long, 912 F.2d at 1148; see also

9 Molski, 500 F.3d at 1060-1061. 10 Though Plaintiff does not directly dispute the breadth of the proposed prefiling order, she 11 does seem to be confused about what such an order would entail. Plaintiff claims that such an 12 order would leave her doomed to the denial of access to court in federal court. Opp., 35. The 13 proposed order would do no such thing. Instead, the order would leave Plaintiff every 14 opportunity to proceed with valid claims in federal court. The USA simply seeks to implement a 15 gatekeeper mechanism to put an end to Plaintiffs pattern of filing frivolous claims that divert 16 and waste- limited time and resources of the court, the taxpayers and the parties. Plaintiffs 17 behavior has demonstrated that such claims are likely to continue without such an order. 18 Accordingly, despite Plaintiffs confusion about the breadth of the proposed prefiling order, it is 19 sufficiently tailored to her wrongful behavior and will in no way serve as a bar to any valid 20 claims that Plaintiff may bring in the future, should she have any. 21 The record proves that Plaintiff cannot police herself. The repetitive and frivolous nature of 22 the complaints and other filings cause an undue waste of judicial time and resources, at 23 everyones expense but Plaintiffs. Without the order it is highly probable that Plaintiff will 24 continue to bring substantially similar meritless lawsuits and motions, only adding to her list of 25 defendants. A review of each of her past actions demonstrates this substantial likelihood. 26 Carradero Decl., Ex. 1-43. Accordingly, the Court should impose a pre-filing screening order. 27 A less restrictive order would not achieve this result. In sum, [t]he unescapable conclusion 28 is that [Plaintiff Liao] is engaged . . . in recreational litigation, misusing precious and limited
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resources better spent on meritorious claims of his fellow citizens to whom those resources belong. Beachboard v. United States, 727 F.2d 1092, 1095 (Fed. Cir. 1984). III. CONCLUSION For the forgoing reasons, the USA requests that the Court grant this motion and enter an order requiring prefiling review of any future actions presented by Plaintiff for filing in this court (with or without attorney representation) and, should any future action be appropriate for filing, to require Plaintiff to pay all filing fees and not be permitted to proceed in forma pauperis.

DATED: February 29, 2012

Respectfully submitted, MELINDA HAAG United States Attorney ________/s/________________ Victoria R. Carradero Assistant United States Attorney

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