William Windsor v. Sean Boushie
677 F. App'x 311
9th Cir.
2017
Check Treatment
Docket

William M. WINDSOR, Plaintiff-Appellant, v. Sean M. BOUSHIE; University of Montana, Defendants-Appellees.

No. 14-36042

United States Court of Appeals, Ninth Circuit.

Submitted January 18, 2017; Filed January 30, 2017

311

William M. Windsor, Pro Se; Sean M. Boushie, Pro Se; Lucy T. France, General Counsel, University of Montana, Office of Legal Counsel, Missoula, MT, for Defendant-Appellee. Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.

MEMORANDUM**

William M. Windsor appeals pro se from the district court’s order declaring him a vexatious litigant and its judgment dismissing his diversity action as frivolous. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. (dismissal of a complaint as frivolous); (vexatious litigant order). We affirm.

The district court did not abuse its discretion in dismissing Windsor’s action as frivolous because Windsor’s complaint, liberally constured, lacks an arguable basis in fact. See (a claim lacks an arguable basis in fact “when the facts alleged rise to the level of the irrational or the wholly incredible....”).

The district court did not abuse its discretion in declaring Windsor a vexatious litigant and imposing a pre-filing order against him because it gave Windsor notice and an opportunity to be heard, developed an adequate record for review, made findings regarding his frivolous litigation history, and narrowly tailored the restrictions in the pre-filing order. See (discussing factors to consider before imposing pre-filing restrictions). Contrary to Windsor’s contention, the district court satisfied the requirement of providing an opportunity to be heard by written submission rather than an oral or evidentiary hearing.

We reject as meritless Windsor’s various contentions regarding Magistrate Judge Lynch.

Appellee Boushie’s request for sanctions, set forth in his answering brief, is denied. See Fed. R. App. P. 38 (requiring a separate motion for fees); (a request made in an appellate brief does not satisfy Rule 38).

AFFIRMED.

ENTREPRENEUR MEDIA, INC., a California corporation, Plaintiff-Appellee, v. D. NICOLE ENTERPRISES, LLC, Defendant, and Dushawn Thomas, an individual, Defendant-Appellant.

No. 14-55473

United States Court of Appeals, Ninth Circuit.

Submitted January 18, 2017; Filed January 30, 2017

312

Mark Finkelstein, Jones Day, Irvine, CA, for Plaintiff-Appellee; Dushawn Thomas, Pro Se. Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.

MEMORANDUM**

DuShawn Thomas appeals pro se from the district court’s judgment granting plaintiff Entrepreneur Media, Inc.’s motion for voluntary dismissal of Thomas under Fed. R. Civ. P. 41(a)(2) from its trademark infringement action. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion. , We affirm.

The district court did not abuse its discretion by granting Entrepreneur Media, Inc.’s motion for voluntary dismissal because Thomas failed to identify any “plain legal prejudice” that she suffered as a result of the dismissal. See (factors for evaluating motion for voluntary dismissal).

Because we affirm on the basis of plaintiff’s motion for voluntary dismissal of Thomas, we do not consider Thomas’ contentions concerning the merits of her counterclaims.

We reject as without merit Thomas’ contentions that the motion was granted based on Entrepreneur Media, Inc.’s lack of candor.

AFFIRMED.

Notes

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This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.