CONNstruction - Spring 2009 - (Page 15)

newsandviews The Vexatious Litigant Last year, Congress amended the Americans with Disabilities Act and the Family and Medical Leave Act with bipartisan support. These and other antidiscrimination laws, while well-intended, inevitably are sometimes abused. One remarkable case of abuse was brought to light last fall when the U.S. Supreme Court let stand a Ninth Circuit decision [Molski; Disability Rights Enforcement Education Services; v. Evergreen Dynasty Corp. d/b/a Mandarin Touch Restaurant; et al.] upholding a California district court ruling that a plaintiff and his lawyer had to get court permission before filing any more lawsuits under the public accommodation sections of the ADA. Jarek Molski was paralyzed from the waist down as a result of an auto accident. In January of 2003, he stopped at the Mandarin Touch Restaurant in Solvang, Calif. After finishing his meal, he decided to use the restroom. Molski was able to pass through the narrow restroom door, but there was not enough clear space to permit him to access the toilet from his wheelchair. Molski then exited the restroom, and in the course of doing so, got his hand caught in the restroom door, “causing trauma” to his hand. His subsequent court complaint also alleged that the restaurant contained other accessibility barriers “too numerous to mention.” Asserting claims under the ADA and California By John Leahy CCIA Director of Labor Relations and Human Resources These and other anti-discrimination laws, while well-intended, inevitably are sometimes abused. law, Molski sought injunctive relief, attorneys’ fees and costs and damages. Specifically, the complaint sought “daily damages of not less than $4,000/day . . . for each day after [Molski’s] visit until such time as the restaurant is made fully accessible,” as well as punitive damages and prejudgment interest. Shortly after filing its answer, the restaurant and its husband-and-wife owners filed a motion for an order declaring Molski a vexatious litigant, and requiring him and his attorney to obtain court permission before filing any more complaints under the ADA. The district court granted the order. Here is what it found: The district court first noted that Molski and his attorney had an extensive history of litigation. The record showed that Molski often filed multiple complaints against separate establishments asserting that Molski had suffered identical injuries at each establishment on the same day. The court pointed out that during one five-day period in May 2003, he alleged that at each establishment he injured his “upper extremities” while transferring himself to a non-ADA-compliant toilet. The district court found that in making these duplicitous injury claims, Molski had “plainly lied” in his filings to the court because the district court “simply did not believe that Molski 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.” The district court also found that Molski’s motivation in bringing numerous suits alleging both violations of the ADA and California law was to extract cash settlements from defendants who were usually “mom and pop” operations as opposed to corporate-owned chains. Of the nearly 400 lawsuits he brought, he tried only one on the merits. Although the ADA grants private plaintiffs like Molski only the right to seek injunctive relief, attorneys’ fees and costs, the California State civil rights laws amplify the scope of relief by also allowing recovery of money damages. And under California law a plaintiff may arguably recover up to $4,000 for each episode of discrimination, i.e. each day the barrier is not remedied. The court noted that Molski would often wait a year to file suit to allow the potential damages to accumulate to in many cases over $1 million. With respect to Molski’s law firm, the court noted that the similarity and exaggerated nature of the frequent injuries Molski alleged supported imposition of sanctions against the firm and referred the matter to the state bar ethics committee. CONNstruction / Spring 2009 / 15

Table of Contents for the Digital Edition of CONNstruction - Spring 2009

CONNstruction - Spring 2009
The Proving Year
AGC’s Building Division – Where the Value Shines Through
A List Worth Checking
In Defense of “Special Interests”
The Vexatious Litigant
Your Industry Association Membership - Now More Than Ever
Executive Summary
CCIA’s Executive Committee and Officers for 2009
CCIA Board of Directors 2009
Association Activities
Education and Training
Legislative-Lobbying and Government Relations
Labor Relations
CCIA Division Officers
CCIA Staff
Plenty of Parking
Building a Foundation
Connecticut Roadbuilders Fall Meeting
UCAC Annual Scholarship Auction
2008 CCIA’s Annual Membership Meeting and Reception
Diggers/Mixers/Fixers Golf Outing
AGC/CT Industry Recognition Awards Dinner
Index to Advertisers

CONNstruction - Spring 2009