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Tuesday, May 8, 2012

Courts Try to Sweep Hunting-Club Corruption Under the Rug in Alabama

Hunting-Club land
in Lowndes County, Alabama

A federal judge improperly dismissed a lawsuit alleging that Alabama lawyers and judges conspired through a hunting club to fix divorce cases in Jefferson County.

The unlawful dismissal meant plaintiffs were not allowed to conduct discovery in order to prove their case. That indicates the federal judiciary is deeply invested in hiding evidence that would prove Alabama courts are infested with crooked lawyers and judges.

Joseph W. Blackburn, a professor of taxation at Samford University's Cumberland School of Law, is at the heart of the hunting-club issue. Blackburn has filed two federal lawsuits alleging that a hunting club in Lowndes County serves as a hub for activity that corrupts Alabama courts and amounts to organized crime.

In the first case, Blackburn represented himself and alleged that his own divorce, from U.S. District Judge Sharon Lovelace Blackburn, was handled corruptly. In the second case, Blackburn represented other individuals who claimed they also were victims of a rigged divorce court in Jefferson County.

B. Avant Edenfield, a federal judge from Georgia, was specially appointed to hear the first case and granted defendants' motions to dismiss on a variety of technical grounds. Robert R. Armstrong, a U.S. magistrate judge in the Northern District of Alabama, granted dismissal in the second case by pretty much parroting Edenfield's earlier ruling.

But there is a slight problem with that: Edenfield got it wrong in his ruling. The U.S. Eleventh Circuit Court of Appeals upheld Edenfield's ruling, but those judges got it wrong, too. And it's not a close call.

How could multiple federal judges rule incorrectly on simple procedural matters? We can come to only one conclusion: They are more interested in protecting the legal tribe than in administering justice--and they want to make sure that the public never comes to grasp the filthy muck that resides in our courtrooms.

Edenfield issued a 31-page ruling in the first hunting-club case, and you can read the whole thing at the end of this post. Our research indicates the judge from Georgia had a predetermined outcome in mind and ruled incorrectly on multiple grounds in order to ensure that no discovery would be conducted.

But for now, we will focus on only one of Edenfield's mistakes. And it's a doozy.

How did Edenfield screw up? To answer that question we must consider Rule 12 of the Federal Rules of Civil Procedure. Specifically, we must consider Rule 12(b)(6), which governs motions to dismiss for "failure to state a claim upon which relief can be granted." U.S. courts long have been governed by notice pleading rules, which hold that a plaintiff needs to make only a "short and plain statement of the claim" in order to overcome a Rule 12(b)(6) motion, under most circumstances. (See Rule 8 FRCP.) A motion to dismiss is properly granted only under narrow circumstances--perhaps where a statute of limitations or immunity protect the defendants, or where the plaintiff cites a claim for which there is no remedy under the law.

A Rule 12(b)(6) motion, if granted, is devastating to a plaintiff because it cuts off the case before it gets started. Most importantly, it means defendants will not have to turn over discovery that could prove the plaintiff's case.

Under the law, Rule 12(b)(6) motions should rarely be granted, and for that reason, many defense attorneys do not bother to file them. A motion to dismiss is one of two potential hurdles that plaintiffs have to clear to reach a jury trial. The other is a motion for summary judgment, under FRCP 56--and that is much more powerful than a motion to dismiss. Rare is the civil case where a motion for summary judgment does not come into play

What about a motion to dismiss? Unless certain narrow circumstances are present, filing such a motion often is a waste of time and money for the client. But it was not a waste of time for the hunting-club defendants--and Judge Edenfield saw to that.

How did he do it? By conveniently ignoring Rule 12(d) FRCP, which states as follows:

(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

What are "matters outside the pleadings"? They are evidence, usually in the form of an affidavit or a document that is entered by either party. When such matters are entered, and the court does not exclude them, Rule 12(d) plainly states that the motion to dismiss must be converted to a motion for summary judgment and governed by Rule 56 FRCP.

A bedrock principle of Rule 56 is that summary judgment cannot be considered, much less granted, until both parties have been given adequate opportunities to conduct discovery. In the U.S. Eleventh Circuit, which covers Alabama, Georgia, and Florida, that idea has been spelled out in a case styled Snook v. Trust Company Bank of Georgia, 859 F. 2d 865 (11th Cir., 1988). Snook states, in pertinent part:

This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits.

What happened in the first hunting-club case? The record shows that Blackburn entered "matters outside the pleadings," in the form of multiple affidavits. And it's clear that both the opposing parties and Judge Edenfield considered the evidentiary material. Consider this from page 24 of Edenfield's ruling:

As noted above, Blackburn admits he knew of the RICO harms alleged as of 2/03. . . . He filed this case on 1/25/07, within four years. . . . Defendants point out, however, that in his affidavit before this Court plaintiff admits he "first saw the [adverse divorce] Order at Mr. Fernambucq's offices on or about [1/13/03]. . . . "

Blackburn says, later in the same affidavit, that he made inquiry after reviewing the 1/13/08 judgment but it was not until "February 7-10 [2003] . . . that [he] learned the facts about the hunting club. . . . He therefore was first placed on inquiry notice on 1/13/03. . . . Accordingly, the limitations clock started ticking on that date, which means he had until 1/13/07, not 1/25/07, to sue.

That wasn't the only instance where the court considered matters outside the pleadings. Let's take a look at this item from page 28 of Judge Edenfield's ruling, addressing allegations against Birmingham attorney Charles Gorham:

The Court also agrees with these defendants that, as to them (Gorham's affidavit showing that he had nothing to do with plaintiff's divorce action . . . stands unrebutted.)

Gorham's affidavit was unrebutted, of course, because Blackburn was not allowed to conduct discovery and obtain information that might have rebutted it. Under FRCP 56 and Snook, Blackburn must be given that opportunity when matters outside the pleadings are entered, causing a motion to dismiss to be treated as a motion for summary judgment.

But that never happened. And we can only conclude that's because Edenfield knew discovery would unearth all sorts of sleaze about Alabama lawyers and judges. That, the federal judge concluded, could not be allowed--no matter what federal law says.

A strong argument could be made that the hunting-club lawsuits are the most important civil matters filed in Alabama over the past 20 years. They allege not only that our courts are corrupt, but they seek to show exactly how that corruption is carried out.

The cases raise all kinds of ugly questions about "justice" in Alabama, and we will look at them later in more detail. For now, we can see that a federal judge wanted to make sure the public did not learn about unsavory actions involving state judges and "officers of the court."

Blackburn Calhoun Opinion


jeffrey spruill said...

Mr. Schnauzer:

Lord have mercy!!!

You can dissect a case illuminating EVERY hair on the butt.

legalschnauzer said...


I will take that as a compliment. Thanks. I've had plenty of practice at trying to figure out how I got screwed in my own cases. That experience comes in handy when examining cases involving other folks.

Anonymous said...

Where are the Alabama BAR, ACLU and Southern Poverty Law Center on the abuse of Family Law that occurs every day in every Alabama county and nation-wide? Wait, they are lawyers too. What individual is going to fight the corrupt "club" of power elites.
Thanks for informing the us. The traditional media is not.

legalschnauzer said...


You raise a profound point. Mothers, children, and sometimes fathers, are indeed impoverished by this club of elites--and our constitutional guarantees of equal protection and due process are battered. But the entities you cite are silent. In fact, my understanding is that the State Bar actively tries to stop any measures that would alter the landscape in domestic-relations courts because they are a strong source of easy money for lawyers.

Anonymous said...

I am afraid the title of the article should be "Court Are Able to Sweep Hunting-Club Corruption Under the Rug in Alabama."

legalschnauzer said...

Anon at 12:51--

You are right. The courts don't just "try" to sweep corruption under the rug, they actually do it. In the hunting-club case, it was all about making sure that Mr. Blackburn and other victims were not allowed to conduct discovery. I am seeing denial of discovery more and more used as a tool to deny justice to those who have been victimized by the legal cartel. It's happened in my own cases against UAB and NCO/Ingram & Associates, it has happened in the Rollins divorce case and other domestic-relations cases I've covered. This tool is especially likely to be used when the victim has a strong case. If the plaintiff's case is weak, they don't try to deny discovery; they don't worry about it. The bottom line in our "justice system"--the better your case, the more likely you are to get screwed.

Robby Scott Hill said...

And don't be so naive as to assume that judges don't get phone calls from Montgomery & Washington DC. They do.

legalschnauzer said...

I have no doubt that you are right about that, Rob. I also have no doubt that appellate courts get calls from trial courts, instructing them to make sure that certain unlawful judgments are not overturned. The ruling in the Blackburn case was upheld by the Eleventh Circuit, which tells me that appellate court should not be trusted on anything--including the Siegelman case. Chief judge of the Eleventh Circuit is Joel Dubina, a Reagan appointee from Alabama. One call from Bradley Arant to Dubina & Co. is probably all it takes to make sure a fix stays set in stone.

Robby Scott Hill said...

It's especially true in state court systems like Alabama's where today's appellate judges tend to be younger, more inexperienced and less connected than the trial court judges whose opinions they are expected to review.

Anonymous said...

Funny how anytime a ruling isn't to the liking of "the schnauzer," then it is unfair and wrong. Could it be that "the schnauzer" might just be wrong himself?? "boo hoo, it didn't go my way" doesn't mean there is judicial corruption.

legalschnauzer said...

I cited the relevant law that shows the trial judge got it wrong. Can you cite relevant law that shows I got it wrong? Feel free to give it a try, but it will require some effort on your part--and I doubt if you are up to the task.

legalschnauzer said...

BTW, I wasn't a party to the hunting-club case, so there was no "my way" involved.

As a citizen who helps fund federal courts, I think it's kind of important that judges get simple law correct, that we all receive due process and equal protection under the law. You might have heard about those ideas that are laid out in the 14th Amendment to the U.S. Constitution. You do believe in the Constitution, right?

So in a broad sense, I do have a dog in the hunt, I guess. And so do you, assuming you live in the U.S. and pay taxes.

It doesn't bother you if judges are incompetent, corrupt--or both? It doesn't bother you that your taxpayer dollars are wasted and your fellow citizens are denied constitutional guarantees?

What does citizenship mean to you? Anything--other than, "I've got mine, the hell with everybody else"?

Again, you have an open invitation to show me specifics on how I got it wrong. We'll all be waiting.

Anonymous said...

The hunting club to which you refer is Alabama River Hunting Club Inc., incorporated July 25, 2000, as a non-profit corporation, by Richard Vincent and Charles H. Sherer,Jr. Richard Vincent is a law partner with Rick Fernambucq.
The club was supposed to submit a list of the board of directors within 6 months of the incorporation. As of this date, almost 12 years later, they have not done so. Why is the state allowing this?

legalschnauzer said...

Thanks for the info. Are they violating a law by failing to disclose a board of directors? I assume the directors would be liable in any civil action against the club that wasn't unlawfully dismissed by a federal judge? Are they trying to cover some fannies?

I hope readers understand that we are talking about organized crime here. Blackburn's lawsuit was filed under RICO. And he clearly was onto something or the judge would not have screwed him on discovery.

It's hard to overstate the seriousness of this issue, and most Alabamians have no idea what is going on.

Anonymous said...

I need to thank Mr. Schnauzer for helping me to understand what FRCP Rule 12(d) means. As FRCP rules are so broadly constructed, they are so hard for lay-litigant to understand. I just filed my petition to the 9th Circuit yesterday (3/4/2013) pointing out the defendant's relentless exploitation of Rule 12(b)(6) motion to dismiss, by which wrongly put the burden of proof on my [then] counsel, and succeeded. I don't want to go into my case. But, would like to share a very helpful Yale Law Review paper, titled "The Summary Judgment", by Charles E. Clark. You can read through pages 9-11 and appreciate the meaning of the importance of the burden of proof, and of course the court's position, if a plaintiff calls out the issue.

I just want to share this, as obviously I am [or my then class action counsel] not alone being on the receiving end of the exploitation using Rule 12(b)(6) to toss out a case. It had been so frustrating for me that there was injustice [not court], but so helpless.

This reminds me of Japanese sumo wrestling. Wrestlers do not have any place to "hide" anything. That should be the fairness of our judicial system.

legalschnauzer said...

Thanks for sharing the info. Look forward to checking out the article on summary judgment.

Allyson Newell said...

Mr. Schnauzer: I came across this article while researching "Presenting matters outside the pleadings," FRCP 12(d) as a matter of fact. I am a (don't hit delete) Pro Se litigant and I have filed a Copyright Infringement complaint in the District Court, District of AZ. I know your blog deals with Alabama but your blog regarding "Presenting matters outside the pleadings," was enormously helpful to me in responding to the Defendant's Motion to Dismiss, blah, blah, blah. :) One of the Defendants is an atty, and represents the other defendant in the trial court in an unrelated matter. Their first response to my complaint was slapped down by the Fed. Judge, you can read his comments here:

Now, they have opted for the Motion to Dismiss but all they have done is change the caption to Motion to Dismiss. It basically still says the same thing, all "Outside matters," am I correct? They cite a discharged BK and 2 dismissed Civil actions. I would be happy to post their motion to dismiss for your convenience if I am not making sense.
Just wanted to thank you for giving your time to post information that is definitely helpful to others.

Allyson Newell said...

Mr. Schnauzer:
Just came across your post regarding "Presenting outside matters," AKA FRCP 12(d). I am a (don't hit delete) Pro Se Litigant and have filed a Copyright Infringement complaint in the District Court of AZ. The defendant's answered with a pleading that the Fed. Judge slapped down and gave them a "do-over" opportunity. You can read his comments on their pleading here:


Now, they have opted for the Motion to Dismiss, but have presented all outside matters,i.e., a discharged BK, and 2 dismissed civil cases; am I correct? They have not changed the contents of their original pleading to any great degree, merely changed the name of the pleading. To my legally untrained mind this motion is gibberish, fraught with contradictions and double messages. Still, I have to respond to it. I had read about ERCP 12(d) earlier and was researching it to make sure I understood it properly. Your post accomplished that, thank you very much.
Dr. Looking4trth

legalschnauzer said...


Thanks for writing. This is an example of what I hope the blog can accomplish. Feel free to send the material you mentioned. My personal e-mail is rshuler3156@gmail.com if you would prefer to send there rather than to public comments section.

legalschnauzer said...


Good luck with your case. The general rule is this: Once matters outside the pleadings have been submitted and considered by the court, the Motion to Dismiss must be treated as a Motion for Summary Judgment and governed by Rule 56 FRCP. And summary judgment cannot lawfully be addressed without allowing the nonmoving party to conduct discovery. Here is one of several posts I've written on that subject: