Most Americans probably are familiar with the term summary judgment. But our guess is that relatively few know what it means. And fewer still realize how it can be used against them in a court of law.
My wife and I have extensive experience with the summary-judgment process, and we've seen how bad judges can abuse it in order to cheat parties who come before them. In fact, we have a summary-judgment motion pending now in a lawsuit we filed against debt collectors for violations of the Fair Debt Collections Practices Act (FDCPA).
Will the judge in that case get it right? Will he rule according to the law? If he does, it will be a rarity in our experience. And we will keep you updated, in real time, on how summary judgment is handled in one Alabama case.
First, let's look at the issue in a broader sense. I'm sure many lengthy treatises have been written in law journals on summary judgment. But the subject can be boiled down to a fairly straightforward idea: Summary judgment is a process by which a judge determines whether a case, as a matter of law, can go to a jury. It's the most common form of dispositive motion, one that comes up in almost every lawsuit.
Under the law, a judge is supposed to handle summary judgment according to a relatively strict formula. In Alabama, it is considered a nondiscretionary ruling, and I believe that is the case in all jurisdictions. In other words, a judge is not free to decide how he pleases on summary judgment. He is bound by law to follow the prescribed formula.
Here's how it's supposed to work. Either party can file a motion for summary judgment, but our impression is the vast majority are filed by defendants. The motion must be executed properly, citing case law to support the legal arguments that are made. It also must be supported properly, with evidence--usually in the form of affidavits, documents, deposition testimony, etc.
The motion and the evidence, taken together, are designed to show the judge, "Hey, there is no reason for this case to go to a jury. You can decide it now, as a matter of law, and dispose of it--in our favor."
The other side, the nonmoving party, is likely to say, "Not so fast." They can counter with a reply motion and evidence, arguing that summary judgment should be denied and the case should go to trial.
Here is a key point regarding summary judgment: Any close calls must go in favor of the nonmoving party. It's like the "tie goes to the runner" rule in baseball. Ties go to the nonmoving party on summary judgment.
How brazen can judges be about cheating on summary judgment? Consider the lawsuit our troublesome neighbor, Mike McGarity, filed against me. McGarity's case was so bogus that he had no evidence to support his case. On my first motion for summary judgment (MSJ), McGarity responded eight days past the deadline, which is the same as not replying at all. On our two other MSJs, which raised new issues not raised in the first, he did not respond at all.
All of our MSJs were properly executed and supported, and by law, they had to be granted--because McGarity did nothing to controvert our evidence. Judges in Shelby County, Alabama, however, denied our MSJs all three times. That's the kind of outlandish cheat job that led my wife and I to start this blog. We suspect those kinds of cheat jobs go on in American courts every day--and many parties, confused by legalese and voluminous paperwork, probably do not even realize how badly they are being screwed.
What about our pending case against the debt collectors--Birmingham-based Ingram & Associates and Pennsylvania-based NCO--over a debt they alleged I owed to American Express? Well, it's different from the case involving the neighbor, in several ways.
One, it's in federal court, not state court. Two, we are the plaintiffs this time. Three, the motion for summary judgment was filed by the defendants, which means we are the nonmoving party. Four, unlike our neighbor, we have timely filed motions and evidence to counter the defendants' MSJs.
There is one similarity between the two cases: The judge's decision should be easy. Granted I am not a disinterested party, but summary judgment simply cannot be granted for the debt collectors--not if the law is followed.
Why do I say that? There are a number of reasons, but here are two big ones:
* We have presented tape-recorded evidence that is indisputable proof of FDCPA violations--and the tapes also support our state-law claims. The defense has tried to dance around that topic in its MSJ, even making fraudulent attempts to have one of the tapes excluded. But there are no grounds to exclude the tapes, and they don't lie--the defendants violated the FDCPA, and state law, in serial fashion.
* Summary judgment, by law, cannot be granted if discovery is pending. And much discovery is pending. In fact, we've received almost no legitimate answers to our discovery requests, as the debt collectors have taken a classic stonewall approach. With major issues remaining in discovery, the MSJ cannot be granted.
U.S. District Judge Abdul Kallon is handling our case. Kallon was appointed to the federal bench last July by President Barack Obama, which would seem to be a point in our favor, as consumers. On the negative side, Kallon came from the Birmingham firm Bradley Arant, which has strong ties to Alabama Republican Governor Bob Riley. Also, Kallon probably owes his position largely to U.S. Rep. Artur Davis (D-AL), who has spent much of his gubernatorial campaign trying to gain favor with conservative business interests in our state.
The outcome of our summary-judgment issues might offer a little window into the soul of the federal justice system in the post-Obama era. For now, you can check out the issues at hand. Here is the MSJ filed by Ingram & Associates, followed by our reply:
Shuler MSJ Response (Ingram)