Molski v. Mandarin Touch Restaurant

• Decision Date: 09 December 2004
• Docket Number: No. CV 04-0450 ER.,CV 04-0450 ER.
• Parties: Jarek MOLSKI, an individual; and Disability Rights Enforcement Education Services: Helping You Help Others, a California corporation, Plaintiffs, v. MANDARIN TOUCH RESTAURANT; Evergreen Dynasty Corp., a California corporation; and Brian McInerney and Kathy S. McInerney, as joint tenants, Defendants.
• Court: U.S. District Court — Central District of California

347 F.Supp.2d 860

Jarek MOLSKI, an individual; and Disability Rights Enforcement Education Services: Helping You Help Others, a California corporation, Plaintiffs, v. MANDARIN TOUCH RESTAURANT; Evergreen Dynasty Corp., a California corporation; and Brian McInerney and Kathy S. McInerney, as joint tenants, Defendants.

No. CV 04-0450 ER.

United States District Court, C.D. California.

December 9, 2004.

Thomas E. Frankovich, San Francisco, CA, for Plaintiffs.

Robert H. Appert, San Gabriel, CA, Alan H. Boon, Berger Kahn, Irvine, CA, for Defendants.

ORDER GRANTING DEFENDANT'S MOTION TO DECLARE JAREK MOLSKI A VEXATIOUS LITIGANT AND FOR A PRE-FILING ORDER REQUIRING MOLSKI TO OBTAIN LEAVE OF COURT BEFORE FILING ANY OTHER CLAIMS UNDER THE AMERICANS WITH DISABILITIES ACT

RAFEEDIE, Senior District Judge.

Defendant Evergreen Dynasty Corporation, doing business as Mandarin Touch Restaurant,¹ has asked this Court to declare Plaintiff Jarek Molski a vexatious litigant, and to order Molski to obtain leave of court before filing any other claims under the Americans With Disabilities Act. The matter came on for hearing on November 15, 2004, the Honorable Edward Rafeedie presiding. The Court has concluded that a pre-filing order is appropriate for the reasons discussed below.

Statement of Facts

a. Plaintiff's History of Litigation

Plaintiff Jarek Molski is a physically disabled individual who relies on a wheelchair for ambulation. Although he resides in Woodland Hills, he has filed hundreds² of lawsuits in federal courts throughout the state of California.

A review of the cases submitted to this Court reveals that many are nearly identical in terms of the facts alleged, the claims presented, and the damages requested. In virtually every complaint involving a restaurant or winery, Molski initially reports having trouble finding adequate van-accessible parking. Then, almost uniformly, he reports difficulties entering the business, often citing ramps that are too steep, or doors that require more pressure to open than is permitted by law. After entering the business, Molski generally complains that the service counter is too high. Virtually every complaint ends with Molski venturing to the restroom, which inevitably suffers from at least one violation. Molski almost always suffers some injury — typically to the upper extremities — in the process of transferring himself from his wheelchair to the toilet. He also regularly complains of suffering humiliation or other emotional distress from the experience. Molski's prayer for relief routinely includes both a request for injunctive relief and damages of $4,000 per day, for each day after his visit until the facility is brought up to ADA standards.

The facts of the instant case are predictably similar. On January 25, 2003, Molski's complaint alleges that he had dinner at the Mandarin Touch Restaurant in Solvang, California. After dinner, Molski attempted to use the restroom, but found that the entrance was too narrow. Molski then alleges that, as he was attempting to leave the restroom, his hand became "caught in the exterior door causing trauma to it." The lawsuit asks for injunctive relief to bring the restaurant up to ADA standards, and damages of not less than $4,000 per day, for each day after his visit until such time as the restaurant is made fully accessible.

b. The Americans With Disabilities Act

The Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., was signed into law in 1990. Its stated goal is to remedy discrimination against individuals with disabilities.³ To that end, Title III of the ADA, 42 U.S.C. § 12181, et seq., requires the removal of structural barriers in existing public accommodations "where such removal is readily achievable."⁴ 42 U.S.C. § 12182(b)(2)(A)(iv). See also 28 C.F.R. § 36.304 (2004)(listing examples of, and prioritizing, readily achievable repairs). Where removal of the barrier is not readily achievable, the facility must provide access "through alternative methods if such methods are readily achievable." 42 U.S.C. § 12182(b)(2)(A)(v).

To enforce Title III, the ADA contains both a private right of action, 42 U.S.C. § 12188(a), and a right of action for the Attorney General, 42 U.S.C. § 12188(b). While the Attorney General may seek monetary damages on behalf of an aggrieved party, 42 U.S.C. § 12188(b)(2)(B), the only remedies available under the private right of action are injunctive relief and the recovery of attorneys' fees and costs. 42 U.S.C. § 12188(a)(1); 42 U.S.C. § 2000a-3(a). By providing different remedies for public and private enforcement, Congress clearly demonstrated its intent to prevent private plaintiffs from recovering money damages under the ADA. American Bus Ass'n v. Slater, 231 F.3d 1, 5 (D.C.Cir.2000) ("By specifying the circumstances under which monetary relief will be available, Congress evinced its intent that damages would be available in no others.").

However, enterprising plaintiffs (and their attorneys) have found a way to circumvent the will of Congress by seeking money damages while retaining federal jurisdiction. Because a violation of the ADA also constitutes a violation of California's Unruh Civil Rights Act, Cal. Civ.Code § 51(f), and the California Disabled Persons Act ("CDPA"), Cal. Civ.Code § 54(c), Plaintiffs can sue in federal court for injunctive relief under the ADA, and tack on state law claims for money damages under the Unruh Act and CDPA. See, e.g., Moeller v. Taco Bell Corp., 220 F.R.D. 604, 607 (N.D.Cal.2004).

The ability to profit from ADA litigation has given birth to what one Court described as "a cottage industry." Rodriguez v. Investco, L.L.C., 305 F.Supp.2d 1278, 1280-81 (M.D.Fla.2004). The scheme is simple: an unscrupulous law firm sends a disabled individual to as many businesses as possible, in order to have him aggressively seek out any and all violations of the ADA. Then, rather than simply informing a business of the violations, and attempting to remedy the matter through "conciliation and voluntary compliance," id. at 1281, a lawsuit is filed, requesting damage awards that would put many of the targeted establishments out of business. Faced with the specter of costly litigation and a potentially fatal judgment against them, most businesses quickly settle the matter.

The result of this scheme is that "the means for enforcing the ADA (attorney's fees) have become more important and desirable than the end (accessibility for disabled individuals)." Brother v. Tiger Partner, LLC, 331 F.Supp.2d 1368, 1375 (M.D.Fla.2004). Serial plaintiffs, like Molski, serve as "professional pawn[s] in an ongoing scheme to bilk attorney's fees." Rodriguez, 305 F.Supp.2d at 1285. It is a "type of shotgun litigation [that] undermines both the spirit and purpose of the ADA." Brother, 331 F.Supp.2d at 1375.⁵

Analysis

a. Authority to Issue Pre-Filing Order

The District Court has the inherent power to levy sanctions in response to abusive litigation practices. See, e.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, 765-66, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). This inherent power is augmented by Local Rule 83-8, which empowers this Court to craft an appropriate sanction to defend against vexatious litigation, including, but not limited to, "a directive to the Clerk not to accept further filings from the litigant without payment of normal filing fees and/or without written authorization from a judge of the Court or a Magistrate Judge, issued upon such showing of the evidence supporting the claim as the judge may require."⁶ C.D. Cal. Local Rule 83-8.2.

b. Standard for Vexatious Litigant

In deciding whether or not to restrict a litigant's access to the courts, "[u]ltimately, the question the court must answer is whether a litigant who has a history of vexatious litigation is likely to continue to abuse the judicial process and harass other parties." Safir v. United States Lines, Inc., 792 F.2d 19, 23 (2nd Cir.1986). In doing so, the Court should look to five factors: (1) the litigant's history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant's motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties. See id.

1. Litigant's History of Litigation

A "vexatious suit" is a "lawsuit instituted maliciously and without good cause." Black's Law Dictionary 1596 (8th ed.2004). After examining Plaintiff's extensive collection of lawsuits, the Court believes that most, if not all, were filed as part of a scheme of systematic extortion, designed to harass and intimidate business owners into agreeing to cash settlements.

The Court bases this determination on several considerations. One is the sheer volume of lawsuits filed by this Plaintiff. Although litigiousness alone is insufficient to justify a restriction on filing activities, see In re Oliver, 682 F.2d 443, 446 (3rd Cir.1982), it is a factor the Court considers indicative of an intent to harass. See De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir.1990) (stating that in order to issue a prefiling order, "[a]t the least, the record needs to show, in some manner, that the litigant's activities were numerous or abusive"). Here, Molski's filing are plainly numerous, and, as discussed throughout this order, abusive as well.

Another consideration is the textual and factual similarity of the complaints filed by Plaintiff. This too, while not dispositive, is a factor the Court considers indicative of an intent to harass, as it suggests that Plaintiff is filing boilerplate complaints. See In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988) (sta...