A lawyer who repeatedly made baseless, “disrespectful” statements towards a federal district court was sanctioned by that court Mar. 19.

Nicholas D. Mosser and his father, both of Mosser Law PLLC, represented Mike Jabary in bringing assorted claims against the City of Allen, Texas, and several individuals after the City revoked a certificate of occupancy for Jabary’s restaurant.

In discovery, Mosser filed a request for a status conference and revised orders on discovery wherein he made “several statements that the Court identified as sanctionable,” Judge Amos L. Mazzant, of the U.S. District Court for the Eastern District of Texas, said.

The court ordered Mosser to show cause why he shouldn’t be sanctioned. In his 60-page response, Mosser said he was “at a loss” and didn’t understand how his statements were sanctionable. So the court “tasked itself to teach Mosser how his statements violated [Federal Rule of Civil Procedure] 11 and disrespected the Court.” But “Mosser was unapologetic, unwilling to admit that his word choices were disrespectful, and stood firm in his argument that his words were justified,” the court said.

Lawyers can’t use zealous advocacy as a justification to direct hyperbolic accusations at the court, this case illustrates. And digging in one’s heels only compounds the problem.

Watch Your Mouth

The court said all statements made to it “must be based in fact with evidentiary support and must be made without reckless disregard to their truth or falsity,” citing Rule 11(b)(3), Texas Disciplinary Rules of Professional Conduct 3.03(a)(1) (no false statements to court), and Rule 8.02(a) (no false statements to judges or statements made with reckless disregard about their truth). Below are Mosser’s twelve sanctionable statements and the court’s response to them.

  • The Court Was Less Than Concerned About This Concealment.”

Mosser’s response to the Show Cause Order outlined numerous “examples of times he claims the Court failed to address the concealment of documents, which Mosser claims demonstrate that the Court was ‘less than concerned’ about such concealment.” Mosser, for example, pointed to the court’s denial of certain motions as support for his accusation. But the court reviewed every example and concluded that none provided factual support for such a “bold” statement.

Accordingly, the court said, Mosser’s statement was baseless and thus sanctionable under Rule 11.

  • Despite This Court’s Rulings ... Condoning the Concealment of Documents"; “This Court Disregarded What Actually Happened"; “The Court Ignored Emails and Other Documents That Fundamentally Demonstrated the City’s Misconduct and Ignored the Fundamental Contradictions Contained in the Affidavits Used to Dismiss Plaintiff’s Case.”

The court again analyzed statements from its opinions and orders that Mosser claimed supported these three statements, but again found no factual support. The court said “Mosser repeatedly faces the same problem: his interpretation of how the case has proceeded is not factual support for the contention that the Court ignored emails, other documents, and/or fundamental contradictions.”

For the remaining ten statements the court identified as sanctionable, the court found no factual support and said all violated Rule 11.

  • ”...Every Statement the Court Believed Was Conclusory...”
  • Even After Plaintiff Gave Up in the Hopes of Justice,...Certainly Should Not Be the Means to Restrict This Court from Seeking the Truth.
  • ... if the Court Refuses to Permit Justice Be Done and Again Deny Jabary His Due Process.
  • ... and to What Extent the Court’s Refusal to Consider the Email Chain Will Continue to Impact Jabary’s Recovery in This Case of Clear Civil Rights Violations.
  • ...While Combating the False Representations That This Court Continually Declines to Address.
  • ...Had the Court Been Concerned More with the Existence of the Emails (Demonstrating That Every Statement the Court Disregarded as Conclusory Was Factually True) a Different Result Would Have Been Had.
  • It Is Unclear Why This Court Continues to Ignore [defense counsel’s] Pleaded Falsehoods. However, the Court Does.
  • Indeed, Maybe if Jabary Had Used Enough Creative Adjectives and Pretended Differently, the Court Would Have Ruled in His Favor.
  • It Is Disappointing That These Beliefs Are Continually Ratified.
  • There Is No Reason This Court Should Condone [defense counsel’s] Discovery Games, False Representations, and Childish Name-Calling.

Show Some Respect

Mosser’s argument that he was challenging a legal doctrine and not “criticizing” the court “is utterly unavailing,” the court said.

The court added:

“Mosser eviscerates the integrity of each individual judge who has been assigned to this case since its inception in 2010. Mosser makes such bold, disrespectful, and inappropriate comments with a complete and absolute lack of factual or evidentiary support. Mosser repeatedly attempts to impose his view of how this case has proceeded, his perception of why the Court ruled the way that it did, and his own personal frustrations as evidence of how the Court allegedly acted inappropriately. Mosser’s actions demonstrate the utmost disrespect.”

"[H]ad Mosser simply disagreed with the Court’s rulings,” the court said, “it would not be issuing this Sanctions Order.” “However, the statements identified herein clearly surpass mere disagreement with the Court’s rulings and are flagrantly disrespectful to the Court,” the court said.

Finding Mosser made the sanctionable statements “willfully,” the court fined Mosser $250 for each of the twelve statements it identified as sanctionable and ordered him to take two continuing legal education classes on ethical courtroom behavior.

Plaintiff was represented by Mosser Law PLLC. Defendant was represented by the Law Offices of Jim Jeffrey, Arlington, TX, and Fanning Harper Martinson Brandt & Kutchin, PC.

The case is Jabary v. McCullough, 2018 BL 92116, E.D. Tex., No. 4:10-CV-00711, 3/19/18.