Commercial Litigation and Arbitration

Vexatious Litigants — Inherent Power Sanctions — Filing Restrictions on Future Appeals

Landrith v. Schmidt, 732 F.3d 1171 (10th Cir. 2013):

Simply put, Landrith has strained this court's resources with his frivolous and abusive pro se filings, which have only increased as of late. His 2011 mandamus petition and the four appeals he filed in 2012 and 2013 presented arguments with fundamental legal flaws, and none were successful. They also exemplify the concerns expressed by the Kansas Supreme Court in disbarring Landrith. See Landrith, 124 P.3d at 470, 478-79.

Filing Restrictions

"[T]he right of access to the courts is neither absolute nor unconditional and there is no constitutional right of access to the courts to prosecute an action that is frivolous or malicious."

  Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989) (per curiam) (citation omitted).   "There is strong precedent establishing the inherent power of federal courts to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances." Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir. 1986).   "Even onerous conditions may be imposed upon a litigant as long as they are designed to assist the . . . court in curbing the particular abusive behavior involved," except that they "cannot be so burdensome . . . as to deny a litigant meaningful access to the courts." Id. (brackets and internal quotation marks omitted). "Litigiousness alone will not support an injunction restricting filing activities. However, injunctions are proper where the litigant's abusive and lengthy history is properly set forth." Tripati, 878 F.2d at 353 (citations omitted). "[T]here must be some guidelines as  to what [a party] must do to obtain the court's permission to file an action." Id. at 354. "In addition, [the party] is entitled to notice and an opportunity to oppose the court's order before it is instituted." Id. A hearing is not required; a written opportunity to respond is sufficient. See id.

A. Proposed Injunction 

Subject to Landrith's opportunity to file written objections that we outline below, we propose to enjoin Landrith from petitioning this court for relief, either by appeal or through an original proceeding, including a petition for a writ of mandamus under 28 U.S.C. § 1361, unless he either (1) is represented by an attorney who is admitted to practice in this court or (2) obtains permission to proceed pro se.

Landrith must take the following steps to obtain permission to proceed pro se:


1. Submit a petition to the clerk of this court requesting leave to file a pro se action and setting forth (a) a list of all pro se lawsuits currently pending or filed previously with this court, including the name, number, and citation (if applicable) of each case, and the current status or disposition of the case; and (b) a list advising this court of all outstanding injunctions or orders limiting his access to federal court, including orders and injunctions requiring him either to seek leave to file matters pro se or be represented by an attorney, with each matter identified by name, number, and citation (if applicable), of all such orders or injunctions; and

2. File with the clerk of this court a notarized affidavit in proper legal form reciting the issues he seeks to present, including a short discussion of the legal basis asserted therefor, and if appropriate, describing with particularity the order being challenged. The affidavit also must certify to the best of Landrith's knowledge that the legal arguments being raised are not frivolous or made in bad faith; that they are warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law; that his petition or appeal is not being filed for any improper purpose; and that he will comply with all appellate and local rules of this court.

Once filed, these documents shall be submitted to the chief judge of this court. The chief judge or his or her designee shall review the documents to determine whether to permit the pro se proceeding. Without the approval of the chief judge or his or her designee, the matter will be dismissed.   If the submission is approved, an order will be entered indicating that the matter shall proceed in accordance with the Federal Rules of Appellate Procedure and Tenth Circuit Rules.

B. Opportunity To Be Heard

Landrith is ordered to show cause within twenty-one days from the date of this order why this court should not enter the proposed injunction. Landrith's response shall be written and shall be limited to fifteen pages, following the font and type limitations set forth in Fed. R. App. P. 32(a)(4)-(6). Absent a response to this order to show cause, the proposed injunction will enter twenty-eight days from the date of this order and will apply to any matter filed after that time. If Landrith does file a timely response, the proposed injunction will not enter unless the court so orders, after it has considered the response and ruled on Landrith's objections.


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