Michael D. Waters Sr.
A clerk for the U.S. Magistrate overseeing my wife's employment lawsuit against Infinity Insurance is the son of a partner at a major corporate-defense law firm in downtown Birmingham. In fact, the father's law firm represents one of the primary defendants in the case.Does that explain why U.S. Magistrate T. Michael Putnam has unlawfully dismissed that defendant from the case--along with three corporate entities who are affiliated with her?
We don't have a solid answer to that question yet. But Putnam and his office clearly have a conflict of interest, one that should have forced his recusal from the outset. Instead, he has presided over the case for almost 20 months--a period marked by curious delays, questionable record keeping, failure to notify the plaintiff (Mrs. Schnauzer) of key hearings, and dismissals of corporate defendants that are not supported by law.
Throughout that time, Putnam never has disclosed that one of his chief clerks, Michael David ("David") Waters Jr., is the son of a partner in a firm that represents a defendant who, according to allegations in my wife's complaint, started the process that led to her unlawful termination at Infinity.
How best to explain the glaring conflict of interest? You need a scorecard to keep up with the players in Carol Shuler v. Infinity Property & Casualty et al (2:11-cv-03443-TMP), so we will offer an explanation in "scorecardy" fashion. Here it is:
* David Waters Jr. is a 2010 graduate of the University of Alabama School of Law. He is a chief clerk for Judge T. Michael Putnam in the Northern District of Alabama;
* David Waters' father is Michael David Waters Sr., a partner in the Birmingham office of the Jones Walker law firm, which has more than 375 attorneys in nine states and the District of Columbia.
Kary Bryant Wolfe
* Kary Bryant Wolfe, special counsel in Jones Walker's Birmingham office, represents defendant Angie Ingram in my wife's lawsuit. Ingram is the principal at the Ingram & Associates debt-collection law firm, and my wife alleges that Ingram participated in a conspiracy to cause her unlawful termination at Infinity after we took steps to aggressively pursue discovery in a lawsuit against Ingram and other entities under the U.S. Fair Debt Collection Practices Act (FDCPA).* Is it likely that David Waters' Sr. and Kary Bryant Wolfe are fairly close colleagues? Well, they both work at Jones Walker's Birmingham headquarters at One Federal Place downtown (also the home, by the way, of the august firm Bradley Arant, with its ties to Mexican drug cartels and other unsavory activities). Waters Sr. works in the firm's Banking and Financial Services Practice Group. Wolfe is in the Business and Commercial Litigation Practice Group. Is their quite a bit of overlap in those two groups, with lawyers from one often working with lawyers from the other? Certainly sounds like it.
Why does it matter that David Waters Sr.'s son works as a clerk for the judge who is overseeing a case in which the Jones Walker firm has a decided interest? Law clerks are glorified "gofers" aren't they, making sure primarily that the coffee pots are filled and the trash cans are emptied?
Well, it turns out that the term "law clerk" often is misunderstood by the public. That sounds like someone whose work duties don't go much beyond filing and such. But as we reported in a post last September, many orders and opinions in federal courts are written not by judges, but by their clerks. California lawyer William Domnarski shined light on the issue in an op-ed piece last year for The New York Times, calling the situation "embarrassing" for the legal profession. From our post on the subject:
Law clerks write the opinions for almost all federal appellate judges, Domnarski writes, and it stands to reason that the practice also is common in federal trial courts. Domnarski says members of the legal tribe rarely discuss the issue because it "raises too many embarrassing questions." Domnarski goes on to write: "We have become too comfortable with the troubling idea that judging does not require that judges do their own work."
Is David Waters Jr. writing the orders and opinions for Judge Putnam in my wife's employment case? You pretty much can count on it? Is that why the documents have tended to favor the Jones Walker law firm and various corporate-connected defendants? You probably can count on that. Is that why Angie Ingram, represented by David Waters Sr.'s colleague Kary Bryant Wolfe, has been dismissed from the case, even though black-letter law says that can't happen? You probably can count on that, too.
The simple issue is this: Ingram cannot be dismissed from this case because she submitted evidentiary matters requiring that her Rule 12(b)(6) Motion to Dismiss be treated as a Motion for Summary Judgment—and Shuler is entitled under the law to conduct discovery in order to counter that evidentiary material.
The Court cites some half dozen cases on this simple issue, but the controlling Eleventh Circuit case is Snook v. Trust Co. of Georgia Bank, 859 F. 2d 865 (11th Cir., 1988).
What about the dismissal of corporate entities such as American Express, NCO, and JPMorgan Chase? Mrs. Schnauzer's complaint alleges--and the record will show--that they had an agency relationship with Ms. Ingram and her law firm. That means those companies, under the law, have vicarious liability for damages that Angie Ingram caused.
The law on vicarious liability, at this stage of the case, could not be more simple. One court document sums it up this way:
The U.S. Eleventh Circuit Court of Appeals has found: “Although the complaint need not expressly state that [Defendant] was vicariously liable to the Sprinkles, it must at least give notice of vicarious liability.” Category 5 Management Group v. National Casualty Insurance Company, (Eleventh Circuit, 2012). At this stage in the proceedings, Shuler is required only to give notice regarding vicarious liability, and she has met that standard.
If David Waters Jr.'s duty is to research and write Judge Putnam's orders and opinions so that they accurately reflect the law, he is doing a wretched job. If, on the other hand, his assignment is to ensure that his father's law firm and various corporate entities receive one unlawful favor after another . . . well, he's getting the job done.
This much is certain: Judge Putnam and his office have handled the case in such an inept fashion that my wife actually was forced recently to submit a document styled "Motion for Court Action." In it, she essentially begs the court to take action on matters that have been pending for several months and need resolution so that the parties can move forward with discovery. You can read the document below.
Have certain documents been gathering dust because David Waters Jr. has not been able to figure out a way to mold them so that they favor the Jones Walker law firm? I'm starting to think the answer is yes.
Infinity Objection Re Ingram by Roger ShulerInfinity Court Action by Roger Shuler