The following is copied directly from the orders issued by Judge Sparks of the US District Court for the Western District of Texas, Austin Division.
ORDERS OF DISMISSAL AND JUDGEMENT
In accordance with the Court's memorandum opinion and order dated the 2nd day of June 2005:
IT IS ORDERED, ADJUDGED, and DECREED THAT Plaintiff Olivier L.F. Asser's("Asser") Texas Deceptive Trade Practices Act claim against Defendants Philip R. Berber("Berber") and Leslie M. Moor("Moor") are DISMISSED WITH PREJUDICE;
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Asser's Racketeer Influenced and Corrupt Organizations, Investment Advisors Act of 1940, and civil conspiracy claims against all Defendants are DISMISSED WITH PREJUDICE;
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Asser is DECLARED a vexatious litigant;
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Asser is BARRED from filing any further lawsuits or commencing any arbitration proceedings arising from the fact situation at issue in this case against Defendants Berber and Moor in the Western District of Texas without the prior approval of a United States Magistrate Judge or a United States District Judge;
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that to gain the prior approval of a United States Magistrate Judge or a United States District Judge, Asser shall file, along with any future complaint, a motion requesting permission of the Court to file his complaint;
IT IS FURTHER DECREED, ADJUDGED, and DECREED that the Clerk of Court is not to file, open on this Court's docket, assign a new docket number, or assign to a judge, any further case submitted by Plaintiff against Berber or Moor unless specifically directed to do so by a United States Magistrate Judge or a United States District Judge; and
IT IS FINALLY ORDERED, ADJUDGED, and DECREED that Asser TAKE NOTHING in his cause of action against Defendants Berber and Moor.
Signed by Sam Sparks, United States District Judge
This next piece is excerpted from the full order of the Court and pertains specifically to Asser being declared a vexatious litigant.
B. Berber and Moor's Motion to Declare Plaintiff a Vexatious Litigant and for Injunctive Relief
In this motion Defendants Berber and Moor request the Court: (1) declare Asser a vexatious litigant; (2)enjoin Asser from filing any future lawsuits or commencing any arbitration proceedings against Berber and Moor to this lawsuit without first obtaining permission from this court to do so; (3) enjoin Asser from abusing the judicial process as the Court finds appropriate; (4) assess monetary sanctions against Asser; and/or (5) grant other relief to which Defendants Berber and Moor may be entitled at law or in equity. As stated earlier, this is the third lawsuit relating to the same alleged "kickback" and insider trading scheme. Asser's declarations are contained in multiple e-mails Asser has sent to either Defendants or defense counsel. For example:
(1) On April 11, 2004, in threatening continued litigation against Berber, Asser stated, "And proceed against Berber I certainly shall. If in the end it takes 20 years, just fine with me. I prepared for that long ago." He also warned Berber that "you may very well find yourself being sued in no time at all in a European Court....If it's your preference, I am going to sue you in Europe."
(2) On April 15, 2004, Asser stated, "You all thought you could divide and destroy this action. Think again. I'll litigate for 20 years if that's what it takes - and at least one defense counsel believes me by now. We're now at two and counting. I won't live in a country where criminals like your clients rule the roost, sorry. Not abusive lying lawyers - though not all of you, certainly - either."
(3) On April 29, 2004, writing regarding Berber, Plaintiff stated "we may shortly be filing suit against him suing him in that European Community state, for the repatriation of all ill-gotten gains he has obtained since 1998. We just so happen to know a number of excellent attorneys in the E.U." Plaintiff signed the message "Dr. Jekyll and Mr. Hyde (otherwise known as Olivier L.F. Asser)
(4) On September 11, 2004, Asser wrote, "I've recently informed other attorneys who seem to think I could not sue their clients in all 50 states pursuant to state law provisions unique to each of those states. Yet I can, and I've discussing the possibility of doing just that with attorneys across the country. WDTX is a launching pad for thousands of claims against Mr. Berber."
(5)On September 23, 2004, Plaintiff wrote "After my case is ordered to trial I'll be sending out a copy of the complaint and letters to every attorney general in all 50 states. Moor thinks I won't? Oh yes, I can and then I certainly will....My warning months ago to DiMuro to bring claims against Berber in an EU court in Ireland was far from a bluff."
(6) On September 24, 2004, Asser wrote, "I can promise you it will get very ugly for your client very quickly, especially when attorneys general and regulators become involved, aside from the lawsuits in all 50 states and EU member countries against Berber and Moor I may soon help others bring. I mean, why should Berber and Moor be the only ones pooling resources and strategy. Why don't I have about 500 other plaintiffs sue all over the place and we all pool our resources too? Yeah, why not do that too...Now Berber and Moor can make this entire process go away right now by reaching acceptable settlement with me. Then its done, over, finished, we move on and go our separate ways.(emphasis added) But if we don't, and soon, then I promise I can assuredly make life very unpleasant for them both. In that case, they'll be damned sorry they ever challenged EDVA jd and forced me to litigate with them in Austin. That, and other interesting proceedings I've got planned for them in the absence of settlement. Moor has no idea. How would he like 500 lawsuits on his hands?"
(7) On September 24, 2004, Asser wrote, "I promise you this: trial of Moor and/or Berber will be quite unpleasant. I've had a looooong time to plan for it, thanks to Berber and Moor running and hiding from a jury all this time. Best for your client to catch me now before I start getting starry-eyed about getting in front of the jury and finally letting your clients have it in no uncertain terms, the truth busting them and completely."
Asser's e-mails speak volumes about his clear intention to continue to file multiple lawsuits in order to harass his opponents through continued litigation in multiple jurisdictions, until they finally agree to pay him money to leave them alone.(emphasis added)
In addition to Asser's express intention to file multiple lawsuits in multiple jurisdictions, Plaintiff has accused the Clerk of the United States District Court of the Eastern District of Virginia of accepting bribes, which resulted in an order dismissing several of the defendants from that lawsuit. Similarly, in the California state court action, Asser filed a motion requesting the Court of Appeals transfer his lawsuit out of the San Francisco Superior Court to the Los Angeles Superior Court because he could not receive a fair hearing, insinuating defendant Schwab, "a company worth some 14 billion dollars" that "is one of the most powerful and influential concerns in San Francisco," was unduly influencing the elected state court judge presiding over his case. Asser's motion to transfer was denied. Plaintiff has also sued the lawyers who represented him during the earlier part of the California state court action - before thay withdrew from the representation on March 27, 2003 - in the United States District Court for the District of Columbia, asking for $1.5 billion because they refused to continue to represent him.
As demonstrated above, Asser has proven himself to be a vexatious litigant. Asser's menacing threats do not show a good faith intention of having his claims fairly adjudicated, either by a court of law or an arbitration panel. Therefore, controls must be put in place to curb any further harassment and vexation by Asser.
Asser has proved himself to be a menace to the judicial system, and it is necessary for the Court to intervene and control Asser's overzealous and abusive filings, and prevent Asser from further abusing the judicial system and continuing to vex and harass Defendants Berber and Moor. The Court sanctions Asser by barring him from filing any future lawsuits or commencing any arbitration proceedings arising from the fact situation at issue in this case against Defendants Berber and Moor in the Western District of Texas without prior approval of a United States Magistrate Judge or a United States District Judge.
Signed by Sam Sparks, United States District Judge |
