Ninth Circuit: Molski “Plainly lied”

by David Nieporent on September 5, 2007

We’ve been covering the exploits of professional ADA plaintiff Jarek Molski and his lawyer Thomas Frankovich for a long time now (See Aug. 3, Mar. 23, many others). When last we checked, Molski/Frankovich were appealing a federal judge’s finding in Molski v. Evergreen Dynasty Corp. that they were vexatious litigants; the designation meant that they couldn’t file any more ADA lawsuits in the Central District of California without first getting permission from the court.

Last week, the Ninth Circuit issued an opinion (PDF) which upheld the finding in its entirety. The only quirky part of the case was that it was likely that many of the establishments sued by Molski/Frankovich at least technically probably had violated the ADA by not complying with its vague, onerous requirements. But the Ninth Circuit had no problem getting beyond that:

Frivolous litigation is not limited to cases in which a legal claim is entirely without merit. It is also frivolous for a claimant who has some measure of a legitimate claim to make false factual assertions. 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.

And for some reason, neither the District Court nor the Ninth Circuit were impressed with Molski’s factual assertions:

However, it is very unlikely that Molski suffered the same injuries, often multiple times in one day, performing the same activities—transferring himself from his wheelchair to the toilet or negotiating accessibility obstacles. Common sense dictates that Molski would have figured out some way to avoid repetitive injury-causing activity; even a young child who touches a hot stove quickly learns to avoid pain by not repeating the conduct.

The Ninth Circuit was not any more complimentary towards Frankovich:

When a client stumbles so far off the trail, we naturally should wonder whether the attorney for the client gave inadequate or improper advice.

The court also found significant that Frankovich may well have broken legal ethics rules by trying to intimidate defendants into settling without hiring lawyers and giving them (bad) legal advice.

This isn’t necessarily the end for Molski/Frankovich. The vexatious litigant order applies only to the federal courts — in fact, only the federal courts in the Central District of California — and does not prevent them from filing suit; it only requires them to seek permission of the court first.


There are many choice tidbits in the Ninth Circuit’s opinion; a few of them include:

  • Molski/Frankovich “targeted ethnic restaurants viewed as easy prey for coercive claims.”
  • Molski had tried only 1 of 400 ADA cases he had filed, demonstrating that he was filing these suits to harass defendants.
  • Molski would wait a full year after the alleged incidents to file his lawsuits in order to rack up additional damages under California law; despite suffering “not a big injury,” he would demand a million dollars in damages.
  • Molski’s claims of injuries were “patently without merit.”
  • Frankovich didn’t bother to edit his boilerplate complaints, so he alleged injuries that didn’t fit his claims; he “would allege bodily injury suffered as a result of inadequate signage or the lack of an accessible parking space.” Also, “the complaints were textually identical down to the typos.”

{ 3 comments }

1 Bumper 09.05.07 at 2:56 pm

Okay, so who kidnapped the Ninth Circuit and replaced them with real judges?

2 SteVe 09.05.07 at 3:06 pm

Despicable. Do people like this have friends that aren’t lawyers?

3 Deoxy 09.05.07 at 3:27 pm

Bumper – ROFL! Hey, even the Ninth gets it right from time to time… probably by accident, I’ll grant you, but it does happen.

Of course, sadly, THIS is the level of outragous and unethical behaviour needed before they do anything about it, and even then, it’s hardly decisive and appropriate levels of action. :-/

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