H. B. 2864
(By Delegate Underwood)
[Introduced January 14, 1998; 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
ARTICLE 15. VEXATIOUS LITIGANTS AND FRIVOLOUS LAWSUITS.
As used in this article, the following terms have the
(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
(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
(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
(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
§55-15-3. Scope of hearing; ruling not deemed determination of
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 two 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
§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
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.