MAY 8, 2012 1:55PM

Hunting Clubs Provide a Nexus for Legal Corruption

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Hunting-Club land

in Lowndes County, Alabama







Cross Posted at Legal Schnauzer


A federal judge improperly dismissed a lawsuit alleging that Alabama lawyers and judges conspired through a hunting club to fix divorce cases in Jefferson County.


The unlawful dismissal meant plaintiffs were not allowed to conduct discovery in order to prove their case. That indicates the federal judiciary is deeply invested in hiding evidence that would prove Alabama courts are infested with crooked lawyers and judges.


Joseph W. Blackburn, a professor of taxation at Samford University's Cumberland School of Law, is at the heart of the hunting-club issue. Blackburn has filed two federal lawsuits alleging that a hunting club in Lowndes County serves as a hub for activity that corrupts Alabama courts and amounts to organized crime.


In the first case, Blackburn represented himself and alleged that his own divorce, from U.S. District Judge Sharon Lovelace Blackburn, was handled corruptly. In the second case, Blackburn represented other individuals who claimed they also were victims of a rigged divorce court in Jefferson County.


B. Avant Edenfield, a federal judge from Georgia, was specially appointed to hear the first case and granted defendants' motions to dismiss on a variety of technical grounds. Robert R. Armstrong, a U.S. magistrate judge in the Northern District of Alabama, granted dismissal in the second case by pretty much parroting Edenfield's earlier ruling.


But there is a slight problem with that: Edenfield got it wrong in his ruling. The U.S. Eleventh Circuit Court of Appeals upheld Edenfield's ruling, but those judges got it wrong, too. And it's not a close call.


How could multiple federal judges rule incorrectly on simple procedural matters? We can come to only one conclusion: They are more interested in protecting the legal tribe than in administering justice--and they want to make sure that the public never comes to grasp the filthy muck that resides in our courtrooms.


Edenfield issued a 31-page ruling in the first hunting-club case, and you can read the whole thing at the end of this post. Our research indicates the judge from Georgia had a predetermined outcome in mind and ruled incorrectly on multiple grounds in order to ensure that no discovery would be conducted.


But for now, we will focus on only one of Edenfield's mistakes. And it's a doozy.


How did Edenfield screw up? To answer that question we must consider Rule 12 of the Federal Rules of Civil Procedure. Specifically, we must consider Rule 12(b)(6), which governs motions to dismiss for "failure to state a claim upon which relief can be granted." U.S. courts long have been governed by notice pleading rules, which hold that a plaintiff needs to make only a "short and plain statement of the claim" in order to overcome a Rule 12(b)(6) motion, under most circumstances. (See Rule 8 FRCP.) A motion to dismiss is properly granted only under narrow circumstances--perhaps where a statute of limitations or immunity protect the defendants, or where the plaintiff cites a claim for which there is no remedy under the law.


A Rule 12(b)(6) motion, if granted, is devastating to a plaintiff because it cuts off the case before it gets started. Most importantly, it means defendants will not have to turn over discovery that could prove the plaintiff's case.


Under the law, Rule 12(b)(6) motions should rarely be granted, and for that reason, many defense attorneys do not bother to file them. A motion to dismiss is one of two potential hurdles that plaintiffs have to clear to reach a jury trial. The other is a motion for summary judgment, under FRCP 56--and that is much more powerful than a motion to dismiss. Rare is the civil case where a motion for summary judgment does not come into play


What about a motion to dismiss? Unless certain narrow circumstances are present, filing such a motion often is a waste of time and money for the client. But it was not a waste of time for the hunting-club defendants--and Judge Edenfield saw to that.


How did he do it? By conveniently ignoring Rule 12(d) FRCP, which states as follows:


(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.


What are "matters outside the pleadings"? They are evidence, usually in the form of an affidavit or a document that is entered by either party. When such matters are entered, and the court does not exclude them, Rule 12(d) plainly states that the motion to dismiss must be converted to a motion for summary judgment and governed by Rule 56 FRCP.


A bedrock principle of Rule 56 is that summary judgment cannot be considered, much less granted, until both parties have been given adequate opportunities to conduct discovery. In the U.S. Eleventh Circuit, which covers Alabama, Georgia, and Florida, that idea has been spelled out in a case styled Snook v. Trust Company Bank of Georgia, 859 F. 2d 865 (11th Cir., 1988)Snook states, in pertinent part:


This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits.


What happened in the first hunting-club case? The record shows that Blackburn entered "matters outside the pleadings," in the form of multiple affidavits. And it's clear that both the opposing parties and Judge Edenfield considered the evidentiary material. Consider this from page 24 of Edenfield's ruling:


As noted above, Blackburn admits he knew of the RICO harms alleged as of 2/03. . . . He filed this case on 1/25/07, within four years. . . . Defendants point out, however, that in his affidavit before this Court plaintiff admits he "first saw the [adverse divorce] Order at Mr. Fernambucq's offices on or about [1/13/03]. . . . "


Blackburn says, later in the same affidavit, that he made inquiry after reviewing the 1/13/08 judgment but it was not until "February 7-10 [2003] . . . that [he] learned the facts about the hunting club. . . . He therefore was first placed on inquiry notice on 1/13/03. . . . Accordingly, the limitations clock started ticking on that date, which means he had until 1/13/07, not 1/25/07, to sue.


That wasn't the only instance where the court considered matters outside the pleadings. Let's take a look at this item from page 28 of Judge Edenfield's ruling, addressing allegations against Birmingham attorney Charles Gorham:


The Court also agrees with these defendants that, as to them (Gorham's affidavit showing that he had nothing to do with plaintiff's divorce action . . . stands unrebutted.)


Gorham's affidavit was unrebutted, of course, because Blackburn was not allowed to conduct discovery and obtain information that might have rebutted it. Under FRCP 56 and Snook, Blackburn must be given that opportunity when matters outside the pleadings are entered, causing a motion to dismiss to be treated as a motion for summary judgment.


But that never happened. And we can only conclude that's because Edenfield knew discovery would unearth all sorts of sleaze about Alabama lawyers and judges. That, the federal judge concluded, could not be allowed--no matter what federal law says.


A strong argument could be made that the hunting-club lawsuits are the most important civil matters filed in Alabama over the past 20 years. They allege not only that our courts are corrupt, but they seek to show exactly how that corruption is carried out.


The cases raise all kinds of ugly questions about "justice" in Alabama, and we will look at them later in more detail. For now, we can see that a federal judge wanted to make sure the public did not learn about unsavory actions involving state judges and "officers of the court."



Document: Blackburn Calhoun Opinion

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