That Awkward Feeling When Offensive Conduct In Sanctions Motion Is So Offensive You Have To Look It Up

Attorney accused of getting creative with his insults.

It’s a testament to our ever-evolving language as it shapes itself to meet the needs of a world that demands linguistic clarity that newer terms are constantly working their way into sanctions motions. Come now the Defendants in Louis Piccolo et al. v. Top Shelf Provisions Co. Inc. et al., with some complaints about the terminology they’re hearing from their adversaries.

According to the motion, they’ve been branded “Feltchers” by opposing counsel. So what exactly is a Feltcher?

Feltcher (which means a person who sucks the semen from another person’s anus)

You know some poor lawyer at Milman had to look that one up, and the diary entry for that must be amazing. The “.2 hours — Looking up sex acts on Urban Dictionary” diary is the greatest thing in law today.

By the way, I thought we already coined the word “Santorum” for this stuff… shouldn’t the person taking on this challenge be a “Santorumizer” or something like that? It just seems like the natural evolution of language would have kept progressing along the Santorum tree? Plus, isn’t the appropriate spelling “Felcher?”

So, so many questions.

But, here we are. That blockquote, coincidentally, is a short passage from a motion filed in the Eastern District of New York last week by Milman Labuda decrying the behavior of Saul Zabell, a Long Island-based labor attorney. One has to hand it to the Milman Labuda folks, because Joseph Labuda’s five-page letter manages to slow play the accusations of misconduct, starting off with a complaint about deposition shenanigans that quickly flies off the rails.

Specifically, Plaintiffs refused to allow Defendants to cross-examine the witness at the end of Plaintiffs’ direct-examination in violation of FRCP 30(c)(1). Further, Plaintiffs instructed the court reporter to leave so as not to afford Defendants the opportunity to cross-examine the witness.

Certainly inappropriate if true, but not necessarily something to write home abo–

Defendants waited 45 minutes from the time that Plaintiffs refused to allow the witnesses’ cross-examination to occur until they were able to contact the Court, which indicated that the matter must be submitted in writing since no court reporter was present after Plaintiffs’ Counsel directed the reporter to leave. While waiting direction from the Court to resolve the issue, Plaintiffs’ Counsel had the audacity to call the police to have Defendants arrested in an attempt to bully, intimidate and further thwart Defendants’ rights under the Federal Rules.

Wait, what? Honestly, it’s time to start penalizing people for calling the police for frivolous personal beefs. While we really need this to put a stop to the white people who keep calling the cops on black people for ordering coffee, a blanket deescalation wouldn’t be unwelcome.

But it turns out Zabell has a history of allegations of using law enforcement as a threat against racial minorities in other cases:

Zabell threatened witnesses at trial with deportation if they testified against his client and acted in an outrageous manner at trial where he is currently being investigated by the following three separate and distinct sections of the NLRB for further discipline….

Of that case, the Howard & Howard blog noted:

The judge put Zabell “on notice that this is an admonishment and a reprimand” on four separate occasions. At one point during the hearing, the judge stated: “Mr. Zabell, I have never seen such misconduct engaged in by an attorney in these proceedings in my 43 years with the Board and 35 years as a judge. It’s all on the record I refer you to Sec 102.177 of the Board’s rules and regulations. You are put on notice that this is an admonishment and a reprimand. Your conduct before me, before we broke for lunch was improper, contemptuous, unprofessional, and constituted misconduct of an aggravated character. It will not be tolerated.”

The NLRB approved forwarding the allegations to the Investigating Officer in that case. Milman Labuda notes another six cases where Zabell has been sanctioned or admonished, hardly a useful track record when trying to beat a sanctions rap.

And then, of course, there’s the “calling our attorneys Feltchers” thing.

For his part, Zabell doesn’t think much of Labuda’s account:

Despite this being a motion for sanctions because Mr. Labuda was not given an opportunity to depose his own client at the conclusion of Plaintiff’s properly noticed deposition of a Defendant, Mr. Labuda’s application is replete with nonsensical allegations having nothing to do with this case and in some instances this decade. The majority of Mr. Labuda’s recitation regarding my history is wrong or replete with dated and/or contextualized issues, falsehoods, allegations and outright lies that have nothing to do with the instant application…. These examples could not be further from the truth and, even if they were, have no bearing on the calculus of this application.

It’s all well and good to argue in the alternative, but the “it’s not true but even if it is it was a long time ago” tack doesn’t inspire much confidence in the context of a sanctions claim. Employing the precedent set in Little Brother v. Big Brother, Zabell also accuses Labuda of calling his conference table “cheap” which doesn’t seem on par with calling the cops on opposing counsel, but everyone has their own triggers.

He also says Labuda called his people “douchebags” which definitely doesn’t have the creative firepower of “Feltchers.” At least Zabel’s thinking outside the box.

Magistrate Judge Gary Brown took a balanced approach in granting Milman Labuda’s motion:

Moreover, Zabell’s summoning of the police can only reasonably be characterized as an outrageous violation of the rules of this Court — which, as this Court has cautioned numerous times in this proceeding, require cooperation among counsel during discovery. As such, Labuda’s application is granted to the following extent: (1) on or before August 30, the deposition shall reconvene at the office of defendant’s counsel, for no longer than 90 minutes for the sole purpose of permitting Mr. Labuda to conduct reasonable follow-up questions; (2) Mr. Zabell will pay the cost of the court reporter for said deposition; (3) Mr. Zabell will pay Mr. Labuda $1,000 toward the cost of making the instant application and time consumed by waiting for a ruling; and (4) Mr. Zabell will make a donation of $1,000 to a legitimate charity of his choice. Mr. Zabell will file proof of compliance with items 3 and 4 via ECF within ten days of this order. Both counsel are cautioned that any attorney in this matter engaging in further unprofessional conduct should expect more significant consequences. So Ordered.

Does this mark the end of this spat? Hard to say. But one thing’s for sure, there will be a lot of Milman Labuda associates billing for Urban Dictionary over the rest of this case.


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