The city of Tupelo is standing up to attorney Carlos Moore. A federal judge imposed sanctions of $3,000 on the attorney last month after he failed to respond to discovery requests in a wrongful death lawsuit. Mr. Moore sued the city of Tupelo last year on behalf of the family of
Antwun Shumpert after he was shot to death by a Tupelo police officer. Mr. Moore asked the court to reconsider imposing the sanctions on him. He said he was affected by several death threats that were made against him in a separate lawsuit concerning the state flag. The city said that Mr. Moore had used his "death threat defense" in other cases as well and asked the court to ignore it.
Mr. Moore made several sensational claims in the complaint as well as in statements made the media (They are covered thoroughly in this post and well worth reading.).* He charged that the city issued a memo that said it was "open season on black people". The police let a K-9 dog chew up Shumpert. He said an ambulance intentionally delayed responding to a dying Antwun Shumpert. He alleged that Shumpert was killed when he tried to surrender and said “It was a modern day lynching. It was simply an execution.” He even told the New York Times “They have declared open season on us, and they are killing with impunity.”
Tupelo challenged those claims in discovery and asked for the evidence that supported those claims- in other words, it was time to put up or shut up. Mr. Moore and his client didn't respond to the discovery requests and then submitted some half-baked, vague answers that were deemed to be more than a little deficient in nature. The court imposed sanctions on Mr. Moore for $3,000. The court also noted that Moore was using an anonymous phone call to support some of his claims and that Moore fabricated the memo. He defended doing so on the grounds that he was using a "rhetorical device."
The case then became all about the state flag. The Grenada attorney complained to the court that he could not comply with discovery deadlines because of death threats he received due to his efforts in another lawsuit to get the Mississippi state flag removed. He argued in a motion for reconsideration:
2) Also, Plaintiffs through counsel, ask the Court to take judicial notice that no other lawyer in Mississippi likely endured five death threats from various sources as well as had a spouse with a prolonged unexpected illness requiring said spouse to be out of work for a month in the last quarter of 2016. The Court is asked to find excusable neglect and no malice under the circumstances. Counsel for the Plaintiffs simply filed a lawsuit and appeal challenging the state flag which has the Confederate emblem, a symbol of white supremacy, embedded, and received unwarranted death make threats which had an adverse effect on counsel’s job performance. (KF: Yes, he threw in the state flag. Yes, he is that dumb.) The unexpected illness of counsel’s wife in late 2016 also put said counsel behind in his work on behalf of several clients and has necessitated said counsel bringing in co-counsel in this case and others. Even Rule 37 (a)(5)(A)(iii) allows the Court to not sanction a party or counsel if “other circumstances make an award of expenses unjust.” Five death threats and an unexpected illness of the undersigned counsel’s wife are the other circumstances particular to the undersigned that make the award of expenses unjust in this instance. Rule 60(b) of the Federal Rules of Civil Procedure also allows for relief from an Order because of excusable neglect. Counsel should not be penalized for focusing on staying alive and caring for a sick spouse. That would be against public policy. Neither the Plaintiffs nor the Defendants suffered irreparable harm or undue prejudice because of the short delay in answering discovery. The discovery deadline is currently August 4, 2017.
Tupelo said "nice try" in a response to the motion. The city didn't pull any punches in attacking Mr. Moore's claim that he couldn't meet case deadlines due to an alleged fear for his life:
7. The “extraordinary circumstances” or “manifest injustice” theory that the plaintiffs rely on are death threats alleged to have been received by plaintiffs’ counsel and his wife’s health. And while these defendants do not make light of anyone’s illness, plaintiffs’ counsel has raised this issue time and time again, generally while pursuing other matters vigorously. The following are illustrative, but certainly not exhaustive:
On November 15, 2016, plaintiffs’ counsel filed a motion for continuance in a case pending before the Leflore County Circuit Court, making the exact arguments made here. Attached as Exhibit “1” is a copy of the referenced motion.Mr. Moore indeed made similar statements. He stated in a motion for continuance submitted to the Leflore County Circuit Court on November 15: 2016 in Jackson v. Wheeler, et al:
In another case pending in the Leflore County Circuit Court, plaintiffs’ counsel moved for a modified scheduling order stating that since February of 2016 he had received five death threats. That motion is dated October 17, 2016, and must refer to the same five death threats referenced in the motion pending before this Court. Attached as Exhibit “2” is a copy of the referenced motion for modified scheduling order.
During the same time the plaintiffs’ counsel was arguing to the Leflore County Circuit Court that he needed relief because of the, “. . . duress, anxiety, insomnia, increased hypertension . . . “ (see paragraph four of Exhibit “2”), he found time to continue to hold press conferences regarding claims made in this matter. Attached as Exhibit “3” is a media report on an October 27, 2016, press conference held by plaintiffs’ counsel.
Finally in this respect, a review of this Court’s docket will show substantial activity undertaken by plaintiffs’ counsel at a time when he was representing to other courts that the death threats and family illness for which he seeks relief herein prevented him from participating actively in other matters.
8. These defendants submit to the Court that plaintiffs’ counsel is remarkably selective in
when and under what circumstances these alleged outside events affect his ability to handle his affairs. His claims in that respect should be wholly discounted.
Plaintiff desires to call his medical expert live at trial but Dr. Darley Solomon just recently welcomed a new baby girl to the world this month, and he is not willing to have the Grand Cayman Island so near the birth to travel to Mississippi. Failure of Dr. Solomon to appear live could severely prejudice Plaintiff.
Further, Plaintiff's current counsel has suffered five death threats in relation to litigation regarding the State Flag. Plaintiff's counsel feels it is in the best interest of Plaintiff to bring in new lead counsel to try the case. Due to the duress associated with said threats and caring for a sick relative who has been taken off work for a month, Plaintiff's counsel has contacted Willie Abston, Esq. to lead the charge. Mr. Abston has agreed but will need adequate time to prepare for trial as not to prejudice Plaintiff.That was one. Number two is a motion for modified scheduling for a case also filed in Leflore County Circuit Court. Mr. Moore submitted his motion in Galloway v. Herzog, et al on October 17, 2016. The motion stated:
Counsel for Plaintiffs has endured five death threats since February of this year related to his lawsuit to have the state Confederate flag declared unconstitutional. Counsel for Plaintiff has been under added duress, anxiety, insomnia, and increased hypertension because of said threats and continued exposure to the state Confederate flag as he tries to conduct business on behalf of Plaintiffs and other clients. Such added stress had had an adverse effect on said counsel but counsel feels that with a limited modified scheduling order he can successfully prosecute this case on behalf of Plaintiffs.The case is assigned to Judge David Sanders.
Kingfish note: Can one imagine Thurgood Marshall or even Chokwe Lumumba, Sr. using this excuse to avoid discovery? Chokwe would get that discovery submitted on time and then brag about how he did it despite the death threats. Whining about them and then hiding behind them is something he wouldn't do. Perhaps Mr. Moore is not psychologically suited to practice law since he is arguing he can not handle his cases when someone says something mean or threatening about him. No Atticus Finch is he.
Documents posted below
Response to motion to reconsider: Page 1
Exhibit 1: Page 5
Exhibit 2: Page 9
Exhibit 3: Page 13
Motion to reconsider: Page 14
Order for sanctions: Page 18
Response to motion to compel: Page 24
Motion to compel #2: Page 28
Motion to compel: Page 36
Media exhibits: Page 42
Second amended complaint: Page 68
*The second motion to compel summarizes Mr. Moore's claims:
it should be noted that the underlying event giving rise to this action was well publicized, and counsel for the plaintiffs made repeated claims that he alleged were factually based and that were published in the local media and other media, including The New York Times, regarding the basis of claims made by the Shumpert family. Included in statements made by plaintiffs’ counsel to the media for public consumption are the following:
a. “He [Shumpert] ran from the police, but he did not attack the officer or the K-9.” said Moore during the press conference at Tupelo City Hall. “Was the K-9 not well-enough trained to handle an unarmed 37 year-old man? . . .”
b. “Black lives do not matter in Tupelo,” Moore said. “When you are black or brown (the police) are trigger happy. They sent out a memo to certain parts of the white community that it was open season on blacks.”
c. Moore said during a June 21 press conference the surveillance video showed the initial stop and an hour gap before the ambulance arrived.
d. “The police shot Ronnie four or five times,” or said. “It was a modern day lynching. It was simply an execution.”
e. Moore has released photos of Shumpert’s body. He says these photos show mutilation of the body by the K-9 unit, including scratch marks on his back and wounds to the groin area.
f. Moore also said he has consulted his own forensic pathologist who believes that the wounds on Shumpert’s body, including his back, are consistent with a dog attack.
g. Witnesses also exist that can corroborate the version of events as told by Moore, the attorney claims.
h. Finally, he (District Attorney John Weddle) refuted Moore’s claims that he had found an eyewitness who had recorded video, . . . .
i. This from The New York Times: “They have declared open season on us, and they are killing with impunity,” said Mr. Moore, who is black.
5. These defendants’ Interrogatory No. 7 to Peggy Shumpert reads as follows:
You allege in the complaint that Shumpert tried to surrender voluntarily and came from his hiding place as he heard Officer Tyler Cook and his City assigned K-9 approach. State the factual basis of your claim in that regard, identify all persons on whom you rely to support that claim and identify all documents on which you rely to support that claim.
The following is Peggy Shumpert’s response:
Plaintiffs will rely on forensics expert testimony to establish this fact. Experts will be designated by Plaintiffs’ Expert Designation deadline....
6. Interrogatory No. 8 to Peggy Shumpert reads as follows:
You allege in the complaint that as Shumpert attempted to voluntarily K-9 viciously attacked him, biting him in the groin, ripping his flesh leaving a gaping hole at least six inches deep in his groin and nearly mutilating his testicles after shredding his scrotum. You allege further that the K-9 also severely clawed Shumpert on his back and inflicted other injuries and bruises to the person of Antwun Shumpert. State the factual basis of your claim in that regard, identify all persons on whom you rely to support that claim and identify all documents on which you rely to support that claim.
Peggy Shumpert responded as follows:Please refer to Interrogatory No. 7.
Basis of motion to compel: Plaintiffs’ counsel has alleged publicly and repeatedly that Shumpert attempted to voluntarily surrender, and that the K-9 viciously attacked him, biting him in the groin and severely clawed Shumpert on his back. Peggy Shumpert should be required to either provide the information sought by this interrogatory or admit that she has no factual basis for these claims, can identify no person on whom she relies to support these claims and can identify no documents on which she relies to support these claims.
7. These defendants’ Interrogatory No. 9 to Peggy Shumpert reads as follows:
You allege in the complaint that while Shumpert was trying to defend himself against total annihilation by the K-9, Officer Tyler Cook approached Shumpert and shot him four times, punched Shumpert in the face and kicked or stomped Shumpert in the mouth knocking four of his bottom teeth backwards toward his throat. State the factual basis of your claim in that regard, identify all persons on whom you rely to support that claim and identify all documents on which you rely to support that claim.
Peggy Shumpert’s response was as follows:
The rest of the motion treats the sensational charges in a similar manner. The defense cites each one made by the plaintiffs and then asks them to provide evidence for the charge. The plaintiffs make vague references to materials that are not produced.Please refer to Interrogatory No. 7.