SOME PEOPLE JUST WONT STOP SUING FOR NO REASON AT ALL OTHER THAN THEY ARE MISERABLE HUMAN BEINGS. THEY ARE KNOWN AS VEXATIOUS LITIGANTS. THIS IS A SHORT TREATISE ON NEW YORK LAW AND VEXATIOUS OR NUISANCE LITIGANTS.
Much of this is taken from a post I wrote about New York vexatious and nuisance litigants that you can read by clicking on this hypertext link
Disclaimer: none of this is legal advice, this is just the musings of an attorney that does not even practice in Arizona. I was asked a question about this issue as it related to New York law and took about 10 minutes to look at the law behind it. I had previously been asked about Arizona. Vexatious or nuisance litigants are a pox on the legal system. The research regarding this issue in both New York and Arizona was so accessible and clear that I felt I would take a few minutes more and write this post. I found it rather easy to explain to myself, so I’m hopeful that I can explain this to anyone that comes by this page. Take this for what it is worth, I’m a lawyer, but I’m neither licensed or versed in Arizona law. If you are actually involved in a nuisance lawsuit in Arizona, you should consult an Arizona attorney. Having said that, let’s begin.
A lawsuit is brought against you for the purpose of nuisance, harassment, delay or other improper means
Let’s take a hypothetical example of an awful person who sues you just to be a nuisance, just to get you back for some perceived slight, or just to annoy you because they are an awful, miserable human being with no purpose in life but to harass people and with nothing better to do. These people exist, and sometimes he or she will sue you even though he or she has no legal or factual basis to maintain a lawsuit. For example, you call someone a criminal – let’s say a thief. There is a possibility that statement can be defamatory, if it is not true. However, it is true. The truth is a complete defense to defamation. You know it is true because the records are all over the internet and because you have seen court records of the conviction. The person knows they were convicted of theft and that they have no legal or factual basis to file suit. But they sue you nonetheless.
As I just said, the truth is and has always been a complete defense to defamation. Indeed, in Arizona “substantial truth” is a defense to defamation. That means if the statement is mostly true, you have not defamed the offended party. See Fendler v. Phoenix Newspapers, Inc., 636 P. 2d 1257 – Ariz: Court of Appeals, 1st Div., Dept. A 1981. That case is illuminating in it’s legal basis for substantial truth as a defense (even though in the hypothetical you have a complete defense of truth)
We consider first the general question of whether substantial truth is a complete defense to defamation. Arizona courts have long held that truth is a complete defense to an action for defamation. However, these cases do not specifically address the question of substantial truth as a defense. See, e.g., Cullison v. City of Peoria, 120 Ariz. 165, 584 P.2d 1156 (1978); Central Arizona Light and Power Co. v. Akers, 45 Ariz. 526, 46 P.2d 126 (1935). In deciding whether substantial truth, like absolute truth, should provide a complete defense to defamation, we look to the Restatement (Second) of Torts, which Arizona will follow in the absence of authority to the contrary. See MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958); Barnum v. Rural Fire Protection Co., 24 Ariz. App. 233, 537 P.2d 618 (1975).
Rule 109(b) provides that a party’s signature on any document “confirms that […] the document is filed in good faith, and not to harass another party” and that a document filed in violation of this rule authorizes imposition of a penalty pursuant to JCRCP Rule 127(d). (Rule 109(b).) Rule 127(d), in turn, provides for the imposition of compensatory fees, including attorneys’ fees or costs, or any “reasonable civil penalty, including a monetary penalty, which is appropriate under the circumstances.” (Rule 127(d).)
If an attorney so declared that our hypothetical complaint was filed for such an impermissible strategic purpose, despite its lack of merit, that conduct would be sanctionable. (See, Higgins v. Higgins (App. 1999) 194 Ariz. 266, 270 [holding pro per litigant to same standard as an attorney.])
What is a vexatious litigant?
Wikipedia has a fairly good definition of what a vexatious litigant is
Someone that brings a lawsuit on their own behalf is called a pro per litigant. It is a pro per litigant that is the one that will typically be declared vexatious and get sanctioned for bringing a frivolous lawsuit, as it is presumed that an attorney will not bring a lawsuit without basis, as stated above.
Vexatious litigants are clearly and easily defined in Arizona. The filing excesses of vexatious litigants interfere with the orderly administration of justice by diverting judicial resources from those cases filed by litigants willing to follow court rules and those meritorious cases that deserve prompt judicial attention. (See, Acker v. CSO Chivera (App. 1997) 188 Ariz. 252.)
Even though the following case I’m going to share with you itself is an unpublished case (here); meaning you cannot use it in court, it cites to published cases and established precedent that so clearly define, in the context of the facts of this case, what a vexatious litigant is in Arizona;
[Paragraph 16:] Madison finally argues the superior court erred by declaring her a “vexatious litigant” and ordering her to refrain from filing additional lawsuits … [Paragraph 17] Arizona courts possess inherent authority to curtail a vexatious litigant’s ability to initiate additional lawsuits. See Acker v. CSO Chevira, 188 Ariz. 252, 254, 934 P.2d 816, 818 (App. 1997) (defining a court’s inherent authority as “such powers as are necessary to the ordinary and efficient exercise of jurisdiction”); De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) (recognizing strong precedent establishing inherent authority of federal courts “to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances”) (citation omitted). Because access to courts is a fundamental right, DeVries v. State, 219 Ariz. 314, 321-22, ¶¶ 22-23, 198 P.3d 580, 587-88 (App. 2008), such orders must be entered sparingly and appropriately. De Long, 912 F.2d at 1147 (noting courts should rarely enter vexatious litigant orders, which serve as exceptions to the general rule of free access to courts).
A litigant who has done such things before is a great example of someone who can be declared a vexatious litigant under Arizona law. You can do an online case search to see how many cases they have filed pro per, taking special note of how many they have lost. Go to the clerk’s office in the county of the vexatious litigant and take a look. If he or she has done this to you, he or she has probably done it before. Another question to ask is this: have they been declared a vexations litigant in another state? Most states keep an online data base of vexatious litigants. Take a look. You may be surprised.
The federal appellate court that covers Arizona has given guidance about what factors to consider when the court strips a litigant of the right to file a suit without first obtaining permission from the court. [note 8] “A court typically enters an administrative order to declare a person a “vexatious” litigant and place conditions on future filings.”
[foot note 9] the Ninth Circuit has held a court can derive guidance from considering the following factors: (1) the litigant’s history of litigation and the nature of prior lawsuits, (2) the litigant’s motive in filing new lawsuits, (3) whether the litigant is represented by counsel, (4) whether the litigant has caused needless expense to others or unduly burdened the court, and (5) whether different sanctions would adequately protect other parties and the court. Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057-58 (9th Cir. 2007) (citing Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)). at 1147-48 (citation omitted).
So if someone has done this before, especially if they have been declared a vexatious litigant in another jurisdiction, they will likely be declared vexatious in Arizona. So go get ‘em! Put this creep out of business for good in Arizona.
Arizona has a new law taking effect December 31, 2014 that will codify
the court’s inherent ability to declare a litigant vexatious
Arizona courts “possess inherent authority to curtail a vexatious litigant’s ability to initiate additional lawsuits.” (Madison v. Groseth (App. 2012) 230 Ariz. 8, 15.) Explicitly recognizing this authority, Arizona’s legislature recently unanimously approved, and Gov. Brewer signed, HB2021, which codifies a procedure by which an in pro per litigant may be designated a vexatious litigant.
HB2021, chaptered at A.R.S. Title 12, Chapter 24, 12-3201, does not take effect until December 31, 2014. Courts, until then, continue to possess an inherent authority to designate someone a vexatious litigant. Alternatively, if an action is not dismissed outright, a Court could stay proceedings until January 1, 2015, at which point a defendant could seek to have the plaintiff then designated as a vexatious litigant—the statute prohibits not just beginning vexatious litigation, but filing any motion at all.
In a case where someone is clearly abusing the judicial system to harass people, I would seek not only to get my own case dismissed, I would seek to get them declared a vexatious litigant so that they both can’t file nuisance, harassing, improper or vexatious suits against me, I would want that person declared vexatious because they are likely to do the same thing to others. Essentially, I would take it upon myself to put them out of business for good in Arizona, as I stated above. If they have harassed you, they likely have, or will, harass others with litigation. Don’t let them. Fight back. If they file lawsuits to get their kicks, take that joy away from them.
Conclusion: Get the case dismissed and get sanctions against the abusive litigant – i8n other words, get some $$$ from the miscreant
The litigant we described at the beginning, the one who was trying to sue people for what is unquestionably an improper purpose, in this case defamation when they know the statement made to be true, could be declared a vexatious litigant or otherwise subject to sanctions, assuming they have not yet risen to the level of a vexatious litigant. If you have to get an attorney, it is possible the fees you expended will have to be paid by the nuisance litigant. There are other money and judicial sanctions available as well.
One other sanction is to make the vexatious litigant post a bond to continue the litigation. The posting of a bond ensures that when the vexatious litigant invariably loses his or her suit, the money is with the court,and you will get paid your sanctions from the court instead of having to chase around some vexatious litigant. Arizona Rule 67(d) allows a plaintiff to be required to post a bond if it is shown that the plaintiff owns no property in Arizona which may be seized or executed to satisfy costs should the defendant prevail. This is true even if the plaintiff is a resident of Arizona. (See, Thiele v. City of Phoenix (2013) 232 Ariz. 40.)
So, to summarize, judges are not amused in the least by vexatious litigants and nuisance lawsuits. Seek sanctions and a bar to the person filing similar suits. If that does not deter the pest, you may have a claim for malicious prosecution against THEM! Most of all, don’t let a vexations litigant bother you. That is what they want. You hold the upper hand in frivolous cases. Remember that. The law does not suffer nonsense lawsuits lightly. If someone has sued you for purposes of harassment, delay, to be a nuisance, for improper factual or legal reason, or for any other improper purpose, go get ‘em!
I hope these musings were helpful. Again, this is not legal advice, just my musings. If you can add to these thoughts, especially if you are an Arizona attorney, I would love to hear from you in the comments section.