Motion to Strike
Motion to Set Pre-trial Conference

Come now the plaintiffs in the above styled cause and moves this Honorable Court to Strike the defendant's frivolous response and move this Court to proceed with a Pre-trial Conference and in support, state as follows:

1. Counsel for said defendants has entered a frivolous response to plaintiffs Verified Complaint and Motion for Injunctive Relief and states that the defendants have not been properly served.

2. The following facts and Memorandum of Law details how the defendants have been properly served and are now in default.

Memorandum of Law

3. Service upon the defendant State of Alabama is pursuant to the law of the state, Fed. R. Civ. Proc., Rule 4(j)(2), with service to be perfected upon the Attorney General of the State, Ala. R. Civ. Proc., Rule 4(c)(10.)

4. Service upon the individuals is pursuant to the law of the State of Alabama, Fed. R. Civ. Proc., Rule 4(e)(1).

5. In either case, Ala. R. Civ. Proc., Rule 4.1(c) provides for service by certified mail upon written request by the plaintiff.

6. The plaintiffs filed with the U.S. District Court a written request with the required self-addressed, stamp envelopes necessary for service by certified mail, along with the Verified Complaint and Motion for Injunctive Relief, on March 22, 1999 (See Exhibit A.)

7. Service by certified mail shall be deemed complete and the time for answering shall run from the date of delivery to the named addressee or the addressee's agent as evidenced by signature on the return receipt, Ala. R. Civ. Proc., Rule 4(c)(3).

8. Counsel Lyas-Brown states in her response, Appearance of Counsel, Waiver of Service, Request for Extension of Time to Respond to Complaint, Item 4, that "a copy of the complaint was delivered to the defendants by certified mail on March 30 and 31, 1999."

9. "Unless a different time is prescribed in a statute of the United States, a defendant shall serve an answer within 20 days after being served with the summons and complaint ...," Fed. R. Civ. Proc., Rule 12(a)(1)(A).

10. To avoid costs, the plaintiff may, at the option of the plaintiff, notify a defendant of the commencement of the action and request that the defendant waive service of a summons. Fed. R. Civ. Proc. Rule 4(d)(2).

11. The plaintiffs are NOT obligated to request a waver of service, and therefore did not request the defendants to waive service of process. Fed. R. Civ. Proc. Rule 4(d)(2)

12. Defendants do not have an addition 60 days to file an Answer, pursuant to Fed. R. Civ. Proc., Rule 4(d)(2)(G)(3.)

13. Defendants admit in failing to respond in a timely manner and therefore, have waived all defenses enumerated in Fed. R. Civ. Proc., Rule 12 and 56.

14. Counsel's frivolous response is a deliberate attempt to circumvent orderly rules of court and shows a depraved indifference to the just, orderly and inexpensive administration of justice.

15. Defendants are in Contempt of Court and therefore, in accordance to their own law, are not entitled to any special favors, Code of Alabama, 1975 § 12-1-7 thru 11 and Hawthorne v. State, 611 So. 2d 436 (Ala. Crim. App. 1992.)

16. For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again. Matthew 7:2 KJV.

Wherefore, plaintiffs respectfully request this Honorable Court to Strike the defendant's frivolous response and move this Honorable Court to set a date for Pre-trial Conference.

Respectfully submitted,

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