The Virginia Business Litigation Blog
When former attorney Ann Marie Miller had a bone to pick with Jennifer Ann Kelley, Miller used her knowledge of the legal system to represent herself in numerous suits of questionable merit against Kelley, according to Judge Wilson of the Western District of Virginia. In Miller v. Kelley, the court held that although it could not award Kelley attorney’s fees nor impose Rule 11 sanctions, it could enjoin Miller from filing any future frivolous pro se lawsuits in its district against Kelley.
After the court dismissed Miller’s state-law libel claim for failure to prosecute, Kelley sought attorney’s fees under 28 U.S.C. § 1927, sanctions under Federal Rule of Civil Procedure 11, and an order enjoining Miller from filing future suits against Kelley without prior judicial leave. The court found that it could not award fees because 28 U.S.C. § 1927 does not apply to pro se litigants, and it refused to impose sanctions because the “safe harbor” provisions of Rule 11 preclude the filing of any Rule 11 motion after the conclusion of a case. However, the court issued an injunction prohibiting Miller from filing future pro se actions against Kelley, relying on the All Writs Act, 28 U.S.C. § 1651(a) (2006) and four factors set forth by the Fourth Circuit.
The All Writs Act authorizes the sparing use of pre-filing injunctions when a litigant repeatedly files frivolous suits. The Fourth Circuit has set forth factors to evaluate in determining whether a pre-filing injunction is warranted: 1) the party’s history of litigation, in particular whether she has filed vexatious, harassing, or duplicative lawsuits; 2) whether the party filed her cases on a good faith
basis or only to harass; 3) the extent of the burden on the courts and other parties resulting from the party’s filings; and 4) the adequacy of alternative sanctions.
An examination of these factors warranted a narrowly drawn pre-filing injunction. First, Miller had a history of filing harassing suits against Kelley in a multitude of forums. Second, Miller used the litigation to level insults rather than make legal arguments, calling Kelley a “fat, stupid woman with bad teeth and ugly hair,” her son an “obnoxious, illiterate braggart,” and her daughter a “preteen with a beer gut.” She failed to successfully prosecute even one of her claims. Third, Miller forced courts to expend resources addressing her filings, and Kelley was required to defend herself against numerous meritless claims. Fourth, alternative sanctions were inadequate as § 1927 and Rule 11 did not apply. The court’s inherent power to sanction Miller would be ineffective given that Miller had filed two bankruptcy proceedings. Miller threatened future litigation against Kelley, and the court determined that no sanction short of a pre-filing injunction would deter her. The court, therefore, entered an injunction prohibiting Miller from filing future pro se actions against Kelley.