NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-1348 __________

SANDRA RUMANEK, Appellant

v.

SHERRY R. FALLON; DAVID G. CULLEY; TIMOTHY M. HOLLY; MARY I. AKHIMIEN; MATTHEW F. BOYER; NICHOLAS W. WOODFIELD; BERNARD G. CONAWAY; R. SCOTT OSWALD; SANDRA F. CLARK; JOSEPH J. RHOADES; RICHARD R. COOCH; LOUIS J. RIZZO, JR.; CHARLES E. BUTLER; STATE OF DELAWARE; SPILLAN, Delaware State Police Officer Spillan, IBM 770; MATT DENN, Delaware Attorney General; SUSAN JUDGE; PATRICK O’HARE; ANNETTE FURMAN; LISA AMATUCCI; ROBERT CRUIKSHANK ____________________________________

On Appeal from the United States District Court for the District of Delaware (D.C. Civil Action No. 1:17-cv-00123) District Judge: Honorable Christopher C. Conner ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) December 8, 2021

Before: MCKEE, SHWARTZ and MATEY, Circuit Judges

(Opinion filed: December 15, 2021) ___________

OPINION* ___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

District courts have at their disposal a variety of tools with which to bring order to

a chaotic case. When a litigant persists in the misbehavior of vexatious litigation activity,

specifically, a filing injunction may be the appropriate remedy. In this appeal we consider

whether the District Court appropriately enjoined plaintiff-appellant Sandra Rumanek

from further filings in a closed docket.

I.

Years ago, Rumanek sued her former employer in federal court. United States

Magistrate Judge Sherry Fallon presided over the case. Rumanek lost at trial, and we

affirmed the judgment on appeal. See Rumanek v. Indep. Sch. Mgmt., Inc.,

(3d Cir. 2015) (per curiam).

Alleging a conspiracy to thwart her litigation efforts in federal and state court,

Rumanek later filed a pro se civil rights action against Judge Fallon and many others.

After allowing Rumanek to amend her complaint for a sixth time, the District Court

warned that it would “not entertain further requests to amend” and would strike any

unauthorized filings. DC ECF No. 92 at 4.

Rumanek nevertheless sought leave to file a seventh and then eighth amended

complaint.1 The District Court responded by striking both filings and twice admonishing

Rumanek that further violation of its prior order “may warrant imposition of sanctions.”

1 She also filed a mandamus petition, which we denied. See In re Rumanek,

, 22-23 (3d Cir. 2018) (per curiam).

2 DC ECF No. 122 at 2; DC ECF No. 125 at 2. Proposed ninth and tenth amended

complaints followed; the District Court struck those filings, too. It also granted

outstanding dispositive defense motions and closed the case.2

Rumanek’s next moves were to file proposed eleventh and twelfth amended

complaints. The District Court entered an order denying leave to amend, and also

observing that the case was closed and the motions were meritless. The District Court

stated that it would “not entertain further filings, other than good-faith and nonfrivolous

motions authorized by the Federal Rules of Civil Procedure, in the above-captioned

action.” DC ECF No. 152 at 2. But Rumanek had other plans; among other unauthorized

filings, she sought leave to file a thirteenth and then fourteenth amended complaint.

The District Court entered an order on January 27, 2021. The order surveyed

Rumanek’s conduct in the case and observed that, despite prior admonitions, “Rumanek

continues to file frivolous motions and various other documents,” which “have become

an unnecessary burden on the Clerk’s Office.” DC ECF No. 160 at 1-2. The District

Court thus enjoined Rumanek “from further filing in the above-captioned action.” Id. at

2. It also enjoined her “from emailing the Clerk of Court or the Chief Judge of this

judicial district concerning the above-captioned action.” Id. Rumanek appealed.3

2 Rumanek’s appeals of the District Court’s judgment and an earlier ruling were dismissed as untimely. See Rumanek v. Fallon C.A. No. 19-2290, Doc. 48 (3d Cir. Feb. 11, 2020) (order); Rumanek v. Fallon, C.A. No. 19-2289, Doc. 53 (3d Cir. Feb. 6, 2020) (order). Before that, we had denied Rumanek’s second mandamus petition related to this case. See In re Rumanek,

, 160 (3d Cir. 2019) (per curiam). 3 Rumanek appealed a virtually identical filing-injunction order entered in Rumanek v.

3 II.

We have jurisdiction under

. The District Court’s January 27,

2021 order is reviewed for abuse of discretion. See In re Packer Ave. Assocs.,

(3d Cir. 1989).

III.

As noted at the outset, the issue in this appeal is whether it was proper for the

District Court to enjoin Rumanek from further filings in the case below.4 In conducting

our review, we are looking for the presence of three things: (1) “exigent circumstances,

such as a litigant’s continuous abuse of the judicial process by filing meritless and

repetitive actions”; (2) “notice to the litigant to show cause why the proposed injunctive

relief should not issue”; and (3) narrow tailoring of the injunction “to fit the particular

circumstances of the case.” Brow v. Farrelly,

(3d Cir. 1993).

Rumanek’s conduct makes clear that she has exhibited no regard for the District

Court’s directives about permissible filings in the case below. So for the first requirement

of Brow, we readily conclude that the conditions were ripe for consideration of a filing

injunction. See id.; see also In re Oliver,

(3d Cir. 1982) (“[A]

Independent School Management, Inc., DC Civ. No. 1:12-cv-00759 (D. Del). That appeal (C.A. No. 21-1349) is addressed in a separately issued opinion. 4 Rumanek’s request that we, in effect, review every order entered by the District Court is neither timely nor appropriate. Furthermore, insofar as Rumanek has not challenged on appeal the District Court’s order to the extent it restricted her email communications with the District Court’s Clerk and Chief Judge, she has forfeited the right to do so. See M.S. by & through Hall v. Susquehanna Twp. Sch. Dist.,

, 124 n.2 (3d Cir. 2020).

4 continuous pattern of groundless and vexatious litigation can, at some point, support an

order against further filings of complaints without the permission of the court.”).

We cannot say the same with respect to Brow’s second requirement. While the

District Court only enjoined Rumanek after she repeatedly engaged in the very conduct it

told her multiple times was prohibited and could result in “sanctions,” the District Court

did not warn Rumanek that continued disrespect of court orders may result in the specific

sanction of a filing injunction. A general warning about “sanctions” may not adequately

inform a litigant that her access to the courts may be curtailed. Cf. Gagliardi v.

McWilliams,

(3d Cir. 1987) (per curiam) (holding that request in

defendants’ Rule 11 sanctions motion for “other appropriate relief’ was insufficient

notice to pro se plaintiff that district court would impose filing injunction).

Furthermore, the District Court did not invite Rumanek to comment on the

propriety of a filing injunction before the injunction was imposed. Show-cause

proceedings are an effective way to elicit a litigant’s arguments in opposition to a filing

junction, but the lack of such formal proceedings may not always be dispositive. Cf.

Schlaifer Nance & Co. v. Estate of Warhol,

(2d Cir. 1999). At a

minimum, a litigant facing a filing injunction must be provided “some occasion to

respond” to the potential restriction. Gagliardi,

. That “occasion” is absent

from the record on appeal here.

5 Accordingly, we must vacate the January 27, 2021 order and remand. See, e.g.,

id.; In re Oliver,

.5 Given that disposition, we need not and do not address

the third requirement of Brow—narrow tailoring. At the same time, nothing in this

opinion should be read to prevent the District Court from considering whether to

reimpose the same filing injunction against Rumanek, provided that the District Court

gives her notice and an opportunity to oppose the reimposition of that injunction.

IV.

For the reasons given above, we will vacate the District Court’s January 27, 2021

order and remand for further proceedings consistent with this opinion. Appellees’

motions for leave to file supplemental appendices and/or expand the record on appeal

(Docs. 26, 31, 35, 39, 50, 60) are all denied.

5 Appellees’ attempts to distinguish Brow, Gagliardi, and Oliver—cases which counsel in favor of vacating a filing-injunction order entered without notice—are unavailing. True, those cases involved filing injunctions much broader than the case-specific one issued here. Cf. Brow,

; Gagliardi,

; In re Oliver,

. But the breadth of a filing injunction is germane to Brow’s narrow-tailoring requirement, and to whether the notice actually given has sufficiently forecast for the litigant the severity of the injunction imposed. Those issues are not before us; we are tasked with resolving the comparatively simple question of whether Rumanek was provided any notice of a prospective filing injunction. Answering in the negative, we merely apply the rule from Brow, Gagliardi, and Oliver that notice of a filing injunction must precede its imposition.

6