Metropolitan News-Enterprise


Tuesday, September 4, 2007


Page 1


Ninth Circuit Upholds Sanctions Against Disabled Man, Lawyer

Court Says Prolific Plaintiff ‘Plainly Lied’ and Counsel Brought ‘Baseless’ Claims




Orders barring a disabled man who has filed hundreds of lawsuits under the Americans With Disabilities Act, and the attorney who has represented him in many of those cases, from filing any such suit in the Central District of California without prior court approval were upheld Friday by the Ninth U.S. Circuit Court of Appeals.

In a per curiam opinion by Judge Ronald M. Gould, Senior Judge Jerome Farris, and visiting Senior Judge Kevin T. Duffy of the Southern District of New York, the court held that the orders against Jarek Molski and attorney Thomas Frankovich were within the “sound discretion” of the district court.

Molski, who is paralyzed from the chest down and uses a wheelchair, has filed about 400 federal lawsuits under Title III of the ADA, which requires restaurants and other places of public accommodation to provide reasonable access to the disabled. Molski has traveled throughout the state from his Woodland Hills residents, encountering what he claims to be Title III violations on a regular basis.

Friday’s ruling stems from a suit Molski filed against the owners of the Mandarin Touch restaurant in Solvang following a 2003 visit. He alleged that there was enough clear space in the restroom to permit him to access the toilet from his wheelchair, and that when he exited the restroom, his hand got caught in the restroom door, “causing trauma” to his hand.

The defendants, however, moved to declare Molski a vexatious litigant and to sanction him and Frankovich.

Rafeedie Ruling

In granting relief to the defendants, Senior U.S. District Judge Edward Rafeedie cited the sheer number of suits filed, and the similarity of the complaints, including allegations of multiple similar incidents occurring on the same day. Molski, he said, “plainly lied” in his filings, the jurist finding it impossible to believe, among other things,  that the plaintiff “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.”

He also found that Molski used the federal jurisdictional rules to attach state claims for monetary damages to his ADA claims for injunctive relief, and had taken only one suit to trial, thus turning the statute into a vehicle to enrich himself; had placed an undue burden on the courts; and was unlikely to cease his pattern of abuse in the absence of a pre-filing order.

The judge later extended the sanction to Frankovich, after finding that he had filed more than 200 similarly worded ADA suits—even the typos in the complaints were identical, the judge observed—in California in one year, largely against “easy” targets like ethnic restaurants.

The judge also noted that he filed complaints on behalf of Molski alleging nearly identical injuries occurring in the same time period, and that he had written an “astonishing” letter to defendants in at least two cases, encouraging them to save money by settling with him themselves instead of hiring lawyers who would embark on a “billing expedition.”

Those findings, the appellate panel found, were supported by substantial evidence and were sufficient to support the court’s discretionary pre-filing orders.

‘Baseless Claim’

The judges acknowledged that some of Molski’s suits may have had merit, but said that did not, in and of itself, mean that his suits were not frivolous.

“Just as bringing a completely baseless claim is frivolous, so too a person with a measured legitimate claim may cross the line into frivolous litigation by asserting facts that are grossly exaggerated or totally false,” the judges said. While the court said it would “not fault counsel or client for putting their best arguments forward,” and acknowledged the unusual nature of the relief being granted, it said the district judge acted within his authority in concluding “Molski’s baseless and exaggerated claims of injuries exceeded any legitimacy and were made for the purpose of coercing settlement.”

Frankovich, who represented Molski and himself in the appellate court, could not be reached for comment. San Gabriel attorney Robert H. Appert represented the owners of the Mandarin Touch, and Sacramento attorneys Lizbeth West, Charles Post, and Thadd Blizzard represented the California Restaurant Association, National Federation of Independent Businesses Legal Foundation, California Retailers Association, California Grocers Association, and California Farm Bureau, who joined in an amicus brief.

The case is Molski v. Evergreen Dynasty Corp., 05-56452.


Copyright 2007, Metropolitan News Company