Motion to Dismiss

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

NORTHERN DIVISION 

  

JOHN DILLARD, ET AL., 

Plaintiffs, 

Vs. CIVIL ACTION NO. 85-T-1332-N 

CRENSHAW COUNTY, ALABAMA, 
ET: AL.% 

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Defendants. 

MOTION Try DISMISS 

Come now defendants, Escambia County, Alabama, Martha Kirkland 

as Probate Judge of Escambia County, James D. Taylor as Circuit Clerk 

and Timothy A. Hawsey as Sheriff, Escambia County and move the Court 

to dismiss the amended complaint as to fthese defendants and as 

grounds therefor set down and assign the following: 

1. Said amended complaint and each and every count thereof 

separately and severally falls to state a claim upon which relief may 

be granted as to these defendants. 

2+. Sald amended complaint fails to state wherein the said 

defendants separately and severally have injured any of the plaintiffs 

in this case separately and severally. 

3. For aught it appears said defendants have acted under 

separate requirements of law passed by the Legislature of the State 

of Alabama. 

8." It. affirmatively appears that no plaintiffs other than 

Ullysses McBride, John T. White, Willie McGlasker, William America 

 



and Woodrow McCorvey could have standing to bring this lawsuit against 

these defendants. 

5. It affirmatively appears that the original plaintiffs had no 

cause or standing to amend their sult to include these defendants. 

6. It affirmatively appears that the amendment to the complaint 

exeeds Rule 14(b) and Rule 15(a) Federal Rules of Civil Procedure, and 

is not authorized by Federal Rules. 

7. Said complaint as amended constitutes a new and completely 

different cause of action not related to the original complaint or 

relief requested therein. 

8. Said complaint as amended was apparently filed by agreement 

of original plaintiffs and defendants without hearing for these 

defendants or consent by said defendants. 

9g. There ils ‘no motion on the part of new and added 

parties plaintiff to intervene in said cause of action and in fact 

sald parties would lack standing to intervene; nor is there any order 

Of the Court permiting intervention by said parties plaintiff. The 

amended complaint 1s an. "improper. procedure for adding parties 

plaintiff. 

10. IL affirmatively appears that said defendants Escambia 

County, Kirkland, Taylor and Hawsey committed no act against nor could 

they grant. ‘any ‘relief to original parties plaintiff residing in 

Crenshaw County. 

11. Said complaint as amended constitutes a new and different 

cause of action involving new and different parties plaintiff and  



  

parties defendant with no commonality to the original cause. 

WHEREFORE, said defendants move the Court to dismiss the 

complaint as amended. 

ALTERNATIVE MOTION TO SEVER AND/OR CHANGE VENUE 
  

Defendants, Escambia County, Kirkland, Taylor, and Hawsey without 

waiving their motion to dismiss respectfully move the Court to sever 

the complaint insofar as the same pertains to plaintiffs, McBride, 

White, McGlasker, America and McCorvey against these defendants 

and/or transfer said cause to the United States District Court for the 

Southern District of Alabama and as grounds therefor said defendants 

set down and assign the following: 

1. Plaintiffs, McBride, White, McGlasker, America and McCorvey, 

as well as these defendants are residents of and/or located in the 

venue Of the United States District Court for the Southern District of 

Alabama. 

2. All acts complained of as well as relief requested is located 

ln the venue of the United States District Court for the Southern 

District of Alabama. 

3. There 1s no single relief requested. Relief requested, by 

its very nature will be different in each county. Relief requested 

in the defendant county will of necessity be different than relief 

granted in other defendant counties. 

4. There is no allegation that defendants Escambia, Kirkland, 

 



Taylor and Hawsey committed any act in or could grant any relief to 

plaintiff citizens of other counties. 

5. Venue is properly founded before the United States District 

Court for the Southern District of Alabama under provisions of 28 

U.3.C., Section "1391(b): 

6. It affirmatively appears that the majority of the plaintiffs 

and the majority of the defendants (five counties) reside in or are 

located in the Northern District of Alabama. 

T. It affirmatively appears that a complaint against defendants 

properly founded before the United States District Court for the 

Middle Disrict of Alabama was amended so as to piggyback six diverse 

and different counties and officials located within the jurisdiction 

Of other districts of the 3tate of Alabama in such a way as to 

constitute an abuse of federal process. 

8. 1t affirmatively appears that for the convenience of the 

parties to this cause, plaintiffs, defendants and witnesses, and in 

the interest of justice the cause relating to those defendants should 

be transferred to the United States District Court for the Southern 

District of Alabama. 

WHEREFORE PREMISES CONSIDERED, said defendants move the Court for 

an order to sever fhe claims against them pursuant to Rule 42, 

Federal “Rules of Civil Procedure, and/or transfer the sald action to 

the United States District Court for the Southern District of Alabama 

pursuant to 28 U.S.C., Section 1404.  



  

Defendants, Escambia County, Kirkland, Taylor and Hawsey without 

waiving the foregoing motions to dismiss, sever and/or change 

venue. move the Court to deny class certification and as grounds for 

said motion set down and assign the following: 

.. It affirmatively appears that. sald class is  oontrary to 

provisions of Rule 23, Federal Rules of Civil Procedure. 

2. It has not been shown that the representative parties for 

plaintiff class will fairly and adequately protect the interest of 

the putative class. 

3. It affirmatively appears that prosecution of separate actions 

by ‘individual members of the class would not ‘result in varying 

adjudications with respect to individual members as required by 

Rule 23, Federal Rules of Civil Procedure, 

8..01% affirmatively appears that neither plaintiffs nor 

defendants have common questions of law or fact. 

5. 1 “affirmatively. appears that claims of the putative 

plaintiff class are different and not common to the class. 

6. i affirmatively appears that the defenses of the 

various parties defendant are diverse and not typical of the claims of 

the class. 

T. 1% affirmatively appears that rather than a single class . of 

plaintiffs, the complaint as amended has alleged eight separate 

classes of plaintiffs in that each eounty group of plaintiffs has a 

 



  

different set of facts and request relief that will of necessity be 

diffferent in each county. 

8. It affirmatively appears that no single county defendant will 

be geographically the same as other county defendants. 

9. It affirmatively appears that no single county defendant 

is demographically the same as other county defendants and each has a 

different percentage of black citizens. 

10. It affirmatively appears that the relief requested 1s not 

common to all members of the putative plaintiff class and will of 

necessity involve the establishment of districts under diverse and 

different circumstances not common to the putative class. 

11. It affirmatively appears that each said party defendant acted 

under color of a separate local act of the legislature of the State of 

Alabama passed individually and separately. 

12. 41 affirmatively appears that each separate county 

subdivision lacks a commonality with other county subdivisions such 

as to readily support a class action by plaintiffs. 

WHEREFORE PREMISES CONSIDERED, said defendants move the Court to 

deny, dismiss and strike the request for class action. 

7 

    

  

“James W. W 
A¥torney for Escambia County 

OF COUNSEL: [ 

WEBB, CRUMPTON, McGREGOR, SCHMAELING & WILSON 

166 Commerce Street, P.O. Box 238 
Montgomery, Alabama 36101 
(205) 834-3176 

 



  

7” rar 
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Net 74/0 CE (i277 
[Let M. Otts Ze. A 
“Attorney for Escambia County 

  

  

OF COUNSEL: 

OTTS & MOORE 
P.O. Box 467 
Brewton, Alabama 36427 
(205) 867-7724 

CERTIFICATE OF SERVICE 

I hereby certify that c¢opies of .the foregoing motion to 
dismiss, alternative motion to severe and chamge venue and alternative 
motion"to deny class certification have been mailed to Larry T. 
Menefee, Esquire, James U. Blacksher, Esquire and. Wanda J. Cochran, 
Esquire, Blacksher, Menefee & Stein, 405 Van Antwerp Building, P.O. 
Box 1051, Mobile," Alabama 36633, ‘Terry G. Davis, Esquire, Seay & 
Davis, 732 Carter Hill Road, P.O. Box 6125, Montgomery, Alabama 36106, 
Deborah Fins, Esquire and Julius L. Chambers, Esquire, NAACP Legal 
Defense Fund, 1900 Hudson Street, 16th Floor, New York, New York, 
10013, Jack Floyd, Esquire, Floyd, Kenner & Cusimano, 816 Chestnut 
Sreet, Gadsden, Alabama 35999, Alton Turner, Esquire, Turner & Jones, 
P.O, Box 207, Luverne, Alabama 36049, D.L. Martin, Esquire, 215. 8. 
Main Street, Moulton, Alabama 35650, David R. Boyd, Esquire, Balch & 
Bingham, P.O. Box 78, Montgomery, Alabama 36101, W.0. Kirk, ‘Jdr., 
Esquire, Curry & Kirk, Phoenix Avenue, Carrollton, Alabama 35447, and 
all defendants not represented by counsel by placing copies of the 
same in the United States Mail, postage prepaid this the 17th day 
of January, 1986. ZY Rad