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Thursday, May 2, 2013

Office of Luther Strange Violated Civil Procedure When It Sent Threatening Letter To Attorney


Tuskegee Mayor Johnny Ford
The Alabama Attorney General's office acted outside of lawful procedure when it sent a threatening letter to a lawyer who filed a civil-rights lawsuit against AG Luther Strange over raids at the VictoryLand casino, according to a new filing in the case.

Attorney Donald LaRoche, of Brockton, Massachusetts, also states that Strange's office twice refused to accept service of the summons, complaint, and other documents. Service was completed, LaRoche states, only after it became clear that the process server was prepared to contact federal-court officials about the refusal.

LaRoche sued Strange and Governor Robert Bentley on behalf of Tuskegee Mayor Johnny Ford and five other residents of Macon County, which is home to VictoryLand. The suit alleges that Strange and Bentley caused "economic devastation" by closing the casino, even though Macon County residents had voted to allow electronic-bingo at the facility.

Bentley and Strange both timely filed responses to the lawsuit on April 30. But Strange's office, before filing its response, fired off a letter to LaRoche. Dated April 11, the letter is signed by Alabama Solicitor General John C. Nieman Jr. and threatens to seek sanctions if LaRoche and his clients do not voluntarily dismiss their case within seven days. (The letter can be viewed at the end of this post.) In the letter, Nieman states:

Dear Mr. LaRoche:

Attorney General Strange was served with a summons and complaint in the above referenced case on April 9. Your signature on the complaint, and your clients' filing of it, violates Rule 11(b) of the Federal Rules of Civil Procedure. As you are well aware, your claims and legal contentions are not warranted by existing law or a nonfrivolous argument for extending, modifying, or reversing existing law. see Presley v. Etowah County Commission, 502 U.S. 491, 501-08 (1992). Your clients appear to be presenting their complaint for harassment purposes. Please voluntarily dismiss your complaint within 7 days of this letter. If you do not do so, the Attorney General intends to seek sanctions against you and your clients, including but not limited to attorney's fees and costs associated with preparing a response and a motion for sanctions.

Sincerely,

John C. Nieman Jr.
Solicitor General

LaRoche responded by filing a Motion for Order to Cease Attempts to Intimidate and Delay, dated April 17, which correctly notes that Nieman acted outside Rule 11 of the Federal Rules of Civil Procedure (FRCP). (LaRoche's memorandum in support of the motion can be viewed at the end of this post.)

Rule 11 states that any effort to seek sanctions must be in the form of a motion to the court, not a letter to opposing counsel. From the LaRoche supporting memorandum:

The Attorney General’s letter to plaintiff’s counsel does not fall within the requirements of the Federal Rules of Civil Procedure. F.R.C.P., Rule 11 (c)(2) states that “a motion for sanctions must be made separately from any other motion and must describe the conduct that allegedly violates Rule 11(b).” The Attorney General’s threatening letter does not comport with Rule 11(c)’s motion requirement because it does not “describe the specific conduct that allegedly violates Rule 11(b)” nor is it in a motion form. This letter is just a feeble attempt to delay the process and silence the plaintiffs from pursuing their rights by threatening to seek sanctions.

That's not the only way Strange's office seeks to trample civil procedure. Writes LaRoche:

It should also be noted that in the letter from Solicitor General Neiman, a time period is specified for the plaintiffs to withdraw their complaint. . . . This randomly asserted deadline is not delineated anywhere in Rule 11 and further demonstrates that the purpose of this letter is to intimidate and chill the plaintiffs and not adhere to the Federal Rules of Civil Procedure.

William Boyd, process server for the plaintiffs, apparently was able to serve Gov. Bentley without incident. But his efforts to serve Luther Strange met an almost comical wall of resistance. A receptionist first told Boyd that service was improper because it was not done by mail. Then things really got interesting. From the LaRoche memorandum:

After discussion with counsel for the plaintiffs on the morning of April 9, 2013, Mr. Boyd returned to the Attorney General’s Office to make another attempt at service. Again the front office receptionist refused to accept service. At this point, Mr. Boyd contacted plaintiffs’ counsel to explain the basis for the refusal. Counsel instructed Mr. Boyd to obtain the name of the person refusing to accept service and return to the federal court’s clerk’s office to notify the court that the Attorney General refused service in this matter. Hearing this, the receptionist placed a phone call and subsequently accepted a copy of the complaint, exhibits, and summons. Mr. Boyd then proceeded to the Governor’s Office, and upon arrival, he was able to effectuate service without any delay.

The bottom line? Bentley seemed to have no problem accepting service and responding to the complaint. Strange tried his darnedest to avoid doing either. LaRoche nicely summarizes what appears to be going on:

It is well established in this country that the right to petition is one of the most precious of the liberties safeguarded by the Bill of Rights and the right is implied by the very idea of a republican form of government. BE&K Constr. Co. v. NLRB, 536 U.S. 516 (2002), Eastern Railroad Presidents Conference Et Al. v. Noerr Motor Freight, Inc, Et al, 365 U.S. 127 (1961). . . .

The plaintiffs in this matter have exercised their right to petition the court because their voting rights have been violated by the actions of the defendants. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972) (“’the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances.”)

Attorney General Strange’s letter, dated April 11, 2013, calling for the plaintiffs to dismiss their complaint or suffer the consequences of sanctions is designed to silence the plaintiffs’ meritorious lawsuit. . . . The intent of this letter is to have a chilling effect on the plaintiffs’ efforts to prove their case of voting rights violations. The effect of this letter is more evidence of the extent to which this defendant will go to violate the rights of the people of Macon County. The plaintiffs have properly filed and served the defendants in this case and are proceeding under the laws of this country governing federal lawsuits. The plaintiffs’ lawsuit should not be construed to be anything less than seeking a judicial determination for the concerns that they have raised and a rightful remedy. Rather than responding in the manner provided by the rules, with an answer and/or motion, the Attorney General chooses to send a threatening letter after initially delaying service.




39 comments:

Anonymous said...

Public Hypocrite Number 3 (after Number 1 Luther Strange and Number 2 Bob Riley) BRyan Taylor really needs his Poarch Creek Indian money, so he's bringing back PAC-to-PAC transfers to get it:

http://www.alreporter.com/al-politics/political-news/state-news/4566-freshman-senator-campaign-bill-raises-troubling-questions.html

jeffrey spruill said...

Luther Strange & company MUST be the biggest ignoramuses ever:

http://www.law.cornell.edu/rules/frcp/rule_11

legalschnauzer said...

Jeffrey:

You are correct. Anyone who is able to read plain English can see that Rule 11 (c)(2) is titled "Motion for Sanctions" and calls for any such actions to be filed in the form of a motion. It also says the motion must describe "specific conduct" that allegedly violates Rule 11. The Strange letter is not in proper form and fails to meet the requirement of outlining specific conduct that violates Rule 11.

Anonymous said...

Thanks LS. I hope they nail Strange to the wall.

Anonymous said...

This is simple thuggery. Of course, Luther Strange is the guy who hired Matt Hart, so no one should be surprised.

Anonymous said...

A requirement of working in the Alabama AG's office should be that you have some familiarity with simple legal procedure. Apparently that is not required to work for Luther Strange.

legalschnauzer said...

Anon at 8:17--

Your reference to Matt Hart is very apt. For those who aren't familiar with Mr. Hart's handiwork, here is a refresher:

http://legalschnauzer.blogspot.com/2013/01/a-prosecutorial-thug-for-alabama-ag.html

Anonymous said...

Let's face it Luther has learned from the best Bob Riley when it comes to mafia style threats.

http://www.youtube.com/watch?v=hdYXgr_DMew

Anonymous said...

When Luther Strange saw this story he rose to his feet immediately to protest . . .and almost broke Head Aide Jessica Medeiros Garrison's neck . . . .

Anonymous said...

Great to see what a thug Strange really is. Must be the 'General' in his title that makes his head swell up. Also, he accused the Macon County judge of delaying the search warrant for VictoryLand, but now his office tried the same. He is truly out of control and shame on the Gov for not reigning him in (maybe the gov is scared of him too!). I surely hope the voters of the state can see what a threat this type of individual could be for them, especially if he was voted in as Gov!

DM
Phenix City

Anonymous said...

LS, once again you are the "Document King." Your reporting and writing are solid, but your inclusion of pertinent documents, in my view, is what really makes your blog powerful. Keep up the good work, sir.

Coyote Lane said...

Read Your Bible!

It's all there, In The Good Book!!

Rights came from long ago, and made the way to the U.S. Constitution as an "enlightened time".

...scholars agree the middle classes as well as many of the lower classes, evolution began during Edward III, 1327-1377 ... The Birth of Modern Liberty!

PETITIONS' Rights'!!

The Levellers' ideas were precursors to classical liberal thought.

The comparatively modern notion that people have certain fundamental rights and liberties that NO government can invade begins with them.

The first time that one encounters the expression "fundamental right" is in writings associated with the Levellers and the English Civil War. From the Norman Conquest until the middle of the 17th century, the main premise of reformers always had been the restoration of the ANCIENT rights and liberties of the people. After the middle of the 17th century, the reformers tended to demand the recognition of fundamental rights and liberties.

Levellers' ideas became in their own era, the ideas of the AGITATORS!

Representatives of the RANK AND FILE SOLDIERS APPOINTED BY THE INDEPENDENTS to study and report to the regiments on political developments.

THE AGITATORS DRAFTED PAMPHLETS that were circulated throughout the army, and also DRAFTED PETITIONS TO PARLIAMENT.

THE AGITATORS DRAFTED THE FIRST VERSION OF A CONSTITUTIONAL DOCUMENT ...

NOT ..

DRAFTED BY THE NOBILITY.

THE AGREEMENT OF THE PEOPLE, was presented to OLIVER CROMWELL HEAD OF THE ARMY COUNCIL ON October 29, 1647, AND APPROVED 1 WEEK LATER.

Now, in the US Constitution the enlightened evolution of all those past beginning documents, reached the place where STATUTES are not real law.

The real law is the right to petition, but of course, our right is ancient to demand the "bifurcated government" to be addressed for the crime of going back to the BS of King rules.

No rules get to trump the good law, rules and regulations that have been intentionally made up for so long that the criminals of Wall Street and their lawyers out of the Fed's learning how to commit high treason on the U.S. Constitution ~ actually believe the Liberal Modern true geniuses have not awakened.

Agreement of the People, 1649; English Declaration of Rights, 1689; John Locke's Second Treatise on Civil Government, 1689; Virginia Bill of Rights, 1776; Declaration of Independence, 1776, Northwest Ordinance, 1787; and the U.S. Constitution, 1787.

What a strange land the Dixie Mafia has concocted to erase all our Rights' since ... way before the ignoramuses dragged knuckles in to rewrite history.

Porn Pom

PROGRESS AND PROPERTY RIGHTS, By Walker F. Todd

I am writing a review on this most incredible "Bible" of our Rights' in the U.S.A.

Best to all LS

Anonymous said...

Was Luther not appropriately debriefed on this?

David in S. Alabama said...

Big Luther was too busy to accept the summons. He and Squaw2 were involved in a motion under Rule 69 of the Rules of Uncivil Procedures.

Anonymous said...

This is a rule 11 letter. It is required by the rule. You must give notice to the other side that you intend to seek sanctions under rule 11, then you must wait 21 days before you file your motion.

The specific conduct it describes is set out in the cited case which you should read. in essence, presley case does away with a cause of action under the voting rights act unless it specifically relates to certain circumstances not available here. However, there is a colorable reason for the plaintiff's claims, so my gut feeling would be that a rule 11 motion would fail. however, this case will likely be dismissed early, as it appears to me to lack legal merit.

Strange is simply setting up a rule 11 motion, he improperly attempts to limit the time to respond to seven days, but other than that, nothing about the letter is improper. These letters are sent all the time in federal court practice.

The fact that the lawyer for the plaintiffs clearly does not recognize the purpose of the letter, and then goes further to file an embarrassing motion, does not lend me much confidence in his ability, or at least his experience in federal court.

Anonymous said...

David S. you're hilarious.

Make me laugh, remembering the day when 69 was unknown and now it's a RULE under uncivil procedure.

Too too too wonderful funny.

xo/PornPom

legalschnauzer said...

Anon at 2:43--

Can you point out where Rule 11 says that such a letter is required under federal practice? I don't see it.

Coyote Lane said...

My research is that when doing due diligence in discovery, the/a "Rule" may or may not be reality. It can only apply should it not violate the standard rule of acceptance and that is the real law which defines such as, I would imagine, voting rights and economic devastation.

Each RULE is a provision that has to be backed up by law.

REAL LAWYERS are able to get to the REAL LAW which almost always is far greater than the RULE as color and not authentic due process law.

Mr. Strange has not, and does not, follow due process law and this rule broken is really big fraud: treason, U.S. Constitution, last time the real law was honored.

Anonymous said...

if you'll read 11c2, you see that a party has 21 days to withdraw the offending document, after he is served with a rule 11 motion that is not filed with the court.



this typically starts with a warning letter, i.e., we will seek sanctions if you do not withdraw your filing. Then, a rule 11 motion is served and another 21 days passes, then a motion for sanctions is filed with the court.

this common practice is set out in the committee comments on the rule:

"To stress the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the revision provides that the “safe harbor” period begins to run only upon service of the motion. In most cases, however, counsel should be expected to give informal notice to the other party, whether in person or by a telephone call or letter, of a potential violation before proceeding to prepare and serve a Rule 11 motion."

Thus in this case, the letter sent by the ag's attorney is nothing but a threat to seek sanctions in the future. it is not a motion for sanctions.

The proper response to such a letter, if you believe you have done nothing wrong, is to ignore it, and wait for the sanctions motion.

What you do not do, is embarrass yourself by going to the court and accusing the other side of some attempt to derail your case, before a rule 11 motion is even served. these letters are unfortunately, fairly common, and my policy is, if the other gut does not know the rule, let them make an ass of themselves. Thus, had the ag's lawyer subsequently filed a motion without submitting same to the plaintiff attorney and then waiting 21 days, then you file a response, pointing out to the court the other side's inability to read and comprehend. by doing it the way he has done it, the plaintiff's attorney does not come off well.

Anonymous said...
This comment has been removed by a blog administrator.
legalschnauzer said...

Anon at 3:42--

I see what you reference in the committee comments. But it's not in the rule itself, and it is not--as you earlier stated--required by the rule.

Therefore, I don't see how the plaintiffs' lawyer comes off poorly. Given the bogus 7-day deadline noted in the AG's letter, I think LaRoche's response was reasonable. The committee comments state that such a motion or letter is not to be used for intimidation purposes, and the bogus 7-day deadline, makes it appear that is exactly why Strange's surrogate sent the letter.

Based on the language of the actual rule, the concerns could have been expressed in the form of a motion that was served with plaintiffs' lawyer but not filed with the court.

The main points of LaRoche's response are (1) The AG did not properly state the concerns in a motion; (2) The AG included an improper 7-day deadline.

Both of those points are on target, under the rule, so I don't see how that embarrasses LaRoche.

The comments say the filing of a Rule 11 motion/letter itself can be subject to sanctions, and I would say LaRoche has solid grounds for filing such a cross motion:

"As under former Rule 11, the filing of a motion for sanctions is itself subject to the requirements of the rule and can lead to sanctions. However, service of a cross motion under Rule 11 should rarely be needed since under the revision the court may award to the person who prevails on a motion under Rule 11—whether the movant or the target of the motion—reasonable expenses, including attorney's fees, incurred in presenting or opposing the motion."

Coyote Lane said...

http://hamiltonfirm.net/pdf/pub_lawyersplace.pdf

Anonymous said...

No rule 11 motion has ever been filed. The plaintiff's motion is a waste of time. Its just a letter. If has no meaning. It should just be ignored. To involve the court at this point is foolish.

By all means, if he wanted to, the plaintiff's attorney could write back and state, in essence, you are wrong, and if you seek sanctions against me, I will retaliate. You are not going to get sanctions against another attorney because he writes you a bulkshit letter. If that was the case, the courts would be busy indeed.

legalschnauzer said...

I would argue that it was foolish for the AG's representative to have sent the letter in the first place.

Anonymous said...

8:23 please elaborate as to why the motion is foolish?

Coyote Lane said...

Come on. Attorneys all pick up the phone and talk and the judges all meet up in whatever assembly that is unlawful and talk.

The judicial in other words, are all in bed together. The conflicts arise when the clans begin to get too greedy.

Mormons tried to take over from the Jews and the Jews didn't allow it to happen.

Jews took the money that was managed by the CHURCHES through the "Pope" and made it a Supreme Court Justice decision to anoint the Federal Reserve System [Fed] as the nanny fascist of America.

Johnny Be Good and his legal team are an AMERICAN HOPE to be sure.

Rules are just a matter of protocol to keep the sabers rattling loud and scary.

Talks are being held behind closed doors and the waving of FRCP are bullshit among the so called attorneys at law in the USA since there was NEVER any true formal education.

Rome had "lawyers" and they practiced learning the law as an art form of high intellect.

Not an American value: higher intellect. The law schools in the USA are bullshit and have never been other than some kind of crap fed to the majority of Americans by mostly vile evildoers, or we would not be a failed nation state in 2013.

Figure it out, PETITIONS could have been circulated as the Agitators did, too. But, no, no lawyers get together to be the AGITATORS which is what their true role is, as well as the contract and conflict resolvers.

Greedy maggots, the only label most actually can claim.

Anonymous said...

@243:
Thank you for your explanation of the intent of the Strange letter. Insightful knowledge from someone apparently well versed in the pre-trial legal maneuvering...

Anonymous said...

I'm not 823 but:
It is not a motion, just a letter...just mechanism to inform laroche that if he continues, then a rule 11 motion for sanctions will be filed.

Anonymous said...

well, lets see what the court says. i imagine it will say something like, plaintiff's motion is pre-mature, because no motion for sanctions has been served or filed, and the court will further find that the threat of sanctions was not used to intimidate.

again, these letters are sent all the time. it is a pissing match between lawyers. if you run to the court every time a lawyer sends a shitty letter, then as I said above, the courts will be very busy.

An experienced attorney would wait and see if the the ag actually filed a motion for sanctions, without following the rule. that is when you pounce. as it is, in this case the ag is given plausible deniability, in order to say to the court, but judge, I was only going to serve a motion for sanctions in accordance with the rule!! this letter was only a warning!! in short, a waste of time.

when the other side screws up, you have to wait for the trap to close before you go to the court, otherwise, like a smart fish, they will wriggle off.

jeffrey spruill said...

Anon@3:42 PM

Sure sounds & writes as if he could be Luther Strange's running dog-- John C. Nieman Jr..

jeffrey spruill said...

Anon@5:07

Courts being very busy is EXACTLY what those black robed prima donnas need instead of preening for the press.

http://www.cbsnews.com/2100-18567_162-515096.html

Maybe they won't have an opportunity to screw another one's life up.

Anonymous said...

Agreed Jeff! I bet BIG Luther and Jessica were freaked to see the post with BLOW JOB in the title too.

Coyote Lane said...

anon 5:07

the only thing you can't say as the perfect metaphor:

smart fish.

Fish are not smart. I am sorry to say, fish are simply wonderful as a planetary species, but smart, no.

So using the archetype fish for the strange slippery wriggling off the rule of law, yes this is a smart visual-icon.

The rattling of the sabers or call it the nasty little shit routine and then there are so many behaviors, Shakespeare wrote SHYLOCK about the big bad bully mean and even downright low down dirty murderers wanting pounds of flesh after the money has also been paid.

America bred an entire stock of the most imbecilic: "lawyer."

PLEASE William and Mary College had a "law teacher" who taught the "lawyers" that actualized what we call "American Law."

American law missed the boat in the reality target:

REALITY IS the higher intellects study only law and discuss only law and yes, just as all great maestros, the law is the practice of love for the power of justice and truth and equality, and not for the worship of money.

Whooops. America's "lawyers" were schooled by Wall Street's Federal Reserve System to do what has been done since 1913, recycle the USA for Israel Firsters,

AND the recycling gets executed via the greatest of our stock of idiots about the money - worship of digital dust is not gold.

Dumb fish alright.

Anonymous said...

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"Child Prostitutes in the White House - Banned Discovery Channel Documentary.mp4"
By Elvis Goomba

Coyote Lane said...

William & Mary

In December 1779, George Wythe became the first professor of law in America, a professorship created at the College of William & Mary at the urging of Thomas Jefferson. A signer of the Declaration of Independence, an early abolitionist and a “second father” to Jefferson, Wythe epitomized the lawyer as civic leader and passionate advocate for equality and justice.

Some say the Declaration of Independence was Jefferson's best work. We respectfully disagree.
Legal education began at William & Mary in 1779, at the urging of Thomas Jefferson. He was governor of Virginia at the time and a member of the College’s Board of Visitors. Jefferson believed that aspiring members of the profession should be trained to be citizen lawyers —passionate legal advocates and honorable human beings. John Marshall, the nation’s fourth chief justice, studied here. So have generations of human rights activists, community leaders and defenders of the wrongfully accused.

Anonymous said...

Looks to me like everyone has followed the rules except for Big Luther and Bob Riley. That was my conclusion after reading the lawsuits. Big Luth and Riley made their rules up as they went along.

jeffrey spruill said...

Here's Presley v. Etowah County Commission, 502 U.S. 491, 501-08 1992:

http://supreme.justia.com/cases/federal/us/502/491/

Isn't Section 5 of the Voting Rights Act of 1965 being challenged in SCOTUS by the state of Alabama Mr. running dog-- John C. Nieman Jr.?

legalschnauzer said...

Jeffrey:

Yes, Shelby County, Alabama, is challenging Sec. 5. Not sure if Nieman is involved in that or not. Some right-wing outfit is funding it. Seems like the group is based in DC or Virginia, but not sure.

Just checked. It's the Project on Fair Representation in Alexandria, VA:

http://www.projectonfairrepresentation.org/

jeffrey spruill said...

LS:

Somebody has to argue before the Supremes on behalf of Shelby County, Alabama.

It's the Solicitor General of the United States that represents the federal government before SCOTUS:

http://en.wikipedia.org/wiki/United_States_Solicitor_General

So as the Solicitor General of Alabama I think I would be standig on firm ground to ask: " Is Luther Strange's running dog-John C. Nieman Jr. arguing Section 5 of the Voting Rights Act of 1965 before SCOTUS?