A Rare Summary Judgment in Favor of Plaintiff in Libel Case

From Judge David Leibowitz (S.D. Fla.) in Mosler v. Wagner; plaintiff Warren Mosler is a hedge fund executive, author on economics, luxury sports car developer, and former unsuccessful political candidate; defendant James Todd Wagner was a former Director of Engineering at Mosler’s car company, and had tried to buy the company:

Mosler brings this action against Wagner for defamation per se and unauthorized publication of name or likeness. The facts at summary judgment are as follows:

Prior to the instant case, Wagner filed a twenty-count complaint against Mosler in the Circuit Court for the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida (the “State Court Proceeding”). After the jury returned a verdict for Wagner, the Honorable Luis Delgado set aside the jury’s verdict and entered final judgment in Mosler’s favor.

During that time, around September 2024, Wagner registered the website domains, titled “JudgeX.org,” “warrenmosler.co.,” and “ModernMonetaryTheory-Scam.org,” all of which form the basis of the current action. Through these publicly available websites, Wagner published various statements claiming that Mosler bribed Judge Delgado when he overturned the jury’s verdict. The websites also represent Mosler’s name and likeness without Mosler’s consent. In addition to the websites, Wagner continued to disparage Mosler through a YouTube channel he created, called “JudgeXO,” once again accusing Mosler of bribing Judge Delgado in the State Court Proceeding.

Wagner’s basis for this allegation? A statistical analysis (the “Statistical Analysis”) based on mathematical probabilities. This analysis concluded that it was 99.999999999% probable that Judge Delgado accepted a bribe from Mosler. It further informed that it would have taken “an honest judge” nearly thirty-seven billion years to make such a remarkable ruling overturning the jury’s verdict in the State Court Proceeding.

The Statistical Analysis, however, admits of the possibility that Judge Delgado was not bribed. Wagner, too, admits that possibility. Wagner does not know what Judge Delgado received as part of this alleged bribe nor who made this bribe. In fact, Wagner nor his counsel in the State Court Proceeding ever argue that bribery was the cause of Judge Delgado setting aside the jury verdict. At Wagner’s counsel’s deposition, counsel admitted that there was no evidence to support that Judge Delgado was bribed.

The court granted plaintiff summary judgment as to defamation:

To defeat summary judgment here, Wagner would need to show a dispute of fact that the bribery allegations were, in fact, true. He has not done so. It is undisputed that Plaintiff did not bribe Judge Delgado. Defendant does not know how the alleged bribery occurred and what Judge Delgado purportedly received as part of the bribe. All he offers is a speculative statistical analysis based on mere probability. (The Statistical Analysis also admits the possibility that Judge Delgado was not bribed. That clearly won’t carry the day. “Inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion.”). Therefore, there is no dispute of material fact that Defendant’s defamatory statements were false….

Mosler is [also] entitled to summary judgment on the fault prong of his defamation per se claim…. It is not clear from this record whether Mosler is considered a public figure such that he must meet the actual malice standard. But assuming he is, there is no dispute that Wagner acted with reckless disregard for the truth, amounting to actual malice. Again, Wagner puts forth no information concerning the bribery apart from the Statistical Analysis; he does not know who bribed Judge Delgado nor what Judge Delgado received in exchange. He also admits the possibility that Judge Delgado was not bribed. This evidence is sufficiently undisputed for the Court to find that Wagner acted with “a high degree of awareness of probably falsity” when he made the bribery allegations concerning Plaintiff….

The court likewise granted summary judgment as to unauthorized publication of name or likeness:

To demonstrate a prima facie case for an unauthorized publication of name or likeness pursuant to Section 540.08(2), Florida Statutes, a party must show that “the defendant (1) used [his] name or likeness to directly promote a product or service (2) without [his] consent.” It is also required that the plaintiff’s name or likeness be used “to directly promote a commercial product or service, separate and apart from the publication.” …

Wagner used Mosler’s name and likeness to directly promote his various websites, including the one with the domain JudgeX.org. These websites are replete with Mosler’s name as well as pictures and descriptions of him cast in a negative light. This was all seemingly done to promote JudgeX—including the use of the Statistical Analysis which Wagner claims to have invented—for others to track bribes made in the judiciary. (“JudgeX.org will be a [] tool to allow anyone to perform a statistical analysis on a Judge to discern when he/she has taken a bribe.”)

The court therefore permanently enjoined Wagner “from using Plaintiff Warren B. Mosler’s name and likeness on any website domain, including those referenced in the Amended Complaint”; there will still be a trial on damages.

Steven Douglas Weber (Weber Law, P.A.) represents Mosler.