1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 KENNETH LAWRENCE LENK, Case No. 20-cv-08094-BLF

8 Plaintiff,

ORDER DECLARING KENNETH

9 v. LENK A VEXATIOUS LITIGANT AND

IMPOSING PRE-FILING REVIEW

10 MONOLITHIC POWER SYSTEMS, INC., REQUIREMENT 11 Defendant. [Re: ECF 111]

12

13 14 Pro se Plaintiff Kenneth Lenk (“Lenk”) worked for Defendant Monolithic Power Systems, 15 Inc. (“MPS”) for one year before leaving the company in 2013. He spent the next decade 16 litigating four lawsuits against MPS in this district, asserting claims of constructive discharge, 17 discrimination, harassment, and violations of various federal and state statutes. All four lawsuits 18 were dismissed, and Lenk was ordered to pay MPS more than $42,000 in attorneys’ fees and costs 19 for bringing frivolous claims. Lenk filed more than a dozen motions for post-judgment relief 20 across the four suits, all of which were denied. He also filed multiple unsuccessful appeals. 21 Lenk has not paid the attorneys’ fees and costs awarded to MPS. Moreover, he has filed a 22 fifth lawsuit against MPS in the United States District Court for the District of Arizona. MPS now 23 seeks an order declaring Lenk to be a vexatious litigant and requiring Lenk to obtain leave of court 24 before filing any future lawsuit, pleading, motion, or document against MPS in this district. See 25 Mot., ECF 111. MPS also seeks an order directing Lenk to pay it the attorneys’ fees and costs as 26 previously ordered by the Court, plus interest, and to submit proof of payment. The motion has 27 been fully briefed and the Court previously vacated the hearing that had been set for July 25, 2024. 1 MPS’s motion is GRANTED IN PART AND DENIED IN PART. The Court hereby 2 DECLARES Kenneth Lenk to be a vexatious litigant and imposes a pre-filing review requirement 3 with respect to any future lawsuits he brings against MPS in this district arising from his 4 employment with MPS, MPS’s alleged “blacklisting” of Lenk, or MPS’s defense of lawsuits 5 brought against it by Lenk. 6 However, the Court finds that MPS has not established a basis for pre-filing review of all 7 future documents Lenk files in the four cases previously litigated in this district, or pre-filing 8 review of all future lawsuits on all possible subjects. Moreover, the Court finds that MPS has not 9 established that it is appropriate to link Lenk’s payment of the previously ordered attorneys’ fees 10 and costs to a pre-filing review order. 11 I. BACKGROUND 12 Lenk’s lawsuits against MPS are summarized below. MPS has filed a request for judicial 13 notice of 93 documents relating to those suits, including the docket sheets for each and filings 14 therein. See MPS’s RJN, ECF 99-4. The motion for judicial notice is GRANTED. See Reyn’s 15 Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial 16 notice of court filings and other matters of public record.”). 17 Lenk I, Case No. 15-cv-01148-NC 18 In March 2015, Lenk filed suit against MPS (“Lenk I”) in this district, alleging constructive 19 discharge and related conduct, including alleged violations of the Fair Labor Standards Act, the 20 Americans with Disabilities Act, and the California Labor Code. See RJN Ex. 6. After several 21 rounds of motion practice, Lenk’s Third Amended Complaint was dismissed without leave to 22 amend for failure to state a claim. See RNJ Ex. 17. Judgment was entered for MPS and against 23 Lenk in March 2016. See RJN Ex. 18. 24 Two years later, in March 2018, Lenk filed a motion for relief from judgment under 25 Federal Rule of Civil Procedure 60(b) See RJN Ex. 19. That motion was denied, and Lenk filed 26 an appeal in the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”), which 27 dismissed the appeal as frivolous. See RJN Exs. 20-21. Lenk thereafter filed a motion for 1 Lenk II, Case No. 16-cv-02625-BLF 2 In May 2016, two months after entry of judgment in his first lawsuit, Lenk filed a second 3 suit against MPS (“Lenk II”), again alleging constructive discharge and related conduct. See RJN 4 Ex. 24. The second suit also named Lenk’s former supervisor at MPS, Maurice Sciammas 5 (“Sciammas”). See id. Lenk claimed that MPS and Sciammas discriminated against him in 6 violation of 42 U.S.C. § 1981, and that they retaliated against him in violation of Title VII. See id. 7 This Court dismissed those claims without leave to amend, concluding that they were barred by 8 the doctrine of res judicata. See RJN 31. Judgment was entered for MPS and Sciammas and 9 against Lenk in July 2017. See RJN 32. 10 Lenk filed three post-judgment motions under Rule 60. See RJN 33-34, 36. This Court 11 denied the first two motions on the merits, noting that Lenk improperly raised arguments 12 previously considered and rejected by the Court. See RJN Ex. 35. Lenk withdrew the third Rule 13 60 motion after MPS and Sciammas filed opposition indicating they intended to seek sanctions 14 against Lenk under Federal Rule of Civil Procedure 11. See RJN 37-38. This Court awarded 15 MPS attorneys’ fees and costs in the amount of $17,665.74 for having to oppose Lenk’s first two 16 Rule 60 motions, finding that “Lenk has engaged in ongoing frivolous litigation tactics related to 17 his previous employment at MPS that two federal courts have now dismissed with prejudice in 18 Lenk I and Lenk II.” RJN Ex. 39 at 12. The Court noted that it had reduced the award “in light of 19 Lenk’s pro se status, which must be considered along with Lenk’s financial condition when 20 awarding fees to a prevailing defendant in these circumstances.” Id. at 18. Lenk made two 21 requests for reconsideration of the award of attorneys’ fees and costs, which were denied by this 22 Court. See RJN Exs. 40-43. MPS asserts that Lenk nonetheless has not paid the ordered 23 attorneys’ fees and costs. 24 The Ninth Circuit affirmed the dismissal of Lenk’s complaint in December 2018, finding 25 that “[t]he district court properly dismissed Lenk’s action on the basis of claim preclusion because 26 the claims were raised or could have been raised in a prior action between the parties or those in 27 privity with them, and the prior action resulted in a final judgment on the merits.” Lenk v. 1 This Court thereafter issued an amended judgment reflecting its award of attorneys’ fees 2 and costs to MPS. The Ninth Circuit dismissed Lenk’s appeal of the amended judgment for lack 3 of jurisdiction in October 2023, citing authorities on timeliness. See Ninth Cir. Order, ECF 18 in 4 Case No. 22-16829. In July 2024, the Ninth Circuit awarded MPS and Sciammas attorneys’ fees 5 in the amount of $12,615. See Ninth Cir. Order, ECF 24 in Case No. 22-16829. 6 Lenk III, Case No. 19-cv-03791-BLF 7 In March 2018, Lenk filed a third suit against MPS (“Lenk III”) in the United States 8 District Court for the District of Arizona. See RJN Ex. 45. He also sued Sciammas and the law 9 firm that represented MPS in Lenk I and Lenk II. See id. Lenk asserted federal claims under Title 10 VII, 42 U.S.C. § 1981, 42 U.S.C. § 1983, and 42 U.S.C. § 1985, and a state law emotional distress 11 claim. See id. Those claims were based in part on the alleged constructive discharge that had 12 been litigated in Lenk I and Lenk II, and in part on new allegations that MPS engaged in post- 13 discharge retaliatory conduct by defending itself against Lenk I and Lenk II. See id. The Arizona 14 district court transferred the case to the Northern District of California. See RJN Ex. 47. 15 This Court dismissed the complaint, finding that the doctrine of collateral estoppel 16 precluded Lenk from asserting that he was wrongfully constructively discharged, as that issue 17 actually was litigated in Lenk I and Lenk II. See RJN Ex. 54. With respect to the defendants’ 18 alleged post-discharge retaliation, the Court found that the conduct described by Lenk consisted of 19 ordinary litigation conduct in defense of Lenk I and Lenk II and thus could not form the basis of a 20 Title VII retaliation claim. See id. The Court also found that Lenk had not alleged that he is a 21 member of a racial minority as required under § 1981; had not allege state action as required under 22 § 1983; and had not alleged that he belongs to a protected class as required under § 1985(3). See 23 id. Finally, the Court determined that Lenk’s emotional distress claims based on post-discharge 24 conduct were barred by California’s litigation privilege, Cal. Civ. Code § 47(b), and did not allege 25 sufficient facts. See id. 26 The Court denied leave to amend, finding that “ Lenk’s insistence on continuing to allege 27 constructive discharge in the face of two adverse judgments smacks of bad faith,” and that 1 from employment, and Defendants’ successful defense of lawsuits regarding that separation, 2 would impose undue prejudice on Defendants[.]” RJN Ex. 54 at 21. The Court observed that 3 “[j]udgment in Lenk I was entered in 2016, and Judgment in Lenk II was entered in 2017, and 4 affirmed by the Ninth Circuit,” and opined that “[r]equiring Defendants to continue litigating 5 issues arising out of those lawsuits would be pointless, particularly where Lenk’s claims have no 6 hope of viability[.]” Id. 7 Judgment was entered for Defendants and against Lenk in May 2020. See RJN 55. Lenk 8 filed a motion to alter or amend judgment under Federal Rule of Civil Procedure 59, which was 9 denied by the Court in July 2020. See RJN Ex. 57. 10 Lenk IV, Case No. 20-cv-08094-BLF 11 In November 2020, Lenk filed a fourth suit against MPS in this district. See RJN 58. He 12 filed a first amended complaint in March 2021, asserting eleven claims: (1) retaliation under Title 13 VII; (2) civil rights violation under 42 U.S.C. § 1981; (3) retaliation under California’s Fair 14 Employment and Housing Act (“FEHA”); (4) harassment under FEHA; (5) hostile work 15 environment under FEHA; (6) blacklisting under California state law; (7) blacklisting under 16 Washington state law; (8) blacklisting under Arizona state law; (9) violation of California’s Unfair 17 Competition Law (“UCL”); (10) intentional interference with prospective economic relations; and 18 (11) unjust enrichment. See RJN Ex. 62. In support of those claims, Lenk once again alleged that 19 MPS constructively discharged him and that MPS engaged in retaliatory and harassing behavior 20 when it defended itself against Lenk’s suits. See id. Lenk also added new allegations that MPS 21 “blacklisted” Lenk after he left the company by transmitting negative job references to On 22 Semiconductor. See id. 23 This Court dismissed the fourth suit without leave to amend, concluding that Lenk’s claims 24 were without merit and that he had acted in bad faith and imposed undue prejudice on MPS by 25 bringing repetitive lawsuits based on the same facts. See RJN Ex. 64. Judgment was entered for 26 MPS and against Lenk in November 2021. See RJN Ex. 65. The Court awarded MPS attorneys’ 27 fees and costs in the amount of $25,215.30, finding that “all of Lenk’s claims were frivolous, 1 action against MPS, based on theories that have been expressly rejected by this Court, merits a 2 substantial award of attorneys’ fees to MPS.” See RJN Ex. 68. 3 Lenk filed numerous post-judgment motions challenging dismissal of the suit, seeking to 4 reverse the award of attorneys’ fees, and asking to have the undersigned recused from the case for 5 bias, all of which were denied as meritless. See RJN Exs. 66-67, 69-86. Lenk also filed multiple 6 appeals, which the Ninth Circuit dismissed for failure to prosecute. See ECF 48, 79, 107. 7 Lenk V, Case No. 23-cv-02083 8 In October 2023, Lenk sued MPS in the District of Arizona for employment 9 discrimination, whistleblower retaliation, and related conduct under federal and state statutes, 10 including the Age Discrimination in Employment Act, the Sarbanes-Oxley Act, California’s Fair 11 Employment and Housing Act, and Arizona Revised Statutes § 41-1463. See RJN Ex. 88. The 12 90-page complaint repeats many of the same allegations, and asserts many of the same claims, 13 raised in the four actions litigated in this district. See id. That litigation is ongoing. 14 II. LEGAL STANDARD 15 “The All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the inherent power 16 to enter pre-filing orders against vexatious litigants.” Molski v. Evergreen Dynasty Corp., 500 17 F.3d 1047, 1057 (9th Cir. 2007). “Restricting access to the courts is, however, a serious matter.” 18 Ringgold-Lockhart v. Cty. of Los Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014). “[T]he right of 19 access to the courts is a fundamental right protected by the Constitution,” and “[p]rofligate use of 20 pre-filing orders could infringe this important right.” Id. at 1061-62 (internal quotation marks and 21 citations omitted). Thus, “pre-filing orders should rarely be filed,” and only when certain 22 requirements are met. De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990). “Nevertheless, 23 ‘[f]lagrant abuse of the judicial process cannot be tolerated because it enables one person to 24 preempt the use of judicial time that properly could be used to consider the meritorious claims of 25 other litigants.’” Molski, 500 F.3d at 1057 (quoting De Long, 912 F.2d at 1148). A district court 26 therefore has discretion to restrict a litigant’s future filings by requiring leave of court. See De 27 Long, 912 F.2d at 1146-47. 1 notice and ‘an opportunity to oppose the order before it [is] entered’; (2) compile an adequate 2 record for appellate review, including ‘a listing of all the cases and motions that led the district 3 court to conclude that a vexatious litigant order was needed’; (3) make substantive findings of 4 frivolousness or harassment; and (4) tailor the order narrowly so as ‘to closely fit the specific vice 5 encountered.’” Ringgold-Lockhart, 761 F.3d at 1062 (quoting De Long, 912 F.2d at 1147-48). 6 “The first and second of these requirements are procedural,” while the third and fourth 7 requirements are “substantive considerations” helpful to defining who is a vexatious litigant and 8 fashioning an appropriate remedy. Id. at 1062. 9 III. DISCUSSION 10 The Court addresses these four requirements in turn. 11 A. Notice and Opportunity to Oppose 12 The first requirement – notice and opportunity to oppose – is satisfied where the litigant is 13 given notice that the court is considering a pre-filing screening order and an opportunity to oppose 14 such order before it issues. See Ringgold-Lockhart, 761 F.3d at 1062. A hearing is not required. 15 See Ou-Young v. Roberts, No. C-13-4442-EMC, 2013 WL 6732118, at *8 (N.D. Cal. Dec. 20, 16 2013) (collecting cases). 17 MPS provided Lenk with notice of its motion. See Macklin Decl. ¶¶ 1-5, ECF 99-1. Lenk 18 filed written opposition, which has been considered by the Court. See Pl.’s Opp., ECF 113. The 19 Court finds that the first requirement is satisfied. 20 B. Adequate Record for Review 21 “An adequate record for review should include a listing of all the cases and motions that 22 led the district court to conclude that a vexatious litigant order was needed.” De Long, 912 F.2d at 23 1147. “At the least, the record needs to show, in some manner, that the litigant’s activities were 24 numerous or abusive.” Id. 25 Lenk has filed four actions against MPS that have been litigated in this district in the last 26 ten years. Many of the factual allegations and claims asserted in the earlier actions were repeated 27 in later actions. This order summarizes those four actions and their dispositions. This order also 1 allegations and claims raised in the four actions litigated in this district. 2 This record is adequate to show Lenk’s repeated assertion of claims against MPS based on 3 the same facts. 4 C. Substantive Findings 5 Before a district court issues a pre-filing review order, it must make a substantive finding 6 that the litigant’s actions have been either frivolous or harassing. See Ringgold-Lockhart, 761 7 F.3d at 1064. “To determine whether the litigation is frivolous, district courts must look at both 8 the number and content of the filings as indicia of the frivolousness of the litigant’s claims.” Id. 9 (internal quotation marks and citation omitted). “The plaintiff’s claims must not only be 10 numerous, but also be patently without merit.” Id. (internal quotation marks and citation omitted). 11 As an alternative to frivolousness, the district court may make a finding that the litigant has 12 engaged in a pattern of harassment. See id. Filing particular types of actions repetitiously is 13 insufficient; the court must discern whether the repetitive filing was motivated by an intent to 14 harass the defendant or the court. See id. “Finally, courts should consider whether other, less 15 restrictive options, are adequate to protect the court and parties.” Id. 16 The Ninth Circuit has identified five factors that provide “a helpful framework” for 17 determining whether a party is vexatious and whether a pre-filing order is warranted: “(1) the 18 litigant’s history of litigation and in particular whether it entailed vexatious, harassing or 19 duplicative lawsuits; (2) the litigant’s motive in pursuing the litigation, e.g., does the litigant have 20 an objective good faith expectation of prevailing?; (3) whether the litigant is represented by 21 counsel; (4) whether the litigant has caused needless expense to other parties or has posed an 22 unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be 23 adequate to protect the courts and other parties.” Ringgold-Lockhart, 761 F.3d at 1062 (citation 24 omitted). 25 The first factor – the history of litigation and whether it entailed vexatious, harassing, or 26 duplicative lawsuits – strongly favors a pre-filing screening order for any future suits Lenk seeks 27 to bring against MPS in this district. Lenk has litigated four actions against MPS in this district 1 theories of liability are not identical across all the suits, each of the suits is grounded in Lenk’s 2 one-year period of employment with MPS, MPS’s alleged “blackballing” of Lenk, and MPS’s 3 defense of lawsuits brought against it by Lenk. All four of the suits litigated in this district were 4 dismissed for lack of merit, and those dismissals were affirmed by the Ninth Circuit. In two of the 5 suits, this Court awarded attorneys’ fees and costs to MPS based on the frivolous nature of Lenk’s 6 claims. The Court finds that Lenk’s suits against MPS are duplicative and harassing. 7 The third factor inquires whether the plaintiff is represented by counsel. Lenk is not 8 represented. The Court therefore treads carefully when considering whether a pre-filing order is 9 warranted. See De Long, 912 F.2d at 1147 (recognizing that the use of pre-filing review orders 10 against pro se plaintiffs should be approached with particular caution). Even considering Lenk’s 11 pro se status, however, the Court finds that his filings warrant imposition of a pre-filing review 12 requirement. While the number of suits filed by Lenk is not as egregious as some of the cases 13 addressing vexatious litigant determinations, the duplicative and harassing nature of Lenk’s filings 14 outweigh any leniency that may be given due to his pro se status. 15 The fourth factor – whether the litigant has caused needless expense to other parties or has 16 posed an unnecessary burden on the courts and their personnel – strongly favors the contemplated 17 pre-filing screening order. MPS presents evidence that it has incurred at least $844,000 in 18 attorneys’ fees and costs in defending against Lenk’s lawsuits. See Blegen Decl. ¶ 8, ECF 99-3. 19 There was no merit to the four suits litigated in this district, which required a substantial 20 expenditure of time and resources by the undersigned, other judges in this district, and judges on 21 the Ninth Circuit. In this Court’s view, Lenk’s suits against MPS embody the “[f]lagrant abuse of 22 the judicial process” described by the Ninth Circuit that “cannot be tolerated because it enables 23 one person to preempt the use of judicial time that properly could be used to consider the 24 meritorious claims of other litigants.” Molski, 500 F.3d at 1057 (internal quotation marks and 25 citation omitted). 26 Finally, the fifth factor asks whether other, less restrictive options, would be adequate. As 27 noted, the repeated dismissal of his lawsuits has not prevented Lenk from filing new suits. The 1 and MPS represents that Lenk has not paid those sanctions. On this record, the Court finds that 2 there are no less restrictive options available. Consequently, the Court finds that this factor favors 3 imposition of the requested pre-filing review order. 4 D. Narrowly Tailored 5 A pre-filing order must be narrowly tailored to the vexatious litigant’s wrongful conduct. 6 See Molski, 500 F.3d at 1061. “Narrowly tailored orders are needed to prevent infringement of the 7 litigator’s right of access to the courts.” De Long, 912 F.2d at 1148 (internal quotation marks and 8 citation omitted). The Court will address this concern by limiting the pre-filing review order in 9 this case to any future suits that Lenk seeks to bring against MPS arising out of Lenk’s 10 employment with MPS, MPS’s alleged “blackballing” of Lenk, and MPS’s defense of lawsuits 11 brought against it by Lenk. The Court finds that the broader order requested by MPS, which 12 would require pre-filing review of any document Lenk files in the four cases previously litigated 13 in this district, and pre-filing review of all future lawsuits on all possible subjects, would not be 14 sufficiently narrowly tailored. Moreover, the Court finds that MPS has not established that it is 15 appropriate to link Lenk’s payment of the previously ordered attorneys’ fees and costs to a pre- 16 filing review order. 17 E. Lenk’s Arguments are Without Merit 18 The Court finds that all four requirements for pre-filing review are satisfied. Lenk’s 19 arguments to the contrary are without merit. To the extent Lenk attempts to argue the merits of his 20 claims against MPS, his opposition brief is not an appropriate vehicle to make those arguments. 21 Lenk’s claims have been dismissed with prejudice and those dismissals have been affirmed on 22 appeal and are now final. The question before the Court is not whether Lenk’s prior suits had 23 merit (they did not), but whether his conduct warrants issuance of a pre-filing review order for 24 future suits (it does). 25 Lenk correctly points out that he has filed far fewer cases than litigants found to be 26 vexatious in some of the leading Ninth Circuit cases on the subject. See, e.g., Molski, 500 F.3d 27 1047, 1050 (Plaintiff “filed about 400 lawsuits in the federal courts within the districts in 1 number of cases or motions that a litigant must file before a court may enter an order restricting 2 || his ability to file.” Day v. Fla., No. 14-CV-367RSM, 2014 WL 2116083, at *3 (W.D. Wash. May 3 21, 2014). After applying the standards set forth by the Ninth Circuit, this Court has concluded 4 || that a narrowly tailored pre-filing review order is warranted, and nothing in the cases cited by 5 Lenk mandates a different outcome. 6 Lenk argues that this Court cannot issue a pre-filing review order because MPS has not 7 satisfied all of the requirements for declaring a litigant vexatious under California state law, 8 specifically, California Civil Code § 391 et seg. That argument is not well-taken, because this 9 || Court must follow the federal standards set forth above rather than state law in determining 10 || whether Lenk is a vexatious litigant. See Arakji v. Abbott Lab’ys, No. 5:24-CV-02202-EJD, 2024 11 WL 4309278, at *6 (N.D. Cal. Sept. 26, 2024) (“Ninth Circuit decisions demonstrate that the court 12 || looks to federal law, not state law, to define a vexatious litigant.”) (internal quotation marks and 5 13 citation omitted). 14 |) Iv. ORDER 3 15 Accordingly, IT IS HEREBY ORDERED that: 16 (1) Kenneth Lenk must obtain leave of court before filing any complaint in this district 3 17 || that alleges claims against Monolithic Power Systems, Inc. arising out of Lenk’s employment with 18 || Monolithic Power Systems, Inc., Monolithic Power Systems, Inc.’s alleged “blackballing” of 19 Lenk, or Monolithic Power Systems, Inc.’s defense of lawsuits brought against it by Lenk. 20 (2) The Clerk of Court shall not accept from Kenneth Lenk any complaint alleging 21 claims against Monolithic Power Systems, Inc. arising out of Lenk’s employment with Monolithic 22 || Power Systems, Inc., Monolithic Power Systems, Inc.’s alleged “blackballing” of Lenk, or 23 || Monolithic Power Systems, Inc.’s defense of lawsuits brought against it by Lenk until the 24 || complaint has been reviewed by a judge and approved for filing. The Clerk shall forward any 25 such complaint to the general duty judge for pre-filing screening. 26 (3) This order terminates ECF 111. 27 Dated: October 18, 2024 _fapuipacian

H LABSON FREEMAN

28 United States District Judge