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| Judge J. Scott Vowell |
Imagine going to a doctor who did not know how to take your temperature. You would expect to see such a clod have his license yanked in short order, right?
That's not how it works in the legal "profession," at least here in my home base of Alabama. Gross incompetence seems to be openly tolerated among lawyers. In some cases, it is rewarded by giving a lawyer the title of "judge."
Consider Circuit Judge J. Scott Vowell of Jefferson County, which includes Birmingham. He has been presiding judge since 1995, which means he is largely responsible for our area having one of the nation's most corrupt domestic-relations courts. Vowell has sat idly by while certain judges and lawyers used several notorious hunting clubs as sites to fix divorce cases. Even after the scandal became known, thanks to several federal lawsuits, Vowell still has taken no noticeable corrective actions.
My wife and I recently learned that Vowell is more than just an inept administrator; he also is an inept judge. We filed a legal-malpractice complaint against Darrell Cartwright and Allan Armstrong, the two lawyers who intentionally undermined our case against unethical debt collectors. Two Jefferson County judges, Robert Vance Jr. and Tom King, recused themselves from our case, so it wound up in Vowell's lap.
How has he handled it? Well, the veteran judge apparently cannot even read a docket report and tell whether a complaint has been served or not. This is one of the first steps that happens in most any lawsuit, and the docket report should make it clear whether the defendants have or have not been served.
It's the legal equivalent of a doctor taking your temperature. That's one of the first things to happen when you get a health checkup, and it doesn't take much skill to complete the task. The same thing applies to the issue of service in a lawsuit; it happens right up front, and even the most incompetent judge should know when the step has been completed.
But that apparently is beyond J. Scott Vowell because he recently issued an order dismissing our case, without prejudice, "for lack of service." That order, dated November 26, came even though the docket sheet shows that service was completed--or "perfected," as lawyers like to say--more than four months ago.
To make matters more mind boggling, my wife and I are pro se litigants, so we don't have the advantage of checking the electronic file via alacourt.com. We have to rely on the U.S. mail to receive copies of documents in the case. At least two of Vowell's orders regarding service, either by accident or design, never reached us. That means I only learned about a supposed problem with service when I visited the Jefferson County Courthouse a few weeks back and happened to check our file on a public computer.
Service of a complaint should be relatively simple, but it can get tricky when you have a couple of defendants who happen to be lawyers and know how to avoid being served. That's the case with Cartwright and Armstrong, and it appears that Vowell is doing his best to help them get away with playing legal dodge ball.
How is the judge doing that? Well, he's claiming service has not been completed, when a simple check of the docket report shows that it has been completed. That's like being asked to read an eye chart that clearly says "H-O-R-S-E," only to have your optometrist claim it says "F-E-N-C-E."
Let me explain:
The service of process is covered under Rule 4 of the Alabama Rules of Civil Procedure (ARCP). The rule is long because it attempts to cover all sorts of potential scenarios and complications, but for most in-state cases, the procedure should go smoothly.
The No. 1 method for in-state service is for the plaintiff to pay a fee to have a sheriff's deputy deliver a copy of the summons and complaint to each defendant. That should take care of it. But with Cartwright and Armstrong, the deputy returned the material as undelivered.
Perhaps the No. 2 method for in-state service is to have the court designate a process server. We tried that method, and the server made multiple trips to the Armstrong and Cartwright homes, when they clearly were home, but service was refused.
That led us to Rule 4(e), which allows the clerk to send the summons and complaint by ordinary mail in cases where the designated server states that process has been refused. Rule 4(e) states: "Service shall be deemed complete when the fact of mailing is entered of record."
I delivered to the clerk on July 19 a copy of an alias summons, along with a signed statement from the server that process had been refused. The appropriate papers were stamped on that date, and a docket entry for July 19 states: "Clerk sent by regular mail to Darrell Cartwright" on one line, followed by "Clerk sent by regular mail to Allan Armstrong" on the next line.
Per Rule 4(e), "the fact of mailing" was "entered of record" on July 19, 2012--which is more than four months ago--and that means "service shall be deemed complete." And yet, I hold in my hand an order from Scott Vowell saying the case has been dismissed for "lack of service."
The dismissal is "without prejudice," which means the case can be reinstated--and you can rest assured that it will be. But why are we having to jump through such absurd hoops?
That question leads to this question: Is Scott Vowell really that incompetent or is he corrupt, intentionally ignoring simple rules in order to provide cover for a couple of rogue members of the legal tribe?
You probably can guess which answer to that question I would pick.
Following are documents related to service in this case. The first includes Judge Vowell's Order of Dismissal, plus papers that were filed to have service completed under Rule 4(e) ARCP. The second is a motion that includes an explanation of the facts and relevant law regarding service:
Cartwright Vowell Dismissal
Cartwright Default Judgment
"Buffoons on the Bench"
ReplyDeleteLove it! That would be a good title for a book.
LS, something tells me you don't like this guy. It's subtle, but I picked up on it.
ReplyDeleteYou're a quick study, Sharon. LOL.
ReplyDeleteActually, it's not a matter of not liking Scott Vowell. I've never met the man. But I certainly don't care for his actions. And I've grown seriously tired of "public servants" who treat me, and other citizens, as if we are stupid and can't see what they are doing.
Hopefully, I will meet Vowell soon. I plan to seek a hearing in his court to resolve this little problem, which shouldn't be a problem at all.
LS, I could use a little legal education. What is a default judgment?
ReplyDeleteWell it's good to know Judge Robert G. Doumar knows why the Eighth Amendment & due process concerns are important because--back in the summer of 1995-- August14,1995 to be specific--he had absolutely no idea of what the Fifth Amendment Grand Jury Clause stipulates & its importance.
ReplyDeleteNow that's what I call a buffon:
http://www.nytimes.com/2004/08/28/us/us-set-back-on-treatment-of-combatant.html?ref=yaseresamhamdi
Anon at 10:19--
ReplyDeleteThe short answer is this: The defendant has 30 days to file an answer to a complaint. If no timely answer is filed, the defendant becomes subject to a default judgment, which is a finding for the plaintiff because the defendant has failed to respond. If a default judgment is entered, there are a number of ways for a defendant to get it overturned. But the defendants in this case were served back in July, so they've had plenty of time to respond. That's why a motion for default judgment was filed.
Thnx.
ReplyDeleteSounds like a forfeit in baseball. If one team doesn't show up, the other is declared the winner.
Exactly, except I imagine most default judgments are eventually overturned. I don't have much experience with them, but I'm guessing in most cases that word gets to the defendant at some point, and he files the proper document to get default lifted, and the case moves forward.
ReplyDeleteJeff:
ReplyDeleteI would have called them "baboons on the bench," but I would hate to insult our great ape kinfolk.
"public servants," these are the words that the "servants" have literally changed into "IMPERIAL JUDICIARY."
ReplyDeleteLOVE THIS POST, LS, YES TIME FOR YOUR BOOK, TOO!
"... Parry devotes whole chapters to the history of corrupt manipulation by a couple of the dirtiest individuals in Washington: Colin Powell and Robert Gates. These two manage their heights of corruption and influence, in part, through their cross-partisanship. Democrats in Parry’s worldview seem to be largely battered wives failing to push back, failing to speak out, refusing to investigate or prosecute or impeach. True enough, as far as it goes. But I think there is a great measure of complicity and outright expansion of bipartisan abuses that must be credited to the Democrats as well. An accurate understanding of exactly how evil some of our Republicans have been need not turn us into cheerleaders for the party of the current president, his record classifications, his groundbreaking secrecy claims, his record whistleblower prosecutions, his record levels of warrantless spying, his imprisonments without trial, his wars without Congress, his war-making CIA, or his “kill list” murder program. Instead, an accurate understanding of how evil some of our politicians have been should move us to become, like Robert Parry, dogged pursuers of the facts that those in power seek to bury or beautify ...
http://www.globalresearch.ca/the-normalization-of-treason/5315201
ME THINKS CLINTON DID A NUMBER ON WOMEN, NOT ONLY HER, HIM TOO.
Women, since Clinton committed betrayal on Clinton and the US, are not exactly respected.
HER was literally chased down in the streets in the ME, and the Middle Eastern people running her "home," throwing tomatoes and other rotten fruit and shouting MONICA repeatedly.
And "MEN?" INVESTIGATIVE JOURNALISM must continue investigating what has happened to our "MEN" in "AMERICA."
"Buffoons on the Bench," OR the brain dead psychotic public servants gone ape shit crazy?
Primates are known to eat their own paws to get their "hand" free from the jar, where an apple appears trapped.
Buffoons alright and according to Parry way worse than a lower primate that can be set loose to do damage, your case in point proves the point.
A trial in Las Vegas recently completely proved to this anon, that the courts in the U.S. are by design for the criminals.
ReplyDeleteThe criminals are classless but have sold US Americans the ideology that they are the class which gets to be treated special, more worthy of the law which protects the individual in the U.S. Constitution.
COURT SYSTEM IS CORPORATE USA, thus "Citizens United vs. WTP."
I am the generation of the Vietnam War and I can state that the young men who were killed in that IMPERIALISM were some of the best that America has known.
We were bankrupted then and what we got now were those criminals that did not "war in Vietnam," no they are waging war here at home to this very day, worsening since the assassination of Kennedy by the Bush Crime Family.
Losers are what we get for the most, those souls lost in the time warp of vile evil, Robert Parry's book is a true record of how upside down and backwards the world was turned.
LS, don't write anymore.
ReplyDeleteGet a public servant job:
"... The numbers are even larger in California, where a state psychiatrist was paid $822,000, a highway patrol officer collected $484,000 in pay and pension benefits and 17 employees got checks of more than $200,000 for unused vacation and leave. The best-paid staff in other states earned far less for the same work, according to the data.
.. Mohammad Safi, graduate of a medical school in Afghanistan, collected $822,302 last year, up from $90,682 when he started in 2006, the data show. Safi was placed on administrative leave in July and is under investigation by the Department of State Hospitals, formerly the Department of Mental Health.
.. Another perk of public workers in Cali? $200,000 in accrued vacation pay:
... The disparity with other states is also evident in payments for accumulated vacation time when employees leave public service. No other state covered by the data compiled by Bloomberg paid a worker more than $200,000 for accrued leave last year, while 17 people got such payments in California. There were 240 employees who received at least $100,000 in California, compared with 42 in the other 11 states, the data show. New Jersey Governor Chris Christie calls such payments “boat checks” because they can be large enough to buy a yacht.
.. Topping the list was $608,821 paid to psychiatrist Gertrudis Agcaoili, 79, who retired last year from the Napa state mental hospital after a 30-year career. Agcaoili said in a telephone interview that it was her right to take the payment.
.. Can California afford to pay those wages? Of course not:
http://www.zerohedge.com/news/2012-12-11/go-west-young-man-new-normal-dream-job-california-state-workers
... Among the largest states, almost every category of worker has participated in the pay bonanza. Britt Harris, chief investment officer at the Teacher Retirement System of Texas, last year collected $1 million -- including his $480,000 salary and two years of bonuses -- more than four times what Republican Governor Rick Perry received. Pension managers in Ohio and Virginia made up to $678,000 and $660,000, respectively, according to the data, which Bloomberg obtained using public- record requests. In an interview, Harris said public pension pay must be competitive with the private sector to attract top investment talent.
WTF?! "Harris said public pension pay must be competitive with the private sector to attract top investment talent."
Buffoons are paid to be the best talent it appears. What are these JUDGES REAL COMPENSATION PACKAGES FOR ALL THE FRAUDULENT INDUCEMENT AND TRANSFERENCE OF WEALTH via the FED and of course "Imperial Judiciary!"
I'm going to keep this anonymous since I have a case pending before Judge Vowell. I'm also going to kept this simple for your understanding. According to the online docket, your case was dismissed without prejudice on June 22, 2012 for lack of service. That means the case was dismissed, closed, finished, finito, done, over, complete. The case was reinstated upon your motion on September 10, 2012. Thus, any attempted service by you in July 2012 by mail or otherwise, was a nullity, void and wholly without effect since there was no pending case at the time. It's really that simple, and it doesn't matter what the clerk's office did with your letters in July.
ReplyDeleteanon 1:08 ABSOLUTELY 100% CORRECT.
ReplyDeleteThat is the way it is LS, when a judge determines via COURT DOCUMENT FILED WITH JUDGE SIGNATURE and/or the sign of a stamp for the judge, that is it, no case other than "dismissed," or what the judge has decided. Criminals.
Anon at 1:08--
ReplyDeleteI'm afraid you are reading the online docket in a selective fashion. In his Sept. 10 order, Judge Vowell said we were to "perfect service of process upon the defendants or take appropriate action on or before October 26, 2012."
We did that by filing a motion dated Sept. 21, showing that service already had been completed and asking the court to reinstate the motion for default judgment.
Vowell did not rule on that motion. He also did not respond to our Aug. 31 motion, which included our declaration that we were not served with his June 22 order. In fact, I still don't have a copy of it.
Vowell simply issued a dismissal, with no explanation, even though we had responded to his previous motion as required. He didn't say the service that clearly shows on the docket--you acknowledge yourself that you see it--was invalid
He also hasn't scheduled a hearing where these matters could be resolved in person, rather than having slips of paper passing in the night.
I can only go on the documents with which I am served. My filings clearly show that I was not served with the June 21 dismissal. That puts a pro se party at an extreme disadvantage, and Vowell has any number of steps at his disposal to remedy that.
We've been left trying to read his mind.
Looks like you're a victim of your own fallacious tautological thinking, i.e., "I didn't have to perfect service after the case was reopened because I perfected service when the case had been dismissed." Sorry, no banana. As shown, service wasn't perfected as a matter of law because the case was closed; you saying service was perfected in a motion doesn't make it so and the clerk's office accepting your letters doesn't make it so. It's also not the job of the court to explain the law or procedure to you, even if you are pro se. Furthermore, Judge Vowell's September 25, 2012 order in plain English denied your motion for default judgment because "the defendants have not been served with the summons and complaint." Instead of petulantly insisting that you perfected service in July, maybe you should have put on your big boy pants and gotten the job done.
ReplyDelete"Fallacious tautological thinking."
ReplyDeleteWow, what a phrase. Are we impressed with ourselves or what?
If Judge Vowell issued an order on Sept. 25, it's news to me. I've never seen it, and I have no copy of it. That makes at least three documents I've failed to receive from his office. I find it hard to believe that our mail service is that poor.
Maybe someone in Judge Vowell's office needs to put on his or her "big boy pants" and figure out how to use the U.S. mail.
A final note: I don't need Judge Vowell or anyone else to explain the law or procedure to me. It would help if he would explain why he's finding that defendants have not been served when the record shows they have been served, under Rule 4.
You are reading all kinds of things into Vowell's rulings that aren't there. He doesn't say "service wasn't perfected as a matter of law because the case was closed." If he did, we would know what he was talking about and could deal with it appropriately.
As it is, we have been groping in the dark since early summer. A simple hearing would have cleared this up, but my impression is that Vowell doesn't want it cleared up.
By the way, can you cite law that says a case is closed, as a matter of law, even when notice of said closure has not been served on the plaintiff?
Here ya go. First, look at Ala. R. Civ. P. 77. It's the job of the clerk's office, not the judge, to send out orders to the parties. Second, it's your job to "act diligently" to "keep abreast of the status of the case" by checking with the clerk's office. If you don't do that and you don't receive something in the mail, then you're SOL according to the Alabama Supreme Court. Bacon v. Winn Dixie Montgomery, Inc., 730 So. 2d 600, 601-03 (Ala. 1998). Doesn't sound like you've been too diligent in keeping up.
ReplyDeleteFirst of all, what little mail we've gotten on this case has come from Scott Vowell's office. That's the return address on the envelopes. Is his office failing to follow Rule 77? Perhaps.
ReplyDeleteSecond, we have been "acting diligently" by going to the clerk's office periodically to check the record ourselves. That's how we know about the existence of documents we haven't received.
Third, the Bacon case has to do with the time to file an appeal, which is not an issue here.
Fourth, you haven't answered the question from my earlier comment.
Fifth, we've stated in our pleadings that we were not receiving documents from the court, and Vowell has done nothing about it--just dismissed the case. You told me about a document dated Sept. 25, and that was first I've heard of it. We have been made to pay a price for the court's ineptitude.
The record shows that we've acted with an abundance of diligence. I've notified the court of a problem receiving documents--which appear to be coming from the judge, not the clerk--and he has allowed the problem to fester when it could have been solved with a 10-minute hearing.
We will get the case reinstated one way or another, since it was dismissed without prejudice. But Vowell and/or the clerk's office have bungled it horribly, and I think it's intentional. Hence, my post.
Furthermore, you will notice nothing in the docket saying our service was invalid because of the earlier dismissal. Maybe you can read a judge's mind, but we cannot.
Doesn't 4(e) only apply after an attempt to serve by certified mail has been refused? I don't think it applies when a defendant is avoiding service by the sheriff or a special process server. In that case, you may serve by publication.
ReplyDeleteNo, here is how it reads below, with pertinent part highlighted. If either certified mail receipt or process server states that service was refused, then 4(e) applies. (Oops, sorry I can't bold in a comment, but you can see what it says.)
ReplyDeleteService refused. If service of process is refused, and the certified mail receipt or the return of the person serving process states that service of process has been refused, the clerk shall send by ordinary mail a copy of the summons or other process and complaint or other document to be served to the defendant at the address set forth in the complaint or other document to be served. Service shall be deemed complete when the fact of mailing is entered of record.
I trust your facts are accurate and it appears the judge is protecting the attorneys. You have a better chance of being hit by lightening twice in the exact same location than the US mail service screwing up 3 times by failing to deliver documents from the same sender. 3 times? I think not possible.
ReplyDeleteMolli--
ReplyDeleteI agree. We miss pieces of mail every now and then at our house, but three times from the same location . . . extremely unlikely.
Heck, my anon critic above (an apparent lawyer with access to alacourt) told me about a document in my case that was filed Sept. 25. That was news to me. I've never seen it.
Are pro se litigants treated fairly? A lawyer who is extraneous to the case has more information about my case than I do.
I was told yesterday by someone at the court that the mail comes from Judge Vowell's office, but anon critic cited a rule that seems to say it's supposed to come from clerk's office. Why is my mail coming from Vowell's office? And much of it isn't coming at all.