Molski v. Evergreen Dynasty Corp.

case, respectfully I dis- this is not such a FARRIS and Before JEROME rehearing en banc. the denial of sent from GOULD, Judges, M. Circuit RONALD DUFFY,* Senior THOMAS and KEVIN I.

Judge. “petition right Amendment The First griev- for a redress of the Government ORDER filing of law- includes the ances”—which voted to have judges All on of the precious ‘the most suits—is “one of Petition for deny Appellant’s Plaintiff' Bill of safeguarded by the liberties is Rehearing, petition and so that Panel ” NLRB, K Co. v. Rights.’ BE & Constr. DENIED. 2390, 516, 524, 122 S.Ct. 536 U.S. Plain- has been advised of The full court (2002) Mine (quoting United L.Ed.2d 499 En Rehearing Petition for tiff/Appellant’s Assn., v. Illinois Bar 389 U.S. Workers Banc, a judge requested a of this court and 222, 353, 217, 19 L.Ed.2d 426 88 S.Ct. re- this case should be vote on whether (1967)). Consequently, a determination banc; however, majority en heard filed frivolous repeatedly that a has court did judges active non-recused harassing implicates lawsuits itself his and of en consideration. not vote favor banc to the interest access First Amendment Accordingly, the Peti- R.App. P. 35. Fed. Indeed, use courts. where individual’s DE- Rehearing En Banc is also tion for or base- of the courts is declared abusive rehearing petitions further for NIED. No harm[,] less, reputational “the threat of rehearing en banc shall considered. burden ... different and additional were recused Judges Graber and Fisher is suffi- posed by penalties,” alone considering the en banc issues this from Amendment con- trigger cient First in the court’s participate case and did not 530, 122 S.Ct. 2390. cerns. See id. decision. the courts right Because the to access Amend- implicates process due and First BERZON, Judge, with whom Circuit exceedingly KOZINSKI, rights, courts have been Judge, and ment Chief PREGERSON, REINHARDT, have reluctant to restrict such access. We WARDLAW, HAWKINS, Mc-KEOWN, pre-filing order “re- noted that because FLETCHER, PAEZ, and Circuit W. an individual’s access to the court stricts join, dissenting from the denial of Judges, extraordinary remedy that system, it is an rehearing en banc: rarely narrowly should be tailored and States, Moy v. 906 F.2d used.” United Pre-filing infringe the fundamen- orders (9th Cir.1990). This is so even They courts. right tal to access the by a litigants lawyers covered though situations properly reserved extreme entirely enjoined pre-filing order are not absolutely possibility there is no where order, by the filing from suits covered judicial allegations support that the could approval the court’s first. must obtain filing the suit is a burden relief requirement is itself pre-clearance This opposing party the court and the both —a imposition right on the to access costly futility. exercise in Under those serious * York, sitting by designation. Duffy, Senior District of New The Honorable Kevin Thomas Judge United States District Southern (1986) citizens, Cal.Rptr. he 728 P.2d “Among all other the courts: (“[T]he right in his of access filing to be restricted mere or maintenance of a concerned, his As far as he is courts. improper purpose lawsuit—even for an —is delay run risk of filings future proper process not a basis for an abuse of rejection before he can call possible even action.”). Supreme The United States fil- respond to those upon defendants Court has established a similar test in harm predict ... cannot what ings. We when determining litigation can be en result, to him as a and he might come joined or declared unlawful: hold “[0]ur predict forced to it either. should not be ings prior regulation [in cases] limited is that a Sword of What he does know objectively suits that were both baseless hopes for federal hangs Damocles over his subjectively by motivated an unlawful future.” Id. access for the foreseeable Constr., BE K purpose.” & 536 U.S. at right Because it interferes with the basic 531, (emphasis original) 122 S.Ct. 2390 access, injunction of court cannot is- “[a]n (discussing sanctioning litigation of un merely upon showing litigious- sue of der the antitrust an unfair labor laws Rather, plaintiffs ness.” Id. claims “[t]he under practice the National Labor Rela numerous, only must not be but also be Act). tions Id.(emphasis patently without merit.” added). similarly Other circuits have em- II. phasized the extreme caution to be used in panel opinion pays lip The service to the See, e.g., In re imposing such orders. constitutionally-based long-standing and Powell, (D.C.Cir.1988) 427, 851 F.2d 434 injunction that principle cannot issue “[a]n (“[M]ere sup- litigiousness alone does merely upon showing litigiousness. of injunction. port the issuance of an Both plaintiffs The claims must not be filings the number and content of the bear numerous, patently but also with out on a determination of frivolousness or (9th Cir.2007) 1047, merit.” F.3d 1059 500 (citation and footnote omit- harassment.” 470). Yet, Moy, F.2d at nei- (quoting 906 (3d Oliver, ted)); 443, In re 446 682 panel nor the court con- ther the district Cir.1982) (“Oliver’s alone litigiousness that all or hundreds tend most of Molski’s injunction support restricting would not actually lack merit. In of claims filing [Legitimate his activities.... claims fact, they that expressly both concede hearing receive a full fair no should (“We be.”). Id. at 1062 litigious plaintiff may probably how meritorious. matter acknowledge that Molski’s numerous suits potentially that meritori- insistence probably part many were meritorious suits, similar, — ous however numerous and likely of the establishments he sued were a pre-filing cannot be the basis for ADA.”); compliance not in with the Molski analogous has echoes areas of law Rest., Touch 347 Mandarin similarly pro- reflect the First Amendment (C.D.Cal.2004) (“It possible, accorded court access. Under Cal- tection likely, of the businesses even law, example, ifornia the California Su- sued[by compli- not in full Molski] were Court, preme emphasizing importance ADA.”). Instead, ance with the courts, assuring has re- of access finding court’s relies on the district held that motive alone peatedly improper pat- ... Molski’s “claims were establishing is not sufficient basis for merit,” this is ently without and concludes process. Royal abuse of Oren tort of See Bernhard, enough litigation to make the frivolous. Greenberg, Oaks Venture v. added). Karma, Inc., (emphasis 500 F.3d at 1059 & Cal.3d Weiss matter, allegations to contain similar complaints the district court’s an initial As many al- entry, inadequate signage, Molski fabricated conclusion that barriers injury, which was affirmed legations addition, provided Id. In Molski so on.” cannot meet our stan- panel, simply similarity explanation for the reasonable friv- frivolousness. To be for factual dard injurious nature of injuries his and the “wholly olous, must be allegations factual As another district seemingly small acts. “conflicting with facts of which fanciful” or explained, rejecting the district court judicial take notice.” may the district court analysis declining court’s here and to find 745 F.2d Murphy, Franklin v. litigant: Molski a vexatious Cir.1984) (internal (9th quotation marks that, explains paraplegic, as a he Molski omitted) Holland, v. 655 (quoting Crisafi entirely upper relies on his extremities (D.C.Cir.1981) 1305, (per cu- F.2d 1307-08 improper and the strain of the transfers Thomas, riam)); In re 508 F.3d see also injuries to the toilet are real to him. Cir.2007) (9th 1225, (importing 1227 though pain might the be short- Even Franklin’s, frivolousness standard factual lived, multi- the cumulative effect of the pursuant submitted reviewing appeals to ple injuries upper is to wear down his orders). to pre-filing extremities, joints, and shoulders. Mol- panel court and the relied The district injures frequently ski also his buttocks of solely upon similarity the and multitude when forced to transfer to a toilet that is complaints injuries: Numerous Molski’s configured compliance not with the injuries alleged physical that he incurred that, explains ADA. Molski because he non-ADA- attempting while overcome day, on his buttocks all sits bruises accommodations. The compliant public quickly his buttocks do not heal or easi- unlikely very that “it is panel asserts ly.... injuries, the same often Molski suffered supports veracity Molski the of his day, performing in one the multiple times injury claims of with a from declaration transferring himself from same activities — treating physician, Lyle his Dr. Thomas negotiating toilet or his wheelchair to the Hedge.... Hedge Dr. declares that accessibility obstacles. Common sense “repetitive, Molksi has suffered [sic] figured dictates that Molski would have trau- continuous cumulative” way injury- out repetitive some to avoid ma/physical injury upper extrem- causing activity; young even a child who confronting ities from architectural bar- quickly touches a hot stove learns to avoid unpaved pathways riers such as pain by repeating not the conduct.” 500 proper grab toilets without bars or at reasoning, the F.3d 1059. On this an improper height. finding concludes that the district court’s injury “plainly that Molski lied” his Rapazzini Winery, Molski v. allegations clearly (N.D.Cal.2005) was not erroneous. 1208, 1210-11 (record omitted). this ex- citations Given injuries

But alone similarity the of these planation,1 allegations injury the factual of does not lead to the conclusion the fanciful,” “wholly here were not First, allegations patently are false. Franklin, 1228, “[bjecause 745 F.2d at even if the concedes, similar, alleged injury incremental nature of the challenged violations were Molski spelled it would was out. have been reasonable Molski’s not Hedge explanations accepted Rapazinni Winery. 1. Molski and decla- Dr. both submitted providing rations in the instant case the same injury entirely justify reasons fail to the extreme allegations if But even Molski’s meritless, order, pre-filing they order would are pre-filing were sanction of also injury allegations The justified: not be exclusively concerned with Molski’s claims ADA to Molski’s entirely are irrelevant law. Yet prefiling under state order action; injury actual is not past causes of enjoins filing only Molski from federal claim under Title III necessary bring “If permit pre- claims. we are to Cable, Inc., 481 ADA. Molski v. M.J. orders, filing restrictive these orders must (9th Cir.2007). Allegations narrowly closely spe- tailored to fit the injury necessary either to sue cific vice encountered.” De Long Hen- statutory under damages California’s (9th Cir.1990). nessey, 912 F.2d McNally Re- Act. Botosan v. Paul Unruh least, very pre-filing At Cir.2000). (9th alty, 216 F.3d ability should restrict Molski’s to file ac- sug- panel appears recognize, to so only cess under law. California .claims under gests that there are some scenarios here, words, What we have is not pursue actual might which Molski want fit” but a grotesquely “close[ ] oversized statutory under state damages rather than order, pre-filing going beyond far law, allegations physical so the in complaints, encountered” the “vice[s] entirely at “are not irrelevant.” 500 F.3d anything none which have all to do tangen- But may 1060 n. 6. That be. the allegations of ADA with the violations. physical injury tial connection of the alle- potential for success in the gation III. certainly it difficult to charac- cases makes recognize I that some tactics of the used a as frivo- complaints terize the as whole by Group Molski and the Frankovich are any ordinary of that term. lous sense ample for But cause concern. there similarly panel’s complaints The addressing any avenues concerns justify prefiling panel fail to a order. The by this that do not raised case—-avenues sought daily that Molski statuto- complains alone, judge, acting imposing involve one a law, yet ry damages under California rec- an dis- pre-filing order covers entire “might that these claims have been ognizes trict.2 justified” split among because of a legally emphasize impact Let me the of the at 1060 & district courts on the issue. Id. judge decision: has district court’s One fact panel upon n. 5. The also relies the that Molski and the Franko- determined year a before that Molski often waited Group vich are forbidden to file com- suit, filing greatly which increased the approval in the entire statutory ages plaints prior dam claim. But this con- without statute; if permitted judge duct is under the That has not in Central District. by statutory the problem there is a created any way specified what standards will be scheme, legislative, fix is appropriate deciding may which eases be filed used judicial. not may judges not. in that and which Other may imposition disagree district with the justifies ruling by In sum: The its fact, majority order—in a pre-filing relying assertedly on false claims of Yet, say at all in the may. they have no only relevant under that would be Califor- dis- matter. The likelihood of internal permissible litigation on strat- nia law and fact that a agreement highlighted is claim egies damages that increase Molski’s judge in the Northern District has deter- law. Not do these under California overwhelmingly, pre-filing if Perhaps orders have been because of the existence of so counsel, against pro parties. sanctioning exclusively, issued se alternative avenues for record, mined, offending that Molski ed to cure conduct before a similar subjected pre-filing to a not be pre-filing covering should broad all future Winery, 400 Rapazzini order. Molski v. CIR, imposed. Lysiak is cases See can at 1209-12. So Molski now (7th Cir.1987) (imposing pre- bring ADA in the Northern District suits filing pattern order where “the of baseless places public seeking to assure access litigation generated by Lysiak, even after accommodation, cannot so in the do sanction, it prior demonstrates that would subjecting Central District without himself impose be fruitless additional prescreening by single judge. monetary penalty”). There are alternative mechanisms IV. that a or

addressing perception lawyer engaged widespread litigation is bottom, may At uncomfort- alloty that do not one abuse—mechanisms litigation suspects with ADA that it is able alone, judge, acting to bar the courthouse being brought to induce settlement.3 This District, perpetuity. door in Central litigation concern with serial access districts, procedures like has detailed most by many, rightly wrongly. shared But investigate attorney and sanction mis- phenomenon is creature our feder- conduct. See C.D. Cal. Looal R. 83-3. justify al and state statutes and cannot permits This the involvement of process enjoin issuing prefiling orders that mer- judges bar, multiple and members Moreover, itorious lawsuits. while self- one-judge than the disciplinary rather surely litiga- interest drives serial access Or, presented here. if the con- committee in part, tion the reason there can be so litigation duct of ADA concerns the entire many public lawsuits about access to ac- judiciary, District Central the court as a many commodations is that there are so general whole issue a setting can violations of the laws that seek to assure particular guidelines forth for ADA access access, people and so disabled cases, as the Northern District has. See participating equally thwarted from in the N.D. Cal. GeN. ORDER 56. everyday activities of life. I fear that the Moreover, designed Rule 11 is on deal panel’s may widely opinion be used to re- case-by-case precise basis with the abuse private strict critical enforcement of civil here: false factual allegations. found See rights by litigants lawyers. laws (c)(1) 11(b)(3), (requiring Fed.R.Civ.P. This case should have been heard en banc attorney unrepresented certify or party to prevent that result. that “the factual contentions [contained a pleading evidentiary or have motion] KOZINSKI, Judge, Chief with whom support” permitting “any sanctions on REINHARDT, Judges W. FLETCHER firm, attorney, party law that violated join, PAEZ dissenting from the order responsible the rule or is for the viola- denying petition rehearing the en banc: tion”). tell, As far I can 11 Rule sanc- I agree Judge with Berzon that neither imposed tions have never been on either panel the district court nor our had an Molski or the Frankovich Group for their litigation. Surely adequate finding basis for that Molski a lesser sanction in attempt- injuries, an individual case should “plainly first be lied” about his or that his why remedying It is not clear the precisely settlements are so barriers to access— troubling. Judging by goal sought by the dozens settle- the ADA-aswell as small record, agreements monetary ment payment in the the vast ma- relief and amounts jority provisions attorney’s of these settlements include fees. patently enough “claims of ... were without the panel relies on its own Evergreen Dynasty merit.” armchair plaintiffs Molski wisdom about supposed (9th Cir.2007); Corp., 500 F.3d ability to avoid repetitive injuries, Ever- see Molski v. Mandarin Touch Restau- green Dynasty, 500 rather (C.D.Cal. rant, F.Supp.2d than looking to sup- whether the record 2004). IBut do so on an additional ports findings of the district court. ground: power The district court had no Worse still there is no record the findings, to make such nor a record to base panel could consult if it of a were mind to on, them it because never held an eviden- do so. There is no statement at all from tiary hearing. himself, Molski complaint as the is not (somewhat

Oh, sure, the docket indicates verified. The does find the ab- that a misleadingly) “hearing” was held on sence evidentiary remarkable, of an record motion, it plainly vexatious perhaps laboring under the mistaken im- evidentiary hearing. was not an What pression that there must an evidentiary happened judge spent instead is this: The record somewhere paper. under all that hearing berating the first half of the Mol all, Still and those us unfamiliar with the lawyers, pretty ski and his much the alchemy of making findings based no subsequent same terms as his order— affirming evidence—-and them based on no which suggests his views were cast in dearly why record —would love to know cement time of “hearing.” evidentiary absence of an record is not (ER) Compare Excerpts of Record 1094 an insuperable obstacle to affirming a dis- (“After examining plaintiffs extensive col trict court’s factual finding. lawsuits....”), lection of and ER 1097 The bottom line is this: The district (“The Court does not believe that made, affirms, court and the panel a find- injuries gener Molski suffered 13 identical thief, ing that Molski is a liar and a bit of a ally part body, to the same of his in the without evidence at all. The district performing activity, course of the same court manage and the also to find five-day period.”), over with Mandarin just that plaintiff couldn’t have suffered Restaurant, Touch at 864 injuries alleges, he without the benefit (“After examining Plaintiffs extensive col expert any proof. of an or other But does ”), lection of law suits.... and id. at 865 authority the district court have to make (“The Court does not believe that findings severely curtail access to the nearly inju Molski suffered 13 identical court, federal plaintiff but also ries, generally part to the same of his lawyers for his and their other clients body, in the performing course of the same future), (present and without in a swearing activity, five-day over a period.”). After single giving witness? Without notice and done, judge was Molski’s counsel was opportunity present an to evidence? court, 1102-06, allowed to address the ER Without cross-examination? Without testified, but no witnesses no evidence was process? of the other rudiments of due presented, there was no cross-examination Isn’t Molski at get least entitled to on the evidentiary and there were no rulings-in stand, judge eye look the in the and tell his short, Molski, there was no trial. whose story? veracity impugned, the district court was present.

not even Fortunately, there’s a cure. The law- yers and judge judges How then did the of the Central District manage to make factual findings, put and how does don’t have to with this kind of this up affirm findings appeal? tyranny by acting entirely those It’s bad judge one on his Branscombe, Petitioner- multi-judge court Christian A of a

own. member Appellant, cut single-handedly able to should not be firm’s access to all the party off one or law the court. Central judges other R.Q. Hickman, Warden; A. Cal adopt should judges can and District Terhune; Roe, Ernie Re- any judge order that general local rule or spondents-Appellees. a law firm from to bar a or wishing 06-15614, Nos. 06-15776. obtain the con- accessing the court must colleagues. a committee of his currence of Appeals, Court of United States order, too, should not Enforcement of the Ninth Circuit. it, judge who entered be entrusted to the Argued 2007. Submitted Oct. unduly an broad view as to may as he take fairer, wiser, Far to have scope. its April Filed random, drawn at enforce judges, in future cases. the order measures, the court

By adopting such

would ensure that draconian orders such of a

as this one will not be the handiwork subject only cursory super-

single judge, appeals, but a shared

vision the court

responsibility judges, of the court’s as such the new local rule

orders should be. And applied should be retroac- general

tively Molski’s case. Berzon, very sorry I’m Judge

Like entered, and on

such an order was ever I’m even

such a non-existent record. sor- it, fit to affirm

rier that our has seen full court has chosen to look

and that our way. ultimately, up But it’s

the other judges District to en- Central process upheld

sure that due and that injustice every I have confi- is avoided. they equal will to the task.

dence RICHTER,

Joshua Petitioner-

Appellant,

R.Q. HICKMAN, Warden; A. Cal

Terhune; Roe, Ernie Re

spondents-Appellees.

Case Details

Case Name: Molski v. Evergreen Dynasty Corp.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 22, 2008

Citation: 521 F.3d 1215

Docket Number: 05-56452

Court Abbreviation: 9th Cir.