Who Is A Vexatious Litigant?
By Brian Waid
Article I, section 10 of the Washington State Constitution guarantees its residents access to the Courts. However, “access” does not mean that there can be no limitations on that access. Thus, in 1909, the Washington Legislature adopted what now appears as RCW 2.28.010, which authorizes Washington trial courts…to enjoin a party from engaging in litigation upon a ‘specific and detailed showing of a pattern of abusive and frivolous litigation.’”[1]
In 1928, the Washington Supreme Court thus approved issuance of a pre-filing injunction against “a suit brought purely for vexatious purposes in an endeavor to compel a litigant to do that which the court had repeatedly held he was not required to do.”[2]
Whether grounded in the courts’ inherent equitable powers or statutory authority, what process do the courts apply to those seeking and those opposing a vexatious litigant designation? What standards govern designation of a litigant as vexatious? And what limitations may the courts impose against a litigant designated vexatious?
Relative to process, the Ninth Circuit adopted four “guidelines” to follow before ordering pre-filing restrictions, including: (1) notice; (2) creation of an adequate record for review; (3) substantive findings of frivolousness or harassing nature of the litigant’s conduct; and (4) narrowly tailored restrictions designed to fit the litigant’s conduct.[3] No Washington appellate opinion cites De Long.
Although no Washington appellate decision has discussed notice in the context of a vexatious litigant designation, Washington courts generally acknowledge that “both the state and federal constitutions require that citizens have fair warning of proscribed conduct,” prior to limitation of their access to the courts.[4] Indeed, “even when the district court’s action is understandable in light of the vexatiousness of the litigation, [a sua sponte] injunction may not issue without notice to the party enjoined and an opportunity for that party to be heard.”[5]
The Ninth Circuit thus reversed a vexatious litigant designation entered sua sponte in response to a Rule 11 motion which had not provided notice of a potential vexatious litigant designation.[6] Nevertheless, a court may issue an order to show cause, sua sponte, requiring that a litigant demonstrate that the litigant is not a vexatious litigant.[7]
However, the opportunity to be heard does not require an oral argument or evidentiary hearing, provided that the litigant has the opportunity to fully brief the issue.[8] Accordingly, parties may appropriately seek entry of a vexatious litigant designation by motion or an order to show cause.[9] However, in contrast to Rule 11, the courts cannot designate an attorney as a vexatious litigant when acting as an attorney for a client and not as a litigant.[10]
Relative to the requirement of an adequate record for review, Washington CR 65(d) applies to an order imposing pre-filing limitations on a litigant. The Washington courts thus require “a specific and detailed showing of a pattern of abusive and frivolous litigation”[11] and the vexatious litigant designation must set forth the reasons justifying pre-filing limitations “specific in terms.”[12]
De Long similarly requires a “listing of all the cases and motions that led the district court to conclude that a vexatious litigant order was needed.”[13] In the absence of a record adequate to establish that “the litigant’s activities were numerous or abusive,” the federal courts refuse to designate a litigant as vexatious.[14]
Relative to the substantive guidelines (i.e., De Long factors 3 and 4) governing determination of whether a party is a vexatious litigant and whether a pre-filing order will stop the vexatious litigation (or if other sanctions are adequate), the Ninth Circuit adopted a five-factor analysis:[15]
(1) the litigant’s history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits;
(2) the litigant’s motive in pursuing the litigation, e.g., does the litigant have an objective good-faith expectation of prevailing?
(3) whether the litigant is represented by counsel;
(4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel, and;
(5) whether other sanctions would be adequate to protect the courts and other parties.
Only one unpublished Washington appellate opinion cites Molski, but it fails to discuss or even acknowledge Molski’s analytical framework.[16] Nevertheless, when examined, Washington and federal decisions reflect virtually identical analyses and results. More specifically, both Yurtis and Molski agree that mere litigiousness, alone, does not establish vexatious conduct; instead, the litigant’s claims “must not only be numerous but also patently without merit.”[17]
Although there is no threshold number of pleadings a litigant must file to qualify as a vexatious litigant, the federal courts “‘look at both the number and content of the filings’” and must “make a finding that the number of complaints was inordinate.”[18] Moreover, “[a]s an alternative to frivolousness, the [court] may make an alternative finding that the litigant’s filings ‘show a pattern of harassment.’”[19] Furthermore, designating a litigant as vexatious is especially appropriate where the litigant has been undeterred by previous impositions of sanctions.[20]
For example, Collett v. Hason refused to designate a plaintiff as vexatious who was litigating two cases, both of which had survived the Court’s initial screening.[21] In contrast, the Eastern District of Washington designated a litigant as vexatious who had filed four notices of removal, appealed the Court’s remand orders in each of the three prior cases of which at least two had been dismissed for lack of appellate jurisdiction.[22] Division III similarly affirmed designation of litigants as vexatious who had filed a lawsuit in Snohomish County Superior Court against a Skykomish attorney, his law firm, and a process server (which the Court had dismissed for failure to state a claim) and imposed sanctions for having filed the lawsuit for improper purposes. The litigants had also filed numerous unauthorized pleadings and had appealed on behalf of their limited liability companies, despite knowing that doing so was improper.
In federal courts, the pre-filing order must be “narrowly tailored to the vexatious litigant’s wrongful behavior.”[23] Washington similarly requires that courts “must be careful not to issue a more comprehensive injunction than is necessary to remedy proven abuses, and if appropriate the court should consider less drastic remedies.”[24] The most common limitations consist of an order requiring pre-filing authorization by the Court that issues the vexatious litigant designation, often accompanied by an order limiting in forma pauperis authorization. Benshoof v. Cliber nevertheless approved a broad pre-filing limitation against a vexatious litigant as “clearly necessary, in light of [litigant’s] past abusive litigation tactics targeting the respondents’ friends and families.”[25] In this context, courts tend to be more prone to designate a litigant as vexatious if previous sanctions orders have failed to deter the litigant’s abusive conduct.[26]
In Washington, the authority to enter vexatious litigant orders extends to appellate courts; indeed, RCW 4.28.010 explicitly authorizes “[e]very court of justice” to protect against abusive litigants. Division III, for example, designated an appellant vexatious based on her conduct on appeal, considering that the Court had rejected her identical claims in a prior appeal, she had filed unsuccessful motions to recall the mandate issued in the prior appeal, the Supreme Court had denied her repeated motions for discretionary review and found that her “ceaseless pursuit of the litigation was not only frivolous but also abusive.”[27]
Washington authorizes both its trial and appellate courts to enter pre-filing orders to prevent abusive litigation practices against vexatious litigants, provided that the courts provide notice and an opportunity for hearing to the litigant, make appropriate findings relative to the litigant’s abusive conduct, and narrowly tailor the relief to fit that conduct.
Brian J. Waid is the founding attorney of Waid Law Office PLLC, where he represents clients in litigation, legal malpractice, and legal fee disputes.
[1] Yurtis v. Phipps, 143 Wn. App. 680, 693, 181 P.3d 849 (2008), quoted with approval in Maynard v. Estate of Maynard, 2023 WL 3157466 *7 (Div. I). RCW 26.51 authorizes the designation of vexatious litigants in certain family law cases if the litigation is “being initiated, advanced, or continued primarily for the purpose of harassing, intimidating, or maintaining contact with the other party.”
[2] Burdick v. Burdick, 148 Wash. 15, 22–23, 267 P. 767 (1928).
[3] De Long v. Hennessey, 912 F.2d 1144, 1147-1148 (9th Cir. 1990), cited with approval, e.g., Anderson v. Virginia Quantico Marine Base, 2025 WL 3101242 *3 (W.D. Wash. Nov. 6, 2025)
[4] See, Benshoof v. Cliber, 2024 WL 3936917 *6 (Div. I), review den’d, 4 Wn.3d 1020, 567 P.3d 1109 (2025).
[5] MLE Realty Associates v. Handler, 192 F.3d 259, 261 (2d Cir. 1999), accord, Block v. Washington State Bar Ass’n, 761 Fed. Appx. 729, 731 (9th Cir. 2019)(district court abused its discretion by issuing vexatious litigant order sua sponte).
[6] Block v. Washington State Bar Ass’n, 761 Fed. Appx. 729, 731 (9th Cir. 2019).
[7] In re Anderson, 2026 WL 221131 (W.D. Wash.).
[8] Pacific Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000); Knochel v. Fackrell, 2021 WL 6067257 *1 (9th Cir. 2021).
[9] See, Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1058 (9th Cir. 2007) (notice satisfied by opposing party’s motion); Ringgold-Lockhart v. County of Los Angeles, 761 F.3d 1057, 1063 (9th Cir. 2014)(notice requirement satisfied by court’s tentative order); Hiramanek v. Judicial Council of Cal., 754 Fed. Appx. 580, 581 (9th Cir. 2019)(notice requirement satisfied by court’s show cause order).
[10] Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1197 (9th Cir. 1999).
[11] Whatcom Cnty. v. Kane, 31 Wn. App. 250, 253, 640 P.2d 1075 (1981) quoted with approval in Yurtis v. Phipps, supra 143 Wn. App. at 693 and Maynard v. Estate of Maynard, 2023 WL 3167466 *6 (Div. I).
[12] Erickson v. Power, 2022 WL 1210523 *6 (Div. I).
[13] DeLong, supra at 1147.
[14] Ringgold-Lockhart v. County of Los Angeles, supra at 1064 (relying in part on reference to a California Court of Appeal’s decision in a related case).
[15] Molski v. Evergreen Dynasty Corp., supra at 1058.
[16] Town of Skykomish v. Benz, 2016 WL 1306417 * (Div. I)(“In Molski, the court held the trial court did not abuse its discretion in finding an individual who filed ‘roughly 400 ADA cases’ was a vexatious litigant although ‘Molski’s numerous suits were probably meritorious in part’”).
[17] Molski, supra at 1059, quoting Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990). Accord, Yurtis, supra 143 Wn. App. at 693.
[18] Ringgold-Lockhart, supra at 1064, quoted with approval in In re Lewis Cases, 2025 WL 2646638 *12 (C.D. Cal).
[19] Ringgold-Lockhart, supra at 1063.
[20] Yurtis, supra,143 Wn. App. at 683-684; Maynard, supra at *6.
[21] Collett v. Hason, 4008666 *6 (W.D. Wash)(Magistrate’s report and recommendation) and 2024 WL 4008568 (W.D. Wash)(adopting Magistrate’s report and recommendation).
[22] First Interstate Bank v. Wall St. Apartments, LLC, 2024 WL 6862226 *3 (E.D. Wash.), aff’d, 2025 WL 2803544 (9th Cir.). The First Interstate Bank litigant was the same litigant designated vexatious in Elkharwily v. Kaiser Permanente, 2025 WL 2401052 (Div. II). Accord, Johns v. Los Gatos, 834 F. Supp. 1230, 1232 (N.D. Cal. 1993) (entering vexatious litigant order against a plaintiff who had filed five similar actions over a period of ten years); Recinos v. Washington State Ins. Comm’r, 2023 WL 8472800, at *9–10 (W.D. Wash)(36 actions in 9 months filed in forma pauperis, all dismissed for failure to state a plausible claim).
[23] Molski, supra, 501 F.3d at 1061 (approving order requiring plaintiff to obtain leave of court before filing any new pro se case, complaint, petition or IFP application); accord, In re Lewis Cases, 2025 WL 2646638 *14 (Magistrate) and 2025 WL 2644130 (C.D. Cal).
[24] Elkharwily v. Kaiser Permanente, 2025 WL 2401052 *11 (Div. II); accord, Yurtis, supra 143 Wn. App. at 696.
[25] 2024 WL 3936917 *6 (Div. I).
[26] Yurtis, supra,143 Wn. App. at 683-684; Maynard, supra at *6.
[27] Yurtis, supra, 143 Wn. App. at 695. In contrast, Division I refused to designate a litigant as vexatious and impose pre-filing limitations based on conduct in the trial court; deferring instead to the trial court to control its own docket. Erickson v. Power, 22 WL 1210523 *6 (Div I). Banner Bank v. Reflection Lake Cmty. Ass’n, 2024 372241 *6 (Div. III) similarly refused to designate a litigant as vexatious on appeal even though the Court found the appeal frivolous. See further, Vallacin, Restricting Abusive Litigation in the Appellate Court, 44 KCBA Bar Bulletin 1 (05/2026).
