Molski v. Evergreen Dynasty Corp.

• Decision Date: 31 August 2007
• Docket Number: No. 05-56452.,05-56452.
• Citation: 500 F.3d 1047
• Parties: Jarek MOLSKI; Disability Rights Enforcement Education Services: Helping You Help Others, a California public benefit corporation, Plaintiffs-Appellants, v. EVERGREEN DYNASTY CORP., d/b/a Mandarin Touch Restaurant; Brian McInerney; Kathy S. McInerney, as joint tenants, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

500 F.3d 1047

Jarek MOLSKI; Disability Rights Enforcement Education Services: Helping You Help Others, a California public benefit corporation, Plaintiffs-Appellants, v. EVERGREEN DYNASTY CORP., d/b/a Mandarin Touch Restaurant; Brian McInerney; Kathy S. McInerney, as joint tenants, Defendants-Appellees.

No. 05-56452.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 17, 2007.

Filed August 31, 2007.

Thomas E. Frankovich and Jennifer L. Steneberg, Thomas E. Frankovich, A Professional Law Corporation, San Francisco, CA, for plaintiff-appellant Jarek Molski and appellant Thomas E. Frankovich, A Professional Law Corporation.

Robert H. Appert, San Gabriel, CA, for defendants-appellees Mandarin Touch Restaurant and Evergreen Dynasty Corporation.

Alan H. Boon and David B. Ezra, Berger Kahn, Irvine, CA, for defendants-appellees Brian McInerney and Kathy McInerney.

Lizbeth V. West, Charles L. Post, and Thadd A. Blizzard, Weintraub Genshlea Chediak, Sacramento, CA, for amici curiae California Restaurant Association, National Federation of Independent Businesses Legal Foundation, California Retailers Association, California Grocers Association, and California Farm Bureau.

Appeal from the United States District Court for the Central District of California; Edward Rafeedie, District Judge, Presiding. D.C. No. CV-04-00450-ER.

Before: JEROME FARRIS and RONALD M. GOULD, Circuit Judges, and KEVIN THOMAS DUFFY,^* District Judge.

PER CURIAM:

This appeal presents two orders of the district court for our review. The first order declared Jarek Molski a vexatious litigant and ordered that Molski obtain leave of the court before filing any claims under Title III of the Americans With Disabilities Act ("ADA") in the United States District Court for the Central District of California. The second order sanctioned the law firm representing Molski, Thomas E. Frankovich, a Professional Law Corporation ("the Frankovich Group"), by requiring it to obtain leave of the court before filing any claims under Title III of the ADA in the Central District of California. We dismiss two of the defendants-appellees from this appeal for lack of jurisdiction. As to the remaining parties, we hold that the district court acted within its sound discretion in entering the pre-filing orders against Molski and against the Frankovich Group, and we affirm the orders of the district court.

I

Molski, who is paralyzed from the chest down, needs a wheelchair to get around. He has filed about 400 lawsuits in the federal courts within the districts in California. Molski lives in Woodland Hills, California, but frequently travels. According to Molski's amended complaint in this case, during his travels, he stopped at the Mandarin Touch Restaurant in Solvang, California on January 25, 2003. After finishing his meal, Molski decided to use the restroom. Molski was able to pass through the narrow restroom door, but there was not enough clear space to permit him to access the toilet from his wheelchair. Molski then exited the restroom, and in the course of doing so, got his hand caught in the restroom door, "causing trauma" to his hand. Molski's amended complaint also alleged that Mandarin Touch contained other accessibility barriers "too numerous to list."

Asserting claims under the ADA and California law, Molski, along with co-plaintiff Disability Rights Enforcement, Education Services: Helping You Help Others ("DREES"), a non-profit corporation, sought injunctive relief, attorneys' fees and costs, and damages. Specifically, the complaint sought "daily damages of not less than $4,000/day ... for each day after [Molski's] visit until such time as the restaurant is made fully accessible" as well as punitive damages and pre-judgment interest. The amended complaint named as defendants Mandarin Touch Restaurant, Evergreen Dynasty Corp., and Brian and Kathy McInerney.

Shortly after the defendants answered the complaint, Mandarin Touch and Evergreen Dynasty filed a motion for an order (1) declaring Molski a vexatious litigant; (2) requiring Molski to obtain the court's permission before filing any more complaints under the ADA; and (3) imposing monetary sanctions against Molski and his counsel, Thomas E. Frankovich. Defendants Brian and Kathy McInerney did not join the motion. In a published order, the district court granted the motion in part, declaring Molski a vexatious litigant and granting the defendants' request for a pre-filing order. Molski v. Mandarin Touch Rest., 347 F.Supp.2d 860, 868 (C.D.Cal. 2004) [hereinafter Mandarin Touch I].

In determining that Molski was a vexatious litigant, the district court applied the five factors set forth in the opinion of the United States Court of Appeals for the Second Circuit in Safir v. United States Lines, Inc., 792 F.2d 19, 24 (2d Cir.1986). Those factors are: (1) the litigant's history of litigation and in particular whether it entailed vexatious, harassing, or duplicative suits; (2) the litigant's motive in pursuing the litigation, for example, whether the litigant had a good faith expectation of prevailing; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused unnecessary expense to the parties or placed a needless burden on the courts; and (5) whether other sanctions would be adequate to protect the courts and other parties. Id.

The district court first noted that Molski had an extensive history of litigation. Mandarin Touch I, 347 F.Supp.2d at 864. While acknowledging that the fact that a plaintiff has filed a large number of suits, standing alone, does not warrant a pre-filing order, the district court noted that a large volume of suits might indicate an intent to harass defendants into agreeing to cash settlements. Id. The district court also noted that Molski's complaints were all textually and factually similar. Id. While again not entirely dispositive, the district court surmised that boilerplate complaints might indicate an intent to harass defendants. Id.

Against this background, the district court's reasoning made clear that the most important consideration was its specific finding that the allegations in Molski's numerous and similar complaints were "contrived and not credible." See id. The court stressed that Molski often filed multiple complaints against separate establishments asserting that Molski had suffered identical injuries at each establishment on the same day. Id. at 865. The district court pointed out that Molski had filed thirteen separate complaints for essentially identical injuries allegedly sustained during one five-day period in May 2003. Id. In particular, Molski had alleged that, at each establishment, he injured his "upper extremities" while transferring himself to a non-ADA-compliant toilet. See id. at 864-65. The district court explicitly found that, in making these duplicitous injury claims, Molski had "plainly lied" in his filings to the court because the district court "simply [did] not believe that Molski suffered 13 nearly identical injuries, generally to the same part of his body, in the course of performing the same activity, over a five-day period." Id. at 865, 867.

Applying the second Safir factor, the district court concluded that Molski's motivation in bringing numerous suits alleging both violations of the ADA and California state civil rights laws was to extract cash settlements from defendants. Id. at 866-67. Although the ADA grants private plaintiffs like Molski only the rights to seek injunctive relief, attorneys' fees, and costs, the California state civil rights laws amplify the scope of relief available under federal law by also permitting the recovery of money damages. Compare 42 U.S.C. §§ 2000a-3(a), 12188(a)(1), with Cal. Civ. Code §§ 51(f), 52(a), 54(c), 54.3(a); see also Moeller v. Taco Bell Corp., 220 F.R.D. 604, 606-07 (N.D.Cal.2004) (discussing the remedies available under California law). The district court acknowledged that raising multiple claims in one suit is, in and of itself, not vexatious. Mandarin Touch I, 347 F.Supp.2d at 866. However, because Molski had tried on the merits only one of his approximately 400 suits and had settled all the others, the district court concluded that Molski's consistent approach was to use the threat of money damages under California law to extract cash settlements and move on to his next case. Id.

Applying the third factor from Safir, the district court found that Molski had been represented by counsel in every suit he filed. Id. The court wrote that "courts are generally protective of pro se litigants," but reasoned that "this same protection does not apply to litigants represented by counsel," and concluded that this factor also weighed in favor of issuing a pre-filing order. Id.

Under the fourth Safir factor, the district court determined that the large number of vexatious claims Molski had filed had placed an undue burden on the courts. Id.

Finally, applying the fifth factor from Safir, the district court found that the only effective way to protect the courts and other parties from future vexatious litigation by Molski was by entering a pre-filing order. Id. Accordingly, the district court held that, "[b]efore filing any new litigation alleging violations of Title III of the ADA in the United States District Court for the Central District of California, Molski[must] file a motion for leave to file a complaint." Id. at 868. The court required that Molski "submit a copy of this order and a copy of the proposed filing with every motion for leave." Id.

In the same order, the district court denied the motion of Evergreen Dynasty and Mandarin Touch for sanctions as premature. Id. Finally, the district court issued an order to show cause why it should not impose a pre-filing sanction on Molski's attorneys, the Frankovich Group. Id. at 867.

About three months later, the district court issued a published memorandum decision regarding that order to...