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Office of Luther Strange Violated Civil Procedure When It Sent Threatening Letter To Attorney

Posted on the 02 May 2013 by Rogershuler @RogerShuler

Office of Luther Strange Violated Civil Procedure When It Sent Threatening Letter To Attorney

Tuskegee Mayor Johnny Ford

The Alabama Attorney General's office acted outside of lawful procedure when it sent a threatening letter to a lawyer who filed a civil-rights lawsuit against AG Luther Strange over raids at the VictoryLand casino, according to a new filing in the case.
Attorney Donald LaRoche, of Brockton, Massachusetts, also states that Strange's office twice refused to accept service of the summons, complaint, and other documents. Service was completed, LaRoche states, only after it became clear that the process server was prepared to contact federal-court officials about the refusal.
LaRoche sued Strange and Governor Robert Bentley on behalf of Tuskegee Mayor Johnny Ford and five other residents of Macon County, which is home to VictoryLand. The suit alleges that Strange and Bentley caused "economic devastation" by closing the casino, even though Macon County residents had voted to allow electronic-bingo at the facility.
Bentley and Strange both timely filed responses to the lawsuit on April 30. But Strange's office, before filing its response, fired off a letter to LaRoche. Dated April 11, the letter is signed by Alabama Solicitor General John C. Nieman Jr. and threatens to seek sanctions if LaRoche and his clients do not voluntarily dismiss their case within seven days. (The letter can be viewed at the end of this post.) In the letter, Nieman states:
Dear Mr. LaRoche:
Attorney General Strange was served with a summons and complaint in the above referenced case on April 9. Your signature on the complaint, and your clients' filing of it, violates Rule 11(b) of the Federal Rules of Civil Procedure. As you are well aware, your claims and legal contentions are not warranted by existing law or a nonfrivolous argument for extending, modifying, or reversing existing law. see Presley v. Etowah County Commission, 502 U.S. 491, 501-08 (1992). Your clients appear to be presenting their complaint for harassment purposes. Please voluntarily dismiss your complaint within 7 days of this letter. If you do not do so, the Attorney General intends to seek sanctions against you and your clients, including but not limited to attorney's fees and costs associated with preparing a response and a motion for sanctions.
John C. Nieman Jr.
Solicitor General

LaRoche responded by filing a Motion for Order to Cease Attempts to Intimidate and Delay, dated April 17, which correctly notes that Nieman acted outside Rule 11 of the Federal Rules of Civil Procedure (FRCP). (LaRoche's memorandum in support of the motion can be viewed at the end of this post.)
Rule 11 states that any effort to seek sanctions must be in the form of a motion to the court, not a letter to opposing counsel. From the LaRoche supporting memorandum:
The Attorney General’s letter to plaintiff’s counsel does not fall within the requirements of the Federal Rules of Civil Procedure. F.R.C.P., Rule 11 (c)(2) states that “a motion for sanctions must be made separately from any other motion and must describe the conduct that allegedly violates Rule 11(b).” The Attorney General’s threatening letter does not comport with Rule 11(c)’s motion requirement because it does not “describe the specific conduct that allegedly violates Rule 11(b)” nor is it in a motion form. This letter is just a feeble attempt to delay the process and silence the plaintiffs from pursuing their rights by threatening to seek sanctions.

That's not the only way Strange's office seeks to trample civil procedure. Writes LaRoche:
It should also be noted that in the letter from Solicitor General Neiman, a time period is specified for the plaintiffs to withdraw their complaint. . . . This randomly asserted deadline is not delineated anywhere in Rule 11 and further demonstrates that the purpose of this letter is to intimidate and chill the plaintiffs and not adhere to the Federal Rules of Civil Procedure.

William Boyd, process server for the plaintiffs, apparently was able to serve Gov. Bentley without incident. But his efforts to serve Luther Strange met an almost comical wall of resistance. A receptionist first told Boyd that service was improper because it was not done by mail. Then things really got interesting. From the LaRoche memorandum:
After discussion with counsel for the plaintiffs on the morning of April 9, 2013, Mr. Boyd returned to the Attorney General’s Office to make another attempt at service. Again the front office receptionist refused to accept service. At this point, Mr. Boyd contacted plaintiffs’ counsel to explain the basis for the refusal. Counsel instructed Mr. Boyd to obtain the name of the person refusing to accept service and return to the federal court’s clerk’s office to notify the court that the Attorney General refused service in this matter. Hearing this, the receptionist placed a phone call and subsequently accepted a copy of the complaint, exhibits, and summons. Mr. Boyd then proceeded to the Governor’s Office, and upon arrival, he was able to effectuate service without any delay.

The bottom line? Bentley seemed to have no problem accepting service and responding to the complaint. Strange tried his darnedest to avoid doing either. LaRoche nicely summarizes what appears to be going on:
It is well established in this country that the right to petition is one of the most precious of the liberties safeguarded by the Bill of Rights and the right is implied by the very idea of a republican form of government. BE&K Constr. Co. v. NLRB, 536 U.S. 516 (2002), Eastern Railroad Presidents Conference Et Al. v. Noerr Motor Freight, Inc, Et al, 365 U.S. 127 (1961). . . .
The plaintiffs in this matter have exercised their right to petition the court because their voting rights have been violated by the actions of the defendants. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972) (“’the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances.”)
Attorney General Strange’s letter, dated April 11, 2013, calling for the plaintiffs to dismiss their complaint or suffer the consequences of sanctions is designed to silence the plaintiffs’ meritorious lawsuit. . . . The intent of this letter is to have a chilling effect on the plaintiffs’ efforts to prove their case of voting rights violations. The effect of this letter is more evidence of the extent to which this defendant will go to violate the rights of the people of Macon County. The plaintiffs have properly filed and served the defendants in this case and are proceeding under the laws of this country governing federal lawsuits. The plaintiffs’ lawsuit should not be construed to be anything less than seeking a judicial determination for the concerns that they have raised and a rightful remedy. Rather than responding in the manner provided by the rules, with an answer and/or motion, the Attorney General chooses to send a threatening letter after initially delaying service.

Macon Co LaRoche Letter by Roger Shuler
Macon Co--Motion to Cease by Roger Shuler

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