Vashisht-Rota v. Howell Management

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:

¶1 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.
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Vexatious Litigant Order. Having considered the parties’
responses, we now affirm.2

¶2 Vashisht-Rota worked as an independent contractor for
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

¶3 Vashisht-Rota initiated the underlying case in Utah by
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 California-
based 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.

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

¶5 Thereafter, HMS filed a motion under rule 83 of the Utah
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.”

¶6 Rule 83(a)(1)(C) states that a court may find a person to be
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, ¶ 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, ¶ 5.

¶7 The district court found that three or more times,
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).

¶8 Next, the district court found “by clear and convincing
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

¶9 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.

¶10 Generally, a court loses jurisdiction upon the filing of a
valid notice of voluntary dismissal. See In re N.M., 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, ¶ 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.

¶11 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)(1)(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)(1)(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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¶12 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
plaintiff’s 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 11’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.”).

¶13 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) voluntar[y] 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.

¶14 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, ¶ 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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¶16 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, ¶ 10, 985 P.2d 255 (cleaned up).

¶17 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.

¶18 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, ¶ 12, 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, ¶ 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.

¶19 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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¶20 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.

¶21 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 Vashisht-
Rota 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.”11 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 Vashisht-

11. 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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