Non-Parties are in Contempt of Court

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. )
)
)
)
)
)
) Case No.: 99-A-295-N

MOTION FOR CONTEMPT FOR DEFENDANTS' FAILURE TO OBEY SCHEDULING ORDER

PLAINTIFFS' RESPONSE TO NON-PARTY RESPONSE OF BOB BRADFORD AND LOIS BRASFIELD TO ORDER TO SHOW CAUSE

MOTION TO APPOINT MEDIATOR

Come now Plaintiffs Blackston and Barber and respectfully request this Honorable Court to enforce it Orders through contempt proceedings and responds to the non-party response of Bob Bradford and Lois Brasfield to Order to Show Cause, (Doc. #125), filed on 28 March 2002 and submits the following:

A. DEFENDANTS' CONTEMPT

1. On 14 March 2000, the Defendants filed a Motion to Dismiss Amendment #2 to Verified Compliant (Doc. #43), and on 20 March 2000, the Defendants filed a Motion to Stay Discovery Pending a Ruling on Absolute and Qualified Immunity. The Court granted said Motion on 31 March 2000 (Doc. #53).

2. In the Defendants' Motion to Dismiss Amendment #2, the Defendants "[a]dopt and reassert herein, all previously filed pleadings and defenses asserted therein in response to the Plaintiffs' complaint and amendments." (See Doc. #43, pg. 2, ¶10) In short, the Defendants reassert absolute and qualified immunity within their Motion to Dismiss Amendment #2.

3. The court entered a final ruling on the defendants' Motion to Dismiss Amendment #2 on 3 July 2000 (Doc. #117, pg. 1, ¶3)

4. The Defendants entered an ANSWER in the case on 22 January 2001. (Doc. #90)

5. The court again recast the litigation in the Order dated 24 January 2001, stating the following:

The case will proceed on the Plaintiffs' claims for relief, including the contempt petition . . . for violation of the First Amendment and for breach of contract. (Doc. #91, pg. 1, ¶4)

6. When the court entered its culminating order on 24 January 2001 (Doc. #91), it admonished the Defendants that "[t]he case will proceed on the Plaintiffs' claims for relief, including the contempt petition ... for violation of the First Amendment and for breach of contract". (See Doc. #116, pg. 8-9, ¶4) ⁽¹⁾

7. The Court further reaffirmed the abrogation of the Defendants' immunity defenses on 13 March 2002 stating:

Upon the court's review of the entire record in this case, the Magistrate Judge finds that the parties should construe the court's order entered on 3 July 2000 (Doc. #64) as a complete ruling on all of the issues raised by the defendants in their motion to dismiss plaintiffs' Amendment #2. (Doc. #120, pg. 1, ¶2)

8. On 24 January 2001 the Court entered an Order directing the US Magistrate Judge to take the appropriate steps to enter a scheduling order in this case. (Doc. #92)

9. A Scheduling Order was entered on 12 March 2001. (Doc. #98) ⁽²⁾

10. The Plaintiffs objected to portions of the Scheduling Order, (Doc. #98) but the Plaintiffs' objections were overruled on 25 May 2001. (Doc. #104)

11. The Scheduling Order directed, among others, that the Defendants submit their initial disclosures and submit to discovery requests from the plaintiffs.

12. The Court ordered that the, "The Scheduling Order . . . . as amended by order of the Magistrate Judge . . . . shall govern the schedule to be followed in this case." (Doc. #104, pg.. 1, ¶2)

13. The Plaintiffs followed the Scheduling Order and provided the Defendants with initial disclosures and complied with the Scheduling Order in all respects, including initiating settlement negotiations. ⁽³⁾

14. The Defendants, to their own peril, rely upon issues that have long ago been decided in the Orders of this Court. Court Orders, Doc. #64 and #91 decided all immunity issues in a final appealable order on 3 July 2000 and 24 January 2001 respectfully. The Defendants choose NOT to appeal and the time for appeal has run.

15. A new Scheduling Order is in effect as of 13 March 2002. (Doc. #121) with new responsibilities and deadlines on the parties.

16. The parties are instructed "as the parties pursue their claims and defenses through DISCOVERY and otherwise, they are DIRECTED to limit their focus to the above-stated claims and no others." (Doc. #120, pg. 1, ¶3-4) (emphasis added)

17. The Plaintiffs object to the Defendants unlimited opportunities to assert defenses while the Plaintiffs are denied equal opportunity to amend their complaint. (In a separate objection, (Doc. #123), the Plaintiffs objected to the court's Scheduling Order, (Doc. #121) that omitted their right to amend the complaint in accordance with the US District Court, Middle District's UNIFORM SCHEDULING ORDER.)

B. NON-PARTY CONTEMPT

18. 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. ⁽⁴⁾

19. 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))

20. The non-parties 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).

21. 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)

22. The non-parties choose to ignore the subpoena for seven (7) months.

23. 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)

24. 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.

C. CONCLUSION

25. For seven (7) months the non-parties ignored a lawfully issued subpoena. The Defendants refuse to comply with the Scheduling Order and are in absolute rebellion against court orders.

Wherefore premises considered the plaintiffs respectfully request this Honorable Court to:

1. Hold the Defendants in contempt for numerous violations of this Honorable Court's Scheduling Orders and,

2. Hold the non-parties Bob Bradford and Lois Brasfield in contempt for refusing to obey a lawfully issued subpoena and,

3. Appoint an impartial mediator to facilitate the settlement negotiations and,

4. Consider the individual issues in this motion and grant those consistent with the court's findings.

Respectfully submitted on 01 April 2002

________________________

James R. Blackston

________________________

Bradley W. Barber

1. The plain language of court Orders (Doc. #64 and #91) is the functional equivalent of an order denying a Motion for Absolute and Qualified Immunity. The court understood the above and attached the standard CIVIL APPEALS CHECKLIST to Doc. #91. The Defendants choose to ignore Doc. #64 and #91 at their own peril. The Defendants continue to defy court orders and refuse to abide by this Honorable Court's Scheduling Orders. The court must protect the Plaintiffs' due process rights and enforce the strict time constants of the Scheduling Order.

2. The Scheduling Order Doc. #98 has been amended and a new Scheduling Order has been entered by the Magistrate Judge. (Doc. #121). The new Scheduling Order admonishes the parties to "read this order carefully. . . . . . All parties are expected to comply with this order in a timely manner, . . . ." (Doc. #121, n1) The same instructions have been in place since the Middle District adopted the UNIFORM SCHEDULING ORDER on 1 December 2000. The Defendants' defiance to the Scheduling Orders is inexcusable.

3. Defendants' counsel states that the Alabama Attorney General's policy is to cut off all settlement negotiations and go immediately to trial if the Defendants are required to produce discovery. The Defendants are NOT negotiating in good faith.

4. Lois Brasfield recently retired from the Alabama Department of Human Resources and is no longer an attorney for said Department.

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