Petition for Writ of Certiorari — Aparna Vashisht-Rota, Petitioner v. Howell Management Services, et al.

34

The Order of the Court is stated

below: Dated: April 29, 2022

05:45:11 PM

Justice

/s/ Thomas R. Lee

Associate Chief

IN THE SUPREME COURT OF THE STATE OF UTAH

----ooOoo---Aparna Vashisht-Rota, Petitioner,

v.

Howell Management Services and Chris

Howell,

Respondents.

ORDER

Supreme Court No. 20220157-SC

Court of Appeals No. 20210395-CA

Trial Court No. 20010119

-—ooOoo—-

This matter is before the Court upon a Petition for

Writ of Certiorari, filed on February 10, 2022.

IT IS HEREBY ORDERED that the Petition for Writ

of Certiorari is denied.

End of Order Signature at the Top of

the First Page

Page 1 of 1

2021 UT App 133

The Utah Court of Appeals

Aparna Vashisht-Rota,

Appellant,

v.

Howell Management Services and Chris Howell,

Appellees.

Per Curiam Opinion

No. 20210395-CA

Filed December 2, 2021

First District Court, Logan Department

The Honorable Angela Fonnesbeck

No. 200100119

Aparna Vashisht-Rota, Appellant Pro Se

Jeffrey Weston Shields, Elizabeth Butler, and

Brennan J. Curtis, Attorneys for Appellees

Before Judges Gregory K. Orme, Jill M. Pohlman, and

Diana Hagen.

PER CURIAM:

Aparna Vashisht-Rota appeals the district court's April

26, 2021 memorandum decision and order determining that she

is a vexatious litigant and imposing filing restrictions (Vexatious

Litigant Order).1 The matter is now before the court on two sua

sponte motions for summary disposition—one pertaining to a

jurisdictional issue and the other relating to the merits of the

1. This is the only order as to which the notice of appeal was

timely filed. It is also identified by date in the notice of appeal.

Vashisht-Rota v. Howell Management

Vexatious Litigant Order. Having considered the parties'

responses, we now affirm.2

Vashisht-Rota worked as an independent contractor for

12

Howell Management Services in connection with the recruitment

of students. In a lawsuit separate from the one underlying this

appeal, Howell Management Services asserted claims against

Vashisht-Rota arising out of a contract dispute. See Howell Mgmt.

Services LLC v. August Educ. Group, First Judicial District Court

case number 170100325 (the Howell Litigation).3

Vashisht-Rota initiated the underlying case in Utah by

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filing a Motion for Emergency Relief and Complaint for

Declaratory Judgment and Equitable Remedy for Unpaid Wages

and Harassment Claims in California (the Complaint). The

Complaint named Howell Management Services and Chris

Howell (collectively, HMS) as defendants and requested that the

Utah court direct California federal courts and a Californiabased arbitration forum to allow her claims to proceed. HMS

moved to dismiss the Complaint. Ten days later, Vashisht-Rota

filed a "Supplement to the Complaint" seeking to add new

2. After both parties filed their responses to the sua sponte

motion for summary affirmance, Vashisht-Rota filed a

reply/motion to strike portions of the opposing parties' response.

We deny the motion to strike. To the extent that the reply renews

a request to remand that has twice been denied, it is again

denied.

3. The Howell Litigation is the subject of a separate interlocutory

appeal pending before this court as case number 20200713-CA.

To the extent that Vashisht-Rota seeks relief related to that case,

that relief is beyond the scope of this appeal. This appeal is

limited to review of the Vexatious Litigant Order entered in this

case.

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claims, but without obtaining leave of the district court. HMS

moved to strike or dismiss the Supplement to the Complaint on

grounds that the new claims were compulsory counterclaims

that should have been filed in the Howell Litigation. Shortly

thereafter, Vashisht-Rota moved to impose rule 11 sanctions on

opposing counsel.4 See Utah R. Civ. P. 11.

On August 5, 2020, Vashisht-Rota filed a notice of

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voluntary dismissal of the Complaint in the underlying case

under rule 41(a) of the Utah Rules of Civil Procedure. On

September 2, 2020, the district court issued a memorandum

decision that granted HMS's previously filed motions to dismiss

the Complaint and Supplement to the Complaint, denied

Vashisht-Rota's motion for sanctions, and awarded HMS a

sanction in the form of attorney fees incurred in responding to

Vashisht-Rota's frivolous rule 11 motion.5

Thereafter, HMS filed a motion under rule 83 of the Utah

15

Rules of Civil Procedure to declare Vashisht-Rota to be a

vexatious litigant and impose filing restrictions. Vashisht-Rota

opposed the motion and simultaneously filed a "motion to

withdraw any pending motions." On April 26, 2021, the district

court issued the Vexatious Litigant Order, making the findings

of fact and conclusions of law required by rule 83 and ordering

4. In her response to the sua sponte motions, Vashisht-Rota

claims that the district court did not identify which of several

motions for sanctions is the focus of the Vexatious Litigant

Order. The district court identified the rule 11 motion.

5. This ruling resulted in a September 24, 2020 Judgment

awarding attorney fees in the amount of $4,900.00. Vashisht-Rota

previously filed a notice of appeal from that judgment, which

was assigned case number 20200802-CA. She voluntarily

dismissed that appeal.

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that Vashisht-Rota "may not file another document with this

Court without the assistance of legal counsel."

Rule 83(a)(1)(C) states that a court may find a person to be

16

a "vexatious litigant" if the person "three or more times does

any one or any combination of the following:" (i) "files

unmeritorious pleadings or other papers," (ii) "files pleadings or

other papers that contain redundant, immaterial, impertinent or

scandalous matter," or (iv) "engages in tactics that are frivolous

or solely for the purpose of harassment or delay." Once a court

finds that a person is a vexatious litigant, the court must also

find, by clear and convincing evidence, "that there is no

reasonable probability that the vexatious litigant will prevail on

the claim" asserted in the case. Id. R. 83(c)(1)(B); see also Strand v.

Nupetco Assocs. LLC, 2017 UT App 55,1 5, 397 P.3d 724. "In other

words, the court cannot impose a vexatious litigant order on a

pro se litigant whose claim before that court enjoys a reasonable

probability of success." Strand, 2017 UT App 55,1 5.

The district court found that three or more times,

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Vashisht-Rota engaged in tactics that were frivolous and filed

unmeritorious pleadings and other papers that contain

immaterial matter. The district court found that the Complaint,

Supplement to the Complaint, Motion for Proper Service, and

Motion to Impose Rule 11(b) Sanctions each were unmeritorious

filings. The court further found that Vashisht-Rota filed

immaterial and frivolous motions, including (1) motion to

reinstate appeal, (2) motion to compel mailing address of Chris

Howell, (3) motion to submit opening brief for sexual

harassment appeal in the Ninth Circuit, (4) motion to compel

communications between the clerk of court and Jones Waldo,

and (5) motion to request questions of all court personnel.

Finally, the court found that Vashisht-Rota filed numerous

papers that contained disrespectful language or contained

baseless conspiracy theories. On the basis of the foregoing, the

district court found, by clear and convincing evidence, that

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Vashisht-Rota is a vexatious litigant within the meaning of rule

83(a)(1)(C).

Next, the district court found "by clear and convincing

18

evidence, that there is no reasonable probability that [the]

[C]omplaint will prevail," stating that the court had already

determined that the Complaint and Supplement to the

Complaint were "barred as a matter of law." The Vexatious

Litigant Order required Vashisht-Rota to be represented by

counsel in any further proceedings in that action.6

I. The District Court Had Subject Matter Jurisdiction

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We first consider whether the district court had subject

matter jurisdiction to enter the Vexatious Litigant Order.

Vashisht-Rota argues that because she filed a notice of dismissal

under rule 41(a) of the Utah Rules of Civil Procedure on August

5, 2020, the district court lacked jurisdiction to take any further

action.7 We disagree.

110 Generally, a court loses jurisdiction upon the filing of a

valid notice of voluntary dismissal. See In re NM., 2018 UT App

6. The court also entered an order related to the disposal of seven

binders of material that Vashisht-Rota had sent to the court, but

it does not appear that was a separate basis for the determination

that she is a vexatious litigant.

7. Vashisht-Rota contends that the district court lacked

jurisdiction to dismiss the Complaint and Supplement to the

Complaint, to enter a judgment awarding attorney fees as a

sanction for filing a frivolous motion for sanctions under rule

11(b), and to enter the Vexatious Litigant Order. Because this

appeal is limited to review of the Vexatious Litigant Order, we

do not address Vashisht-Rota's jurisdictional challenges to other

rulings.

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141, 1 26, 427 P.3d 1239. But the law is well established that a

court retains authority to consider, as a collateral matter,

requests for rule 11 sanctions even after a rule 41(a) dismissal.

We conclude that those same principles apply to a vexatious

litigant order.

111 In Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990), the

United States Supreme Court considered whether a federal

district court could impose rule 11 sanctions after a plaintiff had

voluntarily dismissed the complaint pursuant to rule 41(a)(l)(i)

of the Federal Rules of Civil Procedure.8 Id. at 388. The plaintiff

claimed that the notice of voluntary dismissal automatically

deprived the district court of jurisdiction to consider the

sanctions motion. Id. at 394. The Supreme Court held that a

federal district court "may enforce Rule 11 even after the

plaintiff has filed a notice of dismissal under Rule 41(a)(1)." Id. at

395. "As the violation of Rule 11 is complete when the paper is

filed, a voluntary dismissal does not expunge the [Rule 11]

violation." Id. (cleaned up). The Supreme Court concluded that

"nothing in the language of Rule 41(a)(l)(i), Rule 11, or other

statute or Federal Rule terminates a district court's authority to

impose sanctions after such a dismissal." Id. Furthermore, a rule

11 sanctions motion "requires the determination of a collateral

issue: whether the attorney has abused the judicial process, and,

if so, what sanction would be appropriate. Such a determination

may be made after the principal suit has been terminated." Id. at

396.

8. Rule 41(a) of the Utah Rules of Civil Procedure is adapted

from the analogous federal rule. Utah's appellate courts

"recognize[] the persuasiveness of federal interpretations when

the state and federal rules are similar," and "federal

interpretations . . . , while not binding, are helpful in this case."

See Barton v. Utah Transit Auth., 872 P.2d 1036, 1039 n.5 (Utah

1994).

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112 Rule 41(a)(1) allows "a plaintiff to dismiss an action

without the permission of the adverse party or the court only

during a brief period before the defendant had made a

significant commitment of time and money," i.e., by filing an

answer or a motion for summary judgment. Id. at 397.

Nevertheless, "Rule 41(a)(1) was not designed to give a plaintiff

any benefit other than the right to take one such dismissal

without prejudice." Id.

Rule 41(a)(1) does not codify any policy that the

plaintiffs right to one free dismissal also secures

the right to file baseless papers. The filing of

complaints, papers, or other motions without

taking the necessary care in their preparation is a

separate abuse of the judicial system, subject to

separate sanction. . . . [A] voluntary dismissal does

not eliminate the Rule 11 violation. Baseless filing

puts the machinery of justice in motion, burdening

courts and individuals alike with needless expense

and delay. Even if the careless litigant quickly

dismisses the action, the harm triggering Rule ll's

concerns has already occurred. Therefore, a litigant

who violates Rule 11 merits sanctions even after a

dismissal.

Id. at 397-98; see also Barton v. Utah Transit Auth., 872 P.2d 1036,

1040 n.6 (Utah 1994) ("[T]he violation of rule 11 is complete

when the party files the pleading, motion, or other paper with

the court, and a subsequent voluntary dismissal does not

eradicate the rule 11 violation.").

113 In Lundahl v. Halabi, 600 F. App'x 596 (10th Cir. 2014), the

Tenth Circuit Court of Appeals applied Cooter & Gell to a

vexatious litigant order imposed under federal law. Lundahl

filed a state court case that was removed to federal district court.

Id. at 600. After questions arose about the basis for federal

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jurisdiction, the district court set a hearing to determine whether

Lundahl had fraudulently joined a fictitious defendant to defeat

diversity jurisdiction and prevent removal. Id. at 601-02. Ninety

minutes before that hearing, Lundahl filed a notice of voluntary

dismissal of her complaint under federal rule 41(a). Id. at 602.

The federal district court imposed both monetary sanctions and

filing restrictions based upon Lundahl's abusive and vexatious

conduct in that case as well as her extensive and ongoing history

of filing abusive and frivolous litigation. Id. at 603. On appeal,

the Tenth Circuit rejected Lundahl's claim that the federal

district court lost jurisdiction to issue the orders after her

voluntary dismissal, concluding that the "orders following the

Rule 41(a) notice of voluntary dismissal did not relate to the

merits of [plaintiff's] complaint; they involved only collateral

matters related to whether she . . . had abused the judicial

process or acted in contempt of the court's orders." Id. at 608. "A

court may award attorney fees, contempt sanctions, and Rule 11

sanctions after a Rule 41(a) voluntary] dismissal because those

issues all involve the determination of a collateral issue: whether

the litigant 'has abused the judicial process, and if so, what

sanction would be appropriate.'" Id. at 608-09 (quoting Cooter &

Gell, 496 U.S. at 396). Thus, "[e]ven when a court lacks

jurisdiction to consider the merits of a case, it has jurisdiction to

impose filing restrictions on a party for her conduct in that and

other cases." Id. at 609 (cleaned up). Accordingly, the Tenth

Circuit upheld the imposition of filing restrictions. Id. at 610.

114 We find the Tenth Circuit's reasoning on this point

persuasive. Like rule 11 sanctions, a vexatious litigant order is a

collateral matter concerned with the litigant's abuse of the

judicial system rather than the merits of the underlying action.

The conduct giving rise to the vexatious litigant order is

complete and "a subsequent voluntary dismissal does not

eradicate" the vexatious conduct or protect the judicial system

from future abuses. See Barton, 872 P.2d at 1040 n.6. If a plaintiff

could voluntarily dismiss without prejudice to avoid the

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imposition of future filing restrictions, the procedure in rule 83

would be ineffective in deterring many vexatious litigants who

would simply dismiss the pending case once a rule 83 motion is

filed and initiate a new action. The need to address the abusive

conduct is not eliminated simply because the underlying matter

is dismissed. As with rule 11 sanctions, a court retains

jurisdiction to consider the collateral matter of a vexatious

litigant order even after a voluntary dismissal under rule 41(a).

II. The Vexatious Litigant Order is Affirmed

^[15 Rule 83 of the Utah Rules of Civil Procedure authorizes a

court to impose restrictive orders on vexatious pro se litigants.

See Strand v. Nupetco Assocs. LLC, 2017 UT App 55, 1 5, 397 P.3d

724. "The purpose of such orders is to curb the litigant's

vexatious conduct. To that end, the order may, for example,

require the litigant to obtain legal counsel before proceeding in

the pending action or to obtain leave of court before filing

pleadings, motions, or other papers." Id. (cleaned up).

But before imposing such an order, the court must

make two findings. First, it must find by clear and

convincing evidence that "the party subject to the

order is a vexatious litigant." See [Utah R. Civ. P.]

83(c)(1)(A). Second, the court must find, again by

clear and convincing evidence, that "there is no

reasonable probability that the vexatious litigant

will prevail on the claim" —that is, the litigant's

claim pending before the court. See id. R.

83(c)(1)(B). In other words, the court cannot impose

a vexatious litigant order on a pro se litigant whose

claim before that court enjoys a reasonable

probability of success.

Strand, 2017 UT App 55, ^ 5.

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116 Although neither the Utah Supreme Court nor this court

has determined the appropriate standard of review for a

Vexatious Litigant Order, we conclude that the three-part

standard of review for imposition of a sanction under rule 11 of

the Utah Rules of Civil Procedure provides an appropriate and

fair framework.

We employ three different standards of review in

considering a trial court's rule 11 determination,

depending on the issue being considered. The trial

court's findings of fact are reviewed under a

clearly erroneous standard; its ultimate conclusion

that rule 11 was violated and any subsidiary legal

conclusions are reviewed under a correction of

error standard; and its determination as to the type

and amount of sanctions to be imposed is reviewed

under an abuse of discretion standard.

Griffith v. Griffith, 1999 UT 78,110, 985 P.2d 255 (cleaned up).

117 Vashisht-Rota claims that the district court could not

consider the motions and pleadings that it found to be

unmeritorious because she withdrew those filings before the

court issued the April 26, 2021 Vexatious Litigant Order. She

next claims that the district court could not consider any

statements in those pleadings that were arguably immaterial,

disrespectful, or scandalous because they were not actually

disrespectful and because she had a constitutional right to make

those statements. Third, she claims that she will be prejudiced if

she is required to retain counsel in the underlying case.

118 HMS argues that all of these issues are raised for the first

time on appeal and were not preserved for appeal because she

did not raise them in her response filed in the district court to the

motion to declare her a vexatious litigant. "An issue is preserved

for appeal when it has been presented to the district court in

such a way that the court has an opportunity to rule on it."

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Patterson v. Patterson, 2011 UT 68,112, 266 P.3d 828 (cleaned up).

"Appellate courts consider three factors when determining

whether an issue was properly raised before the district court:

(1) the issue must be raised in a timely fashion; (2) the issue must

be specifically raised; and (3) a party must introduce supporting

evidence or relevant legal authority." Arriaga v. State, 2020 UT

37, 1 15, 469 P.3d 914 (cleaned up). Vashisht-Rota did not

specifically raise these arguments by presenting them to the

district court for a ruling. As a result, they are not preserved for

appeal.

119 HMS filed the motion to declare Vashisht-Rota to be a

vexatious litigant on February 3, 2021. On February 23, 2021,

Vashisht-Rota opposed the motion and simultaneously filed a

"motion to withdraw any pending motions." She argues that this

removed any pending motions from consideration as a basis to

declare her a vexatious litigant.9 Her opposition to the motion

did not raise the argument that any of her purported motions to

withdraw her filings somehow erased the prior filings from the

docket or prevented the district court from considering them.10

The issue is not preserved.

9. She also identifies other purported withdrawals of certain

motions on or about "October 2, 2020" and "September 22,

2020." None of these motions to withdraw were granted by the

district court.

10. The pattern of filing and almost simultaneously withdrawing

motions, while quite atypical generally speaking, is common

with Vashisht-Rota. As one example, Vashisht-Rota filed a

motion seeking to ask thirty-four questions of each and every

judicial staff, regarding her theories regarding contact with

opposing counsel's law firm. These filings essentially accused

the court employees of taking bribes or conspiring with

(continued...)

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120 But even assuming that the issue was preserved, the

argument that Vashisht-Rota could withdraw motions and

remove them from consideration in connection with the motion

to declare her a vexatious litigant lacks merit. First, the district

court did not grant the motion to withdraw pending motions.

Even more fundamentally, the alleged violations occurred at the

time of the inappropriate or unmeritorious filings. See Cooter

& Gell, 496 U.S. at 398 (stating that filing of papers "without

taking the necessary care in their preparation is a separate abuse

of the judicial system, subject to separate sanction" and a

"voluntary dismissal does not eliminate the Rule 11 violation");

see also Barton, 872 P.2d at 1040 n.6 (explaining "the violation of

rule 11 is complete when the party files the pleading, motion, or

other paper with the court, and a subsequent voluntary

dismissal does not eradicate the rule 11 violation"). "Baseless

filing puts the machinery of justice in motion, burdening courts

and individuals alike with needless expense and delay" and

even if a litigant removes the filing when it is later challenged,

the harm has already occurred. Cooter & Gell, 496 U.S. at 398.

\2l We conclude that the other two issues are unpreserved.

Vashisht-Rota argues that, to the extent that the Vexatious

Litigant Order was based upon her frequent use of immaterial or

disrespectful language in filings, the statements were not

disrespectful and, even if they were, she had a constitutional

right to express her opinion. Because she did not make either

argument in her response to the motion to declare her a

vexatious litigant, this issue is not preserved. Similarly, in her

response to the motion to declare her a vexatious litigant,

(...continued)

opposing counsel. Within one minute of the docketing of the

motion, a motion to withdraw was docketed, strongly

suggesting that the original motion and the motion to withdraw

were simultaneously submitted.

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Vashisht-Rota did not raise the issue of prejudice by having to

retain counsel. Therefore, she failed to preserve it.

III. Other Relief

%22 HMS asks this court to adopt the district court's Vexatious

Litigant Order as an order of this court. This request is made

based upon an amendment to rule 83 of the Utah Rules of Civil

Procedure that became effective on May 1, 2021. That rule now

provides:

(j) Applicability of vexatious litigant order to

other courts. After a court has issued a vexatious

litigant order, any other court may rely upon that

court's findings and order its own restrictions

against the litigant as provided in paragraph (b).

Utah R. Civ. P. 83(j). HMS argues that this amendment allows

the Utah Court of Appeals to impose filing restrictions based

upon the findings in the Vexatious Litigant Order that is being

appealed to this court and, on that basis, to require VashishtRota to retain counsel before making any further filings in this

court. Rule 1 of the Utah Rules of Civil Procedure states, in

relevant part, that the rules "govern the procedure in the courts

of the state of Utah in all actions of a civil nature, whether

cognizable at law or in equity, and in all statutory proceedings,

except as governed by other rules promulgated by this court or

statutes enacted by the Legislature and except as stated in Rule

81."n Based upon the language of rule 1, and in the absence of an

inconsistent appellate rule on vexatious litigants, we conclude

that the Utah Court of Appeals, as a Utah state court handling a

civil matter, can rely on rule 83(j) and rely upon the findings of

the First District Court to impose restrictions upon Vashisht11. Rule 81 of the Utah Rules of Civil Procedure contains no

exception applicable to this case.

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Rota as provided in rule 83(b) of the Utah Rules of Civil

Procedure.

^[23 We affirm the April 26, 2021 Vexatious Litigant Order.

Furthermore, in reliance upon the findings contained in the

Vexatious Litigant Order, this court adopts the filing restrictions

imposed therein and will require Vashisht-Rota to be

represented by legal counsel in connection with any future

proceedings in this action.

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Additional material

from this filing is

available in the

Clerk's Office.