The Alabama Supreme Court should need about 30 seconds (at most) to deny Drummond Company's emergency petition for a writ of mandamus, seeking to overturn the trial court's denial of a motion to dismiss in David Roberson's $75-million fraud lawsuit.
That's because the court long has held a writ of mandamus is an improper vehicle for review on denial of a motion to dismiss or a motion for summary judgment. Why that holding? The simple principle is this: In most cases, a post-trial appeal will be available to the aggrieved party -- as it will be for Drummond in the Roberson case -- and that is the proper remedy.
We don't have an exact number of appellate cases that cite this rule, but it appears to be dozens. Burt Newsome, attorney for Roberson and his wife Anna, cites five of them in a motion to dismiss the mandamus petition filed yesterday. (The Roberson motion and Circuit Judge Tamara Harris Johnson's denial of Drummond's motion to stay discovery in the trial court are embedded at the end of this post.) From the Roberson motion to dismiss:
The issues Drummond raises in its mandamus petition have previously been held by the Alabama Supreme Court to be not reviewable by mandamus. In Ex Parte Sanderson, 263 So. 3d 681 (Ala., 2018) -- cited by Drummond in its mandamus petition -- the court refused to review the case and said, "The denial of a motion to dismiss or a motion for summary judgment generally is not reviewable by a petition for writ of mandamus, subject to certain narrow exceptions . . . " (These narrow exceptions include things like lack of subject-matter jurisdiction by the trial court, which are not at issue in this case.) Drummond cites no cases holding that its defenses based on collateral estoppel, the Hinkle rule or the plaintiffs' alleged failure to state a claim are reviewable by mandamus.
In Ex Parte Nautilus Insurance Company, 260 So. 3d 823 (Ala, 2018), this honorable court stated:
Initially, LFC argues that it was entitled to a dismissal of Precision's claims under Rule 12(b)(6) because, LFC says, those claims fail to state a claim upon which relief can be granted. However, the denial of a motion to dismiss based upon Rule 12(b)(6) is not reviewable by petition for a writ of mandamus. Ex Parte Kohlberg, Kravis Roberts and Co., L.P., 78 So. 3d 959 (Ala., 2011). Any alleged error in the [trial] court's decision to deny the motion to dimiss for failure to state a claim . . . can be adequately remedied by appeal. . . . Accordingly, we do not address LFC's arguments in this regard.
Why is Drummond seeking a remedy to which it clearly is not entitled? We can only guess, but it appears the company is desperate to avoid discovery.
As for Judge Johnson's order denying Drummond's request for a stay of discovery in the trial court, she writes:
The court file reflects . . . Defendant Drummond has requested and received, in part, discovery from plaintiffs. Yet now, the Defendant Drummond is asking for a stay on discovery requested to be produced by defendant. In other words, Defendant Drummond has participated in the discovery process, as long as it was requesting and receiving discovery; yet, it now asks this court for a stay in the entire discovery process, once discovery is being requested from it. . . .This Court did not provide defendant with the relief sought, to wit: an emergency stay of discovery, as the court finds that the defendant had already begun the discovery process, the requested stay was no longer justified as an emergency.