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AlaFile E-Notice
To: DAVY MACK [email protected]
01-CV-2013-903427.00
Judge: DONALD E. BLANKENSHIP
NOTICE OF ELECTRONIC FILING
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
The following matter was FILED on 4/23/2015 3:01:27 PM
JESSICA MEDEIROS GARRISON V. ROGER A. SHULER ET AL01-CV-2013-903427.00
MOTION TO VACATE OR MODIFY
Notice Date: 4/23/2015 3:01:27 PM
[Filer: HAY DAVY MACK]
ANNE-MARIE ADAMSCIRCUIT COURT CLERK
JEFFERSON COUNTY, ALABAMA
716 N. RICHARD ARRINGTON BLVD.BIRMINGHAM, AL 35203
JEFFERSON COUNTY, ALABAMA
D002 ROGER SHULER D/B/A LEGAL SCHNAUZER BLOGD001 SHULER ROGER A.
/s/ DAVY MACK HAY
Signature of Attorney or Party:Date:Check here if you have filed or are filingcontemoraneously with this motion an Affidavit ofSubstantial Hardship or if you are filing on behalf of anagency or department of the State, county, or municipalgovernment. (Pursuant to §6-5-1 Code of Alabama(1975), governmental entities are exempt fromprepayment of filing fees)
Case No.STATE OF ALABAMAUnified Judicial System
01-JEFFERSON District Court Circuit Court
Revised 3/5/08
JESSICA MEDEIROS GARRISON V. ROGER A.SHULER ET AL
CIVIL MOTION COVER SHEETName of Filing Party:
Name, Address, and Telephone No. of Attorney or Party. If Not Represented.
Attorney Bar No.:
DAVY MACK HAY
PO Box 680087Prattville, AL 35045
HAY055
TYPE OF MOTIONMotions Requiring Fee Motions Not Requiring Fee
Default Judgment ($50.00)Joinder in Other Party's Dispositive Motion (i.e.Summary Judgment, Judgment on the Pleadings, orother Dispositive Motion not pursuant to Rule 12(b))($50.00)
Summary Judgment pursuant to Rule 56($50.00)
Renewed Dispositive Motion(Summary Judgment,Judgment on the Pleadings, or other DispositiveMotion not pursuant to Rule 12(b)) ($50.00)
Judgment on the Pleadings ($50.00)
Motion to Dismiss, or in the Alternative SummaryJudgment($50.00)
Other
Add Party
AmendChange of Venue/Transfer
CompelConsolidation
ContinueDeposition
Designate a MediatorJudgment as a Matter of Law (during Trial)
Disburse FundsExtension of Time
In LimineJoinder
More Definite StatementMotion to Dismiss pursuant to Rule 12(b)
New TrialObjection of Exemptions Claimed
Plaintiff's Motion to DismissPreliminary InjunctionProtective Order
QuashRelease from Stay of Execution
SanctionsSever
Special Practice in AlabamaStay
StrikeSupplement to Pending Motion
Vacate or ModifyWithdraw
Otherpursuant to Rule (Subject to Filing Fee)
pursuant to Rule ($50.00)
*This Cover Sheet must be completed and submitted to the Clerk of Court upon the filing of any motion. Each motion should contain a separate Cover Sheet.
**Motions titled 'Motion to Dismiss' that are not pursuant to Rule 12(b) and are in fact Motions for Summary Judgments are subject to filing fee.
*Motion fees are enumerated in §12-19-71(a). Feespursuant to Local Act are not included. Please contact theClerk of the Court regarding applicable local fees.
Local Court Costs $
D001 - SHULER ROGER A.D002 - ROGER SHULER D/B/A LEGALSCHNAUZER BLOG
0.00
4/23/2015 2:57:23 PM
CV201390342700
Pendente Lite
Oral Arguments Requested
Motion to Intervene ($297.00)
ELECTRONICALLY FILED4/23/2015 3:01 PM
01-CV-2013-903427.00CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMAANNE-MARIE ADAMS, CLERK
Page 1 of 17
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA BIRMINGHAM DIVISION
JESSICA MEDEIROS GARRISON )
Plaintiff, ) )
v. ) Case No.: CV-2013-903427.00 )
ROGER A. SHULER, ET AL., ) Defendant(s). )
DEFENDANT’S MOTION TO ALTER, AMEND, OR VACATE, PURSUANT TO RULE 59 OF THE
ALABAMA RULES OF CIVIL PROCEDURE
INTRODUCTION
This cause is of great importance, as not only does it involve the core constitutional tenets of
journalistic protections associated with a “free press,” which allows the unmitigated flow of news
and information, void of Orwellian governmental intrusion, but the Plaintiff’s Petition also seeks to
impugn on Mr. Shuler’s rights under the First Amendment of the Constitution of the United States.
Disturbingly, the Eighteenth Judicial Circuit of Alabama handed down severe and questionable civil
punishment to quell what Mr. Shuler will show to be his constitutional rights,1 while the pervasive
trend in the United States is to extend the same journalistic protections to bloggers as it does print
journalists.2 The Defendant’s absence, as will be shown, was not purposeful, and was certainly not
1 In the case of Robert Riley v. Roger Shuler Et Al., 58-CV-2013-236.00, the Plaintiff sought and obtained an injunction prohibiting Mr. Shuler from publishing stories about the Plaintiff and to remove stories regarding same. As a result of the Defendant’s assertion of his constitutional rights, he became one of only a few journalists in this country’s history to be jailed as a result of a civil action arising from one of his articles. 2 In the recent US Court of Civil Appeals opinion in Obsidian v. Cox, D.C. No. 3:11-cv-00057-HZ, the court held that, when dealing with an issue of public interest, bloggers are extended the same Constitutional protections as institutional journalists. Also see http://www.reuters.com/article/2014/01/17/us-usa-blogger-ruling-idUSBREA0G1HI20140117.
ELECTRONICALLY FILED4/23/2015 3:01 PM
01-CV-2013-903427.00CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMAANNE-MARIE ADAMS, CLERK
Page 2 of 17
contemptuous towards this Honorable Court. Rather, the absence was fraught with mitigating
circumstances, for which Defendant avers, Plaintiff and her counsel were aware and could have
compensated in the spirit of good faith and fair dealing.
COMES NOW the Defendant, Roger A. Shuler, by and through the undersigned attorney of
record, and submits this Motion to Alter, Amend, or Vacate, Pursuant to Rule 59 of the Alabama
Rules of Civil Procedure, and in support thereof, he would show and aver as follows:
1. This cause of action was originally filed on or about August 26, 2013, was Amended
on or about August 27, 2013, and Amended yet again on January 17, 2014.
2. After unsuccessfully serving the Defendant by certified mail, the Plaintiff chose to
serve the Defendant by way of an aggressive private investigator, while much more reasonable and
less invasive options remained available.3
3. Following what the Plaintiff portrayed as valid service by private process server, this
Honorable Court GRANTED Defendant’s pro se Motion to Quash Service, which was filed via
limited appearance for the sole purpose of challenging the validity of service.
4. The Defendant was ultimately and validly served while he was illegally detained in
the Shelby County Jail as a result of another case in which his constitutional rights to due process
and free speech were being trampled.
5. On or about April 15, 2014, the Defendant filed an Answer generally denying all
3 Rule 4(a)(7)(e) of the Alabama Rules of Civil Procedure provides in pertinent part that “[i]f service of process is refused, and the certified mail receipt or the return of the person serving process states that service of process has been refused, the clerk shall send by ordinary mail a copy of the summons or other process and complaint or other document to be served to the defendant at the address set forth in the complaint or other document to be served. Service shall be deemed complete when the fact of mailing is entered of record.”
Page 3 of 17
material averments contained within Plaintiff’s various complaint iterations.
6. During the pendency of this case, Plaintiff attempted to obtain default judgment
against the pro se litigant, Roger Shuler, on or about October 21, 2013; February 20, 2014;
September 17, 2014; and January 17, 2015.
7. On or about May 9, 2014, This Honorable Court issued a Scheduling Order and Trial
setting, and an Order changing Defendant’s address from the Shelby County Jail to a residence
located at 5204 Logan Drive, in Birmingham, Alabama.
8. However, the aforementioned address was no longer the Defendant’s residence by
virtue of a recent foreclosure. Therefore, he did not receive notice of this Court’s Scheduling Order
or any subsequent documents filed in the case. (See Exhibit 1, attached, described as Foreclosure
Deed executed on May 2, 2014.)
9. Furthermore, the Plaintiff and her attorneys had actual knowledge that the Defendant
was no longer residing at this address as early as July of 2014, when correspondence sent to Mr.
Shuler was returned marked “Return to Sender, not at this address.” Regardless, this address
continued to be used in all subsequent filings, as stated in the Certificates of Service. (See Exhibit 2,
described as returned mail addressed to Defendant.)
10. Defendant avers by failing to ascertain his whereabouts, and provide proper notice in
compliance with his due process rights, the Plaintiff failed to conduct herself in a manner consistent
with good faith and fair dealing, especially considering the Defendant’s then pro se status.
11. Now that Defendant is represented by counsel, he understands he had a duty to notify
the Clerk of Court of any address changes, however, several circumstances prevented him from
doing so.
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a. Mr. Shuler and his wife lost their home and were facing the very real
possibility of being homeless. This being such a pressing and immediate issue,
all other concerns had to be given lower priority
b. Mr. Shuler had just spent five (5) months in jail, which began with being
beaten by law enforcement officials in his own home and wrongfully detained, in
violation of his constitutional rights.
c. Mr. Shuler and his wife experienced excessive psychological trauma,
resulting in the Defendant spending six (6) days in a psychiatric unit, in direct
relation to these events, and was diagnosed with Post Traumatic Stress Disorder.
d. Mr. Shuler has a good-faith belief that his very life has been in actual peril as
a result of his reporting. Accordingly, he has been and continues to be highly
reluctant to submit to the authority of the state after what he perceives to be
illegal attacks against his person, his family, and his rights as a citizen of the
United States.
12. The Final Order submitted in the above-styled cause is the result of a finding of
default against the Defendant. It is well settled that a default judgment is highly disfavored in the
state of Alabama; as such judgments preclude a trial on the merits. Oliver v. Sawyer, 359 So.2d 368,
369 (Ala.1978).
13. Additionally, the Supreme Court of Alabama held that, when determining whether to
vacate a default judgment, the trial court should consider “1) whether the defendant has a meritorious
defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and
3) whether the default judgment was a result of the defendant's own culpable conduct.”
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Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So. 2d 600, 605 (Ala. 1988).
a. Meritorious Defense: The Defendant in this cause previously filed an
Answer generally denying all material averments. Though he did not therein
claim any defenses to the tort of libel, denying all averments is tantamount to
asserting the ultimate defense in any defamation action—truth. Furthermore,
Defendant does hereby aver that he has a meritorious defense in this case, and by
virtue of evidence currently in his possession and that which can be obtained
through exhaustive discovery, shall show that the case against him is frivolous
and nothing more than an attempt by the Plaintiff to unconstitutionally bully the
Defendant into silence.
b. Plaintiff unfairly prejudiced: As previously stated, Alabama law shows a
resounding preference for judgments on the merits. If the Plaintiff’s claims are
legitimate, as she asserts they are, then a trial on the merits will serve no purpose
other than vindicating her position. Therefore, Defendant would show that the
Plaintiff would not be unfairly prejudiced, as being victorious upon a trial on the
merits would result in full exoneration of what she claims to be defamation of her
character.
c. Culpable conduct: As stated above, though the Defendant now knows he
owed a duty to inform of a new address, his conduct was reasonable under his
particular set of circumstances. Additionally, as a pro se litigant, it is appropriate
for this Court to give him more latitude than would be extended to a skilled
litigator. Additionally, Plaintiff had actual and constructive knowledge that
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Defendant no longer resided at the original service address, and the record as
currently available is silent as to any attempts to locate the Defendant. Finally,
Even if this Honorable Court would find Defendant’s omission culpable, Mr.
Shuler would show that this was not a $3,500,000.00 error.
14. In this Honorable Court’s Final Judgment, electronically filed on April 13, 2015, it
states the applicable burden of proof in this case as follows:
Under Alabama Law, the elements of a cause of action for defamation are: 1) a false and
defamatory statement concerning the Plaintiff; 2) an unprivileged communication of that
statement to a third party; 3) fault amounting at least to negligence; and 4) either
actionability of the statement irrespective of special harm or the existence of special harm
caused by the publication or statement.
15. Defendant would show that the elements stated in this Honorable Court’s Final
Judgment are those applicable to a private person, pursuant to Kinner v. Bevans, 116 So. 3d 1147
(Ala. Civ. App. 2012), ET AL., when in fact, the Plaintiff meets the definition of a public figure. “A
public figure is one who either has gained notoriety from [her] achievements or seeks public
attention through vigor and success. Cottrell v. Nat'l Collegiate Athletic Ass'n, 975 So. 2d 306, 333
(Ala. 2007), citing New York Times v. Sullivan, 376 U.S. 254(1964).
16. The Plaintiff gained notoriety for her achievements as Attorney General Luther
Strange’s campaign manager during his successful 2010 election campaign, and then for her
appointment as Chief Counsel and Deputy Attorney General of the state of Alabama in 2011—no
small accomplishment for an attorney with a mere ten (10) years of experience. Ms. Garrison then
went on to gain even more public notoriety as director of the Republican Attorneys General
Page 7 of 17
Association, as well as receiving a highly acclaimed “Of Counsel” position with one of the state’s
top law firms, Balch and Bingham, L.L.P. 4
17. In the landmark 1964 Supreme Court case of New York Times Co. v. Sullivan, the
Court addressed the distinction between public and private figures associated with defamation cases
as an issue of first impression. The Honorable Supreme Court of the United States held as follows:
The constitutional guarantees require, we think, a federal rule that prohibits a public
official from recovering damages for a defamatory falsehood relating to his official
conduct unless he proves that the statement was made with ‘actual malice’-that is, with
knowledge that it was false or with reckless disregard of whether it was false or not.
New York Times v. Sullivan at 390.
18. Though the Justices in New York Times made reference specifically to “public
officials,” contemporary cases have interchanged this language with “public figure.” See Generally
Cottrell.
19. Not only does the Plaintiff’s status as a public figure raise the burden to that of
proving actual malice, but the articles published by the Defendant regarding the alleged affair
between the Plaintiff and Attorney General Luther Strange, and the exorbitant sums of money which
passed between the two, are certainly related directly to the public interest. Indeed, the general
public certainly holds interest in whether their Attorney General—a position predicated on morality
and the absolute adherence to rule of law—had a salacious and inappropriate relationship with his
campaign manager, which may have been parlayed into questionable money transfers recorded in the
Attorney General’s campaign finance reports, as well as a highly coveted appointment to the office
4 All information in this paragraph is taken directly from Ms. Garrison’s attorney profile on the Balch and
Page 8 of 17
of Deputy Attorney General—all of which are issues raised in Defendant’s articles.
20. Once again, the question of defamation as it relates to an issue of public interest was
well and eloquently settled by the United States Supreme Court in the New York Times case:
The general proposition that freedom of expression upon public questions is [sic] secured
by the First Amendment has long been settled by our decisions. The constitutional
safeguard, we have said, was fashioned to assure unfettered interchange of ideas for the
bringing about of political and social changes desired by the people. New York Times v.
Sullivan at 384.
21. Without directly addressing the exorbitance and unprecedented nature of a
$3,500,000.00 award against a private citizen in the state of Alabama, $2,000,000.00 of which
awarded as punitive damages, Defendant would summarize the above by showing that Plaintiff,
Jessica Medeiros Garrison, is a public figure and the issues in this case are of the public interest,
within the definitions contained in state and federal case law. Therefore, this Court’s application of
the “private person” standard of proof is inappropriate. Additionally, the Defendant stands on the
veracity of his writings, his sources, and his rights under the Constitution of the United States of
America, and he PRAYS Your Honor exercise the wisdom and discretion of this Court in
VACATING the default Final Judgment entered April 13, 2015.
WHEREFORE, PREMISES CONSIDERED: The Defendant in the above-styled cause hereby
PRAYS Your Honor VACATE the default judgment entered in this case, pursuant to Rule 59 of the
Alabama Rules of Civil Procedure, and award him the additional specific relief:
1. Grant leave to file an amended Answer and Counterclaim, and provide adequate time
Bingham webside. http://www.balch.com/jgarrison/
Page 9 of 17
to perfect service and allow the Plaintiff to answer same.
2. Immediately thereafter, enter a new Scheduling Order sufficient to allow for discovery
commiserate with an action of this importance and complexity.
3. Award the Defendant any additional relief to which he may be entitled either at law or
in equity.
RESPECTFULLY SUBMITTED on this 23nd day of April, 2015.
_/s/Davy M. Hay/s/___ Davy M. Hay (HAY055)
Attorney for the Defendant OF COUNSEL: Davy M. Hay PO Box 680087 Prattville, AL 36068-0087 Phone: (334) 361-3340 Fax: (334) 361-3339 [email protected]
Page 10 of 17
CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of the foregoing to all attorneys or parties listed
below by facsimile transmittal, by e-filing, or by placing a copy of same in the United States Mail, First Class Postage Pre-paid and properly addressed this the 23rd day of April, 2015.
William J. Baxley, & Joel E. Dillard
Post Office Box 530333 Birmingham, AL. 35253
[email protected] [email protected]
/s/Davy M. Hay/s/
Davy M. Hay (HAY055)
Page 11 of 17
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA BIRMINGHAM DIVISION
JESSICA MEDEIROS GARRISON )
Plaintiff, ) )
v. ) Case No.: CV-2013-903427.00 )
ROGER A. SHULER, ET AL., ) Defendant(s). )
Exhibit 1
Page 12 of 17
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IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA BIRMINGHAM DIVISION
JESSICA MEDEIROS GARRISON )
Plaintiff, ) )
v. ) Case No.: CV-2013-903427.00 )
ROGER A. SHULER, ET AL., ) Defendant(s). )
Exhibit 2
Page 16 of 17
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