When asked by a client whether or not there is any way to stop a plaintiff filing frivolous suits, experienced defense counsel can usually only offer a few wholly unsatisfying responses. The short answer of “no” is usually the correct one, though in some circumstances counsel might advise the client that sanctions could be available if it is proven that plaintiff filed suit without any factual or legal basis. Of course litigating and proving the grounds for a sanctions award can be as costly as defending a frivolous suit on the merits, without any guarantee of success. In short, the available options for responding to frivolous suits are often expensive and frustrating for the client.
Recently, though, the Virginia Supreme Court itself felt the burden of frivolous filings and told a habitual plaintiff enough is enough. In the case of Adkins v. CP/IPERS Arlington Hotel LLC, 2017 Va. Unpub. LEXIS 15 (June 8, 2017), the Virginia Supreme Court considered imposing a pre-filing injunction against a plaintiff who, over the course of a decade, filed numerous lawsuits which were dismissed at the trial court level and then appealed to the Virginia Supreme Court. The Court never granted any of plaintiff’s appeals, all of which were found to be meritless. Looking at the Court’s docket since 2009, plaintiff had filed 27 appeals, which “unduly burdened opposing litigants and interfered with the administration of justice.” Id. at 9. According to the Court, plaintiff “subjected dozens of innocent individuals and entities to the cost of defending meritless claims both in the trial courts and on appeal.” Id. at 10.
Plaintiff’s Prior Suits
Plaintiff’s prior suits asserted numerous causes of action including breach of contract and tort claims, typically against service-industry defendants, such as hotels, restaurants, banks and auto dealers. According to the Court, plaintiff’s claims included “allegations predicated on her belief that she is being intentionally subjected to noxious fumes, poisoned by food she consumes at restaurants, and defrauded by various retail workers and hotel proprietors.” Id. A partial listing of plaintiff’s claims included the following:
- That plaintiff suffered severe emotional distress and became bedridden with stress when, upon withdrawing $350 from a bank she was given counterfeit money containing “more than one president’s portrait on the face of a five-dollar bill.”
- That, as a result of eating a pasta meal, she suffered “an internal severe pain injury” and “severe stomach injury of ringworms externally.”
- That an auto dealership intentionally performed a defective replacement of the brakes on her vehicle, causing the brakes to squeak loudly.
- That an insurance company refused to compensate her for “two very small and light scratches” and a “1-inch somewhat deep scratch” that she discovered when her vehicle was parked overnight outside a hotel and that the company’s employees “acted intentionally and maliciously” toward her, lacked “the basic knowledge regarding ‘how to’ process a claim for damages,” and caused her to “waste [her] time.”
- That she contracted ringworm, suffered a migraine, and was exposed to dog urine and toxic chemicals while staying in a guest room at a hotel.
- That she suffered an insect bite, a severe headache, and internal bleeding during her stay at a hotel.
In Virginia state courts, Va. Code Ann. § 8.01-271.1 provides the framework for responding to frivolous pleadings, providing,
The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
If a pleading, motion, or other paper is signed or made in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper or making of the motion, including a reasonable attorney’s fee.
Va. Code Ann. § 8.01-271.1. (Emphasis added).
The requirements of Va. Code Ann. § 8.01-271.1, apply this good faith requirement to pleadings filed both by attorneys and pro se litigants such as the plaintiff in Adkins. Shipe v. Hunter, 280 Va. 480, 484, 699 S.E.2d 519, 521 (2010).
In this case, the Court was presented with the question of whether to impose a pre-filing injunction upon the plaintiff. The Court looked to the ruling of the United States Court of Appeals for the Fourth Circuit in the case of Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 817 (4th Cir. 2004), for persuasive authority on the applicable standard for imposition of a pre-filing injunction. Although the Fourth Circuit held that a pre-filing injunction is “a drastic remedy [which] must be used sparingly, consistent with constitutional guarantees of due process of law and access to the courts,” that Court nevertheless set forth a four factor test for whether the pre-filing injunction is appropriate including the following:
(1) the party’s history of litigation, in particular whether he has filed vexatious, harassing, or duplicative lawsuits;
(2) whether the party had a good faith basis for pursuing the litigation, or simply intended to harass;
(3) the extent of the burden on the courts and other parties resulting from the party’s filings; and
(4) the adequacy of alternative sanctions.
Cromer, 390 F.3d at 817.
In applying the four factor test, the Virginia Supreme Court determined that a pre-filing injunction was necessary to prevent further frivolous appeals by the plaintiff in Adkins. Going forward, prior to filing appeals to the Court, plaintiff must either hire an attorney, or obtain leave of Court to proceed pro se.
It is important to note that even in exercising some control over the frivolous filings of this particular plaintiff, there are significant limits on the Court’s order. Most importantly, the Court’s ruling only imposes pre-filing requirements upon plaintiff’s ability to file appeals. There remains no limitation on plaintiff’s ability to file suit in the circuit courts or general district courts of Virginia. As noted in the Court’s opinion, since 2009, plaintiff had filed at least 41 lawsuits in northern Virginia, including 20 in Fairfax County, 17 in Alexandria and 4 in Arlington. The Court’s ruling limiting plaintiff’s ability to file appeals will not on its own do anything to hinder these filings in circuit courts in the Commonwealth.
In addition, while the Court’s ruling represents a limit on future frivolous appeals it does nothing to redress the harm and costs of the 27 prior frivolous appeals to the Court by this plaintiff. The costs of the defense of those prior suits will remain on the particular individuals, businesses, and their insurance carriers that plaintiff targeted.
While the Court’s ruling is limited, it will be of some use to future defendants when faced with frivolous litigation. Habitual plaintiffs are a fixture in courts all over the Commonwealth and other jurisdictions. When facing a new suit a search of the local docket for prior filings is always good practice, especially where a repeat player is suspected. Rulings such as this one will be persuasive authority for other judges considering how to deal with habitual plaintiffs.
Here, the Court noted the impact that this particular plaintiff had on “innocent individuals and entities” defending against plaintiff’s suits, but the Court also reasserted its “inherent power to protect its jurisdiction from repetitious and harassing conduct that abuses the judicial process.” Adkins at 13. That inherent power exists not only in the Virginia Supreme Court, but in the trial courts of Virginia as well. Now, armed with the Virginia Supreme Court’s recent decision, those trial courts will also be on solid footing when faced with a habitual plaintiff filling the docket with frivolous suits.