UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
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JAMES R. BLACKSTON, |
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Case No.: 99-A-295-N |
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MOTION TO STRIKE Come now Plaintiffs Blackston and Barber and submits the following in response to the Defendants Response to Renewed Motion for Contempt and non-party Lois Brasfield s Affidavit. 1. On 08 August 2001 and 14 August 2001, the Plaintiffs served a Subpoena Duces Tecum on Bob Bradford, Director of Finance for the Administrative Office of Courts and Lois Brasfield, an attorney for the Department of Human Resources, respectively. 2. A person not a party to the action may be compelled to produce documents and things or to submit to an inspection as provide in Fed. R. Civ. P. Rule 45. (See Fed. R. Civ. Proc., Rule 34(c)) 3. Bob Bradford and Lois Brasfield failed to object or otherwise respond to the Subpoena Duces Tecum within 14 days after service of the subpoena. 4. Non-parties Bob Bradford and Lois Brasfield did not serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials as required by Fed. R. Civ. P., Rule 45(c)(B). 5. If the non-parties were unhappy with the subpoena duces tecum they should have filed written objections, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service. Fed. R. Civ. P., Rule 45(c)(B) 6. Neither Bob Bradford nor Lois Brasfield cite any authority supporting their argument that non-parties to a suit are entitled to absolute or qualified immunity. Moreover, Bob Bradford and Lois Brasfield cite no cases to support their argument that exceptions to this rule under federal law are strictly and regularly applied. The Court should reject non-parties Bob Bradford and Lois Brasfield s claims of immunity as frivolous. Such mere non-legally enforceable misstatements of law are not the law and cannot establish the law. 7. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. Fed. R. Civ. P., Rule 45(e) 8. The non-parties choice to ignore the subpoena prevents the Plaintiffs from prosecuting their case in a timely manner and adds considerable confusion to the issues and adds considerable expense to the case. 9. The Plaintiffs filed a Motion to Compel Non-Party Compliance with Subpoena Duces Tecum on 11 September 2001. (Doc. #110) 10. The Magistrate Judge entered an ORDER TO SHOW CAUSE why motion to compel non-party compliance should not be granted on 13 March 2002 (Doc. # 119) 11. In the Scheduling Conference on 12 April 2002, the Magistrate Judge instructed the Defendants attorney to bring non-party Bob Bradford to the Status Conference/Hearing scheduled for 19 April 2002. 12. Lois Brasfield was not commanded to appear in the Status Conference/Hearing on 19 April 2002. 13. In the Status Conference/Hearing on 19 April 2002, Bob Bradford, on the witness stand under penalty of perjury, denied having been served with the Subpoena Duces Tecum and that the Subpoena Duces Tecum had somehow appeared on his desk. 14. In the Status Conference/Hearing on 19 April 2002, the Plaintiffs produced the Proof of Service that Bob Bradford was served with the Subpoena Duces Tecum by J. E. Scott, Private Investigator, 100 Commerce St., Suite 1000, Montgomery, Al 36104. (See Exhibit A, Doc. # 137) 15. The Proof of Service indicated the Subpoena Duces Tecum was served upon Bob Bradford by personal service on 08 August 2002. (See Exhibit A, back page, Doc. # 137) 16. On hearing the evidence, the Magistrate Judge Ordered the Plaintiffs to have their process server, Mr. J. E. Scott, file an affidavit addressing the following issues: (1) Who was the subpoena served on? (2) How did Peg Walker s name get written over with Bob Bradford s name? (3) Any info Mr. Scott knows about the subpoena being placed on Bob Bradford s desk. 17. Process Server and Private Investigator, J. E. Scott s affidavit was filed with the Plaintiffs Response to Magistrate Judges s Oral Order on 19 April 2002" on 24 April 2002. (See J. E. Scott s Affidavit, Exhibit B, Doc. # 137)(An additional copy herein attached as Exhibit A.) 18. Additionally, the Magistrate Judge ordered the Defendants attorney, Alabama Assistant Attorney General, Lavette Lyas-Brown, to obtain an AFFIDAVIT from non-party Lois Brasfield stating whether she (Brasfield) had been served with a Subpoena Duces Tecum. 19. The Plaintiffs received an affidavit from Lois Brasfield on or about 23 April 2002 containing immaterial statements of fact. Lois Brasfield states, On April 23, 2002, I reviewed the documents at the Department of Human Resources regarding the Plaintiff s (sic) subpoena in the above -styled case. Upon my examination, there was no documentation to reflect that I was personally served with the Plaintiff s (sic) subpoena in August 2001. 20. The Plaintiffs personally served non-party Lois Brasfield, through their process server, J. E. Scott, Private Investigator, on 14 August 2001. (See Exhibit B, back page, herein attached.) Naturally their would not be any record associated with a subpoena personally served upon Lois Brasfield in the Department of Human Resources. The Department of Human Resources is not required to keep on file a subpoena that is personally served upon an individual. 21. Furthermore, Lois Brasfield s independent recollection as to whether I was personally served with the Plaintiff s (sic) subpoena is irrelevant. (See Brasfield s affidavit, attached to Non-Party Response of Lois Brasfield to Court s Order, ¶2, pg. #2, filed on 23 April 2002, Doc. # 135.) Properly certified documents and Proof of Service point that Lois Brasfield was personally served with the subpoena. (See Exhibit B, herein attached) 22. Therefore, Lois Brasfield s affidavit should be stricken as an insufficient defense and containing immaterial, irrelevant and impertinent facts in accordance with Fed. R. Civ. Proc., Rule 12(f) 23. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Fed. R. Civ. Proc., Rule 12(f). 24. Additionally, all statements, paragraphs or objections in the Defendants Response to Renewed Motion for Contempt, including but not limited to # 6, 7, 8, 9, 10, 11, 12 should be stricken from the record as being untimely. Bob Bradford and Lois Brasfield failed to object or otherwise respond to the Subpoena Duces Tecum within 14 days after service of the subpoena. Wherefore premises considered the Plaintiffs respectfully request this Honorable Court to: 1. Strike all statements, paragraphs or objections, in the Defendants Response to Renewed Motion for Contempt, including but not limited to # 6, 7, 8, 9, 10, 11, 12 relating to non-parties Bob Bradford and Lois Brasfield s failure to compel with a lawfully issued subpoena. 2. Strike Lois Brasfield s Affidavit as an insufficient defense and containing immaterial, irrelevant and impertinent facts in accordance with Fed. R. Civ. Proc., Rule 12(f) Respectfully submitted on 01 May 2002 [ Home]---[Search]---[Email]---[Access Page]---[Child Support] |
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