IN THE SECOND DISTRICT COURT OF APPEAL STATE OF FLORIDA

Filing # 11001091 Electronically Filed 03/05/2014 04:38:12 PM IN THE SECOND DISTRICT COURT OF APPEAL STATE OF FLORIDA MARCELLUS M. MASON, JR., v. Appellant, CHASE MANHATTAN MORTGAGE CORPORATION, CASE NO.: 2D12-1166 Lower Case: GC-04-418 Appellee. / CHASE HOME FINANCE, LLC S MOTION FOR PROTECTION AGAINST HARASSING, THREATENING, AND DISPARAGING COMMUNICATIONS BY APPELLANT AND TO STRIKE PORTIONS OF BRIEF CONTAINING INAPPROPRIATE AND IMMATERIAL REFERENCES Pursuant to this Court s inherent powers and Florida Rule of Appellate Procedure 9.410, Chase Home Finance, LLC ( Chase ), as successor by merger to Chase Manhattan Mortgage Corporation, by counsel, requests that this Court enter an Order (1) prohibiting Appellant, Marcellus M. Mason, Jr. ( Mason ), from sending harassing and threatening e-mails or other communications to Chase s counsel; 1 (2) prohibiting Mason from sending disparaging communications to nonparties regarding Chase s counsel; (3) prohibiting Mason from filing any papers in this Court that disparage Chase s counsel; and (4) striking those portions of the Initial Brief that contain inappropriate and immaterial statements. 1 The term Chase s counsel is meant to refer to all Greenberg Traurig lawyers that have appeared on behalf of Chase in this lawsuit, including Michele Stocker, Cory Eichhorn, Kimberly Mello, and Jonathan Tannen. 1

The filing of this Motion tolls the filing of the answer brief pursuant to Florida Rule of Appellate Procedure 9.300(d). Alternatively, in the event this Court concludes that the time for filing the answer brief is not tolled, counsel requests that the time for filing the answer brief be extended for a period of five days from the date of an Order on this Motion. Chase s counsel believes that an extension is necessary and appropriate to ensure that they are afforded adequate protection before filing any additional papers in this Court. In support of this Motion, Chase states as follows: INTRODUCTION This mortgage foreclosure action has been pending for more than nine years. The Final Judgment of Foreclosure was entered in 2005, which resulted in Chase exercising its rights, and a foreclosure sale was held. After the sale, it unfortunately became necessary to evict Mason from the premises. Since that time, Mason has relentlessly pursued litigation in the trial court, this Court, the Florida Supreme Court, the United States District Court for the Southern District of Florida, and the Eleventh Circuit Court of Appeals ( Eleventh Circuit ). To date, Mason has filed five petitions for writs of mandamus and prohibition, two federal district court cases, 2 one Eleventh Circuit appeal, and over 40 post-judgment 2 The first lawsuit against Chase was filed in the Southern District of Florida in November 2009 (the 2009 District Court Case ). Mason s complaint contained 23 counts of purported wrongdoing, including violations of the Fair Credit Reporting Act, Breach of the Implied Covenant of Good Faith and Fair Dealing, Breach of Contract, Unjust Enrichment, Promissory Estoppel, Conversion, Civil Theft, and Defamation. An Order was entered dismissing the Complaint, which Mason appealed. The appeal was subsequently dismissed by the Eleventh Circuit for failure to prosecute. 2

filings in the trial court alone, clearly demonstrating that Mason is engaging in abusive litigation tactics. The court listings of Mason s filings are attached as Composite Exhibit 1. Mason s filings are fraught with personal, abusive attacks on judges, opposing counsel, and the judicial system, and contain scurrilous allegations. 3 Indeed, Mason recently sent correspondence to the trial judge, who is newly assigned to this matter, stating that I am going to become more aggressive in asserting my rights and asserting that his losses were due to racial discrimination and oppression and conservative arguments which omit material facts and The second lawsuit was filed in the Southern District of Florida in May 2013 against Chase, Cory W. Eichhorn, Greenberg Traurig, L.E. Brooker, in his official capacity as Highlands County Clerk of Court, and Thomas J. Curry, in his official capacity as the Comptroller of the Currency. The complaint alleges 15 counts, including Declaratory Judgment, Violation of Due Process Rights and Access to Courts, Wrongful Foreclosure, Violation of 28 U.S.C. 1361, and Violation of 42 U.S.C. 1982. This matter remains pending. 3 This is not the first time Mason has engaged in this type of conduct. In 1998, Mason was fired from his employment with the Highlands County Board of County Commissioners. As a result, Mason filed eleven separate related lawsuits. In September 2001, the federal district court entered an order in each of those cases detailing (1) Mason s abusive conduct, (2) his derogatory and profanity-laced emails to the opposing parties in direct contravention of a prior order enjoining him from doing so, (3) his refusal to honor the district court s dismissal, sometimes filing three or four pleadings a day requesting identical relief to that which he already requested, and (4) his admissions of bad faith underlying his pursuit of lawsuits against the defendants for the purpose of punishing and harassing them. See United States v. Mason, No. 02-14020-CR, 2008 WL 4084198 (S.D. Fla. Sept. 3, 2008), attached as Exhibit 2. When Mason failed to comply with the district court s September 2001 Order by redoubl[ing] his efforts to attack and intimidate his opponents, he was charged with and convicted of criminal contempt. Id. at *2. 3

contain mischaracterizations, [and] outright lies. He also stated that Judge Shinholser, who previously presided over the trial court proceedings, was even willing to lie to get his way. A copy of Mason s February 28, 2014, correspondence is attached as Exhibit 3. In 2009, Greenberg Traurig appeared on behalf of Chase in this matter and in the 2009 District Court Case. Mason thereafter commenced an outright attack on Chase s counsel, engaging in threatening and intimidating conduct, which resulted in Chase filing a Motion for Protective Order in the 2009 District Court Case. See Exhibit 4 (Motion for Protective Order with attached e-mails sent to Chase s counsel and non-parties to the litigation). The district court entered a Protective Order, finding that Mason s communications with opposing counsel and third parties indicate that he has acted in bad faith in the course of this litigation. See Exhibit 5. The district court specifically noted that Mason had: made claims that Chase s counsel has made a mockery of the legal system and is blatantly dishonest; sent a threatening e-mail to Chase s counsel, which indicated that his intent was to damage Chase s counsel s career; sent an e-mail to all University of Miami School of Law personnel accusing Chase s counsel, by name, of unethical conduct; sent an e-mail to Chase s counsel calling him scum and a bottom feeder and stating that he should be run out of the legal profession. Since this appeal was filed, Mason has renewed his abusive litigation conduct, sending multiple harassing, threatening, and disparaging e-mails to Chase s counsel, and has threatened to publish their name and image on a website 4

that would contain the same disparaging, unwarranted attacks. Among other things, Mason states in his e-mails that (1) he is relentless and will not stop, even if it means contempt; (2) he will not abide by any injunction; (3) he will email his website throughout the legal community and government agencies; and (4) this case is going to ruin a lot of people s reputation[s] and career[s]. In addition, he has directly threatened appellate counsel, stating that nothing is going to stop me and [i]f I were you, I would let someone else handle this matter as I am really killing Cory Eichhorn and it is only the beginning. Complete copies of Mason s e-mails and the website Mason has threatened to publish to third parties are attached as Composite Exhibit 6. Court. It is based on this history that Chase s counsel seeks protection from this ARGUMENT I. THIS COURT SHOULD PROHIBIT MASON FROM ENGAGING IN ABUSIVE LITIGATION CONDUCT DIRECTED TOWARD OPPOSING COUNSEL. Rule 9.410 of the Florida Rules of Appellate Procedure and this Court s inherent powers provide the necessary authority to prevent Mason s abusive litigation conduct. See Fla. R. App. P. 9.410; Lussy v. Fourth Dist. Ct. App., 828 So. 2d 1026, 1027 (Fla. 2002) ( Abuse of the legal system is a serious matter, one that requires this Court to exercise its inherent authority to prevent. ); see also Tasse v. Simpson, 842 So. 2d 793 (Fla. 2003) (collecting cases in which the Florida Supreme Court has sanctioned abusive litigants). Indeed, the Florida Supreme Court has not hesitated to impose sanctions against pro se litigants engaged in, 5

among other things, vindictive, threatening, and personal attacks against judges and opposing counsel. See Tasse, 842 So. 2d at 796; Martin v. State, 833 So. 2d 756, 761 (Fla. 2002) (Martin II) (instructing court to not accept additional filings unless submitted and signed by an attorney who is in good standing with The Florida Bar); Martin v. State, 747 So. 2d 386, 391 (Fla. 2000) (Martin I) (instructing the clerk to, among other things, not accept additional filings unless they are legitimate). For example, in finding sanctions were warranted in Martin I, the Court relied in part on the fact that the litigant insulted and maligned the reputation of numerous judges and other court personnel and engaged in ethnic and religious disparagement. Tasse, 842 So. 2d at 796 (discussing Martin I). Again exercising its inherent authority in Tasse, the Court sanctioned a litigant whose petition for writ of mandamus contained scandalous and obscene language and insulted specific attorneys and judges, The Florida Bar, the Judicial Qualifications Commission, and the legal system as a whole. Id. at 794. Other courts have also imposed sanctions for abusive and offensive remarks directed at opposing counsel. See Thomas v. Tenneco Packaging Co., Inc., 293 F.3d 1306 (11th Cir. 2002). In Thomas, a lawyer s filings contained rude, pervasive remarks about opposing counsel s demeanor and attacked her fitness as a member of the bar. Affirming the federal district court s sanctions, the Eleventh Circuit concluded that the lawyer s remarks served no purpose other than to harass and intimidate opposing counsel. Id. at 1322. 6

No different result should be reached here. Mason has clearly stated that his relentless pursuit of Chase and its counsel will continue and that his intent is to ruin reputations and careers through widespread distribution to third parties of disparaging and unwarranted attacks on counsel s fitness to practice law. His communications are also threatening and intimidating, attempting to dissuade appellate counsel from representing Chase and stating that he has only begun his attack against Chase s counsel. Sanctions under these facts are both warranted and necessary. While this Court can issue a wide array of sanctions including reprimand, contempt, striking of briefs, dismissal of proceedings, or other sanctions, because of the threatening and harassing nature of Mason s communications, the conduct itself should be prohibited and the Court should impose such other sanctions as it deems appropriate. II. THIS COURT SHOULD ENTER AN ORDER STRIKING THOSE PORTIONS OF THE INITIAL BRIEF THAT CONTAIN INAPPROPRIATE AND IMMATERIAL STATEMENTS. Appellate courts may strike briefs, or those offending portions, which contain misrepresentations of the record or matters that are immaterial and impertinent to the controversy between the parties. See, e.g., Greenfield v. Westmoreland, 32 Fla. L. Weekly D533 (Fla. 3d DCA Feb. 21, 2007) (striking brief for including immaterial and impertinent matters); B.M.S. Broad., Inc. v. Simplex, Inc., 504 So. 2d 513, 514 (Fla. 5th DCA 1987) (striking paragraphs that contained misrepresentations). Throughout his Initial Brief, Mason launches 7

personal attacks on the judges and opposing counsel in this matter, and embellishes the brief with immaterial and impertinent matters. Highlighted portions of the Initial Brief, which should be stricken, are attached as Exhibit 7. Some of the more egregious examples include the following: (1) accusing Chase of making patently frivolous and baseless legal arguments and engaging in feeble and unlawful behavior; (2) claiming that white judges involved in this matter were either motivated by an extreme right wing political agenda, or worse, a racial animus; (3) alleging that the affidavit filed by Chase was false and that Judges Langford and Shinholser knew of these lies and fully supported them; (4) alleging that Judge Shinholser and Judge Langford knew and approved of lying and misrepresentations made by attorneys in this matter; (5) stating that Cory W. Eichhorn and Thomas M. Moon made patently frivolous legal arguments and were untruthful with respect to the Defendant s Omnibus Motion; (6) stating that the judges simply disregarded the law, omitted material facts, and misrepresented or fabricated material facts in order to have it their way; and (7) stating and threatening that [t]his case and its facts are already publicly available on the Internet and in the future will be emailed throughout the legal community as Exhibit A for white racism in the justice system. See Initial Brief at pp. 3-5, 33-39. CONCLUSION For the foregoing reasons, Chase respectfully requests that the Court enter an Order (1) prohibiting Mason from sending harassing and threatening e-mails or other communications to Chase s counsel; (2) prohibiting Mason from sending 8

disparaging communications to non-parties to this matter regarding Chase s counsel; (3) prohibiting Mason from filing any papers in this Court that disparage Chase s counsel; and (4) striking those portions of the Initial Brief that contain inappropriate and immaterial statements. In addition, in the event this Court concludes that the filing of this Motion does not toll the time for filing the answer brief under Rule 9.300(d), counsel requests that the time for filing the brief be extended for a period of five days from the date of an Order on this Motion to ensure that that counsel is afforded adequate protection before filing any additional papers in this Court. Date: March 5, 2014 Michele L. Stocker Florida Bar No. 044105 stockerm@gtlaw.com GREENBERG TRAURIG, P.A. 401 East Las Olas Blvd., Ste. 2000 Ft. Lauderdale, FL 33301 Telephone: 954.768.8271 Facsimile: 954.759.5571 Respectfully submitted, Kimberly S. Mello Florida Bar No. 0002968 mellok@gtlaw.com Jonathan S. Tannen Florida Bar No. 70842 tannenj@gtlaw.com GREENBERG TRAURIG, P.A. 625 E. Twiggs St., Ste. 100 Tampa, FL 33602 Telephone: 813.318.5700 Facsimile: 813.318.5900 Secondary Email: dunnla@gtlaw.com; FLService@gtlaw.com By: /s/ Kimberly S. Mello Kimberly S. Mello Counsel for Appellee, Chase Home Finance, LLC 9

CERTIFICATE OF SERVICE I CERTIFY that a copy of the foregoing has been furnished to the following by e-mail and U.S. Mail on March 5, 2014: Marcellus Mason Jr. 214 Atterberry Drive Sebring, FL 33870 Email: mcneilmason@hotmail.com /s/ Kimberly S. Mello Attorney FTL 109581955 10