UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
| JAMES R. BLACKSTON, BRADLEY W. BARBER Plaintiffs, vs. STATE OF ALABAMA, et. al., Defendants. |
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Case No.: 99-A-295-N |
Comes now plaintiffs Blackston and Barber and moves this Honorable Court to compel the defendants to comply with the scheduling order and request for discovery and state as follows:
I. STATEMENT OF CASE AND FACTS
1. Plaintiffs served upon the defendants a Notice to Produce on March 14, 2000. (Exhibit A, Notice to Produce)
2. The defendants filed a Motion to Stay Discovery Pending Ruling on Absolute and Qualified Immunity on March 20, 2000. (Doc. #46)
3. The Court granted the defendants' Motion to Stay Discovery Pending Ruling on Absolute and Qualified Immunity on March 31, 2000. (Doc. #53)
4. Four Hundred and Thirty Six (436) days have elapsed since the granting of the Motion to Stay Discovery Pending Ruling on Absolute and Qualified Immunity.
5. In the Scheduling Conference on March 9, 2001 (Doc. #95,) the Magistrate Judge stated she would have a ruling on immunities before May 1, 2001.
6. After the Scheduling Conference on March 9, 2001, Scheduling Order number two (2) was entered by the Court on March 12, 2001. (Doc. #98.)
7. The plaintiffs filed a timely objection to the Scheduling Order on March 26, 2001. (Doc. #100.)
8. The Objections to the Scheduling Order were granted in part and denied in part on April 25, 2001. (Doc. # 102.)
9. According to the Scheduling Order, discovery was to begin with initial disclosures on May 1, 2001 and be completed 1 October 2001 (Doc. #98.)
10. The Court "ORDERED that the objections of Plaintiffs are overruled, and the scheduling order entered by the Magistrate Judge on March 12, 2001, as amended by the order of the Magistrate Judge entered on March 25, 2001, shall govern the schedule to be followed in this case." (Doc. #104, p1, ¶2) (1)
11. The May 25, 2001 Court Order, (Doc. #104,) and the Scheduling Order, (Doc. #98,) renders the defendant's Motion to Stay Discovery Pending Ruling on Motion for Absolute and Qualified Immunity MOOT.
12. Considering the defendants' Motion to Stay Discovery Pending Ruling on Motion for Absolute and Qualified Immunity is MOOT , discovery must proceed with due speed, without further delay, to prevent expensive and unfair obstacles to the plaintiffs' case, in violation of Fed. R. Civ. Proc., Rule 1.
II. DISCOVERY FAILURES
13. The Scheduling Order instructed the parties to:
14. The defendants failed to submit the required initial disclosures on May 1, 2001.
15. On May 18, 2001, plaintiff Blackston called the Consumer Affairs Office, Attorney General of Alabama at 1-800-392-5658, to enquire about the defendants' failure to file initial disclosures.
16. Blackston was informed that the defendants' attorney of record Lavette Lyas-Brown was out of town for four (4) weeks and that Ellen Leonard or Bill Garrett would be replacing Lavette Lyas-Brown.
17. The plaintiffs were not notified about Lyas-Brown's absence in a timely manner or in a manner consistent with fair and reasonable practice and court procedures.
18. The replacement attorneys for the defendants did not return Blackston's call as requested on May 18, 2001 and have ceased all contact with the plaintiffs.
19. At this point the plaintiffs do not know who represents the defendants, other than the Alabama Attorney General's Office.
20. The defendants' attorneys show a blatant disregard for the discovery process governed by the present Scheduling Order.
21. The plaintiffs can only assume that the defendants' attorneys do not intend to comply with the Scheduling Order and will defy every attempt for the plaintiffs to obtain discovery and fairly prosecute their case.
22. Forty Two (42) days have past since May 1, 2001, the date initial disclosures were to be filed and the defendants have not filed initial disclosures.
23. Clearly delay tactics and time are on the defendants' side and consume precious hours and days of the plaintiffs' time for discovery completion.
24. If a party fails to make a disclosure required by Rule 26(a) , any other party may move to compel disclosure and for appropriate sanctions. Fed. R. Civ. Proc., Rule 37(a)(2)(A).
III. DUE PROCESS
25. The defendants failure to timely submit initial disclosures and discovery and the Magistrate Judge's numerous delays in ruling on the defendants' Motion to Stay Discovery Pending Ruling on Absolute and Qualified Immunity, violates the plaintiffs' procedural and substantive due process rights.
26. The defendants failure to timely submit initial disclosures and discovery and the Magistrate Judge's numerous delays in ruling on the defendants' Motion to Stay Discovery Pending Ruling on Absolute and Qualified Immunity, violates the plaintiffs' equal protection, equal access to the courts and equal treatment under the Fed. R. Civ. Proc., Rule 26, 34 and 37 and the Fifth Amendment to the United States Constitution.
27. "The Federal Rules of Civil Procedure are designed for the just, speedy, and inexpensive disposition of cases on their merits, not for the termination of litigation by procedural maneuver." Lindsey v. Prive Corp. 161 F.3d 886, 893 (5th Cir. 1998.)
28. "By and large, the Federal Rules of Civil Procedure are designed to minimize the need for judicial intervention into discovery matters. They do not eliminate that need, however." See ACF Indus. v. E.E.O.C., 439 U.S. 1081, 1087, 99 S. Ct. 865, 869, 59 L. Ed. 2d 52 (1979); Chudasama v. Mazda Motor Corp. 123 F.3d 1353, 1370 (11th Cir. 1997.)
29. "We realize that the Civil Justice Reform Act has led to strict case management deadlines, making it difficult for district courts to take the time to consider pretrial motions closely. See 28 U.S.C. § 471 (1994) (requiring district courts to implement plans intended in part to "ensure just, speedy, and inexpensive resolutions of civil disputes"). Nonetheless, district courts simply must not allow the most critical pretrial motions to be carried with the case until the final pretrial conference unless to do so is absolutely necessary." Chudasama v. Mazda Motor Corp. 123 F.3d 1353, n38 (11th Cir. 1997.) (emphasis added) (See ¶ 4, 436 days without ruling on immunity.)
30. Discovery abuses, if left unchecked, leave the defendants with an unfair advantage over the plaintiffs, allowing the defendants to destroy the plaintiffs' case by a simple pretrial motion in limine and/or unable to prove documentary evidence and obtain depositions in a timely manner.
31. The failure to provide discovery in a timely manner deprives the plaintiffs of their right to amend the Complaint to conform to the discovered evidence.
32. There is a clear pattern of discrimination against the pro se plaintiffs and favoritism toward defendants in pretrial matters particularly discovery. (2)
33. The delays and diversionary tactics by the defendants and the Magistrate Judge create an unconscionable and impossible atmosphere and forum for the plaintiffs to adjudicate their case.
34. Attorneys do not have to endure such abuse and the Magistrate Judge requires an unfair and extreme amount of patience and endurance from the plaintiffs.
35. The defendants and the Magistrate Judge's actions, if left unchecked, will destroy any chance the plaintiffs have to prosecute their case.
36. Lack of initial disclosures and discovery will prevent the plaintiffs from asking pertinent and relevant and material questions at trial. Every good attorney knows NOT to ask a question that does not already have an answer, to do so would be unpredictable and possibly fatal.
37. Plaintiffs will not be able to predict the outcome of unanswered questions and indeed should not be required to predict the outcome of unanswered questions.
38. "In conclusion, we reiterate the Supreme Court's statement in Strickland that the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Collier v. Turpin, 177 F.3d 1184, 1204 (11th Cir. 1999.)
39. Another recent and equally famous case of official gerrymandering that diminishes the public's view of the judiciary says it well. While there may not be a single person in the United States who doesn't think McVeigh is guilty as charged, that has noting to do with the fairness of the process that convicted him. And a judiciary that has sworn to uphold due process can't ignore the fact that McVeigh's day in court was tainted by the FBI's blundering or was it willful negligence? Make no mistake. This isn't a matter of "liberal judges" or "legal technicalities." This is a monumental failure of the prosecution to supply information that any defendant - Timothy McVeigh or John Q. Public - is entitled to by law. If what eventually happens next in the McVeigh case doesn't square with your view of justice, put the blame where it belongs. - The Huntsville Times - May 20, 2001.
WHEREFORE, the Plaintiffs respectfully request the Court to:
1. Order the defendants to comply with the Initial Disclosures section of the Scheduling Order, pursuant to Fed. R. Civ. Proc. Rule 26(a) and per the Scheduling Order of this court (Doc. #98.)
2. Order the defendants to immediately comply with the plaintiffs' discovery requests, pursuant to Fed. R. Civ. Proc., Rule 34(b).
3. Enter an Order for contempt and sanctions against the attorneys of record, Bill Pryor and Lavette Lyas-Brown for disobeying the Scheduling Order and Fed. R. Civ. Proc., Rule 26(a) (initial disclosures) and for non-compliance with court orders and properly demanded discovery, pursuant to Fed. R. Civ. Proc., Rule 37(a)(2.) (contempt and sanctions)
4. Provide any other or different relief the Court deems appropriate.
Respectfully submitted on June 11, 2001
James R. Blackston
Bradley W. Barber
Judge's Order on this Motion to Compel
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Notice to Produce
Comes now Plaintiffs Blackston and Barber to serve notice upon the defendants, and request a production of the following:
1. A copy of the Internal Operating Procedures, Constitution, By-Laws or document that governs the operation of the Child Support Committee.
2. A copy of the contract entered into between Policy Studies, Inc., with the State of Alabama or one of its agencies, that authorized Policy Studies, Inc to submit a proposal entitled - Updated Child Support Schedule, State of Alabama, January 27, 1999.
3. A copy of any other contract entered into between Policy Studies, Inc.. and the State of Alabama or one of its agencies, concerning child support guidelines for the past ten (10) years.
4. A copy of any correspondence including but not limited to books, pamphlets, documents, letters, memos, faxes, reports and etc. concerning Policy Studies, Inc.'s contract with the State of Alabama's child support guidelines update process.
5. A copy of any telephone call logbook entries or method used to calculate the number of calls and duration of telephone conversations concerning the above contract between Policy Studies Inc., and the State of Alabama or one of its agencies.
6. A copy of all telephone bills paid by the Administrative Office of Courts, for the past three (3) years.
7. A copy of any company promotional material used to promote Policy Studies Inc.'s Child Support Guidelines Proposals and Child Support Collection.
8. A copy of any books, handouts, pamphlets, lesson materials and etc., used or presented in the Judicial Conference on January 21, 1999, concerning children or child support guidelines.
9. Copies of all expense vouchers for all members of the Alabama Supreme Court's Committee on Child Support Guidelines and Enforcement and AOC employees associated with the Child Support Committee, since February 1995.
10. Copies of all letters, notices and correspondence relating to meetings, functions or purpose of the 1999 child support update process or in reference thereto, since February 1995.
11. Copies of all letters, notices and correspondence to the Child Support Committee's members and Dr. Robert G. Williams, of Policy Studies, Inc., relating to meetings, functions or purpose of the 1999 child support update process or in reference thereto, and Dr. Robert G. Williams role in the Child Support Committee or update process, since February 1995.
12. Copies of all letters, notices and correspondence to the Child Support Committee's members and the Office of Child Support Enforcement, 370 L'Enfant Promenade, SW, Washington, DC 20447, since February 1995.
13. Copies of all letters, notices and correspondence to the Child Support Committee's members and AOC employees concerning the Judicial Conference on January 21, 1999.
14. Copies of all letters, notices and correspondence to the Child Support Committee's members and AOC employees associated with the Child Support Committee, concerning any Judicial Conference wherein child support was discussed since February 1995.
15. Copies of all letters, notices and correspondence to the public, including but not limited to, all published notices in newspapers, magazines, periodicals, newsletters and law journals, since February 1995.
16. Copies of all letters, notices and correspondence, including but not limited to, references of dates, times and places concerning any or all meetings, conferences, and conventions, etc. held by Child Support Committee or AOC, since February 1995.
17. Copies of all letters, notices and correspondence, including but not limited to, references of dates, times and places concerning any or all meetings, conferences, and conventions, etc. held by any subcommittees of the Alabama Supreme Court's Advisory Committee on Child Support Guidelines and Enforcement, since February 1995.
18. Copies of all audio, visual and video presentations concerning the operations, purpose and functions of the 1999 child support update process or in reference thereto, since February 1995.
19. Copies of all radio and television announcements, concerning the 1999 child support update process or in reference thereto, presented to any radio or television station in Alabama, since February 1995.
20. Copies of radio or television station's programs where the operations, functions, or purposes of the Child Support Committee were discussed, since February 1995.
21. Copies of all notes, minutes and records made, concerning the 1999 child support update process or in reference thereto, since February 1995.
James R. Blackston
Bradley W. Barber
You may comply with this Notice by providing legible copies of the items to be produced to plaintiff James R. Blackston whose name appears on this Notice on or before March 31, 2000. You may condition the preparation of the copies upon the payment in advance of the reasonable cost of preparation. You may mail or deliver the copies to James R. Blackston whose name appears on this Notice and thereby eliminate your appearance. This will not be a deposition; No testimony will be taken at this time.
FOOTNOTES
1. The plaintiffs wish the Court to take judicial notice that the Scheduling Order was
amended by Order of the Court on April 25, 2001 and not March 25, 2001. (See Doc. #102.)
2. The plaintiffs, even though pro se, are entitled to be treated with fairness and equity in conformance to Federal Rules of Civil Procedure in all pretrial matters and should not be targeted for abuse and subsequent denial of due process by defendants' counsel as a tactic for evasion and delay that shows contempt for court orders.