United States District Court for the District of Columbia
January 3, 2005.
TIMOTHY PIGFORD, et al., Plaintiffs,
ANN VENEMAN, Secretary, United States Department of Agriculture, Defendant. CECIL BREWINGTON, et al., Plaintiffs, v. ANN VENEMAN, Secretary, United States Department of Agriculture, Defendant.
The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge
On December 22, 2004, Mr. James Myart, Esq. filed, on behalf of
his client, Mr. Thomas Burrell, a "Notice of Unprofessional
Conduct by Michael Sitcov in Connection with Allegations of
Department of Justice/Attorney Misconduct in Direct Relation to
Class Members Cases and Defendant's Appeals of Arbitrator
Awards." This is not the first document captioned "Notice" that
Mr. Myart has filed in this case, and the Court is less than
pleased at counsel's repeated use of the Court's docket as a
forum for what are, in essence, press releases. This most recent "notice" has crossed a line that the Court will not
ignore. Because the Court finds this notice to be unprofessional,
harassing and irrelevant to this litigation, the Court will
order, sua sponte, that it and another notice filed the
following day be stricken from the record.*fn1 The Court
will not reach into the past to strike other inappropriate
notices that have been filed, but admonishes counsel against the
use of such mechanisms in the future in this, or any other,
Mr. Myart's "notice" appears to complain that Mr. Sitcov will
not speak with him on the telephone concerning the recent
concerns raised regarding Margaret O'Shea, an individual who
participated in the Department of Justice's work regarding the
implementation of the Consent Decree. Mr. Myart claims that "[i]n
spite of the urgency of this matter, Mr. Sitcov refuses to
communicate with Counsel justifying his refusal to communicate
and insistence on hanging up in Counsel's face." Notice at 2. As
noted, Mr. Myart's filing is a notice, not a motion requesting
relief from the Court. Indeed, the Court notes that Mr. Myart has
already filed both a notice to bring the Court's attention to the
matter of Ms. O'Shea*fn3 and multiple motions on the same topic.*fn4 Thus, the "notice", if it involved only
the matter of Ms. O'Shea, at the very least would be
The focus of the "notice," however, is not the matter of Ms.
O'Shea, but rather Mr. Sitcov's refusal to speak with Mr. Myart
on the telephone. The Court notes that this is not the first time
Mr. Myart has raised this complaint. In a hearing for a temporary
restraining order in Bradshaw v. Veneman, Civil Action No.
04-1422, on October 8, 2004, Mr. Myart advanced similar concerns
regarding Mr. Sitcov's alleged failure to communicate. After
explaining his reasons for refusing to speak to Mr. Myart over
the telephone, including Mr. Myart's previous suspension from the
Texas State Bar, Mr. Sitcov explained: I have told him that I will accept e-mail from him or
letters or faxes. And when it suits his purpose,
which is almost every day, he sends me one of his
e-mails. But when he wants to create what he views as
some sort of issue about me not talking to him, he
calls me. Now, I am not lead counsel in any one of
these cases. As I think Your Honor is aware by this
time, I supervise a practice area that, one little
corner is a farm services agency. The practice
involves HUD, it involves the V.A., it involves FEMA;
it is nationwide in scope. The way our office
operates, there are trial attorneys, and the trial
attorneys are personally and primarily responsible
for litigating those cases.
Mr. Myart knows who the trial attorney on Pigford is.
It's Liza [Goitein]. He has her number. He calls her,
she calls him. If he wants to talk to somebody by
phone about a motion, he can call her. And when it
suits his purpose, he does.
So if he is going to stand up here and lie to you
that there is no way for us to communicate, that is
simply false. And if he is going to say to you that
there is no way for us to communicate other than by
e-mail, that's false as well, because he can call Ms.
[Goitein], who is the person that he should call.
In other cases, he calls the lawyers who are assigned
to them. There is a case called Williams that's being
handled by Josh Rabinovitz. He regularly calls Mr.
Rabinovitz. There's a fellow named Cowden in the
United States Attorney's Office who is in several
cases. Mr. Myart regularly calls Mr. Cowden. So the
notion that I am some sort of roadblock is just a
lie. And it is in keeping with, and I'm just going to
quote now, what, "the Texas Bar found that it was
conduct that was deceitful and fraudulent in those
proceedings." And it is deceitful and fraudulent in
October 8, 2004 Motions Hearing in Bradshaw v. Veneman, 04-1422
("Bradshaw Hearing") at 9-11. Mr. Myart knows that Mr. Sitcov
prefers to communicate with him in writing in connection with
this case. This is not a "refusal to communicate." It is merely a
refusal to communicate by telephone. It is certainly not
uncommon, in contentious cases, for prudent attorneys to prefer
that their communication with opposing counsel be memorialized in
writing. The Court notes that, during that same hearing, Mr. Myart
essentially accused Mr. Sitcov of racism, saying: "[I]f I am
being treated any differently than any other lawyer or white
lawyer that he deals with, that I'd consider that to be
discriminatory," and, later in the hearing, when handing Mr.
Sitcov a document said "yes sir, yes sir" in what Mr. Sitcov
described as the patois of a slave speaking to a master,
Bradshaw Hearing at 9, 26, to which Mr. Sitcov responded: "I
don't have to be treated like dirt privately in e-mail and I
don't have to be treated as dirt by Mr. Myart here." Id. at
In response, the Court, acknowledging the
contentious nature of this case, noted its agreement with Mr.
Sitcov on this point, id., and admonished all counsel to
conduct themselves courteously and professionally, stating:
Mr. Myart, you are both, everybody in this case is
going to have to conduct themselves professionally.
There are a lot of lawsuits where people don't,
lawyers on the other side don't like each other.
There are a lot of lawsuits where there is a history
between lawyers on the other side. But they still
both have an obligation. All have an obligation to
try to act professionally toward each other and try
to act professionally in their filings and in the
* * *
I just don't think it is appropriate to, and I heard
what you said. I don't think that was appropriate,
the way you addressed Mr. Sitcov just now. There may
be other things that are not appropriate, too. You've
identified some things that you think are
inappropriate on his side and things that he has
done. As I say, there have been other things as well.
This has been a contentious matter for a long time.
* * * But it seems to me that it is the responsibility of
the lawyers in the case, and the neutrals in the
case, and the professionals in the case to try to
keep the level of contentiousness and bad blood down
and the level of civility and professionalism up. And
I don't know if that is ever going to be repairable
between you, Mr. Myart and you, Mr. Sitcov. And it
does not have to be repaired. But people have to act
professionally and civilly when they file things in
writing and when they say things in Court.
Bradshaw Hearing at 27-31. The hearing ended with the following
Mr. Myart. Does the Court have any admonition,
structure, otherwise any learned advice on how to
deal with my phone calls with Mr. Sitcov?
Id. at 71. The Court assumed that its previous admonition would
be sufficient. Clearly it has not been.
Mr. Myart claims to be "at a loss on this insurmountable
problem and the Court's refusal to address this conduct even
after the Court admonished all attorneys regarding professional
conduct toward each other." Notice at 3. Mr. Myart states that he
"has abided by the Court's admonishment." Id. It is clear,
however, from the tenor of this and past filings by Mr. Myart,
that this is not so. The e-mail attached to Mr. Myart's Notice
that was directed towards Mr. Sitcov and copied to multiple
members of Congress is undeniably unprofessional in tone. It
states, in part:
SITCOV, It does not matter that you did not respond
to my December 19th request for information on the
DOJ/O'Shea "debacle." Ms. Goitien [sic] did not
Sitcov, it does not matter that you and Ms. Gotien
[sic] did not answer my December 20th effort to
confer on my most recent motion. . . .
The e-mail continues in a similar tone, with multiple paragraphs
all beginning "Sitcov." The Court considers the tenor of this
e-mail to be entirely unprofessional.*fn7
Rule 11 of the Federal Rules of Civil Procedure provides, in
relevant part, that by presenting to the court any "pleading,
written motion, or other paper," an attorney "is certifying that
to the best of the person's knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances," the
pleading "is not being filed for an improper purpose, such as to
harass . . . and [that] the allegations and other factual
contentions have evidentiary support. . . ." FED. R. CIV. P.
11(b). The notice and the attached e-mail have been filed for an
improper purpose unrelated to this litigation, serving instead to
bring opprobrium on a fellow member of the Bar. "[A]busive
language toward opposing counsel has no place in documents filed
with our courts; the filing of a document containing such
language is one form of harassment prohibited by Rule 11." Coats
v. Pierre, 890 F.2d 728, 734 (5th Cir. 1989), see John G.
Koeltl, The Argument for Civility, 23 LITIGATION 66 (Spring
1997) ("Judges are not impressed by papers that hurl epithets
against the other side. Memoranda that are personally insulting
to an adversary are also often offensive to the Court.").
The Court has noted in the past, and will reiterate now, that
Mr. Sitcov is "an experienced and dedicated Department of Justice
attorney and public servant of many years who has devoted nearly
six [now seven] years of his professional life to this important
case" and that he "always has recognized and respected the basic
rights of plaintiffs and their lawyers, without regard to their race." Pigford v. Veneman, 215 F.R.D. 2, 3-4
(D.D.C. 2003). The Court has observed Mr. Sitcov and listened to
his arguments and representations in court on scores of occasions
and has read thousands of pages that he has either written or
whose preparation he has supervised. While his frustration level
clearly has risen over the years (and his choice of language in
certain filings has reflected that frustration), Mr. Sitcov has
appeared always to have acted professionally, honorably and
Rule 12(f) of the Federal Rules of Civil Procedure provides
that a court may strike any matter that is "redundant,
immaterial, impertinent, or scandalous." FED. R. CIV. P.
12(f).*fn8 Although striking filings is generally disfavored
as an extreme remedy, a court has "liberal discretion" to strike
such filings as it deems appropriate under Rule 12(f). Stanbury
Law Firm v. IRS, 221 F.3d 1059, 1063 (8th Cir. 2000); see 2
MOORE'S FEDERAL PRACTICE § 12.37 at 12-93 to 12-94 (3d ed.
2002). The word "scandalous" in Rule 12(f) "generally refers to
any allegation that unnecessarily reflects on the moral character
of an individual or states anything in repulsive language that
detracts from the dignity of the court." 2 MOORE'S FEDERAL
PRACTICE § 12.37 at 12-97; see also In re TheMart.com
Inc. Securities Litigation, 114 F. Supp. 2d 955, 965 (C.D. Cal.
2000) ("scandalous" includes allegations that cast "a cruelly
derogatory light on a party or other person"). Mr. Myart's
insinuations "improperly cast? a derogatory light" on a
dedicated government attorney who has done his best to navigate
the deep and murky waters of this litigation. 5A CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1382 (3d ed. 2004). The current
accusations, and others, which too often have been contained in
superfluous and inappropriate filings, have no place in this
Court and will be stricken.
Finally, counsel is reminded that Local Civil Rule
83.8(b)(6)(v) of the Rules of this Court requires all counsel
appearing in this forum to familiarize themselves with the D.C.
Bar Voluntary Standards for Civility in Professional Conduct,
which are included as Appendix D to those Rules. Among other
things, the Standards provide that
we [attorneys] will treat all participants in the
legal process, including counsel . . . in a civil,
professional, and courteous manner, at all times and
in all communications, whether oral or written. . . .
Except within the bounds of fair argument in
pleadings or in formal proceedings, we will abstain
from disparaging personal remarks or acrimony toward
such participants. . . . We will not bring the
profession into disrepute by making unfounded
accusations of impropriety or making ad hominem
attacks on counsel, and, absent good cause, we will
not attribute bad motives or improper conduct to
other counsel. . . . We will not degrade the
intelligence, ethics, morals, integrity or personal
behavior of others, unless such matters are
legitimately at issue in the proceeding.
D.C. Bar Voluntary Standards for Civility in Professional Conduct
¶¶ 1, 3, 5, 28. Despite these established principles, the
communications among counsel and some of the court filings in
this case are not civil, respectful, or professional. Counsel is
reminded that it is a privilege to practice law in this Court,
not a right, and that the Court's docket is not a forum for
personal attacks. See In re Snyder, 472 U.S. 634
(1985) ("The license granted by the court requires members of the
bar to conduct themselves in a manner compatible with the role of
courts in the administration of justice."). Finally, even outside the context of ad hominem attacks,
the flood of "notices" with which Mr. Myart has deluged the Court
deserves comment. Many of these notices, including the instant
notices, serve no legitimate litigation-related purpose and
appear to be a form of grandstanding really addressed to other
audiences. There are generally two types of documents that are
appropriately filed in a court: pleadings (complaints, answers,
counterclaims, etc.) which either state a claim or respond to a
claim, and motions (oppositions, responses, etc.) which are used
to bring before a court for resolution disputes involving the
claims in the case or the procedures to be followed. Although in
some limited circumstances it may be appropriate for a party to
file a notice with the Court, the purpose of such a filing is not
to carry on a conversation with the world at large.*fn9
Court is a forum for dispute resolution, not a means of
disseminating press releases, letters to the two political
branches of government (the Congress and the Executive Branch),
or postings from the Black Farmers and Agriculturalists, Inc.
website. Rarely has the Court encountered filings that constitute
a greater waste of the Court's resources and time or that are as
inconsistent with the letter or spirit of the Federal Rules.
Cf. Moore v. National Children's Center, Civil Action No.
96-0118 (PLF) (D.D.C. 1997) ("[C]ounsel seem to have adopted the
notion that `quantity is quality,' resulting in this Court . . .
being barraged with motions that seemingly articulate each and
every spat over which counsel find it necessary to bicker."). Mr. Myart should take care in the future to file papers with
this Court only to the extent that they serve a legitimate
litigation-related purpose. Should the Court be forced to expend
its time striking inappropriate filings, the Court will seriously
consider imposing sanctions. The Court notes, however, that this
same day the Court has issued an Opinion and Order denying Mr.
Myart's motion to modify the Consent Decree and denying his
motion to disqualify class counsel in this case. Mr. Myart may
not, therefore, purport to speak on behalf of "all plaintiffs" in
this litigation anymore, or file documents for "Thomas Burrell,
on behalf of all class members." Indeed, he never had the right
to do so. Class counsel, and only class counsel, speak on behalf
of the class. Should a class member have a concern, that class
member may certainly contact class counsel directly or through
counsel; and the Court is confident that class counsel will bring
issues to the Court's attention that may require the Court's
An Order consistent with this Opinion shall issue this same