Commercial Litigation and Arbitration

Sanctions — Vexatious Litigants — Sample Order

‛The right of access to the courts is neither absolute nor unconditional and the Constitution confers no right to prosecute frivolous or malicious actions.“ Zhu v. Federal Housing Finance Board, 2007 U.S. Dist. LEXIS 32398 (D. Kan. May 1, 2007). In Zhu, District Judge Kathryn H. Vratil sets forth the five factor test applied in the Tenth Circuit to determine whether a court may, in the exercise of its inherent power, limit a litigant’s filing of claims in federal court: ‛(1) the litigant's history of litigation and whether it entails vexatious, harassing or duplicative lawsuits; (2) the litigant's motive in pursuing litigation, e.g., whether the litigant has an objective good faith expectation of prevailing; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether lesser sanctions would be adequate to protect the courts and other parties. Id. Ultimately, the question is whether a litigant who has a history of vexatious litigation is likely to continue to abuse the judicial process and harass other parties.“

Held, a pro se plaintiff who filed 472 documents ‛[i]n successive attempts to reintroduce dismissed claims“ in repeated disregard of court orders enjoined as follows:

Unless she first obtains leave of the Court to proceed pro se, plaintiff is prohibited from initiating a civil action in the United States District Court for the District of Kansas without the representation of an attorney licensed to practice in the State of Kansas and admitted to practice in this Court.

Compare the Tenth Circuit's decision in Andrews v. Heaton, 2007 U.S. App. LEXIS 9275 (10th Cir. April 23, 2007), in which the Court "more narrowly tailored" a vexatious-litigant bar order to limit the injunction to future lawsuits dealing with the same subject matter and the same defendant because the plaintiff's "history does not (at least as yet) suggest that [he] is likely to abuse the legal process in connection with other personas and subject matters and thus does not support restricting [his] access to the courts in all future pro se proceedings pertaingin to any subject matter and any defendant."

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