Molski v. Pismo Bowl
Molski v. Pismo Bowl
Opinion of the Court
MEMORANDUM
This appeal arises from the oral, sua sponte order of Judge Manuel L. Real dismissing Appellants’ action for lack of prosecution resulting from their failure to lodge a pre-trial conference order. After a hearing before the district court, the motion to withdraw the order was denied without any real explanation.
Appellant Jarek Molski is a physically disabled litigant who has filed hundreds of lawsuits under the Americans With Disabilities Act (the “ADA”), 42 U.S.C. § 12101 et seq., and similar California state statutes. We recently upheld a district court order in a separate federal suit declaring Appellant Molski to be a “vexatious
A district court’s dismissal of a case with prejudice is reviewed for abuse of discretion. See Thompson, 782 F.2d at 832. A district court has the inherent power to control its docket and ensure compliance with its orders and local rules through sanction. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1961). However, a district court does not have unbridled power over ordering dismissals. Dismissal is a harsh penalty, and therefore should only be imposed in the presence of extreme circumstances. See Thompson, 782 F.2d at 831. In Thompson, the court held that “because dismissal is such a severe remedy, we have allowed its imposition in these circumstances only after requiring the district court to weigh several factors.” Id. These factors are: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Id.
Under the above factors, the district court could properly take note of Appel
These factors weigh in favor of granting a dismissal pursuant to the Thompson factors. Dismissal supports the public’s interest in expeditious resolution of litigation. Even Appellants concede that this factor will always weigh in favor of a dismissal when the resolution of the case would be otherwise delayed; Appellants’ failure to lodge the court-ordered pre-trial order would have necessarily impeded the outcome of the litigation. Furthermore, the court’s need to manage its docket is a factor that is often reviewed in conjunction with the public’s interest in expeditious resolution of the litigation. See In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994). These two factors are particularly compelling in this case.
Courts also consider the risk of prejudice in deciding whether to dismiss a case. In making this determination, we examine “whether the plaintiffs actions impair the defendant’s ability to go to trial or threaten to interfere with the rightful decision of the case.” See Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987) (citing Rubin v. Belo Broad. Corp., 769 F.2d 611, 618 (9th Cir. 1985)). Plaintiff has the burden of coming forward with an excuse that the delay is “anything but frivolous.” See In re Eisen, 31 F.3d at 1453. Here, at least some potential for prejudice existed and Appellants have not come forth with any legitimate excuse for their failure to lodge the pre-trial order. While such a procedural error might be forgivable in the ordinary course, here Appellants and their attorneys have filed hundreds of actions and should, at this point, have established a certain degree of intimacy with court rules and procedure. In fact, Appellants have previously had a number of their other cases dismissed for a failure to prosecute, albeit a significant minority in comparison to the hundreds of claims they have filed in total.
Courts will also consider that public policy favors a disposition of cases on their merits when deciding whether a dismissal is warranted. However, this factor is not applicable to this case as not a single one of Appellants’ cases have been litigated on the merits. Instead, the vast majority of these cases have settled with a small number having been dismissed for lack of prosecution. It is also clear that general public policy concerns favor dismissal of this case. The stated goal of the ADA is to remedy discrimination against persons with disabilities, not to enable litigants such as Molski to profit from making frivolous claims.
This case is REMANDED to the district court for further proceedings in accordance with this order.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Our recent decision also upheld the district court's order sanctioning the law firm representing Molski, Thomas E. Frankovich, a Professional Law Corporation, by requiring it to obtain leave prior to filing any claims pursuant to Title III of the ADA in the Central District of California. See generally Molski, 500 F.3d at 1062, Part V. In upholding the district court’s orders, we noted that "in 2004 the Frankovich Group filed at least 223 nearly identical lawsuits in the Northern and Central Districts of California, that the complaints all stated an ADA claim and the same four claims under California state law, that the damages requested in each case were identical and that, other than superficial alteration of the names and facts, the complaints were textually identical down to the typos.” Id. at 1052-53. We also considered and agreed with the district court’s observation that many of the claims of bodily injury found in the various complaints were "contrived.” Id. at 1053. Specifically, we noted that:
[t]he court found in particular that "the rate of physical injury defies common sense,” noting that the plaintiffs alleged similar injuries sustained in a similar fashion at different businesses on the same day. The court noted that the similar injuries did not excuse the existence of accessibility barriers, but that its finding that the injury claims were contrived was “merely a recognition of the fact that reasonable people, once injured, tend to take affirmative steps to avoid similar physical injuries, rather than repeat that same activity 400 times (or five times in the same day).”
Id. at 1053-54 (internal citations omitted).
. The court has not required district courts to explicitly discuss the five Thompson factors in rendering a dismissal. See, e.g., Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986); Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). Here, however, where we have been provided with nothing to suggest that the Thompson factors were even considered, we are left with no choice but to remand to the district court for further analysis.
. As we noted in Molski, we are cognizant of the fact that the ADA does not permit private plaintiffs to seek money damages, and that this removes the incentive for most disabled persons who are injured to bring suit under the ADA. See Molski, 500 F.3d at 1061-62. The effect of this is that "most ADA suits are brought by a small number of private plaintiffs who view themselves as champions of the disabled. District courts should not condemn such serial litigation as vexatious as a matter
Case-law data current through December 31, 2025. Source: CourtListener bulk data.