The Ninth Circuit on Friday affirmed orders declaring a professional plaintiff and the law firm representing him "vexatious litigants" and requiring them to get permission before filing Americans with Disabilities Act claims in the Central District of California.  The litigant, Jarek Molski, had filed more than 400 ADA cases in California alone, and the Frankovich Group often represented him.  Molski v. Evergreen Dynasty Corp., No. 05-56452 (9th Cir. Aug. 31, 2007).

On the way to upholding the district court’s finding of vexatiousness, the court defined "frivolous litigation" as "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.  In an adversary system, we do not fault counsel or client for putting their best arguments forward, and it is likely the unusual case in which a finding of frivolous litigation follows in the train of a legitimate legal claim.  It is a question of degree where the line falls between aggressive advocacy of legitimate claims and the frivolous assertion of false allegations.

Id., slip op. at 11076-77.  In the case before the court, Molski demanded $1,425,000 because he couldn’t get his wheelchair in position to access a restaurant toilet and bumped his hand as he exited the powder room.

Barry Barnett

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