Florida Vexatious Litigant Law

This article examines Florida Statute § 68.093, commonly known as, the “Florida Vexatious Litigant Law.” Fla. Stat. § 68.093(1). The Florida Vexatious Litigant Law provides a mechanism for courts to require pro se litigants, who meet the statutory definition of “vexatious litigant,” to post security before proceeding with civil litigation.

The statute was enacted to address the problem of meritless litigation filed by repeat pro se litigants who abuse the court system through frivolous and harassing lawsuits. See generally, Smith v. Fisher, 965 So. 2d 205 (Fla. 4th DCA 2007). The statute is an effective tool for defendants facing repeated meritless litigation while preserving judicial access for pro se litigants with genuine claims.

Definition of Vexatious Litigant

The Florida Vexatious Litigant Law applies to “actions” governed by Florida’s Rules of Civil Procedure, Family Law Rules of Procedure, Small Claims Rules, and Rule 5.025 of the Probate Rules. Fla. Stat. § 68.093(2)(a). The Florida Vexatious Litigant Law defines “vexatious litigant” as encompasses five distinct categories of conduct, all limited to persons proceeding pro se. Fla. Stat. § 68.093(2)(c).

Significantly, “[l]awsuits filed by an attorney do not count in the vexatiousness equation; the Code of Professional Responsibility and statutes such as … [Fla. Stat. §] 57.105 … adequately screen against frivolous lawsuits when an attorney is involved in the filing decision.” Smith, 965 So. 2d at 209. With the forgoing in mind, a “vexatious litigant” is a person, proceeding pro se, who meets any one of the following criteria:

First, a person qualifies as a vexatious litigant if, in the immediately preceding seven-year period, the person has commenced, prosecuted, or maintained, pro se, five or more actions in any court that have been finally and adversely determined against such person. Fla. Stat. § 68.093(2)(c)(1). However, an action may not be included for purposes of this definition if the court finds that the action was commenced, prosecuted, or maintained in good faith. Fla. Stat. § 68.093(2)(c)(1).

“The definition of a ‘vexatious litigant’ is not unreasonably broad ….” Smith, 965 So. 2d at 209. “The bright line of five unsuccessful, pro se civil actions within five years identifies likely abusers of the court system. Where there is smoke, there is fire. The average citizen does not file five, pro se, non-small claims civil lawsuits in a lifetime.” Id.

Second, a person qualifies as a vexatious litigant if, after an action has been finally and adversely determined against the person, the person repeatedly relitigates or attempts to relitigate either the validity of the determination against the same party as to whom the action was finally determined or the cause of action, claim, controversy, or any of the issues of fact or law determined by the final and adverse determination against the same party. Fla. Stat. § 68.093(2)(c)(2).

Third, a person qualifies as a vexatious litigant if the person repeatedly files pleadings, requests for relief, or other documents that have been the subject of previous rulings by the court in the same action. Fla. Stat. § 68.093(2)(c)(3).

Fourth, a person qualifies as a vexatious litigant if the person repeatedly files unmeritorious pleadings, requests for relief, or other documents; conducts unnecessary discovery; or engages in other tactics that are frivolous or solely intended to cause unnecessary delay in any action. Fla. Stat. § 68.093(2)(c)(4).

Fifth, a person qualifies as a vexatious litigant if the person has been previously found to be a vexatious litigant pursuant to Florida’s Vexatious Litigant Law or by another state court or a federal court. Fla. Stat. § 68.093(2)(c)(5).

Notably, an action is not deemed to be “finally and adversely determined” if an appeal in that action is pending. Fla. Stat. § 68.093(2)(c). This definition ensures that litigants are not prematurely classified as vexatious while they pursue legitimate appellate remedies.

Procedural Requirements to Obtain a Security Order

The primary remedy available under the Florida Vexatious Litigant Law is its requirement that the pro se litigant post “security” in order to maintain the lawsuit. The statute defines “security” as “an undertaking by a vexatious litigant to ensure payment to a party in an amount reasonably sufficient to cover the party’s anticipated, reasonable expenses of litigation, including attorney fees and taxable costs.” Fla. Stat. § 68.093(2)(b). “By use of the word ‘undertaking,’ the statute contemplates a bond, cash or otherwise, that could be taxed at the conclusion of the case.” Smith, 965 So. 2d at 210 n.5.

The procedural framework for obtaining a security order is fairly straightforward. In any action pending in any court of Florida, any party may move the court, upon notice and hearing, for an order requiring an opposing party to furnish security. Fla. Stat. § 68.093(3). The motion must be based on the grounds, and supported by a showing, that the opposing party subject to the motion is a vexatious litigant and is not reasonably likely to prevail on the merits of the action. Fla. Stat. § 68.093(3)(a).

“[T]he determination that a plaintiff is a vexatious litigant does not shut the courthouse door.” Smith, 965 So. 2d at 209. “A defendant must move for a hearing to establish that a plaintiff is a vexatious litigant who ‘is not reasonably likely to prevail on the merits of the action against the moving defendant.’” Id. at 209–10 (quoting Fla. Stat. § 68.093(3)(a)).

“After a hearing, if a court determines that a defendant is both a ‘vexatious litigant’ and ‘not reasonably likely to prevail on the merits,’ the court ‘shall order the plaintiff to furnish security to the moving defendant in an amount and within such time as the court deems appropriate.’” Smith, 965 So. 2d at 210 (quoting Fla. Stat. § 68.093(3)(b)). “If the plaintiff fails to post the required security, ‘the court shall immediately issue an order dismissing the action with prejudice as to the defendant for whose benefit the security was ordered.’” Id. (quoting Fla. Stat. § 68.093(3)(c)).

The Florida Vexatious Litigant Law has been held constitutional. Smith, 965 So. 2d at 210. The statute satisfies constitutional requirements because it remedies “the problem of meritless litigation in the most effective way and did not restrict the vexatious litigant’s rights more than absolutely necessary.” Id. In other words, Fla. Stat. 68.093 establishes a balanced framework that addresses abusive litigation while preserving constitutional access to courts.