Talkin’ Sloth: Khan, Oggero and The Shack Walk into Judge Roth’s Court

Defendant’s Motion to Strike Plaintiff’s Untimely Jury Request

1.                  Receiver incorporates the foregoing paragraphs as though fully restated herein.

2.                  Khan’s pleading is groundless, frivolous, and brought both in bad faith and for an improper purpose. Although Khan requests title to the Wickford Property, and admits that property is held by the Court in custodia legis, Khan brings his claims against Oggero alone. Oggero does not have any right, title, or interest in the Wickford Property, rendering Khan’s claims legally meritless and impermissible. Khan’s admission that the Court owns the Wickford Property elevates his claims from meritless to sanctionable—Khan plainly seeks to circumvent the Court’s prior orders in the Receivership Case.

3.                  Rule 13 of the Texas Rules of Civil Procedure states that signature of a party or his attorney on a pleading certifies that “to the best of their knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment.” TEX. R. CIV. P. 13. The Rule further requires that parties who “make statements in pleading which they know to be groundless and false . . . shall be held guilty of a contempt.” Id. For purposes of Rule 13, a groundless pleading is one with “no basis in law or fact and not warranted by good faith argument for the extension, modification, or

reversal of existing law.” Id. The Rule also mandates that a court “impose an appropriate sanction available under Rule 215” upon a party or attorney who signs such a pleading. Id. Rule 215.2 provides potential sanctions, including an order prohibiting the sanctioned party from raising certain claims, striking the sanctioned party’s pleadings, or charging the sanctioned party with the innocent party’s expenses and reasonable attorney’s fees. Id. 215.2(b).

4.                  Section 10.001 of the Texas Civil Practice and Remedies Code states that the signature of a party or his attorney on a pleading certifies “to the signatory’s best knowledge, information, and belief, formed after reasonable inquiry” the following:

a.       the pleading or motion is not being presented for any improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation;

b.      each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

c.       each allegation or other factual contention in the pleading or motion has evidentiary support or, for a specifically identified allegation or factual contention, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery . . . .

TEX. CIV. PRAC. & REM. § 10.001. When a party violates Section 10.001, a court may impose sanctions on that party, including an order that the offending party perform or refrain from performing an act, or an order that the offending party pay the reasonable expenses and attorney’s fees of the non-offending party. Id. § 10.004(a), (c).

5.                  Section 9.011 of the Texas Civil Practice and Remedies Code states that the signature of a party or his attorney on a pleading certifies “to the signatory’s best knowledge, information, and belief, formed after reasonable inquiry, the pleading is not: (1) groundless and brought in bad faith; (2) groundless and brought for the purpose of harassment; or (3) groundless and interposed for any improper purpose, such as to cause unnecessary delay or needless increase

in the cost of litigation.” Id. § 9.011. When a party violates Section 9.011, a court may impose an appropriate sanction, including the striking of pleadings, dismissal of that party, and ordering that the violating party pay certain costs and fees associated with the offending pleading. Id.§ 9.012(e).

6.                  Khan’s Original Petition violates each of these standards for the same reason. Khan admits that the Wickford Property is held by the Court in custodia legis. Pl.’s Orig. Pet. ⁋ 11. Khan also failed to exercise his exclusive remedy to dispute ownership of the Wickford Property. Turnover Order ⁋ 33. Nonetheless, Khan filed this lawsuit seeking title to the Wickford Property and seeking to restrain the sale thereof—a sale ordered by and under the direction of this Court.

7.                  Khan’s pleading is groundless and brought in bad faith under Rule 13 because it is a blatant attempt to circumvent the Court’s prior orders. Specifically, Khan’s claims relating to ownership of the Wickford Property have no basis in fact or law because (1) Khan judicially admits title to the Wickford Property is held by the Court; (2) Khan did not comply with the Turnover Order’s exclusive remedy for challenging ownership of the Wickford Property; and (3) Khan seeks to restrain the sale of the Wickford Property by suing a party, Oggero, who has no right, title, or interest in said property.

8.                  Khan’s pleading is frivolous and brought for an improper purpose under Section 10.001 of the Texas Civil Practice and Remedies Code because it seeks to delay or needlessly increase the cost of litigation without any basis in existing law or evidence in support. Specifically, Khan admits the Court has title to the Wickford Property and he failed to comply with the Turnover Order. Accordingly, he has no legal basis to claim title to the Wickford Property and there can be no evidence to the contrary.

9.                  Khan’s pleading is groundless, brought in bad faith, and interposed for an improper purpose under Section 9.011 of the Texas Civil Practice and Remedies Code for the same reasons. Specifically, Khan cannot recover title to the Wickford Property through this lawsuit for the reasons stated herein.

10.              Receiver requests that the Court set a hearing on his request for sanctions and, after such hearing, impose whatever sanctions the Court deems appropriate on Khan and his attorney, including but not limited to striking of Khan’s pleading, dismissal of his claims, and monetary sanctions sufficient to deter this conduct in the future.

Khan’s attorney has a long history of discipline from the State Bar of Texas, and an even longer history of judicial sanctions. Receiver requests the Court consider these circumstances in ruling on the request for sanctions in this case.

Attorney’s Fees and Costs

11.              Receiver seeks recovery of his reasonable and necessary attorney’s fees, costs, and expenses pursuant to Texas Civil Practice and Remedies Code Chapters 9, 10, and 37.

Prayer

For the reasons stated herein, Receiver requests the Court order that Khan take nothing by his claims and enter judgment in favor of Receiver for:

a.       declaratory relief as stated herein;

b.      sanctions against Khan and his attorney;

c.       Receiver’s attorney’s fees, costs, and expenses;

d.      such other and further relief, both general and special, legal or equitable, to which Receiver is justly entitled.