Motion to Dismiss or Transfer

    IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

JOHN DILLARD, et al., 

Plaintiffs, 

CASE NO. 85-T-1332-N Ve 

CRENSHAW COUNTY, ALABAMA, 

et al., 

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Defendants. 

LAWRENCE COUNTY DEFENDANTS' MOTION TO DISMISS OR 
TRANSFER, OR, IN THE ALTERNATIVE, TO SEVER AND 

TRANSFER PURSUANT TO 28 U.S.C. §1404(a) OR, 
ALTERNATIVELY, TO DISMISS CLASS ACTION ALLEGATIONS 
  

1. 

Defendants Lawrence County, Alabama, Richard I. Proctor, 

Larry Smith, and Dan Ligon respectfully move the Court to 

dismiss or transfer this action, on the following grounds: 

1. Because all parties who have standing to raise, or 

have an interest in, the claims relating to Lawrence County 

reside in Lawrence County, which is in the Northern District of 

Alabama, and because the claims relating to Lawrence County 

necessarily arise in the Northern District of Alabama, venue is 

improper in the Middle District and thus this action, as 

against these Defendants, should be dismissed or, in the 

alternative, transferred to the Northern District of Alabama 

for further proceedings. 

2. The complaint fails to state a claim against them 

upon which relief can be granted. 

Fy, IW 

 



  

3. The Plaintiffs, other than Plaintiffs Hoover White, 

Moses Jones, Jr. and Arthur Turner, are without standing to 

pursue this action against these Defendants, and thus their 

claims should be dismissed. 

11. 

In the alternative, should the Court decline to dismiss 

this action in its entirety as to these Defendants, these 

Defendants move the Court to sever the claims against them, 

which relate exclusively to Lawrence County, from those against 

the other Defendants, which relate to counties other than 

Lawrence, pursuant to Rule 42, F.R.C.P., and thereupon to 

transfer the severed action relating to Lawrence County to the 

Northern District of Alabama pursuant to 28 U.S.C. §l1404(a). 

As grounds for this alternative motion, these Defendants show 

as follows: 

1. This action, which challenges the method by which 

eight different county commissions are elected, is in reality 

eight separate actions. Of necessity, the merits of the claims 

presented must be dealt with on a county-by-county basis, 

because the factors which the Court is required to consider 

under the "totality of the circumstances" standard, such as the 

existence vel non of racial bloc voting, necessarily must be 

considered separately for each county. See United States v. 
  

Marengo County Commission, 731 F.2d 1546, 1566 (llth Cir. 
  

1984), cert. denied, U.S. vr 105 S.Ct.-375, 83 L.BAd.24 
  

 



  

311 (1984); McMillan v. Escambia County, Fla., 748 F.2d 1037 
    

(11th Cir. 1984); and Lee County Branch of NAACP v. City of 
  

Opelika, 748 F.2d 1473 (llth Cir. 1984). Because the evidence 

will be different for each county, it follows that discovery 

will have to be done separately on a county-by-county basis. 

Similarly, since no particular remedy is required even in the 

event of a finding of liability, United States v. Marengo 
  

County Commission, supra, 731 F.2d at 1560, note 24, it is 
  

clear that the remedy aspect of this case would involve 

separate consideration for each county. 

2. In the interests of justice and in the interests of 

economy, the Lawrence County portion of this action should be 

severed and transferred to the Northern District of Alabama 

under the "forum non conveniens" provisions of 28 U.S.C. 

§1404(a). It is clear that the only Plaintiffs who have 

standing to challenge the system used to elect the Lawrence 

County Commission are those who reside in Lawrence County; the 

Defendants, of course, reside in Lawrence County; most, if not 

all, the witnesses who would be involved in the trial of the 

Lawrence County aspect of this case reside in Lawrence County; 

and, generally, the fact-intensive inquiry mandated by Marengo 

County and other applicable Eleventh Circuit cases can more 

economically and fairly be conducted in the Northern District. 

Moreover, there is no nexus between the Middle District of 

Alabama and the Lawrence County aspect of this case. 

 



  

111. 

Should the Court decline to dismiss this action in its 

entirety as to these Defendants, and further decline to sever 

and transfer it pursuant to F.R.C.P. 42 and 28 U.S.C. §1404(a), 

these Defendants move the Court to dismiss those portions of 

the complaint which allege the existence of a plaintiff class 

encompassing residents of more than one county, as well as 

those portions which seek relief predicated upon the existence 

of such a multi-county plaintiff class, because it is clear on 

the face of the complaint that the requirements of F.R.C.P. 23 

are not met with respect to such a putative class. 

Respectfully submitted, 

  

. L. MARTIN 

215 South Main Street 
Moulton, AL 35650 
(205) 974-9200 

Rand £ Bod 
DAVID R. BOYD 
  

BALCH & BINGHAM Attorneys for Defendants 
P. Box 78 Lawrence County, Alabama, 
Montgomery, AL 36101 Richard 1. Proctor, Larry 
(205) 834-6500 Smith and Dan Ligon 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I have served the foregoing Motion 

to Dismiss or Transfer, or, in the Alternative, to Sever and 

Transfer Pursuant to 28 U.S.C. §1404(a) or, Alternatively, to 

Dismiss Class Action Allegations upon Larry T. Menefee, Esq., 

Blacksher, Menefee & Stein, P. O. Box 1051, Mobile, Alabama 

36633-1051, Terry G. Davis, Esq. Seay & Davis, P. O. Box 6215, 

Montgomery, Alabama 36104, Deborah Fins, Esq., Legal Defense 

Fund, 99 Hudson Street, 16th Floor, New York, New York 10013, 

Edward Still, Esq., Reeves & Still, 714 S. 29th Street, 

Birmingham, Alabama 35233-2810, and Reo Kirkland, Jr., Esq., 

P. O. Box 646, Brewton, Alabama 36427 by placing copies of 

same in the United States Mail, properly addressed and postage 

paid this [02 day of January, 1986. 

Dawdl BR. Eo — 
  

OF COUNSEL Tf