Lenk v. Monolithic Power Systems, Inc.

Filing 117

ORDER DECLARING KENNETH LENK A VEXATIOUS LITIGANT AND IMPOSING PRE-FILING REVIEW REQUIREMENT (addressing 111 ). Signed by Judge Beth Labson Freeman on 10/18/2024. (blflc1, COURT STAFF) (Filed on 10/18/2024)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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KENNETH LAWRENCE LENK,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 20-cv-08094-BLF

v.
MONOLITHIC POWER SYSTEMS, INC.,
Defendant.

ORDER DECLARING KENNETH
LENK A VEXATIOUS LITIGANT AND
IMPOSING PRE-FILING REVIEW
REQUIREMENT
[Re: ECF 111]

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Pro se Plaintiff Kenneth Lenk (“Lenk”) worked for Defendant Monolithic Power Systems,

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Inc. (“MPS”) for one year before leaving the company in 2013. He spent the next decade

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litigating four lawsuits against MPS in this district, asserting claims of constructive discharge,

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discrimination, harassment, and violations of various federal and state statutes. All four lawsuits

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were dismissed, and Lenk was ordered to pay MPS more than $42,000 in attorneys’ fees and costs

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for bringing frivolous claims. Lenk filed more than a dozen motions for post-judgment relief

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across the four suits, all of which were denied. He also filed multiple unsuccessful appeals.

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Lenk has not paid the attorneys’ fees and costs awarded to MPS. Moreover, he has filed a

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fifth lawsuit against MPS in the United States District Court for the District of Arizona. MPS now

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seeks an order declaring Lenk to be a vexatious litigant and requiring Lenk to obtain leave of court

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before filing any future lawsuit, pleading, motion, or document against MPS in this district. See

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Mot., ECF 111. MPS also seeks an order directing Lenk to pay it the attorneys’ fees and costs as

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previously ordered by the Court, plus interest, and to submit proof of payment. The motion has

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been fully briefed and the Court previously vacated the hearing that had been set for July 25, 2024.

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See Order Submitting Motion, ECF 116.

MPS’s motion is GRANTED IN PART AND DENIED IN PART. The Court hereby

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DECLARES Kenneth Lenk to be a vexatious litigant and imposes a pre-filing review requirement

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with respect to any future lawsuits he brings against MPS in this district arising from his

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employment with MPS, MPS’s alleged “blacklisting” of Lenk, or MPS’s defense of lawsuits

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brought against it by Lenk.
However, the Court finds that MPS has not established a basis for pre-filing review of all

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future documents Lenk files in the four cases previously litigated in this district, or pre-filing

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review of all future lawsuits on all possible subjects. Moreover, the Court finds that MPS has not

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established that it is appropriate to link Lenk’s payment of the previously ordered attorneys’ fees

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United States District Court
Northern District of California

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and costs to a pre-filing review order.
I.

BACKGROUND
Lenk’s lawsuits against MPS are summarized below. MPS has filed a request for judicial

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notice of 93 documents relating to those suits, including the docket sheets for each and filings

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therein. See MPS’s RJN, ECF 99-4. The motion for judicial notice is GRANTED. See Reyn’s

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Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial

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notice of court filings and other matters of public record.”).

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Lenk I, Case No. 15-cv-01148-NC

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In March 2015, Lenk filed suit against MPS (“Lenk I”) in this district, alleging constructive

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discharge and related conduct, including alleged violations of the Fair Labor Standards Act, the

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Americans with Disabilities Act, and the California Labor Code. See RJN Ex. 6. After several

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rounds of motion practice, Lenk’s Third Amended Complaint was dismissed without leave to

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amend for failure to state a claim. See RNJ Ex. 17. Judgment was entered for MPS and against

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Lenk in March 2016. See RJN Ex. 18.

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Two years later, in March 2018, Lenk filed a motion for relief from judgment under

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Federal Rule of Civil Procedure 60(b) See RJN Ex. 19. That motion was denied, and Lenk filed

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an appeal in the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”), which

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dismissed the appeal as frivolous. See RJN Exs. 20-21. Lenk thereafter filed a motion for

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reconsideration in the district court, which was denied in October 2018. See RJN 22-23.
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Lenk II, Case No. 16-cv-02625-BLF

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In May 2016, two months after entry of judgment in his first lawsuit, Lenk filed a second

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suit against MPS (“Lenk II”), again alleging constructive discharge and related conduct. See RJN

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Ex. 24. The second suit also named Lenk’s former supervisor at MPS, Maurice Sciammas

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(“Sciammas”). See id. Lenk claimed that MPS and Sciammas discriminated against him in

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violation of 42 U.S.C. § 1981, and that they retaliated against him in violation of Title VII. See id.

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This Court dismissed those claims without leave to amend, concluding that they were barred by

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the doctrine of res judicata. See RJN 31. Judgment was entered for MPS and Sciammas and

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against Lenk in July 2017. See RJN 32.

United States District Court
Northern District of California

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Lenk filed three post-judgment motions under Rule 60. See RJN 33-34, 36. This Court

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denied the first two motions on the merits, noting that Lenk improperly raised arguments

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previously considered and rejected by the Court. See RJN Ex. 35. Lenk withdrew the third Rule

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60 motion after MPS and Sciammas filed opposition indicating they intended to seek sanctions

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against Lenk under Federal Rule of Civil Procedure 11. See RJN 37-38. This Court awarded

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MPS attorneys’ fees and costs in the amount of $17,665.74 for having to oppose Lenk’s first two

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Rule 60 motions, finding that “Lenk has engaged in ongoing frivolous litigation tactics related to

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his previous employment at MPS that two federal courts have now dismissed with prejudice in

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Lenk I and Lenk II.” RJN Ex. 39 at 12. The Court noted that it had reduced the award “in light of

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Lenk’s pro se status, which must be considered along with Lenk’s financial condition when

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awarding fees to a prevailing defendant in these circumstances.” Id. at 18. Lenk made two

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requests for reconsideration of the award of attorneys’ fees and costs, which were denied by this

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Court. See RJN Exs. 40-43. MPS asserts that Lenk nonetheless has not paid the ordered

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attorneys’ fees and costs.

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The Ninth Circuit affirmed the dismissal of Lenk’s complaint in December 2018, finding

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that “[t]he district court properly dismissed Lenk’s action on the basis of claim preclusion because

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the claims were raised or could have been raised in a prior action between the parties or those in

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privity with them, and the prior action resulted in a final judgment on the merits.” Lenk v.

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Monolithic Power Sys., Inc., 754 F. App’x 554, 556 (9th Cir. 2018).
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United States District Court
Northern District of California

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This Court thereafter issued an amended judgment reflecting its award of attorneys’ fees

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and costs to MPS. The Ninth Circuit dismissed Lenk’s appeal of the amended judgment for lack

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of jurisdiction in October 2023, citing authorities on timeliness. See Ninth Cir. Order, ECF 18 in

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Case No. 22-16829. In July 2024, the Ninth Circuit awarded MPS and Sciammas attorneys’ fees

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in the amount of $12,615. See Ninth Cir. Order, ECF 24 in Case No. 22-16829.

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Lenk III, Case No. 19-cv-03791-BLF

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In March 2018, Lenk filed a third suit against MPS (“Lenk III”) in the United States

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District Court for the District of Arizona. See RJN Ex. 45. He also sued Sciammas and the law

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firm that represented MPS in Lenk I and Lenk II. See id. Lenk asserted federal claims under Title

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VII, 42 U.S.C. § 1981, 42 U.S.C. § 1983, and 42 U.S.C. § 1985, and a state law emotional distress

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claim. See id. Those claims were based in part on the alleged constructive discharge that had

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been litigated in Lenk I and Lenk II, and in part on new allegations that MPS engaged in post-

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discharge retaliatory conduct by defending itself against Lenk I and Lenk II. See id. The Arizona

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district court transferred the case to the Northern District of California. See RJN Ex. 47.

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This Court dismissed the complaint, finding that the doctrine of collateral estoppel

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precluded Lenk from asserting that he was wrongfully constructively discharged, as that issue

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actually was litigated in Lenk I and Lenk II. See RJN Ex. 54. With respect to the defendants’

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alleged post-discharge retaliation, the Court found that the conduct described by Lenk consisted of

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ordinary litigation conduct in defense of Lenk I and Lenk II and thus could not form the basis of a

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Title VII retaliation claim. See id. The Court also found that Lenk had not alleged that he is a

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member of a racial minority as required under § 1981; had not allege state action as required under

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§ 1983; and had not alleged that he belongs to a protected class as required under § 1985(3). See

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id. Finally, the Court determined that Lenk’s emotional distress claims based on post-discharge

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conduct were barred by California’s litigation privilege, Cal. Civ. Code § 47(b), and did not allege

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sufficient facts. See id.

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The Court denied leave to amend, finding that “ Lenk’s insistence on continuing to allege

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constructive discharge in the face of two adverse judgments smacks of bad faith,” and that

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“[f]orcing Defendants to litigate patently meritless claims arising out of Lenk’s 2013 separation
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from employment, and Defendants’ successful defense of lawsuits regarding that separation,

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would impose undue prejudice on Defendants[.]” RJN Ex. 54 at 21. The Court observed that

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“[j]udgment in Lenk I was entered in 2016, and Judgment in Lenk II was entered in 2017, and

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affirmed by the Ninth Circuit,” and opined that “[r]equiring Defendants to continue litigating

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issues arising out of those lawsuits would be pointless, particularly where Lenk’s claims have no

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hope of viability[.]” Id.

United States District Court
Northern District of California

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Judgment was entered for Defendants and against Lenk in May 2020. See RJN 55. Lenk

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filed a motion to alter or amend judgment under Federal Rule of Civil Procedure 59, which was

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denied by the Court in July 2020. See RJN Ex. 57.

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Lenk IV, Case No. 20-cv-08094-BLF

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In November 2020, Lenk filed a fourth suit against MPS in this district. See RJN 58. He

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filed a first amended complaint in March 2021, asserting eleven claims: (1) retaliation under Title

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VII; (2) civil rights violation under 42 U.S.C. § 1981; (3) retaliation under California’s Fair

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Employment and Housing Act (“FEHA”); (4) harassment under FEHA; (5) hostile work

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environment under FEHA; (6) blacklisting under California state law; (7) blacklisting under

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Washington state law; (8) blacklisting under Arizona state law; (9) violation of California’s Unfair

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Competition Law (“UCL”); (10) intentional interference with prospective economic relations; and

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(11) unjust enrichment. See RJN Ex. 62. In support of those claims, Lenk once again alleged that

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MPS constructively discharged him and that MPS engaged in retaliatory and harassing behavior

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when it defended itself against Lenk’s suits. See id. Lenk also added new allegations that MPS

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“blacklisted” Lenk after he left the company by transmitting negative job references to On

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Semiconductor. See id.

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This Court dismissed the fourth suit without leave to amend, concluding that Lenk’s claims

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were without merit and that he had acted in bad faith and imposed undue prejudice on MPS by

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bringing repetitive lawsuits based on the same facts. See RJN Ex. 64. Judgment was entered for

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MPS and against Lenk in November 2021. See RJN Ex. 65. The Court awarded MPS attorneys’

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fees and costs in the amount of $25,215.30, finding that “all of Lenk’s claims were frivolous,

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unreasonable, and groundless when brought,” and that “Lenk’s commencement of this fourth
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action against MPS, based on theories that have been expressly rejected by this Court, merits a

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substantial award of attorneys’ fees to MPS.” See RJN Ex. 68.
Lenk filed numerous post-judgment motions challenging dismissal of the suit, seeking to

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reverse the award of attorneys’ fees, and asking to have the undersigned recused from the case for

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bias, all of which were denied as meritless. See RJN Exs. 66-67, 69-86. Lenk also filed multiple

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appeals, which the Ninth Circuit dismissed for failure to prosecute. See ECF 48, 79, 107.

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Lenk V, Case No. 23-cv-02083

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In October 2023, Lenk sued MPS in the District of Arizona for employment

United States District Court
Northern District of California

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discrimination, whistleblower retaliation, and related conduct under federal and state statutes,

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including the Age Discrimination in Employment Act, the Sarbanes-Oxley Act, California’s Fair

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Employment and Housing Act, and Arizona Revised Statutes § 41-1463. See RJN Ex. 88. The

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90-page complaint repeats many of the same allegations, and asserts many of the same claims,

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raised in the four actions litigated in this district. See id. That litigation is ongoing.

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II.

LEGAL STANDARD
“The All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the inherent power

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to enter pre-filing orders against vexatious litigants.” Molski v. Evergreen Dynasty Corp., 500

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F.3d 1047, 1057 (9th Cir. 2007). “Restricting access to the courts is, however, a serious matter.”

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Ringgold-Lockhart v. Cty. of Los Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014). “[T]he right of

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access to the courts is a fundamental right protected by the Constitution,” and “[p]rofligate use of

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pre-filing orders could infringe this important right.” Id. at 1061-62 (internal quotation marks and

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citations omitted). Thus, “pre-filing orders should rarely be filed,” and only when certain

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requirements are met. De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990). “Nevertheless,

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‘[f]lagrant abuse of the judicial process cannot be tolerated because it enables one person to

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preempt the use of judicial time that properly could be used to consider the meritorious claims of

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other litigants.’” Molski, 500 F.3d at 1057 (quoting De Long, 912 F.2d at 1148). A district court

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therefore has discretion to restrict a litigant’s future filings by requiring leave of court. See De

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Long, 912 F.2d at 1146-47.

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“When district courts seek to impose pre-filing restrictions, they must: (1) give litigants
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notice and ‘an opportunity to oppose the order before it [is] entered’; (2) compile an adequate

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record for appellate review, including ‘a listing of all the cases and motions that led the district

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court to conclude that a vexatious litigant order was needed’; (3) make substantive findings of

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frivolousness or harassment; and (4) tailor the order narrowly so as ‘to closely fit the specific vice

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encountered.’” Ringgold-Lockhart, 761 F.3d at 1062 (quoting De Long, 912 F.2d at 1147-48).

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“The first and second of these requirements are procedural,” while the third and fourth

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requirements are “substantive considerations” helpful to defining who is a vexatious litigant and

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fashioning an appropriate remedy. Id. at 1062.

United States District Court
Northern District of California

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III.

DISCUSSION

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The Court addresses these four requirements in turn.

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A.

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The first requirement – notice and opportunity to oppose – is satisfied where the litigant is

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given notice that the court is considering a pre-filing screening order and an opportunity to oppose

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such order before it issues. See Ringgold-Lockhart, 761 F.3d at 1062. A hearing is not required.

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See Ou-Young v. Roberts, No. C-13-4442-EMC, 2013 WL 6732118, at *8 (N.D. Cal. Dec. 20,

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2013) (collecting cases).

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Notice and Opportunity to Oppose

MPS provided Lenk with notice of its motion. See Macklin Decl. ¶¶ 1-5, ECF 99-1. Lenk

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filed written opposition, which has been considered by the Court. See Pl.’s Opp., ECF 113. The

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Court finds that the first requirement is satisfied.

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B.

Adequate Record for Review

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“An adequate record for review should include a listing of all the cases and motions that

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led the district court to conclude that a vexatious litigant order was needed.” De Long, 912 F.2d at

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1147. “At the least, the record needs to show, in some manner, that the litigant’s activities were

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numerous or abusive.” Id.

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Lenk has filed four actions against MPS that have been litigated in this district in the last

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ten years. Many of the factual allegations and claims asserted in the earlier actions were repeated

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in later actions. This order summarizes those four actions and their dispositions. This order also

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describes a fifth action brought by Lenk against MPS in the District of Arizona, which repeats
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United States District Court
Northern District of California

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allegations and claims raised in the four actions litigated in this district.
This record is adequate to show Lenk’s repeated assertion of claims against MPS based on
the same facts.

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C.

Substantive Findings

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Before a district court issues a pre-filing review order, it must make a substantive finding

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that the litigant’s actions have been either frivolous or harassing. See Ringgold-Lockhart, 761

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F.3d at 1064. “To determine whether the litigation is frivolous, district courts must look at both

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the number and content of the filings as indicia of the frivolousness of the litigant’s claims.” Id.

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(internal quotation marks and citation omitted). “The plaintiff’s claims must not only be

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numerous, but also be patently without merit.” Id. (internal quotation marks and citation omitted).

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As an alternative to frivolousness, the district court may make a finding that the litigant has

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engaged in a pattern of harassment. See id. Filing particular types of actions repetitiously is

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insufficient; the court must discern whether the repetitive filing was motivated by an intent to

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harass the defendant or the court. See id. “Finally, courts should consider whether other, less

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restrictive options, are adequate to protect the court and parties.” Id.

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The Ninth Circuit has identified five factors that provide “a helpful framework” for

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determining whether a party is vexatious and whether a pre-filing order is warranted: “(1) the

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litigant’s history of litigation and in particular whether it entailed vexatious, harassing or

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duplicative lawsuits; (2) the litigant’s motive in pursuing the litigation, e.g., does the litigant have

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an objective good faith expectation of prevailing?; (3) whether the litigant is represented by

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counsel; (4) whether the litigant has caused needless expense to other parties or has posed an

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unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be

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adequate to protect the courts and other parties.” Ringgold-Lockhart, 761 F.3d at 1062 (citation

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omitted).

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The first factor – the history of litigation and whether it entailed vexatious, harassing, or

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duplicative lawsuits – strongly favors a pre-filing screening order for any future suits Lenk seeks

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to bring against MPS in this district. Lenk has litigated four actions against MPS in this district

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and is in the midst of litigating a fifth action against MPS in the District of Arizona. While his
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theories of liability are not identical across all the suits, each of the suits is grounded in Lenk’s

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one-year period of employment with MPS, MPS’s alleged “blackballing” of Lenk, and MPS’s

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defense of lawsuits brought against it by Lenk. All four of the suits litigated in this district were

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dismissed for lack of merit, and those dismissals were affirmed by the Ninth Circuit. In two of the

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suits, this Court awarded attorneys’ fees and costs to MPS based on the frivolous nature of Lenk’s

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claims. The Court finds that Lenk’s suits against MPS are duplicative and harassing.

United States District Court
Northern District of California

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The third factor inquires whether the plaintiff is represented by counsel. Lenk is not

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represented. The Court therefore treads carefully when considering whether a pre-filing order is

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warranted. See De Long, 912 F.2d at 1147 (recognizing that the use of pre-filing review orders

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against pro se plaintiffs should be approached with particular caution). Even considering Lenk’s

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pro se status, however, the Court finds that his filings warrant imposition of a pre-filing review

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requirement. While the number of suits filed by Lenk is not as egregious as some of the cases

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addressing vexatious litigant determinations, the duplicative and harassing nature of Lenk’s filings

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outweigh any leniency that may be given due to his pro se status.

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The fourth factor – whether the litigant has caused needless expense to other parties or has

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posed an unnecessary burden on the courts and their personnel – strongly favors the contemplated

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pre-filing screening order. MPS presents evidence that it has incurred at least $844,000 in

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attorneys’ fees and costs in defending against Lenk’s lawsuits. See Blegen Decl. ¶ 8, ECF 99-3.

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There was no merit to the four suits litigated in this district, which required a substantial

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expenditure of time and resources by the undersigned, other judges in this district, and judges on

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the Ninth Circuit. In this Court’s view, Lenk’s suits against MPS embody the “[f]lagrant abuse of

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the judicial process” described by the Ninth Circuit that “cannot be tolerated because it enables

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one person to preempt the use of judicial time that properly could be used to consider the

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meritorious claims of other litigants.” Molski, 500 F.3d at 1057 (internal quotation marks and

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citation omitted).

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Finally, the fifth factor asks whether other, less restrictive options, would be adequate. As

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noted, the repeated dismissal of his lawsuits has not prevented Lenk from filing new suits. The

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imposition of monetary sanctions in the form of attorneys’ fees and costs has not deterred Lenk,
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United States District Court
Northern District of California

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and MPS represents that Lenk has not paid those sanctions. On this record, the Court finds that

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there are no less restrictive options available. Consequently, the Court finds that this factor favors

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imposition of the requested pre-filing review order.

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D.

Narrowly Tailored

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A pre-filing order must be narrowly tailored to the vexatious litigant’s wrongful conduct.

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See Molski, 500 F.3d at 1061. “Narrowly tailored orders are needed to prevent infringement of the

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litigator’s right of access to the courts.” De Long, 912 F.2d at 1148 (internal quotation marks and

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citation omitted). The Court will address this concern by limiting the pre-filing review order in

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this case to any future suits that Lenk seeks to bring against MPS arising out of Lenk’s

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employment with MPS, MPS’s alleged “blackballing” of Lenk, and MPS’s defense of lawsuits

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brought against it by Lenk. The Court finds that the broader order requested by MPS, which

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would require pre-filing review of any document Lenk files in the four cases previously litigated

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in this district, and pre-filing review of all future lawsuits on all possible subjects, would not be

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sufficiently narrowly tailored. Moreover, the Court finds that MPS has not established that it is

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appropriate to link Lenk’s payment of the previously ordered attorneys’ fees and costs to a pre-

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filing review order.
Lenk’s Arguments are Without Merit

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E.

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The Court finds that all four requirements for pre-filing review are satisfied. Lenk’s

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arguments to the contrary are without merit. To the extent Lenk attempts to argue the merits of his

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claims against MPS, his opposition brief is not an appropriate vehicle to make those arguments.

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Lenk’s claims have been dismissed with prejudice and those dismissals have been affirmed on

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appeal and are now final. The question before the Court is not whether Lenk’s prior suits had

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merit (they did not), but whether his conduct warrants issuance of a pre-filing review order for

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future suits (it does).

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Lenk correctly points out that he has filed far fewer cases than litigants found to be

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vexatious in some of the leading Ninth Circuit cases on the subject. See, e.g., Molski, 500 F.3d

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1047, 1050 (Plaintiff “filed about 400 lawsuits in the federal courts within the districts in

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California.”). However, the number of cases filed is not dispositive. “There is no threshold
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number of cases or motions that a litigant must file before a court may enter an order restricting

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his ability to file.” Day v. Fla., No. 14-CV-367RSM, 2014 WL 2116083, at *3 (W.D. Wash. May

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21, 2014). After applying the standards set forth by the Ninth Circuit, this Court has concluded

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that a narrowly tailored pre-filing review order is warranted, and nothing in the cases cited by

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Lenk mandates a different outcome.
Lenk argues that this Court cannot issue a pre-filing review order because MPS has not

United States District Court
Northern District of California

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satisfied all of the requirements for declaring a litigant vexatious under California state law,

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specifically, California Civil Code § 391 et seq. That argument is not well-taken, because this

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Court must follow the federal standards set forth above rather than state law in determining

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whether Lenk is a vexatious litigant. See Arakji v. Abbott Lab’ys, No. 5:24-CV-02202-EJD, 2024

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WL 4309278, at *6 (N.D. Cal. Sept. 26, 2024) (“Ninth Circuit decisions demonstrate that the court

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looks to federal law, not state law, to define a vexatious litigant.”) (internal quotation marks and

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citation omitted).

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IV.

ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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(1)

Kenneth Lenk must obtain leave of court before filing any complaint in this district

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that alleges claims against Monolithic Power Systems, Inc. arising out of Lenk’s employment with

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Monolithic Power Systems, Inc., Monolithic Power Systems, Inc.’s alleged “blackballing” of

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Lenk, or Monolithic Power Systems, Inc.’s defense of lawsuits brought against it by Lenk.

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(2)

The Clerk of Court shall not accept from Kenneth Lenk any complaint alleging

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claims against Monolithic Power Systems, Inc. arising out of Lenk’s employment with Monolithic

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Power Systems, Inc., Monolithic Power Systems, Inc.’s alleged “blackballing” of Lenk, or

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Monolithic Power Systems, Inc.’s defense of lawsuits brought against it by Lenk until the

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complaint has been reviewed by a judge and approved for filing. The Clerk shall forward any

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such complaint to the general duty judge for pre-filing screening.

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(3)

This order terminates ECF 111.

Dated: October 18, 2024

______________________________________
BETH LABSON FREEMAN
United States District Judge
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