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Posner: Woman's 'Vitriolic' Suit Against Ex Might Have Merit

By Robyn Hagan Cain | Last updated on

Robin West told police that her husband, Dean West, raped and beat her in 2008. Then she recanted that claim, withdrew the charges, and resumed living with Dean. After the couple divorced, Robin sued Dean for battery and related torts.

A district judge tossed Robin's lawsuit, ruling that it was malicious, and that he refused to be pulled into a "vitriolic tug-of-war."

This week, the Seventh Circuit Court of Appeals reversed that decision, noting that vitriol, alone, is not cause for dismissal.

Robin filed her claim in forma pauperis. Federal law requires a district court to dismiss such a suit "at any time if the court determines that ... [it] is frivolous or malicious." The district judge dismissed Robin's claims on his own initiative, offering three reasons for dismissal; he Seventh Circuit rebutted each one.

  1. "This action may be merely a fishing expedition." Robin expressed her desire to subpoena Dean's telephone records, and asked the court to enter an order blocking AT&T from disposing of any telephone records relating him. According to the Seventh Circuit, the "fishing expedition" accusation was not substantiated by the record. Robin requested only the records of Dean's phone calls to her, presumably to prove that he harassed her.
  2. Plaintiff is harassing the defendant. "The Defendant claims that the Plaintiff is seeking these records so she can ... disparage his reputation ... The Plaintiff has generally confirmed this in her latest filing, stating that she tried to contact an individual to warn her regarding the Defendant's character ... The Court refuses to be pulled into this vitriolic tug-of-war," the district judge wrote. Well la-de-dah. Judge Richard Posner, writing for the panel, noted that many a federal case could be described as a vitriolic tug-of-war, but a plaintiff's anger doesn't justify an inference that the suit is groundless. Furthermore, police photos corroborated Robin's claims that Dean beat her.
  3. Dean was "judgment proof." Judge Posner explained that courts need to be careful about the "meaning and significance" of that term. "The fact that a defendant can't (and the plaintiff knows he can't) write a check for the maximum foreseeable amount of damages is not conclusive, since a judgment against the defendant, or part of it, may be collectible by garnishment of the defendant's wages or by an order that he sell illiquid assets," Posner wrote.

Judge Posner didn't say that Robin's case had merit; he just explained that the record so far did not prove that the suit should be dismissed as frivolous, malicious, or an abuse of process. A suit, after all, can be "groundless without being so utterly groundless as to be deemed 'frivolous.'" Determining whether or not Robin West's claims had merit, according to Judge Posner, necessitated further discovery ... and reassignment to a new judge.

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