You undergo too strict a paradox,
Striving to make an ugly deed look fair.
This event took place more than a year ago, but I was not aware of it until Raul’s yesterday’s tweet. Yet this story is relevant today because tomorrow the slimiest copyright troll in history M. Keith Lipscomb most likely will be asking Judge Baylson (in what remained from once so promising Bellwether trial in Philadelphia) to refer Doe 16 to the DOJ for committing perjury. At the same time, this troll was caught in deeds that I think are no less grave than perjury — namely forgery. The following is just a single story, a tip of the iceberg.
Lipscomb filed Patrick Collins v. Does 1-4 (FLSD 11-cv-60571) back in 2011, adding 21 Does later (Doc. 17). Long story short, the lawsuit boiled down to a single named defendant, Elizabeth Congote, who apparently had been trying to avoid service: after numerous attempts her purported boyfriend accepted the summons on 12/5/2011.
On 12/6/2011 Judge K. Michael Moore denied Lipscomb’s motion to extend time (Doc. 49) and ordered (Paperless Doc. 58) to file a joint scheduling report by 12/13/2011 and threatened to dismiss the case otherwise.
Still unable to contact the defendant, Lipscomb got crafty and… made up the report as if it was indeed written together with the defendant: the language unambiguously suggests a joint effort (“The parties suggest,” “The parties propose” etc.). Moreover, you can see the defendant’s electronic signature at the bottom.
Firstly, there is no such thing as a pro se electronic signature. FLSD rules are quite strict:
Pro se litigants will not be permitted to register as Users at this time. Pro se litigants must file their documents in the conventional manner.
There is a provision for joint signing, but obviously, Lipscomb ran afoul of it:
In the case of a stipulation or other document to be signed by two or more persons, the filer should: submit a scanned document containing all necessary signatures; or, indicate the consent of the other parties on the document; or, file the document identifying the parties whose signatures are required and submit a notice of endorsement by the other parties no later than three business days after the filing. A model form (Form C) is attached hereto. The filing party or attorney shall retain the paper copy of the document containing the original signatures for a period of one year after final resolution of the action, including final disposition of all appeals.
Second, signing in someone’s name without consent is a forgery, plain and simple.
The fact of filing a joint report while Lipscomb kept saying that he couldn’t contact the defendant did not escape the judge’s attention, and on the next day the following order was issued:
PAPERLESS ORDER. THIS CAUSE came before the Court upon Plaintiff’s Notice of Filing Joint Scheduling Report . The Notice states that “Plaintiff hereby advises this Court that despite its numerous attempts to contact Doe 5 a/k/a Elizabeth Congote, to discuss the Scheduling Report, it has been unable to make contact with the Defendant.” The Notice continues to state that “the documents served upon Elizabeth Congote requested that she contact Plaintiff’s counsel by the close of business on December 12, 20011. At this point, Defendant has not contacted Plaintiff.” Accompanying Plaintiff’s Notice of Filing Joint Scheduling Report is an actual Joint Scheduling Report. Despite Plaintiff’s noted inability to contact Defendant, however, the Joint Scheduling Report filed by Plaintiff bears Defendant Elizabeth Congote’s electronic signature, indicating that the Joint Scheduling Report was signed by Defendant Congote. Plaintiff is hereby ORDERED TO SHOW CAUSE by December 22, 2011, why the Joint Scheduling Report filed by Plaintiff bears Defendant’s electronic signature despite Plaintiff’s notice to the Court that Plaintiff was unable to make contact with Defendant. Signed by Judge K. Michael Moore on 12/14/2011.
Lipscomb did file the explanation of his apparent scumbaggery. Read this document, written rather by a weasel than a human:
Plaintiff filed the Joint Scheduling Report with Ms. Congote’s signature because Ms. Congote failed to contact Plaintiff and did not object to Plaintiff filing the report. This failure indicates that Ms. Congote acquiesced in having her name signed on the report.
Words fail me. Yes, I read Kafka’s “Process” in my college days, and now I have experienced an acute déjà vu.
Note that the cited case law does not support Lipscomb’s excuses. Not a bit.
Judge Moore did not buy Lipscomb’s excuses (neither was he impressed by misleading citations):
In support of this theory, Plaintiff s counsel cites to several cases for the proposition that “[w]hile failure to reply to a letter is not in all cases an act of acquiescence, when it would be reasonable for the recipient to respond and correct erroneous assumptions, and the recipient does not respond, it is considered an adoption.” [...] Tellingly, none of the case law Plaintiff’s counsel cites in support of this theory of constructive signing actually evinces the idea that a party may contravene the Rule 11(a) signing requirement because the opposing party failed to respond to a letter or inquiry.
This Court interprets Rule 11(a) to require that which it explicitly states, that “[e]very pleading, written motion, and other paper must be signed … by a party personally if the party is unrepresented.” See Fed. R. Civ. P. 11(a) (emphasis added).
However, how the judge acted based on his findings put me in a deep depression.
So what was Judge Moore’s conclusion? Did he impose sanctions? Nope. Did he report Lipscomb to the Florida Bar? Nope. To the DOJ? Nope. Lipscomb was “punished” by a dismissal of this case without prejudice and striking of the fraudulent document.
The selectiveness of prosecution is astonishing. If you are a lawyer and lie to the court, forge signatures, produce phony explanations that do not withstand a slightest scrutiny — you will get away with it. If you are a layman and panicked, foolishly altered the evidence, not anticipating (and probably not realizing) that the wheels of the US criminal justice will grind you… If you are not a professional in weaseling out, expect your (and your family members’) life to be ruined.