H. B. 2864

(By Delegate Underwood)
[Introduced March 28, 1997; referred to the
Committee on the Judiciary.]

A BILL to amend chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article fifteen, relating to vexatious litigation; definitions; motion for order requiring security; grounds for motion; order to furnish security; amount required for security; scope of hearing; providing that a ruling is not considered a determination of issues in underlying litigation; dismissal for failure to furnish security; stay of proceedings; prefiling order prohibiting the filing of new litigation; contempt; and conditions for prefiling.

Be it enacted by the Legislature of West Virginia:
That chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article fifteen, to read as follows:
ARTICLE 15. VEXATIOUS LITIGANTS AND FRIVOLOUS LAWSUITS.
§55-15-1. Definitions.
As used in this article, the following terms have the following meanings:
(a) "Litigation" means any civil action or proceeding, commenced, maintained or pending in any state or federal court.
(b) "Vexatious litigant" means any person who does any of the following:
(1) In the immediately preceding seven-year period, has commenced, prosecuted or maintained in propria persona at least five litigations other than in magistrate court that have been: (A) Finally determined adversely to him; or (B) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing;
(2) After a litigation has been finally determined against him, repeatedly relitigates or attempts to relitigate, in propria persona, either: (A) The validity of the determination against the same defendant or defendants as to whom the litigation was finally determined; or (B) the cause of action, claim, controversy or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined;
(3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings or other papers, conducts unnecessary discovery or engages in other tactics that are frivolous or solely intended to cause unnecessary delay; or
(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction or occurrence.
(c) "Security" means any undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party's reasonable expenses, including attorney's fees, and not limited to, taxable costs, incurred in or in connection with a litigation instituted, caused to be instituted or maintained or caused to be maintained by a vexatious litigant.
(d) "Plaintiff" means the person who commences, institutes or maintains a litigation or causes it to be commenced, instituted or maintained, including an attorney at law acting in propria persona.
(e) "Defendant" means a person, including corporation, association, partnership and firm or governmental entity, against whom a litigation is brought or maintained or sought to be brought or maintained.
§55-15-2. Motion for order requiring security; grounds.
In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security. The motion must be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he will prevail in the litigation against the moving defendant.

§55-15-3. Scope of hearing; ruling not deemed determination of issues.

At the hearing upon such motion the court shall consider such evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion. No determination made by the court in determining or ruling upon the motion is, or may be considered to be, a determination of any issue in the litigation or of the merits thereof.
§55-15-4. Order to furnish security; amount.
If, after hearing the evidence upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court designates.
§55-15-5. Dismissal for failure to furnish security.
When security that has been ordered furnished is not furnished as ordered, the litigation shall be dismissed as to the defendant for whose benefit it was ordered furnished.
§55-15-6. Stay of proceedings.
When a motion pursuant to section two of this article is filed prior to trial, the litigation is stayed, and the moving defendant need not plead, until ten days after the motion has been denied, or if granted, until ten days after the required security has been furnished and the moving defendant given written notice thereof. When a motion pursuant to section twosection one of this article is made at any time thereafter, the litigation shall be stayed for such period after the denial of the motion or the furnishing of the required security as the court determines is appropriate.

§55-15-7. Prefiling order prohibiting the filing of new litigation; contempt; conditions.

(a) In addition to any other relief provided in this article, the court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed. Disobedience of such an order by a vexatious litigant may be punished as contempt of court.
(b) The presiding judge shall permit the filing of such litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay. The presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants as provided in section four of this article.
(c) The clerk may not file any litigation presented by a vexatious litigant subject to a prevailing order unless the vexatious litigant first obtains an order from the presiding judge permitting the filing. If the clerk mistakenly files the litigation without such an order, any party may file with the clerk and serve on the plaintiff and other parties a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order as set forth in subsection (a) of this section. The filing of such a notice shall automatically stay the litigation. The litigation shall be automatically dismissed unless the plaintiff within ten days of the filing of such notice obtains an order from the presiding judge permitting the filing of the litigation as set forth in subsection (b) of this section. If the presiding judge issues an order permitting the filing, the stay of the litigation shall remain in effect, and the defendants need not plead, until ten days after the defendants are served with a copy of any such order.
(d) The clerk of the court shall provide the clerk of the supreme court of appeals a copy of any prefiling orders issued pursuant to subsection (a). The clerk of the supreme court of appeals shall maintain a record of vexatious litigants subject to such prefiling orders and shall annually disseminate a list of such persons to the various clerks of the circuit courts of this state.

NOTE: The purpose of this bill is to provide for a procedure to reduce and prevent the filing and prosecution of frivolous lawsuits from vexatious litigants.

Article fifteen is new; therefore, strike-throughs and underscoring have been omitted.