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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE - COURTS -- ABUSIVE LITIGATION

     

     Introduced By: Senators Euer, LaMountain, Tikoian, DiMario, Quezada, Cano, Gallo,
Pearson, Sosnowski, and Mack

     Date Introduced: March 07, 2023

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. The general assembly makes the following findings of fact:

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     (1) The legislature recognizes that individuals who abuse their intimate partners often

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misuse court proceedings in order to control, harass, intimidate, coerce, and/or impoverish the

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abused partner. Court proceedings can provide a means for an abuser to exert and reestablish power

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and control over a domestic violence survivor long after a relationship has ended. The legal system

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unwittingly becomes another avenue that abusers exploit to cause psychological, emotional, and

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financial devastation. This misuse of the court system by abusers has been referred to as legal

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bullying, stalking through the courts, paper abuse, and similar terms.

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     (2) The legislature finds that the term "abusive litigation" is the most common term and

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that it accurately describes this problem. Abusive litigation against domestic violence survivors

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arises in a variety of contexts. Family law cases such as dissolutions, legal separations, parenting

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plan actions or modifications, and protection order proceedings are particularly common forums

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for abusive litigation.

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     (3) It is also not uncommon for abusers to file civil lawsuits against survivors, such as

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defamation, tort, or breach of contract claims. Even if a lawsuit is meritless, forcing a survivor to

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spend time, money, and emotional resources responding to the action provides a means for the

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abuser to assert power and control over the survivor.

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     (4) The legislature finds that courts have considerable authority to respond to abusive

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litigation tactics, while upholding litigants' constitutional rights to access to the courts. Recognizing

 

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that courts have inherent authority to control the conduct of litigants, they have considerable

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discretion to fashion creative remedies in order to curb abusive litigation. The legislature intends

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to provide the courts with an additional tool to curb abusive litigation and to mitigate the harms

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abusive litigation perpetuates.

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     SECTION 2. Title 8 of the General Laws entitled "COURTS AND CIVIL PROCEDURE

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— COURTS" is hereby amended by adding thereto the following chapter:

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CHAPTER 8.4

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ABUSIVE LITIGATION

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     8-8.4-1. Definitions.

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     As used in this chapter, the following words shall have the following meanings:

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     (1) “Abusive litigation” means litigation where the following apply:

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     (i) The opposing parties have a current or former family or household member relationship

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or there has been a civil order or criminal conviction determining that one of the parties stalked or

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sexually assaulted the other party; and

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     (ii) The party who is filing, initiating, advancing, or continuing the litigation has been found

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by a court to have abused, stalked, or sexually assaulted the other party, pursuant to:

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     (A) A final protective order entered pursuant to §§ 8-8.1-3 or 15-5-19;

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     (B) A no contact order entered pursuant to § 12-29-4;

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     (C) A final sexual assault protective order entered pursuant to § 11-37.2-2;

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     (D) A final foreign abuse prevention order entered pursuant to § 12-29-1.1;

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     (E) A final order for alimony or custody of children, entered pursuant to § 15-5-16;

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     (F) A criminal conviction or a plea of nolo contendere, in this state or any other jurisdiction

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for any of the crimes enumerated in § 12-29-2 or a filing for any domestic violence offense

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enumerated in this chapter;

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     (G) A pending criminal charge, in this state or any other jurisdiction, of domestic violence,

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wherein the court has imposed criminal conditions of release pertaining to the safety of the victim;

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or

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     (H) A signed affidavit from a domestic violence or sexual assault advocate or counselor

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working on behalf of an agency that assists victims of domestic violence and sexual assault; and

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     (iii) The primary purpose of the litigation is found to be the abuse, harassment,

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intimidation, or threatening of the other party, or to maintain contact with the other party.

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     (2) “Family or household member” means current or former intimate partners, spouses,

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former spouses, persons related by blood or marriage, persons who are presently residing together

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or who have resided together in the past three (3) years, and persons who have a child in common,

 

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regardless of whether they have been married or have lived together, or persons who are, or have

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been, in a dating or engagement relationship within the past year.

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     (3) “Foreign abuse prevention order” means any protection order issued by the court of any

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other state that contains provisions similar to relief provisions authorized under this chapter, or the

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Rhode Island rules of domestic relations procedure. “Other state” and “issuing state” mean any

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state other than Rhode Island and any federally recognized Indian tribe, territory or possession of

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the United States, the Commonwealth of Puerto Rico, or the District of Columbia.

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     (4) “Litigation” means any kind of legal action or proceeding, including, but not limited

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to:

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     (i) A filing of a summons, complaint, or petition;

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     (ii) Serving a summons, complaint, or petition, regardless of whether it has been filed;

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     (iii) Filing a motion, notice of court date, or order to appear;

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     (iv) Serving a motion, notice of court date, or order to appear, regardless of whether it has

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been filed or scheduled;

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     (v) Filing a subpoena, subpoena duces tecum, interrogatories, request for production of

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documents, notice of deposition, or other discovery request; or

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     (vi) Serving a subpoena, subpoena duces tecum, interrogatories, request for production of

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documents, notice of deposition, or other discovery request.

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     (5) “Perpetrator of abusive litigation” means a person who files, initiates, advances, or

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continues litigation in violation of an order restricting abusive litigation.

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     8-8.4-2. Order restricting abusive litigation.

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     (a) A party may request from the court an order restricting litigation alleged to be abusive

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if the requesting party can show:

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     (1) The opposing parties have a current or former family or household member relationship

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or there has been a civil order or criminal conviction determining that one of the parties stalked or

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sexually assaulted the other party; and

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     (2) The party who is filing, initiating, advancing, or continuing the litigation has been found

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by a court to have abused, stalked, or sexually assaulted the other party pursuant to:

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     (i) A final protective order entered pursuant to §§ 8-8.1-3 or 15-5-19;

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     (ii) A no contact order entered pursuant to § 12-29-4;

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     (iii) A final sexual assault protective order entered pursuant to § 11-37.2-2;

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     (iv) A final foreign abuse prevention order entered pursuant to § 12-29-1.1;

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     (v) A final order for alimony or custody of children, entered pursuant to § 15-5-16;

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     (vi) A criminal conviction for any of the enumerated crimes defined in § 12-29-2 or a filing

 

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for any domestic violence offense enumerated in this chapter;

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     (vii) A pending criminal charge, in this state or any other jurisdiction, of domestic violence,

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wherein the court has imposed criminal conditions of release pertaining to the safety of the victim;

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or

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     (viii) A signed affidavit from a domestic violence or sexual assault advocate or counselor

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working on behalf of an agency that assists victims of domestic violence and sexual assault.

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     (b) A party who meets the requirements of subsection (a) of this section may request an

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order restricting abusive litigation:

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     (1) In any answer or response to the litigation being filed, initiated, advanced, or continued;

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     (2) By motion made at any time during any open or ongoing case;

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     (3) In an answer or response to any motion or request for an order;

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     (4) Orally in any hearing; or

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     (5) By petition.

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     (c) In the event no formal complaint, motion, petition, or other pleading has been filed, the

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superior court shall have jurisdiction to hear the request and issue an order restricting abusive

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litigation.

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     (d) In the event litigation alleged to be abusive is filed in the district court, the district court

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is authorized to hear a request for an order restricting abusive litigation.

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     (e) In the event litigation alleged to be abusive is filed in the family court, the family court

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is authorized to hear a request for an order restricting abusive litigation.

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     (f) Upon the request of a party for an order restricting abusive litigation the court shall hold

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a hearing to determine if a party is engaging in abusive litigation.

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     (g) The court administrator shall create forms for a petition or motion for an order

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restricting abusive litigation and the form for an order restricting abusive litigation, and the forms

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shall be maintained by the clerks of the courts.

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     (h) No filing fee shall be charged to the responding party for proceedings pursuant to this

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section.

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     (i) The provisions of this section are nonexclusive and shall not affect any other available

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remedy.

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     8-8.4-3. Hearing – Procedure.

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     At the hearing, evidence of any of the following shall create a rebuttable presumption that

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litigation is being initiated, advanced, or continued primarily for the purpose of harassing,

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intimidating, threatening, or maintaining contact with the other party:

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     (1) The same or substantially similar issues between the same or substantially similar

 

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parties have been litigated within the past five (5) years in the same court or any other court of

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competent jurisdiction;

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     (2) The same or substantially similar issues between the same or substantially similar

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parties have been raised, pled, or alleged in the past five (5) years and were decided on the merits

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or dismissed:

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     (3) Within the last five (5) years, the party allegedly engaging in abusive litigation has been

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sanctioned by any court for filing one or more cases, petitions, motions, or other filings that were

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found to have been frivolous, vexatious, intransigent, or brought in bad faith involving the same

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opposing party;

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     (4) Any court has determined that the party allegedly engaging in abusive litigation has

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previously engaged in abusive litigation or similar conduct, including, but not limited to, the filing

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of a private misdemeanor prosecution complaint pursuant to §§ 12-4-1 or 12-10-12, and has been

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subject to a court order imposing prefiling restrictions;

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     (5) Proffered legal claims are not based on existing law or by a reasonable argument for

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the extension, modification, or reversal of existing law, or the establishment of new law;

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     (6) Allegations and other factual contentions made are without adequate evidentiary

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support or are unlikely to have evidentiary support after a reasonable opportunity for further

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investigation; or

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     (7) An issue or issues that are the basis of the litigation have previously been filed in one

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or more other courts or jurisdictions and the actions have been litigated and disposed of unfavorably

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to the party filing, initiating, advancing, or continuing the litigation.

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     8-8.4-4. Burden of proof.

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     (a) If the court finds by a preponderance of the evidence that a party is engaging in abusive

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litigation and that any or all of the motions or actions pending before the court are abusive litigation,

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the litigation may be dismissed, denied, stricken, or resolved by other disposition with prejudice.

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     (b) After providing the parties an opportunity to be heard on any order or sanctions to be

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issued, the court may enter an order restricting abusive litigation that shall include conditions

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deemed necessary and appropriate, including:

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     (1) Awarding the other party reasonable attorneys’ fees and costs of responding to the

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abusive litigation, including the cost of seeking the order restricting abusive litigation;

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     (2) Awarding the other party all costs of the abusive litigation, including, but not limited

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to, court costs, lost wages and transportation costs, including trips to the courthouse to review files

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or pleadings, and costs of childcare expended as a result of defending said litigation;

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     (3) Identifying the party protected by the order and imposing prefiling restrictions upon the

 

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party found to have engaged in abusive litigation that pertains to any future litigation against the

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protected party or the protected party’s dependents; and

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     (4) Any other relief deemed necessary and appropriate by the court.

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     (c) If the court finds that the litigation does not constitute abusive litigation, the court shall

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enter written findings and the litigation shall proceed.

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     (d) Nothing in this section shall be construed as limiting the court’s inherent authority to

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control the proceedings and litigants before it.

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     8-8.4-5. Filing of a new case by a person subject to an order restricting abusive

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litigation.

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     (a) Except as otherwise provided in this section, a person who is subject to an order

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restricting abusive litigation is prohibited from filing, initiating, advancing, or continuing the

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litigation against the protected party for the period of time that the filing restrictions are in effect.

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     (b) A person who is subject to an order restricting litigation against whom prefiling

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restrictions have been imposed pursuant to § 8-8.4-4 who wishes to initiate a new case against the

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protected party or file a motion in an existing case against the protected party during the time the

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person is under filing restrictions shall make an application to the court. Upon the filing of an

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application, the court shall issue an order scheduling a hearing to determine whether the proposed

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litigation or motion is abusive litigation or if there are reasonable and legitimate grounds upon

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which the proposed litigation or motion is based.

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     The scheduling order shall notify the protected party of the party’s right to appear or

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participate in the hearing. The order shall specify that should the protected party choose not to

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appear or participate in the hearing, the protected party is expected to submit a written response.

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When possible, the protected party shall be permitted to appear remotely.

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     (c) Following the hearing, if the court determines that the proposed litigation or motion

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that the party who is subject to the prefiling order is making application to file will constitute

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abusive litigation, the application shall be denied, dismissed, or otherwise disposed of with

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prejudice.

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     (d) If the court determines that the proposed litigation or motion is not abusive litigation,

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the court shall grant the application and issue an order permitting the filing of the proposed litigation

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or motion. The order shall be attached to the front of the pleading to be filed with the clerk. The

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party who is protected by the order shall be served with a copy of the order at the same time as the

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underlying pleading.

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     (e) The court shall make findings and issue a written order supporting the ruling.

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     (f) If the application for the filing of a pleading is granted pursuant to this section, the

 

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period of time commencing with the filing of the application requesting permission to file the action

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and ending with the issuance of an order permitting filing of the action shall not be computed as a

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part of any applicable period of limitations within which the matter must be instituted.

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     (g) If a party who is protected by an order restricting abusive litigation is served with a

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pleading filed by the person who is subject to the order, and the pleading does not have an attached

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order allowing the pleading, the protected party may respond to the case by filing a copy of the

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order restricting abusive litigation and is under no obligation or duty to respond to the summons,

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complaint, petition, or motion, or to answer interrogatories or any other discovery request, or to

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appear for depositions or any other responsive action required by rule or statute in a civil action.

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     (h) If it is brought to the attention of the court that a person against whom prefiling

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restrictions have been imposed has filed a new case or is continuing an existing case without having

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been granted permission pursuant to this section, the court shall dismiss, deny, or otherwise dispose

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of the matter. The court may take whatever action against the perpetrator of abusive litigation

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deemed necessary and appropriate for a violation of the order restricting abusive litigation.

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     8-8.4-6. Construction.

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     This chapter shall be construed liberally in order to effectuate the goal of protecting

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survivors of domestic violence and other abuse from abusive litigation.

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     SECTION 3. Chapter 8-8 of the General Laws entitled "DISTRICT COURT" is hereby

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amended by adding thereto the following section:

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     8-8-3.4. Equitable powers in abusive litigation matters.

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     In addition to the powers heretofore exercised, the district court is hereby empowered in

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furtherance of jurisdiction under chapter 8.4 of title 8 to grant such orders, including setting

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prefiling restrictions on persons found to be abusive litigants, as justice and equity may require.

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     SECTION 4. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE - COURTS -- ABUSIVE LITIGATION

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     This act would prohibit abusive litigation in the context of domestic violence, sexual

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assault or stalking and allow any court to dismiss a case or complaint upon a finding, based on a

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preponderance of the evidence, that the person who filed the case or complaint is doing so as a

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means to have further contact or abuse the person against whom the complaint was filed. The act

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would also allow any court to impose sanctions against the party found to be using abusive

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litigation, including monetary amounts incurred in the defense of such litigation.

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     This act would take effect upon passage.

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