Frivolous lawsuits are one of the costs of justice. Justice in the American court system really means "procedural justice." That is, there are a detailed set of rules parties to a dispute must follow to obtain redress from the courts. In civil litigation, if you demonstrate there are no set of facts under a complaint lodged against you which would permit the allegations to be sustained, you are likely to have those allegations dismissed.

However, the bias of the justice system is to permit any litigant to "have their day in court." If there are some set of facts and some reasonable argument under which the allegations may be sustained, then attempts to dismiss the case are less likely to prevail. The "justice system" bias is to permit further discovery of facts, permit identification and deposition of important witnesses, and then reconsider the allegations as a matter of law before the court (on a so-called "summary judgment"). If, after seeking to discover the relevant facts, one party is able to demonstrate that an essential legal element needed for the other party's argument(s) to prevail is missing, then the argument(s) shall be dismissed.

The serial plaintiff, however, may understand that it will cost you, on average, $5,000 to file a motion to dismiss. The serial plaintiff may be willing to settle their case for less than $5,000. If the serial plaintiff survives the motion to dismiss, the costs of litigation grow exponentially. Deposition costs - preparing interrogatories, preparing responses to interrogatories, taking depositions, potentially finding and paying expert witnesses for deposition testimony and reports, and preparation of a motion for summary judgment; these costs can easily exceed $30,000. The pressure to settle builds. The serial plaintiff learns to use state and federal laws as a source of income; a type of statutory entrapment.

But what is the alternative? What are the unintended consequences of granting motions to dismiss more liberally?

As more and more statutes are enacted, for ever more specialized reasons seeking to guide and modify behavior, it is important to consider and, where appropriate, narrow the parties who have the right to enforce the laws. Put another way, the serial plaintiff who brings frivolous suits by relying on statutory damages may be controlled by denying such plaintiff the right to file a complaint based on statutory damages alone - i.e., they have suffered no actual harm, but merely seek for themselves the statutory fines imposed for violation of the law. Consumer protection statutes seeking to fine tune commercial behavior should be enforced by the state or the federal government; there should be limited or no private right of action.

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