Dealing With Vexatious Pro Se Litigants
When you do battle, even if you are winning, if you continue for a long time, it will dull your forces and blunt your edge.
Tzu, Sun. The Art of War. Shambhala Publishing, 2009
We have all dealt with plaintiffs (generally pro se) who continuously disregard the Rules of Civil Procedure, practice norms and judicial mandates through the repetitive filing of frivolous complaints, claims and actions. From a strategic standpoint, facing a vexatious litigant can be frustrating. More importantly, it can create a situation where the litigation costs are substantially increased thereby causing the ire of clients and claims professionals when those incurred costs are viewed to have done little, if anything, to actually advance the case. Potential remedies to the situation of a repetitive and vexatious litigant have been recognized in both state and federal courts.
In Pennsylvania state court actions, defense counsel can seek relief under Pa.R.C.P. 233.1, which permits a court to issue an appropriate order to preserve the proper use of the judicial system. While attorneys can be subject to disciplinary action under the Rules of Professional Conduct for participating in frivolous litigation, no such disciplinary deterrent is applicable to pro se litigants. As such, Pa.R.C.P. 233.1 provides a means to obtain relief from repetitive pro se lawsuits. “Rule 233.1 was promulgated by our Supreme Court in 2010 to stem a noted increase in serial lawsuits of dubious merit filed by pro se litigants disaffected by prior failures to secure relief for injuries they perceived but could not substantiate.” Gray v. Buonopane, 53 A.3d 829, 835 (Pa.Super. 2012). In short, the purpose of Pa.R.C.P. 233.1 is to avoid manipulation of the legal process by providing a means to hold pro se litigants accountable for vexatious pleading conduct in a similar manner as licensed attorneys are held accountable under the Rules of Professional Conduct.
In the federal court setting, “[t]he All Writs Act permits a district court to enter a pre-filing injunction ‘to preclude abusive, groundless and vexatious litigation.’” Fessler v. Sauer, 2011 US Dist LEXIS 174842,*12 (MD Pa Jan. 7, 2011), quoting Waris v. Mackey, 2009 US Dist LEXIS 116961,*42 (ED Pa Dec. 14, 2009) (citing Brow v. Farrelly, 994 F2d 1027, 1038 (3d Cir 1993)). The Third Circuit “‘has made clear that a pattern of groundless and vexatious litigation will justify an order prohibiting further filings without permission of the court.”‘ Banks v. Lea, 793 F App’x 62,63-64 (3d Cir 2020), quoting Chipps v. U.S. Dist. Court for the Middle Dist. of Pa., 882 F2d 72,73 (3d Cir. 1989) (citing Gagliardi v. McWilliams, 834 F2d 81 (3d Cir. 1987); In re: Oliver, 682 F2d 443 (3d Cir. 1982)). Moreover, “[b]ecause the plaintiff[s] continue to file the same actions that raise similar claims over and over again, ‘[their] pro se status cannot shield [them] from the consequences of what amounts to purposeful bad faith litigation.” Fessler, supra, quoting Crooker v. Delta Mgt. Assoc., 2010 US Dist LEXIS 31893,*12 (MD Pa Apr. 1, 2010).
In summary, while dealing with vexatious pro se litigants is becoming more prevalent in practice, there are strategic weapons available to the savvy litigator to end the litigation vortex often created by litigants’ continued abuses of the legal process through repetitive and vexatious litigation.
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