Arizona used car salesman Van Flury is guilty of vexatious litigation, no doubt about it. He has sued everybody from the company that built his house to a competing auto dealer. But so what? Isn’t that what sanctions and attorney’s fee awards are designed to punish? And why do vexatious litigation laws apply only to pro se litigants?
In 2007, a federal court dismissed Flury’s claim against a series of creditors. In 2008, another federal court harshly dismissed his claims for violations of the Fair Credit Reporting Act against two other creditors, noting that Flury had “filed eleven lawsuits against various defendants over the last four years, and with the exception of one case that ended in a default judgment, plaintiff has voluntarily dismissed every action once the defendant moved to dismiss the case or otherwise responded to the complaint.” The court suggested Flury’s claims were filed solely for the purpose of vengeance or harassment.
In 2009, a Maricopa County court dismissed his claim for construction defects on his home and awarded attorney fees to the construction company. An Arizona appellate court upheld the award and, luckily for Flury, kindly declined to sanction him further for his frivolous appeal. In 2013, Flury sued his mortgage holder, Bank of New York Mellon, to enjoin a foreclosure suit, but his claim was dismissed within two weeks. He sued the loan servicer shortly thereafter, but that case was also dismissed, and the dismissal was upheld on appeal. The bank foreclosed on his home last year.
A Maricopa County judge earlier this month found that Flury had filed 28 lawsuits in the county over the last decade — in addition to 22 federal cases in the same period — and ruled that he could no longer file lawsuits there without a judge’s permission. What ticked the judge off was Flury’s claim that a competitor had sued him during a bankruptcy court’s stay of all proceedings, when in fact Flury had sued the competitor. He had also sought to halt an eviction following the bank’s foreclosure on his home by claiming rights to nonexistent oil and gas rights on the property.
All of his claims — to put it mildly — have been a hot steaming mess. There is no defense of his actions here. But Flury is not the first litigant to abuse the judicial system. Individuals and companies do it all the time, whether for vengeance, competitive advantage, or whatever. That’s why we have abusive litigation laws that allow victims of frivolous claims to sue for damages. And that’s why we have sanctions and attorney’s fees to punish abusive litigators.
Vexatious litigation laws are nothing new. Most states have them, and Arizona’s is decades old. They typically seek to punish repeated litigation abuses (frivolous claims, discovery requests and motions filed for harassment) by getting a judge’s permission before filing a lawsuit. Under the law, Flury’s judge was right to designate him a vexatious litigant.
But Arizona amended its vexatious litigation statute three years ago to apply only to pro se litigants, and while the state isn’t unique in that regard, we all should have a problem with this. The First Amendment to the Constitution gives us a right to petition government, and that’s all a lawsuit is. It seems to me that a statute limiting a constitutional right should only be allowed when there are no alternatives to curb the bad behavior. That’s not the case with vexatious litigation.
Even if such a statute is allowed, the Fourteenth Amendment requires equal treatment under the law. That means it shouldn’t apply only to pro se litigants. While legal ethics is not quite an oxymoron, the Rules of Professional Conduct don’t really stop lawyers from abusing the system in the same way Flury has done. The only difference is that lawyers know how to plead a case better than your average pro se litigant, and they get paid to do it.
Of course, a statute that deprives pro se litigants of rights is not likely to get the challenge it deserves. Judicial bias against us is real, and a judge reviewing a case filed by a designated vexatious litigant isn’t likely to give it the attention it deserves. Not only will these litigants be blocked at the courthouse doors, but judges doing this dirty work are likely to be upheld on appeal. We’re probably stuck with these laws.
Leave a comment if you’ve ever been guilty of vexatious litigation, whether designated as such or not. Or if you’ve been a victim of it, or you feel some kind of way about the subject, let me know. I’ll admit to a case I filed years ago where I needed to make somebody pay, and where I knew I didn’t have a claim. But that story is for another day.