The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. (December 2015)
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Frivolous litigation is the use of legal processes with apparent disregard for the merit of one's own arguments. It includes presenting an argument with reason to know that it would certainly fail, or acting without a basic level of diligence in researching the relevant law and facts. The fact that a claim is lost does not imply that it was frivolous.
Frivolous litigation may be based on absurd legal theories, may involve a superabundance or repetition of motions or additional suits, may be uncivil or harassing to the court, or may claim extreme remedies. A claim or defense may be frivolous because it had no underlying justification in fact, or because it was not presented with an argument for a reasonable extension or reinterpretation of the law. A claim may be deemed frivolous because existing laws unequivocally prohibit such a claim, such as a so-called Good Samaritan law.
In the United States, Rule 11 of the Federal Rules of Civil Procedure and similar state rules require that an attorney perform a due diligence investigation concerning the factual basis for any claim or defense. Jurisdictions differ on whether a claim or defense can be frivolous if the attorney acted in good faith. Because such a defense or claim wastes the court's and the other parties' time, resources and legal fees, sanctions may be imposed by a court upon the party or the lawyer who presents the frivolous defense or claim. The law firm may also be sanctioned, or even held in contempt.
US Federal statutes and rules of court penalizing frivolous litigation
In the United States Tax Court, frivolous arguments may result in a penalty of up to $25,000 under . Similarly, section 7482 of the Internal Revenue Code provides that the U.S. Supreme Court and the U.S. Courts of Appeals may impose penalties in which the taxpayer's appeal of a U.S. Tax Court decision was "maintained primarily for delay" or where "the taxpayer's position in the appeal is frivolous or groundless." A common example, as shown below, is an argument based on tax protestor claims.
In a noncriminal case in a U.S. District Court, a litigant (or a litigant's attorney) who presents any pleading, written motion or other paper to the court is required, under Rule 11 of the Federal Rules of Civil Procedure, to certify that, to the best of the presenter's knowledge and belief, the legal contentions "are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law". Monetary civil penalties for violation of this rule may in some cases be imposed on the litigant or the attorney under Rule 11.
In one case, the Seventh Circuit Court issued an order giving such an attorney "14 days to show cause why he should not be fined $10,000 for his frivolous arguments". A similar rule penalizing frivolous litigation applies in U.S. Bankruptcy Court under Rule 9011.
The U.S. Congress has enacted section 1912 of Title 28 of the U.S.C. providing that in the U.S. Supreme Court and in the U.S. Courts of Appeals where litigation by the losing party has caused damage to the prevailing party, the court may impose a requirement that the losing party pay the prevailing party for those damages.
Litigants who represent themselves (in forma pauperis and pro se) sometimes make frivolous arguments due to their limited knowledge of the law and procedure. The particular tendency of prisoners to bring baseless lawsuits led to passage of the Prison Litigation Reform Act of 1995, which limits the ability of prisoners to bring actions without payment.
Court treatment of frivolous arguments
An example of a Court's treatment of frivolous arguments is found in the case of Crain v. Commissioner, 737 F.2d 1417 (1984), from the United States Court of Appeals for the Fifth Circuit:
Glenn Crain appeals from the dismissal of his Tax Court petition challenging the constitutional authority of that body and defying the jurisdiction of the Internal Revenue Service to levy taxes on his income. Crain asserts that he "is not subject to the jurisdiction, taxation, nor regulation of the state," that the "Internal Revenue Service, Incorporated" lacks authority to exercise the judicial power of the United States, that the Tax Court is unconstitutionally attempting to exercise Article III powers, and that jurisdiction over his person has never been affirmatively proven.
We perceive no need to refute these arguments with somber reasoning and copious citation of precedent; to do so might suggest that these arguments have some colorable merit. The constitutionality of our income tax system—including the role played within that system by the Internal Revenue Service and the Tax Court—has long been established. We affirm the dismissal of Crain's spurious "petition" and the assessment of a penalty imposed by the Tax Court for instituting a frivolous proceeding. 26 U.S.C. § 6673.
The government asks us to assess penalties against Crain for bringing this frivolous appeal, as is authorized by Fed. R. App. P. 38. In Parker v. C. I. R., 724 F. 2d 469, 472 (5th Cir. 1984), we sounded "a cautionary note to those who would persistently raise arguments against the income tax which have been put to rest for years. The full range of sanctions in Rule 38 hereafter shall be summoned in response to a totally frivolous appeal."
We are sensitive to the need for the courts to remain open to all who seek in good faith to invoke the protection of law. An appeal that lacks merit is not always—or often—frivolous. However, we are not obliged to suffer in silence the filing of baseless, insupportable appeals presenting no colorable claims of error and designed only to delay, obstruct, or incapacitate the operations of the courts or any other governmental authority. Crain's present appeal is of this sort. It is a hodgepodge of unsupported assertions, irrelevant platitudes, and legalistic gibberish. The government should not have been put to the trouble of responding to such spurious arguments, nor this court to the trouble of "adjudicating" this meritless appeal.
Accordingly, we grant the government's request. The United States shall recover from appellant Crain twice its cost of this appeal. Additionally, we assess against Crain a damage award of $2000 in favor of the appellee United States.
Impact upon filing attorney
Filing a claim that is ultimately deemed frivolous can be highly damaging to the attorney so filing. Most frivolous lawsuits that are successful are filed without an attorney. Attorney Daniel Evans writes:
[W]hen a judge calls an argument "ridiculous" or "frivolous," it is absolutely the worst thing the judge could say. It means that the person arguing the position has absolutely no idea of what he is doing, and has completely wasted everyone's time. It doesn't mean that the case wasn't well argued, or that judge simply decided for the other side, it means that there was no other side. The argument was absolutely, positively, incompetent. The judge is not telling you that you were "wrong." The judge is telling you that you are out of your mind.
Washington v. Alaimo
In Washington v. Alaimo the court listed more than seventy-five frivolous "motions" (a request for a court to issue an order), all of which required the attention of the Court, including the following:
- "Motion to Behoove an Inquisition"
- "Motion for Judex Delegatus"
- "Motion for Restoration of Sanity"
- "Motion for Deinstitutionalization"
- "Motion for Publicity"
- "Motion to Vacate Jurisdiction"
- "Motion for Cesset processus"
- "Motion for Nunc pro tunc"
- "Motion for Psychoanalysis"
- "Motion to Impeach Judge Alaimo"
- "Motion to Renounce Citizenship"
- "Motion to Exhume Body of Alex Hodgson"
- "Motion to Invoke and Execute Rule 15—Retroactive Note: The Court's School Days are Over"
- "Motion for Skin Change Operation"
- "Motion for Catered Food Services"
- "Motion to Kiss My Ass"
Washington, an inmate from Georgia, was eventually prohibited from filing any future lawsuits or motions in any district court unless he first posted a contempt bond of $1,500. To be deemed frivolous, a litigant's arguments must strike beyond the pale.
Pearson v. Chung
In 2005, in Pearson v. Chung, Roy Pearson, a Washington, D.C. judge, sued a dry cleaning business for $67 million for allegedly losing a pair of his pants. This case has been cited as an example of frivolous litigation. According to Pearson, the dry cleaners lost his pants (which he brought in for a $10.50 alteration) and refused his demands for a large refund. Pearson believed that a sign saying "Satisfaction Guaranteed" in the window of the shop legally entitled him to a refund for the cost of the pants, estimated at $1,000. The $54 million total also included $2.0 million in "mental distress" and $15,000 which he estimated to be the cost of renting a car every weekend to go to another dry cleaners. The court ultimately ruled against Pearson, whose judgeship was subsequently not renewed due to this case and several other actions he filed during his divorce, which were found to demonstrate a lack of "judicial temperament".
Jonathan Lee Riches
Gloria Dawn Ironbox
In July 2013, the Human Rights Tribunal of Ontario dismissed a complaint laid by a man posing as Gloria Dawn Ironbox, a fictional feminist attorney on television series Family Guy. The claimant alleged that a marketing scheme by A&W Restaurants was "heteronormative", "phallocentric" and promoted "cross-sectional hegemony". Citing feelings of distress and alienation over the lack of "LGBT" representation in A&W naming conventions, he demanded $50,000 in damages for injury to dignity and self-respect as well as an order requiring A&W to adopt naming conventions which include non-traditional families. One such product the claimant demanded was the "Pillow Biter", described by the claimant as "a large, dark slab of meat stuffed firmly between two, white, clenched buns".
Sirgiorgio Sanford Clardy
In January 2014, Sirgiorgio Sanford Clardy, who is serving a 100-year prison sentence for a beating of a prostitute and her customer, filed "a $100 million lawsuit against Nike", in which he claimed that Nike was partially responsible for the assault he committed. Clardy said that Nike should have placed a label in his Jordan shoes warning consumers that they could be used as a dangerous weapon. He was wearing a pair when he repeatedly stomped the face of a client who was trying to leave a Portland hotel without paying Clardy's prostitute in June 2012. According to The Oregonian, this lawsuit gained "considerable attention across the nation and the world".
Romine v. Stanton
In March 2016, James Romine, one-half of the independent developer Digital Homicide Studios, sued video game critic Jim Sterling (James Stanton) for criticizing the games published under his studios' name, seeking $10 million in damages for "assault, libel, and slander" to Romine's business. He claimed that Stanton's coverage of his studio's game The Slaughtering Grounds as "Worst Game of 2014 Contender" was not protected under fair use law because he did not believe it was "fair" criticism. An additional lawsuit for $18 million was filed against 100 users on the Steam gaming platform for criticizing their games and business practices, which he had interpreted as "harassment". The judge issued a subpoena against Valve to disclose the identities of those 100 users. This resulted in Valve removing all published games from Digital Homicide Studios. In addition, Romine filed the lawsuit as an individual and not as a corporation, so such criticism was protected under the right to freedom of speech. The case was dismissed with prejudice in February 2017. This case is also an example of abuse of DMCA takedown requests on YouTube.
- See paragraph (4) of subsection (c) of 26 U.S.C. § 7482.
- Rule 11(b)(2), Federal Rules of Civil Procedure.
- Rule 11(c), Federal Rules of Civil Procedure.
- United States v. Patridge, 507 F.3d 1092, 2007-2 U.S. Tax Cas. (CCH) paragr. 50,806 (7th Cir. 2007), cert. denied, 552 U.S. 1280, 128 S.Ct. 1721 (2008).
- Rule 9011(b)(2) and Rule 9011(c), Federal Rules of Bankruptcy Procedure.
- See 28 U.S.C. § 1912.
- Chen, Cindy (Winter 2004). "The Prison Litigation Reform Act of 1995: Doing Away with More Than Just Crunchy Peanut Butter". St. John's Law Review. 78. Archived from the original on January 10, 2019. Retrieved March 1, 2019.
- Crain v. Commissioner, 737 F.2d 1417, 84-2 U.S. Tax Cas. (CCH) paragr. 9721 (5th Cir. 1984) (per curiam).
- "Daniel B. Evans, The Tax Protester FAQ, at". Archived from the original on May 2, 2016. Retrieved November 23, 2005.
- 934 F. Supp. 1395 (S.D. Ga. 1996).
- Rule 15 Archived 2017-07-05 at the Wayback Machine, Federal Rules of Civil Procedure.
- Weblogger Chris Pearson quotes more extensively from Washington v. Alaimo in "Motion to Kiss My Ass". dumb-lawsuits.com. December 13, 2005. Archived from the original on March 18, 2007. Retrieved January 5, 2007.
"The Great American Pants Suit". Wall Street Journal. June 18, 2007. Archived from the original on June 20, 2007. Retrieved June 21, 2007.
It's nice to see that even the organized plaintiffs bar piously deplores Mr. Pearson's abuse of the law. It would be even nicer if they agreed to stop opposing reforms that would give the Chungs of the world a fighting chance the next time around.
- Fisher, Marc (June 14, 2007). "Wearing Down the Judicial System With a Pair of Pants". The Washington Post. Washington, D.C. p. B01. ISSN 0190-8286. Archived from the original on February 16, 2011. Retrieved September 10, 2008.
- Alexander, Keith L. (October 23, 2007). "Judge Set to Lose Job, Sources Say". Washington Post. Archived from the original on May 31, 2016. Retrieved June 30, 2016.
- "Feds seek to halt inmate's lawsuits". KKCO 11 News. Associated Press. September 14, 2010. Archived from the original on June 4, 2016. Retrieved October 27, 2011.
- "'Heteronormative' Burger Family no threat to LGBT, rights tribunal says after receiving 'outrageous' complaint". National Post. July 25, 2013. Archived from the original on August 31, 2013. Retrieved September 11, 2013.
- Green, Aimee (July 19, 2013). "Portland pimp who beat teen until ears bled, yelled expletives at jurors, gets 100 years". The Oregonian. Archived from the original on February 2, 2014. Retrieved January 21, 2014.
- Green, Aimee (January 10, 2014). "Portland pimp sues Nike for $100 million for lack of warning label after beating victim with Jordans". The Oregonian. Archived from the original on January 21, 2014. Retrieved January 21, 2014.
- White, Kaila (September 21, 2016). "Free speech or criminal harassment?".[permanent dead link]
- D'Anastalso, Cecilia (February 21, 2017). "Court Throws Out Digital Homicide's Case Against Critic Jim Sterling".[permanent dead link]
- Kelly, Aaron (October 28, 2011). "Filing A False DMCA Consequences".[permanent dead link]