Monday, October 31, 2016

Dealing with a Vexatious Litigant

By Sim Israeloff

Texas courts are open to everyone.  It normally costs around $400 in fees and other charges to file a lawsuit.  But a person who can’t afford it can file an Affidavit of Indigency which permits them to file their lawsuit without paying a fee.  See Tex. R. Civ. P 145. 

The rule is sometimes abused by people who make a business of filing large numbers of baseless lawsuits acting as their own lawyer (pro se) and claiming the right to file each suit without a fee.  Many of the suits will fail.  But some defendants will pay to settle a frivolous claim just to avoid the time and expense of fighting it.  A professional plaintiff can find endless victims to sue.

Texas law provides a way to halt this abusive practice.  A plaintiff can be declared a vexatious litigant if the defendant shows that there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant and that:

1.  the plaintiff, in the seven-year period immediately preceding the date the defendant makes the motion under Section 11.051, has commenced, prosecuted, or maintained at least five litigations as a pro se litigant other than in a small claims court that have been:

A. finally determined adversely to the plaintiff;

B . permitted to remain pending at least two years without having been brought to trial or hearing; or

C.  determined by a trial or appellate court to be frivolous or groundless under state or federal laws or rules of procedure;

2.  after a litigation has been finally determined against the plaintiff, the plaintiff repeatedly relitigates or attempts to relitigate, pro se, either:

A. the validity of the determination against the same defendant as to whom the litigation was finally determined; or

B. the cause of action, claim, controversy, or any of the issues of fact or law determined or concluded by the final determination against the same defendant as to whom the litigation was finally determined; or

3.  the plaintiff has previously been declared to be a vexatious litigant by a state or federal court in an action or proceeding based on the same or substantially similar facts, transition, or occurrence.

Tex. Civ. Prac. & Rem. Code §11.054 (emphasis added).   

A plaintiff who is declared a vexatious litigant will be required to furnish security such as a bond or cash deposit for the defendant’s reasonable expenses including costs and attorney's fees.  Id. §11.055.  If they fail to provide the security their suit will be dismissed.  §11.056.  A court can also issue a Prefiling Order prohibiting the vexatious litigant from filing, pro se, any new lawsuits in that court without permission of the local administrative judge.  §11.101.  A powerful tool to stop the abuse.

As an example of a case dealing with a vexatious litigant, in Cooper v. McNulty, No. 05-15-00801-CV (Tex. App. - Dallas October 19, 2016),  Mr. Cooper was declared a vexatious litigant based on evidence of “twenty state, federal, and bankruptcy court cases filed pro se by Cooper since May 14, 2008 and which were determined adversely against him.”  Cooper appealed, again representing himself pro se and filed a 71 page brief.  The court rejected all of Cooper's arguments affirmed the trial court's order declaring him to be a vexatious litigant and prohibited him from filing pro se any new litigation in state or federal court until and unless he has written permission from the appropriate local administrative judge.

The vexatious litigant statute can be a powerful tool to stop the abuse.
 

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