Federal Vexatious Litigant Designation not Immediately Appealable

When a party and his attorney are sanctioned as vexatious litigants and ordered not to file additional complaints without court approval, must they immediately appeal from those orders (the “pre-filing orders”) or appeal instead from the subsequent entry of final judgment?  That was the procedural question posed in Molski v. Evergreen Dynasty Corp., 05-56452 (9th Cir., Aug. 31, 2007).  Evergreen moved to dismiss the appeals, contending that Molski and his lawyers’ joint notice of appeal, filed within 30 days of entry of the judgment, was filed more than 30 days after entry of their respective pre-filing orders.

The Ninth says the appeals are timely.  The order against the attorneys is a sanctions order because it was made under the district court’s inherent sanction power.  Since it is well-established (though a relatively recent development) that sanctions orders against attorneys are not immediately appealable, the pre-filing order is not immediately appealable and may be challenged on appeal from the final judgment.

The order against Molski is not immediately appealable either, but that requires a little more analysis.  Although sanctions orders against parties are not generally appealable, the question of whether a vexatious litigant pre-filing order is appealable is a question of first impression. The key is whether the pre-filing order constitutes an appealable collateral order, and the Ninth finds it is not.

No doubt the merits of this case will draw significant attention.  Decision of the Day has a nice write-up about the merits of the decision. DoD begins:

In a decision that will likely make a big splash in the disability rights community, the Ninth Circuit has upheld a district court order declaring a crusader for disabled access to be a vexatious litigation. Plaintiff Jarek Molski travels throughout California visiting restaurants and other public establishments to see if their facilities can accommodate him and his wheelchair. Often they cannot, and Molski sues under the Americans With Disabilities Act, seeking $4000 per day in damages. Many defendants view Molski as a shakedown artist who is just looking for a quick settlement, and jurors often agree.

Go to DoD to read what not to do when filing multiple lawsuits.

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