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 Conduct3.03(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.
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.
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.
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.