§ 11.1035.Mistaken Filing

The repair provision, added because the clerk screening will sometimes fail.

Any party may file and serve a notice stating that the plaintiff is a vexatious litigant required to obtain permission, where a clerk mistakenly files litigation presented pro se by a litigant subject to a prefiling order without the required order.

Any party may give the notice, not only a defendant, and it goes to the plaintiff and to the other parties.

The clerk then acts on a short timetable. Not later than the next business day after receiving notice, the clerk shall notify the court that the litigation was mistakenly filed.

On receiving that notice the court shall immediately stay the litigation and shall dismiss it unless the plaintiff obtains a permitting order within 10 days after the notice is filed.

The plaintiff is not put out of court on the clerk’s error. Ten days are allowed to seek what should have been obtained first, and a suit that would have been permitted survives the clerk’s error.

The section is careful about which day starts the clock: the 10 days run from the date the notice is filed, not from the clerk’s notification or the court’s stay.

Subsection (c) closes the route to review: an order dismissing litigation that was mistakenly filed by a clerk may not be appealed.

The logic is that nothing was decided. The dismissal rests on the absence of permission, and the answer is to seek permission — a decision reviewable, on its own terms, only by mandamus.