Written by Kadhapriya Lindo, L’26
The broad understanding of litigation abuse is best captured in the term “frivolous litigation.” Frivolous suits are cases brought by a plaintiff, not with the explicit hope of winning the case, but “solely in order to put the defendant to the burden” of defending themselves.[1] These are “legally or factually baseless suit[s],” or suits “brought to harass or oppress.”[2] These cases are found across the legal spectrum, from district courts, to bankruptcy courts, to the jurisdiction of administrative law judges. Rule 11 of the Federal Rules of Civil Procedure covers frivolous litigation at the federal level, providing that an attorney certify a pleading or motion is not being brought “for improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”[3] If a court finds this rule to be violated, the attorney (and law firm, if applicable) responsible may be sanctioned, which may include paying a penalty to the court or payment of reasonable attorney fees and court costs. [4] The ultimate purpose of Rule 11 is to “deter[ ] future litigation abuse. . . .punish[ ] present litigation abuse, [and]. . . . compensat[e] victims of litigation abuse.”[5]
In the context of domestic abuse, however, court rules and procedures tend to gloss over the average victim’s relationship with the litigant when determining if a case is frivolous. Abusive, or vexatious, litigation includes cases which are often brought by the abuser-litigant against the victim after they have physically or financially separated from theabuser.[6] Litigation thereafter becomes a way for the abuser to continue harassing their former partner by forcing them to speak and respond to them in court, allowing continual monitoring of the victim by the abuser, and draining the victim’s funds and resources.[7] These abuser-litigants file suits to “overwhelm, embarrass, and financially impact survivors,” increasing and extending the emotional and economic tolls of domestic violence.[8]
While Rule 11 sanctions can be a useful tool in curbing vexatious litigation at the federal level, the Rule itself is not geared towards evaluating the contextual relationship between parties that could beget domestic abuse.[9] Further, the threat of sanctions themselves may not deter vexatious litigants as strongly as we hope.[10] Existing state court procedures often do not consider the broader, existing context of abuse between the parties when determining if a case is vexatious. In matters of family disputes, such as child custody, the court will often emphasize maintaining a cooperative relationship between the parties unless physical abuse is evident.[11] While few states have adopted statutory requirements for courts to consider contexts of intimate partner violence when a claim of vexatious litigation is raised, Virginia is not among them.[12]
Virginia law mirrors Federal Rule 11, requiring attorneys to certify that a pleading or motion filed is of good faith and is not being used for improper purpose, “such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”[13] Virginia does not include any special mention of the relationship between the parties, or the use of litigation to further domestic abuse, in how vexatious litigation may manifest.[14] Thus, Virginia is a useful case-study for how courts in states lacking an explicit statute treat vexatious litigation as abuse.
COURT PRECEDENT IN CURBING VEXATIOUS LITIGATION
Courts are required to maintain the integrity of the judicial system by preventing frivolous and vexatious suits while still preserving the right of every citizen to seek redress in the courts.[15] Every complaint, motion, pleading, and document filed with the court, “no matter how repetitious or frivolous, requires some portion of the institution’s limited resources. A part of the Court’s responsibility is to see that these resources are allocated in a way that promotes the interests of justice.”[16] While use of the court to harass and financially drain a defendant does not promote justice, “a judge should not in any way limit a litigant’s access to the courts absent exigent circumstances.”[17] Suits where the litigant is pro se must be approached with “particular caution” due to their vulnerability in the legal system.[18] The courts should then impose sanctions and pre-filing injunctions only if the litigant “is likely to continue to abuse the judicial process and harass other parties.”[19]
As such, there are four factors courts must consider (known as the “Cromer factors”) in finding a party liable for vexatious litigation and determining whether to impose a pre-filing injunction: (1) the party’s history of litigation and the content of prior litigation; (2) if the party had a good faith basis for pursuing litigation or an expectation of prevailing; (3) the extent of the financial burden on the courts and the other parties; and (4) the adequacy of alternative sanctions to protect the courts and other parties.[20] If these factors support the issuance of a pre-filing injunction, the court must narrowly tailor the injunction “to fit the specific circumstances at issue.”[21] Thus, if the abuser-plaintiff is found to have a history of bad-faith litigation on a specific legal issue, they can be barred from bringing suit in related cases but still retain the right to file in unrelated cases.[22]
While created in the federal court, the Cromer factors have been adopted by Virginia courts in an effort to curbvexatious litigation.[23] In Madison v. Bd. of Sup’rs of Loudoun Cnty., the court found the plaintiff to have had a long history of filing “duplicative” and vexatious suits for the sole purpose of harassment, which taxed the finances of the courts and the defendant, specifically.[24] Because these vexatious suits targeted “only” the defendant, the pre-filing injunction handed down by the Court was limited to future actions filed by the plaintiff against the defendant “or any of its divisions or departments.”[25] The narrow scope of the injunction follows the Cromer requirements to its end.[26]
In the family law context, a clear historical showing of vexatious litigation is the clearest way for a victim to bring forth an abusive litigation claim.[27] In Barrett v. Minor, the abuser-plaintiff had filed seven appeals to the presiding court and asserted, in total, “more than seventy-seven assignments of error” relating to his custody arrangements with the victim-defendant.[28] The Court found that the abuser-plaintiff was not filing in good faith, but to “needlessly harass the opposing parties and increase the cost and burden of litigation.”[29] In Grant v. Walters, however, while the abuser-plaintiff had filed “multiple motions” for reconsideration of the circuit court’s order of child custody and support with his former wife, the lower and appeals courts found his assignments of errors frivolous but not vexatious.[30] The abuser-plaintiff was still permitted to litigate the matter, but was required by a circuit court order to state sufficient cause of action.[31]
The history of vexatious litigation also informs the type of sanction or injunction placed on the abuser-litigant. While the abuser-plaintiff in Barrett had sanctions imposed against him in prior cases against the victim-defendant, including the loss of his bar license, the Court concluded that the only clear way to prevent further abuse of the court was a pre-filing injunction limited to litigation against the victim defendant.[32] While the scope of the injunction was limited, the Court allowed that it “may revisit the scope of this injunction in the future if circumstances warrant.”[33] On the other hand, the sanctions imposed on the abuser-plaintiff in Grant were lighter, restricting the abuser-plaintiff’s ability to schedule hearings on any motions he filed until the court “determine[d] the pleadings [had] stated facts sufficient to state a cause of action. . . .”[34] The Court found this necessary to “avoid unnecessary hearings to the detriment of” the victim-defendant.[35] The shorter and less intensive history of vexatious litigation in Grant compared to Barrett informed consideration of the fourth factor, as the abuser-plaintiff in Barrett had exhausted the court and his victim for years with various filings while the litigation in Grant was seemingly contained.[36]
While Federal Rule 11 and various states’ mirroring regulations for frivolous or harassing litigation can help curb vexatious litigation, explicit consideration of the abuse context between the parties is lacking in the majority of states. Recently, however, the state legislatures of Tennessee and Washington have enacted their own statutory language instructing courts to consider the relationship between the litigating parties to determine if a suit is vexatious.[37]
Tennessee Statute: Title 29, Chapter 41. Abusive Civil Actions
In 2018, Tennessee passed the Abusive Civil Action Law, which enacted Tenn. Code Ann. § 29-41.[38] Code § 29-41-103 allows a victim-defendant to raise a claim of abusive civil action either in the answer to the complaint or by motion at any time during the action, and allows the court to raise the claim itself.[39] The statute specifically defines an “abusive civil action” as an action filed by a plaintiff against a defendant “with whom the plaintiff shares a civil action party relationship” for the purpose of harassing or injuring the defendant.[40] The phrase “civil action party relationship” is inclusive of possible relationships from which intimate partner violence can stem, and applies to:
- “Adults who are current or former spouses;
- Adults who live together or who have lived together;
- Adults who are dating or who have dated or who have or had a sexual relationship[;]
- Adults related by blood or adoption;
- Adults who are related or were formerly related by marriage; or
- Adult children of a person in a relationship that is described [above.]”[41]
The Code goes further to define the purposes for which an abusive civil action might be levied, including: (1) to force or coerce childcare from the defendant; (2) to impact the health and well-being of the defendant; or (3) to interfere with attempts by the defendant to maintain their lifestyle.[42] These definitions allow the victim-defendant to raise a claim of abusive litigation specific to their circumstance, and thereafter requires the court to consider not just their relationship to the abuser-plaintiff, but the ramifications such litigation may have on their personal life.
If a court finds the civil action to be abusive, the court is required to dismiss the action entirely.[43] The court shall also: (1) “tax all costs of any abusive civil action pending in the court at the time of the court’s finding;” (2) award the defendant “reasonable attorney fees” and reasonable costs for defending the action;and (3) impose pre-filing restrictions on the plaintiff should they file any other civil action in a court-determined period, from a minimum of three years to a maximum of six years.[44] The additional penalties stretch beyond the typical sanctions and fees imposed on the attorney by Rule 11 and its ilk, and make it dangerous and costly to bring forth abusive litigation. However, if the court does not find the abuser-plaintiff to have engaged in an abusive civil action, the court may rule in favor of the plaintiff in whole or in part and may tax costs of litigating the issue of abusive civil action to the victim-defendant.[45] While this outcome can make it daunting for the victim-defendant to put forth a claim of abusive litigation, the costs levied may still be less than pursuing the full litigation.
Washington Statute: Title 26, Chapter 26.51. Abusive Litigation – Domestic Violence
Following the Tennessee bill as a model, the Washington legislature passed Senate Bill 6268 (a.k.a. the Abusive Use of Litigation bill) in 2020.[46] Codified as section 26.51, the statute allows any party to the litigation to request from the presiding court “an order restricting abusive litigation if the parties are current or former intimate partners and one party has been found by the court to have committed domestic violence against the other party[.]”[47] The party may request this order in answer to the complaint, by motion at any time during the proceedings, or “[b]y separate motion. . . . within five years of the entry of an order for protection even if the order has since expired.”[48] Differing from the Tennessee statute, however, Washington requires that the abuser-defendant had been found to have committed domestic violence prior to the filing, which must be established through a court order, a parenting plan with restrictions, or a restraining order necessitated by domestic violence.[49] This presents a challenge in situations where a victim cannot file charges against their abuser or lacks the evidence to support a criminal charge, such as in cases of emotional or financial abuse.[50]
Washington’s statute, unlike Tennessee’s, does include a section regarding evidentiary requirements.[51] Once the victim-defendant requests an order against abusive litigation, evidence of the following creates a rebuttable presumption supporting the claim:
- “The same or substantially similar issues between the same or substantially similar parties have been litigated within the past five years” either in the current court or any other court;
- “The same or substantially similar issues between the same or substantially similar parties have been raised, pled, or alleged in the past five years and were dismissed on the merits or with prejudice;”
- The party allegedly brining abusive litigation has been sanctioned by a higher court for filing frivolous or vexatious motions and other filings; or
- A court of record in another jurisdiction has determined the alleged party has “previously engaged in abusive litigation or similar conduct and has been subject to a court order imposing pre-filing restrictions.”[52]
If this presumption is not rebutted, or other evidence provides cause to show abusive litigation, the court must dismiss the case with prejudice.[53] The court must also impose court costs on the abuser-plaintiff, award the victim-defendant reasonable attorneys’ fee and costs (including the costs of seeking the order), and impose pre-filing restrictions on the abuser-litigant for a minimum of four years to a maximum of six years.[54]
Unlike Tennessee, if the court finds in favor of the abuser-plaintiff, there are no sanctions or fees levied against the victim-defendant.[55] Rather, the court must proceed with the case after entering their findings on the order on abusive litigation.[56] This makes filing such an order a simpler task for the victim-defendant and does not punish them for making a claim of abuse.
CONCLUSION
In states that have enacted statutes barring vexatious litigation in the domestic violence context, courts are required to consider the intimate relationship between the parties and the possible purposes of the litigation to further abuse. In states like Virginia, which lacks a domestic abuse-specific vexatious litigation statute, the courts must rely on the history of litigation between the parties, the possible good faith purpose of the litigation, and the financial burden the courts and victim have incurred. Lacking the relationship context, abusive litigation suits may be allowed to move forward when asserted by particularly well-represented abusers, who have stronger relationships with the legal system.
The necessity for historical showing may also present a barrier to preventing vexatious litigation. Pro se litigants or other victims with limited financial resources may not be able to continue fighting abusive litigation for the length of time needed to support a vexatious litigation claim. Abusers may be incentivized to continue litigation until their victim concedes to their desires, knowing they will not receive sanctions or injunctions until much later. Ultimately, impoverished victims with financially stable or well-connected abusers will fall through the cracks as they attempt to defend themselves.
By considering the broader, intimate context of domestic abuse and the courts’ role to play in such a relationship, the legal system will be in a better place to prevent continuing abuse of both victims and the court process. It will also be in a better position to consider evidence that is specific to victims’ circumstances and deter the co-opting of the justice system.
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Ron Lach, Photograph of woman on a bed surrounded by documents and a laptop, burying her face in a pillow, from Pexels.
[1] Tarkowski v. Lake Cnty., 775 F.2d 173, 176 (7th Cir. 1985).
[2] Id.
[3] Fed. R. Civ. P. 11(b)(1).
[4] Id. at (c)(1), (4).
[5] White v. Gen. Motors Corp., 908 F.2d 675, 683 (10th Cir. 1990).
[6] Ashley Beeman, The Need for More States to Adopt Specific Legislation Addressing Abusive Use of Litigation in Intimate Partner Violence, 20 Seattle J. for Soc. Just. 825, 831-32 (2022).
[7] Id.
[8] Id. at 832-3.
[9] See, e.g. Mary Przekop, One More Battleground: Domestic Violence, Child Custody, and the Batterers’ Relentless Pursuit of Their Victims Through the Courts, 9 Seattle J. for Soc. Just. 1053, 1088-9 (2011) (discussing the “high threshold model” in application of Rule 11 at the state level, which requires a clear showing of bad faith from the abuser for sanctions to be applied, rather than considering abusive history between the parties).
[10]See, e.g. Byron C. Keeling, Toward A Balanced Approach to “Frivolous” Litigation: A Critical Review of Federal Rule 11 and State Sanctions Provisions, 21 Pepp. L. Rev. 1067, 1141 (1994) (“As long as sanctions schemes continue to encourage courts to assess fee awards as the exclusive form of sanction, some litigants will continue to pursue arguments that serve no function other than to consume court time and stall the progress of justice.”).
[11] See Va. Code Ann. § 20-124.3 (West, Westlaw through Reg. Sess. 2024).
[12]See, e.g., Vt. Stat. Ann. Tit. 15, § 1181 (West, Westlaw through Vt. Gen. Assemb. of 2024) (allowing a claim of abusive litigation simply where “the opposing parties have a current or former family or household member relationship or there has been a civil order or criminal conviction determining that one of the parties stalked or sexually assaulted the other party.”); see also N.D. Cent. Code Ann. § 14-07.6-01 (West, Westlaw through 2023 Reg. Sess.) (defining abusive litigation as one where “[t]he parties have or had an intimate partner relationship or any other person with a sufficient relationship to the abusing person as determined by the court[.]”).
[13] Va. Code Ann. § 8.01-271.1(B)-(C) (West, Westlaw through Reg. Sess. 2024).
[14] Va. Code Ann. § 8.01-271.1.
[15] In re McDonald, 489 U.S. 180, 184 (1989).
[16] Id.
[17] Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 817-8 (4th Cir. 2004) (internal quotations omitted).
[18] Id. at 818.
[19] Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986).
[20] Safir, 792 F.2d at 24; Cromer, 390 F.3d at 818.
[21] Cromer, 390 F.3d at 818.
[22] Id. at 819.
[23] See, e.g. Madison v. Bd. of Sup’rs of Loudoun Cnty., 296 Va. 73 (2018).
[24] Madison, 296 Va. at 77 (citing the factors in Cromer, 390 F.3d at 818).
[25] Id.
[26]See Cromer, 390 F.3d at 818, supra note 17.
[27] See Barrett v. Minor, 299 Va. 27 (2020).
[28] Barrett, 299 Va. at 30.
[29] Id. at 31-32 (discussing evidence of various vexatious litigation against the victim-defendant in the lower courts).
[30] Grant v. Walters, No. 0960-21-4, 2022 WL 2307933 at *5 (Va. Ct. App. June 28, 2022) (citing Madison, 296 Va. at 76).
[31] Id.
[32] 299 Va. 32-33 (citing Madison, 296 Va. at 77).
[33] Id.
[34] 2022 WL 2307933 at *5, supra note 30.
[35] Id.
[36] Grant, 2022 WL 2307933 at *5; Barrett, 299 Va. at 30.
[37] See Tenn. Code Ann. § 29-41; see also Wash. Rev. Code Ann. § 26.51 (expanded on below).
[38] Beeman, supra note 1, at 844-45.
[39]See Tenn. Code Ann. § 29-41
[40] Tenn. Code Ann. § 29-41-101(1) (West, Westlaw through Ch. 925 of 113th Reg. Sess. of Gen. Assemb.).
[41] Id. at 101(5)(A)-(F).
[42] Id. at 101(D)-(F).
[43] Tenn. Code Ann. § 29-41-106(a) (West, Westlaw through Ch. 925 of 113th Reg. Sess. of Gen. Assemb.).
[44] Id at 106(b)(1)-(3).
[45] Id. at 106(c)-(d).
[46] Beeman, supra note 1, at 849-50.
[47] Wash. Rev. Code Ann. § 26.51.030(1) (West, Westlaw through Reg. Sess. 2024) (emphasis added).
[48] Id. at 030(1)(a)-(c).
[49] Wash. Rev. Code Ann. § 26.51.020(1)(a)(ii) (West, Westlaw through Reg. Sess. 2024).
[50] There are many situations where this issue may be present, such as when the abuser is a family member or someone the victim is economically dependent on, or the victim is of color and does not desire to interact with the criminal justice system due to historical mistrust.
[51]Wash. Rev. Code Ann. § 26.51.050 (West, Westlaw through Reg. Sess. 2024).
[52] Id.
[53] Wash. Rev. Code Ann. § 26.51.060(1) (West, Westlaw through Reg. Sess. 2024).
[54] Id. at 060(2)(a)-(c).
[55] Id. at 060(3).
[56] Id.