Yesterday's victory — in which vile domestic terrorist and serial litigant Brett Kimberlin lost his bogus defamation claim against a group of bloggers — was sweet.
But it's not enough.
The directed verdict vindicated the First Amendment rights of the defendants. But it's a belated and partial vindication, because Kimberlin succeeded in abusing the legal system to harass his opponents for a year, costing them time, money, and attention. Kimberlin will undoubtedly continue to do this: he's doing it in federal court and through other state court methods. He boasts openly that he will continue to abuse the system to harass his enemies.
The legal system isn't very good at kicking out frivolous or harassing cases early. Standard civil procedure allows only two main opportunities to terminate a case before trial: a motion to dismiss and a motion for summary judgment. A motion to dismiss asks only whether the complaint is legally sufficient (that is, wether its allegations if true show that the plaintiff is entitled to relief), and a motion for summary judgment asks only whether the plaintiff has any evidence to support his or her claim. I've explained before why those measures are inadequate. Some jurisdictions have anti-SLAPP statutes, but many jurisdictions don't, or have statutes that are woefully inadequate. Moreover, as of now there is no federal anti-SLAPP statute. Litigants who seek to file in forma pauperis — that is, without paying filing fees — face some early review of the merits of their cases, but a litigant like Kimberlin can get around that by paying the filing fee. The bottom line: the system allows people like Kimberlin to inflict significant burdens on free speech through malicious litigation.
But there is another way, one that hasn't been tried against Kimberlin as far as I know.
Many jurisdictions have rules allowing a judge to declare a party a "vexatious litigant" and limit their new lawsuits. Such orders, when issued, generally require the litigant to submit any proposed complaint to the court before filing it, and to make some showing that the case has merit. It's an effective barrier to serial litigation.
The standard for declaring someone a vexatious litigant varies from jurisdiction to jurisdiction. The standard for the United States District Court for the District of Maryland — where Kimberlin is currently vexing his critics with bogus claims — is representative:
Under the All Writs Act, 28 U.S.C. § 1651(a), this Court has the authority to issue a prefiling injunction against vexatious and repetitive litigants. See Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 817 (4th Cir. 2004). A litigant’s access to the courts may be limited in “exigent circumstances, such as a litigant’s continuous abuse of the judicial process by filing meritless and repetitive actions.” Id. at 817–18 (citing Brow v. Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993)). A district court may issue a prefiling injunction to limit a litigant’s access after properly weighing the following factors:
(1) the party’s history of litigation, in particular whether [s]he has filed vexatious, harassing, or duplicative lawsuits; (2) whether the party had a good faith basis for pursuing the litigation, or simply intended 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. Id. at 818 (citing Safir v. United States Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)).
Courts are understandably reluctant to limit access to the courts. Judges therefore require a very strong showing of vexatiousness before issuing one of these orders.
That's probably why nobody has tried this against Kimberlin yet: preparing a strong vexatious litigant motion is time-consuming and expensive. Individual litigants are motivated to get out of their particular cases; they aren't necessarily motivated to undertake the substantial work necessary to support such a motion.
That's why we have crowdsourcing.
I propose to ask for a team of volunteers to do the prep work on a meticulously documented motion to have Brett Kimberlin declared a vexatious litigant based upon his pattern of legal harassment. This should not be a half-assed job. It should thoroughly review the relevant law, supply admissible evidence to demonstrate his pattern of vexatiousness over the years in many courts and cases, and be written tightly and persuasively. The team can then make the final product available to any defendant in any of Kimberlin's cases. Ideally the team would provide modular analysis of relevant precedent so that defendants can plug the applicable discussion about the rules of their particular jurisdiction.
Here are some of the things you could do to help:
- Research, exhaustively, the vexatious litigant standards and authorities in each state and federal jurisdiction in which Kimberlin operates or is likely to operate. A strong vexatious litigant motion will thoroughly review the relevant cases and identify those that support pre-filing restrictions on serial harassers like Kimberlin.
- Identify each case Kimberlin has filed in the last 35 years. That will involve not just Google searches and PACER searches but docket searches in multiple states.
- Pull records for each of those cases — including complaints, motions to dismiss or for summary judgment, Kimberlin's oppositions, and rulings — to demonstrate that the cases were frivolous and malicious. Because many of the records are not available online, this step will require boots on the ground near many state and federal courthouses.
- Contact lawyers and litigants in those cases to find evidence of vexatiousness not in the court record — for instance, threatening communications and brags about being a serial litigant. Also, determine the costs incurred by defendants in those cases.
- Find other instances in which Kimberlin has threatened or bragged about vexatious litigation in print or in person.
- Review and summarize the case records for the drafting team.
- Draft and edit portions of the vexatious litigant motion.
- Kick in a few bucks for the costs of pulling the court records.
The system is imperfect, but people who believe in free speech can combine efforts to make it a little better. Will you help? Drop a line to ken at popehat etc. Let's do this thing.
Last 5 posts by Ken White
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
- Free Speech Tropes In The LA Times - June 8th, 2017
- I write letters - June 1st, 2017