Mankaruse v. Raytheon Company ( 2021 )

Case: 20-2309 Document: 40 Page: 1 Filed: 05/07/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NAGUI MANKARUSE,
Plaintiff-Appellant
v.
RAYTHEON COMPANY, TRS LLC US, DAVID EARL
STEPHENS, JOHN RYAN, JAMES LEROY
COTTERMAN, JR., JAMES D. WEBER, MARK P.
HONTZ, KIMBERLY R. KERRY, COLIN J.
SCHOTTLAENDER, WILLIAM H. SWANSON,
THOMAS A. KENNEDY, MATTHEW BREWER, F.
KINSEY HAFNER, KEITH PEDEN, BRIAN
ARMSTRONG, RICHARD ROCKE,
Defendants-Appellees
______________________
2020-2309
______________________
Appeal from the United States District Court for the
Central District of California in No. 8:19-cv-01904-DOC-
ADS, Judge David O. Carter.
______________________
Decided: May 7, 2021
______________________
NAGUI MANKARUSE, Huntington Beach, CA, pro se.
ANDREW VALENTINE, DLA Piper LLP (US), East Palo
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2 MANKARUSE v. RAYTHEON COMPANY
Alto, CA, for defendants-appellees. Also represented by
STANLEY JOSEPH PANIKOWSKI, III, San Diego, CA; NANCY
NGUYEN SIMS, Los Angeles, CA.
______________________
Before TARANTO, LINN, and CHEN, Circuit Judges.
TARANTO, Circuit Judge.
Nagui Mankaruse, proceeding pro se, brought this ac-
tion in district court against Raytheon Company, Thales-
Raytheon Systems (TRS) LLC, and a host of Raytheon em-
ployees in their personal capacity (collectively, Raytheon),
alleging patent infringement and trade-secret misappro-
priation. Having fought similar, and in large part the
same, claims by Mr. Mankaruse in California state courts
during the previous six years, Raytheon asked the district
court in this case for, and received, an order deeming Mr.
Mankaruse a vexatious litigant, requiring him to seek
court permission before filing further cases against it, and
also requiring him to post a $25,000 security bond before
proceeding with the present case. See Mankaruse v. Ray-
theon Co., No. 8:19-cv-01904-DOC, 2020 WL 2405258, at *1
(C.D. Cal. Jan. 23, 2020) (Pre-Filing Order). Mr.
Mankaruse failed to post the required bond, and the dis-
trict court then dismissed this case. We affirm.
I
Mr. Mankaruse is one of two named inventors on U.S.
Patent No. 6,411,512 and Canadian Patent No. 2,389,458,
both of which are titled “High Performance Cold Plate,”
and both which he has claimed to own. On October 3, 2019,
Mr. Mankaruse filed the present case in the Central Dis-
trict of California. He accused Raytheon of infringing
claims of the ’512 and ’458 patents and of misappropriating
his trade secrets. See Complaint, Mankaruse v. Raytheon
Co., No. 8:19-cv-01904 (C.D. Cal. Oct. 3, 2019), ECF No. 1.
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MANKARUSE v. RAYTHEON COMPANY 3
This is not the first lawsuit between Mr. Mankaruse
and Raytheon. Mr. Mankaruse, an engineer, worked for
Raytheon from 2004, until he was laid off in April 2012, as
part of a reduction in Raytheon’s workforce. A few months
before the layoff, Mr. Mankaruse sued Raytheon, along
with several Raytheon employees, in California state court,
asserting employment discrimination based on his age and
nationality, and Raytheon removed the case to federal
court. See Notice of Removal of Action Pursuant to 28
U.S.C. § 1441(a), Mankaruse v. Raytheon Co., No. 8:12-cv-
00261 (C.D. Cal. Feb. 16, 2012), ECF No. 1. Mr.
Mankaruse moved to dismiss his claims without prejudice
when the case was removed. Raytheon Appx. 152. The
federal court granted that motion and dismissed Mr.
Mankaruse’s claims on August 8, 2012. Raytheon Appx.
155.
From 2013 through 2017, Mr. Mankaruse filed six ad-
ditional unsuccessful state-court actions against Raytheon,
alleging various combinations of trade-secret misappropri-
ation and discrimination, as well as contract breaches and
torts. See Mankaruse v. Raytheon Co., Case No. 30-2013-
00625080 (Orange Cnty. Super. Ct. filed Jan. 17, 2013);
American Innovation Corp. and Mankaruse v. Raytheon
Co., Case No. 30-2014-00732670 (Orange Cnty. Super. Ct.
filed July 7, 2014); Mankaruse v. Raytheon Co., Case No.
30-2016-00841632 (Orange Cnty. Super. Ct. filed Mar. 18,
2016); Mankaruse v. Raytheon Co., Case No. 30-2016-
00860092 (Orange Cnty. Super. Ct. filed June 27, 2016);
Mankaruse v. Raytheon Co., Case No. 30-2016-00878349
(Orange Cnty. Super. Ct. filed Sept. 30, 2016); Mankaruse
v. Raytheon Co., Case No. 30-2017-00934796 (Orange Cnty.
Super. Ct. filed July 31, 2017). One of those cases went to
trial, ending in a jury verdict in favor of Raytheon in De-
cember 2014, which was affirmed on appeal. See Raytheon
Appx. 157–72 (Case No. 30-2013-00625080).
In another one of those cases, the California Superior
Court, on July 12, 2018, declared Mr. Mankaruse a
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4 MANKARUSE v. RAYTHEON COMPANY
vexatious litigant under California Code of Civil Procedure
§ 391(b)(1) and required that he obtain pre-filing approval
from the court before initiating any future litigation and
that he post a security bond of $10,000 before proceeding
in the case. Raytheon Appx. 137–40 (order in Case No. 30-
2016-00878349). After Mr. Mankaruse posted the required
bond and the case proceeded, the court ultimately entered
summary judgment against him on October 31, 2019 and
awarded costs to Raytheon. Raytheon Appx. 192–204. The
court thereafter rejected Mr. Mankaruse’s motion to re-
lease the bond after final disposition of the case. Raytheon
Appx. 149. Mr. Mankaruse was also placed on a list of vex-
atious litigants maintained by the California Judicial
Council. 1
In the present case, on December 12, 2019, citing Mr.
Mankaruse’s litigation history, Raytheon filed a motion
asking the court to declare Mr. Mankaruse a vexatious lit-
igant, impose a pre-filing-approval requirement, and order
him to post a security bond of $50,000 before proceeding
with this case. Raytheon Appx. 109–10, 271–93. Raytheon
also asked that the court consider Mr. Mankaruse’s history
of filing cases against Intel Corporation and others (collec-
tively, Intel)—including a co-pending patent-infringement
action asserting the same patents as those at issue here,
an action we address in Mankaruse v. Intel Corp., No. 2020-
2297, slip op. at 2–4 (Fed. Cir. May 7, 2021), issued today.
See Raytheon Appx. 282–86.
After a hearing on the motion, the district court de-
clared Mr. Mankaruse a vexatious litigant, entered the
1 We take judicial notice, under Federal Rule of Evi-
dence 201, of the fact that Mr. Mankaruse remains on the
California List of Vexatious Litigants at the time of this
opinion. See Cal. Courts, Vexatious Litigant List 48,
https://www.courts.ca.gov/documents/vexlit.pdf (last up-
dated April 1, 2021).
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MANKARUSE v. RAYTHEON COMPANY 5
requested pre-filing-approval order, and imposed a bond
requirement on January 23, 2020. See Pre-Filing Order,
2020 WL 2405258, at *4. Proceeding through the factors
set forth by the Ninth Circuit in De Long v. Hennessey, 912
F.2d 1144 (9th Cir. 1990), the court first determined that a
pre-filing-approval order was appropriate because Mr.
Mankaruse’s previous lawsuits evidenced “an extensive
history of frivolous and harassing litigation tactics” and
compelled “an adverse inference regarding [his] motives in
bringing the[] actions.” Pre-Filing Order, 2020 WL
2405258, at *2–3. The court also found a pre-filing-ap-
proval order to be needed, deeming less stringent measures
inadequate in light of his litigation history. Id. at *3.
Pursuant to the Ninth Circuit’s requirement of narrow
tailoring, the court ordered that Mr. Mankaruse
seek prefiling approval . . . prior to filing cases in
the Central District of California pro se against
Raytheon, TRS, Intel, or any of their employees, of-
ficers or agents regarding Plaintiff’s prior employ-
ment with these entities or regarding any alleged
stolen trade secrets or patent infringement by
these actors.
Id. (citing C.D. Cal. Local Rule 83–8.2). The court also
granted Raytheon’s request for a security bond in the pre-
sent case, requiring that Mr. Mankaruse produce a bond of
$25,000 “on or before February 29, 2020 or the action will
be dismissed.” Id. When Mr. Mankaruse failed to post a
bond by the specified date, the district court dismissed his
claims and entered a final judgment on June 9, 2020. Ray-
theon Appx. 7–8.
Mr. Mankaruse appealed the district court’s January
23, 2020 order to the Ninth Circuit on February 19, 2020,
and appealed again on June 15, 2020, after the judgment
was made final. The appeal was transferred to our court
on September 22, 2020, because it falls within our exclusive
jurisdiction under 28 U.S.C. § 1295(a)(1).
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6 MANKARUSE v. RAYTHEON COMPANY
II
Mr. Mankaruse challenges the district court’s order as
violative of his constitutional rights, including under the
First and Fifth Amendments. See Mankaruse Opening Br.
21–22. We also understand Mr. Mankaruse to be challeng-
ing the court’s security-bond requirement as violating the
Eighth Amendment’s prohibition on “excessive bail, exces-
sive fines, or cruel and unusual punishments.” See id. at
22–23. Mr. Mankaruse separately argues that the district
court erred by finding him to be a vexatious litigant when,
he asserts, the California state court terminated his desig-
nation as a vexatious litigant. Id. at 19.
The Ninth Circuit’s test for determining whether a pre-
filing-approval order is appropriate takes account of the
constitutional guarantees invoked by Mr. Mankaruse, and
we see no separate ground for finding a violation of those
guarantees if the Ninth Circuit test is met. See De Long,
912 F.2d at 1147 (“[W]e also recognize that such pre-filing
orders should rarely be filed.”); see also Ringgold-Lockhart
v. County of Los Angeles, 761 F.3d 1057, 1061–62 (9th Cir.
2014) (applying De Long after discussing First and Fifth
Amendment concerns); Molski v. Evergreen Dynasty Corp.,
500 F.3d 1047, 1056–57 (9th Cir. 2007) (per curiam)
(same). Applying that test, we conclude that Mr.
Mankaruse has not shown reversible error in the district
court’s ruling in this case.
A
Applying the law of the regional circuit, we review a
district court’s entry of a pre-filing-approval order and dec-
laration of a vexatious litigant for an abuse of discretion.
See Ringgold-Lockhart, 761 F.3d at 1062; Baden Sports,
Inc. v. Molten USA, Inc., 556 F.3d 1300, 1304 (Fed. Cir.
2009). “A district court abuses its discretion when it bases
its decision on an incorrect view of the law or a clearly er-
roneous finding of fact.” Molski, 500 F.3d at 1056–57.
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MANKARUSE v. RAYTHEON COMPANY 7
An order restricting future court filings should rarely
be entered and must comply with “certain procedural and
substantive requirements”: (1) a plaintiff must be given an
opportunity to oppose entry of the order; (2) the district
court must indicate what court filings support issuance of
the order; (3) the district court must find that the filings
were frivolous or harassing; and (4) the order must be nar-
rowly tailored. Ringgold-Lockhart, 761 F.3d at 1062 (citing
De Long, 912 F.2d at 1147). To analyze the last two aspects
of the test, the Ninth Circuit borrows from the Second Cir-
cuit’s “helpful framework” of five substantive factors to de-
termine “whether a party is a vexatious litigant and
whether a pre-filing order will stop the vexatious litigation
or if other sanctions are adequate.” Molski, 500 F.3d at
1058; see also Ringgold-Lockhart, 761 F.3d at 1062. Those
factors include:
(1) the litigant’s history of litigation and in partic-
ular whether it entailed vexatious, harassing or du-
plicative lawsuits; (2) the litigant’s motive in
pursuing the litigation, e.g., does the litigant have
an objective good faith expectation of prevailing?;
(3) whether the litigant is represented by counsel;
(4) whether the litigant has caused needless ex-
pense to other parties or has posed an unnecessary
burden on the courts and their personnel; and
(5) whether other sanctions would be adequate to
protect the courts and other parties.
Molski, 500 F.3d at 1058 (quoting Safir v. United States
Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)).
The district court in the present matter gave Mr.
Mankaruse an adequate opportunity to oppose entry of the
order before it was entered. The parties fully briefed the
issue, Raytheon Appx. 271–93, 294–446, 447–56, and ap-
peared before the court, which heard from Mr. Mankaruse
and counsel for Raytheon, see id. at 9–41. The district court
had “an adequate record” of the earlier litigation, De Long,
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8 MANKARUSE v. RAYTHEON COMPANY
912 F.2d at 1147, reviewing a list of cases that Mr.
Mankaruse had filed against Raytheon and Intel over the
preceding seven years, Pre-Filing Order, 2020 WL
2405258, at *2. See also Raytheon Appx. 125–270 (Ray-
theon’s Request for Judicial Notice listing cases and sup-
porting documentation).
The district court also reasonably made “substantive
findings as to the frivolous or harassing nature” of Mr.
Mankaruse’s claims. De Long, 912 F.2d at 1148 (internal
quotation marks omitted). For example, the district court
explained, Mr. Mankaruse had a history of dismissing
claims after Raytheon had expended significant effort in
defending them, only to refile the same claims in a new
suit. See Pre-Filing Order, 2020 WL 2405258, at *3; see
also, e.g., Raytheon Appx. 119, ¶ 5 (sworn attorney decla-
ration that Mr. Mankaruse dismissed claims and refiled
them in new suit the following day); id. at 181 (dismissing
appeal of dismissal in Case No. 30-2014-00732670 after
briefing but before argument); id. at 185. The district court
noted that in one case, in which Raytheon had filed a de-
murrer, Mr. Mankaruse dismissed his lawsuit on the day
of, but just before, the hearing, at which Raytheon counsel,
lacking notice of the dismissal, showed up to argue. See
Raytheon Appx. 185; see also id. at 127 (attorney declara-
tion explaining events). Mr. Mankaruse does not deny this
version of the events, and we see no reason that the inci-
dent should “not qualif[y]” as part of the analysis.
Mankaruse Opening Br. 18 (annotation regarding Case No.
30-2016-00841632). Mr. Mankaruse even continued this
pattern in the present case, refusing to amend his com-
plaint to delete claims for relief against Intel (which is not
named as a party) after a meeting with Raytheon’s counsel,
only to amend his complaint after Raytheon filed a motion
to dismiss those claims. See Raytheon Appx. 59; id. at 119,
¶¶ 2–3 (attorney declaration regarding meet and confer);
id. at 123 (attorney letter to Mr. Mankaruse requesting
meet and confer).
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MANKARUSE v. RAYTHEON COMPANY 9
The district court relied on the “extensive history of
frivolous and harassing litigation tactics” confirming that
this was Mr. Mankaruse’s modus operandi, and not simply
on the number of suits or motions filed, as justifying the
designation of Mr. Mankaruse as a vexatious litigant. Pre-
Filing Order, 2020 WL 2405258, at *3; see also De Long,
912 F.2d 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.”);
Ringgold-Lockhart, 761 F.3d at 1066 (“[A] pattern of frivo-
lous or abusive litigation in different jurisdictions unde-
terred by adverse judgments may inform a court’s decision
that an injunction is necessary.”); cf. id. at 1065 (comment-
ing that imposing a pre-filing order based on “litigant’s mo-
tion practice in two cases” “would at least be extremely
unusual,” but not deciding the issue). In addition to the
suits against Raytheon, the district court was also aware of
the similar claims Mr. Mankaruse asserted against Intel,
and similar behavior regarding his motions practice. See
Order, Mankaruse v. Intel Corp., No. 8:19-cv-01902 (C.D.
Cal. Jan. 27, 2020), ECF No. 34; see also Mankaruse v. Intel
Corp., No. 2020-2297, slip op. at 2–4. The reasonableness
of the district court’s decision is further supported by the
fact that California courts have also declared Mr.
Mankaruse a vexatious litigant under state law. See Ray-
theon Appx. 137–140. Given the character and frequency
of Mr. Mankaruse’s tactics, we cannot say the district court
erred in its conclusion regarding the vexatiousness of Mr.
Mankaruse as a litigant.
The district court also appropriately considered
whether alternative sanctions would suffice to deter the ac-
tions Raytheon complained of, noting that Mr. Mankaruse
previously forfeited a $10,000 bond by pressing an unsuc-
cessful state-court claim against Raytheon. Cf. Ringgold-
Lockhart, 761 F.3d at 1066 (explaining that district court
“failed to consider whether other remedies were adequate
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10 MANKARUSE v. RAYTHEON COMPANY
to curb what it viewed” as frivolous motions practice). The
district court’s “inference that other sanctions would be in-
sufficient” is reasonable and not an abuse of its discretion.
Pre-Filing Order, 2020 WL 2405258, at *3.
Mr. Mankaruse argues that the district court clearly
erred by failing to recognize that a California state court
“relieved” him of his vexatious litigant label. Mankaruse
Opening Br. 19. This argument misunderstands the Cali-
fornia court’s order that he cites. In the order, the state
court denied Raytheon’s motion to declare Mr. Mankaruse
a vexatious litigant under California law for a second time,
but never addressed Mr. Mankaruse’s status presented by
his earlier case. See Raytheon Appx. 99–104. The court’s
order expressly states that it denied Raytheon’s motion “for
purposes of this action,” referring only to that case, id. at
103, and to date Mr. Mankaruse is still listed on the state’s
list of vexatious litigants, see supra p.4 n.1.
Lastly, the court’s Pre-Filing Order meets the require-
ment of being narrowly tailored. The court’s order does not
prevent Mr. Mankaruse from pursuing “all claims” against
Raytheon or the other parties; rather, it is limited to claims
“regarding [his] prior employment” or “regarding any al-
leged stolen trade secrets or patent infringement,” Pre-Fil-
ing Order, 2020 WL 2405258, at *3, which are the types of
claims that Mr. Mankaruse had been filing vexatiously, see
Molski, 500 F.3d at 1061; see also Baker v. Dykema Gossett,
LLP, 776 F. App’x 485, 487 (9th Cir. 2019) (“[T]he order
was narrowly tailored because it was limited to one set of
defendants and one court.”). In addition, the requirement
of pre-filing approval is limited to cases that Mr.
Mankaruse files pro se; it does not apply to cases filed by
counsel. And we understand that approval will actually be
forthcoming if the claims filed are “not duplicative and not
frivolous.” Ringgold-Lockhart, 761 F.3d at 1066 (internal
quotation marks omitted).
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MANKARUSE v. RAYTHEON COMPANY 11
We conclude that the district court did not abuse its
discretion by adopting the Pre-Filing Order in this matter.
B
We review a district court’s requirement of a security
bond from a declared vexatious litigant for abuse of discre-
tion. See Monsterrat Overseas Holdings, S.A. v. Larsen,
709 F.2d 22, 24 (9th Cir. 1983). “Federal courts have in-
herent authority to require plaintiffs to post security for
costs.” In re Merrill Lynch Relocation Mgmt., Inc., 812 F.2d
1116, 1121 (9th Cir. 1987). Under the Central District of
California’s Local Rule 83–8.2, the district court “may, at
any time, order a party to give security in such amount as
the Court determines to be appropriate to secure the pay-
ment of any costs, sanctions or other amounts which may
be awarded against a vexatious litigant.” C.D. Cal. R. 83–
8.2. We cannot say that the district court abused its dis-
cretion under this rule by requiring Mr. Mankaruse to post
a bond in this case.
As explained above, the court properly declared Mr.
Mankaruse a vexatious litigant. And the bond amount of
$25,000 was not excessive. The purpose of the bond is to
provide a defendant security that, if it were to prevail in
defending against a suit, would enable it to recoup its costs
from a plaintiff, and the parties here do not meaningfully
dispute that, at the time the bond was required, predicted
costs of further litigation would have exceeded $25,000.
See Fed. R. Civ. P. 54(d); see also Mankaruse Reply Br. 21
(“Both Intel and Raytheon spending millions of Dollars for
years in frivolous litigations . . . .”); Raytheon Appx. 120,
¶ 10 (attorney declaration stating costs defending lawsuit
exceed $50,000); id. at 116 (letter from Intel in similar
case). Moreover, the district court set the amount at
$25,000, representing half of what Raytheon requested in
its motion and a reasonable amount of costs Raytheon
might be entitled to if successful in defending against the
suit. See Raytheon Appx. 288; see also Walczak v. EPL
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12 MANKARUSE v. RAYTHEON COMPANY
Prolong, Inc., 198 F.3d 725, 734 (9th Cir. 1999) (affirming
imposition of $100,000 bond when non-movant claimed
damages could exceed $2 million); Figure Eight Holdings,
LLC v. Dr. Jays, Inc., 534 F. App’x 670, 670–71 (9th Cir.
2013) (affirming $50,000 bond after considering, among
factors, the “risk that [plaintiff] would not pay the costs” if
it lost and “an assessment of the likelihood that [plaintiff]
will lose”).
Mr. Mankaruse argues that the district court abused
its discretion by requiring the $25,000 security bond be-
cause he is unable to secure that much money. Mankaruse
Opening Br. 22–23. This argument fails to appreciate the
proper legal standard by which we analyze the district
court’s decision. Federal district courts “have inherent
power to require plaintiffs to post security for costs” and
typically, although they are not required to, “follow the fo-
rum state’s practice.” Simulnet E. Assocs. v. Ramada Hotel
Operating Co., 37 F.3d 573, 574 (9th Cir.1994); see also
Kourtis v. Cameron, 358 F. App’x 863, 866 (9th Cir. 2009).
Although under California law, a court “may, in its discre-
tion, waive a provision for a bond” based on a party’s ina-
bility to pay, that standard does not make inability to pay
a bar to requiring a bond, but leaves discretion with the
court. Cal. Code Civ. Proc. § 995.240. In the circumstances
of this case, we do not think that the district court abused
its discretion in requiring Mr. Mankaruse to provide a se-
curity bond of $25,000. It follows that the district court
properly dismissed Mr. Mankaruse’s claims when he failed
to pay the required bond.
III
For the foregoing reasons, we affirm the district court’s
dismissal of Mr. Mankaruse’s suit against Raytheon.
The parties shall bear their own costs.
AFFIRMED