Crivello Carlson, S.C.

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Crivello Carlson, S.C. is a full-service litigation firm with attorneys who specialize in trial, appeal, mediation, and arbitration.

Stopping a Frequent Filer in His Tracks

Tags: pro se, employment discrimination, district court, abuse of process, sanctions, motion to dismiss

Author: Kelly Mangan

Crivello Carlson Shareholders Agatha Raynor and Kelly Mangan obtained the dismissal of a federal employment discrimination complaint filed by a frequent filer against a prospective employer in Reed v. PF of Milwaukee Midtown, No. 19-cv-1609, 2020 WL 5748208 (E.D.Wis. Sept. 25, 2020). While federal courts give liberal construction to filings by pro se litigants, there are limits to their largesse, especially with frequent filers who abuse the system.

Almost a decade ago, a pro se litigant abused the litigation process so badly that a federal judge imposed monetary sanctions and entered an order preventing the litigant from filing documents in any federal court until the sanctions were paid. The pro se litigant appealed, and the Seventh Circuit upheld those monetary sanctions and the filing bar. The order gave the litigant the opportunity to ask the court to reconsider after two years, but the litigant never did. Thus, the filing bar still stood, until recently.

In 2017, that pro se litigant applied for a job. He was not hired and filed a complaint alleging sex and age discrimination with the Wisconsin Department of Workforce Development Equal Rights Division. The litigant took the administrative case to the brink of a hearing, then he dismissed his claim and obtained a Right to Sue letter from the EEOC. 

The litigant then tried to file a complaint in federal court. Only when the federal court rejected his complaint did the pro se litigant “remember” the filing bar. He filed a flurry of pleadings in the closed case, and the district court ultimately lifted the filing bar because of the litigant’s inability to pay the monetary sanctions. During this process, the court reminded the litigant that he could bring his discrimination claims in state court, but he refused to do so.

The district court ultimately allowed the litigant to file his new complaint in federal court.  

Crivello Carlson Attorneys Raynor and Mangan filed a motion to dismiss on behalf of the prospective employer. They asked the court to dismiss the litigant’s complaint as untimely because the litigant’s only hope, equitable tolling, could not save him here. Equitable tolling is a judicial doctrine that allow an untimely complaint where a litigant has been pursuing his rights diligently and some extraordinary circumstance stood in his way and prevented timely filing. Although the plaintiff admittedly attempted to file the new complaint in federal court within the requisite 90-day window, Attorneys Raynor and Mangan argued that it was not “extraordinary circumstances” that led the Clerk of Court to reject his initial attempts at filing.  Rather, it was a consequence of the filing bar previously entered due to the litigant’s prior and continued abuse of the litigation process. They also argued that equitable tolling should not apply because the plaintiff could have filed his action in state court, and nothing prevented him from doing so.

On September 25, 2020, United States District Judge Lynn Adelman granted the motion to dismiss. Reed v. PF of Milwaukee Midtown, No. 19-cv-1609, 2020 WL 5748208 (E.D.Wis. Sept. 25, 2020). The court agreed that Mr. Reed should not be rewarded for his past actions that led to him being sanctioned by the court, sanctions that were upheld by the United States Court of Appeals for the Seventh Circuit. In particular, the court agreed that state court was always an option for the plaintiff, and he could have filed a timely claim in state court. It was his choice not to do so. 

The litigant could have asked for the filing bar to be lifted years ago, but he did not. The litigant could have filed his discrimination complaint in state court at any time, but he did not. The litigant was not entitled to an extraordinary remedy that would make his complaint timely. It was his own actions and choices, going back almost a decade, that resulted in dismissal of his federal complaint.

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