PLAINTIFFS' RESPONSE TO MAGISTRATE JUDGE ORAL ORDER ON 12 APRIL 2002

RENEWED MOTION FOR CONTEMPT

Come now Plaintiffs Blackston and Barber and submits the following, as Ordered by the Magistrate Judge in the Scheduling Conference on 12 April 2002 and Order (Doc. # 131).

I. NON-PARTY CONTEMPT

1. On 14 August 2001 and 16 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. The non-parties did not serve upon the party 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).

4. If the Defendants 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)

5. 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)

6. 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.

7. The Plaintiffs filed a Motion to Compel Non-Party Compliance with Subpoena Duces Tecum on 11 September 2001. (Doc. #110)

8. 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)

9. The Magistrate Judge instructed the defendants' attorney to bring non-party Bob Bradford to the hearing scheduled for 19 April 2002.

II. NON-PARTY SUBPOENA

In re Grand Jury Subpoena Duces Tecum dated May 29, 1987, 834 F.2d 1128, 1131 (2d Cir.1987) ("Material owned by one person may, at least under some circumstances, be subpoenaed from a third party non-owner in possession without impinging on the Fifth Amendment rights of the owner.") See generally 1 W. LaFave & J. Israel, Criminal Procedure § 8.12(d), at 696-97 (1984). Our predecessor circuit has applied this rationale to enforce a subpoena calling for production of tax records in the hands of an accountant. See, e.g., United States v. Jones, 630 F.2d 1073 (5th Cir.1980). In Re Heller, 921 F.2d 1184, 1187 (11th Cir. 1991)

III. DEFENDANTS' CONTEMPT

(a). Plaintiffs' Petition for Rule Nisi clarified

10. The Court entered an Order on 10 January 2001 ordering that the Plaintiffs Petition for Rule Nisi and Injunctive Relief (Doc. # 80), is denied stating, "Upon consideration of the Recommendation and Objections thereto, the court agrees that the claims asserted are already before the court . . . . . . . . ." emphasis added (Doc. #87, pg. 1, ¶2)

11. The Plaintiffs filed a Motion to Clarify the "Contempt of Court" requested in Plaintiffs' Petition for Rule Nisi and Injunctive Relief on 22 January 2001. (Doc. #89)

12. The Court entered an Order on 24 January 2001 granting Plaintiffs' Motion to Clarify, directing, "The case will proceed on the Plaintiffs' claims for relief, including the contempt petition referenced in the Motion to Clarify, for violation of the First Amendment and for breach of contract." (Doc. #91, pg. 1-2, ¶4).

13. The contempt petition referenced in the Motion to Clarify refers to the Plaintiffs' Petition for Rule Nisi and Injunctive Relief, filed on 04 December 2000. (Doc. #80)

14. The Plaintiffs' sought contempt proceedings and injunctive relief against defendants Dorrough, Gregory and Maddox for an additional, continuing and ongoing violation of the Release and Settlement Agreement.

15. The Court's Order, (Doc. #91) gave full notice that Doc. #91 is a dispositive Order by including as an attachment, the Court's "Civil Appeals Checklist" and therefore all claims of the defendants were fully and completely adjudicated, including immunity defenses.

16. The Court entered an Order on 24 January 2001 stating that, "An Answer having been filed by the Defendants in this case, the Magistrate Judge is DIRECTED to take the appropriate steps to enter a scheduling order in this case. (Doc. 92, pg. 1, ¶1)

17. Based upon the above Order the Magistrate Judge entered a Scheduling Order on 12 March 2001. (Doc. # 98)

18. The Defendants were put on plain notice by (Doc. #91 & #92) that their immunity claims had been ruled "moot" by the Honorable Judge Albritton.

The Magistrate Judge confirms the earlier admonition that this case shall proceed in compliance with Judge Albritton's previous orders. ⁽¹⁾

19. The Defendants failed to comply with any of the provisions enumerated in the Scheduling Order, disregarding the strict time constraints and deadlines for completion of discovery and dispositive motions, etc.

20. The Defendants did not filed Initial Disclosures by 1 May 2001 as Ordered by Scheduling Order (Doc. #98, pg. 1, ¶1).

21. The Defendants did not produce any discovery by 1 October 2001 as required by the Scheduling Order (Doc. #98, pg. 2, ¶4) ⁽²⁾

22. The Defendants did not exchange a Witness lists as required by the Scheduling Order (Doc. #98, pg.4, ¶7).

(b). Contempt for the Eleventh Circuit's Mandate dated 09 June 1997 (See Exhibit A, herein attached)

23. The contempt for the Eleventh Circuit Mandate, dated 09 June 1997 is properly before the Court based on ¶ 9 of the Release and Settlement Agreement, wherein the parties agreed as follows:

The Release and Settlement Agreement is enforceable as if a contract between the parties. A violation of the agreement may be used as grounds for a lawsuit for breach of contract in state or federal court.

24. Under Alabama contract law,

A legal duty is "an obligation arising from a contract of the parties or the operation of the law." Black's Law Dictionary 804 (5th ed. 1979).

A legal duty to exercise care, therefore, arises where the parties are bound by contract, Pugh v. Butler Telephone Co., supra, or where the obligations are "expressly or impliedly imposed by statute, municipal ordinance, or by administrative rules or regulations, or by judicial decisions." 57 Am.Jur.2d, Negligence § 36 at 382 (1988). King v. National Spa & Pool Inst., Inc, 570 So2d 612, (Ala. 1990) (emphasis added)

25. The Release and Settlement Agreement is the product and part of the final disposition of a lawsuit concerning the same defendants in the present case, brought by the Plaintiffs in U.S. District Court, Middle District of Alabama in 1993.

26. The district court dismissed the 1993 suit with prejudice after the Release and Settlement Agreement was signed by all parties and their attorneys.

27. Blackston and Barber appealed the district court's denial of their motion to amend or reconsider its order dismissing their suit with prejudice, questioning the validity and the ability to enforce the Release and Settlement Agreement.

28. The Eleventh Circuit AFFIRMED the dismissal and issued the following mandate that effectively ratified the Release and Settle Agreement, stating as follows:

A district court is not required to hold an evidentiary hearing to decide a motion to dismiss based on a settlement agreement unless there is a material dispute concerning either (1) the authority of an attorney to enter into the settlement agreement on behalf of his clients, or (2) the terms or existence of a settlement agreement. Murchinson v. Grand Cypress Hotel Corp., 13 F.3d 1483, 1486 (11^th Cir. 1994).

It is clear that in this case, the district court was not aware of either type of material dispute when presented with the motion to dismiss. Instead, it earlier had been presented with a complete settlement agreement signed not only by Williams, but also by Blackston and Barber themselves . . . . . . (Eleventh Circuit's Mandate, Exhibit A, pg. 2-3, ¶2-3)

29. The Release and Settlement Agreement was ratified by the Eleventh Circuit and is a mandate from the Eleventh Circuit and becomes the law in this case. ⁽³⁾

30. The Plaintiffs contend that the Eleventh Circuit's mandate and ratification of the Release and Settlement Agreement is tantamount to a fully enforceable Consent Decree. "Consent" because all parties consented and agreed to the terms of the Release and Settlement Agreement and "Decree" because the Eleventh Circuit mandated the Release and Settlement Agreement to be final and enforceable as is.

31. The Plaintiffs were Ordered by the Eleventh Circuit to accept the terms of the Release and Settlement Agreement. Due process and equal protection dictate the Defendants are bound by the same mandate from the Eleventh Circuit.

32. As such, the defendants violate the mandate of the Eleventh Circuit in every respect by violating the Release and Settlement Agreement.

33. Although bound by the Eleventh Circuit's decision, dated 09 June 1997, that directly consummates the Release and Settlement Agreement, the defendants choose to disobey the Eleventh Circuit mandate by violating ¶6, and 10 of the Release and Settlement Agreement . (See Verified Complaint, Exhibit A)

(c). Contempt of Alabama Supreme Court's Order (See Verified Complaint, Doc. # 1, Claim One, pg. 5) ⁽⁴⁾

34. The Alabama Supreme Court Ordered the Defendants to appoint Blackston to the Alabama Supreme Court's Advisory Committee on Child Support Guidelines Updates and Enforcement (Committee) on 04 April 1996. (See Exhibit B, herein attached)

35. The Defendants failed to appoint Blackston to the Committee. Blackston's name appeared on a list of Committee members but Blackston never received any notices nor was Blackston given an opportunity to participate in any Committee meetings and decisions or otherwise participate in any fashion deserving a bonafide Committee member.

(d). Contempt for Court Order (Doc. # 35) and Scheduling Order (Doc. # 40)

36. The Honorable Judge Albritton issued an Order on 16 February 2000 stating, "The case will proceed on the Plaintiffs' First Amendment claim and state law breach of contract claim." (Doc. #35, pg. 9, ¶2) ⁽⁵⁾

37. The Defendants did not object to the 16 February 2000 Order (Doc. #35) in any way.

38. Based on the above Order the Magistrate Judge entered a Scheduling Order on 06 March 2000. (Doc. #40)

39. The Defendants did not comply with Scheduling Order filed on 06 March 2000, instead disregarded Court Order (Doc #35) and filed a Motion to Stay Discovery pending ruling on absolute and qualified immunity on 20 March 2000. (Doc. # 46)

40. The Plaintiffs filed objections to the Defendants' Motion to Stay discovery pending ruling on absolute and qualified immunity on 30 March 2000.

41. The Plaintiffs were concerned that the Defendants were delaying discovery in order to shred important documents in this case.

42. The Magistrate Judge entered an Order granting Motion to Stay discovery pending ruling on absolute and qualified immunity on 31 March 2000. (Doc. #53)

43. The Plaintiffs contend the Defendants failed to comply with Court Order (Doc. #35) and filed a diversionary motion to stay discovery that obstructs the Plaintiffs' ability to prosecute their case for more than two (2) years.

(e) Contempt for Court Order (Doc. # 64)

44. The Court in its Memorandum Opinion and Order dated 03 July 2000 gave the Plaintiffs until 13 July 2000 to, "file a new Amended Complaint, should they choose to do so."

45. The Plaintiffs rely upon the above Order to mean the case will proceed and the Defendants' immunity defenses are moot.

46. The Defendants disregard Court Order (Doc. # 64) and continue asserting immunity defenses and violating ¶3 of the then current Scheduling Order, (Doc. # 40,pg. 1, ¶3)

The Defendants disregard Court Order (Doc. # 40) and violate ¶4 of the Scheduling Order, (Doc. #40. pg. 3, ¶4)

(f). Contempt for amended Scheduling Order (Doc. #102)

47. The Magistrate Judge amended the 12 March 2001 Scheduling Order on 25 April 2001 (Doc. #102)

48. The Court entered an ORDER on 25 May 2001, overruling all objections to the amended Scheduling Order stating, "the scheduling order entered by the Magistrate Judge on March 12, 2001 as amended . . . . . shall govern the schedule to be followed in this case." emphasis added (Doc. #104, pg. 1, ¶2)

49. The Defendants continue in their defiance of the amended Scheduling Order. (Doc. # 102)

50. The Plaintiffs filed a Motion to Compel Initial Disclosures and Discovery and Motion to Compel Compliance with Scheduling Order on 13 June 2001. (Doc. #105)

(g). Contempt for amended Scheduling Order (Doc. #121) and Fraud Upon the Court

51. The Defendants' counsel, after receiving four (4) Court Orders ⁽⁶⁾ dismissing their defenses, caused fraud upon the Court by continuing to raise moot defenses and caused the court to rely on their misrepresentation.

52. Apparently the Court due to its harried work schedule, relied upon erroneous assertions and defenses and rendered Court Order (Doc. #106) stating, "The court recognizes, however, that because of its rulings the parties have not engaged in discovery, and the substantial pending matters before this court has prevented any further substantive rulings.." (Doc. #106, pg. 1, ¶2)

53. Based upon the above, the Magistrate Judge entered another Scheduling Order on 13 March 2002. (Doc. # 121).

54. Because the Defendants refused to comply with all previous and present Scheduling Orders concerning strict time constraints, the Plaintiffs were forced to ask for another amendment to the Scheduling Order, (Doc. #121).

55. After four (4) Scheduling Orders, this case still does not have a workable Scheduling Order.

56. The Defendants' misrepresentations cause Doc. #106 to become a fraud upon the court.

57. "Fraud upon the court" is limited to "'that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.'" Brown v. Kingsberry Mortgage Co., 349 So. 2d 564, 568 (Ala. 1977) (quoting 7 Moore's Federal Practice P 60.33 at 515 (1975)) Ex parte Gilbert 759 So.2d 547, (S.Ct. 1999)

58. Continuing on in defiance of Scheduling Order, (Doc. #121), the Defendants presented the Plaintiffs with an incomplete response to Initial Disclosures on 5 April 2002.

59. The Defendants Initial Disclosures pursuant to Scheduling Order (Doc. # 121) failed to comply with the 13 March 2002 Scheduling Order and did not address all the issues enumerated in Fed.R.Civ.Proc., Rule 26

IV. CONCLUSION

60. The Plaintiffs relied upon Court Orders (Doc. #35, Doc. #64, Doc. #91 and Doc. #92) and numerous Scheduling Orders to proceed within this case.

61. For seven (7) months the non-parties ignore a lawfully issued subpoena duces tecum.

62. The Defendants and/or their attorneys refuse to comply with any of the above Court Orders and refuse to comply with any of the Scheduling Orders.

63. The Plaintiffs take personal finances from their families and spend an enormous amount of time to process the same issues over and over, concerning the improper compliance with Scheduling Orders and Orders of this Court.

V. CIVIL CONTEMPT OF COURT

Also 28 U.S.C. § 401 gives a court of the United States the

"power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as (1)Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; (2) Misbehavior of any of its officers in their official transactions."

Fed.R.Civ.P., Rule 37 apply to Failure to Make Disclosure or Cooperate in Discovery.

The failure to obey scheduling orders and mandates of the Eleventh Circuit is obstructing the administration of justice and denies the Plaintiffs due process and equal protection of the laws as guaranteed by the Fourteenth Amendment of the U.S. Constitution.

District courts enjoy "wide discretion to fashion an equitable remedy for [civil] contempt that is appropriate to the circumstances." Guardian Pools, 828 F.2d at 1515. These sanctions may serve one of two broad purposes: (1) coercing the contemnor to comply with a court order, or (2) compensating a party for losses suffered as a result of the contemptuous act. See Jove Engineering Inc. v. IRS, 92 F.3d 1539, 1557 (11th Cir.1996) (citing Guardian Pools, 828 F.2d at 1515). United States v. City of Miami, 195 F.3d 1292, 1298 (11th Cir. 1999).

It is appropriate to reiterate what we have said in the past as to how injunctions, including consent decrees, are to be enforced. They are enforced through the trial court's civil contempt power. See In re Grand Jury Proceedings, 142 F.3d 1416, 1424 (11th Cir. 1998) (injunction); Newman, 683 F.2d at 1317-19 (consent decree). If the plaintiff (the party obtaining the writ) believes that the defendant (the enjoined party) is failing to comply with the decree's mandate, the plaintiff moves the court to issue an order to show cause why the defendant should not be adjudged in civil contempt and sanctioned. See Newman, 683 F.2d at 1318; see also Thomason v. Russell Corp., 132 F.3d 632, 634 n.4 (11th Cir. 1998); Wyatt by & Through Rawlins v. Fetner, 92 F.3d 1074, 1078 n.8 (11th Cir. 1996). The plaintiff's motion cites the injunctive provision at issue and alleges that the defendant has refused to obey its mandate. See Wyatt, 92 F.3d at 1078 n.8. If satisfied that the plaintiff's motion states a case of non-compliance, the court orders the defendant to show cause why he should not be held in contempt and schedules a hearing for that purpose. Reynolds v. Roberts, 207 F.3d 1288, (11th Cir. 2000)

For instance, if a party is enjoined to produce certain documents and then destroys those documents, coercive sanctions would no longer be available. Under those circumstances, a punitive contempt sanction would be an important means of vindicating the court's authority. The injunction nevertheless would have been appropriately entered, because coercive sanctions were a viable option at the time the injunction was entered and thus the injunction provided meaningful relief to the adverse party.

A court may enter an injunction that is not enforceable through coercive contempt sanctions when the court enters the injunction in aid of its jurisdiction. For instance, if a government official is enjoined to perform a certain act, and another individual tries to prevent the official from performing the act, the court could issue an injunction commanding the individual to cease his interference. Such an injunction would be appropriate despite not being enforceable through coercive sanctions, because the injunction was not entered as a form of relief for a party to a lawsuit, and thus there is no issue as to whether that party would have an adequate remedy at law. Cf. 18 U.S.C. § 1509 (1994) (authorizing injunctive relief against persons who forcefully interfere with the performance of duties under a court order, regardless of whether the conduct enjoined is also independently criminal). Chandler v. James, 180 F.3d 1254, (11th Cir. 1999)

Wherefore premises considered the Plaintiffs' request this Honorable Court as follows:

1. Hold the defendants in Contempt of Court for violation of the Eleventh Circuit's mandate (Exhibit A, attached);

2. Hold the defendants in Contempt of Court for violation of the Alabama Supreme Court's Order, (Exhibit B, attached);

3. Hold the defendants in Contempt of Court for violation of the Court Order (Doc. # 35) and Scheduling Order (Doc. # 40);

4. Hold the defendants in Contempt of Court for violation of the Court Order (Doc. # 64);

5. Petition for Rule Nisi (Doc. #80);

6. Hold the defendants in Contempt of Court for violation of Scheduling Order (Doc. # 98);

6. Hold the defendants in Contempt for violation of the amended Scheduling Order (Doc. #102);

7. Hold the defendants in Contempt for violation of the amended Scheduling Order (Doc. #121) and

8. Motion to Compel Non-Party Compliance with Subpoena Duces Tecum filed on 11 September 2001. (Doc. #110).

Respectfully submitted on 16 April 2002

________________________

James R. Blackston

________________________

Bradley W. Barber

Footnotes:

1. By separated order entered on this date, the court has denied the plaintiffs' most recent motion to amend their complaint and re-affirmed the District Judge's earlier admonition that this case shall proceed in compliance with his previous orders. (Magistrate Order, Doc. #117, pg. 2, ¶1)

2. It is the policy of the Alabama Attorney General's Office, in direct contradiction of Uniform Scheduling Order of the Middle District and Fed.R.Civ.P, Rule 1 if the defendants are required to submit to discovery in a §1983 action, there will be no settlement negotiations and they will insist on going to trial.

3. To ratify is to approve and sanction; to make valid; to confirm; to give sanction to. Black's Law Dictionary, (6^th Ed. 1990) pg. 1262 -- To confirm is to complete or establish that which was uncertain; to make firm or certain; to give new assurance of truth or certainty; to put aside past doubt; to give approval to. Black's Law Dictionary, supra, pg 298.

4. Supplemental jurisdiction permits parties to append state claims in federal cases, provided that the state-law claims "form part of the same case or controversy" as the federal claims. 28 U.S.C. § 1367(a); see Shanaghan v. Cahill, 58 F.3d 106, 109 (4th Cir.1995) (recognizing that 28 U.S.C. § 1367 codified the doctrine of pendent jurisdiction derived from United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966)). Crosby v. Paulk, 187 F.3d 1339 (11th Cir. 1999)

5. The Defendants knew and understood fully as early as 21 March 1995 that the Plaintiffs had a First Amendment right to record the Committee's proceedings. (See Exhibit C, herein attached, Letter from Office of Attorney General, ¶2)

6. Court Order (Doc. # 35) stated "The case will proceed on the Plaintiffs' First Amendment claim and state law breach of contract claim." (Doc. #35, pg. 9, ¶2); Court Order (Doc. #64) gave the Plaintiffs an opportunity to more specifically plead RICO; Court Order (Doc. #91) stated, "The case will proceed on the Plaintiffs' claims for relief, including the contempt petition referenced in the Motion to Clarify, for violation of the First Amendment and for breach of contract." (Doc. #91, pg. 1-2, ¶4); (Doc. # 92) DIRECTED the Magistrate Judge to take the appropriate steps to enter a scheduling order in this case.