MOTION TO STRIKE - Motion To Stay (PKH)

RESERVED FOR

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT – JACKSON DIVISION

VOGEL DENISE NEWSOME PLAINTIFF

V. CIVIL ACTION NO. 3:12-cv-00342

PAGE KRUGER & HOLLAND P.A., ET AL. DEFENDANTS

PLAINTIFF’S MOTION TO STRIKE MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO

DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’

MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT

JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION)

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IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT – JACKSON DIVISION

VOGEL DENISE NEWSOME PLAINTIFF

V. CIVIL ACTION NO. 3:12-cv-00342

PAGE KRUGER & HOLLAND P.A., ET AL. DEFENDANTS

PLAINTIFF’S MOTION TO STRIKE MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’

MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO STAY ALL PROCEEDINGS PENDING A

RULING ON DEFENDANTS’ MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST

DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION)1

COMES NOW Plaintiff Vogel Denise Newsome (“Newsome” and/or “Plaintiff”) WITHOUT waiving her

OBJECTIONS to Judge Tom S. Lee presiding over this matter in that a CONFLICT-OF-INTEREST exist which

requires RECUSAL as well as Newsome’s OBJECTIONS to Magistrate assignment in this matter and files this, her

MOTION TO STRIKE MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS

(Doc. No. 9) and MEMORANDUM IN SUPPORT OF MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON

DEFENDANTS’ MOTION TO DISMISS (Doc. No. 10); Motion for Rule 11 Sanctions of and Against Defendants; and

Motion for Default Judgment (Jury Trial Demanded in this Action) (“MTS-MTSTAY&MFR11SDefault”) in the

preservation of her rights and pursuant to Federal Rules of Civil Procedure (“FRCP”) Rule 12(F) governing matters

regarding motion to strike; FRCP Rule 12(G) governing matters regarding consolidation of defenses and objections;

FRCP Rule 11 governing sanctions and/or signing of pleadings, motions, and other documents; FRCP Rule 55

governing default judgments; and the Fourteenth and Seventh Amendment to the Constitution. In support of this

instant MTS-MTSTAY&MFR11SDEFAULT, Newsome attaches her Affidavit at EXHIBIT “1” – incorporated

herein by reference as if set forth in full herein. Said Affidavit contains PERTINENT and RELEVANT information

that Newsome believes will aid this Court and provide it with an UNDERSTANDING as to what is really taking

place behind the scenes in FURTHERANCE of the Conspiracies addressed in Newsome’s Complaint filed in this

lawsuit. In further support thereof Newsome states:

1. This instant MTS-MTSTAY&MFR11SDEFAULT is submitted in good faith and is not submitted for

purposes of delay, harassment, hindering proceedings, embarrassment, obstructing the administration of

justice, vexatious litigation, increasing the cost of litigation, etc. and is filed to protect and preserve the

rights of Newsome secured/guaranteed under the United States Constitution and other laws of the United

States.

1 NOTE: Boldface, caps, small-caps, italics, highlights and underline represents “emphasis” added.

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2. Newsome attaches her supporting Affidavit at EXHIBIT “1” which is incorporated herein by reference

as if set forth in full.

3. That a CONFLICT-OF-INTEREST presently exists with the assignment of this lawsuit to Judge Tom S.

Lee. The record evidence CLEARLY supports that Newsome has timely, properly and adequately

NOTIFIED this Court of the Conflict-Of-Interest regarding Judge Tom S. Lee. See Doc. No. 2 –

“Motion Conflict-Of-Interest Information. . .” As a direct and proximate result of this Court to comply

with the MANDATORY requirements of statutes and laws governing said matters, Newsome has been irreparably injured/harmed and deprived rights – i.e. equal protection of the laws, privileges and

immunities, and due process of laws guaranteed under the United States Constitution and other

governing laws. As a direct and proximate result of this Court’s unlawful/illegal practices and failure to

comply with the MANDATORY requirements of 28 U.S.C.A. § 455 and any and all applicable

statutes/laws governing said matters, Newsome has been irreparably injured/harmed and deprived rights

– i.e. equal protection of the laws, privileges and immunities, and due process of laws guaranteed under

the United States Constitution and other governing laws. See EXHIBITS “2” – FRCP Rule 26 and “3”

- 28 U.S.C.A. § 455 respectively attached hereto and incorporated by reference as if set forth in full

herein.

Phillips v. Joint Legislative Committee on Performance and Expenditure Review Of The State of Mississippi, et al., 637 F.2d 1014 (5th

Cir. 1981) - [3] Under statute requiring a judge to disqualify himself in any proceeding in which his impartiality might be reasonably questioned, judge need not accept all the allegations by moving party as true and, in fact, no motion at all is required; the judge must disqualify himself if the facts cast doubt on his impartiality regardless of how or by whom they are drawn to his attention. 28 U.S.C.A. § 455. . . . [3] Congress rewrote the second statute, section 455, in 1974. Subsection (b) of that

section lists a number of specific situations in which a judge must recuse himself. . .Subsection (a), a more general provision, requires that Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Section 455, unlike section 144, does not stipulate a formal procedure by which it must be raised. Like section 144, however, it may be raised by motion. Davis, 517 F.2d at 1051. Substantively, the two statutes are quite similar, if not identical.[FN6]

FN6. To the extent that there is a difference, section 455 imposes the stricter

standard: a movant under section 144 must allege facts to convince a reasonable person that bias exists, Parrish, 524 F.2d at 100, while under the broader language of section 455, he must show only that a reasonable person “would harbor doubts about the judge's impartiality”, Potashnick v. Port City Constr. Co., 5 Cir. 1980, 609 F.2d 1101, 1111 (emphasis added), cert. denied, -- U.S. --, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980). See Comment, Disqualification of Federal Judges for Bias or Prejudice, 46 U.Chi.L.Rev. 236, 243-50 (1978). See also Note, Disqualification of Judges and Justices in the Federal Courts, 86

Harv.L.Rev. 736, 745-50 (1973). On the other hand, section 455, unlike section 144, does not require the judge to accept all allegations by a moving party as true. Indeed, the section requires no motion at all; the judge must disqualify himself if the facts cast doubt on his impartiality regardless of how or by whom they are drawn to his attention. See Fredonia Broadcasting Corp. v. RCA Corp., 5 Cir. 1978, 569 F.2d 251, 254-57, cert. denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167 (1979). Section 144,

by contrast, requires allegation by affidavit within a stringent time limit and allows a party only one such affidavit in any case. If a party could bind a judge by his factual allegations in a section 455 motion, free from the formal requirements and more demanding standard of proof of section 144, the result would be a virtual open season for recusal. See 46 U.Chi.L.Rev. at 250.

[4] The alleged bias of a judge must be personal as distinguished from judicial in nature in order to require recusal. 28 U.S.C.A. §§ 144, 455. - - See EXHIBIT “4” – Phillips matter

attached hereto and incorporated by reference as if set forth in full herein.

Clearly the INTEGRITY of this Court has been compromised and the appearance of IMPROPRIETY is inevitable through Judge Tom Stewart Lee’s acts and projects an appearance that this Lawsuit can be

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won through criminal acts – i.e. through bribes, blackmail, extortion, intimidation, threats, etc. - by Defendants and their counsel. Therefore, Judge Lee’s acts CLEARLY VIOLATE the Mississippi Code of

Judicial Conduct. See EXHIBIT “5” – Code of Judicial Conduct (Mississippi) attached hereto and

incorporated by reference as if set forth in full herein.

28 USC § 455 - Disqualification of justice, judge, or magistrate judge

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge

of disputed evidentiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) Where he has served in governmental employment and in such capacity participated

as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding; (iii) Is known by the judge to have an interest that could be

substantially affected by the outcome of the proceeding; (iv) Is to the judge’s knowledge likely to be a material witness in the

proceeding. (c) A judge should inform himself about his personal and fiduciary financial interests, and

make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household. . . .

See EXHIBIT “3” - 28 USC § 455 attached hereto and incorporated by reference as

if set forth in full herein.

MANDATORY DISQUALIFICATION is required when “ONE” of the grounds specifically

enumerated in statute applies – i.e. for instance, as in this instant lawsuit, grounds for Judge Tom

Stewart Lee’s disqualification is required pursuant to 28 USC § 455 and/or the applicable statutes/laws

governing said matters:

Renteria v. Schellpeper, 936 F.Supp. 691 (1996) - [6] If one of grounds specifically enumerated in statute applies, disqualification of judge is mandatory whether or not reasonable person would

question judge's impartiality. 28 U.S.C.A. § 455(b). . . . [6] . . .If one of the provisions of section 455(b) applies then disqualification is mandatory whether or not a reasonable person would question the judge's impartiality. Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 859 n. 8, 108 S.Ct. 2194, 2202 n. 8, 100 L.Ed.2d 855 (1988).

CLEARLY Judge Tom S. Lee is adamant and it appears is refusing to RECUSE himself as required by

statutes/laws governing said matters. Therefore, it appears that the proper INVESTIGATION(S) as with

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other CORRUPT Judge(s) as G. Thomas Porteous, may be necessary in having Judge Lee removed from

lawsuits involving Newsome. Furthermore, involving matters of PUBLIC Interest in which Judge Lee is

associated may have to be resolved through IMPEACHMENT proceedings. Clearly it is obvious that

Judge Tom Stewart Lee is placing his JUDICIAL FATE in the “banking” on and/or “placing all of his

eggs” in the basket/relationship of Baker Donelson Bearman Caldwell & Berkowitz. Newsome have

already initiated further legal and proper CONGRESSIONAL actions involving Judge Tom Stewart

Lee. Even if the United States Congress may be dragging its feet and/or attempting to OBSTRUCT such matters, ALL that is required of Newsome is to PROVE by facts, evidence and legal conclusions that proper legal recourse for redress has been met. See pleading filed at Doc. No. 2 of this instant Lawsuit

– See EXHIBIT “6” – Docket Sheet for this action attached hereto. Newsome’s burden has been met

and this Court has been timely, properly and adequately notified of same. It matters NOT that there are

attempts by law firms such as Baker Donelson Bearman Caldwell & Berkowitz and members of such

CONSPIRACIES that may be members of the United States of America Congress, Supreme Court of the

United States of America, etc. OBSTRUCTING the ADMINISTRATION of JUSTICE, Newsome need

only PROVE and SHOW through EVIDENCE that she has initiated legal actions and has done so.

Legal actions which clearly appears may require additional measures permissible under the statutes/laws governing matters when the United States of America’s Congress, etc. FAILS to act to protect the INTEREST of the PEOPLE and/or PUBLIC-AT-LARGE!

4. In accordance with the statutes/laws governing said matters, Newsome has timely, properly and

adequately PRESERVED said issues such as the CONFLICT-OF-INTEREST and other issues raised in her Motions to Strike the Defendants’ pleadings filed in this lawsuit. See for instance EXHIBIT “7” –

“Waiver Of Loss Of Right To Disqualify Judge By Participation In Proceedings . . .” attached hereto

and incorporated by reference as if set forth in full herein.

5. That Newsome further OBJECTS to the assignment of a Magistrate to this Lawsuit in that she has

timely, properly and adequately NOTIFIED this Court in writing as to her OBJECTIONS.

Furthermore, said OBJECTION is in accordance with Rules governing said matters as well as in

accordance to Rule 73 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636 and any and all

applicable statutes/laws governing said matters. Furthermore, Newsome states in support thereof:

Rule 73 Federal Rules of Civil Procedure:

(a) Trial by Consent. When authorized under 28 U.S.C. §636(c), a magistrate judge may, if all parties

consent, conduct a civil action or proceeding, including a jury or nonjury trial. A record must be made in accordance with 28 U.S.C. §636(c)(5).

(b) Consent Procedure:

(1) In General. When a magistrate judge has been designated to conduct civil actions or proceedings, the clerk must give the parties written notice of their opportunity to consent under 28 U.S.C. §636(c). To signify their consent, the parties must jointly or separately file a statement consenting to the referral. A district judge or magistrate judge may be informed of a party's response to the clerk's notice only if all parties have consented to the referral.

(2) Reminding the Parties About Consenting. A district judge, magistrate judge, or other court official may remind the parties of the magistrate judge's availability, but must also advise them that they are free to withhold consent without adverse substantive consequences.

(3) Vacating a Referral. On its own for good cause—or when a party shows extraordinary circumstances—the district judge may vacate a referral to a magistrate judge under this rule.

See EXHIBIT “8” – Rule 73 of the Federal Rules of Civil Procedure attached hereto and incorporated

by reference as if set forth in full herein. In fact, this Court has the REQUIRED Form AO 085 that was

to be distributed to parties NOTIFYING of Magistrate Assignment (if any) – See EXHIBIT “9” – Form

AO 085 which has been marked DECLINED attached hereto and incorporated by reference as if set

forth in full herein. Nevertheless, this Court failed to comply with the statutes/laws governing said

matters. As a direct and proximate result of this Court to comply with the MANDATORY

requirements of said Rule 73 and any and all applicable statutes/laws governing said matters, Newsome

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has been irreparably injured/harmed and deprived rights – i.e. equal protection of the laws, privileges

and immunities, and due process of laws guaranteed under the United States Constitution and other

governing laws.

6. Newsome hereby timely, properly and adequately OBJECTS to this Court’s FAILURE and Defendants

and their Counsel’s FAILURE to provide this Court and Newsome with the REQUIRED information

and/or documentation advising of “CONFLICT-OF-INTEREST” in accordance with the Mississippi

Rules of Professional Conduct (“MRPC”). See EXHIBIT “10” – MRPC attached hereto and

incorporated by reference as if set forth in full herein.

Newsome on or about July 18, 2012, has in good-faith requested that Named Defendants and their

Counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) provide her with this MANDATORY

information. Clearly the SHAM/BOGUS/FRIVOLOUS Motion To Stay All Proceedings Pending A

ruling On Defendants’ Motion To Dismiss (“Motion to Stay”) and Memorandum In Support Of Motion To Stay All Proceedings Pending A Ruling On Defendants’ Motion To Dismiss (“Memorandum in

Support”) of this instant Lawsuit by Named Defendants’ counsel are attempts to EVADE and/or AVOID having to provide the names of additional members of the CONSPIRACIES and CRIMINAL/CIVIL wrongs leveled against Newsome who may also be rightful DEFENDANTS to this

lawsuit (i.e. which the required preservations have been made in the COMPLAINT by including “DOES

1 – 100 in their official and individual capacities” should further identities become known during the

litigation of this Lawsuit).

7. UNDISPUTED is the fact that Page Kruger & Holland, P.A. is a “PRIVATE” company/corporation.

Therefore, subject to the provisions of 42 U.S.C. § 1981 and any and all other statutes/laws governing

said matters.

Plummer vs. Chicago Journeyman Plumbers' Local Union No. 130, U.A., 452 F.Supp. 1127 (1978)

- . . . plaintiff's action under section pertaining to equal rights under the law would stand. . . [19] Plaintiffs alleging discrimination in employment could have proceeded by first bringing action under civil rights section pertaining to equal rights under the law to avoid any statute of limitations problems. . .or plaintiffs could also have proceeded with separate and independent action under equal rights under the law section . . . [25] Section of Civil Rights Act pertaining to equal rights under the law provides federal

remedy against discrimination in PRIVATE employment on the basis of race, whereby

claimant may be entitled to legal and equitable relief, irrespective of whether claimant has pursued Title VII administrative remedies. . . . [19] Plaintiffs correctly state that the Supreme Court suggested in Johnson v. Railway Express Agency, supra, 421 U.S. at 465, 95 S.Ct. 1716, that plaintiffs file their section 1981 suit to avoid the tolling of the statute of limitations while the EEOC processes their Title VII charges. Nonetheless, this suggestion does not support the procedure that plaintiffs followed. They filed their Title VII suit, while three plaintiffs were still processing their charges through the EEOC, in

order to file in conjunction with their section 1981 action. They then filed two amended complaints after these plaintiffs received right to sue notices. The Court in Johnson v. Railway Express Agency, supra at 466, 95 S.Ct. 1716, stated that section 1981 and Title VII are separate and independent remedies for discrimination. Plaintiffs could have proceeded by first bringing a section 1981 action to avoid any statute of limitations problem. They could then have petitioned the court for a stay of the section 1981 action until the Title VII efforts at conciliation and voluntary compliance had been completed. Id. at 465, 95 S.Ct. 1716. At that point, they could have filed a supplemental pleading pursuant to Fed.R.Civ.P. 15(d), adding the Title VII claim. Plaintiffs could

also have proceeded with the separate and independent section 1981 action. They could then have filed their Title VII action after jurisdictional prerequisites had been fulfilled and could have sought consolidation pursuant to Fed.R.Civ.P. 42(a). Plaintiffs' procedure of filing their Title VII claims before jurisdictional prerequisites had been completed certainly did not provide an orderly procedure. Their continued updating with respect to the satisfaction of Title VII jurisdictional prerequisites resulted in two amendments to the complaint and five rounds of complex briefing. – See EXHIBIT “11” – Plummer matter attached hereto and incorporated by reference as if set forth in full herein.

8. UNDISPUTED is the fact that Defendants’ Motion to Dismiss and supporting Memorandum Brief in

this lawsuit is premised on claims brought under 42 U.S.C. § 1983 against “STATE” and/or

“Government” employers/officials/employees. UNISPUTED is the fact that Newsome’s instant lawsuit

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is a premised on 42 U.S.C. § 1981 – Equal Rights Under The Law which allows for one to “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is enjoyed by white citizens . . .” Therefore,

NOT even with a MAGNIFYING GLASS will a JURY and Court find any such § 1983 claims as asserted

by the Defendants in this lawsuit.

9. UNDISPUTED is the fact that as with Defendants’ Motion to Dismiss and supporting Memorandum

Brief in this lawsuit their recent filings requesting Staying of action also appears to have been taken

from their Counsel’s FORMS Pleading Manual and or that of its CONSPIRING outside Law Firms with

an interest in this lawsuit (EMPHASIS added). Furthermore, the frivolous allegations asserted by

Defendants and their Counsel clearly are IRRELEVANT and: (i) an insufficient defense to the

Complaint filed by Newsome; (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and

provided for purposes of delay, harassment, obstructing justice, embarrassment, sham/frivolousness,

commit fraud upon this Court, and other reasons known to Defendants and their Counsel.

10. Named Defendants’ filing of Motion to Stay and

Memorandum In Support it appears are

FRIVOLOUS efforts to keep Newsome out of

their “TREASURE CHEST” and efforts to

deprive her of “INITIAL DISCLOSURE”

information MANDATORILY required to be released to Newsome pursuant to Rule 26 of the

Federal Rules of Civil Procedure. Moreover,

FRIVOLOUS attempts by Named Defendants and

their counsel (Phelps Dunbar/W. Thomas Siler,

Jr./Jason T. Marsh) to

UNLAWFULLY/ILLGALLY withhold the

release of Insurance information

MANDATORILY required to be released

pursuant to Rule 26 (a)(1)(A)(iv) of the FRCP.

See EXHIBIT “2” – FRCP Rule 26 attached

hereto and incorporated by reference as if set forth

in full herein. Furthermore, according to

information contained in Defendant Page Kruger

& Holland’s Corporate Annual Reports filed with the State of Mississippi – Secretary of State it

provides information regarding “Stocks Shares Authorized, Issued & Outstanding” which reflects, for

instance, from approximately August 2006 through January 2012 the issuance of THEIR Stock Shares

from approximately 7,400 to 9,000. See EXHIBIT “66” – Page Kruger & Holland Corporate Annual

Reports attached hereto and incorporated by reference as if set forth in full herein.

http://www.slideshare.net/VogelDenise/page-kruger-holland-phelps-dunbar-clients

The Fifth Circuit Court of Appeal in Hall vs. Aetna Casualty and Surety Company, 617 F.2d 1108 (5th

Cir. 1980) finding:

Fact that defendant insurer furnished a version of its policy including special endorsements referring to an exclusion allegedly applicable to plaintiff's claim did not put plaintiff on notice of the exclusion since insurer's duty was to produce entire contract on pretrial discovery and although it did so the subject special endorsement by itself was incomprehensible in that it was not reference to any particular coverage. See EXHIBIT “12” – Hall matter attached hereto and incorporated by reference as if set forth in full herein.

Other Court Courts finding:

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Excelsior College v. Frye, 233 F.R.D. 583 (2006) - Holdings: The District Court, Papas, United States Magistrate Judge, held that: (1) discovery rule mandating disclosure of insurance

information merely requires the disclosure of an insurance policy or other agreement that gives rise to an insurer's obligation to indemnify or hold its insured harmless for a judgment . . . [1] A plain reading of discovery rule governing mandatory disclosure of insurance

information indicates it is clearly designed for parties to produce documentation of any insurance policies that give rise to an insurer's obligation to indemnify or hold its insured harmless for a judgment. See EXHIBIT “12” – Excelsior College matter attached hereto and incorporated by reference as if set forth in full herein.

Woldum v. Roverud Construction, Inc., 43 F.R.D. 420 (1968) - On defendant's objections to interrogatories asking whether defendant carried liability insurance at time of accident, name and address of insurer, name of insured, and amount of coverage, on grounds that they were an attempt

to inquire into privileged matters, and were incompetent, irrelevant and immaterial. The District Court, McManus, Chief Judge, held that permitting discovery of existence and amount of

insurance coverage would better further word and spirit of federal discovery rules than to deny it. Objections overruled.

[1] Interrogatories asking whether defendant carried liability insurance at time of accident,

the name and address of insurer, the name of insured, and amount of coverage were not improper on grounds that they were an attempt to inquire into privileged matters, and were

incompetent, irrelevant and immaterial. Fed.Rules Civ.Proc. Rule 1, 28 U.S.C.A. [2] Overriding purpose of federal discovery rules is to promote full disclosure of all facts

to aid in fair, prompt and inexpensive disposition of lawsuits. Fed.Rules Civ.Proc. Rule 1, 28 U.S.C.A.

[3] Permitting discovery of existence and amount of insurance coverage would better

further word and spirit of federal discovery rules than to deny it. Fed.Rules Civ.Proc. Rule

1, 28 U.S.C.A.

[1] In this action damages are sought for . . . injuries allegedly suffered by plaintiff . . . by an employee of defendant. The interrogatories in question ask whether defendant carried liability insurance at the time of the accident, the name and address of the insurer, the name of the insured, and the amount of coverage. Defendant objects on the grounds that said interrogatories are ‘an attempt to inquire into privileged matters, not proper interrogatories, incompetent, irrelevant and

immaterial.’

[2] [3] . . . It is this court's view that the better rule is that taken by courts allowing discovery. E. g., Slomberg v. Pennabaker, 42 F.R.D. 8 (M.D.Pa.1967); Cook v. Welty, 253 F.Supp. 875 (D.D.C.1966); Ash v. Farwell, 37 F.R.D. 553 (D.Kan.1965); 41 A.L.R.2d 968 and Supplement Service. The overriding purpose of the federal discovery rules is to promote full disclosure of all facts to aid in the fair, prompt

and inexpensive disposition of lawsuits. Rule 1, F.R.Civ.P., requires that the federal rules ‘be construed to secure the just, speedy, and

inexpensive determination of every action.’ It would seem that permitting discovery of the existence and amount of coverage better furthers the word and spirit of the rules than to deny it.

It is therefore ordered Defendant's Objections to Interrogatories, filed December 29, 1967, are overruled. See EXHIBIT “13” –

Woldum matter attached hereto and incorporated herein by reference as if set forth in full herein.

11. For this Court to grant Defendants’ Motion to Dismiss, Newsome would be prejudiced and deprived equal protection of the laws, equal immunities and privileges and due process of laws. Rights

secured/guaranteed under the United States Constitution and other governing laws.

A. JURISDICTIONAL/STATUTE OF LIMITATIONS:

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Walton v. Utility Products, Inc., 424 F.Supp. 1145 (D.C.Miss. 1976 ) - (n.1) Since statute guaranteeing equal rights under the law contains no statute of limitations, period of limitations applicable to action under statute is determined by reference to most analogous statute of limitations in force in state in which cause of action arises. 42 U.S.C.A. § 1981.2

See EXHIBIT “14” - Walton v. Utility Products, Inc. attached hereto and incorporated herein by

reference as if set forth in full herein. This citation is not new to the Defendants in this lawsuit in that it

is addressed at Footnote (“Fn.”) 6 at page 7 of the Complaint. Along with other case law provided in:

Heath v. D. H. Baldwin Co., 447 F.Supp. 495 (N.D.Miss.Greenville.Div., 1977) - General six-year statute of limitations in Mississippi was applicable to suit by . . .employee against employer . . . claiming racial discrimination. Code Miss. 1972, § 15-1-49; 42 U.S.C.A. § 1981. Howard v. Sun Oil Co., 294 F.Supp. 24 (S.D.Miss.Hattiesburg.Div.,1967) - Ordinarily, suit in tort for damages brought more than six years after commission of tort is barred by Mississippi six-year

statute of limitations. Code Miss.1942, § 722.

See Fn.6 at page 7 of Complaint filed in this instant lawsuit. Moreover, EXHIBITS “15” – Heath and

“16” – Howard respectively attached hereto and incorporated by reference as if set forth in full herein.

Newsome having highlighted information that is PERTINENT and RELEVANT in that it goes to the

relief of SANCTIONS that Newsome seeks of and against Defendants and/or their Counsel – i.e.

supports what facts, evidence and legal conclusions were available at the time of their preparation of the Motion to Stay [Doc. No. 9] and supporting Memorandum Brief [Doc. No. 10] submitted in this

lawsuit.

12. Newsome believes this Court upon receipt of the Complaint in this lawsuit, may have reviewed the

“CIVIL COVER SHEET” and statements provided under “JURISDICTION” of Complaint and

determined arguments to be well-founded and proceeded to file Newsome’s lawsuit.

Truvillion vs. King's Daughters Hospital, 614 F.2d 520 (5th Cir. Miss. 1980) - . . .(4) claim against

employer grounded on civil rights statute was governed by Mississippi six-year catchall statute of limitations rather than three-year statute of limitations governing unwritten contracts. . . . [6] Job discrimination suit filed under civil rights statute was governed by Mississippi six-year catchall statute of limitations, rather than three-year statute of limitations governing unwritten contracts. . . [6] . . ."(a) person suing under Section 1981 to enforce his right to be free of

discrimination predicates his claim on the right to contract guaranteed in the statute. The

2 [1] The court rejects defendant's contention that the three-year limitations period of Miss.Code Ann. § 15-1-29 (1972) bars

plaintiff's section 1981 claim. Defendant correctly states that since section 1981 contains no statute of limitations, the applicable period of

limitations is determined by reference to the most analogous statute of limitations in force in the state in which the cause of action arises. Section

15-1-29 pertains to actions founded on implied contracts. . . .

(n. 2) Under law of Mississippi, general six-year period of limitations rather than three-year period of limitations which

applies to action founded on implied contracts and action to recover back pay governs employment discrimination suit charging violation of

federal statute guaranteeing equal rights under the law. 42 U.S.C.A. § 1981; Code Miss.1972, §§ 15-1-29, 15-1-49.

(n. 3) Under law of Mississippi, three-year statute of limitations applicable to action seeking recovery of back wages acts as

limitation upon back pay liability of employer charged with racial discrimination but does not operate to bar entire back pay claim or claim for

declaratory or injunctive relief. 42 U.S.C.A. § 1981; Code Miss.1972, § 15-1-29.

(n. 4) Under law of Mississippi, employee's claim against employer charging violation of federal statue guaranteeing equal

rights, filed within six years of alleged racial discrimination, was not time barred. Code Miss.1972, § 15-1-49; 42 U.S.C.A. § 1981.

[2] [3] [4] This court is of the opinion that the reasoning . . . is equally applicable to a section 1981 employment discrimination

action. As there is no Mississippi statute of limitations for civil rights actions, or a specific Mississippi statue of limitations for actions analogous

to actions based on racial discrimination in employment, the general six-year period of limitations provided by Miss.Code Ann. § 15-1-49,

rather than the three-year period provided by section 15-1-29, determines the time within which a section 1981 employment discrimination suit

must be filed. As noted previously, section 15-1-29 does act as a limitation upon an employer's back pay liability, but it does not operate to bar

the entire back pay claim, or a claim for declaratory or injunctive relief.FN1 Since plaintiff filed his section 1981 claim well within the six-year

period, defendant's motion to dismiss this portion of the complaint must be denied.

[5] The court also does not agree with defendant's contention that Title VII relief is precluded because of plaintiff's failure to file this

action within 90 days of receipt of the EEOC failure of conciliation notice . . . . Defendant's motion to dismiss the Title VII aspects of plaintiff's

complaint is accordingly denied.

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contractual nature of claim under Section 1981 dictates application. . . But the statutory right Ms. Truvillion asserts is not the right to enforce an unwritten contract as the district court assumed . . . Because Mississippi has no statute of limitations designed to cover actions seeking redress for the tort of employment discrimination, the State's catch-all statute is applicable. [FN16] See Heath v. D.H. Baldwin Co., N.D. Miss. 1979, 447 F.Supp. 495, 504; Walton v. Utility Products, Inc., N.D.

Miss. 1976, 424 F.Supp. 1145, 1147. The statute runs for six years, and does not bar Ms. Truvillion's claim.

FN16. The statute provides: All actions for which no other period of limitation is prescribed shall be

commenced within six years next after the cause of such action accrued, and not after.

See EXHIBIT “17” – Truvillion matter attached hereto and incorporated by reference as if set forth in full herein.

13. The filing of this lawsuit should come as no surprise to Defendants Page Kruger & Holland, P.A.

(“PKH”), Thomas Y. Page (“TPage”), Louis G. Baine III (“LBaine”), and Linda Thomas. (“LThomas”)

[collectively known as “Named Defendants”] because the record evidence will support that as early as

May 16, 2006, Named Defendants were timely, properly and adequately notified of Newsome’s intent to

bring a lawsuit. See EXHIBIT “18” – Newsome’s May 16, 2006 Email to Named Defendants attached

hereto and incorporated by reference as if set forth in full herein. Said email which states in part:

In that I believe that I have been unlawfully terminated, I am requesting that PKH PRESERVE

my employment records, any other documents, audio, etc. regarding my employment and

reasons for termination.

In that PKH was given an opportunity to provide me with written documentation as to their reasons for my termination, I will only conclude that any other reasons which may be offered AFTER the fact/termination will be PRETEXT in nature - provided in an effort to COVER-

UP/SHIELD PKH's unlawful employment action taken against me.

Said email was also provided with the Complaint in this lawsuit at Exhibit VI. It is an UNDISPUTED

fact that Named Defendants ACKNOWLEDGE referenced statement as sufficient NOTIFICATION

on Newsome’s intent to bring suit and/or legal action regarding her termination. The U.S. Supreme

Court finding:

Burnett v. New York Cent. R. Co., 85 S.Ct. 1050 (1965) - Statutes of limitations are designed primarily to assure fairness to defendants; they promote justice by preventing surprises through revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. Policy of repose, designed to protect defendants, is frequently outweighed where interests of justice require vindication of plaintiff's rights.

Beach v. Ocwen Federal Bank, 118 S.Ct. 1408 (1998) - The object of a statute of limitation in keeping stale litigation out of the courts would be distorted if statute were applied to bar otherwise legitimate defense to timely lawsuit, for limitation statutes are aimed at lawsuits, not at consideration of particular issues in lawsuits. [EMPHASIS ADDED].

Named Defendants CANNOT say that evidence was lost and/or assert memories have faded, etc.

because they were timely, properly and adequately requested to PRESERVE the record. Named

Defendants and their counsel’s FRIVOLOUS assertion alleging § 1983 claims NOT provided in

Newsome’s Complaint clearly supports their KNOWLEDGE that any attacks against Newsome’s claims

as being TIME BARRED is (i) an insufficient defense to the Complaint filed by Newsome; (ii)

redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for purposes of delay,

harassment, obstructing justice, embarrassment, sham/frivolousness, commit fraud upon this Court, and

other reasons known to Defendants and their Counsel. Furthermore, the record evidence will support

that Named Defendants and their counsel have been WELL ENGAGED in CONTINUED and

ONGOING conspiracies and criminal/civil wrongs leveled against Newsome since her unlawful/illegal

termination of employment and TO DATE have NOT ceased from engaging in such unlawful/illegal

practices.

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14. It is well-settled by the court(s) that claims and/or cause of action is the determining factor as to which

statute-of-limitation is applicable:

King v. Otasco, Inc., 861 F.2d 438 (5th Cir.Miss.,1988) - When suit alleges several distinct causes of action, even if they arise from single event, applicable limitations period must be determined by

analyzing each cause of action separately, rather than by determining “essence” of plaintiff's claims considered as a whole. Plaintiffs cannot be allowed to obtain trials for intentional tort claims after statute of limitations has barred them merely by engaging in artful pleading; if however, claim can plausibly withstand motion to dismiss or for summary judgment, it cannot be treated as mere rewording of barred claim, and thus, instead of probing for essence of suit, district court should analyze each

claim on its own merits.

Alexander v. Taylor, 928 So.2d 992 (Miss.App.,2006) - What limitations statute or statutes apply is determined from an examination of the claims that are made. Shaw v. McCorkle, 537 F.2d 1289 (5th Cir.Miss.,1976) - In choosing applicable state statute of limitations to apply to action brought under civil rights statute, court must ground its decision on the basis of which statute will best effectuate the congressional policies underlying the civil rights statute.

In this instant lawsuit Newsome brings the following Counts and claims, facts, evidence and legal

conclusions to sustain them will support that Newsome’s claims are subject to the six-year statute of

limitation and are not barred – while some of the Counts may be misnumbered, it has NO bearing on the claims, facts and legal conclusions provided by Newsome to support her Complaint. Moreover,

misnumbering is a MINOR issue which can be corrected through an Amended Complaint should it be

deemed necessary. The supporting statements of claims are set forth in PARAGRAPHS in the

Complaint and are DISTINCTLY numbered as required by the Rules/Statutes governing said matters.

The Counts being as follows: Count I - 42 USC § 1981: Equal Rights Under The Law Against

Defendants; Count II - 42 USC § 1985: Conspiracy To Interfere With Civil Rights and 42 USC § 1981:

Equal Rights Under The Law Against Defendant(s); Count III - 42 USC § 1986: Action For Neglect To

Prevent and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count IV - Negligent

Interference with Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s);

Count V - Discrimination in Employment and 42 USC § 1981: Equal Rights Under The Law Against

Defendant(s); Count II [Sic] – Retaliation and 42 USC § 1981: Equal Rights Under The Law Against

Defendant(s); Count IIIII [Sic] - Breach Of Express Employment Agreement 42 USC § 1981: Equal

Rights Under The Law Against Defendant(s); Count VIII – Breach Of The Covenant Of Good Faith

And Fair Dealing 42 USC § 1981: Equal Rights Under The Law Against Defendant(s); Count IX –

Negligent Infliction Of Emotional Distress and 42 USC § 1981: Equal Rights Under The Law Against

Defendant(s); Count X – Fraud Against [sic] and 42 USC § 1981: Equal Rights Under The Law Against

Defendant(s); Count XI – Negligent Interference With Employment – Malicious Conspiracy To Cause

Discharge From Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s);

Count IVII – Violation of the Fourteenth Amendment of the U.S. Constitution – Due Process and 42

USC § 1981: Equal Rights Under The Law; and Count VII – Violation of the Fourteenth Amendment of

the U.S. Constitution – Equal Protection and 42 USC § 1981: Equal Rights Under The Law Against

Defendant(s)

I. MOTION TO STRIKE/

CONSOLIDATION OF DEFENSES

Pendleton County v. Amy, 80 U.S. 297 (1871) - Defendant's pleas which were inartistically framed

and were argumentative and set up nothing which could not have been taken advantage of for what it was worth under the general issue might have been stricken from the record on motion. Brown v. Lamb, 112 Ohio App. 116, 171 N.E.2d 191 (1960) - (n.4) Motions to strike pleadings and papers from the files are ordinarily employed to strike pleadings for failure to comply with previous

orders . . . or to test its form with respect to certification, and the office of such motions is not to inquire into the merits of the case.

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(n.8) A pleading is “frivolous” when it is clearly insufficient on its face and does not controvert material points of the opposite pleading and is presumably interposed for mere purposes of delay or to embarrass the opponent. Sherrill v. Stewart, 21 So.2d 11 (Miss.,1945) - A “frivolous pleading” is one so clearly untenable

or the insufficiency of which is so manifest upon bare inspection of pleading that court is able to determine its character without argument or research. McDowell v. Minor, 131 So. 278 (Miss.,1930) - Where pleading is manifestly sham and frivolous, motion to strike is available.

Pursuant to Rule 12 (F) of the Federal Rules of Civil Procedure, Newsome through this MTS-

MTSTAY&MFR11SDEFAULT moves this Court to strike the statements, contents and any supporting exhibits of

Defendants’ Motion To Stay All Proceedings Pending A ruling On Defendants’ Motion To Dismiss and Memorandum

In Support Of Motion To Stay All Proceedings Pending A Ruling On Defendants’ Motion To Dismiss. Under said

Rule it states:

Rule 12(F) Motion to Strike. The Court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 20 days after being served with the pleading.

Therefore, in an effort to provide specificity Newsome moves for the striking of contents/statements in Defendants’

Motion to Stay and the supporting Memorandum In Support in that the asserted Rule 12 (b)(6) Motion to Dismiss and

its Memorandum Brief are IRRELEVANT and IMMATERIAL to this instant lawsuit. In further support of this

instant MTS-MTSTAY&MFR11SDEFAULT, Newsome moves this Court to strike the contents/statements for the

following reasons:

A. MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’

MOTION TO DISMISS (“MOTION TO STAY”)

The entire contents of “Motion to Stay” which include; however, is not limited to the Style and Headings of

said pleading in that it is: (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for

purposes of delay, harassment, obstructing justice, increasing costs of litigation, embarrassment, sham/frivolousness,

unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasons known to

Defendants and their Counsel and the following:

15. Opening paragraph on Page 1 which begins with “COME NOW, Defendants, Page Kruger & Holland,

P.A. (“PKH”), Thomas Y. Page, Louis G. Baine, III, and Linda Thomas” in that it is - (ii) redundant;

(iii) immaterial; (iv) impertinent and/or (v) scandalous and provided for purposes of delay, harassment, obstructing justice, increasing costs of litigation, embarrassment, sham/frivolousness, unduly

burdensome, provided for purposes of committing fraud upon this Court, and other reasons known to

Defendants and their counsel (Phelps Dunbar LLP, W. Thomas Siler, Jr. and Jason T. Marsh

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[hereinafter, “Phelps Dunbar,” “Siler” and/or “Marsh”)] hereinafter collectively known as “STRICKEN

STATEMENT CLAUSE.”

16. ¶1 on Page 1 which begins with, “Because Plaintiff filed her claims against Defendants six years after

they accrued” and the referenced Footnote 1 in that they are - “STRICKEN STATEMENT CLAUSE.”

Heath vs. D. H. Baldwin Company, 447 F.Supp. 495 (N.D. Miss. 1977) - . . . (4) Mississippi six-

year statute of limitations was applicable to action under Civil Rights Act of 1870 . . . [5] General six-year statute of limitations in Mississippi was applicable to suit by laid off

employee aganst employer and union claiming racial discrimination. Code Miss. 1972, § 15-1-49;

42 U.S.C.A. § 1981. . . . For the reasons set forth by Chief Judge Keady in Walton v. Utility Products, Inc., 424

F.Supp. 1145, 1147, (N.D. Miss. 1976) the court finds that the 6-year limitation period of Miss. Code Ann. s 15-1-49 (1972) is applicable and therefore Heath's s 1981 claim was timely filed. Defendants' motion to dismiss the s 1981 claim is not well taken and will be denied.

To date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN

SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND

MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by

FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!

17. ¶2 on Page 2 which begins with, “For the reasons fully set forth in corresponding Memorandum in

Support” in that it is - “STRICKEN STATEMENT CLAUSE.”





18. ¶3 on Page 2 which begins with, “In further support of this Motion, Defendants submit the following

exhibit” and the supporting “Exhibit ‘A’ – Email from Vogel Newsome” in that it is - “STRICKEN


UNDISPUTED is the fact that Named Defendants and their counsel resort to EXTRAJUDICIAL

matters and rely upon an UNLAWFUL/ILLEGAL Order in another lawsuit in which the Magistrate

Judge CLEARLY LACKED Jurisdiction to enter and CANNOT be upheld in that it appears from

review of Docket Sheet in Newsome vs. Mitchell McNutt & Sams, at Doc. No. 2 that OBJECTION to

Magistrate assignment was timely, properly and adequately made known to that court. See EXHIBIT

“19” – Docket Sheet Mitchell McNutt & Sams matter attached hereto.

UNDISPUTED is the fact that while Named Defendants and their counsel rely upon an ORDER which it appears from the record evidence may have been obtained through CRIMINAL acts – i.e. BRIBES,

EXTORTION, COERCION, BLACKMAIL, SPECIAL FAVORS, etc. – and DELIBERATELY

FAILS to make KNOWN Magistrate Judge F. Keith Ball’s EMPLOYMENT history with counsel in this

lawsuit (Phelps Dunbar) as well as his TIES/ROOTS/CONNECTIONS with Phelps Dunbar’s

CONSPIRING Law Firm (Baker Donelson Bearman Caldwell & Berkowitz). Moreover, the FACT of

how Baker Donelson Bearman Caldwell & Berkowitz (“Baker Donelson”) relies upon “FRONTING

FIRMS” as Phelps Dunbar - who SHARE clients (i.e. such as Entergy – see for instance Phelps

Dunbar’s Client Listing at EXHIBIT “20” and the Docket Sheet in Newsome vs. Entergy at EXHIBIT

“21” respectively attached hereto and incorporated by reference as if set forth in full herein) - to enter

Lawsuits involving Newsome for purposes of SHIELDING an ILLEGAL ANIMUS and HIDING their

IDENTITY and their and their clients’ INTERESTS from the PUBLIC/WORLD!

19. On Page 2, paragraph which begins with, “WHEREFORE, PREMISES CONSIDERED, Defendants,

Page Kruger & Holland, P.A.” in that it is - “STRICKEN STATEMENT CLAUSE.”



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20. On Page 2, the remaining contents of the Motion to Dismiss in that it is - “STRICKEN STATEMENT

CLAUSE.”

21. On Page 3, the Certificate of Service and the contents therein in that it is - “STRICKEN STATEMENT

CLAUSE.”

22. “Exhibit A” in that it is - “STRICKEN STATEMENT CLAUSE.” See also ¶ 18 above of this instant

pleading.

Now that the statutes/laws governing said matters require the STRIKING of the entire contents, statements,

exhibits, etc. as noted above, there remains NO legal/lawful pleading of record. Therefore, Newsome is entitled to

the relief (Rule 11 Sanctions and DEFAULT Judgment, etc.) sought herein.

B. MEMORANDUM IN SUPPORT OF MOTION TO STAY ALL PROCEEDINGS PENDING A

RULING ON DEFENDANTS’ MOTION TO STAY (“MEMORANDUM IN SUPPORT”)

The Striking of entire contents in “Memorandum In Support” which include; however, is not limited to the

Style and Headings of said pleading in that it is: (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v) scandalous

and provided for purposes of delay, harassment, obstructing justice, increasing costs of litigation, embarrassment,

sham/frivolousness, unduly burdensome, provided for purposes of committing fraud upon this Court, and other

reasons known to Named Defendants and their counsel (Phelps Dunbar LLP, W. Thomas Siler, Jr. and Jason T.

Marsh [hereinafter, “Phelps Dunbar,” “Siler” and/or “Marsh”)] hereinafter collectively known as “STRICKEN

STATEMENT CLAUSE.” In support thereof, Newsome states the following:

23. On the first unnumbered page, the opening paragraph which begins with, “COME NOW, Defendants,

Page Kruger & Holland, P.A. (“PKH”)” in that it is - “STRICKEN STATEMENT CLAUSE.”





24. On first unnumbered page, “I. INTRODUCTION” and paragraph which begins with, “Because Plaintiff

filed her claims against Defendants six years after they accrued” along with the referenced Footnote 1

and the contents therein which begins with, “In her Complaint, Plaintiff asserts a litany of federal

constitutional claims” in that they are - “STRICKEN STATEMENT CLAUSE.”

UNDISPUTED is the fact that Newsome’s Complaint has been filed within six-years. UNDISPUTED

is the fact that Named Defendants are PRIVATE actors. UNDISPUTED is the fact that Newsome’s

Complaint is premised upon 42 U.S.C.A. § 1981 claims and NOT 42 U.S.C.A. § 1983 claims.

Therefore, § 1981 implicitly creates an independent cause of action AGAINST PRIVATE actors

because no other statute created such a remedy; moreover, the acts of Named Defendants are

“CONTINUING” acts to date in which the statute of limitations CONTINUES to run and/or restarts

with EACH overt act.

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UNDISPUTED is the fact, that Newsome’s instant lawsuit has been filed within the six-year statute of

limitation governing said matters but also within the six-year statute of limitation period in that, as

evidenced in this instant lawsuit, Named Defendants and their counsel CONTINUE to engage in

conspiracies that affect Newsome’s “EQUAL Rights Under the Laws!” Therefore, with EACH overt

act by Named Defendants, Newsome’s claims become subject to “TOLLING” doctrine requirements.

This is PERTINENT and RELEVANT information KNOWN to Named Defendants and/or their counsel

(Phelps Dunbar/Siler/Marsh). For instance, see one of PHELPS DUNBAR’S cases – Walker vs. Epps, 550 F.3d 407 (5

th Cir. Miss. 2008):

Under Mississippi law, “continuing tort,” for which limitations period resets at each wrongful act, is one inflicted over period of time; it involves wrongful conduct that is repeated until desisted. See EXHIBIT “22” – Walker matter attached hereto and incorporated by reference.

UNDISPUTED is the fact that PKH is involved in the Newsome vs. Spring Lake Apartment matter.

Which as recent as July 2008 (i.e. approximately FOUR [4] years ago] Newsome had to have removed

from that court and is a matter that Newsome is presently working on through the continued MASSIVE

Conspiracies leveled to obstruct said matter. Continued tort claims are timely, properly and adequately

asserted in Newsome’s Complaint filed in this instant lawsuit:

¶5 Pg. 21 ¶(xii) Pg. 63 ¶214-216 Pg. 94 ¶278 Pg. 121

¶(xii) Pg. 22 ¶165 Pg. 70 ¶217 Pg. 95 ¶1 Pg. 122 ¶105 Pg. 41 ¶170 Pg. 71 ¶l Pg. 96 ¶292 Pg. 127 ¶¶106, 107 Pg. 43 ¶175 Pg. 73 ¶ 233-235 Pg. 108 ¶296 Pg. 127 ¶110 Pg. 47 ¶176 Pg. 74 ¶237, 238 Pg. 109 ¶297 Pg. 130 ¶117 Pg. 48 ¶177 Pg. 75 ¶m Pg. 111 ¶298 Pg. 130 ¶119 Pg. 49 ¶(xii), (xvii) Pg. 77 ¶245 Pg. 112 ¶1 Pg. 131 ¶ (xii) Pg. 51 ¶188 Pg. 82 ¶253, 259 Pg. 114 ¶136 Pg. 60 ¶197 Pg. 85 ¶260 Pg. 115

¶138-139 Pg. 61 ¶198-199 Pg. 87 ¶261 Pg. 116 ¶140 Pg. 62 ¶l Pg. 89 ¶l Pg. 117





Furthermore, it is UNDISPUTED that Named Defendants’ Motion to Dismiss (i.e. in that it appears in

their TRICKERY in the use of the pen/computer, it appears that the relief sought may be that of

summary judgment) and Motion to Stay are NOT supported by Affidavits because they have FULL

KNOWLEDGE that their Motions have been submitted in bad faith and/or for purposes of delay, harassment, obstructing justice, increasing costs of litigation, embarrassment, sham/frivolousness, unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasons

known to Named Defendants and their counsel.

Myers v. Mississippi Office of Capital Post-Conviction Counsel, 720 F.Supp.2d 773 (S.D. Miss. Jackson 2010) - Section 1981 implicitly creates an independent cause of action against private

actors because no other statute created such a remedy, but does not create any right of action against state actors separate from § 1983. 42 U.S.C.A. §§ 1981, 1983. Tramble v. Converters Ink Co., 43 F.Supp. 1350 (1972) - [2] Civil rights statute generally guaranteeing equal rights under the law applies to private job discrimination based on race and is not limited to acts under color of state law. 42 U.S.C.A. § 1981.

Moreover, it appears that Named Defendants are eyeing cases outside this lawsuit involving Newsome;

therefore, a reasonable mind/person may conclude that from the Newsome vs. Mitchell McNutt & Sams

matter [USDC Southern District of Mississippi/Jackson, 3:10-cv-704], filed approximately SIX-YEARS

from the date of her termination with Mitchell McNutt & Sams (“MMS”) – i.e. termination date being

approximately December 3, 2004, and Newsome’s lawsuit was received and filed by this Court on or

about December 3, 2010. As with the “MMS” matter, upon reviewing of pleading PRIOR to

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DOCKETING and FILING, this Court was SATISFIED that the Complaint , as in this instant Lawsuit, was ALSO TIMELY filed, the FILING FEE PAID and therefore, DOCKETED the matter.

25. On Page 2, continuance of paragraph from first unnumbered page which states, “this matter, as well as

preserve important judicial resources” in that it is - “STRICKEN STATEMENT CLAUSE.”





26. On Page 2, “II. FACTUAL BACKGROUND” and paragraph which begins with, “Plaintiff began

working for PKH as a temporary legal secretary” along with the referenced Footnotes 2, 3, and 4 as well

as the contents therein, in that they are - “STRICKEN STATEMENT CLAUSE.”

UNDISPUTED is the NEXUS/CAUSAL Link between Newsome’s March 15, 2006, lawsuit (i.e. in

Newsome vs. Spring Lake Apartments LLC, et al. - a protected activity which alleges discriminatory

practices, etc.) and PKH’s May 15, 2006 termination (approximately two (2) months later) of Newsome’s employment based on being contacted and notified of her engagement in this lawsuit and/or

other protected activities. See EXHIBIT “18” – Newsome’s May 16, 2006 Email attached hereto and

incorporated herein by reference as if set forth in full herein. PKH’s termination of Newsome’s employment coming approximately three (3) days prior to hearing/proceedings on or about May 18,

2006, in Newsome vs. Spring Lake Apartments LLC, et al. [EMPHASIS added]. See EXHIBIT “23” –

Motion Docket Sheet attached hereto and incorporated by reference. Note: Also provided at Exhibit VII

of Complaint filed in this lawsuit.





The prohibited retaliatory practices of PKH were KNOWN at the time Named Defendants counsel

(Phelps Dunbar/Siler/Marsh) executed the Motion to Dismiss and supporting Memorandum Brief. For

instance see one of PHELP DUNBAR’S cases - Callahan v. Bancorpsouth Ins. Services of Mississippi,

Inc., 244 F.Supp.2d 678 (S.D. Miss. S.Div. 2002):

[3] Title VII prohibits retaliation in either of two instances: ( 1) where the employee has opposed any unlawful employment practice; or (2) where the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing. Civil Rights Act of 1964, § 704(a), 42 U.S.C.A. § 2000e–3(a). – EXHIBIT “24” Callahan matter attached hereto and incorporated by reference as if set forth in full herein.

UNDISPUTED is that Actions brought pursuant to 42 USC § 1981 are governed by the SAME

standards applicable to claims raised under Title VII.

27. On Page 2, paragraph which begins with, “Plaintiff’s employment with PKH ended on May 15, 2006”

along with the referenced Footnotes 5 and 6 as well as the contents therein, in that they are -

“STRICKEN STATEMENT CLAUSE.”

UNDISPUTED is the fact that this instant lawsuit premised on 42 USC § 1981 claims, etc. was filed

within six years of the alleged violations and CONTINUING violations [EMPHASIS added]

addressed in this lawsuit. Furthermore, UNDISPUTED is the fact that Newsome’s claims premised

on 42 USC § 1981 fall under “all actions for which no other period of limitation is prescribed shall be commenced within six years;” therefore, the six-year statute of limitation under Mississippi’s

CATCHALL statute is applicable pursuant to Mississippi Code Ann. § 15-1-49:

Gates vs. Spinks, 771 F.2d 916 (5th

Cir. S.D. Miss. 1985) - FN1. Although Mrs. Gates formally denominated her complaint as being brought pursuant to “Title 42, U.S.C., Section 1981, et seq.”,

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the substance of the complaint states a cause of action only under section 1983. We therefore treat Mrs. Gates' claim as one brought pursuant to § 1983. FN2. Section 15-1-49. Limitations applicable to actions not otherwise specifically

provided for - All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after.

. . . The six-year statute (section 15-1-49) is more general in the sense that it is a general residual statute that applies to a broad class of actions-tort, contract or statutory-not otherwise provided for.

A reasonable person/mind may conclude that Named Defendants’ counsel’s KNOWLEDGE that

Newsome’s Complaint premised on 42 USC § 1981 claims are subject to the six-year statute of limitations. Therefore, Named Defendants’ counsel has FRIVOLOUSLY attempted to assert 42 USC §

1983 claims – i.e. as evidenced in the “CLUMP” of trashed Opinions dumped on this Court - when no

such § 1983 claims are made by Newsome through her Complaint filed in this lawsuit.





28. On Page 2, paragraph which begins with, “Because Plaintiff’s claims are time barred” along with the

referenced Footnote 7 as well as the contents therein, in that they are - “STRICKEN STATEMENT

CLAUSE.”





29. On Page 2, “III. ARGUMENT AND AUTHORITIES” and paragraph which begins with, “It has long

been recognized that “[a] trial court has broad discretion” in that it is - “STRICKEN STATEMENT

CLAUSE.”

UNDISPUTED is the fact that Named Defendants and their counsel are attempting to “put the cart

before the horse.” As a matter of law, NO Responsive Pleading and/or Answer (in accordance to the

statutes/laws governing said matters) have been made to

Newsome’s Complaint.

Therefore, there are NO facts,

evidence, NOR legal

conclusions to sustain a

staying of this action for

DISCOVERY purposes.

Named Defendants and their

counsel have not even gotten

off of the home plate to assert

first-base privileges and/or

defenses regarding

DISCOVERY matters. The

Discovery process may begin

AFTER the filing of a

legal/lawful responsive

pleading and/or Answer –

which in this Lawsuit has

NOT been filed. Moreover,

the record evidence supports

Newsome timely, properly, and adequately NOTIFIED Named Defendants’ through “Waiver of the Service of Summons and

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NOTIFICATION ACCOMPANYING WAIVER OF SERVICE OF SUMMONS” that any

responsive pleading and/or Answer which did NOT meet the pleading REQUIREMENTS would be met

with a MOTION TO STRIKE! See EXHIBITS “25,” “26,” “27,” and “28” respectively attached hereto

and incorporated by reference as if set forth in full herein. Furthermore, the “Notice Of A Lawsuit And Request To Waive Service Of A Summons” served on EACH of the Named Defendants NOTIFIED

them of the PUBLIC/SOCIAL Forums – i.e. such as www.slideshare.net/VogelDenise and

https://secure.filesanywhere.com/fs/v.aspx?v=8a706b8f58666ebeac6b to be used for the

posting/sharing of documents in this Lawsuit [EMPHASIS ADDED]. See EXHIBITS “29,” “30,”

“31,” and “32” - “Notice of Lawsuit. . .” ONLY respectively, attached hereto and incorporated by

reference as if set forth in full herein.

UNDISPUTED is the fact, that it appears that Named Defendants counsel may have had a SNEAK

PEEK at Newsome’s July 14, 2012 Motion to Strike posted at:

http://www.slideshare.net/VogelDenise/071412-motion-to-strike-page-kruger-holland-matter

and then MOVED swiftly TWO (2) days later in efforts of BLINDSIDING the Court and Newsome

filed their SHAM/FRIVOLOUS/BOGUS “Motion to Stay” and supporting “Memorandum in Support”

PRIOR to its receipt of Newsome’s Motion to Strike Motion To Dismiss and Memorandum In Support

Of Motion To Dismiss; Motion for Rule 11 Sanctions of and Against Defendants; and Motion for Default

Judgment (Jury Trial Demanded in this Action) in hopes of obtaining and UNLAWFUL/ILLEGAL

Order Staying of this Lawsuit by Magistrate Judge Michael T. Parker who LACKS JURISDICTION

to act in that Newsome has timely, properly and adequately “IN WRITING” notified of her

OBJECTIONS to Magistrate Referral as well as OBJECTION to Judge Tom S. Lee.

Furthermore, that Named Defendants counsel AGAIN, it appears, resorting to their “Folder of FORM

Pleadings” and pulled out one addressing DISCOVERY matters – i.e. which IS NOT applicable to this

instant lawsuit – in efforts of trying to OBSTRUCT the administration of justice and their having to

fulfill their MANDATORY OBLIGATIONS to notify parties and/or this Court notifying parties to this

action of any/all CONFLICTS-OF-INTERESTS pursuant to Mississippi Rules of Professional Conduct

(See EXHIBIT “10” attached hereto and incorporated by reference as if set forth in full herein) and

other statutes/laws governing said matters.

Mississippi Com'n on Judicial Performance v. Gibson, 883 So.2d 1155 (Miss.,2004) - “Moral

turpitude,” in the context of judicial misconduct, includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit,

bribery, extortion, or other such actions which bring the judiciary into disrepute.

UNDISPUTED is the fact, that on or about July 14, 2012, Newsome posted in a PUBLIC/SOCIAL

Forum at http://www.slideshare.net/VogelDenise/071412-motion-to-strike-page-kruger-holland-

matter her pleadings entitled, PLAINTIFF’S MOTION TO STRIKE MOTION TO DISMISS AND

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND

AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS

ACTION). See EXHIBIT “33” – ScreenShot of pleading reflecting “POSTING Date.” [EMPHASIS

ADDED].

UNDISPUTED is the fact, that on or about July 18, 2012, Newsome submitted Facsimile to

Named Defendants’ counsel entitled, “REQUEST FOR EXPLANATION FOR PHELPS

DUNBAR’S/COUNSELS’ KNOWLEDGE OF CONFLICT OF INTEREST AND DELIBERATE

FAILURE TO NOTIFY PARTY(S) OF SAME and GOOD FAITH DEMAND THAT PHELPS

DUNBAR WITHDRAW PLEADINGS.” See EXHIBIT “34” – July 18, 2012 Facsimile attached

hereto and incorporated by reference as if set forth in full herein. At the time of this instant filing,

Named Defendants’ counsel has FAILED to provide Newsome with information MANDATORILY

required pursuant to Mississippi Rules of Professional Conduct and other statutes/laws governing said

matters.

http://www.slideshare.net/VogelDenise

https://secure.filesanywhere.com/fs/v.aspx?v=8a706b8f58666ebeac6b




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30. On Page 3, continuance of paragraph from page 2 which states, “Petrus v. Bowen, 833 F.2d 581, 583”

and the referenced “Exhibit ‘1’” and the contents therein, in that they are - “STRICKEN STATEMENT

CLAUSE.”

UNDISPUTED is the fact that NO Responsive Pleading and/or Answer to Newsome’s Complaint, in

accordance with the statutes/laws governing said matters, has been filed in this Lawsuit. Furthermore, to

date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT

OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION

FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is supported by FACTS,

EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!

UNDISPUTED is the fact that pursuant to Rule 26 of the Federal Rules of Civil Procedure – for

instance Rule 26(a)(1)(A), it clearly states in part:

RULE 26 - Duty to Disclose; General Provisions Governing Discovery

(1) Initial Disclosure.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the

other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

See EXHIBIT “2” – Rule 26 of FRCP attached hereto and incorporated by reference as if set forth in

full herein. So now with have Named Defendants and their counsel attempting to OBSTRUCT justice

in the release of MANDATORY “DISCLOSURE” information as well as their DELIBERATE failure

to release such information because of KNOWLEDGE of the EXPOSURE of “Conflict-Of-Interest”

that is inevitable and may further EXPOSE their CRIMINAL/CIVIL violations; moreover, ROLE in

CONTINUING and ONGOING Conspiracies leveled against Newsome.

31. On Page 3, paragraph which begins with, “A stay of discovery is warranted” and the “. . .” in that it is -


Furthermore, to date, Newsome’s July 14, 2012 MOTION TO STRIKE MOTION TO DISMISS AND

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST

http://www.law.cornell.edu/rules/frcp/rule_26#rule_26_a_1_B

http://www.law.cornell.edu/rules/frcp/rule_34

http://www.law.cornell.edu/rules/frcp/rule_34

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DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) which is

supported by FACTS, EVIDENCE and LEGAL CONCLUSIONS remains UNCONTESTED!

32. On Page 3, paragraph which begins with, “Courts within the jurisdiction of the Fifth Circuit” in that it is

- “STRICKEN STATEMENT CLAUSE.”





33. On page 4, continuance of paragraph from page 3 which states, “dispositive motion. The Magistrate

Judge in that case, Honorable F. Keith Ball, granted the stay until the District Court Judge,

Honorable Henry T. Wingate,” along with the referenced Footnotes 8 and 9 and the contents

therein, in that they are - “STRICKEN STATEMENT CLAUSE.”

UNDISPUTED are the following facts that are PERTINENT and RELEVENT to understanding the

ONGOING Conspiracies and BLATANT Criminal/Civil violations being carried out by

Judges/Magistrate Judges of this Court and opposing counsel in Lawsuits involving Newsome that

are matters of SOCIAL/PUBLIC/GLOBAL importance in that it supports the PATTERN-OF-

PRACTICE as well as supports NOT only the appearance of IMPROPRIETY but actual

IMPROPRIETY by Officers of this Court. A reasonable mind may conclude that this is a

“CULTURE” of criminal/civil wrongs ENGRAINED and DEEPLY-ROOTED” in the United States

of America’s CORRUPT Judicial System that involve matters that are RACIALLY motivated and

matters of PUBLIC Policy/Interests. It is important to note that Named Defendants and their

counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) DELIBERATELY and with

CRIMINAL/CRIMINAL intent fail to advise Newsome of the following PERTINENT and

RELEVANT facts:

a) Honorable Henry T. Wingate was nominated by former President Ronald Reagan on or

about September 11, 1985. See EXHIBIT “58” attached hereto and incorporated by reference as if set forth in full herein.

b) Baker Donelson’s employee Howard Henry Baker, Jr. served as CHIEF OF STAFF to

United States of America President Ronald Reagan. Served as Senior Majority Leader of the United States Senate. Is currently SENIOR Counsel at Baker Donelson. Descendant of Baker Donelson founder. Founder of Baker Donelson in WASHINGTON, D.C. and London. See EXHIBIT “59” attached hereto and incorporated by reference as if set forth in full herein.

c) Honorable Henry T. Wingate confirmed the Honorable F. Keith Ball. See EXHIBIT “60”

attached hereto and incorporated by reference as if set forth in full herein. Judge Wingate

appointed the Magistrate Selection Panel responsible. See EXHIBIT “61” attached hereto and incorporated by reference as if set forth in full herein. DIRTY-HANDS DEALS: It appears from information found regarding the selection of Magistrate Ball that he may have been PRE-SELECTED. If so, it appears MORE qualified candidates may have been deprived EQUAL employment opportunities as a direct and proximate result of CRIMINAL/CIVIL violations by Judge Wingate, Phelps Dunbar and Baker Donelson to get another one of their judges on the bench for purposes of STACKING the Court. It appears the LEAKING of Magistrate Ball’s selection coming from a source NOT on the Magistrate Selection Panel.

Last Monday I reported that Keith Ball has been selected as the new Magistrate Judge for the Southern District. I had heard the news the previous Friday from someone who was not on the Magistrate Selection Panel.

Then last Wednesday I heard that one of the Southern District Judges was telling lawyers that no announcement had been made on the selection yet.

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See EXHIBIT “62” attached hereto and incorporated by reference as if set forth in full herein. From Newsome’s research, she found that Judge Wingate is a BLACK-American (i.e. NOT African-American). However, one should NOT be deceived by the fact that Newsome is AFRICAN-American that Judge Wingate would not be engaged in the CRIMINAL practices and CONSPIRACIES, etc. leveled against Newsome. From

information that has been found, clearly it appears that the United States District Court –Southern District of Mississippi (Jackson) JUDICIAL panel may be STACKED with CORRUPT/TAINTED/BRIBED, etc. Judges purchased by such firms as Phelps Dunbar, Baker Donelson, Page Kruger & Holland, and others that CONSPIRE with them. Furthermore, the mere fact that Judge Wingate is a BLACK-American does NOT insulate him from RECUSAL. Judge Wingate KNOWS and/or should of KNOWN of his DUTY to RECUSE himself; moreover, the role he is playing in the ONGOING Criminal/Civil violations and CONSPIRACIES leveled against Newsome. Clearly the unlawful/illegal

attacks leveled against Newsome are RACIALLY motivated.

In re Chevron U.S.A., Inc., 121 F.3d 163 (5th Cir. 1997) - Judge is not

insulated from recusal, in racially charged case, merely because he or she is black. 28 U.S.C.A. § 455.

It appears Judge Wingate may be known as what is called a “HOUSE NEGRO:”

One who has NO sense of his heritage and roots and is ASHAMED to be associated with African Heritage or roots because of what has been depicted in the MEDIA teaching them to hate themselves (i.e. the color of their skin, hair, etc.) and to be ashamed of their looks: http://youtu.be/YtOslGWp13A They are HIGHLY

employed by the United States of America Government to serve as HOUSE

Negroes/GATEKEEPERS and/or to meet QUOTAS for DECEPTIVE purposes - i.e.

to DECEIVE and HIDE from the PUBLIC/WORLD the United States of America's WHITE Supremacist and RACIST Agenda. HIGHLY employed by Government Agencies to COVER-UP Discriminatory practices in the Government and PRIVATE Sector by WHITE Racist Employers/Supremacists. They are also used to

COVER-UP the Corruption and Criminal/Civil wrongs of SYSTEMATIC

Discriminatory Practices leveled against AFRICAN-Americans and People of

Color that are seen as a THREAT because they are EDUCATED and are

STRONG Civil Rights Activists fighting for the cause of their people and

EXPOSING the United States of America’s CRIMINAL HERITAGE.

http://www.slideshare.net/VogelDenise/criminals-in-our-past HOUSE

Negroes/BLACK-Americans are usually individuals NOT qualified to perform

jobs they are hired for and are merely put into their positions as “GATE

KEEPERS” and a direct and proximate result of SPECIAL FAVORS - i.e. them

having to COMPROMISE and DENY morals, values and beliefs. One who will do

EVERYTHING possible to FIT IN and be ACCEPTED by White Society. They live

in FEAR and have become VERY DEPENDENT on a WHITE-RUN Government

DETERMINED to erase and change their IDENTITY and LOOKS. But NO matter how HARD he/she TRIES, they are STILL seen as "BLACK!" It is BLACK-Americans that a White Reporter is SCOFFING at and PRAISING the

TERRORISTS Acts (i.e. RAPES, MURDERS, LYNCHING, etc.) of his White Supremacist Counterparts in this interview with "Muslim Civil Rights Activist

Malcolm X" and that Malcolm X prophesied whose REIGN will come to an END!

http://youtu.be/o7f5NTLgtEA

Just keeping it real and laying down the FACTS! So one can see why Judge Wingate was selected and why his MASTERS LOVE him so!

d) Honorable F. Keith Ball has employment history with Named Defendant’s counsel Phelps

Dunbar. See EXHIBIT “63” attached hereto and incorporated by reference as if set forth in full herein. Furthermore, research yielding information regarding Magistrate Ball’s presiding over a COPYRIGHT case [EMPHASIS added] involving Baker Donelson. See EXHIBIT “64” – As recent as JUNE 2012, information regarding Baker Donelson serving

as counsel in Copyright matter attached hereto and incorporated by reference as if set forth in full herein. Why is this information PERTINENT and RELEVANT, because as recent as February 3, 2012, it appears that Baker Donelson, their Client (United States of America President Barack Obama) and others with whom they conspire with in ONGOING

Conspiracies leveled against Newsome, had a FRIVOLOUS Copyright Lawsuit brought against Newsome for purposes of CRIMINAL intent and to keep the PUBLIC/WORLD from seeing the role they have played in the pattern-of-practices leveled against Newsome

http://youtu.be/YtOslGWp13A

http://www.slideshare.net/VogelDenise/criminals-in-our-past

http://youtu.be/o7f5NTLgtEA

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involving CONTACTING her employers and ORCHESTRATING the TERMINATION of her employment – as evidenced in this instant Lawsuit and the 05/16/06 Email through the use of: STALKING, HARASSMENT, THREATS, BRIBES, COERCION, BLACKMAIL, INTIMIDATION, OBSTRUCTION OF JUSTICE, etc. in attempts of silencing her and depriving her equal protection of the laws, equal immunities and

privileges under the laws, due process of laws and other rights secured/guaranteed under the United States Constitution and other statutes/laws of the United States of America governing said matters – See EXHIBIT “65” – Docket Sheet in The Garretson Firm Resolution Group matter attached hereto and incorporated by reference as if set forth in full herein. This case was SEALED once Newsome went PUBLIC/GLOBAL in sharing this information. Acts taken to keep this information out of the PUBLIC/WORLD eyes as they STRUGGLE to get United States of America President Barack Obama RE-ELECTED! It appears United States of America President Barack Obama, Baker Donelson and those with

whom they conspire going as far as contacting companies providing Newsome with PUBLIC/SOCIAL forum services (i.e. as the Internet) for purposes of sharing information that is of PUBLIC/GLOBAL interests. However, as Named Defendants, their counsel, and those with whom they CONSPIRE can see, they have failed and Newsome continues to exercise rights secured to her under the United States Constitution and other statutes/laws and release information regarding the CRIMINAL/CIVIL wrongs and CONSPIRACIES leveled against her: www.vogeldenisenewsome.net and www.slideshare.net/vogeldenise, etc.

e) On or about July 18, 2012, Newsome timely, properly and adequately requested an

explanation from Named Defendants counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) via Facsimile entitled, “REQUEST FOR EXPLANATION FOR PHELPS

DUNBAR’S/COUNSELS’ KNOWLEDGE OF CONFLICT OF INTEREST AND

DELIBERATE FAILURE TO NOTIFY PARTY(S) OF SAME and GOOD FAITH DEMAND THAT PHELPS DUNBAR WITHDRAW PLEADINGS.” See EXHIBIT

“34” attached hereto and incorporated herein by reference. Newsome’s request being in

compliance with the Mississippi Rules of Professional Conduct and other statutes/laws governing said matters. See EXHIBIT “10” attached hereto and incorporated by reference as if set forth in full herein.

Mississippi Com'n on Judicial Performance vs Agin, 17 So.3d 578 (Miss.,2009) - Judge's conduct in failing to issue a timely ruling in case violated the code of judicial conduct canons that required a judge to uphold the integrity and independence of the judiciary, to respect and comply with the law and to act at all times in a manner

that promotes public confidence in the integrity and impartiality of the judiciary, and to dispose of all judicial matters promptly, efficiently and fairly. Code of Jud.Conduct, Canons 1, 2A, 3B(8), 3C(1).

See EXHIBIT “5” – Code of Judicial Conduct attached hereto and incorporated by reference as if

set forth in full herein.

Mississippi Com'n on Judicial Performance vs Bustin, 2011 WL 4634995 (Miss., 2011) - “Moral turpitude,” in the context of

judicial misconduct, includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.





34. On Page 4, paragraph which begins with, “If Defendants’ motion to dismiss is granted, the need for

discovery,” along with the referenced Footnote 10 and the contents therein, in that they are -


UNDISPUTED is the FACT that Named Defendants and their counsel AGREE that Newsome’s

143-Page Complaint distinctly set forth VALID Claims! Furthermore, because there has been NO

http://www.vogeldenisenewsome.net/

http://www.slideshare.net/vogeldenise

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legal/lawful Responsive Pleading and/or Answer filed to Newsome’s Complaint, as a matter of law,

the averments/claims set forth in the Complaint filed in this Lawsuit are DEEMED “ADMITTED”

as Named Defendants were timely, properly and adequately NOTIFIED of when served the

Complaint along with “Waiver of the Service of Summons and NOTIFICATION

ACCOMPANYING WAIVER OF SERVICE OF SUMMONS” - i.e. which CLEARLY stated in

part:

6. If your answer is not sufficiently definite in nature to give reasonable

notice of the allegations in the Complaint sought to be placed in issue, the Plaintiff’s averments may be treated as admitted (i.e. a corporate defendant’s denial of “each and

every allegation” did not give “plain notice.”).3

7. A denial of knowledge or information requires that you not only

lack first-hand knowledge of the necessary facts involved, but also that you lack information upon which you reasonably could form a personal belief concerning the

truth of the Plaintiff’s allegations.4

8. Normally, you may NOT assert lack of knowledge or information if the necessary facts or data involved are within your knowledge or easily brought within

your knowledge (i.e. An Answer denying information as to the truth or falsity of a matter necessarily within the knowledge of the party’s managing officers is a sham, and will be

treated as an admission of allegation of the complaint.5)

9. An averment, that you are without knowledge or information sufficient to form a belief as to matters that are common knowledge or of which you can

inform yourself with the slightest effort, will be treated as patently false and the effect and purpose will be taken as such to merely delay justice.6

See EXHIBITS “25,” “26,” “27,” and “28” respectively attached hereto and incorporated by

reference as if set forth in full herein.





35. On Page 4, paragraph which begins with, “IV. CONCLUSION” and the following paragraph which

begin with, “Based on the pending motion,” in that they are - “STRICKEN STATEMENT CLAUSE.”

36. On Page 5, remaining content of the pleading in that it is - “STRICKEN STATEMENT CLAUSE.”

37. On Page 6, the “CERTIFICATE OF SERVICE” and the contents therein in that it is - “STRICKEN


Now that the statutes/laws governing said matters require the STRIKING of the entire contents, statements,

exhibits, etc. as noted above, there remains NO legal/lawful pleading of record. Therefore, Newsome is entitled to

the relief (Rule 11 Sanctions and DEFAULT Judgment, etc.) sought herein.

C. “MISSISSIPPI” CATCALL STATUTE – GOVERNS 42 USC § 1981 CLAIMS

3 Reference Purposes: Wright & Miller Federal Practice and Procedure Civil 3d § 1261.

4 Reference Purposes: Wright & Miller Federal Practice and Procedure Civil 3d § 1262.

5 For Reference Purposes: Wright & Miller Federal Practice and Procedure Civil 3d § 1262 and also, Harvey Aluminum (Inc.) v.

NLRB, 335 F2d 749, 758 (9th

Cir. 1964).

6 For Reference Purposes: See Reed v. Turner, 2 F.R.D. 12; and Squire v. Levan, 32 F.Supp. 437.

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38. UNDISPUTED is the fact that Newsome’s Complaint is premised on claims brought pursuant to 42

U.S.C. § 1981 – Equal Rights Under The Law which allows for one to “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . .” Therefore, subject to the provision

of Mississippi’s “CATCHALL Statute” pursuant to Mississippi Code Ann. § 15-1-49:

FN2. Section 15-1-49. Limitations applicable to actions not otherwise specifically provided for

- All actions for which no other period of limitation is prescribed shall be commenced within six

years next after the cause of such action accrued, and not after. . . . The six-year statute (section 15-1-49) is more general in the sense that it is a general residual statute that applies to a broad class of actions-tort, contract or statutory-not otherwise provided for. Gates vs. Spinks, 771 F.2d 916 (5th

Cir. S.D. Miss. 1985)





39. 42 USC § 1981 claims encompasses race-based as well as retaliation claims. It is UNDISPUTED

that § 1981 contains NO statute of limitations. The United States Supreme Court has found:

CBOCS West, Inc. v. Humphries, 128 S.Ct. 1951 (U.S. 2008) - Section 1981 encompasses retaliation claims. Retaliation claims cognizable under § 1981 include employment-related retaliation claims. 42 U.S.C.A. § 1981.

Jackson v. Birmingham Bd. of Educ., 125 S.Ct. 1497 (U.S. 2005) - Retaliation against a person because that person has complained of . . . discrimination is a form of intentional . . . discrimination encompassed by Title IX's private cause of action; retaliation is, by definition, an intentional act, retaliation is a form of discrimination because the complainant is being subjected to differential treatment, and the discrimination is “on the basis of sex” because it is an intentional response to the nature of the complaint, namely, an allegation of sex discrimination.

UNDISPUTED is the “DIFFERENTIAL” treatment Newsome was subjected to as a direct and

proximate result of Named Defendants’ learning of her engagement in PROTECTED activities – i.e.

Title VII actions, Lawsuits, being a witness and/or party in legal proceedings, etc. – as set forth in the

May 16, 2006 Email Newsome submitted to Named Defendants’ memorializing the meeting which

resulted in her TERMINATION. Furthermore, Named Defendants NOT DENYING that other

employees similarly situated engaged in the same activities they noted were grounds for Newsome’s

termination. Therefore, a reasonable person and/or mind may conclude that PKH’s termination of

Newsome’s employment was discriminatory, retaliatory and the proffered reasons PRETEXT to

shield/mask its criminal/civil wrongs leveled against Newsome. Moreover, Named Defendants’ role in

the CONSPIRACIES leveled against Newsome.

40. Named Defendants’ counsel ERRONEOUSLY asserts that because Newsome may mention Title VII in

her Complaint, that she has to bring this lawsuit under Title VII – wherein she DOES NOT! As Named

Defendants’ counsel grasp at straws in his dire and desperate FRIVOLOUS efforts to get his clients out

of this lawsuit and the relief to which Newsome is entitled. The Fifth Circuit Court of Appeals is clear

on such issues that involve Title VII claims as well as § 1981 claims being cognizable under the same rubric of analysis.

Raggs v. Mississippi Power & Light Co., 278 F.3d 463 (5th

Cir. Miss. 2002) - Court of Appeals considers claims of intentional discrimination, which include racial discrimination and retaliation claims based on Title VII and § 1981, under the same rubric of analysis. 42 U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

41. UNDISPUTED is the fact that Newsome’s employment with PKH was terminated as a direct and

proximate result of her engagement in PROTECTED activity – i.e. for instance knowledge that

Newsome had filed a lawsuit, was assisting and/or participating in lawsuit, investigations, attending

hearings, etc. In fact, Named Defendants with KNOWLEDGE of Newsome’s engagement in protected

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activities and an UPCOMING Court appearance approximately three (3) days before the date of her

next Court appearance in a PROTECTED activity, terminated Newsome’s employment for purposes of

providing opposing parties with an UNDUE/UNLAWFUL advantage in lawsuit. See EXHIBIT “23”

– Motion Docket attached hereto and incorporated by reference as if set forth in full herein. Then when

Newsome and her attorney had the matter moved to FEDERAL Court, PKH with KNOWLEDGE of the

Conflict-Of-Interest that existed, elected to make a CONSCIOUS, DELIBERATE and WILLFUL

decision to represent parties in said lawsuit – Newsome vs. Spring Lake Apartments: See EXHIBIT

“35” – Spring Lake Apartments Docket Sheet which reflects and/or supports PKH’s representation of

defendant(s) in said matter attached hereto and incorporated by reference as if set forth in full herein.

For instance see the following PHELPS DUNBAR’s Client’s Case:

Callahan v. Bancorpsouth Ins. Services of Mississippi, Inc., 244 F.Supp.2d 678 (S.D.Miss.S.Div.,2002) - Title VII prohibits retaliation in either of two instances: (1) where the employee has opposed any unlawful employment practice; or (2) where the employee has made a

charge, testified, assisted, or participated in any manner in an investigation, proceeding, or

hearing.

See EXHIBIT “24” – Callahan matter (i.e. with Phelps Dunbar information highlighted) attached

hereto and incorporated by reference.

D. FRAUD ON THE COURT:

Fraud On The Court: (1) In a judicial proceeding, a lawyer's or party's misconduct so serious that it undermines or is intended to undermine the integrity of the proceeding. (Black's Law Dictionary 8th Edition)

Fraud: (1) A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. (2) A misrepresentation made recklessly without belief in its truth to induce another person to act. (3) A tort arising from a knowing misrepresentation, concealment of material fact, or reckless misrepresentation made to induce another to act to his or her detriment. Id.

42. Named Defendants’ Motion to Stay and the supporting Memorandum In Support are pleadings which

were provided with knowledge of their misrepresentations of the truth or concealment of material fact

and for purposes of inducing this Court to act to its detriment – thus compromising this Court’s

integrity and the appearance of impropriety would be obvious.

43. Named Defendants’ Motion to Stay and the supporting Memorandum In Support are pleadings which

were provided with knowledge of the CONFLICT-OF-INTEREST that exists and their DUTY to

DISCLOSE pursuant to FRCP Rule 26, Mississippi Rules of Professional Conduct and other

statutes/laws governing said matters – thus compromising this Court’s integrity and the appearance of

impropriety CLEARLY obvious.

44. Newsome believes that the record evidence will support “Named Defendants’” Motion to Stay and the

supporting Memorandum In Support are misrepresentations made recklessly without belief in its truth

to induce this Court and/or its Judge(s) to engage in the cover-up of unlawful/illegal –

criminal/civil - and unethical practices to the DETRIMENT of their careers – i.e. perhaps winding up

like either Judge G. Thomas Porteous (i.e. a Federal Judge IMPEACHED and found GUILTY for

criminal behavior) and/or Judge Bobby DeLaughter (State Judge INDICTED and found GUILTY for his

criminal behavior). See EXHIBITS “36” – Judge Porteous Information and “37” – Judge DeLaughter

Information respectively attached hereto and incorporated by reference as if set forth in full herein.

45. In this instant lawsuit, Named Defendants’ counsel has merely abused this Court’s Electronic Filing

System by injecting Motion to Stay and supporting Memorandum In Support in an attempt to beat the

filing of Newsome’s MOTION TO STRIKE MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION

TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT

JUDGMENT (JURY TRIAL DEMANDED IN THIS ACTION) asserting they were being filed on behalf of “Named

Defendants” with KNOWLEDGE their pleadings were (ii) redundant; (iii) immaterial; (iv) impertinent

and/or (v) scandalous and provided for purposes of delay, harassment, obstructing justice, fraud,

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increasing costs of litigation, embarrassment, sham/frivolousness, unduly burdensome, provided for purposes of committing fraud upon this Court, and other reasons known to Defendants and their counsel.

The actions by Named Defendants counsel were carried out with fraudulent intent so serious that it undermines or was intended to undermine the integrity of this Court and these proceedings.

46. Newsome believes that the facts, evidence and legal conclusions set forth in this instant filing will

support that “Named Defendants’” Motion to Stay and supporting Memorandum In Support were

provided with intent to deceive, for purposes of falsification, concealment and misrepresentation upon

this Court. The U.S. Supreme Court finding:

Knauer v. U.S., 66 S.Ct. 1304 (1946) - “Fraud” connotes perjury, falsification, concealment, and

misrepresentation. Lord v. Goddard, 54 U.S. 198 (1851) - “Fraud” means an intention to deceive.

47. While “Named Defendants” may be represented by counsel (Phelps Dunbar) they are BOUND and

subject to any act which are committed by their counsel (Phelps Dunbar/Siler/Marsh). Defendants’

counsel has filed Appearances on their behalf. See EXHIBIT “38” – Phelps Dunbar Appearance

Documents attached hereto.

Great Atlantic & Pacific Tea Co. v. Majure, 168 So. 468 (Miss.,1936) - Attorney who acts for litigant is presumed to have authority to do all acts necessary to properly conduct litigation, and party denying such authority has burden to show absence thereof and is bound, as to opposite party, by any act which attorney does in regular course of practice, however improper, if done without fraud or collusion. McKiernan v. Patrick, 4 Howard 333 (Miss.,1840) - Where the authority of an attorney of record is disputed, he may be required to produce it.

An "appearance" in an action involves some submission or presentation to the court by which a party shows his intention to submit himself or herself to the jurisdiction of the court. (Ex parte Phillips, 900 So. 2d 412 [2004]) Rains v. Gardner, 719 So.2d 768 (Miss.App.,1998) - The party claiming that a person has waived process and entered an appearance has the burden of proof on the question.

E. DIRTY HANDS POLICY:

United States Supreme Court Rulings:

Bein v. Heath, 47 U.S. 228 (1848) - One who asks relief in chancery must have acted in good faith, since the equitable powers can never be exerted in behalf of one who has acted fraudulently, or who, by deceit or any unfair means, has gained an advantage. Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 65 S.Ct. 993

(1945) - An equity court may exercise wide range of discretion in refusing to aid litigant coming into court with unclean hands. Johnson v. Yellow Cab Transit Co., 64 S.Ct. 622 (1944) - The maxim that he who comes into equity must come with clean hands is not applied by way of punishment for an unclean litigant, but upon considerations that make for the advancement of right and justice.

Milwaukee & M.R. Co. v. Soutter, 80 U.S. 517 (1871) - He that hath committed iniquity shall not have equity. Sample v. Barnes, 55 U.S. 70 (U.S.Miss.,1852) - Whoever would seek admission into a court of equity must come with clean hands and such a court will never interfere in opposition to conscience or good faith.

Fifth Circuit Court of Appeals:

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Flory v. U.S., 138 F.3d 157 (C.A.5.Miss.,1998) - He who comes into equity must come with clean hands. Cataphote Corp. v. Hudson, 422 F.2d 1290 (C.A.5.Miss.,1970) - Protection of trade secrets is an equitable doctrine; secrets obtained by wrongful means are not entitled to

protection, and “unclean hands” doctrine may apply to deny the employer protection. New York Football Giants, Inc. v. Los Angeles Chargers Football Club, Inc., 291 F.2d 471 (C.A.5.Miss.,1961) - He who comes into equity must come with clean hands.

Mississippi State Court:

Bailey v. Bailey, 724 So.2d 335 (Miss.,1998) - “Clean hands doctrine” prevents complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in transaction at issue. Thigpen v. Kennedy, 238 So.2d 744 (Miss.,1970) - It is duty of the chancellor to apply “unclean hands” doctrine of its own motion when it becomes evident that the facts of case are such they call for application of the doctrine.

Ellzey v. James, 970 So.2d 193 (Miss.App.,2007) - He who does fraud may not borrow the hands of the chancellor to draw equity from a source his own hands has polluted.

48. Newsome believes that the facts, evidence and legal conclusions provided in the Complaint filed in this

lawsuit and her subsequent filings will support that “Named Defendants” have DIRTY HANDS.

Moreover, their counsel (Phelps Dunbar) also has a reputation for DIRTY HANDS and has

KNOWINGLY and DELIBERATELY withheld information from this Court and Newsome required under

statutes/laws governing “DUTY TO DISCLOSE.” Newsome is CONFIDENT that information is

CRUCIAL in understanding the OVER 20 Years of criminal/civil wrongs they have leveled against her

to deprive her equal protection of the laws, privileges and immunities and due process of laws;

moreover, life, liberties and the pursuit of happiness secured under the United States Constitution and

other statutes/laws governing said matters.

49. Newsome believes that the facts, evidence and legal conclusions provided in the Complaint filed in this

lawsuit and her subsequent filings will support that “Named Defendants” have a reputation of

COHORTING and CONSPIRING with CORRUPT/TAINTED Officials/Judges – i.e. such as Judge

Bobby DeLaughter who was INDICTED and pled “Guilty” to criminal activities [See Paragraph i) at

Page 14 of Complaint and supporting Exhibit “VIII”] and IMPEACHED Judge G. Thomas Porteous

[See Paragraph ii) at Page 14 of Complaint and supporting Exhibit “IX”] – for purposes of obtaining an

undue advantage in legal actions.

UNDISPUTED is the fact that a NEXUS/CONNECTION can be established with Baker Donelson and former United States of America President William “Bill” Clinton. For instance, Baker Donelson’s EMPLOYED a TOP/KEY LOBBYIST by the name of Linda Daschle - i.e. in

what appears to be a REWARD for the role played in the PLANNING of the September 11, 2011

ATTACKS on the World Trade Center and other targets. Furthermore, what appears to be Baker Donelson REWARDING Linda Daschle with employment AFTER the Bill Clinton REIGN as a direct and proximate result of REWARDING her! As COUNSEL for United States of America President Barack Obama, they attempted to get Linda Daschle’s husband (Thomas Daschle) appointed to the position of Secretary for the United States Department of Health and Human

Services See EXHIBIT “39” – Linda Daschle information attached hereto and incorporated by reference as if set forth in full herein.

Now it appears “Named Defendants” and its counsel (Phelps Dunbar/Siler/Marsh) are attempting to use

ANOTHER tainted and corrupt Judge – Tom S. Lee – to aid and abet in their CRIMINAL acts in

FURTHERANCE of the CONSPIRACIES and criminal/civil wrongs leveled against Newsome. A

NEXUS/CONNECTION between Phelps Dunbar and Baker Donelson Bearman Caldwell &

Berkowitz (“Baker Donelson”) can be established. In support thereof, Newsome states:

a) Both Phelps Dunbar and Baker Donelson have a PERSONAL, FINANCIAL and BUSINESS interest in the outcome of this lawsuit along with their Clients (i.e. which

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include Entergy Louisiana/New Orleans (“Entergy”), LIBERTY MUTUAL

INSURANCE Company, etc.) For instance, both Phelps Dunbar and Baker Donelson are legal Counsel for Entergy. See EXHIBITS “20” – Phelps Dunbar information from LexisNexis and “21” – Cover Page in Newsome vs. Entergy referencing Baker Donelson’s legal representation of Entergy respectively attached hereto and incorporated by reference

as if set forth in full herein. In fact, there is EVIDENCE of how Phelps Dunbar and Baker Donelson TEAM UP and/or engage JOINTLY in legal actions on behalf of their clients – i.e. see for instance Hambrick vs. Bear Stearns Residential Mortgage Opinion at EXHIBIT

“40” wherein Newsome has HIGHLIGHTED such JOINT Legal Ventures, attached hereto and incorporated by reference as if set forth in full herein. Well it appears Phelps Dunbar and Baker Donelson even SWAP attorneys – See EXHIBIT “41” – Phelps Dunbar & Baker Donelson Employee Transitions attached hereto and incorporated by reference as if set forth in full herein.

b) It appears just as in the Newsome vs. Spring Lake matter, Baker Donelson may be

attempting to use Phelps Dunbar as a FRONTING FIRM for purposes of SHIELDING/HIDING its involvement and interests. This information is pertinent and relevant in that Judge Tom S. Lee’s FAILURE to advise of such CONFLICT-OF-INTEREST in the Newsome vs. Spring Lake matter as well as his appearance as a PURCHASED/BRIBED Judge of Baker Donelson resulted in the TAINTING and COMPROMISING of that lawsuit that Newsome had to have it removed as a direct and

proximate result of the CRIMINAL/CIVIL wrongs by Judge Tom S. Lee and members in the Clerk’s Office attempts to THROW that lawsuit. See Exhibit “XXIV” –

“EMERGENCY COMPLAINT AND REQUEST FOR LEGISLATURE/CONGRESS

INTERVENTION; ALSO REQUEST FOR INVESTIGATIONS, HEARINGS AND FINDINGS” of the Complaint filed in this lawsuit. Judge Tom Stewart Lee who was nominated by former President Ronald Reagan – i.e. at which time Howard Baker (grandson of FOUNDER of Baker Donelson) was United States

Senate MAJORITY Leader and later becoming CHIEF OF STAFF to President Ronald Reagan. DISQUALIFICATION of Judge Tom Stewart Lee is therefore warranted for purposes of maintaining the appearance of impropriety and other violations none to this Court requiring disqualification(s). See EXHIBIT “42” – Disqualification Of Supreme Court Justices: The Certiorari Conundrum attached hereto and incorporated by reference

as if set forth in full herein.

The Fifth Circuit finding in U.S. v. Couch, 896 F.2d 78 (5th

Cir. 1990) that:

[4] Aetna thus instructs that the Due Process Clause “may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.” 475 U.S. at 825, 106 S.Ct. at 1587. Sometimes, of course, but not always. The inquiry commanded by section 455 and that commanded by the Due Process Clause are not the same. The Due Process Clause requires a judge to

step aside when a reasonable judge would find it necessary to do so. Section 455 requires disqualification when others would have reasonable cause to question the judge's impartiality. It is this additional, systemic concern for avoiding the appearance of

impropriety that makes the section 455 standard for disqualification more demanding than that imposed by the Due Process Clause. At some point the two tests overlap. We conclude that it is this area of overlap that the Liljeberg court was referring to when it noted that the concern for public perceptions of judicial integrity has “constitutional

dimensions.” 486 U.S. at 865 n. 12, 108 S.Ct. at 2205 n. 12, 100 L.Ed.2d at 875 n. 12. See Walberg v. Israel, 766 F.2d 1071 (7th Cir.), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985).

The United States Supreme Court finding in Liljeberg v. Health Services Acquisition Corp.,

486 U.S. 847:

[5] . . . We conclude that in determining whether a judgment should be vacated for a violation of § 455(a), it is appropriate to consider the risk of injustice to the parties in

the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public's confidence in the judicial process. We must continuously bear in mind that “to perform its high function in the best way ‘justice must satisfy the appearance of justice.’ ” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (citation omitted).

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c) There is record evidence to support that while Judge Tom Stewart Lee has RECUSED himself in matters involving Baker Donelson’s and its Clients’ interests – See EXHIBIT

“43” – when it comes to matters involving Newsome, Judge Lee is ADAMANT and INSIST on violating the laws for purposes of protecting the interests of those with whom he have financial, personal and business interests. Furthermore, Judge Lee clearly appears on

LISTING of Judges/Justices that Baker Donelson advertises on its website. For instance see DISQUALIFICATIONS warranted in that: Judge Tom Stewart Lee is a Member of the Mississippi Bar and has PERSONAL, FINANCIAL and BUSINESS interests of those involved in this lawsuit: EXHIBIT “44” – Judge Tom Stewart Lee Mississippi Bar Information attached hereto and incorporated by reference as if set forth in full herein. Also see Exhibit XVIII of Complaint supporting Baker Donelson’s holding of position(s) as President of the Mississippi Bar Association.

Furthermore, PKH having attorneys who are Officers of the Mississippi Defense Lawyers with business ties and relationships to Baker Donelson and Phelps Dunbar. See Exhibit XIX of Complaint and EXHIBITS “40” and “41” of this instant pleading. DISQUALIFICATION is required pursuant to 28 USC § 144 and/or 455. See for instance EXHIBIT “45” - Judge's Membership In Bar Association As Ground For Disqualification Under 28 USC § 455 [i.e. IMPORTANT TO NOTE that Baker Donelson’s advertisement of employees serving as:

United States Circuit Court of Appeals Judge

United States District Court Judges

United States Attorneys

Presidents of State and Local Bar Associations

See EXHIBIT “46” attached hereto and incorporated by reference as if set forth in fill herein] and EXHIBIT “ 47” - Disqualification Of Judge Under 28 U.S.C.A. § 455(b)(4), Providing For Disqualification Where Judge Has Financial Or Other Interest In Proceeding attached hereto and incorporated by reference as if set forth in full herein. EXHIBIT “48” - Disqualification Of Judge Because Of Political Association Or Relation To Attorney In Case attached hereto and incorporated by reference as if set forth in full

herein. DISQUALIFICATION because Judge Tom Stewart Lee’s IMPARTIALITY is validly and in good faith QUESTIONED – See EXHIBIT “49” - Construction and Application of 28 USCS § 455(a) Providing For Disqualification Of Justice, Judge, Magistrate, or Referee In Bankruptcy In Any Proceeding In Which His Impartiality Might Reasonably Be Questioned attached hereto and incorporated by reference as if set forth in full herein. Under the “EQUAL RIGHTS UNDER THE LAWS” as well as other statutes/laws of the United States of America governing said matters, Newsome is entitled to a “FAIR and IMPARTIAL Forum.” See EXHIBIT “50” - Safeguarding the Litigant's Constitutional Right to a Fair and Impartial Forum: A Due Process Approach to

Improprieties Arising from Judicial Campaign Contributions from Lawyers attached hereto and incorporated by reference as if set forth in full herein. Newsome believes that DISQUALIFICATION of Judge Tom Stewart Lee is further warranted in that clearly he has a BIAS towards her as do Named Defendants, their counsel and those with whom they CONSPIRE. See EXHIBIT “51” - Disqualification Of Judge For Bias Against Counsel For Litigant attached hereto and incorporated by reference as if set forth in full herein.

d) In fact, in the Newsome vs. Spring Lake matter in which PKH KNEW and/or should have

known of the CONFLICT-OF-INTEREST with its involvement; nevertheless, PKH too remained ADAMANT and INSISTED on remaining in lawsuit as Legal Counsel for

defendant(s) in that action. PKH employing the son (John Noblin) of the

Clerk (J.T. Noblin) of this Court. See Exhibits “XII” and “XIII” of

Complaint. Furthermore, Judge Tom Stewart Lee allowed such criminal/civil wrongs OVER Newsome’s Objections. Further supporting RECUSAL and DISQUALIFICATION of Judge Tom Stewart Lee to preside in this matter. See EXHIBIT “52” - Conduct or Bias of Law Clerk or Other Judicial Support Personnel as Warranting Recusal of Federal Judge or Magistrate attached hereto and incorporated by reference as if set forth in full herein.

50. Through this instant MTS-MTSTAY&MFR11SDEFAULT, Newsome is requesting this Court to refuse to

AID and ABET “Named Defendants,” their legal counsel (Siler and Marsh), and their law firm (Phelps

Dunbar) and others engaging in furtherance of conspiracies leveled against Newsome that come before

this Court with DIRTY/UNCLEAN HANDS!

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51. Newsome believes there is sufficient evidence in the Complaint and supporting Exhibits to sustain that

“Named Defendants” have a PATTERN-OF-PRACTICE in engaging others to join conspiracies

leveled against Newsome for purposes of subjecting her to criminal/civil wrongs – i.e. depriving her

equal protection of the laws, equal privileges and immunities and due process of laws. Moreover,

“Named Defendants” and those with whom they conspire have a PATTERN-OF-PRACTICE of

coming before the Court(s) with DIRTY/UNCLEAN HANDS.

52. In that “Named Defendants,” their counsel, Judge Tom Stewart Lee and those with whom they

CONSPIRE have a well-established HISTORY and PATTERN-OF-BEHAVIOR in compromising the

record and TAMPERING with documents, under the DIRTY HAND POLICY they come before this Court, through this instant lawsuit, to continue their criminal behavior. Having sufficient information

and evidence before them, they made a WILLFUL and CONSCIOUS decision to come before this Court

in furtherance of CONSPIRACIES and CRIMINAL INTENT to commit fraud upon this Court and to

induce its Judge(s) to engage in the COVER-UP of criminal behavior in unlawful/illegal employment practices which not only adversely affected Newsome but the public-at-large.

F. FEDERAL RULES OF CIVIL PROCEDURE – RULE 11 SANCTIONS:

Skidmore Energy, Inc. v. KPMG, 455 F.3d 564, 569-570 (2006) – Under the “snapshot” rule, sanctions based on a frivolous pleading were proper because the lack of legal and evidentiary support for the pleading at the time it was filed. The . . .court found the claims lacked both legal

and factual support and imposed more than $500,000 in sanctions against plaintiffs and their counsel, based on defendants’ reasonable expenses incurred in litigating against the claims. . . . This test focuses on the instant when the signature is placed on the document, and the state of mind of the signer at the time. The test ensures the Rule 11 liability is assessed only for violation existing at the moment of filing. The . . . court had clearly concluded that the pleadings were frivolous when filed. The fact that they continued to lack evidentiary support throughout the proceedings only underscored the violation. (n. 4) Both client and attorney have duty to conduct reasonable inquiry into facts or

law before filing lawsuit; (n. 5) In lawsuit addressing ongoing dispute . . .court did not abuse its discretion in awarding Rule 11 sanctions against plaintiffs; rather than sanctioning them for legally frivolous nature of pleadings, it sanctioned them for . . .factually groundless allegations in their complaint; and (n. 7) Fifth Circuit's “snapshot” rule/test ensures that Rule 11 liability is assessed only

for a violation existing at moment of filing.

53. This Court, upon the use of the U.S. Fifth Circuit Court of Appeals’ “SNAPSHOT Rule” on Named

Defendants’ Motion to Stay and supporting Memorandum In Support may find the evidence supports

that said pleadings are frivolous and a sham submitted with WILLFUL, MALICIOUS and WANTON

acts to commit fraud upon this Court. Furthermore, that said pleadings clearly lacked legal standing and evidentiary support at the time they were filed. Furthermore, a reasonable person/mind may

conclude that Named Defendants’ failure to return the “Waiver of the Service of Summons” and the

attached “Notification Accompanying Waiver of Service of Summon” served on each of them was

done with KNOWLEDGE and DELIBERATE intent to engage in criminal/civil violations before this

Court. Therefore, supporting and sustaining the sanction relief Newsome seeks through this instant

filing.

54. Newsome believes that a reasonable mind may conclude that in using the “SNAPSHOT Rule” as well as

the Named Defendants’ failure to return the “Waiver of the Service of Summons” and the attached

“Notification Accompanying Waiver of Service of Summon” served on each of them, at the time of

signing of Motion to Stay and Memorandum In Support, the state of mind of Named Defendants’ and

their counsel (Phelps Dunbar/Siler/Marsh) was for purposes of fraud, deceit, misrepresentation,

harassment, embarrassment, obstructing justice, delaying proceedings, increasing the costs of

litigation, violating the Rules of the Court and Federal Rules of Civil Procedures and other reasons known to them.

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55. Newsome further believes that the record evidence (i.e. Complaint and Newsome’s subsequent filings)

will support that “Named Defendants” have established a “PATTERN-OF-ABUSE” and “PATTERN-

OF-ENGAGING-IN-CRIMINAL ACTS” to further support Rule 11 Sanctions as well as this Court’s

reporting of said CRIMINAL acts to the appropriate agency/entity for prosecution, sanction and

disbarment (if applicable).

56. “Named Defendants” and any person they would have retained to represent them in this lawsuit have a

duty to conduct reasonable inquiry into facts of law before filing pleadings.

57. The record evidence will support that “Named Defendants” were timely, properly and adequately

NOTIFIED that Newsome would seek Rule 11 sanctions and/or relief under the applicable laws.

“Named Defendants” were notified through the “Waiver of the Service of Summons” and the attached

“Notification Accompanying Waiver of Service of Summon” which accompanied it. For instance see

EXHIBITS “25,” “26,” “27,” and “28” respectively attached hereto and incorporated by reference as

if set forth in full herein. Furthermore, based on information received, Named Defendants and their

counsel (Phelps Dunbar/Siler/Marsh) having KNOWLEDGE they were proceeding in violation of Rule

11 of the Federal Rules of Civil Procedure and, therefore, entitled to SANCTIONS for the Motion to Dismiss and supporting Memorandum Brief in that they are IRRELEVANT and are: (i) an insufficient

defense to the Complaint filed by Newsome; (ii) redundant; (iii) immaterial; (iv) impertinent and/or (v)

scandalous and provided for purposes of delay, harassment, obstructing justice, embarrassment,

sham/frivolousness, commit fraud upon this Court, and other reasons known to Defendants and their

Counsel. See for instance PHELPS DUNBAR’S case: Alexander vs. Easy Finance of New Albany,

Inc., 2007 WL 295220 (N.D. Miss.) - The Court found that the . . . had acted in an unreasonable, vexatious and reckless manner. . . EXHIBIT “53” – Alexander matter attached hereto and incorporated

by reference. In fact, Named Defendants counsel ACKNOWLEDGES his clients’ receipt of the Waiver

of the Service of Summons and attached Notification Accompanying Waiver of Service of Summons

and their KNOWLEDGE of Rule 11 SANCTIONS for the submittal of documents/pleadings considered

“legally FRIVOLOUS and without FOUNDATION in law or fact. Advising Newsome as stated in part:

In your letter, you demand that Defendants execute the Waiver of the Service of Summons and return the same to you, along with the Notification Accompanying Waiver of Service of Summons that you prepared in the instant matter. Please be advised that the documents you submitted for waiver of service of process were modified in form and, therefore, Defendants were not required to execute such documents. . .

Finally, as stated in Defendants’ Motion to Dismiss, the Complaint you filed in this matter was legally frivolous and without foundation in law or fact. Specifically, all of your claims against Defendants are timed barred, due to the expiration of your respective statutes of limitation. Should you not voluntarily dismiss your lawsuit immediately, Defendants reserve the right to seek all fees and costs incurred in defense of this matter from you in accordance with Fed. R. Civ. P. 11. Please accept this correspondence as notification of our intent to seek such fees and costs, as required by Rule 11(c).

See EXHIBIT “54” – July 11, 2012 Letter from Phelps Dunbar/Marsh attached hereto and incorporated

by reference as if set forth in full herein. Furthermore, supporting that Named Defendants and their

counsel (Phelps Dunbar/Siler/Marsh) were timely, properly and adequately NOTIFIED of the Rule 11

SANCTION consequences for submitting such FRIVOLOUS pleadings as their Motion to Dismiss and

Memorandum in Support Of Motion to Dismiss.

58. The record evidence will support that the “Notification Accompanying Waiver of Service of Summon”

provided “Named Defendants” with the following information to aid and/or assist them in the

preparation of their Answer and/or “Responsive Pleading:

At ¶ 4 of Page 1 it states in part: “Be subject to the provisions of Federal Rules of Civil Procedure Rule 11. Your ‘failure to

comply with Rule 11 may be attacked by a motion to strike.’ ‘An attorney who willfully violates Rule 11 is subject to possible disciplinary action.’” Your signing of pleadings constitute a

certificate of the following: a. That the attorney (or party) has conducted a reasonable inquiry; b. That he or she is satisfied that the paper is well grounded in fact;

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c. That the pleading has a basis in existing law or that the attorney (or party) has a good faith argument to amend or reverse existing law; and

d. That the pleading is not imposed for any improper purpose, such as harassment, delay, or needless increase of his opponent’s costs of litigation.

. . .If the pleading or other paper is signed in violation of this Rule, appropriate sanctions shall be imposed by the court on motion or on its own initiative. Sanctions may include an order to pay the other party the amount of reasonable expenses caused by the violation, including reasonable attorney’s fees. – Pp. 1-2.

59. Newsome believes that the record evidence will support that Rule 11 liability is deemed appropriate at

this time to deter and discourage “Named Defendants” and their counsel (Phelps Dunbar/Siler/Marsh)

from coming before this Court with fraudulent intent, criminal intent and other willful, malicious and

wanton unethical behavior known to them.

60. Newsome believes that the record evidence will support that the 141-Page Complaint and the supporting

25 Exhibits attached thereto will support that “Named Defendants” and their counsel (Phelps

Dunbar/Siler/Marsh) had enough facts, evidence and legal conclusion to support that their counsel knew

and/or should have known that the Motion to Stay and supporting Memorandum In Support were

frivolous and when he affixed his “electronic signature” to such sham/frivolous pleadings he knew

and/or should have known he did so with the intent to commit fraud upon this Court and to cause

needless and unwarranted delay, harassment and increase in costs of litigation and other reasons known

to him and “Named Defendants.”

Mercury Air Group, Inc. v. Mansour, 237 F.3d 542 (C.A.5. 2001) - Under Rule 11, an attorney must have made a reasonable inquiry into the facts and law of a case at the time which he or she affixes his or her signature on any papers to the court. Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A. Walker v. City of Bogalusa, 168 F.3d 237 (C.A.5.1999) - A signatory violates Rule 11 if he fails to conduct a reasonable inquiry into the law and facts underlying his motion, or if he makes a motion to delay, harass or increase the costs of litigation. Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A.

61. Newsome believes that the record evidence will support that the 141-Page Complaint and the supporting

25 Exhibits attached thereto will support that “Named Defendants” had enough facts, evidence and legal

conclusion to support that they knew and/or should have known that they were required to conduct

reasonable inquiry in to the laws and/or legal basis of the Motion to Stay and the supporting

Memorandum In Support filed by their counsel. Therefore, “Named Defendants” and their counsel have

violated Rule 11.

62. The nature and/or area of employment of “Named Defendants” is and/or has been the “LEGAL

FIELD” – i.e. law firm, attorneys, executive for law firm (Manager/Human Resources Representative),

etc.

63. Newsome believes that a reasonable mind may conclude that had “Named Defendants” and/or their

counsel conducted reasonable inquiry into the Motion to Stay and supporting Memorandum In Support, they would have found that there was NO legal basis or evidence to sustain such sham/frivolous

pleadings. Moreover, that the arguments raised had already been ANSWERED and ADDRESSED in

Newsome’s Complaint at Page 7 and Footnote 6 – i.e. for instance, she provides case law from Walton

v. Utility Products, Inc., 424 F.Supp. 1145 (D.C.Miss. 1976 ); which clearly STRIPS and SLAMS-THE-

DOOR-SHUT to sham/frivolous assertions (i.e. to Rule 12(b)(6) motions) made in Motion to Dismiss

and the supporting Memorandum Briefs See EXHIBIT “14” – Walton v. Utility Products, Inc., 424

F.Supp. 1145 (D.C.Miss. 1976 ) attached hereto and incorporated by reference as if set forth in full

herein.

Thomas v. Capital Sec. Services, Inc., 812 F.2d 984 (5th Cir. Miss.1987 - BARBOUR) - Rule 11

is violated if attorney breaches duty to conduct reasonable inquiry into facts which support the document, if attorney fails to conduct reasonable inquiry into law such that document embodies existing legal principles or good-faith argument for extension, modification, or reversal of

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existing law, or if motion is interposed for purposes of delay, harassment, or increasing costs of litigation, as each is an independent duty of signing attorney. Fed.Rules Civ.Proc.Rules 11, 11 note, 28 U.S.C.A. Southern Leasing Partners, Ltd. v. McMullan, 801 F.2d 783 (5th Cir.Miss. 1986 - BARBOUR) -

District court did not abuse its discretion in imposing Rule 11 sanctions against plaintiff and its attorneys for failure to make reasonable inquiry; if counsel had made sufficient inquiry, it would have discovered that plaintiff's complaint was barred by res judicata; moreover, such failure could not be explained away by approaching limitations bar, as counsel's delay of almost three months in investigating merits of case created the problem. Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A. Marlin v. Moody Nat. Bank, N.A., 533 F.3d 374 (5th Cir. 2008) - “Snapshot rule” ensures that

Rule 11 liability is assessed only for violation existing at moment of filing.

II. MOTION FOR DEFAULT JUDGMENT

Newsome moves this Court to enter a Default Judgment in this lawsuit of and Against “Named Defendants”

– Page Kruger & Holland, P.A., Thomas Y. Page, Louis G. Baine III and Linda Thomas pursuant to FRCP Rule 55

which state in part:

FRCP Rule 55. Default; Default Judgment

(a) Entering a Default. When a party against whom a judgment for affirmative relief is sought

has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.

(b) Entering a Default Judgment. (1) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum that can be made

certain by computation, the clerk – on the plaintiff’s request, with an affidavit showing

the amount due – must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.

(2) By the Court. In all other cases, the party must apply to the court for default judgment. A default judgment may be entered against a minor or incompetent person only if represented by general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of

application at least 3 days before the hearing. The court may conduct hearings or make referrals – preserving any federal statutory right to a jury trial – when, to enter or effectuate judgment, it needs to:

(A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter.

In further support thereof, Newsome states the following:

64. This instant Motion for Default Judgment (“MFDJ”) is submitted in good faith and is not submitted for

purposes of delay, harassment, hindering proceedings, embarrassment, obstructing the administration of

justice, vexatious litigation, increasing the cost of litigation, etc. and is filed to protect and preserve the

rights of Newsome secured/guaranteed under the United States Constitution and other laws of the United

States.

65. This instant MFDF is submitted to protect the rights of Newsome and the relief she is entitled to as a

direct and proximate result of Defendants FAILURE to file an Answer and/or Responsive pleading required under the statutes/laws governing said matters.

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66. All NOTIFICATION requirements have been met. “Named Defendants” were timely, properly and

adequately notified that Default Judgment would be sought against them as early as about June 6, 2012,

and received on or about June 8, 2012. Moreover, through the “Waiver of the Service of Summons”

executed by “Named Defendants” which contained, “NOTIFICATION ACCOMPANYING

WAIVER OF SERVICE OF SUMMONS,” they were advised of the following:

You are further hereby NOTIFIED, that unless you serve and file a written responsive pleading within the specified time, the Plaintiff will take judgment against you by default (i.e. for instance, “Motion for Default Judgment”) for the relief demanded in the Complaint.

See at Page 4 of EXHIBITS 25, 26, 27 and 28 respectively attached hereto and incorporated herein by

reference. In an effort DECEIVE this Court and efforts of keeping this information out of the

records, “Named Defendants” and their counsel (Phelps Dunbar/Siler/Marsh) RECREATED the

“Waiver of the Service of Summons” to SHIELD/HIDE from this Court by removing information

regarding the method of mailing information (i.e. CERTIFIED MAIL) and noted information stating,

“NOTE: To save cost of litigation Plaintiff provided with "Notice of Lawsuit and Request for Waiver of Service of Summons" and "Waiver of Service of Summons" a document entitled, "Notification Accompanying Waiver of Service of Summons" which she believes contains pertinent information

regarding ANSWERING of Complaint - a copy of which is attached to this "Waiver of Service of Summons" that was provided on the ORIGINAL “Waiver of the Service of Summons” and the attached

“NOTIFICATION ACCOMPANYING WAIVER OF SERVICE OF SUMMONS.” Nevertheless,

the record of this Court will support timely notification and evidence of what was received – See

EXHIBITS 25, 26, 27, and 28 respectively attached hereto and incorporated by reference as if set forth

in full herein.

67. In support of this instant MFDJ, Newsome presents the following PRIMA FACIE CASE: (a)

Newsome would be prejudiced by this Court’s denial of her Motion for Default Judgment. While

Newsome is proceeding in this instant lawsuit pro se she is a PAYING LITIGANT and is NOT

proceeding in this matter in forma pauperis and is governed by the rules and procedures of this Court

and/or statutes/laws applicable to this action. Therefore, the attempts by Named Defendants’ counsel to

assert this lawsuit is subject to the provisions of 42 USC § 1983 is WITHOUT merit, baseless and

FRIVOLOUS. The record evidence supports that Newsome lost her job as a direct and proximate

result of acts taken against her by “Named Defendants” and those conspiring with them to cause

Newsome injury/harm. Said actions taken by “Named Defendants” and those conspiring against

Newsome were to obtain an undue advantage over her in their expectation of the bringing of legal action

and for means of financial devastation to prevent Newsome from successfully litigating this action.

Newsome would be further prejudiced by denial of the relief sought in that she has already suffered

irreparable injury/harm as a direct and proximate result of “Named Defendants’” culpable acts.

Furthermore, should this Court deny Newsome’s Motion for Default Judgment, it would deprive her equal protection of the laws, equal privileges and immunities and due process of laws, etc. Rights

secured/guaranteed under the Constitution, Civil Rights Act as well as other governing statutes/laws in

such matters. (b) “Named Defendants” have no meritorious defense. “Named Defendants” made a

conscious, willful and decision to file a FRIVOLOUS Responsive Pleading in this action under Rule

12(b)(6) of the Federal Rules of Civil Procedure which Newsome has timely, properly and adequately

moved to have STRICKEN from the record – i.e. as a matter of law is to be GRANTED! (c) Not only

did “Named Defendants’” culpable conduct lead to their default, said conduct led to Newsome being

terminated from her place of employment – culpable acts done with intent to obtain an undue

advantage in the bringing of this lawsuit against them. Furthermore the record evidence and that

presented in this instant motion will support “Named Defendants’” culpable acts led to their default – a

default which is as a direct and proximate result of “Named Defendants’” defiance and reckless

disregard of the rules and procedures governing said matters. The record evidence supports that

Newsome timely, properly and adequately notified “Named Defendants” of the consequences of failing

to file a timely Answer and/or file a responsive pleading/motion in accordance to the statutes/laws

governing said matters. To no avail. “Named Defendants” ignored said notifications provided them by

Newsome through the “Notification Accompanying Waiver of Service of Summons” which was

attached to the “Waiver of the Service of Summon” served on “Named Defendants.” In fact, Named

Defendants’ and their counsel’s (Phelps Dunbar/Siler/Marsh) knowledge of said information and the

of 39

EXHIBITS TABLE

EXHIBIT DESCRIPTION

1 Affidavit Of Vogel Denise Newsome in Support of Motion to Strike

2 FRCP Rule 26

3 28 USC § 455

4 Phillips v. Joint Legislative Committee on Performance and Expenditure Review Of The State of Mississippi

5 Code of Judicial Conduct (Mississippi)

6 Docket Sheet (Newsome vs Page Kruger & Holland)

7 Waiver or Loss of Right To Disqualify Judge (Civil Cases)

8 FRCP Rule 73

9 DECLINE NOTICE – Notice, Consent and Reference of a Civil Action to a Magistrate Judge

10 Mississippi Rules of Professional Conduct

11 Plummer vs Chicago Journeyman Plumbers’ Local Union No. 130

12 Hall vs Small Business Administration

13 Woldum v. Roverud Construction

14 Walton vs Utility Products Inc.

15 Heath vs D. H. Baldwin Company

16 Howard vs Sun Oil Company

17 Truvillion vs King’s Daughters Hospital

18 05/16/06 Email – VOGEL NEWSOME – PKH’s Termination of Employment

19 Docket Sheet (Mitchell McNutt & Sams)

20 Phelps Dunbar Client Listing

21 DOCKET SHEET – Vogel Denise Newsome vs Entergy New Orleans et al.

22 Walker vs Epps

23 Judge Barnett’s MOTION Calendar

24 Callahan vs Bancorpsouth Insurance Services of Mississippi

25 WAIVER OF THE SERVICE OF SUMMONS – Page Kruger & Holland P.A.

26 WAIVER OF THE SERVICE OF SUMMONS – Thomas Y. Page

of 39

EXHIBIT DESCRIPTION

27 WAIVER OF THE SERVICE OF SUMMONS – Louis G. Baine III

28 WAIVER OF THE SERVICE OF SUMMONS – Linda Thomas

29 NOTICE OF LAWSUIT – Page Kruger & Holland P.A.

30 NOTICE OF LAWSUIT – Thomas Y. Page

31 NOTICE OF LAWSUIT – Louis G. Baine III

32 NOTICE OF LAWSUIT – Linda Thomas

33 SLIDESHARE SCREENSHOT – 07/14/12 Motion To Strike

34 07/18/12 Facsimile To Phelps Dunbar/W Thomas Siler Jr/Jason T Marsh

35 Docket Sheet (Spring Lake Apartments)

36 Judge G Thomas Porteous Information

37 Judge Bobby DeLaughter Information

38 Notice of Appearance of Counsel

39 Linda Daschle Information

40 Hambrick vs Bear Stearns Residential Mortgage

41 Phelps Dunbar & Baker Donelson EMPLOYEES/EMPLOYMENT Ties

42 Disqualification Of Supreme Court Justices: The Certiorari Conundrum

43 RECUSAL ORDERS – Judge Tom Stewart Lee

44 MISSISSIPPI BAR ASSOCIATION INFORMATION – Judge Tom Stewart Lee

45 Judge’s Membership In Bar Association As Ground For Disqualification 28 USCS § 455

46 Baker Donelson GOVERNMENT Controlled/Run Positions

47 Disqualification of Judge Under 28 U.S.C.A. § 455(b)(4), Providing For Disqualification

Where Judge Has Financial Or Other Interest In Proceeding

48 Disqualification of Judge Because of Political Association or Relation To Attorney In Case

49 Construction and Application of 28 USCS § 455(a) Providing for Disqualification of

Justice, Judge, Magistrate, or Referee in Bankruptcy in ANY Proceeding in Which His

Impartiality Might Reasonably Be Questioned

50 Safeguarding the Litigant’s Constitutional Right to a Fair and Impartial Forum: A Due

Process Approach to Improprieties Arising from Judicial Campaign Contributions From

Lawyers

51 Disqualification of Judge For Bias Against Counsel For Litigant

of 39

EXHIBIT DESCRIPTION

52 Conduct or Bias of Law Clerk or Other Judicial Support Personnel As Warranting Recusal

Of Federal Judge Or Magistrate

53 Alexander vs. Easy Finance of New Albany, Inc.

54 07/11/12 – Letter FROM Phelps Dunbar/Marsh to Vogel Denise Newsome

55 Judge's Former Law Clerks/Judge's Former Employment

56 Judge's Knowledge of Evidentiary Facts

57 Judge As Material Witness In Proceeding

58 Judge Henry T. Wingate – Judgepedia Information

59 Howard Henry Baker Jr. – Wikipedia Information

60 Magistrate F. Keith Ball – Confirmed

61 MS Litigation Article – Judge Wingate Confirms Keith Ball

62 Judge Wingate Appoints Magistrate Selection Panel

63 Magistrate Keith Ball – Judgepeida Information

64 Magistrate Keith Ball - Baker Donelson Counsel In Copyright Matter

65 Docket Sheet – The Garretson Firm Resolution Group Inc.

66 Page Kruger & Holland (Stock Shares Authorized/Issued)

of 5

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT – JACKSON DIVISION

VOGEL DENISE NEWSOME PLAINTIFF V. CIVIL ACTION NO. 3:12-cv-00342 PAGE KRUGER & HOLLAND P.A., ET AL. DEFENDANTS

VOGEL DENISE NEWSOME’S AFFIDAVIT IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE MOTION TO STAY ALL PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT OF MOTION TO STAY ALL

PROCEEDINGS PENDING A RULING ON DEFENDANTS’ MOTION TO DISMISS; MOTION FOR RULE 11 SANCTIONS OF AND AGAINST DEFENDANTS; AND MOTION FOR DEFAULT JUDGMENT

(JURY TRIAL DEMANDED IN THIS ACTION)1

STATE OF OHIO ) ) SS COUNTY OF HAMILTON ) I, Vogel Denise Newsome (“Newsome”), being first duly sworn, deposes and states:

1. Newsome is the Plaintiff in the above-entitled action.

2. Newsome has personal knowledge as to the claims and facts set forth in the Motions and Memorandum Brief in which this Affidavit supports. Moreover, giving rise to the lawsuit filed in this action.

3. Newsome is competent to testify to the matters set forth in the Complaint and her

subsequent pleadings filed.

4. The Motions and Memorandum Brief in which this Affidavit supports and this Affidavit is being filed in good faith and is NOT imposed for purposes of delay, harassment, hindering proceedings, embarrassment, obstructing the administration of justice, vexatious litigation, increasing the cost of litigation, etc. and is filed to protect and preserve the rights of Newsome secured/guaranteed under the United States Constitution and other laws of the United States.

5. Newsome OBJECTS to the appointment of this matter to Judge Tom Stewart Lee

and believes that he is to RECUSE and/or DISQUALIFY himself from this lawsuit for the reasons set forth in her previous pleadings and this instant filing to which this Affidavit supports.

6. Newsome OPPOSES and OBJECTS to this Court’s allowing parties to abuse this

Court’s Electronic Filing System.

1 NOTE: Boldface, caps, small-caps, italics, highlights and underline represents “emphasis” added.

EXHIBIT “1”

of 5 USDC Southern District Mississippi (Jackson)

CIVIL ACTION NO. 3:12-cv-00342

7. Newsome will be prejudiced by this Court’s allowing the sham and frivolous Motion To Stay All Proceedings Pending A ruling On Defendants’ Motion To Dismiss (“Motion to Stay”) and Memorandum In Support Of Motion To Stay All Proceedings Pending A Ruling On Defendants’ Motion To Dismiss (“Memorandum In Support”) to remain a part of the record in that they have been filed in violation of the statutes/laws governing said matters.

8. There are genuine issues of material fact which precludes the filing of Motion to

Stay and the supporting Memorandum In Support; wherein resulting in the Motion to Strike and Motion for Default Judgment as well as other relief set forth in the Motions to which this Affidavit supports.

9. All facts and/or claim set forth in the Complaint are to be deemed as TRUE and to

date remain UNCONTESTED!

10. On or about June 6, 2012, Newsome timely, properly and adequately notified “Named Defendants” – Page Kruger & Holland, Thomas Y. Page, Louis G. Baine III and Linda Thomas [hereinafter “Named Defendants”] – of the consequences (i.e. that she will file Motion to Strike and/or Motion for Default Judgment) should they fail to comply with the statutes and laws governing said matters.

11. Newsome believes that based upon the facts, evidence and legal conclusions

provided in the Complaint and her subsequent pleading, that a reasonable mind may conclude that Named Defendants and/or their Counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) did knowingly and willing submit Motion to Stay and Memorandum In Support with fraudulent intent – i.e. purposes of committing fraud upon this Court.

12. Newsome believes that the record evidence will sustain that “Named Defendants”

come before this Court with DIRTY HANDS! Moreover, may rely and encourage WILLFUL participants as their legal counsel (Phelps Dunbar/W. Thomas Siler, Jr./Jason T. Marsh) to this action to come before this Court with DIRTY HANDS!!!

13. Newsome believes that it is important for this Court to be fully aware as to what is

going on in matters outside this lawsuit so that this Court can better understand the unlawful/illegal acts of Named Defendants and/or their Counsel. Moreover, see through their HIDDEN MOTIVES and AGENDAS!

14. The allegations set forth in Motions to which this Affidavit supports can be

supported by factual evidence in the record of “Named Defendants” as well as pleading in this lawsuit.

15. There is sufficient facts, evidence and legal conclusions contained in the Complaint

to sustain the 13 Counts (i.e. while misnumbered does NOT take away from the merits, facts, evidence and legal conclusions sustaining them):

(1) Count I - 42 USC § 1981: Equal Rights Under The Law

Against Defendants;

(2) Count II - 42 USC § 1985: Conspiracy To Interfere With Civil Rights and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s);



(3) Count III - 42 USC § 1986: Action For Neglect To Prevent and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s);

(4) Count IV - Negligent Interference with Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s);

(5) Count V - Discrimination in Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s);

(6) Count II [Sic] – Retaliation and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s);

(7) Count IIIII [Sic] - Breach Of Express Employment Agreement 42 USC § 1981: Equal Rights Under The Law Against Defendant(s);

(8) Count VIII – Breach Of The Covenant Of Good Faith And Fair Dealing 42 USC § 1981: Equal Rights Under The Law Against Defendant(s);

(9) Count IX – Negligent Infliction Of Emotional Distress and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s);

(10) Count X – Fraud Against [sic] and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s);

(11) Count XI – Negligent Interference With Employment – Malicious Conspiracy To Cause Discharge From Employment and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s);

(12) Count IVII – Violation of the Fourteenth Amendment of the U.S. Constitution – Due Process and 42 USC § 1981: Equal Rights Under The Law; and

(13) Count VII – Violation of the Fourteenth Amendment of the U.S. Constitution – Equal Protection and 42 USC § 1981: Equal Rights Under The Law Against Defendant(s)

set forth. Furthermore, to sustain that this Court is to take “all the allegations in the complaint as TRUE even if doubtful in fact” - i.e. in a light more favorable to Newsome.

16. Newsome believes that when this Court allows the UNLAWFUL/ILLEGAL

practices as that in the submittal of Motion to Stay and supporting Memorandum In Support, it sends a message that such criminal and unethical practices are accepted – i.e. all you have to do is have BIG MONEY and be a BIG LAW FIRM with influences in HIGH PLACES.

17. Newsome believes that Foreign Countries/Nations and Foreign Leaders are tired of

the United States of America coming to them PREACHING to clean up their CORRUPTION, HUMAN RIGHTS VIOLATIONS, etc., yet and still the United States continue to engage in such unlawful/illegal practices itself – i.e. sending a message of HYPOCRISY and TWO-FACEDNESS. This instant lawsuit is a classic example of the BLATANT corruption, discrimination, employment



violations, etc. that employers engage in because they feel they are above the laws of the United States and/or feel they do not have to comply.

18. Newsome believes that there is sufficient evidence in the record of this Court to

sustain that the law firm (Baker Donelson Bearman Caldwell & Berkowitz [“Baker Donelson”]) that provides United States President Barack Obama with legal counsel and advice, may also be playing a role in the CONSPIRACIES and criminal/civil wrongs leveled against her. Rather than take this matter into her own hands, Newsome has initiated the appropriate legal action in the United States Supreme Court under its “ORIGINAL JURISDICTION.”

19. Newsome believes that AFTER going public in regards to Baker Donelson’s role

in the criminal/civil acts leveled against her and the HIGH POWER positions they hold in the Government – i.e. which includes the United States White House – Baker Donelson went out and SCRUBBED information from their Internet website. Baker Donelson advertising holding key positions as:

− Chief of Staff to the President of the United States

− United States Secretary of State

− United States Senate Majority Leader

− Members of the United States Senate

− Members of the United States House of Representatives

− Director of the Office of Foreign Assets Control for United States

− Department of Treasury

− Director of the Administrative Office of the United States

− Chief Counsel, Acting Director, and Acting Deputy Director of United States Citizenship & Immigration Services within the United States Department of Homeland Security

− Majority and Minority Staff Director of the Senate Committee on Appropriations

− Member of United States President’s Domestic Policy Council

− Counselor to the Deputy Secretary for the United States Department of HHS

− Chief of Staff of the Supreme Court of the United States

− Administrative Assistant to the Chief Justice of the United States

− Deputy under Secretary of International Trade for the United States Department of Commerce

− Ambassador to Japan

− Ambassador to Turkey

− Ambassador to Saudi Arabia

− Ambassador to the Sultanate of Oman

− Governor of Tennessee

− Governor of Mississippi

− Deputy Governor and Chief of Staff for the Governor of Tennessee

− Commissioner of Finance & Administration (Chief Operating Officer) - State of Tennessee

− Special Counselor to the Governor of Virginia

RULE 26. DUTY TO DISCLOSE; GENERAL PROVISIONS

GOVERNING DISCOVERY

(a) REQUIRED DISCLOSURES.

(1) Initial Disclosure.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated orordered by the court, a party must, without awaiting a discovery request, provide tothe other parties:

(i) the name and, if known, the address and telephone number of each individuallikely to have discoverable information—along with the subjects of thatinformation—that the disclosing party may use to support its claims or defenses,unless the use would be solely for impeachment;

(ii) a copy—or a description by category and location—of all documents,electronically stored information, and tangible things that the disclosing party hasin its possession, custody, or control and may use to support its claims ordefenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosingparty—who must also make available for inspection and copying as under Rule 34the documents or other evidentiary material, unless privileged or protected fromdisclosure, on which each computation is based, including materials bearing on thenature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34, any insurance agreement underwhich an insurance business may be liable to satisfy all or part of a possiblejudgment in the action or to indemnify or reimburse for payments made to satisfythe judgment.

Rule 26. Duty to Disclose; General Provisions Governing Discovery | Fed... http://www.law.cornell.edu/rules/frcp/rule_26

1 of 1 7/25/2012 10:07 AM

without awaiting a discovery request,must,

(iv) for inspection and copying as under Rule 34, any insurance agreement underwhich an insurance business may be liable to satisfy all or part of a possiblejudgment in the action or to indemnify or reimburse for payments made to satisfythe judgment.

EXHIBIT "2"

Effective:[See Text Amendments]

United States Code Annotated CurrentnessTitle 28. Judiciary and Judicial Procedure (Refs & Annos)

Part I. Organization of Courts (Refs & Annos)Chapter 21. General Provisions Applicable to Courts and Judges

§ 455. Disqualification of justice, judge, or magistrate judge

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding inwhich his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed eviden-tiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he pre-viously practiced law served during such association as a lawyer concerning the matter, or the judge or suchlawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser ormaterial witness concerning the proceeding or expressed an opinion concerning the merits of the particularcase in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, hasa financial interest in the subject matter in controversy or in a party to the proceeding, or any other interestthat could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of sucha person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

28 U.S.C.A. § 455 Page 1

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

EXHIBIT "3"

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the pro-ceeding;

(iv) Is to the judge's knowledge likely to be a material witness in the proceeding.

(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable ef-fort to inform himself about the personal financial interests of his spouse and minor children residing in hishousehold.

(d) For the purposes of this section the following words or phrases shall have the meaning indicated:

(1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation;

(2) the degree of relationship is calculated according to the civil law system;

(3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;

(4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship asdirector, adviser, or other active participant in the affairs of a party, except that:

(i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” insuch securities unless the judge participates in the management of the fund;

(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial in-terest” in securities held by the organization;

(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutualsavings association, or a similar proprietary interest, is a “financial interest” in the organization only if theoutcome of the proceeding could substantially affect the value of the interest;

(iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the pro-ceeding could substantially affect the value of the securities.

(e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any groundfor disqualification enumerated in subsection (b). Where the ground for disqualification arises only under sub-section (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for dis-qualification.

28 U.S.C.A. § 455 Page 2


(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bank-ruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has beendevoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, thathe or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has afinancial interest in a party (other than an interest that could be substantially affected by the outcome), disquali-fication is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as thecase may be, divests himself or herself of the interest that provides the grounds for the disqualification.

CREDIT(S)

(June 25, 1948, c. 646, 62 Stat. 908; Dec. 5, 1974, Pub.L. 93-512, § 1, 88 Stat. 1609; Nov. 6, 1978, Pub.L.95-598, Title II, § 214(a), (b), 92 Stat. 2661; Nov. 19, 1988, Pub.L. 100-702, Title X, § 1007, 102 Stat. 4667;Dec. 1, 1990, Pub.L. 101-650, Title III, § 321, 104 Stat. 5117.)

HISTORICAL AND STATUTORY NOTES

Revision Notes and Legislative Reports

1948 Acts. Based on Title 28, U.S.C., 1940 ed., § 24 (Mar. 3, 1911, c. 231, § 20, 36 Stat. 1090 [Derived fromR.S. § 601] ).

Section 24 of Title 28, U.S.C., 1940 ed., applied only to district judges. The revised section is made applicableto all justices and judges of the United States.

The phrase “in which he has a substantial interest” was substituted for “concerned in interest in any suit.”

The provision of section 24 of Title 28, U.S.C., 1940 ed., as to giving notice of disqualification to the “seniorcircuit judge,” and words “and thereupon such proceedings shall be had as are provided in sections 17 and 18 ofthis title,” were omitted as unnecessary and covered by section 291 et seq. of this title relating to designation andassignment of judges. Such provision is not made by statute in case of disqualification or incapacity, for othercause. See sections 140, 143, and 144 of this title. If a judge or clerk of court is remiss in failing to notify thechief judge of the district or circuit, the judicial council of the circuit has ample power under section 332 of thistitle to apply a remedy.

Relationship to a party's attorney is included in the revised section as a basis of disqualification in conformitywith the views of judges cognizant of the grave possibility of undesirable consequences resulting from a less in-clusive rule.

Changes were made in phraseology. 80th Congress House Report No. 308.

1974 Acts. House Report No. 93-1453, see 1974 U.S.Code Cong. and Adm.News, p. 6351.

28 U.S.C.A. § 455 Page 3


1978 Acts. Senate Report No. 95-989 and House Report No. 95-595, see 1978 U.S. Code Cong. and Adm.News, p. 5787.

1988 Acts. House Report No. 100-889, see 1988 U.S.Code Cong. and Adm.News, p. 5982.

Amendments

1988 Amendments. Subsec. (f). Pub.L. 100-702 added subsec. (f).

1978 Amendments. Pub.L. 95-598 struck out references to referees in bankruptcy in the section catchline and insubsecs. (a) and (e).

1974 Amendments. Pub.L. 93-512 substituted “Disqualification of justice, judge, magistrate, or referee in bank-ruptcy” for “Interest of justice or judge” in section catchline, reorganized structure of provisions, and expandedapplicability to include magistrates and referees in bankruptcy and grounds for which disqualification may bebased, and added provisions relating to waiver of disqualification.

Change of Name

“United States magistrate judge” substituted for “United States magistrate” in text pursuant to section 321 ofPub.L. 101-650, set out as a note under 28 U.S.C.A. § 631.

Effective and Applicability Provisions

1978 Acts. Amendment by Pub.L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub.L. 95-598, set out asa note preceding section 101 of Title 11, Bankruptcy. For procedures relating to bankruptcy matters duringtransition period, see note preceding section 151 of this title.

1974 Acts. Section 3 of Pub.L. 93-512 provided that: “This Act [amending this section] shall not apply to the tri-al of any proceeding commenced prior to the date of this Act [Dec. 5, 1974], nor to appellate review of any pro-ceeding which was fully submitted to the reviewing court prior to the date of this Act.”

CROSS REFERENCES

Application to other courts, see 28 USCA § 460.Arbitrators subject to disqualification rules under this section, see 28 USCA § 656.Bias or prejudice of judge, see 28 USCA § 144.Disqualification of trial judge to hear appeal, see 28 USCA § 47.United States Court of Veterans affairs, judges and proceedings of subject to this section, see 38 USCA §7264.

28 U.S.C.A. § 455 Page 4


LAW REVIEW COMMENTARIES

Adjudicatory independence and the values of procedural due process. Martin H. Redish and Lawrence C.Marshall. 95 Yale L.J. 455 (1986).

Adversary proceedings in bankruptcy. John Silas (“Si”) Hopkins, III, 39 Prac.Law. 55 (Sept.1993).

Conflicts of interest in Bush v. Gore: Did some justices vote illegally? Richard K. Neumann, Jr., 16 Geo.J. Legal Ethics 375 (2003).

Disqualification of Judges in California. J. Maloney. 16 U.S.F.L.Rev. 229 (1982).

Disqualification of Supreme Court Justices: The certiorari conundrum. Steven Lubet, 80 Minn.L.Rev. 657(1996).

Divergence of standards of conduct and standards of review in corporate law. Melvin Aron Eisenberg, 62Fordham L.Rev. 437 (1993).

Expanding the reach of alternative dispute resolution in bankruptcy: The legal and practical bases for theuse of mediation and the other forms of ADR. Ralph R. Mabey, Charles J. Tabb, and Ira S. Dizengoff, 46S.C.L.Rev. 1259 (1995).

Extrajudicial source doctrine and its implications for judicial disqualification. 48 Ark.L.Rev. 1059 (1995).

Illegitimacy of the extrajudicial source requirement for judicial disqualification under 28 U.S.C. § 455(a).Note, 15 Cardozo L.Rev. 787 (1993).

Impeach Brent Benjamin now!? Giving adequate attention to failings of judicial impartiality. Jeffrey W.Stempel, 47 San Diego L. Rev. 1 (February/March 2010).

Informal methods of judicial discipline. Charles Gardner Geyh, 142 U.Pa.L.Rev. 243 (1993).

Judicial bias and financial interest as grounds for disqualification of federal judges. Seth E. Bloom, 35Case W.Res.L.Rev. 662 (1984-85).

Liteky v. United States: Jeopardizing judicial integrity. 40 Loy.L.Rev. 995 (1995).

On the danger of wearing two hats: Mistretta and Morrison revisited. Ronald J. Krotoszynski, Jr., 38 Wm.& Mary L.Rev. 417 (1997).

Protecting the appearance of judicial impartiality in the face of law clerk employment negotiations. 62Wash.L.Rev. 815 (1987).

Questioning the impartiality of judges: Disqualifying federal district court judges under 28 U.S.C. §455(a). Comment, 60 Temp.L.Q. 697 (1987).

Safeguarding the litigant's constitutional right to a fair and impartial forum: A due process approach toimproprieties arising from judicial campaign contributions from lawyers. Note, 86 Mich.L.Rev. 382(1987).

28 U.S.C.A. § 455 Page 5


Should bias and interest lead to dissimilar results in judicial qualification practice? 27 Ariz.L.Rev. 171(1985).

LIBRARY REFERENCES

American Digest System

Judges 39 to 56.

Key Number System Topic No. 227.

Corpus Juris Secundum

CJS Bankruptcy § 34, Bias or Knowledge.CJS Bankruptcy § 35, Personal or Family Involvement.CJS Bankruptcy § 36, Involvement of Former Law Associate.CJS Bankruptcy § 37, Financial or Other Interest.CJS Constitutional Law § 1624, Right to Qualified and Competent Judge--Disqualification of Judge or Ma-gistrate.CJS Federal Civil Procedure § 888, Disqualification.CJS Federal Courts § 525, Effect of Transfer of Cause or Proceedings Therefor.CJS Federal Courts § 630, Application of Rules to Particular Errors.CJS Judges § 235, Consent.CJS Judges § 243, Federal Statutes.CJS Judges § 248, Business, Political, and Social Relations.CJS Judges § 257, Judge as Witness.CJS Judges § 266, Particular Statements or Expressions--Public Comment.CJS Judges § 319, Review.CJS Justices of the Peace § 50, Disqualification to Act.CJS Mandamus § 83, Judges--Recusal.

RESEARCH REFERENCES

ALR Library

52 ALR, Fed. 2nd Series 227, Jurisdiction of and Standing Before the United States Judicial Conference or ItsCommittee on Judicial Conduct and Disability.

34 ALR, Fed. 2nd Series 589, Disqualification of Federal Judge Under 28 U.S.C.A. § 455(B)(3), Providing forDisqualification of Judges Who Formerly Served in Government.

11 ALR, Fed. 2nd Series 435, Bankruptcy Rule 9011 Sanctions in Chapter 7 Bankruptcy Proceedings.

5 ALR, Fed. 2nd Series 31, Bankruptcy Rule 9011 Sanctions in Chapter 11 Bankruptcy Proceedings.

28 U.S.C.A. § 455 Page 6


United States Court of Appeals,Fifth Circuit.

Unit ABarbara PHILLIPS, Cornell Green Rice, Melvin Phillips, and Mississippi Council on Human Relations, a cor-

poration, individually and on behalf of all others similarly situated, Plaintiffs-Appellants,v.

The JOINT LEGISLATIVE COMMITTEE ON PERFORMANCE AND EXPENDITURE REVIEW OF theSTATE OF MISSISSIPPI et al., Defendants-Appellees.

The MISSISSIPPI COUNCIL ON HUMAN RELATIONS, a corporation, Barbara Phillips, Melvin Phillips andCornell Green Rice, individually and on behalf of all others similarly situated, Plaintiffs-Appellants,

v.The BOARD OF TRUSTEES OF the INSTITUTION OF HIGHER EDUCATION a/k/a The State College Board

et al., Defendants-Appellees.Barbara PHILLIPS, Melvin Phillips and Cornell Green Rice, individually and on behalf of a class, Plaintiffs-

Appellants,v.

The STATE OF MISSISSIPPI AGRICULTURAL AND INDUSTRIAL BOARD et al., Defendants-Appellees.

Nos. 79-2131, 79-2940 and 79-3550.Feb. 23, 1981.

Rehearing Denied April 27, 1981.

Employment discrimination actions were brought against three state agencies. The United States DistrictCourt for the Southern District of Mississippi, William Harold Cox and Walter L. Nixon, Jr., JJ., denied motionsfor recusal, denied most motions for class certification, and entered judgment on the merits in favor of the de-fendants and plaintiffs appealed. The Court of Appeals, Wisdom, Circuit Judge, held that: (1) evidence of state-ments made by district judge in prior cases involving racial discrimination did not provide basis for recusal; (2)class certification was improperly denied; (3) racial discrimination on a class basis on the part of one employerwas established; and (4) racial discrimination was shown in a number of the individual cases.

Affirmed in part and reversed and remanded in part.

West Headnotes

[1] Judges 227 51(4)

227 Judges227IV Disqualification to Act

227k51 Objections to Judge, and Proceedings Thereon227k51(4) k. Determination of Objections. Most Cited Cases

If affidavit of recusal is timely and technically correct, its factual allegations must be taken as true; judgemust pass on legal sufficiency of the affidavit but may not pass on the truth of the matters alleged. 28 U.S.C.A. §144.

Page 1637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67(Cite as: 637 F.2d 1014)

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. EXHIBIT "4"

[2] Judges 227 51(3)


227k51 Objections to Judge, and Proceedings Thereon227k51(3) k. Sufficiency of Objection or Affidavit. Most Cited Cases

Affidavit of recusal is legally sufficient if the facts are material and stated with particularity, the facts aresuch that they would convince a reasonable person that bias exists if they are true, and the facts show that the bi-as is personal as opposed to judicial in nature. 28 U.S.C.A. §§ 144, 455.

[3] Judges 227 51(4)



Under statute requiring a judge to disqualify himself in any proceeding in which his impartiality might bereasonably questioned, judge need not accept all the allegations by moving party as true and, in fact, no motionat all is required; the judge must disqualify himself if the facts cast doubt on his impartiality regardless of howor by whom they are drawn to his attention. 28 U.S.C.A. § 455.

[4] Judges 227 49(1)


227k49 Bias and Prejudice227k49(1) k. In General. Most Cited Cases

The alleged bias of a judge must be personal as distinguished from judicial in nature in order to require re-cusal. 28 U.S.C.A. §§ 144, 455.

[5] Judges 227 49(1)



Motion for disqualification ordinarily may not be predicated on the judge's rulings in the instant case or inrelated cases nor on a demonstrated tendency to rule in any particular way nor on any particular judicial leaningor attitude derived from his experience on the bench. 28 U.S.C.A. §§ 144, 455.

[6] Judges 227 49(1)



The fact that a judge's remarks or behavior take place in the judicial context does not exclude them from



scrutiny and from requiring recusal if they reflect such pervasive bias and prejudice as would constitute biasagainst one of the parties. 28 U.S.C.A. §§ 144, 455.

[7] Judges 227 49(2)


227k49 Bias and Prejudice227k49(2) k. Statements and Expressions of Opinion by Judge. Most Cited Cases

Where most of the allegations of bias concerned the trial judge's rulings or comments on the merits in previ-ous cases, where some of the older remarks reflecting racial reactions which were outmoded and improper werenot gratuitous insults and did not show overt hostility, and where all of the allegations concerned the judge's fi-nal conclusions or immediate reactions on points of law or facts in the case before him, they did not require re-cusal. 28 U.S.C.A. §§ 144, 455.

[8] Federal Courts 170B 819

170B Federal Courts170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent170BVIII(K)4 Discretion of Lower Court

170Bk819 k. Change of Venue; Disqualifying Judge; Continuance. Most Cited Cases

Judges 227 51(4)



Recusal motion is committed to the sound discretion of the district judge and on appeal it will be asked onlywhether he has abused his discretion. 28 U.S.C.A. §§ 144, 455.

[9] Federal Civil Procedure 170A 184.10

170A Federal Civil Procedure170AII Parties

170AII(D) Class Actions170AII(D)3 Particular Classes Represented

170Ak184 Employees170Ak184.10 k. Discrimination and Civil Rights Actions in General. Most Cited Cases

(Formerly 170Ak184)Where neither party could determine how many black applicants there were, let alone identify all of them,

and where the class included future and deterred applicants who were necessarily unidentifiable, joinder was im-practicable even if the number was small. Fed.Rules Civ.Proc. Rule 23(a)(1), 28 U.S.C.A.

[10] Federal Civil Procedure 170A 171




170AII(D) Class Actions170AII(D)2 Proceedings

170Ak171 k. In General; Certification in General. Most Cited CasesRequirement that the district court decide whether to certify a class in any case as soon as possible after the

commencement of the action is a command to the district court, not to the parties, and the court has an obliga-tion to make the determination on its own motion if necessary. Fed.Rules Civ.Proc. Rule 23(c)(1), 28 U.S.C.A.



170AII(D) Class Actions170AII(D)1 In General

170Ak164 k. Representation of Class; Typicality. Most Cited CasesFact that plaintiffs had delayed in making motion to certify the case did not show that they would be inad-

equate class representatives, especially where a good deal of the time had been consumed in litigating motionsfor change of venue and for recusal.



170AII(D) Class Actions170AII(D)2 Proceedings

170Ak171 k. In General; Certification in General. Most Cited CasesEven if attorney for plaintiffs would be disqualified from representing the class, it does not follow that the

class may not be certified; court may make certification contingent on replacement of counsel or on severance ofthe individual claim of the offending class representative.



170AII(D) Class Actions170AII(D)1 In General

170Ak164 k. Representation of Class; Typicality. Most Cited CasesFact that one of the named plaintiffs was an attorney for the civil rights law firm representing the plaintiff,

although she was not acting as an attorney in the case, did not preclude class representation on the theory thatshe was an inadequate representative because of a potential conflict with other class members where any attor-ney fees granted in the case would come directly from the defendants and not from any fund created for class re-lief. Civil Rights Act of 1964, § 706(k) as amended 42 U.S.C.A. § 2000e-5(k).


170A Federal Civil Procedure



170AII Parties170AII(D) Class Actions

170AII(D)3 Particular Classes Represented170Ak184 Employees

170Ak184.10 k. Discrimination and Civil Rights Actions in General. Most Cited Cases(Formerly 170Ak184)Where named plaintiffs did not seek to represent a class consisting exclusively of persons who had been de-

terred from making applications because of the racial policies of the employer, but, rather, also sought to repres-ent unsuccessful applicants, the named plaintiffs could represent the persons who had been deterred from apply-ing.


170B Federal Courts170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent170BVIII(K)5 Questions of Fact, Verdicts and Findings

170Bk855 Particular Actions and Proceedings, Verdicts and Findings170Bk858 k. Civil Rights Cases. Most Cited Cases

District court's finding of nondiscrimination is a determination of ultimate fact to which the clearly erro-neous standard does not apply.

[16] Civil Rights 78 1545

78 Civil Rights78IV Remedies Under Federal Employment Discrimination Statutes

78k1543 Weight and Sufficiency of Evidence78k1545 k. Prima Facie Case. Most Cited Cases

(Formerly 78k383, 78k44(1))Evidence that general population of the state was 37.2% black, that total civilian work force was 29.8%

black, that 31.6% of the persons registering at the state Employment Security Commission for professional jobswere black, that 27.8% of those registering for clerical or sales jobs were black, and that the percentage ofblacks at one employer was between 1.5% and 6.5% black made out a prima facie case of discrimination.


78 Civil Rights78II Employment Practices

78k1142 k. Educational Requirements; Ability Tests. Most Cited Cases(Formerly 78k199.1, 78k199, 78k13.11)

Civil Rights 78 1331(5)

78 Civil Rights78III Federal Remedies in General

78k1328 Persons Protected and Entitled to Sue78k1331 Persons Aggrieved, and Standing in General



78k1331(5) k. Employment Practices. Most Cited Cases(Formerly 78k199.1, 78k199, 78k13.11)Named plaintiffs who all had college degrees lacked constitutional standing to challenge legality of employ-

er's educational requirements for a college degree for certain positions.



78k1543 Weight and Sufficiency of Evidence78k1544 k. In General. Most Cited Cases

(Formerly 78k382.1, 78k382, 78k44(1))Evidence of disparity between number of blacks in the work force and the number of blacks hired by em-

ployer, evidence of employer's history of discrimination in not having hired a single black during its first threedecades of existence, and evidence that hiring procedures relied heavily on subjective judgments of executivesfrom personal interviews demonstrated discrimination against blacks.



78k1121 k. Hiring. Most Cited Cases(Formerly 78k142, 78k9.10)Whether subjectivity in hiring is necessary or not, subjective judgments are suspect as job qualifications

when they are exercised by members of an all white executive or supervisory staff.



78k1559 Relief78k1562 k. Affirmative Action; Recruitment and Hiring. Most Cited Cases

(Formerly 78k393, 78k46(4), 78k46)In view of past discrimination against blacks by state agency, court should direct the agency to set goals of

approximately 20% black employment, separately for clerical and nonclerical positions, should require it to un-dertake an aggressive campaign of recruitment and advertising to procure sufficient qualified black applications,and should, until those goals were achieved, require that one-third of all persons hired within a predeterminedsix-month period for permanent clerical or nonclerical jobs be black.



78k1534 Presumptions, Inferences, and Burden of Proof78k1536 k. Effect of Prima Facie Case; Shifting Burden. Most Cited Cases

(Formerly 78k378, 78k43)



Civil Rights 78 1545



(Formerly 78k383, 78k44(1))To raise a prima facie case of employment discrimination, plaintiff must show that he belongs to a racial

minority, that he applied and was qualified for job which the employer was seeking applicants, that he was re-jected despite his qualifications, and that the position remained open after his rejection; burden then shifts to theemployer to show some legitimate, nondiscriminatory reason for the applicant's rejection; plaintiff is then af-forded an opportunity to show that the employer's stated reason is, in fact, a pretext.




(Formerly 78k382.1, 78k382, 78k44(1))Employer bears the burden of showing a legitimate reason for rejection of minority applicant by a prepon-

derance of the evidence.




(Formerly 78k378, 78k44(1))Evidence of employer's belief that black applicant had taken another position did not rebut a prima facie

showing of employment discrimination where the employer claimed that an immediate decision to hire the ap-plicant had been made but the employer procrastinated for several weeks without making an offer and where theevidence showed that race was a consideration.




(Formerly 78k378, 78k44(1))Fact that black applicant had indicated that he left his previous position because it required excessive travel

was insufficient to rebut a prima facie case of discrimination against the black applicant on the theory that hehad expressed a reservation about job-related travel where the employer described the travel requirements to theapplicant but did not ask him if the travel requirements would be excessive.






(Formerly 78k382.1, 78k382, 78k44(1))In view of evidence that it was the routine practice of the employer to make no effort to further contact

“walk-in” applicants, black walk-in applicant did not establish that denial of employment was due to racial dis-crimination.




(Formerly 78k382.1, 78k382, 78k44(1))Evidence established that black applicant was not qualified for any vacant position.




(Formerly 78k382.1, 78k382, 78k44(1))Evidence that, during the year following black applicant's application, only one white applicant was hired

for position for which the black applicant might have been qualified and that the white applicant was more qual-ified demonstrated that black applicant had not been discriminated against on the basis of race.



78k1121 k. Hiring. Most Cited Cases(Formerly 78k141, 78k9.10)“Vacancy” within the meaning of the McDonnell Douglas test need not exist on the precise day of the ap-

plication; any vacancies within a reasonable time must be considered as well.




(Formerly 78k382.1, 78k382, 78k44(1))



Evidence that white was hired as a secretary scarcely two months after black secretary applied and absenceof evidence that white was more qualified established that black was discriminated against because of her race.




(Formerly 78k383, 78k44(1))Establishment of liability on class claim of employment discrimination operates to establish a prima facie

case on behalf of each member of the class.




(Formerly 78k382.1, 78k382, 78k44(1))Evidence that, after employer obtained necessary federal funds for position which it intended to offer black

applicant, it was informed that the black applicant had moved to another city to resume her law studies and thatit then abandoned its plans for the new job demonstrated that the failure to hire the black applicant was based ona belief that she was no longer interested in employment and not racial discrimination.




(Formerly 78k378, 78k44(1))Belief that black applicants were available for employment for only a short period of time based on the fact

that they took other employment did not rebut prima facie case of racial discrimination.



78k1511 k. Civil Actions in General. Most Cited Cases(Formerly 78k361, 78k38)Black applicant for a job is not required to either remain permanently unemployed or forfeit his cause of ac-

tion for racial discrimination.

*1017 Frank R. Parker, Nausead Stewart, Jackson, Miss., for plaintiffs-appellants Barbara Phillips et al. in No.79-2131.



Stewart & Parker, Nausead Stewart, Lawyers' Committee for Civil Rights Under Law, Jackson, Miss., McTeer,Walls, Bailey & Buck, Charles Victor McTeer, Greenville, Miss., for plaintiffs-appellants Miss. Council on Hu-man Relations et al.

Ross, Hardies, O'Keefe, Babcock & Parsons, William Freivogel, Susan G. Lichtenfeld, Chicago, Ill., NauseadStewart, Lawyers' Committee for Civil Rights Under Law, Jackson, Miss., for plaintiffs-appellants Barbara Phil-lips et al. in No. 79-3550.

James M. Ward, Sp. Counsel, Starkville, Miss., Hubbard T. Saunders, IV, Sp. Asst. Atty. Gen., A. F. Summer,Atty. Gen., State of Miss., Dept. of Justice, Jackson, Miss., for defendants-appellees Joint Leg. Committee et al.

Ed. Davis Noble, Jr., Asst. Atty. Gen., Bill Allain, Atty. Gen., Jackson, Miss., M. M. Roberts, Hattiesburg,Miss., for defendants-appellees Bd. of Trustees of Institution of Higher Ed. et al.

Bill Allain, Atty. Gen., Hubbard T. Saunders, IV, Sp. Asst. Atty. Gen., Jackson, Miss., James M. Ward, Sp.Counsel, Starkville, Miss., for defendants-appellees State of Miss. Agricultural and Indus. Bd. et al.

Appeals from the United States District Court for the Southern District of Mississippi.

Before WISDOM, RUBIN and SAM D. JOHNSON, Circuit Judges.

WISDOM, Circuit Judge:These appeals concern three allied lawsuits brought against Mississippi state agencies for employment dis-

crimination. The named plaintiffs are the same in the three *1018 cases: Barbara Phillips, Melvin Phillips (notrelated), and Cornell Green Rice.[FN1] All are black. In each case the plaintiffs sought to represent a class ofblack job applicants.

FN1. The Mississippi Council on Human Relations was an original party plaintiff in all three cases. Itwas dismissed for lack of a real interest in the outcome in the PEER and A&I cases.

The defendant [FN2] in No. 79-2940 is the Joint Legislative Committee on Performance Evaluation and Ex-penditure Review (“PEER”), an arm of the Mississippi legislature with power to conduct performance evalu-ations, investigations, and critical examinations of all expenditures by any state agency. It is composed of fivemembers of each House. It employs a staff of about twenty research analysts and clerical workers. Its offices arein Jackson.

FN2. In all three cases there are also individual defendants: the members of each defendant board orcommittee, certain staff executives, and other present and former state officers.

The defendant in No. 79-2131 is the Mississippi Agricultural and Industrial Board (“A&I”), an agency cre-ated to promote industrial and agricultural development and tourism. Its members are the Governor, the Lieuten-ant Governor, the Speaker of the Mississippi House, four state legislators, three other state officials, and twenty-five public members appointed by the Governor. Among its functions are approval of industrial bond issues,study and recommendation of tax exemptions for Mississippi ports and harbors, and dissemination of tourist in-formation. The Board employs a staff of sixty to eighty persons at its main office in Jackson.



The defendant in No. 79-3550 is the Board of Trustees of the Institutions of Higher Learning (commonlyknown as the College Board), the governing body for Mississippi's state universities and colleges. Its membersare appointed by the Governor. The Board employs a staff of about eighteen financial analysts and clericalworkers in Jackson. This suit concerns the Board's employment practices with regard only to that staff and not tothe university system generally.

All three suits were brought as class actions in the Northern District of Mississippi, alleging racial discrim-ination in the defendants' employment practices in violation of Title VII of the Civil Rights Act of 1964 asamended. [FN3] The cases were transferred to the Southern District of Mississippi under 28 U.S.C. s 1404(a)(1976). Although the PEER and A&I cases were consolidated for some preliminary purposes, the three weretried separately.[FN4] In the PEER and A&I cases the plaintiffs moved for the district judge's recusal. The mo-tions were denied, and this Court refused to issue a mandamus ordering recusal of the trial judge. In re Phillips,No. 76-4038 (5 Cir. Nov. 19, 1976). In the PEER and College Board cases, the court refused to certify the al-leged classes. In the A&I case the court certified a class of all past black unsuccessful job applicants, but refusedto broaden the class to include future black applicants or persons deterred from applying by A&I's alleged dis-criminatory practices or reputation. After full trials on the merits, the court granted judgments for the defendantson all claims.

FN3. 42 U.S.C. ss 2000e to 2000e-17 (1976). The complaints also cited id. ss 1981, 1983. The plaintiffsappeal only on the Title VII judgments.

FN4. The PEER and A&I cases were assigned to Hon. William Harold Cox. U.S. Magistrate John R.Countiss presided over the trials and most other proceedings in the cases. Judge Cox adopted MagistrateCountiss's findings of fact and conclusions of law. The College Board case was assigned to and tried byHon. Walter L. Nixon, Jr.

On appeal, the plaintiffs contend (1) that the district judge erroneously refused to recuse himself in the A&Icase; [FN5] (2) that the court improperly refused to certify classes in the PEER and College Board cases; (3) thatthe court improperly narrowed the class certified in the A&I case; and (4) that the court's judgments on the mer-its are legally incorrect or clearly erroneous. We affirm the district court's decisions*1019 as to recusal and as tosome of the individual claims. We reverse, however, as to the remaining individual claims, as to the class certi-fication issues, and as to the merits of the class claim in the A&I case.

FN5. As noted, the same judge refused recusal in the PEER case as well. The plaintiffs have chosen notto appeal that decision.

I. RECUSALBarbara Phillips, acting on behalf of her co-plaintiffs, filed an Affidavit of Personal Bias and Prejudice in

the A&I case, seeking the recusal of Judge William Harold Cox. Phillips's affidavit did not state any facts relat-ing to any bias against any of the particular plaintiffs or in favor of any of the particular defendants in the case.Rather, she attempted to show that Judge Cox is prejudiced against all blacks and that he is hostile to civil rightssuits. Some of her allegations are conclusory accusations, lacking in particularity. Others recite particular judi-cial rulings, quotations from written opinions, and alleged remarks from the bench, in five cases over JudgeCox's nineteen-year judicial career. Phillips also recited statistics concerning the frequency with which thisCourt has affirmed or reversed Judge Cox's rulings in civil rights cases.

[1][2] There are two statutes governing recusal of federal district judges. 28 U.S.C. ss 144, 455 (1976). Sec-



tion 144 provides in part:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit thatthe judge before whom the matter is pending has a personal bias or prejudice either against him or in favor ofany adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear suchproceeding.

If an affidavit filed under section 144 is timely and technically correct, its factual allegations must be takenas true for purposes of recusal. The judge must pass on the legal sufficiency of the affidavit, but he may not passon the truth of the matters alleged. Berger v. United States, 1921, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; Par-rish v. Board of Commissioners, 5 Cir. 1975, 524 F.2d 98, 100 (en banc), cert. denied, 425 U.S. 944, 96 S.Ct.1685, 48 L.Ed.2d 188 (1976); Davis v. Board of School Commissioners, 5 Cir. 1975, 517 F.2d 1044, 1051, cert.denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); United States v. Roca-Alvarez, 5 Cir. 1971, 451F.2d 843, 847-48. In Parrish, we stated that an affidavit is legally sufficient if it meets a three-part test:

1. The facts must be material and stated with particularity.

2. The facts must be such that, if true, they would convince a reasonable person that bias exists.

3. The facts must show the bias is personal, as opposed to judicial in nature.

524 F.2d at 100, quoting United States v. Thompson, 3 Cir. 1973, 483 F.2d 527, 528, cert. denied, 415 U.S.911, 94 S.Ct. 1456, 39 L.Ed.2d 496 (1974).

[3] Congress rewrote the second statute, section 455, in 1974. Subsection (b) of that section lists a numberof specific situations in which a judge must recuse himself; none apply here. Subsection (a), a more general pro-vision, requires that

Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which hisimpartiality might reasonably be questioned.

Section 455, unlike section 144, does not stipulate a formal procedure by which it must be raised. Like sec-tion 144, however, it may be raised by motion. Davis, 517 F.2d at 1051. Substantively, the two statutes are quitesimilar, if not identical.[FN6]

FN6. To the extent that there is a difference, section 455 imposes the stricter standard: a movant undersection 144 must allege facts to convince a reasonable person that bias exists, Parrish, 524 F.2d at 100,while under the broader language of section 455, he must show only that a reasonable person “wouldharbor doubts about the judge's impartiality”, Potashnick v. Port City Constr. Co., 5 Cir. 1980, 609 F.2d1101, 1111 (emphasis added), cert. denied, -- U.S. --, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980). See Com-ment, Disqualification of Federal Judges for Bias or Prejudice, 46 U.Chi.L.Rev. 236, 243-50 (1978).See also Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736,745-50 (1973).

On the other hand, section 455, unlike section 144, does not require the judge to accept all allegationsby a moving party as true. Indeed, the section requires no motion at all; the judge must disqualifyhimself if the facts cast doubt on his impartiality regardless of how or by whom they are drawn to hisattention. See Fredonia Broadcasting Corp. v. RCA Corp., 5 Cir. 1978, 569 F.2d 251, 254-57, cert.



denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167 (1979). Section 144, by contrast, requires allega-tion by affidavit within a stringent time limit and allows a party only one such affidavit in any case. Ifa party could bind a judge by his factual allegations in a section 455 motion, free from the formal re-quirements and more demanding standard of proof of section 144, the result would be a virtual openseason for recusal. See 46 U.Chi.L.Rev. at 250.

[4][5][6] *1020 Under either statute, the alleged bias must be “personal”, as distinguished from judicial, innature. Davis, 517 F.2d at 1052; Parrish, 524 F.2d at 100; Steering Committee v. Mead Corp., 5 Cir. 1980, 614F.2d 958, 964-65; United States v. Serrano, 5 Cir. 1979, 607 F.2d 1145, 1150, cert. denied, 445 U.S. 965, 100S.Ct. 1655, 64 L.Ed.2d 241 (1980); Whitehurst v. Wright, 5 Cir. 1979, 592 F.2d 834, 837-38; Heppele v. John-ston, 5 Cir. 1979, 590 F.2d 609, 613; United States v. Archbold-Newball, 5 Cir. 1977, 554 F.2d 665, 682, cert.denied, 434 U.S. 1000, 98 S.Ct. 644, 54 L.Ed.2d 496 (1973). The point of the distinction is that the bias “muststem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judgelearned from his participation in the case”. United States v. Clark, 5 Cir. 1979, 605 F.2d 939, 942 (per curiam).Thus, a motion for disqualification ordinarily may not be predicated on the judge's rulings in the instant case orin related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular judicial leaningor attitude derived from his experience on the bench. United States v. Grinnell Corp., 1966, 384 U.S. 563, 583,86 S.Ct. 1698, 1710, 16 L.Ed.2d 778, 793; Berger, 255 U.S. at 31, 41 S.Ct. at 232; Steering Committee, 614F.2d at 964; Serrano, 607 F.2d at 1150; Clark, 605 F.2d at 942; United States v. Caicedo-Asprilla, 5 Cir. 1980,632 F.2d 1161, 1165. [FN7]

FN7. The single fact that a judge's remarks or behavior take place in a judicial context does not excludethem from scrutiny if they reflect “such pervasive bias and prejudice ... as would constitute bias againsta party”. Davis, 517 F.2d at 1051; Whitehurst, 592 F.2d at 838. See also United States v. Ritter, 10 Cir.1976, 540 F.2d 463 (per curiam), cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976).

[7] Here, most of Phillips's allegations concern Judge Cox's rulings or comments on the merits in previouscases. Some of them are misleadingly quoted out of context. At times, especially in some of the older instances,his remarks reflected racial reactions not only outmoded but improper. These remarks were unseemly, and we donot condone them. Nevertheless, they are not enough to require recusal. The comments alleged are not gratuit-ous insults and do not show overt hostility or the like; in every instance they concern the district judge's finalconclusions or immediate reactions on points of fact or law in the case before him. We would be reluctant, inany but an extreme case, to base a disqualification order on such allegations. It is a district judge's duty to con-duct trials, weigh evidence, consider the law, exercise his discretion, and reach decisions in the cases on whichhe sits. If he understands that a seemingly harsh comment toward a party or an attorney, or a perceived tendencyto give severe sentences to some class of offenders, or an aggregate imbalance in victories for plaintiffs or de-fendants in a particular class of cases may subject him to a train of successful recusal motions in future cases, hemay consciously or subconsciously shape his judicial actions in ways unrelated to the merits of the cases beforehim. Whether his conclusions in every case are the same as those that we (or these plaintiffs) would havereached is immaterial. A judge is not a computing machine, and the judicial system is not constructed so thateach judge must reach the same result as all other judges in a given case. If a judge's “error” amounts to incor-rect law or an abuse of discretion, appellate courts exist to correct it. Within that boundary, he not only may, butshould, exercise his independent judgment on the facts and on the law. Presumably, for this attribute, among*1021 others, he was appointed. See Serrano, 607 F.2d at 1150-51; United States v. Johnson, 4 Cir. 1976, 537F.2d 1170, 1175; Baskin v. Brown, 4 Cir. 1949, 174 F.2d 391, 394; B. Cardozo, The Nature of the Judicial Pro-cess 98-141 (1921); Davis, A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of



Law 69, 73-74 (R. Pound, ed., 1964); Friendly, The Courts and Social Policy: Substance and Procedure, 33U.Miami L.Rev. 21 (1978); Advisory Committee's Note, Fed.R.Evid. 201.

We do not mean to hold that prejudice against a class, as opposed to a particular litigant, can never form thebasis for recusal. See Davis, 517 F.2d at 1051. Nor do we say that a clearly evinced policy of disregarding themerits in any class of cases can withstand a recusal motion. See United States v. Thompson, 3 Cir. 1973, 483F.2d 527, cert. denied, 415 U.S. 911, 94 S.Ct. 1456, 39 L.Ed.2d 496 (1974). See also United States v. Clements,5 Cir. 1981, 634 F.2d 183. But we caution against a district judge disqualifying himself on the basis of an allega-tion of a perceived history of rulings that a moving party dislikes. This case provides a good example of the res-ults that might follow. Phillips's affidavit contains nothing pertaining to the parties or subject matter of the A&Icase; it could be repeated, word for word, by literally any black civil rights plaintiff from now until Judge Cox'sretirement. With only minor modifications, it could be used by any black party a black criminal defendant, say.This is a type of recusal for whole classes of cases, without the constitutional safeguards that protect a judgefrom removal from office save by impeachment. The Constitution does not contemplate that we dispense with ajudge's service on such a grand scale on any but the most compelling showing. See Steering Committee, 614F.2d at 966; Archbold-Newball, 554 F.2d at 682; United States v. Partin, 5 Cir. 1977, 552 F.2d 621, 637 n.20,cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). Congress has provided another remedy for ju-dicial intemperance. Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, Public Law96-458, s 3, 96th Congress, 94 Stat. 2035, 2036 (1980), amending 28 U.S.C. s 372.

[8] We also do not suggest that Judge Cox was required not to recuse himself. Another judge, facing a simil-ar question, might well decide the other way. A recusal motion is committed to the sound discretion of the dis-trict judge, and on appeal we ask only whether he has abused his discretion. Davis, 517 F.2d at 1052; UnitedStates ex rel. Weinberger v. Equifax, Inc., 5 Cir. 1977, 557 F.2d 456, 463-64, cert. denied, 434 U.S. 1035, 98S.Ct. 768, 54 L.Ed.2d 782 (1978). We cannot say here that he has done so.

II. CLASS CERTIFICATIONThe plaintiffs assert errors in all three cases concerning class certification. In the PEER case the district

court refused to certify a class of unsuccessful past black applicants, future black applicants, and persons de-terred from applying because of the Committee's reputation or history as an employer given to race discrimina-tion. The court held that the purported class was not numerous enough under Fed.R.Civ.P. 23(a)(1). In the Col-lege Board case the court refused to certify a similar class on the ground that the plaintiffs did not show that theycould adequately represent the class, in light of their delay in moving for class certification. In both cases the de-fendants assert an alternative ground for the court's refusal: an alleged conflict of interest between the plaintiffs'counsel and the purported class. The A&I case presents the issues differently. There the court certified a class ofactual black applicants but refused to include future applicants and deterred persons, citing problems of numer-osity, delay in moving, and lack of nexus between the named plaintiffs and the excluded persons. We find thatnone of the asserted reasons justify the court's decisions to refuse certification or to narrow the class certified.

A. NumerosityThe district court in the PEER case noted that the plaintiffs had met all the requisites *1022 for certification

of a class under Rule 23(b)(2), except the requirement of Rule 23(a)(1) that the class be so numerous that joinderof all members is impracticable. Since PEER did not record the race of its applicants, it is impossible to tell ex-actly how many black applicants there were. The plaintiffs nonetheless established at a certification hearing thatthere were at least 33 such applicants; there may have been many more.[FN8]



FN8. The defendants tentatively identified eleven unsuccessful black applicants, based on the recollec-tion of PEER executives or on the fact that some applicants graduated from predominantly black uni-versities or colleges. Nausead Stewart, an attorney for the plaintiffs, testified that she was personally ac-quainted with eight other applicants and knew them to be black. Finally, fourteen black applicants wereidentified by comparing PEER's applicant list with a voter registration list for the City of Jackson. Thecourt accepted the figure 33. 3 Record at 73. There may have been many more. Any black applicantwho attended an integrated college, who did not register to vote in Jackson, and who did not knowStewart would not have been identified as black.

[9] The problem before the district court, and now before us, is not simply to say whether 33 class membersare enough or too few to satisfy Rule 23(a)(1). Ample case law can be cited to show that smaller classes havebeen certified and larger ones denied certification for lack of numerosity. See 3B J. Moore & J. Kennedy, Feder-al Practice P 23.05 (2d ed. 1980). Such number comparisons miss the point of the Rule. The proper focus is noton numbers alone, but on whether joinder of all members is practicable in view of the numerosity of the classand all other relevant factors. Here, neither party can even count how many black applicants there are, let aloneidentify all of them. Moreover, the alleged class includes future and deterred applicants, necessarily unidentifi-able. In such a case the requirement of Rule 23(a)(1) is clearly met, for “joinder of unknown individuals is cer-tainly impracticable”. Jack v. American Linen Supply Co., 5 Cir. 1974, 498 F.2d 122 (per curiam); Jones v. Dia-mond, 5 Cir. 1975, 519 F.2d 1090, 1100; see B. Schlei & P. Grossman, Employment Discrimination Law1095-97 (1976).

The same reasoning holds true in the A&I case, where the district court cited numerosity as a ground for ex-cluding future and deterred applicants from the class certified. Moreover, aside from the inherent impracticabil-ity of joinder of such parties, there is the fact that the court did certify a class of actual applicants. It is hard tosee how a class already numerous enough can become insufficiently numerous through the inclusion of an un-known number of additional members. See Hebert v. Monsanto Co., 5 Cir. 1978, 576 F.2d 77, 80, vacated onother grounds, 580 F.2d 178 (5 Cir. 1978).

B. Delay[10] Rule 23(c)(1) commands the district court to decide whether to certify a class in any case “as soon as

practicable” after commencement of the action.[FN9] The district court invoked the principle of that rule in re-fusing to certify a class in the College Board case, finding that the plaintiffs had delayed too long in moving forclass certification. This lapse, it held, warranted denial of the motion because it cast doubt on the plaintiffs' abil-ity to represent the class adequately. See East Texas Motor Freight v. Rodriguez, 1977, 431 U.S. 395, 404-05, 97S.Ct. 1891, 1897, 52 L.Ed.2d 453, 463. Similarly, the court cited delay as a reason for narrowing the class in theA&I case.[FN10]

FN9. Rule 23(c)(1) is cast as a command to the district court, not the parties; hence, a district court hasan obligation to make the determination on its own motion if necessary. Gore v. Turner, 5 Cir. 1977,563 F.2d 159, 165; United States v. United States Steel Corp., 5 Cir. 1975, 520 F.2d 1043, 1052, cert.denied, 429 U.S. 817, 97 S.Ct. 61, 50 L.Ed.2d 77 (1976); Garrett v. City of Hamtramck, 6 Cir. 1974,503 F.2d 1236, 1243; Castro v. Beecher, 1 Cir. 1972, 459 F.2d 725, 731.

FN10. This, of course, is inconsistent with the court's certification of the narrowed class in the A&Icase. Since we conclude that delay would not justify a complete refusal to certify either the lesser or thegreater class, we need not decide how best to resolve the inconsistency.



[11] *1023 We think the court went too far in both cases. Neither East Texas Motor Freight nor any otherprecedent that we have found has held that delay in moving for certification is sufficient in itself to disqualify aparty as a class representative. The case would be different if the plaintiffs' motion had been untimely under anapplicable local rule, but here there was no such rule.[FN11] Although the plaintiffs doubtless could have beenmore diligent in making their motion, in the circumstances of these cases we do not think their delay was so in-excusable as to render their representation inadequate. The record reflects that a good deal of the time was con-sumed in litigating the defendants' motions in all three cases for a change of venue, the plaintiffs' motions in twocases for recusal, and the plaintiffs' attempt to obtain mandamus relief in this Court on the recusal issue. The restof the time was spent in extensive discovery, much of which was relevant to the class certification question. Ac-cordingly, we find that the district court was too draconian in refusing certification on this ground.

FN11. S.D.Miss. Local Rule 18, requiring that plaintiffs move for class certification within 45 days ofthe filing of the last answer, had not been adopted at the time of trial.

C. Conflict of Interest[12] The defendants in the PEER and College Board cases raise another ground for noncertification, one not

relied on by the district court.[FN12] This Court has adopted a per se rule under Canon 9 of the Code of Profes-sional Responsibility [FN13] that an attorney who is the partner or spouse of a named class representative is dis-qualified from acting as counsel for the class. Zylstra v. Safeway Stores, Inc., 5 Cir. 1978, 578 F.2d 102, follow-ing Kramer v. Scientific Control Corp., 3 Cir. 1976, 534 F.2d 1085, cert. denied, 429 U.S. 830, 97 S.Ct. 90, 50L.Ed.2d 94 (1976). In the PEER and College Board cases, counsel for the plaintiffs are the Lawyers' Committeefor Civil Rights Under Law and two of its attorneys. Barbara Phillips, one of the three named plaintiffs in thetwo cases, is one of the attorneys for the Lawyers' Committee (although she is not acting as an attorney in thesecases). Accordingly, the defendants argue, if the class were certified, the Lawyers' Committee would be disqual-ified as counsel. For that reason, they say the plaintiffs are not adequate class representatives under Rule23(a)(4). [FN14]

FN12. The district court has expressly rejected this contention in a related case. Mississippi Council onHuman Relations v. Mississippi Dept. of Justice, Civil No. J76-118(R) (S.D.Miss.) (Opinion of June 18,1980, on motion to disqualify counsel).

FN13. “A lawyer should avoid even the appearance of professional impropriety.”

FN14. The defendants' attempted use of the Kramer-Zylstra rule requires something of a leap in logic.Kramer and Zylstra both involved motions to disqualify counsel. Each of the cases before us, by con-trast, involves a contention that a would-be class representative should not be allowed to serve. As theKramer Court noted, the issues raised in the two contexts are “related, but not identical.... (One) relatesto who may serve as class representative, while the (other) relates to who may serve as counsel.” 534F.2d at 1088. Supposing that the Lawyers' Committee is disqualified from representing the class underZylstra, it does not necessarily follow that the class may not be certified. For example, the district courtcould make certification contingent on replacement of counsel or on severance of the individual claimof the offending class representative. We need not reach this problem, however, since we hold that theLawyers' Committee may properly represent the classes.

[13] Although we agree wholeheartedly with the rule announced in Zylstra and Kramer, we hold that it doesnot apply here. Our holding in Zylstra is an exception to our general rejection of per se rules under Canon 9 in



Woods v. Covington County Bank, 5 Cir. 1976, 537 F.2d 804. The Zylstra rule is directed at a particular ethicalproblem: the potential conflict that arises when a class representative stands (or appears to stand) to gain finan-cially from an award of attorney's fees made out of a class fund. Put simply, the cause for concern is that theclass representative may be too generous with the class's money in granting a fee to his own partner or spouse.*1024 See Zylstra, 578 F.2d at 104; Kramer, 534 F.2d at 1089-90, 1091; id. at 1093 (Rosenn, J., concurring).Here the problem does not arise. Any attorney's fee granted in these cases will come directly from the defend-ants under 42 U.S.C. s 2000e-5(k) (1976), and not from any fund created for class relief; hence, Ms. Phillipswould never have the opportunity for overgenerosity.

D. Nexus[14] The district court in the A&I case concluded that it should exclude from the plaintiff class persons de-

terred by A&I's policies from applying there because the named plaintiffs lack any “nexus” with deterred per-sons. The court reasoned that, since the named plaintiffs did apply to A&I, they have no standing to representpersons whose grievance is that they have been prevented from applying.

This ground for narrowing the class is faulty as a matter of law. The argument would be sound if theseplaintiffs sought to represent a class consisting exclusively of deterred persons; in such a case the plaintiffswould lack standing to represent the putative class, in the same sense that a high school graduate lacks standingto bring a class action challenging a high school requirement. Payne v. Travenol Laboratories, Inc., 5 Cir. 1978,565 F.2d 895, 898-99, cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978); see East Texas MotorFreight v. Rodriguez, 1977, 431 U.S. 395, 403-04, 97 S.Ct. 1891, 1897, 52 L.Ed.2d 453, 461-63. Here, however,the plaintiffs are members of the class they seek to represent, and the only issue is the breadth of the definitionof that class. The requirement that the named plaintiffs' claims be “typical” of the claims of the class,Fed.R.Civ.P. 23(a)(3), does not mean that all claims must be identical. Rather, a named plaintiff who has al-legedly suffered from the defendant's racial discrimination may bring an “across the board” class action to rep-resent all persons who have suffered from the same discriminatory policies, whether or not all have experienceddiscrimination in the same way. Satterwhite v. City of Greenville, 5 Cir. 1978, 578 F.2d 987, 993-94 n.8 (enbanc), vacated on other grounds, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1979); Hebert v. Monsanto Co.,5 Cir. 1978, 576 F.2d 77, vacated on other grounds, 580 F.2d 178 (1978); Long v. Sapp, 5 Cir. 1974, 502 F.2d34; Johnson v. Georgia Highway Express, 5 Cir. 1969, 417 F.2d 1122. Hence, we have approved the practice ofallowing rejected applicants to represent classes including those deterred from applying. E. g., Jack v. AmericanLinen Supply Co., 5 Cir. 1974, 498 F.2d 122 (per curiam). Indeed, if this were not the case, most such personswould go without relief entirely, since it is unlikely that one of them would sue and qualify as a class represent-ative.

Because the district court erred in refusing to certify any class in the PEER and College Board cases, we re-mand them for trial as to the class allegations. [FN15] The A&I case went to trial as a class action. It does notappear that the court's error in restricting the class scope could have affected the trial in any important way. Wetherefore reach the class merits in that case.

FN15. Despite counsel's statements to the contrary, it is apparent from the record that the court in eachcase conducted the trial solely as an action on the named plaintiffs' individual claims, and that evidencepertaining to class allegations was excluded. PEER Transcript at 17-18; College Board Transcript at 21,44, 49. We therefore decline to reach the class merits of these cases.

III. THE MERITS: THE A&I CLASS ACTION



[15] In reviewing the merits of the case as to alleged class discrimination, we keep in mind that the districtcourt's finding of nondiscrimination is a determination of ultimate fact to which the “clearly erroneous” standardof review does not apply. (We are bound, of course, by the district court's findings of subsidiary fact and judg-ments of credibility unless they are clearly erroneous.) Fed.R.Civ.P. 52(a); Williams v. Tallahassee Motors, Inc.,5 Cir. 1979, 607 F.2d 689, 690; East v. Romine, Inc., 5 Cir. 1975, 518 F.2d 332, 338-39; Causey v. Ford MotorCo., 5 Cir. 1975, 516 F.2d 416, 420-21.

*1025 The record indicates that the A&I Board employed no blacks from its inception in 1942 through1972. In 1973 the first black was hired to form and head a new subunit, the Office of Minority Business Enter-prise (OMBE). According to a stipulated set of employee lists, the Board employed five blacks in December1974 (7.9 percent of the Board's total); eleven blacks in December 1975 (12.0 percent); fifteen blacks in Decem-ber 1976 (17.6 percent); and thirteen blacks in 1977 (12.5 percent). These figures are skewed, however, by theinclusion of the OMBE staff and short-term employees hired under the federal Comprehensive Employment andTraining Act (CETA).[FN16] Both programs derive most of their funds from federal sources. OMBE has its ownhiring procedure, separate from the rest of the Board.[FN17] Its staff has always been all or nearly all black. Therecord does not reflect how CETA employees are hired, but their positions are temporary. The CETA program issubject to closer federal scrutiny as to equal employment practices than is A&I's employment generally. Exclud-ing these persons, the figures are much lower: one black (1.5 percent) in 1974; one black (1.4 percent) in 1975;seven blacks (9.5 percent) in 1976; and six blacks (6.5 percent) in 1977. Even these statistics hide another keyfact: although roughly half of the Board's staff is professional, technical or managerial, A&I has never hired ablack permanent employee (outside of OMBE) for anything but a clerical position.

FN16. Pub.L.No.93-203, 87 Stat. 839 (1973), later codified at 29 U.S.C. ss 801 to 999 (Supp. III 1979).

FN17. There is much dispute between the parties as to whether OMBE is really “part of” A&I. Thepoint is unimportant. Thomas Espy, the OMBE director, did all the hiring for OMBE (subject to the ap-proval of the executive director), while Harold Cross, administrative assistant to the executive director,hired the staff for all other parts of A&I (likewise subject to approval). Thus, whether or not OMBE isoperationally part of A&I, we cannot consider it as all of a piece with the rest of the Board for purposesof evaluating the fairness of A&I's hiring procedures.

Most of the real debate between the parties concerns the relevant labor market to which A&I's hiring statist-ics are to be compared.[FN18] Actual applicant flow, often the best measurement, is unavailable here becauseA&I does not identify its applicants by race. Other statistical measures are necessarily imperfect in differingways and varying degrees. The best the court can do is to accept what figures are available; allow for imperfec-tions, skewing factors, and margins of error; and then take the figures for what they are worth. Sometimes this ismuch, sometimes little. See United Brotherhood of Teamsters v. United States, 1977, 431 U.S. 324, 340, 97S.Ct. 1843, 1856, 52 L.Ed.2d 396, 418; Williams, 607 F.2d at 693; Hester v. Southern Ry., 5 Cir. 1974, 497 F.2d1374, 1379-81.

FN18. Besides the problem of which demographic measurement best suits the case, there is disagree-ment as to the proper geographical area. Here, perhaps, is where a purely numerical analysis fails mostvisibly. There is never any ascertainable demarcation line showing from where a particular employercan or cannot draw employees. Whether a potential employee will commute or relocate to take a job de-pends not only on his personal tastes, but also on the types of work he does, prevailing economic condi-tions, the features of the two communities concerned, and any number of other factors. Moreover, the



problem is inevitably complicated by the effect of the employer's own recruiting and hiring practices.See generally Hazelwood School District v. United States, 1977, 433 U.S. 299, 97 S.Ct. 2736, 53L.Ed.2d 768.

In this case, the parties dispute whether the proper area is the entire state or only the Jackson StandardMetropolitan Statistical Area. The relevant figures, however, are remarkably close for both areas innearly all important measures. The only substantial difference is that blacks make up a higher fractionof applicants for white collar jobs (professional, technical, managerial, clerical, and sales) in the Jack-son area than in the state at large.

[16] The general population of Mississippi was 37.2 percent black at the time of the 1970 census. Accordingto figures from the Mississippi Employment Security Commission, the total civilian work force was 29.8 percentblack in 1977. In February 1978, 31.6 percent of persons registering at that Commission for professional, tech-nical, or managerial employment were black; 27.8 *1026 percent of registrants for clerical or sales jobs wereblack. Although these statistics have their flaws, we think the disparity between them and the Board's hiring re-cord is sufficient to raise a prima facie case of class discrimination and to shift the burden to the Board to showthat the discrepancy results from other causes. Robinson v. Union Carbide Corp., 5 Cir. 1976, 538 F.2d 652,659-61, modified on other grounds, 544 F.2d 1258 (5 Cir. 1977), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54L.Ed.2d 78 (1977).

[17] A&I's only substantial response is to point out that only 11.5 percent of all high school graduates in theMississippi work force were black (as of 1973, the latest year for which figures are in evidence).[FN19] This ismaterial, but, by itself, it is insufficient. Many of A&I's clerical positions do not require a high school diploma,according to the Board's own job descriptions. Moreover, almost all of the nonclerical positions require a collegedegree; blacks made up 18.1 percent of the Mississippi work force with degrees. Considered against the figurefor A&I's black nonclerical hiring zero, outside of OMBE that figure does much to deflate the rebuttal argument.[FN20]

FN19. Actually, the defendants state that 14.9 percent of such graduates are black. Appellees' Brief at12. This is due to the Board's misreading of the M.E.S.C. table, Plaintiffs' Exhibit 32 at table 6: whatthat table states is that 14.9 percent of Mississippi blacks in the labor force are high school graduates.The error becomes more serious with regard to college graduates: the Board reports that only 3.7 per-cent of Mississippi college graduates are black, but a little long division shows that the correct figure is18.1 percent.

FN20. Because the named plaintiffs all have college degrees, they lack constitutional standing to chal-lenge the legality of A&I's educational requirements under Griggs v. Duke Power Co., 1971, 401 U.S.424, 91 S.Ct. 849, 28 L.Ed.2d 158, and Scott v. City of Anniston, 5 Cir. 1979, 597 F.2d 897, cert.denied, 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980). See Payne v. Travenol Laboratories, Inc.,5 Cir. 1978, 565 F.2d 895, 898-99, cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978).Accordingly, that issue is not presented in these cases, either here or in the district court.

[18][19] Even so, we might hesitate to find discrimination in this case on the basis of these statistics alone.Here, however, there are other indicators. The district court found that A&I has a clear history of discrimination,not having hired a single black during its first three decades of existence. Its hiring procedures rely heavily onthe subjective judgments of its executives from personal interviews, a procedure that can easily be used to mask



racially motivated hiring decisions.[FN21] Such facts can buttress statistical evidence by suggesting a qualitat-ive explanation for a quantitative result.

FN21. To note this fact is not necessarily to find fault with A&I's procedure or job criteria. In fact, theBoard's bulky set of job descriptions is about as detailed and specific as can reasonably be expected.Given the nature of A& I's work, some subjectivity in hiring is unavoidable, especially with regard tononclerical positions. Whether necessary or not, however, subjective judgments are suspect as job qual-ifications when they are exercised by members of an all-white executive or supervisory staff. See Jen-kins v. Caddo-Bossier Ass'n for Retarded Children, 5 Cir. 1978, 570 F.2d 1227, 1229 (per curiam).

[20] In light of these facts, as found by the district court and amply supported by the record, we concludethat the district court erred in its conclusion of nondiscrimination against the class. On remand, the district courtshould direct the Board to set goals of about twenty percent black employment outside OMBE, separately forclerical and nonclerical positions. A&I should undertake an aggressive campaign of recruitment and advertise-ment to procure sufficient qualified black applicants to make these goals feasible. Further, until these goals areachieved, one third of all persons hired within predetermined six-month periods for permanent clerical or non-clerical jobs outside OMBE shall be black. The district court shall take any other concurrent or later actions ne-cessary to eliminate the effects of past discrimination at A&I and to procure the rights of the plaintiff class andits members. See Morrow v. Crisler, 5 Cir. 1974, 491 F.2d 1053 (en banc), cert. denied, 419 U.S. 895, 95 S.Ct.173, 42 L.Ed.2d 139 (1979); *1027Franks v. Bowman Transportation Co., 5 Cir. 1974, 495 F.2d 398, 418-20,rev'd in part on other grounds, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); NAACP v. Allen, 5 Cir.1974, 493 F.2d 614; Davis v. County of Los Angeles, 9 Cir. 1977, 566 F.2d 1334, 1342-44, vacated as moot,440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979); United States v. City of Chicago, 7 Cir. 1977, 549 F.2d415, 436-37, cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1978); Boston Chapter, NAACP, Inc. v.Beecher, 1 Cir. 1974, 504 F.2d 1017, 1026-28, cert. denied, 421 U.S. 910, 96 S.Ct. 1561, 43 L.Ed.2d 775 (1975); United States v. Masonry Contractors Ass'n, 6 Cir. 1974, 497 F.2d 871, 877; Erie Human Relations Commis-sion v. Tullio, 3 Cir. 1974, 493 F.2d 371; Bridgeport Guardians, Inc. v. Members of Bridgeport Civil ServiceCommission, 2 Cir. 1973, 482 F.2d 1333, 1339-41, cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481(1975); Carter v. Gallagher, 8 Cir. 1971, 452 F.2d 315, 330-31 (en banc), cert. denied, 406 U.S. 950, 92 S.Ct.2045, 32 L.Ed.2d 338 (1972).

IV. THE MERITS: THE INDIVIDUAL CLAIMS[21][22] The standard and order of proof in an individual claim under Title VII are by now familiar. To

raise a prima facie case, the plaintiff must show (1) that he belongs to a racial minority; (2) that he applied andwas qualified for a job for which the employer was seeking applicants; (3) that, despite his qualifications, he wasrejected; and (4) that, after his rejection, the position remained open. The burden then shifts to the employer toshow some legitimate, nondiscriminatory reason for the applicant's rejection.[FN22] The plaintiff is then af-forded a fair opportunity to show that the employer's stated reason is in fact a pretext. McDonnell Douglas Corp.v. Green, 1973, 422 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668; Furnco Construction Co. v. Waters, 1978, 438U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957. This formula must not be applied mechanically, but flexibly, with aview toward the particular hiring procedures and factual situation presented. McDonnell Douglas, 411 U.S. at802, 93 S.Ct. at 1824; Peters v. Jefferson Chemical Co., 5 Cir. 1975, 516 F.2d 447, 450. On appellate review, weare bound by the district court's findings of credibility and of subsidiary fact unless they are clearly erroneous.The clear error standard, however, does not apply to the ultimate conclusion of discrimination or nondiscrimina-tion. Williams v. Tallahassee Motors, Inc., 5 Cir. 1979, 607 F.2d 689, 690; East v. Romine, Inc., 5 Cir. 1975,518 F.2d 332, 338-39; Causey v. Ford Motor Co., 5 Cir. 1975, 516 F.2d 416, 420-21.



FN22. This Court has consistently held that the employer bears the burden of showing his legitimatereason by a preponderance of the evidence. Burdine v. Texas Department of Community Affairs, 5 Cir.1979, 608 F.2d 563, 567; Turner v. Texas Instruments, Inc., 5 Cir. 1977, 555 F.2d 1251, 1255; Whitingv. Jackson State University, 5 Cir. 1980, 616 F.2d 116, 121; Jefferies v. Harris County Community Ac-tion Ass'n, 5 Cir. 1980, 625 F.2d 1025, 1030. The Supreme Court has granted certiorari on the question,however. Texas Department of Community Affairs v. Burdine, 447 U.S. 920, 100 S.Ct. 3009, 65L.Ed.2d 1112 (1980). We, of course, adhere to the Fifth Circuit rule pending the Supreme Court's de-cision, but it is not a matter of importance; under our view of the cases, none of the nine individualclaims present turn on the applicability or nonapplicability of the Burdine rule.

A. The PEER Case[23] 1. Barbara Phillips. Barbara Phillips applied to the PEER Committee on July 12, 1974. She had inter-

views with John Hamilton, the Director of the Committee staff, and John Turcotte, a staff auditor. Both mentestified that they were very favorably impressed with Phillips's credentials, her manner, and her knowledge ofPEER's functions.[FN23] At their request, she brought in a writing sample. The two men decided right away tohire Phillips, but they did not inform her of that. After the initial interview, Phillips was never told *1028 thatshe was under serious consideration.[FN24] Three weeks after their interview with her, Hamilton and Turcottesaw reports on television and in a newspaper that Ms. Phillips had filed EEOC complaints against PEER andother agencies and that she was acting as a consultant to the Mississippi Council on Human Relations.[FN25]The district court found that she would have been hired but for these news reports. Hence, it concluded, PEERestablished a legitimate reason for not hiring Phillips Hamilton's and Turcotte's beliefs that she was already em-ployed. The court also held that Phillips had not shown that reason to be a pretext.[FN26]

FN23. Transcript at 114, 188-89, 397-98. Usually we do not give transcript and record citations. Wemake an exception in this case for the convenience of this Court, should there be a petition for a rehear-ing en banc, and for the convenience of the Supreme Court, should there be an application for a writ ofcertiorari.

FN24. Transcript at 128, 188, 345, 400.

FN25. Transcript at 114-16, 128, 430-31.

FN26. Record at 676-77.

After carefully examining the record, we believe that this finding is clearly erroneous. The defendant's the-ory fails because it cannot adequately explain why, if Hamilton and Turcotte were so impressed with Ms. Phil-lips's qualifications that they decided immediately to hire her, they procrastinated for several weeks. In fact, therecord shows that race was very much on their minds. Hamilton testified that hiring Phillips was “an importantdecision” because she would have been the first black employee at PEER. He and Turcotte were concernedabout the reaction of the white legislators on the Committee and the white staff to such a step, as well as Phil-lips's own reaction to the “alien world” of the white-dominated agency. The reason for the delay, both men testi-fied, was that they were mulling over the “significance” or “complexities” of hiring blacks at PEER.[FN27] Oneneed not question the good faith of Hamilton and Turcotte to conclude that the ultimate decision not to hire Ms.Phillips was as much due to her race as was the delay in offering her a position. Given their enthusiasm for herqualifications, it is hard to believe that they would not have at least inquired as to the possibility of hiring heraway from her “consulting” position but for their apprehensions about her race. [FN28] We do not mean to say



that Title VII always requires an employer to pursue black applicants even after they are hired elsewhere. Wehold only that, on the record in this case, we cannot avoid the conclusion that the reason offered was a conveni-ent way out of an uncomfortable decision in other words, a pretext.

FN27. Transcript at 113, 118-19, 128-29, 144, 346-47, 362; see id. at 210, 262-63.

FN28. Her position was, in fact, unpaid. Transcript at 224-25.

[24] 2. Melvin Phillips. Melvin Phillips applied to PEER on August 30, 1974. John Turcotte interviewedhim. When he called back the next day he was told that there were no openings. The district court found thatTurcotte rejected Mr. Phillips because he had expressed a reservation during the interview about job-relatedtravel.[FN29]

FN29. Record at 672. The court also noted that the next person hired, Susan Hymel, was better qualifiedthan Phillips. This is immaterial, since Turcotte testified that the hiring of Hymel was not at all connec-ted with the rejection of Phillips. Transcript at 441.

This finding is clearly erroneous. There is literally no evidence that Mr. Phillips said in his interview that hewas unwilling to travel. On the contrary: although Turcotte testified that he had told Phillips about the travel re-quirements of the job, he was certain that Phillips had not expressed any reservation about them.[FN30]

FN30. Transcript at 463-64.

Presumably, what the district court had in mind was Mr. Phillips's statement on his employment applicationthat he had left his last job because it required excessive travel.[FN31] Turcotte testified that it was this expres-sion of reluctance that had led to the decision not to hire Phillips.[FN32] If this was indeed the reason for the re-jection, it is insufficient as a matter of law to rebut Phillips's prima facie case. Turcotte's reason was, at best, abare assumption about *1029 Phillips's intentions at the time of his application an assumption made all the moreunreasonable by Phillips's silence about the travel requirements Turcotte described to him and Turcotte's failureto ask the obvious question. We have held that an unchecked assumption that an applicant would not accept ajob cannot be a legitimate reason for failing to offer the job, or at least to make inquiry about the assumption.Davis v. Jackson County Port Authority, 5 Cir. 1980, 611 F.2d 577. Here, in fact, Phillips testified that he hadnot said anything about travel because he was unemployed and needed the job to support his family. He latertook a job requiring travel. [FN33]

FN31. Defendants' Exhibit 2; see Transcript at 327.

FN32. Transcript at 412, 415.


3. Cornell Green Rice. On September 19, 1974, Cornell Rice visited PEER's offices to apply for a clerical orsecretarial job. She left a completed (although unsigned) application form with a receptionist, but she did notspeak with anyone else or set up an interview. She never called back or made any further effort to keep in con-tact with PEER.

[25] The district court found that Rice did not make out a prima facie case because there were no vacanciesfor which she was qualified. This is probably incorrect.[FN34] Even so, it is clear from the record that the de-



fendants showed a valid, nondiscriminatory reason for not hiring Rice. According to the uncontradicted testi-mony of Turcotte and Hamilton, it was routine practice at PEER to make no effort to make further contact with“walk-in” applicants those who do nothing more than leave or mail in a resume or application form. [FN35]Rice's attempt to impeach this explanation by counterexample only reinforced it.[FN36] It is not for us to saywhether this procedure is sensible, or even fair; it is sufficient for our purposes that it is race-neutral and that ithas not been shown to be pretextual. Accordingly, we decline to disturb the district court's ruling on this claim.

FN34. As we shall discuss later, a vacancy within the meaning of the McDonnell Douglas test does notmean only an opening existing at the precise date of application, but any opening during the time thatthe application remains active. The record shows that two white secretaries were hired within twomonths of Rice's application. Record at 185-86.

FN35. Transcript at 178-79, 454-55; see id. at 135.


B. The College Board Case1. Barbara Phillips. On July 9, 1974, Barbara Phillips went to the receptionist's desk on the first floor of the

building in which the Board's offices are located. She took an application form home, filled it out, and mailed itin. Ten days later, Dr. E. E. Thrash, the Board's executive director, sent her a letter stating that there were no va-cancies for a person of Phillips's qualifications.

[26] We find no clear error in the district court's finding that Ms. Phillips was not qualified for any vacantposition. The Board employs a staff of about 18 persons; most of its work concerns the financial problems ofMississippi higher education. Thrash testified that he rejected Phillips because there was nothing in her applica-tion to suggest that she had any experience or expertise in financial matters or in higher education.[FN37] Hereducation had been in history and in law, proficiency at which would not qualify her for any of the Board's pro-fessional positions.[FN38] Nor did she appear to be qualified for most clerical jobs, since she left blank thespace on her application for typing and shorthand skills.[FN39] She was qualified, Thrash testified, for the posi-tion of file clerk, but that job has not been open since before 1974. [FN40] We believe that this evidenceprovides adequate support for the district court's ruling.

FN37. Transcript at 72, 76, 94; Plaintiffs' Exhibit 13.

FN38. Transcript at 72-74, 76, 94, 98. The Board handles none of its own legal work. Id. at 94-95.

FN39. Plaintiffs' Exhibit 13; Transcript at 72, 79.


*1030 2. Melvin Phillips. Melvin Phillips testified that he went to the College Board on September 6, 1974.A receptionist informed him that there were no application forms, but he had an informal interview with CharlesCoffman, an associate director. Coffman, Phillips said, told him that there were no openings then and that therewere no positions for persons with B.A. degrees. [FN41]


The district court rejected Mr. Phillips's testimony and found that he had not applied to the Board. This was



error. This finding rests on a misreading of Coffman's testimony; indeed, the parties stipulated in the pretrial or-der that Phillips did apply.[FN42]

FN42. Record at 735. Coffman did not testify that he never interviewed Mr. Phillips, but only that hedid not recall doing so. He pointed out that he interviews many applicants and easily might not remem-ber one in particular. Transcript at 265-66.

[27] Despite this discrepancy, we affirm the district court's ruling. Examination of the record reveals that,during the year following Mr. Phillips's application, only one white applicant was hired in a position that Phil-lips might have filled. That one, Ward Shaw, had a master's degree in economics and experience as a college in-structor. He was hired on a temporary basis to do a study of the feasibility of certain proposed program additionsat Alcorn State University, a job for which he was better qualified than Phillips. [FN43] Given this absence ofany relevant vacancies, we must agree that Phillips did not make out a prima facie case of racial discrimination.

FN43. Plaintiffs' Exhibit 4; Transcript at 77, 96-97.

3. Cornell Green Rice. Cornell Rice interviewed with Thrash on September 19, 1974. He told her that therewere no jobs open then and would be none in the foreseeable future. She left her resume and application. Shenever heard from the Board.[FN44]


[28][29] The district court found that Rice was not hired because there were no vacancies when she applied.[FN45] This is clearly erroneous. The evidence shows that Bonnie Childers, a white, was hired as a secretaryscarcely two months after Rice's application.[FN46] The defense made no attempt to show that Childers wasbetter qualified than Rice, and there is no indication of how long the vacancy she filled had existed.[FN47] Avacancy, within the meaning of the McDonnell Douglas test, need not exist on the precise day of application;any vacancies within a reasonable time must be considered as well. [FN48] McLean v. Phillips-Ramsey, Inc., 9Cir. 1980, 624 F.2d 70, 72 (per curiam); Neely v. City of Grenada, 1977, N.D.Miss., 438 F.Supp. 390, 409; seeEast v. Romine, Inc., 5 Cir. 1975, 518 F.2d 332, 338. Since no attempt was made to show a legitimate reason forhiring Childers instead of Rice, we hold that Rice is entitled to judgment.

FN45. Record at 920. The court also adverted to testimony that Robert Harrison, a black member of theBoard, had approached Rice about working at the Board and that Rice had said she was not interested.It is not clear how much the court relied on that fact, but any reliance would have been misplaced. Theevidence shows that, when Harrison approached Rice, she was earning more than the Board would pay.At the time of her application, by contrast, she was unemployed. Transcript at 137-40, 227.

FN46. Plaintiffs' Exhibit 4.

FN47. Childers's application is in the record, Record at 392, but it is not obvious that her credentials orexperience exceed Rice's. She was not mentioned at trial. Through an apparent clerical error, the depar-ture date for the person Childers replaced is plainly misreported. Record at 559, 569.

FN48. There is at least one example on the record, occurring a few months before Rice's application, ofa white applicant being hired months after applying. Plaintiffs' Exhibit 3 (Martha D'Aquino).

C. The A & I Case



[30] The individual claims in the A & I case come to us in a different posture from those in the other twocases because of our holding that the plaintiffs proved that A & I is guilty of discrimination against the *1031plaintiff class.[FN49] The establishment of liability on the class claim operates to establish a prima facie case onbehalf of each member of the class. Once the individual plaintiff proves that he applied unsuccessfully, the bur-den shifts to the employer to establish that its failure to hire that individual was the result of legitimate nondis-criminatory reasons. International Brotherhood of Teamsters v. United States, 1977, 431 U.S. 324, 357-62, 97S.Ct. 1843, 1865-68, 52 L.Ed.2d 396, 428-32; Franks v. Bowman Transportation Co., 1976, 424 U.S. 747,771-73 & n.32, 96 S.Ct. 1251, 96 S.Ct. 1267-68 & n.32, 47 L.Ed.2d 444, 466-67.

FN49. We also note that in this case, unlike the other two, there is no claim for backpay or other moneyrelief. The complaint is expressly limited to a cause of action for injunctive and declaratory relief, andneither party introduced any evidence as to the propriety or amount of backpay awards.

[31] 1. Barbara Phillips. Barbara Phillips visited the A & I Board during July 1974. She testified that shewas interviewed by Harold Cross, administrative assistant to the director, but other evidence shows (and the dis-trict court found) that Phillips actually spoke with Robert Robinson, the executive director.[FN50] Robinsontestified that he was very impressed with Phillips's credentials and intelligence, but that he had no positions atthat time suitable for her. He offered to assist her in obtaining a job at another agency. At the same time,however, he described to her a new position that he wanted to create in the Industrial Department, for which hethought Phillips would be well suited. He took two telephone numbers for her and asked her to check back. Overthe next three weeks Robinson worked at arranging federal funds for the new position. When he succeeded, hecalled Phillips's telephone numbers to speak to her about the job. At one there was no answer; at the other, hewas told that Phillips had moved to Chicago to resume her law school studies at Northwestern University. Heabandoned his plans for the new job. [FN51]

FN50. Record at 456; Transcript at 58, 145-46, 160-62.

FN51. Transcript at 160-62, 164.

The district court credited Robinson's testimony and found that the sole reason why Phillips was not hiredwas because Robinson believed she was no longer interested in employment in Jackson. There is abundant evid-ence to support this finding. In light of the facts, it is not clear that Phillips was rejected at all. Even if she was,we agree with the district court that Robinson's testimony adequately established a legitimate, nondiscriminatoryreason for the rejection.[FN52]

FN52. This holding is not in conflict with Davis v. Jackson County Port Authority, 5 Cir. 1980, 611F.2d 577, or our holding on Melvin Phillips's claim in the PEER case. In those cases the employersjumped to unwarranted conclusions while foregoing obvious opportunities to ask about them. The dif-ference here is simply a matter of reasonableness; there is a point at which Title VII does not require anemployer otherwise acting in good faith to verify every possible logical assumption on which he mightrely. We are influenced in this determination by Robinson's remarkable efforts to create a position forPhillips when he found none available.

2. Melvin Phillips. Melvin Phillips applied at the A & I Board on August 28, 1974. After filling out an ap-plication, he spoke briefly with Harold Cross. Cross said there were no jobs available in A & I, but referred himto Thomas Espy, head of OMBE. Espy also had no jobs. Phillips called Espy a few times, but he never heardfrom A & I again.[FN53]




[32][33] The district court held against Phillips because, it concluded, he was only available for employ-ment for a short period of time, and all white applicants hired during that period were better qualified than he.[FN54] We think that the court improperly constricted its scrutiny of the Board's hiring. Title VII does not re-quire a plaintiff to remain permanently unemployed or forfeit his cause of action for racial discrimination. Norcan the Board contend here, as it did in the case of Barbara Phillips, that *1032 Phillips's apparent departurefrom the job market was a legitimate reason for not hiring him, for there is no evidence that anyone at A & Iever learned that he had taken another job. According to A & I's own written procedures and Cross's testimony,applicants remain under active consideration for all openings within a year of the date of application.[FN55]During the year following Phillips's application, A & I hired seventeen non-clerical employees, fourteen ofwhom were white. Excluding OMBE and temporary CETA appointments, they hired four such persons, allwhite.[FN56] A & I's failure to show a legitimate business reason for hiring these persons instead of Phillips isfatal to its defense.

FN54. Record at 458-59.

FN55. Plaintiffs' Exhibit 18; Transcript at 87-88, 150-51.


3. Cornell Green Rice. Cornell Rice applied at A & I on September 18, 1974, and interviewed briefly withEspy. He said he would refer her application “upstairs” (i. e., to A & I). She later received a letter from Espy ad-vising her that there were no jobs available.[FN57]

FN57. Plaintiffs' Exhibit 1; Transcript at 23-27, 47-48.

Rice's case is similar to Melvin Phillips's. The district court ruled against Rice because it found that she hadbeen available for employment for only a few days, and there were no secretarial or clerical vacancies duringthat time. Again, though, there was no suggestion that Rice's application was removed from consideration pre-maturely, for no one at A & I knew of her new job. During the year following her application, A & I hired nine-teen whites and six blacks in clerical jobs. If OMBE and CETA jobs are excluded, the figures are nine white,one black.[FN58] As with Melvin Phillips, the absence of any business justification for these hirings defeats theBoard's rebuttal of the prima facie case established under Franks and Teamsters.


SUMMARYTo summarize our disposition of these cases:

We AFFIRM the judgment in the A & I case with regard to the issue of recusal.

We REVERSE the district court's refusal to certify the alleged classes in the PEER and College Boardcases. Those cases are REMANDED for appropriate proceedings as to the administration of the class action andthe merits of the class allegations. We MODIFY the class certification order in the A & I case to include in thatclass future applicants and persons deterred from applying for jobs with A & I.

We REVERSE the judgment in the A & I case that the plaintiffs did not establish discrimination against the



class. The case is REMANDED for appropriate relief consistent with this opinion.

We REVERSE the court's judgments on the merits with respect to Barbara Phillips's individual claim in thePEER case; Melvin Phillips's individual claims in the PEER and A & I cases; and Cornell Rice's individualclaims in the A & I and College Board cases. We REMAND the cases for appropriate relief. We AFFIRM thedistrict court's judgments as to the remaining individual claims.

Although we have refused to overturn the district court's denial of the plaintiffs' recusal motion, in light oflater developments and all of the circumstances presented in these cases, we suggest that any proceedings on re-mand should be heard before a judge other than the Hon. William Harold Cox. We do so without in any wayquestioning the integrity or impartiality of that Judge; we act solely in the interest of preserving the complete ap-pearance of impartiality. See Webbe v. McGhie Land Title Co., 10 Cir. 1977, 549 F.2d 1358, 1361; Eckles v.Sharman, 10 Cir. 1977, 548 F.2d 905, 911; United States v. Bray, 10 Cir. 1976, 546 F.2d 851, 860; United Statesv. Ritter, 10 Cir. 1976, 540 F.2d 459, 464-65, cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976).

C.A.Miss., 1981.Phillips v. Joint Legislative Committee on Performance and Expenditure Review of State of Miss.637 F.2d 1014, 25 Fair Empl.Prac.Cas. (BNA) 120, 25 Empl. Prac. Dec. P 31,611, 31 Fed.R.Serv.2d 67

END OF DOCUMENT



CODE OF JUDICIAL CONDUCT Adopted by the Mississippi Supreme Court

April 4, 2002

Table of Rules

PREAMBLE

TERMINOLOGY

CANON 1 - A Judge Shall Uphold the Integrity and Independence of the Judiciary.

CANON 2 - A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All Activities.

CANON 3 - A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently.

CANON 4 - A Judge Shall So Conduct the Judge’s Extra-judicial Activities as to Minimize the Risk of Conflict with Judicial Obligations.

CANON 5 - A Judge or Judicial Candidate Shall Refrain From Inappropriate Political Activity.

APPLICATION OF THE CODE OF JUDICIAL CONDUCT .

CODE OF JUDICIAL CONDUCT Adopted by the Mississippi Supreme Court

April 4, 2002

PREAMBLE

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our

EXHIBIT "5"

legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.

The Code of Judicial Conduct is intended to establish standards for ethical conduct of judges. It consists of broad statements called Canons, specific rules set forth in Sections under each Canon, a Terminology Section, an Application Section and Commentary. The text of the Canons and the Sections, including the Terminology and Application Sections, is authoritative. The Commentary, by explanation and example, provides guidance with respect to the purpose and meaning of the Canons and Sections. The Commentary is not intended as a statement of additional rules. When the text uses "shall" or "shall not," it is intended to impose binding obligations the violation of which can result in disciplinary action. When "should" or "should not" is used, the text is intended as hortatory and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined. When "may" is used, it denotes permissible discretion or, depending on the context, it refers to action that is not covered by specific proscriptions. The Canons and Sections are rules of reason. They should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances. The Code is to be construed so as not to impinge on the essential independence of judges in making judicial decisions.

The Code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through disciplinary agencies. It is not designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.

The text of the Canons and Sections is intended to govern conduct of judges and to be binding upon them. It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system.

The Code of Judicial Conduct is not intended as an exhaustive guide for the conduct of judges. They should also be governed in their judicial and personal conduct by general ethical standards. The Code is intended, however, to state basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.

TERMINOLOGY

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"Appropriate authority" denotes the authority with responsibility for initiation of disciplinary process with respect to the violation to be reported. See Sections 3D(1) and 3D(2).

"Candidate." A candidate is a person seeking selection for judicial office by election or appointment. Persons become candidates for judicial office as soon as they make public announcements of candidacy, declare or file as candidates with the election or appointment authority, or authorize solicitation or acceptance of contributions or support. The term "candidate" has the same meaning when applied to a judge seeking election or appointment to non-judicial office. See Preamble and Canon 5.

"Court personnel" does not include the lawyers in a proceeding before a judge. See Sections 3B(7)(c) and 3B(9).

"De minimis" denotes an insignificant interest that could not raise reasonable question as to a judge's impartiality. See Sections 3E(1)(c) and 3E(1)(d).

"Economic interest" denotes ownership of a more than de minimis legal or equitable interest, or a relationship as officer, director, advisor or other active participant in the affairs of a party, except that:

(i) ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest;

(ii) service by a judge as an officer, director, advisor or other active participant in an educational, religious, charitable, fraternal or civic organization, or service by a judge's spouse, parent or child as an officer, director, advisor or other active participant in any organization does not create an economic interest in securities held by that organization;

(iii) a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest;

(iv) ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge

3

could substantially affect the value of the securities. See Sections 3E(1)(c) and 3E(2).

"Fiduciary" includes such relationships as executor, administrator, trustee, and guardian. See Sections 3E(3) and 4E.

"Independent persons, committees or organizations" shall mean an individual person or organization not required to report as affiliated with a campaign for judicial office. See Section 5F.

"Knowingly," "knowledge," "known" or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances. See Sections 3D, 3E(1), and 5A(3).

"Law" denotes court rules as well as statutes, constitutional provisions and decisional law. See Sections 2A, 3A, 3B(2), 3B(7), 4B, 4C, 4F, 4I, 5A(2), 5A(3), 5B(2), 5C, 5D, and 5F.

“Major donor”, for the purposes of Section 3E(2), shall be defined as follows:

(a) If the donor is an individual, "donor" means that individual, the individual's spouse, or the individual’s or the individual’s spouse’s child, mother, father, grandmother, grandfather, grandchild, employee and employee's spouse.

(b) If the donor is an entity other than an individual, "donor” means the entity, its employees, officers, directors, shareholders, partners members, and contributors and the spouse of any of them.

(c) A “major donor” is a donor who or which has, in the judge's most recent election campaign, made a contribution to the judge's campaign of (a) more than $2,000 if the judge is a justice of the Supreme Court or judge of the Court of Appeals, or (b) more than $1,000 if the judge is a judge of a court other than the Supreme Court or the Court of Appeals.

(d) The term “contribution to the judge's campaign" shall be the total of all contributions to a judge's campaign and shall be deemed to include all contributions of every kind and type whatsoever, whether in the form of cash, goods, services, or other form of contribution, and whether donated directly to the judge's campaign or donated to any other person or entity for the purpose of supporting the judge's campaign and/or opposing the campaign of the judge's opponent(s). The term "contribution to a

4

judge’s campaign" shall also be deemed to include any publication, advertisement or other release of information, or payment therefor, other than a bona fide news item published by existing news media, which contains favorable information about the judge or which contains unfavorable information about the judge's opponent(s).

"Member of the candidate's family" denotes a spouse, child, grandchild, parent, grandparent, siblings, or other relative or person with whom the candidate maintains a close familial relationship. See Section 5A(3)(a).

"Member of the judge's family" denotes a spouse, child, grandchild, parent, grandparent, siblings, or other relative or person with whom the judge maintains a close familial relationship. See Sections 4D, 4E and 4G.

"Member of the judge's family residing in the judge's household" denotes any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge's family, who resides in the judge's household. See Sections 3E(1) and 4D.

"Nonpublic information" denotes information that, by law, is not available to the public. Nonpublic information may include but is not limited to: information that is sealed by statute or court order, impounded or communicated in camera; and information offered in grand jury proceedings, presentencing reports, dependency cases or psychiatric reports. See Sections 3B(11) and 4D(4).

"Part-time judge" denotes a judge who serves for an extended, fixed term, but is allowed to practice law or any other profession or occupation. The term does not apply to magistrates, court commissioners, special masters or referees.

"Political organization" denotes a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office. See Sections 5A(1).

"Public election." This term includes primary and general elections; it includes partisan elections and nonpartisan elections. See Section 5C.

"Require." The rules prescribing that a judge "require" certain conduct of others are, like all of the rules in this Code, rules of reason. The use of the term "require" in that context means a judge is to exercise reasonable direction and control over the conduct of those persons subject to the judge's direction and control. See Sections 3B(3), 3B(4), 3B(5), 3B(6), 3B(9) and 3C(2).

5

"Special judge" denotes a judge, including a retired judge, other than one who is serving to fill the unexpired term of a regularly elected or appointed judge who has vacated the office, who serves by appointment for a limited period or in a particular matter due to the unwillingness or inability of a sitting judge to hear a case or attend court, or who is appointed on an emergency basis.

"Third degree of relationship." The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece. See Section 3E(1)(d).

Commentary

In defining “members of the candidate’s family” and “members of the judge’s family” siblings of the candidate and judge are included. The phrase “major donor” is also included. Likewise, no reference is made to retention elections. In these respects, this section differs from the ABA Model Code of Judicial Conduct.

The ABA Model Code defines “continuing part-time judge,” “periodic part-time judge,” and “pro tempore part-time judge.” Also, in the Application Section, the ABA model refers to “retired judge subject to recall.” In the adaption of the model for Mississippi application, these are reduced to “part-time judge,” and “special judge,” which covers non-standard positions subject to special treatment. See Application Section.

CANON 1

A Judge Shall Uphold the Integrity and Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code should be construed and applied to further that objective.

Commentary

Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depends in turn upon their acting without fear or favor. Although judges should be independent, they must comply with the law, including the provisions of this Code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each

6

judge to this responsibility. Conversely, violation of this Code diminishes public confidence in the judiciary and thereby does injury to the system of government under law.

CANON 2

A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All Activities

A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Commentary

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules or other specific provisions of this Code. The test for appearance of impropriety is whether, based on the conduct, the judge’s impartiality might be questioned by a reasonable person knowing all the circumstances.

See also Commentary under Section 2C.

B. Judges shall not allow their family, social, or other relationships to influence the judges’ judicial conduct or judgment. Judges shall not lend the prestige of their offices to advance the private interests of the judges or others; nor shall judges convey or permit others to convey the impression that they are in a special position to influence the judges. Judges shall not testify voluntarily as character witnesses.

7

Commentary

8

Maintaining the prestige of judicial office is essential to a system of government in which the judiciary functions independently of the executive and legislative branches. Respect for the judicial office facilitates the orderly conduct of legitimate judicial functions. Judges should distinguish between proper and improper use of the prestige of office in all of their activities. For example, it would be improper for judges to allude to their judgeships to gain a personal advantage such as deferential treatment when stopped by a police officer for a traffic offense. Similarly, judicial letterhead must not be used for conducting a judge's personal business.

A judge must avoid lending the prestige of judicial office for the advancement of the private interests of others. For example, a judge must not use the judge's judicial position to gain advantage in a civil suit involving a member of the judge's family. In contracts for publication of a judge's writings, a judge should retain control over the advertising to avoid exploitation of the judge's office.

Although a judge should be sensitive to possible abuse of the prestige of office, a judge may, based on the judge's personal knowledge, serve as a reference or provide a letter of recommendation. However, a judge must not initiate the communication of information to a sentencing judge or a probation or corrections officer but may provide to such persons information for the record in response to a formal request.

Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees seeking names for consideration, and by responding to official inquiries concerning a person being considered for a judgeship. See also Canon 5 regarding use of a judge's name in political activities.

A judge must not testify voluntarily as a character witness because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies. Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge. A judge may, however, testify when properly summoned. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness.

C. A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, gender, religion or national origin.

Commentary

Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge's impartiality is impaired. Section 2C refers to the current practices of the organization. Whether an organization practices invidious

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discrimination is often a complex question to which judges should be sensitive. The answer cannot be determined from a mere examination of an organization's current membership rolls but rather depends on how the organization selects members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members, or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited. Absent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, gender or national origin persons who would otherwise be admitted to membership. See New York State Club Ass'n. v. City of New York, U.S. , 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984).

Although Section 2C relates only to membership in organizations that invidiously discriminate on the basis of race, gender, religion or national origin, a judge's membership in an organization that engages in any discriminatory membership practices prohibited by the law of the jurisdiction also violates Canon 2 and Section 2A and gives the appearance of impropriety. In addition, it would be a violation of Canon 2 and Section 2A for a judge to arrange a meeting at a club that the judge knows practices invidious discrimination on the basis of race, gender, religion or national origin in its membership or other policies, or for the judge to regularly use such a club. Moreover, public manifestation by a judge of the judge's knowing approval of invidious discrimination on any basis gives the appearance of impropriety under Canon 2 and diminishes public confidence in the integrity and impartiality of the judiciary, in violation of Section 2A.

When a person who is a judge on the date this Code becomes effective learns that an organization to which the judge belongs engages in invidious discrimination that would preclude membership under Section 2C or under Canon 2 and Section 2A, the judge is permitted, in lieu of resigning, to make immediate efforts to have the organization discontinue its invidiously discriminatory practices, but is required to suspend participation in any other activities of the organization. If the organization fails to discontinue its invidiously discriminatory practices as promptly as possible (and in all events within a year of the judge's first learning of the practices), the judge is required to resign immediately from the organization.

CANON 3

A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently

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A. Judicial Duties in General. The judicial duties of judges take precedence over all their other activities. The judges’ judicial duties include all the duties of their office prescribed by law. In the performance of these duties, the following standards apply:

B. Adjudicative Responsibilities.

(1) A judge shall hear and decide all assigned matters within the judge’s jurisdiction except those in which disqualification is required.

(2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.

(3) A judge shall require order and decorum in proceedings before the judge.

(4) Judges shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom they deal in their official capacities, and shall require similar conduct of lawyers, and of their staffs, court officials, and others subject to their direction and control.

Commentary

The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Courts can be efficient and business like while being patient and deliberate.

(5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge's direction and control to do so. A judge shall refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment and shall require the same standard of conduct of others subject to the judge’s direction and control.

Commentary

A judge must perform judicial duties impartially and fairly. A judge who manifests bias on any basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. Facial expression and body language, in addition to oral communication, can give to parties or lawyers in the proceeding, jurors, the media and

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others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial.

(6) A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, against parties, witnesses, counsel or others. This Section 3B(6) does not preclude legitimate advocacy when race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, or other similar factors, are issues in the proceeding.

(7) A judge shall accord to all who are legally interested in a proceeding, or their lawyers, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:

(a) where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized: provided:

(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and

(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.

(b) Judges may obtain the advice of a disinterested expert on the law applicable to a proceeding before them if the judges give notice to the parties of the person consulted and the substance of the advice, and afford the parties reasonable opportunity to respond.

(c) A judge may consult with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges.

(d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.

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(e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.

Commentary The proscription against communications concerning a proceeding includes

communications from lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted. To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge. Whenever presence of a party or notice to a party is required by Section 3B(7), it is the party's lawyer, or if the party is unrepresented, the party, who is to be present or to whom notice is to be given.

An appropriate and often desirable procedure for a court to obtain the advice of a disinterested expert on legal issues is to invite the expert to file a brief amicus curiae.

Certain ex parte communication is approved by Section 3B(7) to facilitate scheduling and other administrative purposes and to accommodate emergencies. In general, however, a judge must discourage ex parte communication and allow it only if all the criteria stated in Section 3B(7) are clearly met. A judge must disclose to all parties all ex parte communications described in Sections 3B(7)(a) and 3B(7)(b) regarding a proceeding pending or impending before the judge. A judge must not independently investigate facts in a case and must consider only the evidence presented.

A judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprized of the request and are given an opportunity to respond to the proposed findings and conclusions.

A judge must make reasonable efforts, including the provision of appropriate supervision, to ensure that Section 3B(7) is not violated through law clerks or other personnel on the judge's staff.

If communication between the trial judge and the appellate court with respect to a proceeding is permitted, a copy of any written communication or the substance of any oral communication should be provided to all parties.

(8) A judge shall dispose of all judicial matters promptly, efficiently and fairly.

Commentary

In disposing of matters promptly, efficiently and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without

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unnecessary cost or delay. Containing costs while preserving fundamental rights of parties also protects the interests of witnesses and the general public. A judge should monitor and supervise cases so as to reduce or eliminate dilatory practices, avoidable delays and unnecessary costs. A judge should encourage and seek to facilitate settlement, but parties should not feel coerced into surrendering the right to have their controversy resolved by the courts.

Prompt disposition of the court's business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to insist that court officials, litigants and their lawyers cooperate with the judge to that end.

(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing. The judge shall require similar abstention on the part of court personnel subject to the judge's direction and control. This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.

Commentary

The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition. This Section does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity, but in cases such as a writ of mandamus where the judge is a litigant in an official capacity, the judge must not comment publicly. The conduct of lawyers relating to trial publicity is governed by Rule 3.6 of the Rules of Professional Conduct.

(10) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding, but may express appreciation to jurors for their service to the judicial system and the community.

Commentary

Commending or criticizing jurors for their verdict may imply a judicial expectation in future cases and may impair a juror's ability to be fair and impartial in a subsequent case.

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(11) A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity.

(12) Except as may be authorized by rule or order of the Supreme Court, a judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that a judge may authorize:

(a) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration;

(b) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings;

(c) the photographic or electronic recording and reproduction of appropriate court proceedings under the following conditions:

(i) the means of recording will not distract participants or impair the dignity of the proceedings;

(ii) the parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction;

(iii) the reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and

(iv) the reproduction will be exhibited only for instructional purposes in educational institutions.

Commentary

The ABA Model Code does not address broadcasting, televising, recording or photographing in the courtroom. This provision is taken from the Section 3A(7) of the prior Mississippi Code of Judicial Conduct.

Section 3B(12) prohibits broadcasting, televising, recording, or taking

photographs in the courtroom and areas immediately adjacent thereto except as

authorized by rule or order of the Supreme Court. The Supreme Court has now adopted

the Rules for Electronic and Photographic Coverage of Proceedings which provides

detailed guidance for such coverage.

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[Commentary amended effective April 17, 2003.]

C. Administrative Responsibilities.

(1) A judge shall diligently discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and shall cooperate with other judges and court officials in the administration of court business.

(2) A judge shall require staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.

(3) A judge with supervisory authority for the judicial performance of other judges shall take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities.

(4) A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.

Commentary

Appointees of a judge include assigned counsel, officials such as referees, commissioners, special masters, receivers and guardians and personnel such as clerks, secretaries and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by Section 3C(4).

(5) A judge shall not appoint a major donor to the judge’s election campaign to a position if the judge knows or learns by means of a timely motion that the major donor has contributed to the judge's election campaign unless

(a) the position is substantially uncompensated;

(b) the person has been selected in rotation from a list of qualified and available persons compiled without regard to their having made political contributions; or

(c) the judge or another presiding or administrative judge affirmatively finds that no other person is willing, competent and able to accept the position.

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D. Disciplinary Responsibilities.

(1) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the appropriate authority.

(2) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate authority.

(3) Acts of a judge, in the discharge of disciplinary responsibilities, required or permitted by Sections 3D(1) and 3D(2) are part of a judge's judicial duties and shall be absolutely privileged, and no civil action predicated thereon may be instituted against the judge.

Commentary

Appropriate action may include direct communication with the judge or lawyer who has committed the violation, other direct action if available, and reporting the violation to the appropriate authority or other agency or body.

E. Disqualification.

(1) Judges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law, including but not limited to instances where:

Commentary

Under this rule, a judge should disqualify himself or herself whenever the judge's impartiality might be questioned by a reasonable person knowing all the circumstances, regardless whether any of the specific rules in Section 3E(1) apply.

A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.

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By decisional law, the rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In the latter case, the judge must disclose on the record the basis for possible disqualification and use reasonable efforts to transfer the matter to another judge as soon as practicable.

For procedures concerning motions for recusal and review by the Supreme Court of denial of motions for recusal as to trial court judges, see M.R.C.P. 16A, URCCC 1.15, Unif. Chanc. R. 1.11, and M.R.A.P. 48B. For procedures concerning motions for recusal of judges of the Court of Appeals or Supreme Court justices, see M.R.A.P. 27(a).

(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

Commentary

A lawyer in a government agency does not ordinarily have an association with other lawyers employed by that agency within the meaning of Section 3E(1)(b); judges formerly employed by a government agency, however, should disqualify themselves in a proceeding if the judges’ impartiality might reasonably be questioned because of such association.

(c) the judge knows that the judge, individually or as a fiduciary, or the judge's spouse or member of the judge’s family residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

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(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) is to the judge's knowledge likely to be a material witness in the proceeding;

Commentary

The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that “the judge’s impartiality might be questioned by a reasonable person knowing all the circumstances “ under Section 3E(1), or that the relative is known by the judge to have an interest in the law firm that could be "substantially affected by the outcome of the proceeding" under Section 3E(1)(d)(iii) may require the judge's disqualification.

(2) Recusal of Judges from Lawsuits Involving Major Donors. A party may file a motion to recuse a judge based on the fact that an opposing party or counsel of record for that party is a major donor to the election campaign of such judge. Such motions will be filed, considered and subject to appellate review as provided for other motions for recusal.

Commentary

Section 3E(2) recognizes that political donations may but do not necessarily raise

concerns about a judge’s impartiality. The filing, consideration and appellate review of

motions for recusal based on such donations are subject to rules governing all recusal

motions. For procedures concerning motions for recusal and review by the Supreme

Court of denial of motions for recusal as to trial court judges, see M.R.C.P. 16A, URCCC

1.15, Unif. Chanc. R. 1.11, and M.R.A.P. 48B. For procedures concerning motions for

recusal of judges of the Court of Appeals or Supreme Court justices, see M.R.A.P. 27(a).

This provision does not appear in the ABA Model Code of Judicial Conduct; however, see

Section 3E(1)(e) of the ABA model.

F. Remittal of Disqualification. A judge who may be disqualified by the terms of Section 3E may disclose on the record the basis of the judge's possible disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the

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judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.

Commentary

A remittal procedure provides the parties an opportunity to proceed without delay if they wish to waive the possible disqualification. To assure that consideration of the question of remittal is made independently of the judge, a judge must not solicit, seek or hear comment on the remittal or waiver of the possible disqualification unless the lawyers jointly propose remittal after consultation as provided in the rule. A party may act through counsel if counsel represents on the record that the party has been consulted and consents. As a practical matter, a judge may wish to have all parties and their lawyers sign the remittal agreement.

CANON 4

A Judge Shall So Conduct the Judge's Extra-judicial Activities as to Minimize the Risk of Conflict with Judicial Obligations

A. Extra-judicial Activities in General. A judge shall conduct all of the judge's extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;

(2) demean the judicial office; or

(3) interfere with the proper performance of judicial duties.

Commentary

Complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives.

Expressions of bias or prejudice by a judge, even outside the judge's judicial activities, may cast reasonable doubt on the judge's capacity to act impartially as a judge. Expressions which may do so include jokes or other remarks demeaning individuals on the basis of their race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status. See Section 2C and accompanying Commentary.

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B. Avocational Activities. A judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this Code.

Commentary

As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law. Judges may participate in efforts to promote the fair administration of justice, the independence of the judiciary and the integrity of the legal profession and may express opposition to the persecution of lawyers and judges in other countries because of their professional activities.

In this and other Sections of Canon 4, the phrase "subject to the requirements of this Code" is used, notably in connection with a judge's governmental, civic or charitable activities. This phrase is included to remind judges that the use of permissive language in various Sections of the Code does not relieve a judge from the other requirements of the Code that apply to the specific conduct.

C. Governmental, Civic or Charitable Activities.

(1) A judge shall not make an appearance before, or otherwise consult with, an executive or legislative body or official or a public hearing except on matters concerning the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge's interests.

Commentary

See Section 2B regarding the obligation to avoid improper influence.

(2) A judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system or the administration of justice. A judge may, however, represent a country, state or locality on ceremonial occasions or in connection with historical, educational or cultural activities.

Commentary

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Section 4C(2) prohibits a judge from accepting any governmental position except one relating to the improvement of the law, legal system or administration of justice as authorized by Section 4C(3). The appropriateness of accepting extra-judicial assignments must be assessed in light of the demands on judicial resources created by crowded dockets and the need to protect the courts from involvement in extra-judicial matters that may prove to be controversial. Judges should not accept governmental appointments that are likely to interfere with the effectiveness and independence of the judiciary.

Section 4C(2) does not govern a judge's service in a non-governmental position. See Section 4C(3) permitting service by a judge with organizations devoted to the improvement of the law, the legal system or the administration of justice and with educational, religious, charitable, fraternal or civic organizations not conducted for profit. For example, service on the board of a public educational institution, unless it were a law school, would be prohibited under Section 4C(2), but service on the board of a public law school or any private educational institution would generally be permitted under Section 4C(3).

(3) A judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice or of an educational, religious, charitable, fraternal or civic organization not conducted for profit, subject to the following limitations and the other requirements of this Code.

Commentary

Section 4C(3) does not apply to a judge's service in a governmental position unconnected with the improvement of the law, the legal system or the administration of justice. See Section 4C(2).

See Commentary to Section 4B regarding use of the phrase "subject to the following limitations and the other requirements of this Code." As an example of the meaning of the phrase, a judge permitted by Section 4C(3) to serve on the board of a fraternal institution may be prohibited from such service by Sections 2C or 4A if the institution practices invidious discrimination or if service on the board otherwise casts reasonable doubt on the judge's capacity to act impartially as a judge.

Service by a judge on behalf of a civic or charitable organization may be governed by other provisions of Canon 4 in addition to Section 4C. For example, a judge is prohibited by Section 4G from serving as a legal advisor to a civic or charitable organization.

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(a) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization:

(i) will be engaged in proceedings that would ordinarily come before the judge, or

(ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

Commentary

The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation. For example, in many jurisdictions charitable hospitals are now more frequently in court than in the past. Similarly, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication.

(b) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:

(i) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization's funds, but shall not personally participate in the solicitation of funds or other fund-raising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority;

(ii) may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice;

(iii) shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or, except as permitted in Section 4C(3)(b)(i), if the membership solicitation is essentially a fund-raising mechanism;

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(iv) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation.

Commentary

A judge may solicit membership or endorse or encourage membership efforts for an organization devoted to the improvement of the law, the legal system or the administration of justice or a nonprofit educational, religious, charitable, fraternal or civic organization as long as the solicitation cannot reasonably be perceived as coercive and is not essentially a fund-raising mechanism. Solicitation of funds for an organization and solicitation of memberships similarly involve the danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence or control. A judge must not engage in direct, individual solicitation of funds or memberships in person, in writing or by telephone except in the following cases: 1) a judge may solicit for funds or memberships other judges over whom the judge does not exercise supervisory or appellate authority, 2) a judge may solicit other persons for membership in the organizations described above if neither those persons nor persons with whom they are affiliated are likely ever to appear before the court on which the judge serves and 3) a judge who is an officer of such an organization may send a general membership solicitation mailing over the judge's signature.

Use of an organization letterhead for fund-raising or membership solicitation does not violate Section 4C(3)(b) provided the letterhead lists only the judge's name and office or other position in the organization, and, if comparable designations are listed for other persons, the judge's judicial designation. In addition, a judge must also make reasonable efforts to ensure that the judge's staff, court officials and others subject to the judge's direction and control do not solicit funds on the judge's behalf for any purpose, charitable or otherwise.

A judge must not be a speaker or guest of honor at an organization's fund- raising event, but mere attendance at such an event is permissible if otherwise consistent with this Code.

D. Financial Activities.

(1) Judges should refrain from financial and business dealings that tend to reflect adversely on their impartiality, interfere with the proper performance of their judicial duties, exploit their judicial positions, or involve them in frequent transactions with lawyers or persons likely to come before the court on which the judges serve.

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(2) Judges should manage their investments and other financial interests to minimize the number of cases in which they are disqualified. As soon as a judge can do so without serious financial detriment, the judge should divest himself or herself of investments and other financial interests that might require frequent disqualification.

(3) Neither judges nor members of their families residing in their households should accept a gift, bequest, favor, or loan from anyone reflecting the expectation of judicial favor.

(4) Non-public information acquired by a judge in the judge’s judicial capacity should not be used or disclosed by the judge in financial dealings or for any other purpose not related to the judge’s judicial duties.

Commentary

The prohibition of Section 4D(3), limiting gifts which judges and their families may accept, does not prohibit gifts incident to public testimonials to the judges, books supplied by publishers on a complimentary basis for official use, and invitations to judges and their spouses to attend bar-related functions or activities devoted to the improvements of the law, the legal system or the administration of justice. Judges and their families residing in their households may accept ordinary social hospitality, gifts, bequests, favors and loans from relatives, wedding and engagement gifts, loans from lending institutions in their regular course of business on the same terms generally available to persons who are not judges, and scholarships and fellowships awarded on the same terms applied to other applicants. Judges and members of their families residing in their households may accept any other gifts, bequests, favors and loans only if the donor is not a party or likely to come before them, and the gifts are reported as may be required by law. Gifts, bequests, favors and loans are to be reported as may be required by the Ethics in Government statutes. See Miss. Code Ann. § 25-4-27. Section 4D differs from the provisions of the ABA model and retains in large part the provisions of the Mississippi Code of Judicial Conduct as it existed prior to the current revision. Although this section does not prohibit holding specific extra-judicial positions or engaging in other specific business activities, it does require that judges refrain from business activities which might reflect adversely on their impartiality and that they manage their business activities so as to minimize the need for recusal. Regarding recusals and disqualification, see Section 3E.

E. Fiduciary Activities.

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(1) A judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary except for the estate, trust or person of a member of the judge's family, and then only if such service will not interfere with the proper performance of judicial duties.

(2) A judge shall not serve as a fiduciary if it is likely that the judge as a fiduciary will be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction.

(3) The same restrictions on financial activities that apply to a judge personally also apply to the judge while acting in a fiduciary capacity.

Commentary

The Time for Compliance provision of this Code (Application, Section E) postpones the time for compliance with certain provisions of this Section in some cases.

The restrictions imposed by this Canon may conflict with the judge's obligation as a fiduciary. For example, a judge should resign as trustee if detriment to the trust would result from divestiture of holdings, the retention of which would place the judge in violation of Section 4D(3).

F. Service as Arbitrator or Mediator. A judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law.

Commentary

Section 4F does not prohibit a judge from participating in arbitration, mediation or settlement conferences performed as part of judicial duties.

G. Practice of Law.

(1) A judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation,

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give legal advice to and draft or review documents for a member of the judge's family.

(2) A judge must also make reasonable efforts to ensure that the judge's staff, court officials and others subject to the judge's direction and control do not practice law in a representative capacity.Notwithstanding this prohibition, staff, court officials and others subject to the judge’s direction may act pro se, and those otherwise licensed to practice law may, without compensation, give legal advice to and draft or review documents for members of their families.

Commentary

This prohibition refers to the practice of law in a representative capacity and not in a pro se capacity. Judges may act for themselves in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with legislative and other governmental bodies. However, in so doing, a judge must not abuse the prestige of office to advance the interests of the judge or the judge's family. See Section 2(B). Certain officials and others are exempt pursuant to Section D of the Application Section of the Code of Judicial Conduct.

The Code allows a judge to give legal advice to and draft legal documents for members of the judge's family, so long as the judge receives no compensation. A judge must not, however, act as an advocate or negotiator for a member of the judge's family in a legal matter. This provision does not imply any privilege to practice law to those judges, staff members, court officials or others subject to the judge’s control and direction who are not licensed to practice law.

Amended May 31, 2007.

H. Compensation, Reimbursement and Reporting.

(1) Compensation and Reimbursement. A judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety.

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(a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity.

(b) Expense reimbursement shall be limited to the actual cost of travel, food and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge's spouse or guest. Any payment in excess of such an amount is compensation.

(2) Public Reports. A judge shall comply with those provisions of law requiring the reporting of economic interest to the Mississippi Ethics Commission.

Commentary

See Commentary to Section 4D(4) regarding reporting of gifts, bequests and loans. See also Miss. Code Ann. §§ 25-4-25 through 29 regarding the filing of statements of economic interest with the Mississippi Ethics Commission. The ABA model suggests that since Canon 6 in the 1972 model code was drafted, reporting requirements in most jurisdictions have become much more comprehensive, and that canons regulating reporting of income should be tailored to the requirements of individual jurisdictions. Subsection 4H 2), therefore, simply requires compliance with the statutory provisions for reporting to the Ethics Commission.

The Code does not prohibit a judge from accepting honoraria or speaking fees provided that the compensation is reasonable and commensurate with the task performed. A judge should ensure, however, that no conflicts are created by the arrangement. A judge must not appear to trade on the judicial position for personal advantage. Nor should a judge spend significant time away from court duties to meet speaking or writing commitments for compensation. In addition, the source of the payment must not raise any question of undue influence or the judge's ability or willingness to be impartial.

I. Disclosure of a judge's income, debts, investments or other assets is required only to the extent provided in this Canon and in Sections 3E and 3F, or as otherwise required by law.

Commentary

Section 3E requires judges to disqualify themselves in any proceedings in which they have economic interests. See "economic interest" as explained in the Terminology Section. Section 4D requires judges to refrain from engaging in business and from financial activities that might interfere with the impartial performance of judicial duties; Section 4H requires judges to report compensation they received for activities outside

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judicial office. Judges have the rights of any other citizens, including the right to privacy of the judges’ financial affairs, except to the extent that limitations established by law are required to safeguard the proper performance of the judges’ duties.

CANON 5

A Judge or Judicial Candidate Shall Refrain From Inappropriate Political Activity

A. All Judges and Candidates

(1) Except as authorized in Sections 5B(2), 5C(1) and 5C(2), a judge or a candidate for election to judicial office shall not:

(a) act as a leader or hold an office in a political organization;

(b) make speeches for a political organization or candidate or publicly endorse a candidate for public office;

(c) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other political functions.

Commentary

A judge or candidate for judicial office retains the right to participate in the political process as a voter.

Where false information concerning a judicial candidate is made public, a judge or another judicial candidate having knowledge of the facts is not prohibited by Section 5A(1) from making the facts public.

Section 5A(1)(a) does not prohibit a candidate for elective judicial office from retaining during candidacy a public office such as county prosecutor, which is not "an office in a political organization."

Section 5A(1)(b) does not prohibit judges or judicial candidate from privately expressing their views on judicial candidates or other candidates for public office.

A candidate does not publicly endorse another candidate for public office by having that candidate's name on the same ticket. However, Sections 23-15-973 et seq.,

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Miss. Code Ann. (1972) impose restrictions on candidates and political organizations to assure the non-partisan quality of judicial elections for Supreme Court, Court of Appeals, Chancery Court, Circuit Court and County Court justices and judges.

(2) A judge shall resign from judicial office upon becoming a candidate either in a party primary or in a general election for a non-judicial office, except that the judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention if the judge is otherwise permitted by law to do so.

(3) A candidate for a judicial office:

(a) shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, and shall encourage members of the candidate's family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate;

Commentary

Although judicial candidates must encourage members of their families to adhere to the same standards of political conduct in support of the candidates that apply to the candidates, family members are free to participate in other political activity. Family members are not prohibited by this subsection from serving on the candidates’ campaign committees and otherwise actively involving themselves in the campaigns.

(b) shall prohibit employees and officials who serve at the pleasure of the candidate, and shall discourage other employees and officials subject to the candidate's direction and control, from doing on the candidate's behalf what the candidate is prohibited from doing under the Sections of this Canon;

(c) except to the extent permitted by Section 5C(2), shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon;

(d) shall not:

(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;

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(ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or

(iii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent;

Commentary

Section 5A(3)(d)(i) prohibits a candidate for judicial office making pledges or promises to decide cases in any particular way and statements committing the candidate with respect to cases, controversies or issues likely to come before the court on which the candidate will serve if elected. This section does not prohibit or limit a candidate’s freedom to announce the candidate’s current views on issues so long as the announcement does not bind the candidate to maintain those views after election. See Republican Party of Minn. v. White, 536 U.S. 765 (2002) (declaring unconstitutional restrictions in the Minnesota Code of Judicial Conduct on the announcement of views on legal and political issues.) The comparable offending language, referred to as the “announce clause”, formerly appeared in our Code of Judicial Conduct, but was removed with the revision of the code on April 4, 2002. This Section does not prohibit an incumbent judge from making private statements to other judges or court personnel in the performance of judicial duties.

Section 5A(3)(d)(ii) prohibits a candidate for judicial office making statements that appear to commit the candidate regarding cases, controversies or issues likely to come before the court. As a corollary, a candidate should emphasize in any public statement the candidate's duty to uphold the law regardless of the candidate’s personal views. See also Section 3B(9), the general rule on public comment by judges. Section 5A(3)(d) does not prohibit a candidate from making pledges and promises respecting improvements in court administration.

Section 5A(3)(d) applies to any statement made in the process of

securing judicial office, such as statements to commissions charged with

judicial selection and tenure and legislative bodies confirming appointment.

See also Rule 8.2 of the Mississippi Rules of Professional Conduct. Phrases

such as “tough on crime,” “soft on crime,” “pro-business,” “anti-business,”

“pro-life,” “pro-choice,” or in any similar characterizations suggesting

personal views on issues which may come before the courts, when applied to

the candidate or an opponent, may be considered to be prohibited by Section

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5A(3)(d) only when used in a context which contain a pledge or promise to

decide cases in a particular manner.

[Commentary amended effective February 26, 2004.]

(e) may respond to personal attacks or attacks on the candidate's record as long as the response does not violate Section 5A(3)(d).

B. Candidates Seeking Appointment to Judicial or Other Governmental Office.

(1) Candidates for appointment to judicial office or judges seeking other governmental office shall not solicit or accept funds, personally or through a committee or otherwise, to support their candidacies.

(2) A candidate for appointment to judicial office or a judge seeking other governmental office shall not engage in any political activity to secure the appointment except that:

(a) such persons may:

(i) communicate with the appointing authority, including any selection or nominating commission or other agency designated to screen candidates;

(ii) seek support or endorsement for the appointment from organizations that regularly make recommendations for reappointment or appointment to the office, and from individuals to the extent requested or required by those specified in Section 5B(2)(a); and

(iii) provide to those specified in Sections 5B(2)(a)(i) and 5B(2)(a)(ii) information as to the candidate’s qualifications for the office;

(b) a non-judge candidate for appointment to judicial office may, in addition, unless otherwise prohibited by law:

(i) retain an office in a political organization,

(ii) attend political gatherings, and

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(iii) continue to pay ordinary assessments and ordinary contributions to a political organization or candidate and purchase tickets for political party dinners or other political functions.

Commentary

Section 5B(2) provides a limited exception to the restrictions imposed by Sections 5A(1) and 5D. Under Section 5B(2), candidates seeking reappointment to the same judicial office or appointment to another judicial office or other governmental office may apply for the appointment and seek appropriate support.

Although under Section 5B(2) non-judge candidates seeking appointment to judicial office are permitted during candidacy to retain office in a political organization, attend political gatherings and pay ordinary dues and assessments, they remain subject to other provisions of this Code during candidacy. See Sections 5B(1), 5B(2)(a), 5E and Application Section.

C. Judges and Candidates Subject to Public Election.

(1) Judges holding an office filled by public election between competing candidates, or candidates for such office, may, only insofar as permitted by law, attend political gatherings, speak to such gatherings in their own behalf while candidates for election or re-election, identify themselves as members of political parties, and contribute to political parties or organizations.

Commentary

Section 5C recognizes the distinction between appropriate political activities by judges and candidates subject to non-partisan election and those subject to partisan elections. The language of Section 5C differs from that of corresponding provisions in the ABA Model Code, Sections C(1)(a)(ii) and (iii), in recognition of Mississippi’s non-partisan elections for certain positions. Furthermore, Section 23-15-973 et seq., Miss. Code Ann. (1972) imposes restrictions on candidates and political organizations to assure the non-partisan quality of judicial elections for Supreme Court, Court of Appeals, Chancery Court, Circuit Court and County Court justices and judges. Section 5C(1) permits judges subject to election at any time to be involved in limited political activity. Section 5D, applicable solely to incumbent judges, would otherwise bar this activity. Section 5C(1)(b)(iv) of the ABA Mode Code has not been incorporated. Attending or speaking at a political party gathering in the judge’s own behalf while a candidate does not constitute alignments or affiliation with the party sponsoring the gathering.

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(2) A candidate shall not personally solicit or accept campaign contributions or personally solicit publicly stated support. A candidate may, however, establish committees of responsible persons to conduct campaigns for the candidate through media advertisements, brochures, mailings, candidate forums and other means not prohibited by law. Such committees may solicit and accept reasonable campaign contributions, manage the expenditure of funds for the candidate's campaign and obtain public statements of support for the candidacy. Such committees are not prohibited from soliciting and accepting reasonable campaign contributions and public support from lawyers. A candidate's committees shall not solicit or accept contributions and public support for the candidate's campaign earlier than 60 days before the qualifying deadline or later than 120 days after the last election in which the candidate participates during the election year. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or others.

Commentary

There is legitimate concern about a judge's impartiality when parties whose interests may come before a judge, or the lawyers who represent such parties, are known to have made contributions to the election campaigns of judicial candidates. Section 5C(2) recognizes that in many jurisdictions judicial candidates must raise funds to support their candidacies for election to judicial office. It therefore permits a candidate, other than a candidate for appointment, to establish campaign committees to solicit and accept public support and financial contributions. Though not prohibited, campaign contributions of which a judge has knowledge, made by lawyers or others who appear before the judge, may, by virtue of their size or source, raise questions about a judge's impartiality and be cause for disqualification as provided under Section 3E.

Campaign committees established under Section 5C(2) should manage campaign finances responsibly, avoiding deficits that might necessitate post-election fund-raising, to the extent possible. Such committees must at all times comply with applicable statutory provisions governing their conduct.

Section 5C(2) does not prohibit a candidate from initiating an evaluation by a judicial selection commission or bar association, or, subject to the requirements of this Code, from responding to a request for information from any organization.

(3) Candidates shall instruct their campaign committees at the start of the campaign not to accept campaign contributions for any election that exceed those limitations placed on contributions by individuals, political action committees and corporations by law.

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Commentary

The ABA Model Code of Judicial Conduct is drafted for the insertion of specific limits on contributions for judicial campaigns. As adopted for Mississippi, this section simply makes references to limits established by the Legislature by statutes which limit contributions to $5,000 in appellate court races, to $2,500 in chancery, circuit or county court races, and generally limits corporate contributions to $1,000. See Miss. Code Ann. § 23-15-1021 (2000 Supp.) (judicial races) and Miss. Code Ann. § 97-13-15 (1999 Supp.) (corporate contributions.)

(4) A candidate and the candidate’s committee shall timely comply with all provisions of law requiring the disclosure and reporting of contributions, loans and extensions of credit.

Commentary

Section 5C(4) of the ABA Model Code of Judicial Conduct which makes special provision for reporting campaign contributions is replaced by the foregoing Section 5C(4) which requires compliance with all provisions of law. See Miss. Code Ann. §§ 23-15-805 and 23-15-1023 (2000 Supp.)

The ABA Model Code includes a Section 5C(5) which approves, under some circumstances, a judicial candidate’s name being listed on election materials along with the names of other candidates. This has not been incorporated in the revision of the Mississippi canons.

D. Incumbent Judges. A judge shall not engage in any political activity except as authorized under any other Section of this Code, on behalf of measures to improve the law, the legal system or the administration of justice, or as expressly authorized by law.

Commentary

Neither Section 5D nor any other section of the Code prohibits a judge in the exercise of administrative functions from engaging in planning and other official activities with members of the executive and legislative branches of government. With respect to a judge's activity on behalf of measures to improve the law, the legal system and the administration of justice, see Commentary to Section 4B and Section 4C(1) and its Commentary.

Sections 5A through 5D limit the participation of judges and candidates in political activities. Section 5D expressly prohibits judges from engaging “in any political activity” not expressly authorized by the Code of Judicial Conduct or by law. These provisions do not prohibit voting in party primaries and general elections, which is not “political activity” as the phrase is used in Canon 5. The statute governing non-partisan judicial elections, while

35

prohibiting candidates for judicial offices covered by the statute from campaigning or qualifying for the offices based on party affiliation, does not preclude the candidates from voting in party primaries. Miss. Code Ann. § 23-25-973 (Supp. 2000.)

E. Applicability. Canon 5 generally applies to all incumbent judges and judicial candidates. Successful candidates, whether or not incumbents, are subject to judicial discipline for their campaign conduct; unsuccessful candidates who are lawyers are subject to lawyer discipline for their campaign conduct. Lawyers who are candidates for judicial office are subject to Rule 8.2(b) of the Mississippi Rules of Professional Conduct. However, the provisions of Canon 5F below shall not apply to elections for the offices of justice court judge and municipal judge.

F. Special Committee--Proceedings and Authority. In every year in which an election is held for Supreme Court, Court of Appeals, chancery court, circuit court or county court judge in this state and at such other times as the Supreme Court may deem appropriate, a Special Committee on Judicial Election Campaign Intervention ("Special Committee") shall be created whose responsibility shall be to issue advisory opinions and to deal expeditiously with allegations of ethical misconduct in campaigns for judicial office. The committee shall consist of five (5) members. The Chief Justice of the Supreme Court, the Governor, the Lieutenant Governor, the Speaker of the House of Representatives of the Mississippi Legislature and the chair of the Commission on Judicial Performance (Commission) shall each appoint one member. Those appointed by the Chief Justice, the Governor and the chair of the Commission shall be attorneys licensed to practice in the state. No person shall be appointed to serve as a member of a Special Committee for the year in which such person is a candidate for judicial office. Should the Chief Justice expect to be a candidate for judicial office during the year for which a Special Committee is to be appointed the Chief Justice shall declare such expectation, and in such event, the appointment which otherwise would have been made by the Chief Justice shall be made by the next senior justice of the Supreme Court not seeking judicial office in such year. Likewise, should the Governor, Lieutenant Governor, Speaker of the House of Representatives or chair of the Commission expect to seek judicial office during such year, that official shall declare such expectation, and the appointment which otherwise would have been made by such appointing authority shall be made, respectively: by the Lieutenant Governor if the Governor expects to seek such an office; by the President Pro Tem of the Senate if the Lieutenant Governor expects to seek such an office; by the Speaker Pro Tem of the House of Representatives if the Speaker expects to seek such an office; and by the vice-chair of the Commission if the chair expects to seek such an office. Any action taken by the Special Committee shall require a majority vote. Each Special Committee shall be appointed no later March 1 in the year of their service, and it shall continue in existence for ninety (90) days following such judicial elections or for so long thereafter as is necessary to consider matters submitted to it within such time. The Commission shall provide administrative support to the Special Committee. Should

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any appointing authority fail to make an appointment, three members shall constitute a sufficient number to conduct the business of the Special Committee. The objective of the Special Committee shall be to alleviate unethical and unfair campaign practices in judicial elections, and to that end, the Special Committee shall have the following authority:

(1) Within ten (10) days of the effective date of this rule or within the ten (10) days after formally announcing and/or officially qualifying for election or re-election to any judicial office in this state, whichever is later, all candidates, including incumbent judges, shall forward written notice of such candidacy, together with an appropriate mailing address and telephone number, to the Commission. Upon receipt of such notice, the Special Committee shall, through the Commission, cause to be distributed to all such candidates by certified mail-return receipt requested copies of the following: Canon 5 of the Code of Judicial Conduct; summaries of any previous opinions issued by the Special Committee, Special Committees organized for prior elections, or the Supreme Court of Mississippi, which relate in any way to campaign conduct and practices; and a form acknowledgment, which each candidate shall promptly return to the Commission and therein certify that the candidate has read and understands the materials forwarded and agrees to be bound by such standards during the course of the campaign. A failure to comply with this section shall constitute a per se violation of this Section authorizing the Committee to immediately publicize such failure to all candidates in such race and to all appropriate media outlets. In the event of a question relating to conduct during a judicial campaign, judicial candidates, their campaign organizations, and all independent persons, committees and organizations are encouraged to seek an opinion from the Special Committee before such conduct occurs.

(2) Opinions as to the propriety of any act or conduct by a judicial candidate, a candidate's campaign organization or an independent person, committee or organization conducting activities which impact on the election and as to the construction or application of Canon 5 may be provided by the Special Committee upon request from any judicial candidate, campaign organization or an independent person, committee or organization. If the Special Committee finds the question of limited significance, it may provide an informal opinion to the questioner. If, however, it finds the questions of sufficient general interest and importance, it may render a formal opinion, in which event it shall cause the opinion to be published in complete or synopsis form. Furthermore, the Special Committee may issue formal opinions on its own motion under such circumstances, as it finds appropriate. The Special Committee may decline to issue an opinion when a majority of the Special Committee members determine that it would be inadvisable to respond to the request and to have so confirmed in writing their reasoning to the person who requested the opinion. All formal opinions of the Special Committee shall be filed with the Supreme Court and shall be a matter of public record except for the names of the persons involved, which shall be excised. Both formal and informal opinions shall be advisory only; however,

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the Commission on Judicial Performance, the Supreme Court and all other regulatory and enforcement authorities shall consider reliance by a judicial candidate upon the Special Committee opinion in any disciplinary or enforcement proceeding.

(3) Upon receipt of information facially indicating a violation by a judicial candidate of any provision of Canon 5 during the course of a campaign for judicial office, or indicating actions by an independent person, committee or organization which are contrary to the limitations placed upon candidates by Canon 5, the Commission staff shall immediately forward a copy of the same by e-mail or facsimile, if available, and U.S. mail to the Special Committee members and said Committee shall:

(a) seek, from the informing party and/or the subject of the information, such further information on the allegations as it deems necessary;

(b) conduct such additional investigation as the Committee may deem necessary;

(c) determine whether the allegations warrant speedy intervention and, if so, immediately issue a confidential cease-and-desist request to the candidate and/or organization or independent committee or organization believed to be engaging in unethical and/or unfair campaign practices. If the Committee determines that the unethical and/or unfair campaign practice is of a serious and damaging nature, the Committee may, in its discretion, disregard the issuance of a cease-and-desist request and immediately take action authorized by the provisions of paragraph (3)(d)(i) and (ii), hereafter described. If the allegations of the complaint do not warrant intervention, the Committee shall dismiss the same and so notify the complaining party.

(d) If a cease-and-desist request is disregarded or if the unethical or unfair campaign practices otherwise continue, the Committee is further authorized:

(i) to immediately release to all appropriate media outlets, as well as the reporting party and the person and/or organization against whom the information is submitted, a public statement setting out the violations believed to exist, or, in the case of independent persons, committees or organizations, the actions by an independent person, committee or organization which are contrary to the limitations placed upon candidates by Canon 5. In the event that the violations or actions have continued after the

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imposition of the cease and desist request, the media release shall also include a statement that the candidate and/or organization or independent person, committee or organization has failed to honor the cease-and-desist request, and

(ii) to refer the matter to the Commission on Judicial Performance or to any other appropriate regulatory or enforcement authority for such action as may be appropriate under the applicable rules.

(4) All proceedings under this Rule shall be informal and non-adversarial, and the Special Committee shall act on all requests within ten (10) days of receipt, either in person, by facsimile, by U.S. mail, or by telephone. In any event, the Special Committee shall act as soon as possible taking into consideration the exigencies of the circumstances and, as to requests received during the last ten (10) days of the campaign, shall act within thirty-six (36) hours.

(5) Except as herein specifically authorized, the proceedings of the Special Committee shall remain confidential, and in no event shall the Special Committee have the authority to institute disciplinary action against any candidate for judicial office, which power is specifically reserved to the Commission on Judicial Performance under applicable rules.

(6) The Committee shall after conclusion of the election distribute to the Commission on Judicial Performance copies of all information and all proceedings relating thereto.

(7) This Canon 5F shall apply to all candidates for judicial offices of the Supreme Court, Court of Appeals, chancery courts, circuit courts and county courts, be they incumbent judges or not, and to the families and campaign/solicitation committees of all such candidates. Persons who seek to have their name placed on the ballot as candidates for such judicial offices and the judicial candidates’ election committee chairpersons, or the chairperson’s designee, shall no later than 20 days after the qualifying date for candidates in the year in which they seek to run complete a two-hour course on campaign practices, finance, and ethics sponsored and approved by the Committee. Within ten days of completing the course, candidates shall certify to Committee that they have completed the course and understand fully the requirements of Mississippi law and the Code of Judicial Conduct concerning campaign practices for judicial office. Candidates without opposition are exempt from attending the course.

Commentary

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This Section 5F does not appear in the ABA Model Code and was added with the adoption of this Section 5. Similar provisions have been adopted for South Dakota and Georgia. See South Dakota Rules of Commission on Judicial Qualifications, Rule IV and Rules of Georgia Judicial Qualification Commission, Rule 27. In Weaver v. Bonner, 114 F. Supp. 2d 1337 (N.D. Ga. 2000), a constitutional challenge to the Georgia rule was rejected, the court saying the government may “participate in the marketplace of ideas” and “contribute its own views to those of the other speakers. Weaver at 1345, quoting Muir v. Ala. Educ. Television Comm’n, 688 F. 2d 1033, 1037 (5th Cir. 1982). In Weaver, the court also specifically found the procedures adequate to satisfy due process requirement.

Provision is made for the Special Committee to issue opinions to judicial candidates. Ordinarily, absent extraordinary circumstances or statutory authority to the contrary, when a judge or candidate, relying on the opinion of the Special Committee, acts in accordance with the opinion and the opinion is based on a full disclosure of facts and circumstances, the judge or candidate will not be subject to disciplinary or enforcement action or liability.

APPLICATION OF THE CODE OF JUDICIAL CONDUCT

A. Parties Affected. Anyone, whether or not a lawyer, who is an officer of a judicial system and who performs judicial functions, including an officer such as a magistrate, court commissioner, special master or referee, is a judge within the meaning of this Code. All judges shall comply with this Code except as provided below.

B. Part-time Judge. A part time judge shall not be subject to the restrictions and limitations of Sections 4C, 4D(2), 4F, and 4G, except as regards practice in the court in which the part-time judge serves [prohibition on practice of law], and 4H(1).

C. Special Judge. A special judge shall not, except while serving as a judge, be subject to the restrictions and limitations of Sections 4A. A special judge shall not, at any time be subject to the restrictions and limitations of Sections, 4B, 4D, 4E, 4F, 4G, and 4H. A special judge, except while serving as a special judge or while a candidate for judicial office, shall not be subject to the restrictions of Canon 5.

D. Magistrates, court commissioners, special masters and referees shall not at any time be subject to the restrictions and limitations of Sections 4A, 4B, 4C(1), 4C(2) 4D, 4E, 4F, 4G, and 4H. Magistrates, court commissioners, special masters and referees, except while a candidate for judicial office, shall not be subject to the restrictions of Canon 5.

E. Time for Compliance. A person to whom this Code becomes applicable shall comply immediately with all provisions of this Code except Sections 4D(1), 4D(2) and 4E and shall comply with those Sections as soon as reasonably possible and shall do so in any event within the period of one year.

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F. Effective Date. The separate provisions of this Code shall govern acts, events and conduct of those subject to those provisions from and after the effective date of the adoption of each such provision. Acts, events and conduct which occur prior to the adoption of each provision shall be governed by the provisions of the Code effective at the time of such acts, events and conduct.

Commentary

The ABA Model Code of Judicial Conduct provides for several non-standard categories of judges who perform duties on a limited basis, which differ from those recognized for Mississippi by this Applications Section. If serving as a fiduciary when selected as judge, a new judge may, notwithstanding the prohibitions in Section 4E, continue to serve as a fiduciary but only for that period of time necessary to avoid serious adverse consequences to the beneficiary of the fiduciary relationship and in no event longer than one year. Similarly, if engaged at the time of judicial selection in a business activity, a new judge may, notwithstanding the prohibitions in Section 4D(2), continue in that activity for a reasonable period but in no event longer than one year.

U.S. District CourtSouthern District of Mississippi (Jackson)

CIVIL DOCKET FOR CASE #: 3:12-cv-00342-TSL-MTP

Newsome v. Page Kruger & Holland, P.A. et alAssigned to: District Judge Tom S. LeeReferred to: Magistrate Judge Michael T. ParkerDemand: $5,000,000Cause: 42:1981 Civil Rights

Date Filed: 05/15/2012Jury Demand: PlaintiffNature of Suit: 440 Civil Rights: OtherJurisdiction: Federal Question

PlaintiffVogel Denise Newsome represented by Vogel Denise Newsome

Post Office Box 14731Cincinnati, OH 45250601/885-9536PRO SE

V.DefendantPage Kruger & Holland, P.A.A Mississippi Corporation

represented by William T. Siler , Jr.PHELPS DUNBAR, LLP - JacksonP. O. Box 16114Jackson, MS 39236-6114601/352-2300Fax: 601/360-9777Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

Jason T. MarshPHELPS DUNBAR, LLP - GulfportNorthCourt One, Suite 3002304 19th StreetGulfport, MS 39501228/679-1130Fax: 228-679-1131Email: [email protected] TO BE NOTICED

DefendantThomas Y. PageIn his official and Individual capacity

represented by William T. Siler , Jr.(See above for address)LEAD ATTORNEYATTORNEY TO BE NOTICED

Jason T. Marsh(See above for address)

CM/ECF LIVE - U.S. District Court: Mississippi Southern District

1 of 4 7/24/2012 9:59 AM

EXHIBIT "6"

ATTORNEY TO BE NOTICED

DefendantLouis G. Baine, IIIIn his official and Individual capacity


Jason T. Marsh(See above for address)ATTORNEY TO BE NOTICED

DefendantLinda ThomasIn her official and Individual capacity


Jason T. Marsh(See above for address)ATTORNEY TO BE NOTICED

DefendantDoes 1-100In their official and individual capacities

Date Filed # Docket Text

05/15/2012 1 COMPLAINT with JURY DEMAND against Louis G. Baine, III, Does 1-100, ThomasY. Page, Page Kruger & Holland, P.A., Linda Thomas (Filing fee $350.00 receiptnumber 34643015824), filed by Vogel Denise Newsome. (Attachments: # 1 Exhibit I-Registered Agent Information, # 2 Exhibit II-Email from Susan Carr # 3 ExhibitIII-Email from Thomas Page # 4 Exhibit IV-Hinds County Court Complaint, # 5 ExhibitV-Conflic Check # 6 Exhibit VI-Memoralizing # 7 Exhibit VII-Motion # 8-ExhibitVIII-Indictment # 9 Exhibit IX-Impeachment # 10 Exhibit X-List of Judges/Justices # 11Exhibit XI-Recusal Order # 12 Exhibit XII-Noblin Information # 13 Exhibit XIII-PhoneDirector # 14 Exhibit XIV-Duff Information # 15 Exhibit XV-Rawls Information # 16Exhibit XVI-Vlanton Information # 17 Exhibit XVII-Leggitt Information # 18 ExhibitXVIII- Government Positions # 19 Exhibit XIX-MS Defense Lawyers Assoc. # 20Exhibit XX-Computer Skills, # 21 Exhibit XXI- Google, # 22 Exhibit XXII-WebsiteInformation # 23 Exhibit XXIII - Docket Sheet # 24 Exhibit XXIV - EmergencyComplaint #25 XXV- Letters(SEC) Modified on 5/15/2012 (SEC). (Attachment 23replaced on 5/21/2012) (SEC). (Attachment 24 replaced on 5/21/2012) (SEC).(Additional attachment(s) added on 5/23/2012: # 25 Exhibit 10 part-1 photos emailcopies, # 26 Exhibit 10 PART 2 photos and email copies, # 27 Exhibit 10 -PART 3photo and email copies) (SEC). (Additional attachment(s) added on 5/23/2012: # 29Exhibit 10 Part 4 photos and email copies, # 30 Exhibit 10 Part 5 photos and emailcopies, # 31 Exhibit 10 Part 6 photos and email copies) (SEC). Modified on 5/23/2012(SEC). (Entered: 05/15/2012)


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05/15/2012 2 MOTION Conflict of Interest Information by Vogel Denise Newsome (Attachments: # 1Exhibit 1 Docket Sheet, # 2 Exhibit 2 Recusal Order, # 3 Exhibit 3 Baker Donelson ties,# 4 Exhibit 4 Baker Donelson listing, # 5 Exhibit 5 Leggitt Information, # 6 Exhibit 6PKH Phone Directory)(SEC) (Entered: 05/17/2012)

05/17/2012 3 EXHIBIT-7 Judge G Thomas Porteous (IMPEACHMENT Article(s) by Vogel DeniseNewsome Related document: 2 MOTION Conflict of Interest Information filed byPlaintiff Vogel Denise Newsome (Attachments: # 1 Exhibit 8 Filing Fee-FINAL, # 2Exhibit 9 Senator Rand Paul mailing, # 3 Exhibit 11 President Barack Obama)(SEC)(Entered: 05/17/2012)

05/17/2012 4 EXHIBIT-12 by Vogel Denise Newsome Related document: 2 MOTION Conflict ofInterest Information filed by Plaintiff Vogel Denise Newsome (Attachments: # 1 Exhibit13 Green Card)(SEC) (Entered: 05/17/2012)

07/05/2012 5 MOTION to Dismiss by Louis G. Baine, III, Thomas Y. Page, Page Kruger & Holland,P.A., Linda Thomas (Attachments: # 1 Exhibit A, May 16, 2006 E-mail)(Marsh, Jason)(Entered: 07/05/2012)

07/05/2012 6 MEMORANDUM in Support re 5 MOTION to Dismiss filed by Louis G. Baine, III,Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas (Attachments: # 1unpublished court opinion: 2008 WL 4450295, # 2 unpublished court opinion: 310FedAppx 623, # 3 unpublished court opinion: 2010 WL 3377626, # 4 unpublished courtopinion: 2010 WL 3937942, # 5 unpublished court opinion: 1996 WL 33370660, # 6unpublished court opinion: 2010 WL 1709980, # 7 unpublished court opinion: 2007 WL2746786, # 8 unpublished court opinion: 116 FedAppx 19, # 9 unpublished courtopinion: 150 FedAppx 286, # 10 unpublished court opinion: 2008 WL 5132047, # 11unpublished court opinion: 2010 WL 4617147, # 12 unpublished court opinion: 2007WL 295220, # 13 unpublished court opinion: 261 FedAppx 761)(Marsh, Jason)(Entered: 07/05/2012)

07/05/2012 7 NOTICE of Appearance by Jason T. Marsh on behalf of Louis G. Baine, III, Thomas Y.Page, Page Kruger & Holland, P.A., Linda Thomas (Marsh, Jason) (Entered:07/05/2012)

07/05/2012 8 NOTICE of Appearance by William T. Siler, Jr on behalf of Louis G. Baine, III, ThomasY. Page, Page Kruger & Holland, P.A., Linda Thomas (Siler, William) (Entered:07/05/2012)

07/06/2012 DOCKET ANNOTATION as to #6: L.U.Civ.R. 7 requires that all supporting exhibitsdocument be denominated by an exhibit letter or number and a meaningful description.Attorney is advised to follow this rule in future filings. (SEC) (Entered: 07/06/2012)

07/16/2012 9 MOTION to Stay Proceedings Pending A Ruling On Defendants' Motion To Dismiss byLouis G. Baine, III, Thomas Y. Page, Page Kruger & Holland, P.A., Linda Thomas(Attachments: # 1 Exhibit A, Court Order)(Marsh, Jason) (Entered: 07/16/2012)

07/16/2012 10 MEMORANDUM in Support re 9 MOTION to Stay Proceedings Pending A Ruling OnDefendants' Motion To Dismiss filed by Louis G. Baine, III, Thomas Y. Page, PageKruger & Holland, P.A., Linda Thomas (Attachments: # 1 Exhibit 1, unpublished courtopinion: 2008 WL 4216108)(Marsh, Jason) (Entered: 07/16/2012)

07/17/2012 11 Corporate Disclosure Statement by Page Kruger & Holland, P.A. identifying CorporateParent Page Kruger & Holland, P.A. for Page Kruger & Holland, P.A.. (Marsh, Jason)(Entered: 07/17/2012)


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07/17/2012 12 MOTION to Strike 6 Memorandum in Support of Motion,,, 5 MOTION to Dismiss,MOTION for Sanctions, MOTION for Default Judgment as to by Vogel DeniseNewsome (Attachments: # 1 Exhibit 1 Affifavit of Vogel Denise Newsome, # 2 Exhibit2 Rule 73, # 3 Exhibit 3 Declining Asssignment of Magistrate, # 4 Exhibit 4 Ruel 7-1, #5 Exhibit 5 Plummer vs Chicago Jomrneyman, # 6 Exhibit 6 WALTON vs UTILITY, # 7Exhibit 7 HEATH v BALDWIN, # 8 Exhibit 8 HOWARD vs SUNCase, # 9 Exhibit 9TRUVILLION vs KINGS DA, # 10 Exhibit 10 051606 Termination Email)(SEC)(Additional attachment(s) added on 7/18/2012: # 11 Exhibit 11 Municipal Government,# 12 Exhibit 12 Motion Docket, # 13 Exhibit 13 Callahan vs Bancorpsouth, # 14 Exhibit14 Phelps Dunbar & Baker donelson, # 15 Exhibit 15 Hambrick vs. Bear Stear, # 16Exhibit 16 Walker vs Epps, # 17 Exhibit 17 Docket Sheet, # 18 Exhibit 18 Gates vsSpinks, # 19 Exhibit 19 Boykin vs Georgia Pacific, # 20 Exhibit 20 Garner vs. AshleyFurniture, # 21 Exhibit 21 Payne vs Travenol, # 22 Exhibit 22 Notice of Appearance, #23 Exhibit 23 Waiver, # 24 Exhibit 24 Waiver, # 25 Exhibit 25 Waiver, # 26 Exhibit 26Waiver, # 27 Exhibit 27 Phelps Dunbar & Page Kruger, # 28 Exhibit 28 Docket Sheet, #29 Exhibit 29 Judge Tom S. Lee Recusal Order) (SEC). Modified on 7/18/2012 (SEC).(Additional attachment(s) added on 7/18/2012: # 30 Exhibit 30 Alexander vs EasyFinance, # 31 Exhibit 31 Mississippi Bar Directory, # 32 Exhibit 32 28-455, # 33 Exhibit33 28-144 disqualification, # 34 Exhibit 34 Construction, # 35 Errata 35 SafeguardLitigant, # 36 Errata 36 Disqualification, # 37 Exhibit 37 Disqualification, # 38 Exhibit38 Disqualification, # 39 Exhibit 39 Conduct or Bias, # 40 Exhibit 40 Fax, # 41 Exhibit41 Liddell vs Northrop, # 42 Errata 42 Phelps Dunbar-Marsh letter) (SEC). Modified filedate on 7/18/2012 (SEC). (Entered: 07/18/2012)

07/17/2012 13 WAIVER OF SERVICE Returned Executed by Vogel Denise Newsome. Louis G.Baine, III waiver sent on 6/6/2012, answer due 8/6/2012; Thomas Y. Page waiver senton 6/6/2012, answer due 8/6/2012; Page Kruger & Holland, P.A. waiver sent on6/6/2012, answer due 8/6/2012; Linda Thomas waiver sent on 6/6/2012, answer due8/6/2012. (SEC) (Entered: 07/18/2012)

07/17/2012 14 REQUEST FOR WAIVER of Service sent to Louis G. Baine III, Page Kruger &Holland, Thomas Y. Page, Linda Thomas on 6/8/12 by Vogel Denise Newsome.(Attachments: # 1 Wavier, # 2 Waiver, # 3 Waiver)(SEC) (Entered: 07/18/2012)

07/17/2012 15 Letter from Vogel Denise Newsome (SEC) (Entered: 07/18/2012)


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RULE 73. MAGISTRATE JUDGES: TRIAL BY CONSENT;

APPEAL

(a) TRIAL BY CONSENT. When authorized under 28 U.S.C. §636(c), a magistrate judge may, ifall parties consent, conduct a civil action or proceeding, including a jury or nonjury trial.A record must be made in accordance with 28 U.S.C. §636(c)(5).

(b) CONSENT PROCEDURE.

(1) In General. When a magistrate judge has been designated to conduct civil actionsor proceedings, the clerk must give the parties written notice of their opportunity toconsent under 28 U.S.C. §636(c). To signify their consent, the parties must jointly orseparately file a statement consenting to the referral. A district judge or magistratejudge may be informed of a party's response to the clerk's notice only if all partieshave consented to the referral.

(2) Reminding the Parties About Consenting. A district judge, magistrate judge, orother court official may remind the parties of the magistrate judge's availability, butmust also advise them that they are free to withhold consent without adversesubstantive consequences.

(3) Vacating a Referral. On its own for good cause—or when a party showsextraordinary circumstances—the district judge may vacate a referral to a magistratejudge under this rule.

(c) APPEALING A JUDGMENT. In accordance with 28 U.S.C. §636(c)(3), an appeal from ajudgment entered at a magistrate judge's direction may be taken to the court of appealsas would any other appeal from a district-court judgment.

NOTES

(As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Mar. 2, 1987, eff. Aug. 1, 1987;Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 30, 2007, eff.Dec. 1, 2007.)

NOTES OF ADVISORY COMMITTEE ON RULES—1983

Subdivision (a). This subdivision implements the broad authority of the 1979amendments to the Magistrates Act, 28 U.S.C. §636(c), which permit a magistrate to sitin lieu of a district judge and exercise civil jurisdiction over a case, when the partiesconsent. See McCabe, The Federal Magistrate Act of 1979, 16 Harv. J. Legis. 343, 364–79(1979). In order to exercise this jurisdiction, a magistrate must be specially designatedunder 28 U.S.C. §636(c)(1) by the district court or courts he serves. The only exception toa magistrate's exercise of civil jurisdiction, which includes the power to conduct jury andnonjury trials and decide dispositive motions, is the contempt power. A hearing oncontempt is to be conducted by the district judge upon certification of the facts and anorder to show cause by the magistrate. See 28 U.S.C. §639(e). In view of 28 U.S.C.§636(c)(1) and this rule, it is unnecessary to amend Rule 58 to provide that the decisionof a magistrate is a “decision by the court” for the purposes of that rule and a “finaldecision of the district court” for purposes of 28 U.S.C. §1291 governing appeals.

Subdivision (b). This subdivision implements the blind consent provision of 28 U.S.C.§636(c)(2) and is designed to ensure that neither the judge nor the magistrate attemptsto induce a party to consent to reference of a civil matter under this rule to a magistrate.See House Rep. No. 96–444, 96th Cong. 1st Sess. 8 (1979).

The rule opts for a uniform approach in implementing the consent provision bydirecting the clerk to notify the parties of their opportunity to elect to proceed before amagistrate and by requiring the execution and filing of a consent form or forms settingforth the election. However, flexibility at the local level is preserved in that local rules willdetermine how notice shall be communicated to the parties and local rules will specify

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EXHIBIT "8"

determine how notice shall be communicated to the parties, and local rules will specifythe time period within which an election must be made.

The last paragraph of subdivision (b) reiterates the provision in 28 U.S.C. §636(c)(6) forvacating a reference to the magistrate.

Subdivision (c). Under 28 U.S.C. §636(c)(3), the normal route of appeal from thejudgment of a magistrate—the only route that will be available unless the partiesotherwise agree in advance—is an appeal by the aggrieved party “directly to theappropriate United States court of appeals from the judgment of the magistrate in thesame manner as an appeal from any other judgment of a district court.” The quotedstatutory language indicates Congress’ intent that the same procedures and standards ofappealability that govern appeals from district court judgments govern appeals frommagistrates’ judgments.

Subdivision (d). 28 U.S.C. §636(c)(4) offers parties who consent to the exercise of civiljurisdiction by a magistrate an alternative appeal route to that provided in subdivision (c)of this rule. This optional appellate route was provided by Congress in recognition of thefact that not all civil cases warrant the same appellate treatment. In cases where theamount in controversy is not great and there are no difficult questions of law to beresolved, the parties may desire to avoid the expense and delay of appeal to the court ofappeals by electing an appeal to the district judge. See McCabe, The Federal MagistrateAct of 1979, 16 Harv. J. Legis. 343, 388 (1979). This subdivision provides that the partiesmay elect the optional appeal route at the time of reference to a magistrate. To this end,the notice by the clerk under subdivision (b) of this rule shall explain the appeal optionand the corollary restriction on review by the court of appeals. This approach will avoidlater claims of lack of consent to the avenue of appeal. The choice of the alternativeappeal route to the judge of the district court should be made by the parties in theirforms of consent. Special appellate rules to govern appeals from a magistrate to adistrict judge appear in new Rules 74 through 76.

NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENT

The amendment is technical. No substantive change is intended.


This revision is made to conform the rule to changes made by the JudicialImprovements Act of 1990. The Act requires that, when being reminded of the availabilityof a magistrate judge, the parties be advised that withholding of consent will have no“adverse substantive consequences.” They may, however, be advised if the withholding ofconsent will have the adverse procedural consequence of a potential delay in trial.


The Federal Courts Improvement Act of 1996 repealed the former provisions of 28U.S.C. §636(c)(4) and (5) that enabled parties that had agreed to trial before a magistratejudge to agree also that appeal should be taken to the district court. Rule 73 is amendedto conform to this change. Rules 74, 75, and 76 are abrogated for the same reason. Theportions of Form 33 and Form 34 that referred to appeals to the district court also aredeleted.

COMMITTEE NOTES ON RULES—2007 AMENDMENT

The language of Rule 73 has been amended as part of the general restyling of the CivilRules to make them more easily understood and to make style and terminologyconsistent throughout the rules. These changes are intended to be stylistic only.

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MISSISSIPPI RULES OF PROFESSIONAL CONDUCT

Table of Rules

Preamble.

Scope.

Terminology.

CLIENT-LAWYER RELATIONSHIP

1.1 Competence.

1.2 Scope of Representation.

1.3 Diligence.

1.4 Communication.

1.5 Fees.

1.6 Confidentiality of Information.

1.7 Conflict of Interest: General Rule.

1.8 Conflict of Interests: Prohibited Transactions.

1.9 Conflict of Interest: Former Client.

1.10 Imputed Disqualification: General Rule.

1.11 Successive Government and Private Employment.

1.12 Former Judge or Arbitrator.

1.13 Organization as Client.

EXHIBIT "10"

1.14 Client Under a Disability.

1.15 Safekeeping Property. Mississippi IOLTA Program Notice of Election.

1.16 Declining or Terminating Representation.

1.17 Sale of Law Practice.

COUNSELOR

2.1 Advisor.

2.2 Intermediary.

2.3 Evaluation for Use by Third Persons.

ADVOCATE

3.1 Meritorious Claims and Contentions.

3.2 Expediting Litigation.

3.3 Candor Toward the Tribunal.

3.4 Fairness to Opposing Party and Counsel.

3.5 Impartiality and Decorum of the Tribunal.

3.6 Trial Publicity.

3.7 Lawyer as Witness.

3.8 Special Responsibilities of a Prosecutor.

3.9 Advocate in Nonadjudicative Proceedings.

TRANSACTIONS WITH PERSON OTHER THAN CLIENTS

4.1 Truthfulness in Statements to Others.

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4.2 Communication With Person Represented by Counsel.

4.3 Dealing with Unrepresented Person.

4.4 Respect for Rights of Third Persons.

LAW FIRMS AND ASSOCIATIONS

5.1 Responsibilities of a Partner or Supervisory Lawyer.

5.2 Responsibilities of a Subordinate Lawyer.

5.3 Responsibilities Regarding Non-Lawyer Assistants.

5.4 Professional Independence of a Lawyer.

5.5 Unauthorized Practice of Law.

5.6 Restrictions on Right to Practice.

PUBLIC SERVICE

6.1 Voluntary Pro Bono Public Service.

6.2 Accepting Appointments.

6.3 Membership in Legal Services Organization.

6.4 Law Reform Activities Affecting Client Interests.

INFORMATION ABOUT LEGAL SERVICES

7.1 Communications Concerning a Lawyer’s Services.

7.2 Advertising.

7.3 Direct Contact With Prospective Clients.

7.4 Legal Service Information.

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7.5 Submission of Advertisements.

7.6 Communication of Certificate or Designation.

7.7 Firm Names and Letterheads.

MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1 Bar Admission and Disciplinary Matters.

8.2 Judicial and Legal Officials.

8.3 Reporting Professional Misconduct.

8.4 Misconduct.

8.5 Jurisdiction.

MISSISSIPPI RULES OF PROFESSIONAL CONDUCT

Effective July 1, 1987

PREAMBLE: A LAWYER'S RESPONSIBILITIES

A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client's legal affairs and reporting about them to the client or to others.

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In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. See Rule 8.4.

In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.

A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.

As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients; employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civil influence to ensure equal access to our system of justice for all those who, because of economic or social barriers, cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should

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strive to attain the highest level of skill to improve the law and the legal profession and to exemplify the legal profession's ideals of public service.

A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.

In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an upright person while earning a satisfactory living. The Rules of Professional Conduct prescribe terms for resolving such conflicts. Within the framework of these Rules many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation to zealously protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system.

The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.

To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.

The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these

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responsibilities compromises the independence of the profession and the public interest which it serves.

Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.

[Amended effective November 3, 2005 to address lawyers’ responsibilities as arbitrators, mediators and other third party neutrals and to emphasize lawyers’ responsibilities to promote public understanding of the rule of law and promoting equal access to the legal system.]

SCOPE

The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may," are permissive and define areas under the Rules in which the lawyer has professional discretion. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer's professional role. Many of the Comments use the term "should." Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules.

The Rules presuppose a larger legal context shaping the lawyer’s role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. The Comments are sometimes used to alert lawyers to their responsibilities under such other law. Compliance with the Rules, as with all laws in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.

Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only

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after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.

Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in the private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state’s attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intra governmental legal controversies where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority.

Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.

Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.

Moreover, these Rules are not intended to govern or affect judicial application of either the attorney-client or work product privilege. Those privileges were developed to

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promote compliance with law and fairness in litigation. In reliance on the attorney-client privilege, clients are entitled to expect that communications within the scope of the privilege will be protected against compelled disclosure. The attorney-client privilege is that of the client and not of the lawyer. The fact that in exceptional situations the lawyer under the Rules has a limited discretion to disclose a client confidence does not vitiate the proposition that, as a general matter, the client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled only in accordance with recognized exceptions to the attorney-client and work product privileges.

The lawyer's exercise of discretion not to disclose information under Rule 1.6 should not be subject to reexamination. Permitting such reexamination would be incompatible with the general policy of promoting compliance with law through assurances that communications will be protected against disclosure.

The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. The Preamble and this note on Scope provide general orientation. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative. Research notes were prepared to compare counterparts in the Mississippi Code of Professional Responsibility (adopted 1971, as amended) and to provide selected references to other authorities. The notes have not been adopted, do not constitute part of the Rules and are not intended to affect the application or interpretation of the Rules and Comments.

[Amended effective November 3, 2005 to make technical changes in text.]

TERMINOLOGY

"Belief" or "Believes" denotes that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances.

“Confirmed in writing,” when used in reference to the informed consent of a person denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.

"Consult" or "Consultation" denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.

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“Firm” or “law firm” denotes a lawyer or lawyers in a partnership, professional corporation, professional association, professional limited liability company, sole proprietorship, governmental agency, or other association whose members are authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.

"Fraud" or "Fraudulent" denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.

“Informed consent” denotes voluntary acceptance and agreement by a person of a proposed course of conduct after adequate information has been imparted to the person that allows the person to arrive at a decision.

"Knowingly," "Known," or "Knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.

“Partner” denotes the member of a partnership, a shareholder in a law firm organized as a professional corporation, professional association, or a member of a professional limited liability company or an entity whose members are authorized to practice law.

"Reasonable" or "Reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.

"Reasonable belief" or "Reasonably believes" when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.

"Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.

“Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.

"Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty importance.

“Writing” or “written” denotes a tangible or electronic record of a communication or

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representation, including handwriting, typewriting, printing, photostating, photography, audio or video recording, and e-mail. A “signed” writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

[Amended effective November 3, 2005 to add definitions for “confirmed in writing,” “informed consent,” “knowingly, known, or knows,” “screened,” and “writing or written.” At that time the definitions for “firm or law firm” and “partner” were modified.]

CLIENT-LAWYER RELATIONSHIP

RULE 1.1 COMPETENCE

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Comment

Legal Knowledge and Skill. In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.

A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.

In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or

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association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill considered action under emergency conditions can jeopardize the client’s interest.

A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person. See also Rule 6.2.

Thoroughness and Preparation. Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequence.

Maintaining Competence. To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education. If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances.

Code Comparison

DR 6-101(A)(1) provides that a lawyer shall not handle a matter “which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.” DR 6-101(A)(2) requires “preparation adequate in the circumstances”; Rule 1.1 more fully particularizes the elements of competence.

RULE 1.2 SCOPE OF REPRESENTATION

(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case, a lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

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(c) A lawyer may limit the objectives of the representation if the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that a lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

(e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

[Amended effective November 3, 2005]

Comment

Scope of Representation. Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. At the same time, a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Law defining the lawyer’s scope of authority in litigation varies among jurisdictions.

In a case in which the client appears to be suffering mental disability, the lawyer’s duty to abide by the client’s decisions is to be guided by reference to Rule 1.14.

Independence from Client’s Views or Activities. Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client’s views or activities.

Services Limited in Objectives or Means. The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. For example, a retainer may be for a specifically defined purpose. Representation provided through a legal aid agency may

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be subject to limitations on the types of cases the agency handles. When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage. The terms upon which representation is undertaken may exclude specific objectives or means that the lawyer regards as imprudent.

An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law. Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.1, or to surrender the right to terminate the lawyer’s services or the right to settle litigation that the lawyer might wish to continue.

Criminal, Fraudulent and Prohibited Transactions. A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client’s conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not knowingly assist a client in criminal or fraudulent conduct. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

When the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is not permitted to reveal the client’s wrongdoing, except where permitted by Rule 1.6. However, the lawyer is required to avoid furthering the purpose, for example, by suggesting how it might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper, but then discovers is criminal or fraudulent. Withdrawal from the representation, therefore, may be required.

Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.

Paragraph (d) applies whether or not the defrauded party is a party to the transaction. Hence, a lawyer should not participate in a sham transaction; for example, a transaction to effectuate criminal or fraudulent escape of tax liability. Paragraph (d) does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. The last clause of paragraph (d) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities.

Code Comparison

Rule 1.2(a) has no counterpart in the Disciplinary Rules of the Code. EC 7-7 states

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that “In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client. . . .” EC 7-8 states that “In the final analysis, however, the . . . decision whether to forego legally available objectives or methods because of nonlegal factors is ultimately for the client. . . . In the event that the client in a nonadjudicatory matter insists upon a course of conduct that is contrary to the judgment and advice of the lawyer but not prohibited by Disciplinary Rules, the lawyer may withdraw from the employment.” DR 7-101(A)(1) provides that “A lawyer shall not intentionally . . . fail to seek the lawful objections of his client through reasonable available means permitted by law. . . . A lawyer does not violate this Disciplinary Rule, however, by . . . avoiding offensive tactics. . . .”

Rule 1.2(b) has no counterpart in the Code.

Rule 1.2(c) has no counterpart in the Code.

With regard to paragraph (d), DR 7-102(A)(7) provides that a lawyer shall not “counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.” DR 7-102(A)(6) provides that a lawyer shall not “participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.” DR 7-106 provides that “A lawyer shall not . . . advise his client to disregard a standing rule of a tribunal . . . but he may take appropriate steps in good faith to test the validity of such rule or ruling.” EC 7-5 states that “A lawyer should never encourage or aid his client to commit criminal acts or counsel his client on how to violate the law and avoid punishment therefor.”

With regard to Rule 1.2(e), DR 2-110(C)(1)(c) provides that a lawyer may withdraw from representation if a client “insists” that the lawyer engage in “conduct that is illegal or that is prohibited under the Disciplinary Rules.” DR 9-101(C) provides that “a lawyer shall not state or imply that he is able to influence improperly . . . any tribunal, legislative body or public official.”

See also MSB Ethics Opinion No. 92.

RULE 1.3 DILIGENCE

A lawyer shall act with reasonable diligence and promptness in representing a client.

Comment

A lawyer should pursue a matter on behalf of a client despite opposition, obstruction

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or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. However, a lawyer is not bound to press for every advantage that might be realized for a client. A lawyer has professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. A lawyer’s workload should be controlled so that each matter can be handled adequately.

Perhaps no professional shortcoming is more widely resented than procrastination. A client’s interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client’s legal position may be destroyed. Even when the client’s interests are not affected in substances, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness.

Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client but has not been specifically instructed concerning pursuit of an appeal, the lawyer should advise the client of the possibility of appeal before relinquishing responsibility for the matter.

Code Comparison

DR 6-101(A)(3) requires that a lawyer not “neglect a legal matter entrusted to him.” EC 6-4 states that a lawyer should “give appropriate attention to his legal work.” Canon 7 states that “a lawyer should represent a client zealously within the bounds of the law.” DR 7-101(A)(1) provides that “a lawyer shall not intentionally . . . fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules. . . .” DR 7-101(A)(3) provides that “a lawyer shall not intentionally . . . prejudice or damage his client during the course of the professional relationship. . . .”

RULE 1.4 COMMUNICATION

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(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Comment

The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. For example, a lawyer negotiating on behalf of a client should provide the client with facts relevant to the matter, inform the client of communications from another party and take other reasonable steps that permit the client to make a decision regarding a serious offer from another party. A lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case should promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable. See Rule 1.2(a). Even when a client delegates authority to the lawyer, the client should be kept advised of the status of the matter.

Adequacy of communication depends in part on the kind of advice or assistance involved. For example, in negotiations where there is time to explain a proposal, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that might injury or coerce others. On the other hand, a lawyer ordinarily cannot be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation.

Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from mental disability. See Rule 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client. Practical exigency may also require a lawyer to act for a client without prior consultation.

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Withholding Information. In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer’s own interest or convenience. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.

Code Comparison

This Rule has no direct counterpart in the Disciplinary Rules of the Code. DR 6-101(A)(3) provides that a lawyer shall not “neglect a legal matter entrusted to him.” DR 9-102(B)(1) provides that a lawyer “shall promptly notify a client of the receipt of his funds, securities, or other properties.” EC 7-8 states that “a lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations.” EC 9-2 states that “a lawyer should fully and promptly inform his client of material developments in the matters being handled for the client.”

RULE 1.5 FEES

(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

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(8) whether the fee is fixed or contingent.

(b) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or

(2) a contingent fee for representing a defendant in a criminal case.

(e) A division of fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;

(2) the client is advised of and does not object to the participation of all the lawyers involved; and

(3) the total fee is reasonable.

Comment

Basis or Rate of Fee. When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee. In a

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new client-lawyer relationship, however, an understanding as to the fee should be promptly established. It is not necessary to recite all the factors that that underlie the basis of the fee, but only those that are directly involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an estimated amount, or to identify the factors that may be taken into account in finally fixing the fee. When developments occur during the representation that render an earlier estimate substantially inaccurate, a revised estimate should be provided to the client. A written statement concerning the fee reduces the possibility of a misunderstanding. Furnishing the client with a simple memorandum or a copy of the lawyer’s customary fee schedule is sufficient if the basis or rate of the fee is set forth.

Terms of Payment. A lawyer may require advance payment of a fee, but is obliged to return any unearned portion. See Rule 1.16(d). A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(j). However, a fee paid in property instead of money may be subject to special scrutiny because it involves questions concerning both the value of the services and the lawyer’s special knowledge of the value of the property.

An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in such a way contrary to the client’s interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services will probably be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client’s ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures. When there is doubt whether a contingent fee is consistent with the client’s best interest, the lawyer should offer the client alternative bases for the fee and explain their implications. Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage.

Paragraph (d)(1) does not prohibit a contingent fee agreement for the collection of past due alimony or support. See MSB Ethics Opinion No. 88.

Division of Fee. A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist. Paragraph (e) permits the lawyers to divide a fee on either the basis of

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the proportion of services they render or by agreement between the participating lawyers if all assume responsibility for the representation as a whole and the client is advised and does not object. It does not require disclosure to the client of the share that each lawyer is to receive. Joint responsibility for the representation entails the obligations stated in Rule 5.1 for purposes of the matter involved.

Disputes Over Fee. If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by the bar, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer’s fee, for example, in representation of an executor or administrator, a class or a person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply with the prescribed procedure.

Code Comparison

DR 2-106(A) provides that “A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.” DR 2-106(B) provides that “A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.” DR 2-106(B) further provides that “Factors to be considered . . . in determining . . . reasonableness . . . include . . .: (1) The time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly. (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. (3) The fee customarily charged in the locality for similar services. (4) The amount involved and the results obtained. (5) The time limitations imposed by the client or by the circumstances. (6) The nature and length of the professional relationship with the client. (7) The experience, reputation, and ability of the lawyer or lawyers performing the services. (8) Whether the fee is fixed or contingent.” The Rule includes the factor of ability to pay; a person of ample means may justly be charged more for a service, and a person of limited means less, other factors being the same. EC 2-17 states that “A lawyer should not charge more than a reasonable fee. . . .”

There is no counterpart to Rule 1.5(b) in the Disciplinary Rules of the Code. EC 2-19 states that “It is usually beneficial to reduce to writing the understanding of the parties concerning the fee, particularly when it is contingent.”

With regard to Rule 1.5(c), DR 2-106(C) prohibits “a contingent fee in a criminal case.”

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With regard to Rule 1.5(d), DR2-107(A) permits division of fees only if: “(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made. (2) The division is in proportion to the services performed and responsibility assumed by each. (3) The total fee does not exceed clearly reasonable compensation. . . .” Rule 1.5(d) permits division without regard to the services rendered by each lawyer if they assume joint responsibility for the representation.

See also MSB Ethics Opinion Nos. 40, 59, 88, 91, 92 and 100.

RULE 1.6 CONFIDENTIALITY OF INFORMATION

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

(4) to secure legal advice about the lawyer’s compliance with these rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

(6) to comply with other law or a court order.

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(c) A lawyer who participates in an intervention on a lawyer, judge or law student by the Lawyers and Judges Assistance Committee shall not reveal any information learned through the intervention from or relating to the lawyer, judge or law student on whom the intervention is conducted except as may be permitted by the Rules of Discipline of the Mississippi Bar or requlired by law or court order.

(d) A lawyer shall reveal information to the Lawyers and Judges Assistance Committee in accordance with approved monitoring procedures of the Lawyers and Judges Assistance Committee relating to the status of compliance of a lawyer, judge or law student with the terms and conditions imposed upon the lawyer, judge or law student by the Lawyers and Judges Assistance Committee.

(e) A lawyer may reveal such information to the extent required by law or court order.

[Amended June 23, 1994; amended April 18, 2002; amended effective November 3 , 2005 to add circumstances under which disclosure of otherwise confidential information is permitted.]

Comment

The lawyer is part of a judicial system charged with upholding the law. One of the lawyer’s functions is to advise clients so that they avoid any violation of the law in the proper exercise of their rights.

The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only facilitates the full development of facts essential to proper representation of the client but also encourages people to seek early legal assistance.

A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. See Terminology for definition of “informed consent.” This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.

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The principle of client-lawyer confidentiality is given effect by related bodies of law,: the attorney-client privilege the work product doctrine, and the rule of confidentiality established in professional ethics. The attorney-client privilege and the work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever the source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope.

The requirement of maintaining confidentiality of information relating to representation applies to government lawyers who may disagree with the policy goals that their representation is designed to advance.

Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

Authorized Disclosure. Except to the extent that the client’s instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter.

Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.

Disclosure Adverse to Client. Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that

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a client has accidentally discharged toxic waste into a town’s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims.

Paragraph (b)(2) is a limited exception to the rule of confidentiality that permits the lawyer to reveal information to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime or fraud, as defined in the Terminology section, that is reasonably certain to result in substantial injury to the financial or property interest of another and in furtherance of which the client has used or is using that lawyer’s services. Such a serious abuse of the client-lawyer relationship by the client forfeits the protection of this rule. The client can, of course, prevent such disclosure by refraining from the wrongful conduct. Although paragraph (b)(2) does not require the lawyer to reveal the client’s misconduct, the lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent. Ree Rule 1.2(d). See also Rule 1.16 with respect to the lawyer’s obligation or right to withdraw from the representation of the client in such circumstances.

Paragraph (b)(3) addresses the situation in which the lawyer does not learn of the client’s crime or fraud until after it has been consummated. Although the client no longer has the option of preventing disclosure by refraining from the wrongful conduct, there will be situations in which the loss suffered by the affected person can be prevented, rectified or mitigated. In such situations, the lawyer may disclose information related to the representation to the extent necessary to enable the affected persons to prevent or mitigate reasonably certain losses or to attempt to recoup their losses. Paragraph (b)(3) does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense.

A lawyer’s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer’s personal responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure because of the importance of a lawyer’s compliance with the Rules of Professional Conduct.

A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the services rendered in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.

Withdrawal. If the lawyer’s services will be used by the client in materially

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furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16(a)(1).

After withdrawal the lawyer is required to refrain from making disclosure of the clients’ confidences, except as otherwise provided in Rule 1.6. Neither this rule nor Rule 1.8(b) nor Rule 1.16(d) prevents the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the like.

Where the client is an organization, the lawyer may be in doubt whether contemplated conduct will actually be carried out by the organization. Where necessary to guide conduct in connection with this Rule, the lawyer may make inquiry within the organization as indicated in Rule 1.13(b).

Dispute Concerning Lawyer’s Conduct. Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client’s conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent that lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer’s right to respond arises when an assertion of such complicity has been made. Paragraph (b)(2)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced. Where practicable and not prejudicial to the lawyer’s ability to establish the defense, the lawyer should advise the client of the third party’s assertion and request that the client respond appropriately. In any event, disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence.

As stated above, the lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of disclosure.

Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If,

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however, the other law supersedes this rule and requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are necessary to comply with the law.

A lawyer may be ordered to reveal information, relating to the representation of a client, by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply with the court’s order.

Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other person having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.

Paragraph (b) permits but does not require the disclosure of information relating to a client’s representation to accomplish the purposes specified in paragraphs (b)(1) through (b)(6). In exercising the discretion conferred by this rule, the lawyer may consider such factors as the nature of the lawyer’s relationship with the client and with those who might be injured by the client, the lawyer’s own involvement in the transaction and factors that may extenuate the conduct in question. A lawyer’s decision not to disclose as permitted by paragraph (b) does not violate this rule. Disclosure may be required, however, by other rules. Some rules require disclosure only if such disclosure would be permitted by paragraph (b). See Rules 4,1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this rule.

Acting Competently to Preserve Confidentiality. A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See rules 1.1, 5.1 and 5.3.

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When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this rule.

Disclosures Otherwise Required or Authorized. The attorney-client privilege is differently defined in various jurisdictions. If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, Rule 1.6(a) requires the lawyer to invoke the privilege when it is applicable. The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.

The Rules of Professional Conduct in various circumstances permit or require a lawyer to disclose information relating to the representation. See Rules 2.2, 2.3, 3.3 and 4.1. In addition to these provisions, a lawyer may be obligated or permitted by other provisions of the law to give information about a client. Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these Rules, but a presumption should exist against such a supersession.

Former Client. The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9.

[Amended June 23, 1994; amended effective November 3, 2005.]

RULE 1.7 CONFLICT OF INTEREST: GENERAL RULE

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes:

(1) the representation will not adversely affect the relationship with the other client; and

(2) each client has given knowing and informed consent after consultation.

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The consultation shall include explanation of the implications of the adverse representation and the advantages and risks involved.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless the lawyer reasonably believes:

(1) the representation will not be adversely affected; and

(2) the client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the representation and the advantages and risks involved.

Comment

Loyalty to a Client. Loyalty is an essential element in the lawyer's relationship to a client. An impermissible conflict of interest may exist before representation is undertaken, in which event the representation should be declined. If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation. See Rule 1.16. Where more than one client is involved and the lawyer withdraws because a conflict arises after representation, whether the lawyer may continue to represent any of the clients is determined by Rule 1.9. See also Rule 2.2(c). As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment to Rule 1.3 and Scope.

As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client without that client's consent. Paragraph (a) expresses that general rule. Thus, a lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises, does not require consent of the respective clients. Paragraph (a) applies only when the representation of one client would be directly adverse to the other.

Loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client. Paragraph (b) addresses such situations. A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the

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lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Consideration should be given to whether the client wishes to accommodate the other interest involved.

Consultation and Consent. In some cases a client may consent to representation notwithstanding a conflict. However, as indicated in paragraph (a)(1) with respect to representation directly adverse to a client, and paragraph (b)(1) with respect to material limitations on representation of a client, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent. When more than one client is involved, the question of conflict must be resolved as to each client. Moreover, there may be circumstances where it is impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent.

Lawyer's Interests. The lawyer's own interests should not be permitted to have an adverse effect on representation of a client. For example, a lawyer's need for income should not lead the lawyer to undertake matters that cannot be handled competently and at reasonable fee. See Rules 1.1 and 1.5. If the probity of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. A lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed interest.

Conflicts in Litigation. Paragraph (a) prohibits representation of opposing parties in litigation, including both parties to a divorce action. See MSB Ethics Opinion No. 80. Simultaneous representation of parties whose interests in litigation may conflict, such as co-plaintiffs or co-defendants, is governed by paragraph (b). An impermissible conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant. On the other hand, common representation of persons having similar interests is proper if the risk of adverse effect is minimal and the requirements of paragraph (b) are met. Compare Rule 2.2 involving intermediation between clients.

Ordinarily, a lawyer may not act as advocate against a client the lawyer represents in

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some other matter, even if the other matter is wholly unrelated. However, there are circumstances in which a lawyer may act as advocate against a client. For example, a lawyer representing an enterprise with diverse operations may accept employment as an advocate against the enterprise in an unrelated matter if doing so will not adversely affect the lawyer's relationship with the enterprise or conduct of the suit and if both clients consent upon consultation. By the same token, government lawyers in some circumstances may represent government employees in proceedings in which a government agency is the opposing party. The propriety of concurrent representation can depend on the nature of the litigation. For example, a suit charging fraud entails conflict to a degree not involved in a suit for a declaratory judgment concerning statutory interpretation.

A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different cases, unless representation of either client would be adversely affected. Thus, it is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court.

Interest of Person Paying for a Lawyer's Service. A lawyer may be paid from a source other than the client, if the client is informed of the fact and consents and the arrangement does not compromise the lawyer's duty of loyalty to the client. See Rule 1.8(f). For example, when an insurer and its insured have conflicting interests in a matter arising from a liability insurance agreement, and the insurer is required to provide special counsel for the insured, the arrangement should assure the special counsel's professional independence. So also, when a corporation and its directors or employees are involved in a controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of the directors or employees, if the clients consent after consultation and the arrangement ensures the lawyer's professional independence.

Other Conflict Situations. Conflicts of interest in contexts other than litigation sometimes may be difficult to assess. Relevant factors in determining whether there is potential for adverse effect include the duration and intimacy of the lawyer's relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that actual conflict will arise and the likely prejudice to the client from the conflict if it does arise. The question is often one of proximity and degree.

For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference of interest among them.

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Conflict questions may also arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and depending upon the circumstances, a conflict of interest may arise. In estate administration the identity of the client may be unclear under the law of a particular jurisdiction. Under one view, the client is the fiduciary; under another view the client is the estate or trust, including its beneficiaries. The lawyer should make clear the relationship to the parties involved.

A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the two roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer's resignation from the board and the possibility of the corporation's obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer's independence of professional judgment, the lawyer should not serve as a director.

Conflict Charged by an Opposing Party. Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation. In litigation, a court may raise the question when there is reason to infer that the lawyer has neglected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment. See Scope.

Code Comparison

DR 5-101(A) provides that "Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of the client will be or reasonably may be affected by his own financial, business, property, or personal interests." DR 5-105(A) provides that "A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C)." DR 5-105(C) provides that "In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each." DR 5-107(B) provides that "A lawyer shall not

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permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such services."

Rule 1.7 goes beyond DR 5-105(A) in requiring that, when the lawyer's other interests are involved, not only must the client consent after consultation but also that, independent of such consent, the representation reasonably appears not to be adversely affected by the lawyer's other interests. This requirement appears to be the intended meaning of the provision in DR 5-105(C) that "it is obvious that he can adequately represent" the client, and is implicit in EC 5-2, which states that "A lawyer should not accept proffered employment if his personal interests or desires will, or there is a reasonable possibility that they will, adversely affect the advice to be given or services to be rendered the prospective client."

See MSB Ethics Opinions Nos. 43, 46, 52, 55, 58, 61, 63, 68, 80, 87, 99 and 103.

RULE 1.8 CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or pecuniary interest adverse to a client unless:

(1) the transaction and terms on which the lawyer acquires the interests are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client;

(2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and

(3) the client consents in writing thereto.

(b) A lawyer shall not use information relating to representation of a client

(1) to the disadvantage of the client, or

(2) to the advantage of himself or a third person, unless the client consents after consultation.

(c) A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.

(d) Prior to the conclusion or representation of a client, a lawyer shall not make or

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negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, or administrative proceedings, except that:

1. A lawyer may advance court costs and expenses of litigation, including but not limited to reasonable medical expenses necessary to the preparation of the litigation for hearing or trial, the repayment of which may be contingent on the outcome of the matter; and

2. A lawyer representing a client may, in addition to the above, advance the following costs and expenses on behalf of the client, which shall be repaid upon successful conclusion of the matter.

a. Reasonable and necessary medical expenses associated with treatment for the injury giving rise to the litigation or administrative proceeding for which the client seeks legal representation; and

b. Reasonable and necessary living expenses incurred.

The expenses enumerated in paragraph 2 above can only be advanced to a client under dire and necessitous circumstances, and shall be limited to minimal living expenses of minor sums such as those necessary to prevent foreclosure or repossession or for necessary medical treatment. There can be no payment of expenses under paragraph 2 until the expiration of 60 days after the client has signed a contract of employment with counsel. Such payments under paragraph 2 cannot include a promise of future payments, and counsel cannot promise any such payments in any type of communication to the public, and such funds may only be advanced after due diligence and inquiry into the circumstances of the client.

Payments under paragraph 2 shall be limited to $1,500 to any one party by any lawyer or group or succession of lawyers during the continuation of any litigation unless, upon ex parte application, such further payment has been approved by the Standing Committee on Ethics of the Mississippi Bar. An attorney contemplating such payment must exercise due diligence to determine whether such party has received any such payments from another attorney during the continuation of the same litigation, and, if so, the total of such payments, without approval of the Standing Committee on Ethics shall not in the aggregate exceed $1,500. Upon denial of such application, the decision thereon shall be subject to review by the Mississippi Supreme Court on petition of the attorney seeking leave to make further

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payments. Payments under paragraph 2 aggregating $1,500 or less shall be reported by the lawyer making the payment to the Standing Committee on Ethics within seven (7) days following the making of each such payment. Applications for approval by the Standing Committee on Ethics as required hereunder and notices to the Standing Committee on Ethics of payments aggregating $1,500 or less, shall be confidential.

[Amended October 21, 1999.]

(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:

(1) the client consents after consultation;

(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and

(3) information relating to representation of a client is protected as required by Rule 1.6.

(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

(h) A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.

(i) A lawyer related to another lawyer as parent, child, sibling or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.

(j) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) acquire a lien granted by law to secure the lawyer's fee or expenses; and

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(2) contract with a client for a reasonable contingent fee in a civil case.

[Amended March 25, 1999.]

Comment

Transactions Between Client and Lawyer. As a general principle, all transactions between client and lawyer should be fair and reasonable to the client. In such transactions a review by independent counsel on behalf of the client is often advisable. Furthermore, a lawyer may not exploit information relating to the representation to the client's disadvantage. For example, a lawyer who has learned that the client is investing in specific real estate may not, without the client's consent, seek to acquire nearby property where doing so would adversely affect the client's plan for investment. Paragraph (a) does not, however, apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others, for example, banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities services. In such transactions, the lawyer has no advantage in dealing with the client, and the restrictions in paragraph (a) are unnecessary and impracticable.

A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted. If effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance, however, the client should have the detached advice that another lawyer can provide. Paragraph (c) recognizes an exception where the client is a relative of the donee or the gift is not substantial.

Literary Rights. An agreement by which a lawyer acquires literary or media rights concerning the conduct of the representation creates a conflict between the interests of the client and the personal interests of the lawyer. Measures suitable in the representation of the client may detract from the publication value of an account of the representation. Paragraph (d) does not prohibit a lawyer representing a client in a transaction concerning literary property from agreeing that the lawyer's fee shall consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5 and paragraph (j).

Person Paying for Lawyer's Services. Rule 1.8(f) requires disclosure of the fact that the lawyer's services are being paid for by a third party. Such an arrangement must also conform to the requirements of Rule 1.6 concerning confidentiality and Rule 1.7 concerning conflict of interest. Where the client is a class, consent may be obtained on behalf of the class by court-supervised procedure.

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Family Relationships Between Lawyers. Rule 1.8(i) applies to related lawyers who are in different firms. Related lawyers in the same firm are governed by Rules 1.7, 1.9, and 1.10. The disqualification stated in Rule 1.8(i) is personal and is not imputed to members of firms with whom the lawyers are associated.

Acquisition of Interest in Litigation. Paragraph (j) states the traditional general rule that lawyers are prohibited from acquiring a proprietary interest in litigation. This general rule, which has its basis in common law champerty and maintenance, is subject to specific exceptions developed in decisional law and continued in these Rules, such as the exception for reasonable contingent fees set forth in Rule 1.5 and the exception for certain advances of the costs of litigation set forth in paragraph (e).

This Rule is not intended to apply to customary qualification and limitations in legal opinions and memoranda.

Code Comparison

This Rule deals with certain transactions that per se involve conflict of interest.

With regard to Rule 1.8(a), DR 5-104(A) provides that "A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure." EC 5-3 states that "A lawyer should not seek to persuade his client to permit him to invest in an undertaking of his client nor make improper use of his professional relationship to influence his client to invest in an enterprise in which the lawyer is interested."

With regard to Rule 1.8(b), DR 4-101(B)(3) provides that a lawyer shall not "use a confidence or secret of his client for the advantage of himself, or of a third person, unless the client consents after full disclosure."

There is no counterpart to Rule 1.8(c) in the Disciplinary Rules of the Code. EC 5-5 states that "A lawyer should not suggest to his client that a gift be made to himself or for his benefit. If a lawyer accepts a gift from his client, he is peculiarly susceptible to the charge that he unduly influenced or overreached the client. If a client voluntarily offers to make a gift to his lawyer, the lawyer may accept the gift, but before doing so, he should urge that the client secure disinterested advice from an independent, competent person who is cognizant of all the circumstances. Other than in exceptional circumstances, a lawyer should insist that an instrument in which his client desires to name him beneficially be prepared by another lawyer selected by the client."

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Rule 1.8(d) is substantially similar to DR 5-104(B), but refers to "literary or media" rights, a more generally inclusive term than "publication" rights.

Rule 1.8(e)(1) is similar to DR 5-103(B), but eliminates the requirement that "the client remain ultimately liable for such expenses."

Rule 1.8(e)(2) has no counterpart in the Code.

Rule 1.8(f) is substantially identical to DR 5-107(A)(1).

Rule 1.8(g) is substantially identical to DR 5-106.

The first clause of Rule 1.8(h) deals with the same subject as DR 6-102(A). There is no counterpart in the Code to the second clause of Rule 1.8(h).

Rule 1.8(i) has no counterpart in the Code.

See MSB Ethics Opinion No. 102.

RULE 1.9 CONFLICT OF INTEREST: FORMER CLIENT

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or

(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.

Comment

After termination of a client-lawyer relationship, a lawyer may not represent another client except in conformity with this Rule. The principles in Rule 1.7 determine whether the interests of the present and former client are adverse. Thus, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also a lawyer who has prosecuted an accused person could not properly represent the accused in subsequent civil action against the government concerning the same transaction.

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The scope of a "matter" for purposes of Rule 1.9(a) may depend on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdiction. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.

Information acquired by the lawyer in the course of representing a client may not subsequently be used by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.

Disqualification from subsequent representation is for the protection of clients and can be waived only by them. A waiver is effective only if there is disclosure of the circumstances, including the lawyer's intended role in behalf of a new client.

With regard to an opposing party's raising a question of conflict of interest, see Comment to Rule 1.7. With regard to disqualification of a firm with which a lawyer is associated, see Rule 1.10.

Code Comparison

There is no counterpart to Rule 1.9(a) or (b) in the Disciplinary Rules of the Code. The problem addressed in Rule 1.9(a) sometimes has been dealt with under the rubric of Canon 9 of the Code, which provides that "A lawyer should avoid even the appearance of impropriety." EC 4-6 states that "the obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment."

The exception in the last sentence of Rule 1.9(b) permits a lawyer to use information relating to a former client that is in the "public domain," a use that is also not prohibited by the Code. Since the scope of Rule 1.6(a) is much broader than "confidences and secrets," it is necessary to define when a lawyer may make use of information after the client-lawyer relationship has terminated.

The provision for waiver by the former client is in effect similar to DR 5-105(C).

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RULE 1.10 IMPUTED DISQUALIFICATION: GENERAL RULE

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.4.

(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) that is material to the matter.

(c) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(b) that is material to the matter.

(d) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7.

[Amended effective November 3, 2005 to add reference to Rule 2.4.]

Comment

Definition of "Firm". For purposes of the Rules of Professional Conduct, the term "firm" includes lawyers in a private firm, and lawyers employed in the legal department of a corporation or other organization. Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access

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to confidential information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the rule that is involved. A group of lawyers could be regarded as a firm for purposes of the rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the rule that information acquired by one lawyer is attributed to another.

With respect to the law department of an organization, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. However, there can be uncertainty as to the identity of the client. For example, it may not be clear whether a law department of a corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the department are directly employed. A similar question can arise concerning an unincorporated association and its local affiliates.

Similar questions can also arise with respect to lawyers in legal aid. Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as associated with each other can depend on the particular rule that is involved, and on the specific facts of the situation.

Where a lawyer has joined a private firm after having represented the government, the situation is governed by Rule 1.11(a) and (b); where a lawyer represents the government after having served private clients, the situation is governed by Rule 1.11(c)(1). The individual lawyer involved is bound by the Rules generally, including Rules 1.6, 1.7, and 1.9.

Different provisions are thus made for movement of a lawyer from one private firm to another and for movement of a lawyer between a private firm and the government. The government is entitled to protection of its client confidences, and therefore to the protections provided in Rules 1.6, 1.9, and 1.11. However, if the more extensive disqualification in Rule 1.10 were applied to former government lawyers, the potential effect on the government would be unduly burdensome. The government deals with all private citizens and organizations, and thus has a much wider circle of adverse legal interests than does any private law firm. In these circumstances, the government's recruitment of lawyers would be seriously impaired if Rule 1.10 were applied to the government. On balance, therefore, the government is better served in the long run by the protections stated in Rule 1.11.

Principles of Imputed Disqualifications. The rule of imputed disqualification stated in paragraph (a) gives effect to the principles of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client,

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or from the premise that each lawyer is vicariously bound by the obligation of loyalty owned by each lawyer with whom the lawyer is associated. Paragraph (a) operates only among the lawyers currently associated in a firm. When a lawyer moves from one firm to another, the situation is governed by paragraphs (b) and (c).

Lawyers Moving Between Firms. When lawyers have been associated in a firm but then end their association, however, the problem is more complicated. The fiction that the law firm is the same as a single lawyer is no longer wholly realistic. There are several competing considerations. First, the client previously represented must be reasonably assured that the principle of loyalty to the client is not compromised. Second, the rule of disqualification should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel. Third, the rule of disqualification should not unreasonably hamper lawyers from forming new associations and taking on new clients after having left a previous association. In this connection, it should be recognized that today many lawyers practice in firms, that many to some degree limit their practice to one field or another, and that many move from one association to another several times in their careers. If the concept of imputed disqualification were defined with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and the opportunity of clients to change counsel.

Reconciliation of these competing principles in the past has been attempted under two rubrics. One approach has been to seek per se rules of disqualification. For example, it has been held that a partner in a law firm is conclusively presumed to have access to all confidences concerning all clients of the firm. Under this analysis, if a lawyer has been a partner in one law firm and then becomes a partner in another law firm, there is a presumption that all confidences known by a partner in the first firm are known to all partners in the second firm. This presumption might properly be applied in some circumstances, especially where the client has been extensively represented, but may be unrealistic where the client was represented only for limited purposes. Furthermore, such a rigid rule exaggerates the difference between a partner and an associate in modern law firms.

The other rubric formerly used for dealing with vicarious disqualification is the appearance of impropriety proscribed in Canon 9 of the Code of Professional Responsibility. This rubric has a two-fold problem. First, the appearance of impropriety can be taken to include any new client-lawyer relationship that might make a former client feel anxious. If that meaning were adopted, disqualification would become little more than a question of subjective judgment by the former client. Second, since "impropriety" is undefined, the term "appearance of impropriety" is question-begging. It therefore has to be recognized that the problem of imputed disqualification cannot be properly resolved either by simple analogy to a lawyer practicing alone or by the very general concept of appearance of impropriety.

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A rule based on a functional analysis is more appropriate for determining the question of vicarious disqualification. Two functions are involved: preserving confidentiality and avoiding positions adverse to a client.

Confidentiality. Preserving confidentiality is a question of access to information. Access to information, in turn, is essentially a question of fact in particular circumstances, aided by inferences, deductions or working presumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer in fact is privy to all information about all the firm's clients. In contrast, another lawyer may have access to the files of only a limited number of clients and participate in discussion of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to information about the clients actually served but not those of other clients.

Application of paragraphs (b) and (c) depends on a situation's particular facts. In any such inquiry, the burden of proof should rest upon the firm whose disqualification is sought.

Paragraphs (b) and (c) operate to disqualify the firm only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(b). Thus, if a lawyer while with one firm acquired no knowledge of information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.

Independent of the question of disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. See Rules 1.6 and 1.9.

Adverse Positions. The second aspect of loyalty to a client is the lawyer's obligation to decline subsequent representations involving positions adverse to a former client arising in substantially related matters. This obligation requires abstention from adverse representation by the individual lawyer involved, but does not properly entail abstention of other lawyers through imputed disqualification. Hence, this aspect of the problem is governed by Rule 1.9(a). Thus, if a lawyer left one firm for another, the new affiliation would not preclude the firms involved from continuing to represent clients with adverse interests in the same or related matters, so long as the conditions of Rule 1.10(b) and (c) concerning confidentiality have been met.

Code Comparison

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DR 5-105(D) provides that "If a lawyer is required to decline or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or affiliate with him or his firm, may accept or continue such employment."

RULE 1.11 SUCCESSIVE GOVERNMENT AND PRIVATE EMPLOYMENT

(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

(b) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.

(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:

(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter; or

(2) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially.

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(d) As used in this Rule, the term "matter" includes:

(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and

(2) any other matter covered by the conflict of interest rules of the appropriate government agency.

(e) As used in this Rule, the term "confidential government information" means information which has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and which is not otherwise available to the public.

Comment

This Rule prevents a lawyer from exploiting public office for the advantage of a private client. It is a counterpart of Rule 1.10(b), which applies to lawyers moving from one firm to another.

A lawyer representing a government agency, whether employed or specially retained by the government, is subject to the Rules of Professional Conduct, including the prohibition against representing adverse interests stated in Rule 1.7 and the protections afforded former clients in Rule 1.9. In addition, such a lawyer is subject to Rule 1.11 and to statutes and government regulations regarding conflict of interest. Such statutes and regulations may circumscribe the extent to which the government agency may give consent under this Rule.

Where the successive clients are a public agency and a private client, the risk exists that power or discretion vested in public authority might be used for the special benefit of a private client. A lawyer should not be in a position where benefit to a private client might affect performance of the lawyer's professional functions on behalf of public authority. Also, unfair advantage could accrue to the private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service. However, the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. The provisions for screening and waiver are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service.

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When the client is an agency of one government, that agency should be treated as a private client for purposes of this Rule if the lawyer thereafter represents an agency of another government, as when a lawyer represents a city and subsequently is employed by a federal agency.

Paragraphs (a)(1) and (b) do not prohibit a lawyer from receiving a salary or partnership share established by prior independent agreement. They prohibit directly relating the attorney's compensation to the fee in the matter in which the lawyer is disqualified.

Paragraph (a)(2) does not require that a lawyer give notice to the government agency at a time when premature disclosure would injure the client; a requirement for premature disclosure might preclude engagement of the lawyer. Such notice is, however, required to be given as soon as practicable in order that the government agency will have a reasonable opportunity to ascertain that the lawyer is complying with Rule 1.11 and to take appropriate action if it believes the lawyer is not complying.

Paragraph (b) operates only when the lawyer in question has knowledge of the information, which means actual knowledge; it does not operate with respect to information that merely could be imputed to the lawyer.

Paragraphs (a) and (c) do not prohibit a lawyer from jointly representing a private party and a government agency when doing so is permitted by Rule 1.7 and is not otherwise prohibited by law.

Paragraph (c) does not disqualify other lawyers in the agency with which the lawyer in question has become associated.

Code Comparison

Rule 1.11(a) is similar to DR 9-101(B), except that the latter uses the terms "in which he had substantial responsibility while he was a public employee."

Rules 1.11(b), (c), (d) and (e) have no counterparts in the Code.


RULE 1.12 FORMER JUDGE, ARBITRATOR, MEDIATOR OR OTHER THIRD PARTY NEUTRAL

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in

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connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, or law clerk to such person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent confirmed in writing.

(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as an attorney for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer, or as a law clerk to such a person or as an arbitrator, mediator, or other third-party neutral.

(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:

(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of this rule.

(d) An arbitrator selected as a partisan of a party in a multi-member arbitration panel is not prohibited from subsequently representing that party.

[Amended effective November 3, 2005 to include third party neutrals generally.]

Comment

This Rule generally parallels Rule 1.11. The term "personally and substantially" signifies that a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. Compare the Comment to Rule 1.11. The term "adjudicative officer" includes such officials as judges pro tempore, referees, special masters, hearing officers and other parajudicial officers, and also lawyers who serve as part-time judges.

Like former judges, lawyers who have served as arbitrators, mediators or other third-party neutrals may be asked to represent a client in a matter in which the lawyer participated

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personally and substantially. This Rule forbids such representation unless all of the parties to the proceedings give their informed consent, confirmed in writing. See Terminology. Other law or codes of ethics governing third-party neutrals may impose more stringent standards of personal or imputed disqualification. Rule 2.4.

Although lawyers who serve as third-party neutrals do not have information concerning the parties that is protected under Rule 1.6, they typically owe the parties an obligation of confidentiality under law or codes of ethics governing third-party neutrals. Thus, paragraph (c) provides that conflicts of the personally disqualified lawyer will be imputed to other lawyers in a law firm unless the conditions of this paragraph are met.

Requirements for screening procedures are stated in Terminology. Paragraph (c) (1) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

Notice, including a description of the screened lawyer’s prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

[Amended effective November 3, 2005.]

Code Comparison

Paragraph (a) is substantially similar to DR 9-101(A), which provides that "A lawyer shall not accept employment in a matter upon the merits of which he has acted in a judicial capacity." Paragraph (a) differs, however, in that it is broader in scope and states more specifically the persons to whom it applies. There is no counterpart in the Code to paragraphs (b), (c) or (d).

With regard to arbitrators, EC 5-20 states that "a lawyer who has undertaken to act as an impartial arbitrator or mediator, ... should not thereafter represent in the dispute any of the parties involved." DR 9-101(A) does not provide a waiver of the disqualification applied to former judges by consent of the parties. However, DR 5-105(C) is similar in effect and could be construed to permit waiver.

RULE 1.13 ORGANIZATION AS CLIENT

(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

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(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others:

(1) asking reconsideration of the matter;

(2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and

(3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law.

(c) If, despite the lawyer's efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer may resign in accordance with Rule 1.16.

(d) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.

(e) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

Comment

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The Entity as the Client. An organizational client is a legal entity, but it cannot act except through its officers, directors, employees, shareholders and other constituents.

Officers, directors, employees and shareholders are the constituents of the corporate organizational client. The duties defined in this Comment apply equally to unincorporated associations. "Other constituents" as used in this Comment means the positions equivalent to officers, directors, employees and shareholders held by persons acting for organizational clients that are not corporations.

When one of the constituents of an organizational client communicates with the organization's lawyer in that person's organizational capacity, the communication is protected by Rule 1.6. Thus, by way of example, if an organizational client requests its lawyer to investigate allegations of wrongdoing, interviews made in the course of that investigation between the lawyer and the client's employees or other constituents are covered by Rule 1.6. This does not mean, however, that constituents of an organizational client are the clients of the lawyer. The lawyer may not disclose to such constituents information relating to the representation except for disclosures explicitly or impliedly authorized by the organizational client in order to carry out the representation or as otherwise permitted by Rule 1.6.

When constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful. Decisions concerning policy and operations, including ones entailing serious risk, are not as such in the lawyer's province. However, different considerations arise when the lawyer knows that the organization may be substantially injured by action of a constituent that is in violation of law. In such a circumstance, it may be reasonably necessary for the lawyer to ask the constituent to reconsider the matter. If that fails, or if the matter is of sufficient seriousness and importance to the organization, it may be reasonably necessary for the lawyer to take steps to have the matter reviewed by a higher authority in the organization. Clear justification should exist for seeking review over the head of the constituent normally responsible for it. The stated policy of the organization may define circumstances and prescribe channels for such review, and a lawyer should encourage the formulation of such a policy. Even in the absence of organization policy, however, the lawyer may have an obligation to refer a matter to higher authority, depending on the seriousness of the matter and whether the constituent in question has apparent motives to act at variance with the organization's interest. Review by the chief executive officer or by the board of directors may be required when the matter is of importance commensurate with their authority. At some point it may be useful or essential to obtain an independent legal opinion.

In an extreme case, it may be reasonably necessary for the lawyer to refer the matter

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to the organization's highest authority. Ordinarily, that is the board of directors or similar governing body. However, applicable law may prescribe that under certain conditions highest authority reposes elsewhere; for example, in the independent directors of a corporation.

Relation to Other Rules. The authority and responsibility provided in paragraph (b) are concurrent with the authority and responsibility provided in other rules. In particular, this Rule does not limit or expand the lawyer's responsibility under Rules 1.6, 1.8 and 1.16, 3.3 or 4.1. If the lawyer's services are being used by an organization to further a crime or fraud by the organization, Rule 1.2(d) can be applicable.

Government Agency. The duty defined in this Rule applies to governmental organizations. However, when the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful official act is prevented or rectified, for public business is involved. In addition, duties of lawyers employed by the government or lawyers in military service may be defined by statutes and regulation. Therefore, defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context. Although in some circumstances the client may be a specific agency, it is generally the government as a whole. For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the government as a whole may be the client for purpose of this Rule. Moreover, in a matter involving the conduct of government officials, a government lawyer may have authority to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. This Rule does not limit that authority. See note on Scope.

Clarifying the Lawyer's Role. There are times when the organization's interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization, of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged.

Dual Representation. Paragraph (e) recognizes that a lawyer for an organization may also represent a principal officer or shareholder.

Derivative Actions. Under generally prevailing law, the shareholders or members

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of a corporation may bring suit to compel the directors to perform their legal obligations in the supervision of the organization. Members of unincorporated associations have essentially the same right. Such an action may be brought nominally by the organization, but usually is, in fact, a legal controversy over management of the organization.

The question can arise whether counsel for the organization may defend such an action. The proposition that the organization is the lawyer's client does not alone resolve the issue. Most derivative actions are a normal incident of an organization's affairs, to be defended by the organization's lawyer like any other suit. However, if the claim involves serious charges of wrongdoing by those in control of the organization, a conflict may arise between the lawyer's duty to the organization and the lawyer's relationship with the board. In those circumstances, Rule 1.7 governs who should represent the directors and the organization.

Code Comparison

There is no counterpart to this Rule in the Disciplinary Rules of the Code. EC 5-18 states that "A lawyer employed or retained by a corporation or similar entity owes his allegiance to the entity and not to a stockholder, director, officer, employee, representative, or other person connected with the entity. In advising the entity, a lawyer should keep paramount its interests and his professional judgment should not be influenced by the personal desires of any person or organization. Occasionally, a lawyer for an entity is requested by a stockholder, director, officer, employee, representative, or other person connected with the entity to represent him in an individual capacity; in such a case the lawyer may serve the individual only if the lawyer is convinced that differing interests are not present." EC 5-24 states "Although a lawyer may be employed by a business corporation with non-lawyers serving as directors or officers, and they necessarily have the right to make decisions of business policy, a lawyer must decline to accept direction of his professional judgment from any layman." DR 5-107(B) provides that "a lawyer shall not permit a person who ... employs ... him to render legal services for another to direct or regulate his professional judgment in rendering such legal services."

RULE 1.14 CLIENT UNDER A DISABILITY

(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) A lawyer may seek the appointment of a guardian or take other protective action

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with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.

(c) Information relating to the representation of a client who may be impaired is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent necessary to protect the client’s interest.

[Amended effective November 3, 2005 to add subsection (c).]

Comment

The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a mental disorder or disability, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, an incapacitated person may have no power to make legally binding decisions. Nevertheless, a client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. Furthermore, to an increasing extent the law recognizes intermediate degrees of competence. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.

The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. If the person has no guardian or legal representative, the lawyer often must act as de facto guardian. Even if the person does have a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.

If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. If a legal representative has not been appointed, the lawyer should see to such an appointment where it would serve the client's best interests. Thus, if a disabled client has substantial property that should be sold for the client's benefit, effective completion of the transaction ordinarily requires appointment of a legal representative. In many circumstances, however, appointment of a legal representative may be expensive or traumatic for the client. Evaluation of these considerations is a matter of professional judgment on the lawyer's part.

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If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct. See Rule 1.2(d).

Disclosure of the Client's Condition. Rules of procedure in litigation generally provide that minors or persons suffering a mental disability shall be represented by a guardian or next friend if they do not have a general guardian. However, disclosure of the client's disability could, in some circumstances, lead to proceedings for involuntary commitment. The lawyer's position in such cases is an unavoidably difficult one. The lawyer may seek guidance from an appropriate diagnostician.

Disclosure of the Client's Condition. Rules of procedure in litigation generally provide that minors or persons suffering a mental disability shall be represented by a guardian or next friend if they do not have a general guardian. However, disclosure of the client’s disability could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely that the person or entity consulted will act adversely to the client’s interests before discussing matters related to the client. The lawyer’s position in such cases is an unavoidably difficult one. The lawyer may seek guidance from an appropriate diagnostician.


Code Comparison

There is no counterpart to this Rule in the Disciplinary Rules of the Code. EC 7-12 states that "Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer. Where an incompetent is acting through a guardian or other legal representative, a lawyer must look to such representative for those decisions which are normally the prerogative of the client to make. If a client under disability has no legal representative, his lawyer may be compelled in court proceedings to make decisions on behalf of the client. If the client is capable of understanding the matter in question or of contributing to the advancement of his interests, regardless of whether he is legally disqualified from performing certain acts, the lawyer should obtain from him all possible aid. If the disability of a client and the lack of

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a legal representative compel the lawyer to make decisions for his client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of his client. But obviously a lawyer cannot perform any act or

RULE 1.15 SAFEKEEPING PROPERTY Effective January 1, 2007

(a) A lawyer shall hold clients’ and third persons’ property separate from the lawyer's own property. Funds shall be kept in a separate trust account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such trust account funds and other property shall be kept and preserved by the lawyer for a period of seven years after termination of the representation.

(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

(c) When a lawyer is in possession of property in which both the lawyer and another person claim an interest, the property shall be kept separate by the lawyer until completion of an accounting and severance of their respective interests. If a dispute arises concerning their respective interests, the lawyer shall disburse the portion not in dispute, and keep separate the portion in dispute until the dispute is resolved.

(d) Except as provided in paragraph (f) of this rule, a lawyer or law firm shall create and maintain an interest- or dividend-bearing trust account (IOLTA Account) for all funds which are nominal or short term funds that cannot earn income for the client or third party in excess of the costs incurred to secure such income (IOLTA eligible Funds), pursuant to the following:

(1) All trust Funds shall be deposited in a lawyer's or law firm's IOLTA Account unless– in the lawyer’s judgment – the funds can earn income for the client or third party in excess of the costs incurred to secure such income.

(2) No earnings from such an IOLTA Account shall be made available to a lawyer or law firm.

(3) IOLTA Accounts shall be established only with financial institutions:

i. authorized by federal or state law to do business in Mississippi;

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ii. the deposits of which are insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation or any successors thereof;

iii. which pay a rate of interest or dividend on IOLTA Accounts that is no less than the highest rate generally available to its own non-IOLTA Account depositors when the IOLTA Account meets the same minimum balance or other eligibility requirements, provided however that: (a) IOLTA Accounts may be maintained in an interest-bearing checking account or an interest or dividend-bearing account with check-writing and with a sweep feature which is tied to either a money market account insured by an agency of the federal government or a money market fund or daily overnight repurchase agreement invested solely in or fully collateralized by U.S. Government securities (defined as U.S. Treasury obligations and obligations issued or guaranteed as to principal and interest by the United States or any agency or instrumentality thereof) so long as there is no impairment of the right to immediately withdraw and transfer principal as soon as permitted by law; (b) institutions may choose to pay these rates on a qualifying IOLTA checking account instead of establishing the higher rate product; and (c) institutions may also elect to pay a higher interest or dividend rate and may waive any fees on IOLTA Accounts.

(4) Financial institutions are prohibited from using interest from one IOLTA Account to pay fees or charges in excess of the interest earned on another IOLTA Account. If not waived by the financial institution, such fees, if any, are the responsibility of the lawyer or the law firm.

(5) Lawyers or law firms depositing funds in an IOLTA Account established pursuant to this rule shall direct the depository institution:

i. to remit all interest, net of reasonable service charges or fees, if any, on the average monthly balance in the account, or as otherwise computed in accordance with the institution's standard accounting practice, at least quarterly, to the Mississippi Bar Foundation, Inc. For the purposes of this paragraph, reasonable services charges or fees shall not include fees for wire transfers, insufficient funds, bad checks, stop payments, account reconciliation, negative collected balances and check printing;

ii. to transmit with each remittance to the Foundation a report showing the following information for each IOLTA Account: the name of the lawyer or law firm, the amount of interest or dividends earned, the rate and type of interest or dividend applied, the amount of any services charges or fees assessed during the remittance period, the net amount of interest or dividends remitted for the period, the average account balance for the period for which the interest was earned and such other

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information as is reasonably required by the Foundation;

iii. to transmit to the depositing lawyer or law firm a periodic account statement in accordance with normal procedures for reporting to depositors.

(e) Any IOLTA Account which has or may have the net effect of costing the IOLTA program more in fees than earned in interest over a period of time may, at the discretion of the Foundation, be exempted from and removed from the IOLTA program. Exemption of an IOLTA Account from the IOLTA program revokes the permission to use the Foundation's tax identification number for that account. Exemption of such account from the IOLTA program shall not relieve the lawyer and/or law firm from the obligation to maintain the nominal or short term funds of clients and third persons separately, as required above, in a non-interest bearing account.

(f) Every lawyer admitted to practice in this State shall annually certify to this Court that all IOLTA eligible Funds are held in an IOLTA Account, or that the lawyer is exempt because the lawyer:

(1) is not engaged in the private practice of law;

(2) does not have an office within the State of Mississippi;

(3) is a judge, attorney general, public defender, U.S. attorney, district attorney, on duty with the armed services or employed by a local, state or federal government, and is not otherwise engaged in the private practice of law;

(4) is a corporate counsel or teacher of law and is not otherwise engaged in the private practice of law;

(5) has been exempted pursuant to Section (e) above; or

(6) has been exempted by an order of general or special application of this Court which is cited in the certification.

(g) In the exercise of a lawyer's good faith judgment in determining whether funds can earn income in excess of costs, a lawyer may take into consideration all reasonable factors including, without limitation:

(1) the amount of the funds to be deposited;

(2) the expected duration of the deposit, including the likelihood of delay in the matter for which the funds are held;

(3) the rates of interest or yield at the financial institutions where the funds are to be

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deposited;

(4) the cost of establishing and administering the account, including the cost of the lawyer's services, accounting fees, and tax reporting costs and procedures;

(5) the capability of a financial institution, a lawyer or a law firm to calculate and pay income to individual clients; and

(6) any other circumstances that affect the ability of the funds to earn a net return for the client.

(h) A lawyer shall review the IOLTA Account at reasonable intervals to determine whether changed circumstances require further action with respect to the funds of any client.

(i) The determination of whether funds are nominal or short-term so that they can not earn income in excess of costs shall rest in the sound judgment of the lawyer or law firm. No lawyer shall be charged with an ethical impropriety or other breach of professional conduct based on the good faith exercise of such judgment.

(j) A lawyer generally may not use, endanger, or encumber money held in trust for a client or third person without the permission of the owner given after full disclosure of the circumstances. Except for disbursements based upon any of the four categories of limited-risk uncollected deposits enumerated in paragraph (1) below, a lawyer may not disburse funds held in trust unless the funds are collected funds. For purposes of this provision, "collected funds" means funds deposited, finally settled, and credited to the lawyer's trust account.

(1) Certain categories of trust account deposits are considered to carry a limited and acceptable risk of failure so that disbursements of trust account funds may be made in reliance on such deposits without disclosure to and permission of clients and third persons owning trust account funds that may be affected by such disbursements. Provided the lawyer has other sources of funds available at the time of disbursement (other than client or third party funds) sufficient to replace any uncollected funds, not withstanding that a deposit made to the lawyer's trust account has not been finally settled and credited to the account, the lawyer may disburse funds from the trust account in reliance on such deposit under any of the following circumstances:

(i) when the deposit is made by certified check or cashier's check;

(ii) when the deposit is made by a bank check, official check, treasurer's check, money order, or other such instrument where the payor is a bank, savings and loan association, or credit union;

(iii) when the deposit is made by a check issued by the United States, the State of Mississippi, or any agency or political subdivision of the State of Mississippi; or

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(iv) when the deposit is made by a check or draft issued by an insurance company, title insurance company, or a licensed title insurance agency authorized to do business in the State of Mississippi.

In any of the above circumstances, a lawyer's disbursement of funds from a trust account in reliance on deposits that are not yet collected funds is at the risk of the lawyer making the disbursement. If any of the deposits fail, for any reason, the lawyer, upon obtaining knowledge of the failure, must immediately act to protect the property of the lawyer's clients and third persons. If the lawyer accepting any such check personally pays the amount of any failed deposit within three business days of receipt of notice that the deposit has failed, the lawyer will not be considered guilty of professional misconduct based upon the disbursement of uncollected funds.

(2) A lawyer's disbursement of funds from a trust account in reliance on deposits that are not yet collected funds in any circumstances other than those four categories set forth above, when it results in funds of clients or third persons being used, endangered, or encumbered, will be grounds for a finding of professional misconduct.

[Amended effective January 1, 2007, to provide for mandatory IOLTA participation.]

Comment

A lawyer should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances. All property which is the property of clients or third persons should be kept separate from the lawyer's business and personal property and, if monies, in one or more trust accounts. Separate trust accounts may be warranted when administering estate monies or acting in similar fiduciary capacities.

Lawyers often receive funds from third parties from which the lawyer's fee will be paid. If there is a risk that the client may divert the funds without paying the fee, the lawyer is not required to remit the portion from which the fee is to be paid. However, a lawyer may not hold funds to coerce a client into accepting the lawyer's contention. The disputed portion of the funds should be kept in trust and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration. The undisputed portion of the funds shall be promptly distributed.

Third parties, such as a client's creditors, may have just claims against funds or other property in a lawyer's custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party.

The obligations of a lawyer under this Rule are independent of those arising from activity other than rendering legal services. For example, a lawyer who serves as an escrow agent is governed by the

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applicable law relating to fiduciaries even though the lawyer does not render legal services in the transaction.

Interest on Lawyer's Trust Accounts. Each lawyer or law firm, unless specifically excluded in paragraph (f), is required to establish an IOLTA Account. Only IOLTA eligible funds - those nominal or short term funds that cannot earn income for the client or third party in excess of the costs incurred to secure such income – may be placed in the IOLTA Account. This definition of IOLTA eligible funds is in compliance with the decision in Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003), which upheld the constitutionality of the IOLTA concept.

No earnings on the IOLTA Accounts may be made available to or utilized by the lawyer or law firm. Upon the request of the client, earnings may be made available to the client whenever possible upon deposited funds which are neither nominal in amount nor to be held for a short period of time; however, traditional attorney client relationships do not compel lawyers either to invest clients' funds or to advise clients to make their funds productive.

IOLTA eligible funds shall be retained in an interest - or dividend - bearing trust account with the interest (net of any reasonable service charge or fees) made payable to the Mississippi Bar Foundation, Inc., said payments to be made by the financial institution at least quarterly. The determination of whether client or third party funds are nominal in amount or to be held for a short period of time so that they cannot earn net income over costs rests in the sound judgment of each lawyer or law firm and no charge of ethical impropriety or other breach of professional conduct shall attend a lawyer's exercise of judgment in that regard.

Annual certification required in (f) above shall be through a form that is made a part of the members’s annual membership fees statement.

The decision to deposit client or third party funds in an IOLTA Account rests with the lawyers, so notification of such a deposit to clients whose funds are nominal in amount or to be held for a short period of time is unnecessary. This is not to suggest that many lawyers will not want to notify their clients of their participation in the program in some fashion. There is no impropriety in a lawyer or law firm advising all clients of how their participation advances the administration of justice in Mississippi.

Unclaimed Property. Any lawyer holding property or monies belonging to clients with whom he has lost contact must retain and account for said funds, subject to the Mississippi Uniform Disposition of Unclaimed Property Act.

Code Comparison

With regard to Rule 1.15(a), DR 9-102(A) provides that "funds of clients" are to be kept in a trust account in the state in which the lawyer's office is situated. DR 9-102(B)(2) provides that a lawyer shall "identify and label securities and properties of a client ... and place them in ...

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safekeeping ...." DR 9-102(B)(3) requires that a lawyer "maintain complete records of all funds, securities and other properties of a client ...." Rule 1.15(a) extends these requirements to property of a third person that is in the lawyer's possession in connection with the representation.

Rule 1.15(b) is substantially similar to DR 9-102(B)(1) and (4).

Rule 1.15(c) is substantially similar to DR 9-102(A)(2), except that the requirement regarding disputes applies to property concerning which an interest is claimed by a third person as well as by a client.

See MSB Ethics Opinions Nos. 98 and 104.

RULE 1.16 DECLINING OR TERMINATING REPRESENTATION

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the rules of professional conduct or other law;

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or

(3) the lawyer is discharged.

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without materially adverse effect on the interests of the client, or if:

(1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(2) the client has used the lawyer's services to perpetrate a crime or fraud;

(3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;

(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

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(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(6) other good cause for withdrawal exists.

(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

Comment

A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion.

Mandatory Withdrawal. A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation.

When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. See also Rule 6.2. Difficulty may be encountered if withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The court may wish an explanation of the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.

Discharge. A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services. Where future dispute about the withdrawal may be anticipated, it may be advisable to prepare a written statement reciting the circumstances.

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Whether a client can discharge appointed counsel may depend on applicable law. A client seeking to do so should be given a full explanation of the consequences. These consequences may include a decision by the appointing authority that appointment of successor counsel is unjustified, thus requiring the client to represent himself.

If the client is mentally incompetent, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client's interests. The lawyer should make special effort to help the client consider the consequences and, in an extreme case, may initiate proceedings for a conservatorship or similar protection of the client. See Rule 1.14.

Optional Withdrawal. A lawyer may withdraw from representation in some circumstances. The lawyer has the option to withdraw if it can be accomplished without material adverse effect on the client's interests. Withdrawal is also justified if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with such conduct even if the lawyer does not further it. Withdrawal is also permitted if the lawyer's services were misused in the past even if that would materially prejudice the client. The lawyer also may withdraw where the client insists on a repugnant or imprudent objective.

A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs or an agreement limiting the objectives of the representation.

Assisting the Client Upon Withdrawal. Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law.

Whether or not a lawyer for an organization may under certain unusual circumstances have a legal obligation to the organization after withdrawing or being discharged by the organization's highest authority is beyond the scope of these Rules.

See MSB Ethics Opinions Nos. 49 and 105.

RULE 1.17 SALE OF LAW PRACTICE

A lawyer or law firm may sell or purchase a law practice including good will if the conditions set forth in Rule 1.17 are satisfied. The estate of a deceased, disabled or disappeared lawyer may be a seller.

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(a) The selling lawyer or law firm ceases to engage in the private practice of law in the geographic area wherein the practice has been conducted;

(b) The practice is sold as an entirety to another lawyer or law firm;

(c) Actual written notice is given to each of the seller’s clients regarding:

(1) the proposed sale;

(2) the client’s right to retain other counsel or take possession of the file; and

(3) the fact that the client’s consent to the sale will be presumed if the client does not take any action or does not otherwise object within ninety (90) days of the receipt of the notice.

If a client cannot be given notice, the representation of that client may be transferred to the purchaser only upon entry of an order so authorizing by any court having jurisdiction. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of the file.

(d) The fees charged clients shall not be increased by reason of the sale. The purchaser may however refuse to undertake the representation unless the client consents to pay the purchaser's fees at a rate not exceeding the fee charged by the purchaser for rendering substantially similar services before the initiation of the purchase negotiations.

(e) For purposes of this rule, good will, as used herein, is defined as reputation, including use of the lawyer or law firm's name that will probably generate future business. However, any use of the lawyer or law firms name, after the sale or purchase of the subject law practice has been completed, must be accompanied with a notice that the selling lawyer or law firm is no longer engaged in the active practice of law.

(f) Notwithstanding the provisions of this rule, if the selling lawyer or law firm returns to the practice of law, then use of the selling lawyer or law firm's name must be discontinued by the purchasing lawyer or law firm.

[Adopted August 20, 1998; amended effective November 3, 2005 to remove former subpart (c)(2) relating to disclosure of proposed changes in fee arrangements.]

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COUNSELOR

RULE 2.1 ADVISOR

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

Comment

Scope of Advice. A client is entitled to straightforward advice expressing the lawyer's honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

Advice couched in narrowly legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.

A client may expressly or impliedly ask the lawyer for purely technical advice. When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made by a client inexperienced in legal matters, however, the lawyer's responsibility as advisor may include indicating that more may be involved than strictly legal considerations.

Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer's advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts.

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Offering Advice. In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, duty to the client under Rule 1.4 may require that the lawyer act if the client's course of action is related to the representation. A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest.

Code Comparison

There is no direct counterpart to Rule 2.1 in the Disciplinary Rules of the Code. DR 5-107(B) provides that "A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services." EC 7-8 states that "Advice of a lawyer to his client need not be confined to purely legal considerations. ... In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible. ... In the final analysis, however, ... the decision whether to forego legally available objectives or methods because of nonlegal factors is ultimately for the client. ..."

RULE 2.2 LAWYER SERVING AS AN INTERMEDIARY BETWEEN CLIENTS

(a) A lawyer represents clients as an intermediary when the lawyer provides impartial legal advice and assistance to two or more clients who are engaged in a candid and non-adversarial effort to accomplish a common objective with respect to the formation, conduct, modification, or termination of a consensual legal relation between them.

(b) A lawyer shall not represent two or more clients as an intermediary in a matter unless:

(1) as between the clients, the lawyer reasonably believes that the matter can be resolved on terms compatible with the best interests of each of the clients, that each client will be able to make adequately informed decisions in the matter, that there is little risk of material prejudice to the interest of any of the clients if the contemplated resolution is unsuccessful, and that the intermediation can be undertaken impartially;

(2) the lawyer's representation of each of the clients, or the lawyer's

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relationship with each, will not be adversely affected by the lawyer's responsibilities to other clients or third persons, or by the lawyer's own interests;

(3) the lawyer consults with each client about:

(i) the lawyer's responsibilities as an intermediary;

(ii) the implications of the intermediation (including the advantages and risks involved, the effect of the intermediation on the attorney-client privilege, and the effect of the intermediation on any other obligation of confidentiality the lawyer may have);

(iii) any circumstances that will materially affect the lawyer's impartiality between the clients; and

(iv) the lawyer's representation in another matter of a client whose interests are directly adverse to the interests of any one of the clients; and any interests of the lawyer, the lawyer's other clients, or third persons that will materially limit the lawyer's representation of one of the clients; and

(4) each client consents in writing to the lawyer's representation and each client authorizes the lawyer to disclose to each of the other clients being represented in the matter any information relating to the representation to the extent that the lawyer reasonably believes is required to comply with Rule 1.4.

(c) While representing clients as an intermediary, the lawyer shall:

(1) act impartially to assist the clients in accomplishing their common objective;

(2) as between the clients, treat information relating to the intermediation as information protected by Rule 1.6 that the lawyer has been authorized by each client to disclose to the other clients to the extent the lawyer reasonably believes necessary for the lawyer to comply with Rule 1.4; and

(3) consult with each client concerning the decisions to be

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made with respect to the intermediation and the considerations relevant in making them, so that each client can make adequately informed decisions.

(d) A lawyer shall withdraw from service as an intermediary if:

(1) any of the clients so requests;

(2) any of the clients revokes the lawyer's authority to disclose to the other clients any information that the lawyer would be required by Rule 1.4 to reveal to them; or

(3) any of the other conditions stated in paragraph (b) are no longer satisfied.

(e) If the lawyer's withdrawal is required by paragraph (d)(2) the lawyer shall so advise each client of the withdrawal, but shall do so without any further disclosure of information protected by Rule 1.6.

[Adopted September 17, 2002, effective March 1, 2003; substantially rewritten effective November 3, 2005 to address specifically and exclusively lawyers intermediating between clients.]

Comments

A lawyer acts as an intermediary under this Rule when the lawyer represents two or more clients who are cooperatively trying to accomplish a common objective with respect to the formation, conduct, modification, or termination of a consensual legal relation between them. The hallmarks of an intermediation include the impartiality of the lawyer who serves as an intermediary; the open, candid, and non-adversarial nature of the clients' pursuit of a common objective; and the limited subject matters in which a lawyer may serve multiple clients as an intermediary (i.e., the adjustment of a consensual legal relationship among or between the clients). Because intermediation differs significantly from the partisan role normally played by lawyers, and because it requires that the lawyer be impartial as between the clients rather than an advocate on behalf of each, a lawyer should only undertake this role with client consent after consultation about the distinctive features of this role. Also, given the risks associated with joint representation of parties whose interests may potentially be in conflict, the Rule provides a number of safeguards designed to limit its applicability and to protect the interests of the several clients.

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Paragraph (b) specifies the circumstances in which a lawyer may serve multiple clients as an intermediary. With respect to the clients being served by an intermediary, this Rule, and not Rule 1.7, applies. Rule 1.7 remains applicable, however, to protect other clients the lawyer may be representing or may wish to represent in other matters. For example, if the lawyer's representation of two clients as an intermediary in a matter will materially limit the lawyer's representation of another client the lawyer is representing as an advocate, the lawyer must afford that client the protections of Rule 1.7. Similarly, if the lawyer's representation of two clients as an intermediary would be materially adverse to one of the lawyer's former clients and the matters are substantially related, the lawyer must afford the former client the protection of Rule 1.9.

Rule 2.2 does not apply to a lawyer acting as a dispute resolution neutral, such as an arbitrator or a mediator, as the parties to a dispute resolution proceeding are not clients of the lawyer, even where the lawyer has been appointed with the concurrence of the parties. Other rules of conduct govern a lawyer's service as a dispute resolution neutral. See Rule 2.4.

Because this Rule only applies to the formation, conduct, modification or termination of consensual legal relationships between clients, it does not apply to the representation of multiple clients in connection with gratuitous transfers or other matters in which there is not a quid pro quo exchange. Thus, for example, conflicts of interest arising from the representation of multiple clients in estate planning or the administration of an estate are governed by Rule 1.7 rather than by this Rule. If, however, the effectuation of an estate plan or other gratuitous transfer entails the formation, modification or termination of a consensual legal relationship between clients, and the lawyer acts as an intermediary in connection with the transaction, this Rule, and not Rule 1.7, will apply.

A lawyer may act as an intermediary in seeking to establish or adjust a consensual legal relationship among or between clients on an amicable and mutually advantageous basis, such as helping to organize a business in which two or more clients are entrepreneurs or working out the financial reorganization of an enterprise in which two or more clients have an interest. As part of the work of an intermediary, the lawyer may seek to achieve the clients' common objective or to resolve potentially conflicting interests by developing the parties' mutual interests. The alternative may be that each party may have to obtain separate representation, with the possibility in some situations of incurring additional cost, complications, or even litigation. Given these and other relevant factors, each client may prefer to have one lawyer act as an intermediary for all rather than hiring a separate lawyer to serve as his or her partisan.

In considering whether to act as an intermediary between clients, a lawyer should be

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mindful that if the intermediation fails, the result can be additional cost, embarrassment, and recrimination. In some situations, the risk of failure is so great that intermediation is plainly impossible or imprudent for the lawyer or the clients. For example, a lawyer cannot undertake common representation of clients between whom contentious litigation is imminent or who contemplate contentious negotiations, as is often the case when dissolution of a marriage is involved. More generally, if the relationship between the parties has already assumed definite antagonism, the possibility that the clients' interests can be adjusted by intermediation ordinarily is not very good.

The appropriateness of intermediation can depend on its form. Forms of intermediation range from an informal "facilitation," in which the lawyer's responsibilities are limited to presenting alternatives from which the clients will choose, to a full-blown representation in which the lawyer provides all legal services needed in connection with the proposed transaction. One form may be appropriate in circumstances where another would not. Other relevant factors are whether the lawyer subsequently will represent both parties on a continuing basis; whether the situation involves creating a relationship between the parties or terminating one; the relative experience, sophistication, and economic bargaining power of the clients; and the existence of prior familial, business, or legal relationships.

Confidentiality and Privilege

A particularly important factor in determining the appropriateness of intermediation is the effect on client-lawyer confidentiality and the attorney-client privilege. In a common representation, the lawyer is still required both to keep each client adequately informed and to maintain confidentiality of information relating to the representation. See Rules 1.4 and 1.6. Complying with both requirements while acting as an intermediary requires a delicate balance. If the balance cannot be maintained, the common representation is improper.

Paragraphs (b)(4) and (c)(2) make clear that the obligations of attorney-client confidentiality apply to clients being served by a lawyer as an intermediary, but that, as between the clients being so served, confidentiality is inappropriate and must be waived by each of the clients. Thus, while the lawyer must maintain confidentiality as against strangers to the relationship, the lawyer has no such duty to keep information provided to the lawyer by one client confidential from the other clients. Moreover, the lawyer may well, depending on the circumstances, have an affirmative obligation to disclose such information obtained from one client to other clients. Obviously, this important implication of the lawyer's responsibilities as an intermediary must be disclosed and explained to the clients.

Since the lawyer is required to be impartial between commonly represented clients,

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intermediation is improper when that impartiality cannot be maintained. For example, a lawyer who has represented one of the clients for a long period and in a variety of matters might have difficulty being impartial between that client and one to whom the lawyer has only recently been introduced.

Consultation

In acting as an intermediary between clients, the lawyer is required to consult with the clients on the implications of doing so and may proceed only upon consent based on such a consultation. The consultation should make clear that the lawyer's role is not that of partisanship normally expected in other circumstances. This consent must be in writing.

Paragraph (c)(3) is an application of the principle expressed in Rule 1.4. Where the lawyer is an intermediary, the clients ordinarily must assume greater responsibility for decisions than when each client is independently represented.

Withdrawal Common representation does not diminish the rights of each client in the client-lawyer

relationship. Each client has the right to loyal and diligent representation, the right to discharge the lawyer as stated in Rule 1.16, and the protection of Rule 1.9 concerning obligations to a former client.

Because of the obligations of a lawyer serving as an intermediary to the intermediation clients, the lawyer must withdraw from the representation if any of the intermediation clients so requests; if one or more of the clients denies the lawyer the authority to disclose certain information to any of the remaining clients, thereby preventing the lawyer from being able to discharge the lawyer's duties to the remaining clients to communicate with them and disclose information to them; or if any of the various predicate requirements for intermediation can no longer be satisfied.

Upon withdrawal from the role of intermediary or completion of an intermediation, the lawyer must afford all of the clients formerly served as an intermediary the protections of Rules 1.9 and 1.10.


RULE 2.3 EVALUATION FOR USE BY THIRD PERSONS

(a) A lawyer may undertake an evaluation of a matter affecting a client for the use of

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someone other than the client if:

(1) the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client; and

(2) The client gives informed consent in writing.

(b) Except as disclosure is required in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.


Comment

Definition. An evaluation may be performed at the client's direction but for the primary purpose of establishing information for the benefit of third parties; for example, an opinion concerning the title of property rendered at the behest of a vendor for the information of a prospective purchaser, or at the behest of a borrower for the information of a prospective lender. In some situations, the evaluation may be required by a government agency; for example, an opinion concerning the legality of the securities registered for sale under the securities laws. In other instances, the evaluation may be required by a third person, such as a purchaser of a business.

Lawyers for the government may be called upon to give a formal opinion on the legality of contemplated government agency action. In making such an evaluation, the government lawyer acts at the behest of the government as the client but for the purpose of establishing the limits of the agency's authorized activity. Such an opinion is to be distinguished from confidential legal advice given agency officials. The critical question is whether the opinion is to be made public.

A legal evaluation should be distinguished from an investigation of a person with whom the lawyer does not have a client-lawyer relationship. For example, a lawyer retained by a purchaser to analyze a vendor's title to property does not have a client-lawyer relationship with the vendor. So also, an investigation into a person's affairs by a government lawyer, or by special counsel employed by the government, is not an evaluation as that term is used in the Rule. The question is whether the lawyer is retained by the person whose affairs are being examined. When the lawyer is retained by that person, the general rules concerning loyalty to client and preservation of confidences apply, which is not the case if the lawyer is retained by someone else. For this reason, it is essential to identify the person by whom the lawyer is retained. This should be made clear not only to the person under

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examination, but also to others to whom the results are to be made available.

Duty to Third Person. When the evaluation is intended for the information or use of a third person, a legal duty to that person may or may not arise. That legal question is beyond the scope of this Rule. However, since such an evaluation involves a departure from the normal client-lawyer relationship, careful analysis of the situation is required. The lawyer must be satisfied as a matter of professional judgment that making the evaluation is compatible with other functions undertaken in behalf of the client. For example, if the lawyer is acting as advocate in defending the client against charges of fraud, it would normally be incompatible with that responsibility for the lawyer to perform an evaluation for others concerning the same or a related transaction. Assuming no such impediment is apparent, however, the lawyer should advise the client of the implications of the evaluation, particularly the lawyer's responsibilities to third persons and the duty to disseminate the findings.

Access to and Disclose of Information. The quality of an evaluation depends on the freedom and extent of the investigation upon which it is based. Ordinarily a lawyer should have whatever latitude of investigation seems necessary as a matter of professional judgment. Under some circumstances, however, the terms of the evaluation may be limited. For example, certain issues or sources may be categorically excluded, or the scope of search may be limited by time constraints or the noncooperation of persons having relevant information. Any such limitations which are material to the evaluation should be described in the report. If after a lawyer has commenced an evaluation, the client refuses to comply with the terms upon which it was understood the evaluation was to have been made, the lawyer's obligations are determined by law, having reference to the terms of the client's agreement and the surrounding circumstances.

Financial Auditors' Requests for Information. When a question concerning the legal situation of a client arises at the instance of the client's financial auditor and the question is referred to the lawyer, the lawyer's response may be made in accordance with procedures recognized in the legal profession. Such a procedure is set forth in the American Bar Association Statement of Policy Regarding Lawyers' Responses to Auditors' Requests for Information, adopted in 1975.

Code Comparison

There is no counterpart to Rule 2.3 in the Code.

RULE 2.4 LAWYERS SERVING AS THIRD PARTY NEUTRALS

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(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client.

[Adopted effective November 3, 2005.]

Comment

Alternative dispute resolution has become a substantial part of the civil justice system. Aside from representing clients in dispute-resolution processes, lawyers often serve as third-party neutrals. A third-party neutral is a person, such as a mediator, arbitrator, conciliator or evaluator, who assists the parties, represented or unrepresented, in the resolution of a dispute or in the arrangement of a transaction. Whether a third-party neutral serves primarily as a facilitator, evaluator or decision maker depends on the particular process that is either selected by the parties or mandated by a court.

The role of a third-party neutral is not unique to lawyers, although, in some court-connected contexts, only lawyers are allowed to serve in this role or to handle certain types of cases. In performing this role, the lawyer may be subject to court rules or other law that apply either to third-party neutrals generally or to lawyers serving as third-party neutrals. Lawyer-neutrals may also be subject to various codes of ethics, such as the Code of Ethics for Arbitration in Commercial Disputes prepared by a joint committee of the American Bar Association and the American Arbitration Association or the Model Standards of Conduct for Mediators jointly prepared by the American Bar Association, the American Arbitration Association and the Society of Professionals in Dispute Resolution.

Unlike non-lawyers who serve as third-party neutrals, lawyers serving in this role may experience unique problems as a result of differences between the role of a third-party neutral and a lawyer’s service as a client representative. The potential for confusion is significant when the parties are unrepresented in the process. Thus, paragraph (b) requires a lawyer-neutral to inform unrepresented parties that the lawyer is not representing them. For some parties, particularly parties who frequently use dispute-resolution processes, this information

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will be sufficient. For others, particularly those who are using the process for the first time, more information will be required. Where appropriate, the lawyer should inform unrepresented parties of the important differences between the lawyer’s role as third-party neutral and a lawyer’s role as a client representative, including the inapplicability of the attorney-client evidentiary privilege. The extent of disclosure required under this paragraph will depend on the particular parties involved and the subject matter of the proceeding, as well as the particular features of the dispute-resolution process selected.

A lawyer who serves as a third-party neutral subsequently may be asked to serve as a lawyer representing a client in the same matter. The conflicts of interest that arise for both the individual lawyer and the lawyer’s law firm are addressed in Rule 1.12.

Lawyers who represent clients in alterative dispute-resolution processes are governed by the Rules of Professional Conduct. When the dispute-resolution process takes place before a tribunal, as in binding arbitration, the lawyer’s duty of candor is governed by Rule 3.3 Otherwise, the lawyer’s duty of candor toward both the third-party neutral and other parties is governed by Rule 4.1

[Adopted effective November 3, 2005.]

ADVOCATE

RULE 3.1 MERITORIOUS CLAIMS AND CONTENTIONS

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and in fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

[Amended effective November 3, 2005 to add the phrase “in law and in fact.”]

Comment

The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of

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advocacy, account must be taken of the law's ambiguities and potential for change.

The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.

Code Comparison

DR 7-102(A)(1) provides that a lawyer may not "file a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another." Rule 3.1 is to the same general effect as DR 7-102(A)(1), with three qualifications. First, the test of improper conduct is changed from "merely to harass or maliciously injure another" to the requirement that there be a basis for the litigation measure involved that is "not frivolous." This includes the concept stated in DR 7-102(A)(2) that a lawyer may advance a claim or defense unwarranted by existing law if "it can be supported by good faith argument for an extension, modification, or reversal of existing law." Second, the test in Rule 3.1 is an objective test, whereas DR 7-102(A)(1) applies only if the lawyer "knows or when it is obvious" that the litigation is frivolous. Third, Rule 3.1 has an exception that in a criminal case, or a case in which incarceration of the client may result (for example, certain juvenile proceedings), the lawyer may put the prosecution to its proof even if there is no nonfrivolous basis for defense.

RULE 3.2 EXPEDITING LITIGATION

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

Comment

Dilatory practices bring the administration of justice into disrepute. Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial

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purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.

Code Comparison

DR 7-102(A)(1) provides that "A lawyer shall not ... file a suit, assert a position, conduct a defense (or) delay a trial ... when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another."

RULE 3.3 CANDOR TOWARD THE TRIBUNAL

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Comment

The advocate's task is to present the client's case with persuasive force. Performance of that duty while maintaining confidences of the client is qualified by the advocate's duty

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of candor to the tribunal. However, an advocate does not vouch for the evidence submitted in a cause; the tribunal is responsible for assessing its probative value.

Representations by a Lawyer. An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer. Compare Rule 3.1. However, an assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(d) not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Regarding compliance with Rule 1.2(d), see the Comment to that Rule. See also the Comment to Rule 8.4(b).

Misleading Legal Argument. Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(3), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.

False Evidence. When evidence that a lawyer knows to be false is provided by a person who is not the client, the lawyer must refuse to offer it regardless of the client's wishes.

When false evidence is offered by the client, however, a conflict may arise between the lawyer's duty to keep the client's revelations confidential and the duty of candor to the court. Upon ascertaining that material evidence is false, the lawyer should seek to persuade the client that the evidence should not be offered or, if it has been offered, that its false character should immediately be disclosed. If the persuasion is ineffective, the lawyer must take reasonable remedial measures.

Except in the defense of a criminal accused, the rule generally recognized is that, if necessary to rectify the situation, an advocate must disclose the existence of the client's deception to the court or to the other party. Such a disclosure can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperate in

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deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement. See Rule 1.2(d). Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer's advice to reveal the false evidence and insist that the lawyer keep silent. Thus the client could in effect coerce the lawyer into being a party to fraud on the court.

Perjury by a Criminal Defendant. Whether an advocate for a criminally accused has the same duty of disclosure has been intensely debated. While it is agreed that the lawyer should seek to persuade the client to refrain from perjurious testimony, there has been dispute concerning the lawyer's duty when that persuasion fails. If the confrontation with the client occurs before trial, the lawyer ordinarily can withdraw. Withdrawal before trial may not be possible, however, either because trial is imminent, or because the confrontation with the client does not take place until the trial itself, or because no other counsel is available.

The most difficult situation, therefore, arises in a criminal case where the accused insists on testifying when the lawyer knows that the testimony is perjurious. The lawyer's effort to rectify the situation can increase the likelihood of the client's being convicted as well as opening the possibility of a prosecution for perjury. On the other hand, if the lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court.

Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by a narrative without guidance through the lawyer's questioning. This compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to counsel. Another suggested resolution, of relatively recent origin, is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client. This is a coherent solution but makes the advocate a knowing instrument of perjury.

The other resolution of the dilemma is that the lawyer must reveal the client's perjury if necessary to rectify the situation. A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel. However, an accused should not have a right to assistance of counsel in committing perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence. See Rule 1.2(d).

Remedial Measures. If perjured testimony or false evidence has been offered, the advocate's proper course ordinarily is to remonstrate with the client confidentially. If that

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fails, the advocate should seek to withdraw if that will remedy the situation. If withdrawal will not remedy the situation or is impossible, the advocate should make disclosure to the court. It is for the court then to determine what should be done--making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing. If the false testimony was that of the client, the client may controvert the lawyer's version of their communication when the lawyer discloses the situation to the court. If there is an issue whether the client has committed perjury, the lawyer cannot represent the client in resolution of the issue, and a mistrial may be unavoidable. An unscrupulous client might in this way attempt to produce a series of mistrials and thus escape prosecution. However, a second such encounter could be construed as a deliberate abuse of the right to counsel and as such a waiver of the right to further representation.

Constitutional Requirements. The general rule--that an advocate must disclose the existence of perjury with respect to a material fact, even that of a client--applies to defense counsel in criminal cases, as well as in other instances. However, the definition of the lawyer's ethical duty in such a situation may be qualified by constitutional provisions for due process and the right to counsel in criminal cases. In some jurisdictions these provisions have been construed to require that counsel present an accused as a witness if the accused wishes to testify, even if counsel knows the testimony will be false. The obligation of the advocate under these Rules is subordinate to such a constitutional requirement.

Duration of Obligation. A practical time limit on the obligation to rectify the presentation of false evidence has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation.

Refusing to Offer Proof Believed to Be False. Generally speaking, a lawyer has authority to refuse to offer testimony or other proof that the lawyer believes is untrustworthy. Offering such proof may reflect adversely on the lawyer's ability to discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an advocate. In criminal cases, however, a lawyer may, in some jurisdictions, be denied this authority by constitutional requirements governing the right to counsel.

Ex Parte Proceedings. Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in an ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably

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believes are necessary to an informed decision.

Code Comparison

Rule 3.3(a)(1) is substantially identical to DR 7-102(A)(5), which provides that a lawyer shall not "knowingly make a false statement of law or fact."

Rule 3.3(a)(2) is implicit in DR 7-102(A)(3), which provides that "a lawyer shall not ... knowingly fail to disclose that which he is required by law to reveal."

Rule 3.3(a)(3) is identical to DR 7-106(B)(1).

With regard to Rule 3.3(a)(4), the first sentence of this subparagraph is similar to DR 7-102(A)(4), which provides that a lawyer shall not "knowingly use" perjured testimony or false evidence. The second sentence of Rule 3.3(a)(4) resolves an ambiguity in the Code concerning the action required of a lawyer when he discovers that he has offered perjured testimony or false evidence. DR 7-102(A)(4), quoted above, does not expressly deal with this situation, but the prohibition against "use" of false evidence can be construed to preclude carrying through with a case based on such evidence when that fact has become known during the trial. DR 7-102(B)(1), also noted in connection with Rule 1.6, provides that "a lawyer who receives information clearly establishing that ... his client has ... perpetrated a fraud upon ... a tribunal shall if the client does not rectify the situation ... reveal the fraud to the ... tribunal...." Since use of perjured testimony or false evidence is usually regarded as "fraud" upon the court, DR 7-102(B)(1) apparently requires disclosure by the lawyer in such circumstances. However, some states have amended DR 7-102(B)(1) in conformity with an ABA-recommended amendment to provide that the duty of disclosure does not apply when the "information is protected as a privileged communication." This qualification may be empty, for the rule of attorney-client privilege has been construed to exclude communications that further a crime, including the crime of perjury. On this interpretation of DR 7-102(B)(1), the lawyer has a duty to disclose the perjury.

Rule 3.3(c) confers discretion on the lawyer to refuse to offer evidence that he "reasonably believes" is false. This gives the lawyer more latitude than DR 7-102(A)(4), which prohibits the lawyer from offering evidence the lawyer "knows" is false.

There is no counterpart in the Code to paragraph (d).

RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL

A lawyer shall not:

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(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

Comment

The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.

Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose

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commencement can be foreseen. Falsifying evidence is also generally a criminal offense. Paragraph (a) applies to evidentiary material generally, including computerized information.

With regard to paragraph (b), it is not improper to pay a witness's expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.

Paragraph (f) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client. See also Rule 4.2.

Code Comparison

With regard to Rule 3.4(a), DR 7-109(A) provides that "a lawyer shall not suppress any evidence that he or his client has a legal obligation to reveal." DR 7-109(B) provides that "a lawyer shall not advise or cause a person to secrete himself ... for the purpose of making him unavailable as a witness...." DR 7-106(C)(7) provides that a lawyer shall not "intentionally or habitually violate any established rule of procedure or of evidence."

With regard to Rule 3.4(b), DR 7-102(B)(6) provides that a lawyer shall not "participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false." DR 7-109 provides that "a lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent on the content of his testimony or the outcome of the case. But a lawyer may advance, guarantee or acquiesce in the payment of: (1) expenses reasonably incurred by a witness in attending or testifying; (2) reasonable compensation to a witness for his loss of time in attending or testifying; (or) (3) a reasonable fee for the professional services of an expert witness." EC 7-28 states that "witnesses should always testify truthfully and should be free from any financial inducements that might tempt them to do otherwise."

Rule 3.4(c) is substantially similar to DR 7-106(A), which provides that "A lawyer shall not disregard ... a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling."

Rule 3.4(d) has no counterpart in the Code.

Rule 3.4(e) substantially incorporates DR 7-106(C)(1), (2), (3) and (4). DR 7-106(C)(2) proscribes asking a question "intended to degrade a witness or other person," a

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matter dealt with in Rule 4.4. DR 7-106(C)(5), providing that a lawyer shall not "fail to comply with known local customs of courtesy or practice," is too vague to be a rule of conduct enforceable as law.

With regard to Rule 3.4(f), DR 7-104(A)(2) provides that a lawyer shall not "give advice to a person who is not represented ... other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client."

RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;

(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;

(c) communicate with a juror or prospective juror after discharge of the jury if:

(1) the communication is prohibited by law or court order: or

(2) the juror has made known to the lawyer a desire not to communicate.

(d) engage in conduct intended to disrupt a tribunal.

[Amended effective November 3, 2005 to add new subsection (c).]

Comment

Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in the Code of Judicial Conduct, with which an advocate should be familiar. A lawyer is required to avoid contributing to a violation of such provisions.

The advocate's function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge's default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for

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subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.

Code Comparison

With regard to Rule 3.5(a), DR 7-108(A) provides that "before the trial of a case a lawyer ... shall not communicate with ... anyone he knows to be a member of the venire ...." DR 7-108(B) provides that "during the trial of a case ... a lawyer ... shall not communicate with ... a juror concerning the case." DR 7-109(C) provides that a lawyer shall not "communicate ... as to the merits of the cause with a judge or an official before whom the proceeding is pending except ... upon adequate notice to opposing counsel ... (or) as otherwise authorized by law."

With regard to Rule 3.5(b), DR 7-106(C)(6) provides that a lawyer shall not "engage in undignified or discourteous conduct which is degrading to a tribunal."

RULE 3.6 TRIAL PUBLICITY

(a) A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

(b) A statement referred to in paragraph (a) ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to:

(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;

(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement;

(3) the performance or results of any examination or test of the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;

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(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;

(5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial; or

(6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

(c) Notwithstanding paragraph (a) and (b)(1-5), a lawyer involved in the investigation or litigation of a matter may state without elaboration:

(1) the general nature of the claim or defense;

(2) the information contained in a public record;

(3) that an investigation of the matter is in progress, including the general scope of the investigation, the offense or claim or defense involved and, except when prohibited by law, the identity of the persons involved;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

(7) in a criminal case:

(i) the identity, residence, occupation and family status of the accused;

(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;

(iii) the fact, time and place of arrest; and

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(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

Comment

It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.

No body of rules can simultaneously satisfy all interests of fair trial and all those of free expression. The formula in this Rule is based upon the ABA Model Code of Professional Responsibility and the ABA Standards Relating to Fair Trial and Free Press, as amended in 1978.

Special rules of confidentiality may validly govern proceedings in juvenile, domestic relations and mental disability proceedings, and perhaps other types of litigation. Rule 3.4(c) requires compliance with such Rules.

Code Comparison

Rule 3.6 is similar to DR 7-107, except as follows: First, Rule 3.6 adopts the general criteria of "substantial likelihood of materially prejudicing an adjudicative proceeding" to describe impermissible conduct. Second, Rule 3.6 transforms the particulars in DR 7-107 into an illustrative compilation that gives fair notice of conduct ordinarily posing unacceptable dangers to the fair administration of justice. Finally, Rule 3.6 omits DR 7-107(C)(7), which provides that a lawyer may reveal "at the time of seizure, a description of the physical evidence seized, other than a confession, admission or statement." Such revelations may be substantially prejudicial and are frequently the subject of pretrial suppression motions, which, if successful, may be circumvented by prior disclosure to the press.

RULE 3.7 LAWYER AS WITNESS

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(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

Comment

Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client.

The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in the dual role are purely theoretical. Paragraph (a)(2) recognizes that where the testimony concerns the extent and value of legal services rendered in the action in which the testimony is offered, permitting the lawyers to testify avoids the need for a second trial with new counsel to resolve that issue. Moreover, in such a situation the judge has first hand knowledge of the matter in issue; hence, there is less dependence on the adversary process to test the credibility of the testimony.

Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing is required between the interests of the client and those of the opposing party. Whether the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in

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determining whether the lawyer should be disqualified due regard must be given to the effect of disqualification on the lawyer's client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness. The principle of imputed disqualification stated in Rule 1.10 has no application to this aspect of the problem.

Whether the combination of roles involves an improper conflict of interest with respect to the client is determined by Rule 1.7 or 1.9. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer or a member of the lawyer's firm, the representation is improper. The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party. Determining whether or not such a conflict exists is primarily the responsibility of the lawyer involved. See Comment to Rule 1.7. If a lawyer who is a member of a firm may not act as both advocate and witness by reason of conflict of interest, Rule 1.10 disqualifies the firm also.

Code Comparison

DR 5-102(A) prohibits a lawyer, or the lawyer's firm, from serving as advocate if the lawyer "learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client." DR 5-102(B) provides that a lawyer, and the lawyer's firm, may continue representation if the "lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client ... until it is apparent that his testimony is or may be prejudicial to his client." DR 5-101(B) permits a lawyer to testify while representing a client: "(1) If the testimony will relate solely to an uncontested matter; (2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client; (4) As to any matter if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case."

The exception stated in (a)(1) consolidates provisions of DR 5-101(B)(1) and (2). Testimony relating to a formality, referred to in DR 5-101(B)(2), in effect defines the phrase "uncontested issue," and is redundant.


RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR

The prosecutor in a criminal case shall:

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(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

(e) exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6.

Comment

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. See also Rule 3.3(d), governing ex parte proceedings, among which grand jury proceedings are included. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.

With reference to paragraphs (b) and (d), see Mississippi Uniform Criminal Rules of Circuit Court Practice, 1.04 and 4.06.

Paragraph (c) does not apply to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of a suspect who has knowingly waived

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the rights to counsel and silence.

The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.

Code Comparison

DR 7-103(A) provides that "A public prosecutor ... shall not institute ... criminal charges when he knows or it is obvious that the charges are not supported by probable cause." DR 7-103(B) provides that "A public prosecutor ... shall make timely disclosure ... of the existence of evidence, known to the prosecutor ... that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment."

RULE 3.9 ADVOCATE IN NON-ADJUDICATIVE PROCEEDINGS

A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.

[Amended effective November 3, 2005 to adopt language: “legislative body or administrative agency” to replace prior text.]

Comment

In representation before bodies such as legislature, municipal councils, and executive and administrative agencies acting in a rule-making or policy-making capacity, lawyers present facts, formulate issues and advance argument in the matters under consideration. The decision-making body, like a court, should be able to rely on the integrity of the submissions made to it. A lawyer appearing before such a body should deal with the tribunal honestly and in conformity with applicable rules of procedure.

Lawyers have no exclusive right to appear before nonadjudicative bodies, as they do before a court. The requirements of this Rule therefore may subject lawyers to regulations inapplicable to advocates who are not lawyers. However, legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts.

This Rule does not apply to representation of a client in a negotiation or other bilateral

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transaction with a governmental agency; representation in such a transaction is governed by Rules 4.1 through 4.4.

Code Comparison

EC 7-15 states that "A lawyer appearing before an administrative agency, regardless of the nature of the proceeding it is conducting, has the continuing duty to advance the cause of his client within the bounds of the law." EC 7-16 states that "When a lawyer appears in connection with proposed legislation, he ... should comply with applicable laws and regulations." EC 8-5 states that "Fraudulent, deceptive, or otherwise illegal conduct by a participant in a proceeding before a ... legislative body should never be participated in ... by lawyers." DR 7-106(B)(1) provides that "In presenting a matter to a tribunal, a lawyer shall disclose ... unless privileged or irrelevant, the identity of the clients he represents and of the persons who employed him."

TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

RULE 4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.

Comment

Misrepresentation. A lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act.

Statements of Fact. This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a

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transaction and a party's intentions as to an acceptable settlement of a claim are in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.

Fraud by Client. Paragraph (b) recognizes that substantive law, for example, Miss. Code Ann. Section 97-1-3 (1972), may require a lawyer to disclose certain information to avoid being deemed to have assisted the client's crime or fraud. The requirement of disclosure created by this paragraph is, however, subject to the obligations created by Rule 1.6.

Code Comparison

Rule 4.1(a) is substantially similar to DR 7-102(A)(5), which states that "In his representation of a client, a lawyer shall not ... knowingly make a false statement of law or fact."

With regard to Rule 4.1(b), DR 7-102(A)(3) provides that a lawyer shall not "conceal or knowingly fail to disclose that which he is required by law to reveal."

RULE 4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Comment

This Rule does not prohibit communication with a party, or an employee or agent of a party, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Also, parties to a matter may communicate directly with each other and a lawyer having independent justification for communicating with the other party is permitted to do so. Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter.

In the case of an organization, this rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection

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with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f).

This Rule also covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question.

Code Comparison

This Rule is substantially identical to DR 7-104(A)(1).

RULE 4.3 DEALING WITH UNREPRESENTED PERSON

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonably possibility of being in conflict with the interests of the client. In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

[Amended effective November 3, 2005 to cover giving legal advice to unrepresented persons.]

Comment

An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. During the course of a lawyer's representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel.

Code Comparison

There is no direct counterpart to this Rule in the Code. DR 7-104(A)(2) provides that

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a lawyer shall not "give advice to a person who is not represented by a lawyer, other than the advice to secure counsel...."

See Supplement to MSB Ethics Opinion No. 80.

RULE 4.4 RESPECT FOR RIGHTS OF THIRD PERSONS

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

(b) A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.

[Amended effective November 3, 2005 to add new subsection (b).]

Comment

Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the attorney-client relationship.

Paragraph (b) recognizes that lawyers sometimes receive documents that were mistakenly sent or produced by opposing parties or other lawyers. If a lawyer knows or reasonably should know that such a document was sent inadvertently, then this rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a document has been waived. Similarly, this rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. For purposes of this rule, “document” includes e-mail or other electronic modes of transmission subject to being read or put into readable form.

Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it is inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return

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such a document is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.


Code Comparison

DR 7-106(C)(2) provides that a lawyer shall not "ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person." DR 7-102(A)(1) provides that a lawyer shall not "take ... action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another." DR 7-108(D) provides that "after discharge of the jury ... the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror ..." DR 7-108(E) provides that "a lawyer shall not conduct ... a vexatious or harassing investigation of either a venireman or a juror."

LAW FIRMS AND ASSOCIATIONS

RULE 5.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the rules of professional conduct.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the rules of professional conduct.

(c) A lawyer shall be responsible for another lawyer's violation of the rules of professional conduct if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner in the law firm or has comparable managerial authority in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

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[Amended effective November 3, 2005 to include in coverage not only partners but also those in comparable managerial authority.]

Comment

Paragraphs (a) and (b) refer to lawyers who have supervisory and/or managerial authority over the professional work of a firm or legal department of a government agency. This includes members of a partnership and, the shareholders in a law firm organized as a professional corporation, and members of other associations authorized to practice law; lawyers having comparable managerial authority in a legal services organization or a law department of an enterprise or government agency; and lawyers who have immediate managerial responsibilities in a firm. Paragraph (b) applies to lawyers who have supervisory authority over the work of other lawyers in a firm.

Paragraph (a) requires lawyers with managerial authority within a firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct. Such policies and procedures include those designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property and ensure that inexperienced lawyers are properly supervised.

The measures required to fulfill the responsibility prescribed in paragraphs (a) and (b) can depend on the firm's structure and the nature of its practice. In a small firm, informal supervision and occasional admonition ordinarily might be sufficient. In a large firm, or in practice situations in which intensely difficult ethical problems frequently arise, more elaborate procedures may be necessary. Some firms, for example, have a procedure whereby junior lawyers can make confidential referral of ethical problems directly to a designated senior partner or special committee. See Rule 5.2. Firms, whether large or small, may also rely on continuing legal education in professional ethics. In any event, the ethical atmosphere of a firm can influence the conduct of all its members and a lawyer having authority over the work of another may not assume that the subordinate lawyer will inevitably conform to the Rules.

Paragraph (c)(1) expresses a general principle of responsibility for acts of another. See also Rule 8.4(a).

Paragraph (c)(2) defines the duty of a lawyer having direct supervisory authority over performance of specific legal work by another lawyer. Whether a lawyer has such supervisory authority in particular circumstances is a question of fact. Partners of a private firm have at least indirect responsibility for all work being done by the firm, while a partner

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in charge of a particular matter ordinarily has direct authority over other firm lawyers engaged in the matter. Appropriate remedial action by a partner would depend on the immediacy of the partner's involvement and the seriousness of the misconduct. The supervisor is required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that the misconduct occurred. Thus, if a supervising lawyer knows that a subordinate misrepresented a matter to an opposing party in negotiation, the supervisor as well as the subordinate has a duty to correct the resulting misapprehension.

Professional misconduct by a lawyer under supervision could reveal a violation of paragraph (b) on the part of the supervisory lawyer even though it does not entail a violation of paragraph (c) because there was no direction, ratification or knowledge of the violation.

Apart from this Rule and Rule 8.4(a), a lawyer does not have disciplinary liability for the conduct of a partner, associate or subordinate. Whether a lawyer may be liable civilly or criminally for another lawyer's conduct is a question of law beyond the scope of these Rules.

The duties imposed by this Rule on managing and supervising lawyers do not alter the personal duty of each lawyer in a firm to abide by the Rules of Professional Conduct. See Rule 5.2(a).


Code Comparison

There is no direct counterpart to this Rule in the Code. DR 1-103(A) provides that "A lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to ... authority empowered to investigate or act upon such violation."

RULE 5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER

(a) A lawyer is bound by the rules of professional conduct notwithstanding that the lawyer acted at the direction of another person.

(b) A subordinate lawyer does not violate the rules of professional conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

Comment

Although a lawyer is not relieved of responsibility for a violation by the fact that the

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lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a lawyer had the knowledge required to render conduct a violation of the Rules. For example, if a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a professional violation unless the subordinate knew of the document's frivolous character.

When lawyers in a supervisor-subordinate relationship encounter a matter involving professional judgment as to ethical duty, the supervisor may assume responsibility for making the judgment. Otherwise a consistent course of action or position could not be taken. If the question can reasonably be answered only one way, the duty of both lawyers is clear and they are equally responsible for fulfilling it. However, if the question is reasonably arguable, someone has to decide upon the course of action. That authority ordinarily reposes in the supervisor, and a subordinate may be guided accordingly. For example, if a question arises whether the interests of two clients conflict under Rule 1.7, the supervisor's reasonable resolution of the question should protect the subordinate professionally if the resolution is subsequently challenged.

Code Comparison

There is no counterpart to this Rule in the Code.

RULE 5.3 RESPONSIBILITIES REGARDING NON-LAWYER ASSISTANTS

With respect to a non-lawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer;

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

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(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

[Amended effective November 3, 2005 to add scope to include as well as partners, other lawyers possessing managerial authority]

Comment

Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in the rendition of the lawyer’s professional services. A lawyer must make reasonable efforts to give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising non-lawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.

Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that non-lawyers in the firm will act in a way compatible with the Rules of Professional Conduct. See Comment to Rule 5.1. Paragraph (b) applies to lawyers who have supervisory authority over the work of a nonlawyer. Paragraph (c) specifies the circumstances in which a lawyer is responsible for conduct of a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.


Code Comparison

There is no direct counterpart to this Rule in the Code. DR 4-101(D) provides that "A lawyer shall exercise reasonable care to prevent his employees, associates and others whose services are utilized by him from disclosing or using confidences or secrets of a client...." DR 7-107(J) provides that "A lawyer shall exercise reasonable care to prevent his employees and associates from making an extrajudicial statement that he would be prohibited from making under DR 7-107."

RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER

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(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons;

(2) a lawyer who purchases the practice of law of a deceased, disabled or disappeared lawyer may pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price; and

(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.

(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.

(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) a nonlawyer is a corporate director or officer thereof; or

(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

[Amended August 20, 1998].

Comment

The provisions of this Rule express traditional limitations on sharing fees. These

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limitations are to protect the lawyer's professional independence of judgment. Where someone other than the client pays the lawyer's fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer's obligation to the client. As stated in paragraph (c), such arrangements should not interfere with the lawyer's professional judgment.

Code Comparison

DR 3-102(a) provides that "A lawyer or law firm shall not share legal fees with a nonlawyer ...." DR 3-103(A) provides that "A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law." DR 5-107(B) provides that "A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services." DR 5-107(C) provides that "A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: (1) A nonlawyer owns any interests therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) A nonlawyer is a corporate director or officer thereof; or (3) A nonlawyer has the right to direct or control the professional judgment of the lawyer." EC 5-24 states that "A lawyer should not practice with or in the form of a professional legal corporation, even though the corporate form is permitted by law, if any director, officer, or stockholder of it is a nonlawyer. Although a lawyer may be employed by a business corporation with nonlawyers serving as directors or officers, and they necessarily have the right to make decisions of business policy, a lawyer must decline to accept direction of his professional judgment from any layman. Various types of legal aid offices are administered by boards of directors composed of lawyers and laymen. A lawyer should not accept employment from such an organization unless the board sets only broad policies and there is no interference in the relationship of the lawyer and the individual client he serves. Where a lawyer is employed by an organization, a written agreement that defines the relationship between him and the organization and provides for his independence is desirable since it may serve to prevent misunderstanding as to their respective roles. Although other innovations in the means of supplying legal counsel may develop, the responsibility of the lawyer to maintain his professional independence remains constant ...."

See MSB Ethics Opinions Nos. 25, 32, 33 and 91.

RULE 5.5 UNAUTHORIZED PRACTICE OF LAW

A lawyer shall not:

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(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or

(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.

Comment

The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. Paragraph (b) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3. Likewise, it does not prohibit lawyers from providing professional advice and instruction to nonlawyers whose employment requires knowledge of law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.

Code Comparison

With regard to Rule 5.5(a), DR 3-101(B) of the Code provides that "A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction."

With regard to Rule 5.5(b), DR 3-101(A) of the Code provides that "A lawyer shall not aid a nonlawyer in the unauthorized practice of law."

See MSB Ethics Opinions Nos. 25, 32, 33 and 96.

RULE 5.6 RESTRICTIONS ON RIGHT TO PRACTICE

A lawyer shall not participate in offering or making:

(a) a partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or

(b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a controversy between private parties.

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This Rule does not prohibit restrictions that may be included in the terms of the sale of a law practice pursuant to Rule 1.17.

[Amended August 20, 1998].

Comment

An agreement restricting the right of partners or associates to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer. Paragraph (a) prohibits such agreements except for restrictions incident to provisions concerning retirement benefits for service with the firm.

Paragraph (b) prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.

Code Comparison

Rule 5.6 is substantially similar to DR 2-108.

PUBLIC SERVICE

RULE 6.1 VOLUNTARY PRO BONO PUBLIC SERVICE

(a) Professional Responsibility. Each member of the Mississippi Bar in good standing and not exempt hereunder, as part of the member’s professional responsibility, should (1) render pro bono legal services to the poor and (2) participate, to the extent possible, in other pro bono service activities that directly relate to the legal needs of the poor.

(b) Discharge of the Professional Responsibility to Provide Pro Bono Legal Services to the Poor. The professional responsibility to provide pro bono legal services to the poor may be discharged by:

(1) annually providing at least 20 hours of pro bono legal services to the poor, or

(2) annually providing at least 20 hours of pro bono legal services to charitable, religious, civic, community, governmental or educational organizations for the purpose of providing legal counsel and representation to the poor, or

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(3) making an annual contribution of at least $200 to the Mississippi Bar, which will be used by the Bar to provide legal services to the poor through legal aid organizations.

(c) Collective Discharge of the Professional Responsibility to Provide Pro Bono Legal Service to the Poor. Each member of the bar should strive to individually satisfy the member’s professional responsibility to provide pro bono legal service to the poor. Collective satisfaction of this professional responsibility is permitted by law firms only under a collective satisfaction plan that has been previously approved by The Mississippi Bar and only when providing pro bono legal services to the poor

(1) in a major case or matter involving a substantial expenditure of time and resources; or

(2) through a full-time community or public service staff, or

(3) in any other manner that has been approved by The Mississippi Bar.

(d) Exemptions. Those exempt from the provisions of this rule are:

(1) those lawyers who are restricted from practicing law outside their specific employment,

(2) members of the judiciary and their staff,

(3) other government lawyers who are prohibited from performing legal services by constitutional, statutory, rule, other regulatory prohibitions, or by employment policies,

(4) attorneys employed in established Legal Services Programs, and

(5)members of the bar who have acquired inactive or active exempt status or who are suspended.

Nevertheless, exempt attorneys are encouraged to assist in meeting the needs of the poor for legal services to the extent that they can, whether by monetary contributions or otherwise.

(e) Reporting Requirement. Each member of the bar shall annually certify whether the member has satisfied the member’s professional responsibility to provide pro bono legal services to the poor. Each member shall certify this information through a form that is made

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a part of the member’s annual membership fees statement which shall require the member to report the following information:

(1) the number of hours the attorney dedicated to pro bono legal services,

(2) whether the attorney satisfied the obligation through a collective plan, the name or nature of that plan, and

(3) if the attorney has satisfied the obligation by contribution, the amount of that contribution.

If the attorney has not provided pro bono legal services to the poor in the current year, the form shall so state, and the reason for non-compliance shall be stated. If the attorney is exempt from the obligation to provide pro bono services to the poor, the report shall so state and indicate the nature of the exemption.

(f) Compliance.

The provisions of Rule 6.1(b) are aspirational goals and an affirmation of professional responsibility, but are not mandatory and do not constitute a basis for discipline under the Rules of Discipline for the Mississippi Bar.

The reporting requirements of Rule 6.1(e) are mandatory and the failure to report this information shall be treated in the same manner as failure to pay dues or comply with mandatory Continuing Legal Education.

The Bar shall from time to time, but at least annually, provide the Supreme Court with statistical data regarding compliance, providing such information in such form as the Chief Justice shall direct.

(g) Credit Toward Professional Responsibility in Future Years. In the event that more than 20 hours of pro bono legal service to the poor are provided and reported in any 1 year, the hours in excess of 20 may be carried forward and reported as such for up to 2 succeeding years.

[Amended effective September 12, 1996; amended effective March 24, 2005.]

Comment

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Every lawyer, regardless of professional prominence or professional work load, has a responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. All lawyers are urged to provide a minimum of 20 hours of pro bono services to the poor annually. Pro bono legal service to the poor is an integral and particular part of a lawyer's pro bono public service responsibility. As our society has become one in which rights and responsibilities are increasingly defined in legal terms, access to legal services has become of critical importance. This is true for all people, be they rich, poor, or of moderate means. However, because the legal problems of the poor often involve areas of basic need, their inability to obtain legal services can have dire consequences. The vast unmet legal needs of the poor in Mississippi have been recognized by the Supreme Court of Mississippi. The Supreme Court has further recognized the necessity of finding a solution to the problem of providing the poor greater access to legal service and the unique role of lawyers in our adversarial system of representing and defending persons against the actions and conduct of governmental entities, individuals, and non-governmental entities. As an officer of the court, each member of The Mississippi Bar in good standing has a professional responsibility to provide pro bono legal service to the poor.

Certain lawyers, however, are prohibited from performing legal services outside their employment by constitutional, statutory, rule, or other regulatory prohibitions, or by the policies of their employers. Consequently, members of the judiciary and their staffs, government lawyers who are prohibited from performing legal services by constitutional, statutory, rule, or regulatory prohibitions, members of the bar who are inactive, or suspended are exempt from participation in this program. Those exempt (other than those suspended) and others who, although licensed to do so, do not engage in the practice of law and those who are prevented by their employment from performing legal services for those other than their employers, are, however, encouraged to meet the professional responsibility to render public service to the extent that they can. For definition of “inactive members,” see Miss. Code Ann. § 73-3-120(b). These attorneys, should attempt to serve the public good through activities which do not involve pro bono services but promote the public understanding of the legal system. These might include serving, without compensation, in public information and educational programs such as Law Day programs, high school moot court programs, CLE programs and the like.

Attorneys who are employed in Legal Services Programs are specifically exempt, it being recognized that they have chosen to dedicate their entire professional activities to assisting the poor.

In discharging the professional responsibility to provide pro bono legal service to the poor, each lawyer should furnish a minimum of twenty hours of pro bono legal service to the

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poor annually or contribute $200 to the Mississippi Bar, which will be used by the Bar to provide legal services to indigents through legal aid organizations. “Pro bono legal service" means legal service rendered without charge or expectation of a fee for the lawyer at the time the service commences. Legal services written off as bad debts do not qualify as pro bono service. Most pro bono service should involve civil proceedings where there is no governmental obligation to provide counsel, given that government must provide indigent representation in most criminal matters. Pro bono legal service to the poor is to be provided not only to those persons whose household incomes are below the federal poverty standard but also to those persons society sees as unable to pay for legal services, those frequently referred to as the "working poor." Lawyers providing pro bono legal service on their own need not undertake an investigation to determine client eligibility. Rather, a good faith determination by the lawyer of client eligibility is sufficient. Pro bono legal service to the poor need not be provided only through legal services to individuals; it can also be provided through legal services to charitable, religious, or educational organizations whose overall mission and activities are designed predominantly to address the needs of the poor. For example, legal service to organizations such as a church, civic, or community service organizations relating to a project seeking to address the problems of the poor would qualify. Awards of statutory attorney’s fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section.

While the personal involvement of each lawyer in the provision of pro bono legal service to the poor is generally preferable, such personal involvement may not always be possible or produce the ultimate desired result, that is, a significant maximum increase in the quantity and quality of legal service provided to the poor. The annual contribution alternative recognizes a lawyer's professional responsibility to provide financial assistance to increase and improve the delivery of legal service to the poor when a lawyer cannot or decides not to provide legal service to the poor through the contribution of time. Also, there is no prohibition against a lawyer contributing a combination of hours and financial support.

The amount of dollar contribution does not and is not intended to equate with 20 hours of services at the customary hourly rate of private practitioner. It does, however, provide an alternative recognizing that contributions to established legal services organizations can, in some cases, provide a more efficient mechanism for reaching those in need.

The limited provision allowing for collective satisfaction of the 20-hour standard recognizes the importance of encouraging law firms to undertake the pro bono legal representation of the poor in substantial, complex matters requiring significant expenditures of law firm resources and time and costs, and through the establishment of full-time community or public service staffs. When a law firm uses collective satisfaction, the total hours of legal services provided in such substantial, complex matters or through a full-time

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community or public service staff should be credited among the firm's lawyers in a fair and reasonable manner as determined by the firm.

Neither providing pro bono services nor contributing is mandatory and failure to do so does not result in discipline as a violation of the Rules of Professional Conduct under the Rules of Discipline. However, attorneys are required to comply with the reporting requirements of Rule 6.1(e). The simple reporting requirement of Rule 6.1(e) is designed to provide a sound basis for evaluating the results achieved by this rule, and to remind lawyers of their professional responsibility under this rule. The reporting is designed to be as simple as possible, and does not require itemization of services rendered. Failure to comply with the reporting requirements is handled in the same manner as failure to pay bar dues.

It is recognized that in some years a lawyer may render greater or fewer hours than the annual standard specified, but during the course of his or her legal career, each lawyer should render on average per year, the number of hours set forth in this Rule. Services can be performed in civil matters or in criminal or quasi-criminal matters for which there is no government obligation to provide funds for legal representation.

[Comment amended September 12, 1996; amended effective March 24, 2005.] RULE 6.2 ACCEPTING APPOINTMENTS

A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:

(a) representing the client to likely to result in violation of the rules of professional conduct or other law;

(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or

(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.

Comment

A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant. The lawyer's freedom to select clients is, however, qualified. All lawyers have a responsibility to assist in providing pro bono publico service. See Rule 6.1. An individual lawyer fulfills this responsibility by accepting a fair share of unpopular

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matters or indigent or unpopular clients. A lawyer may also be subject to appointment by a court to service unpopular clients or persons unable to afford legal services.

Appointed Counsel. For good cause a lawyer may seek to decline an appointment to represent a person who cannot afford to retain counsel or whose cause is unpopular. Good cause exists if the lawyer could not handle the matter competently, see Rule 1.1, or if undertaking the representation would result in an improper conflict of interest, for example, when the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. A lawyer may also seek to decline an appointment if acceptance would be unreasonably burdensome, for example, when it would impose a financial sacrifice so great as to be unjust.

An appointed lawyer has the same obligations to the client as retained counsel, including the obligations of loyalty and confidentiality, and is subject to the same limitations on the client-lawyer relationship, such as the obligation to refrain from assisting the client in violation of the Rules.

Code Comparison

There is no counterpart to Rule 6.2 in the Disciplinary Rules of the Code. EC 2-29 states that "When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, he should not seek to be excused from undertaking the representation except for compelling reason. Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case." EC 2-30 states that "a lawyer should decline employment if the intensity of his personal feelings, as distinguished from a community attitude, may impair his effective representation of a prospective client."

RULE 6.3 MEMBERSHIP IN LEGAL SERVICES ORGANIZATION

A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:

(a) if participating in the decision would be incompatible with the lawyer's obligations to a client under Rule 1.7; or

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(b) where the decision could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer.

Comment

Lawyers should be encouraged to support and participate in legal service organizations. A lawyer who is an officer or a member of such an organization does not thereby have a client-lawyer relationship with persons served by the organization. However, there is potential conflict between the interests of such persons and the interests of the lawyer's clients. If the possibility of such conflict disqualified a lawyer from serving on the board of a legal services organization, the profession's involvement in such organizations would be severely curtailed.

It may be necessary in appropriate cases to reassure a client of the organization that the representation will not be affected by conflicting loyalties of a member of the board. Established, written policies in this respect can enhance the credibility of such assurances.

Code Comparison


RULE 6.4 LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS

A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.

Comment

Lawyers involved in organizations seeking law reform generally do not have a client-lawyer relationship with the organization. Otherwise, it might follow that a lawyer could not be involved in a bar association law reform program that might indirectly affect a client. See also Rule 1.2(b). For example, a lawyer specializing in antitrust litigation might be regarded as disqualified from participating in drafting revisions of rules governing that subject. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7. A lawyer is professionally obligated to protect the integrity of the program by making an appropriate disclosure within the organization when the lawyer knows a private client might be materially

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benefitted.

Code Comparison


INFORMATION ABOUT LEGAL SERVICES

RULE 7.1 COMMUNICATIONS CONCERNING A LAWYER'S SERVICES

A lawyer shall not make or permit to be made a false, misleading, deceptive or unfair

communication about the lawyer or lawyer's services. A communication violates this rule if it:

(a) Contains a material misrepresentation of fact or law or omits a fact necessary to

make the statement considered as a whole not materially misleading, or

(b) Creates an unjustified, false or misleading expectation about results the lawyer can

achieve, or states or implies that the lawyer can achieve results by means that violate these rules or other law; or

(c) states or implies that the lawyer is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official; or

(d) Compares the lawyer's services with other lawyers' services unless the comparison can be factually substantiated.

[Amended effective June 22, 1994; amended February 11, 1999; amended May 29, 1999; amended effective September 1, 2003, suspended by Order of August 8, 2003, reinstated effective October 1, 2004.]

RULE 7.2 ADVERTISING

(a) An advertisement is an active quest for clients involving a public or non-public

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communication. The term “advertisement” includes, but is not limited to, communication by means of telephone, television, radio, motion picture, computer-accessed communication, newspaper, sign, directory, listing or through written communication.

(b) A lawyer who advertises a specific fee or range of fees for a particular service

shall honor the advertised fee or range of fees for at least 90 days unless the advertisement specifies a longer period; provided that for advertisements in the yellow pages of telephone directories or other media not published more frequently than annually, the advertised fee or range of fees shall be honored for no less than one year following publication.

(c) All advertisements and written communications provided for under these rules

shall disclose the geographic location by city and state of one or more offices of the lawyer or lawyers whose services are advertised or shall state that additional information about the lawyer or firm can be obtained by contacting the Mississippi Bar at a number designated by the Bar and included in the advertisement.

(d) All advertisements and written communications pursuant to these Rules shall include the name of at least one lawyer or the lawyer referral service responsible for their content. A lawyer shall not advertise services under a name that violates the provisions of Rule 7.7.

(e) No lawyer shall directly or indirectly pay all or a part of the cost of an

advertisement by a lawyer not in the same firm unless the advertisement discloses the name and address of the nonadvertising lawyer, the relationship between the advertising lawyer and the nonadvertising lawyer, and whether the advertising lawyer may refer any case received through the advertisement to the nonadvertising lawyer.

(f) The following information in advertisements and written communications shall be

presumed not to violate the provisions of Rule 7.1:

(1) Subject to the requirements of this Rule and Rule 7.7, the name of the lawyer or law firm, a listing of lawyers associated with the firm, office addresses and telephone numbers, office and telephone service hours, and a designation such as "attorney" or "law firm."

(2) Date of admission to The Mississippi Bar and any other Bars and a listing of federal courts and jurisdictions other than Mississippi where the lawyer is licensed to practice.

(3) Foreign language ability.

(4) Prepaid or group legal service plans in which the lawyer participates.

(5) Acceptance of credit cards.

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(6) Fee for initial consultation and fee schedule, subject to the requirements

of paragraph (b) of this Rule.

(7) A listing of the name and geographic location by city and state of one

or more offices of a lawyer or law firm as a sponsor of a public service announcement or charitable, civic or community program or event.

(g) Nothing in this Rule prohibits the inclusion of the name of a lawyer or law firm

in law lists and law directories intended primarily for the use of the legal profession of such information as has traditionally been included in these publications.

(h) A copy or recording of an advertisement or written or recorded communication

shall be submitted to the Office of General Counsel of the Mississippi Bar (hereinafter referred to as “OGCMB”) in accordance with the provisions of Rule 7.5. The OGCMB shall retain a copy of such advertisement or communication for three (3) years from the date of submission. The lawyer shall retain a copy or recording for five (5) three (3) years after its last dissemination along with a record of when and where it was used.

(i) The lawyer shall not give anything of value to a person for recommending the

lawyer's services, except that a lawyer may pay the reasonable cost of advertising or a written or recorded communication permitted by these Rules and may pay the usual charges of a lawyer referral service or to other legal service organization.

[Amended effective June 22, 1994; amended August 20, 1998; amended February 11, 1999; amended effective September 1, 2003, suspended by Order of August 8, 2003; amended effective October 1, 2004.]

Comment

To assist the public in obtaining legal services, lawyers should be allowed to make

known their services not only through reputation but also through organized information campaigns in the form of advertising. The public's need to know about legal services can be fulfilled in part through advertising which provides the public with useful, factual information about legal rights and needs and the availability and terms of legal services from a particular lawyer or law firm. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. Nevertheless, certain types of advertising by lawyers create the risk of practices that are misleading or overreaching and can create unwarranted expectations by laymen untrained in the law. Such advertising can also adversely affect the public's confidence and trust in our judicial system.

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The language in Rule 7.2(a) is reflective of that set forth in the ABA’s Model Rules of Professional Conduct.

One developing area of communications to which the rules relating to

communications about lawyers' services are intended to apply is computer-accessed communications. For purposes of this rule, "computer-accessed communications" are defined as information regarding a lawyer's or law firm's services that is read, viewed, or heard directly through the use of a computer. Computer-accessed communications include, but are not limited to, Internet presences such as home pages or World Wide Web sites, unsolicited electronic mail communications, and information concerning a lawyer's or law firm's services that appears on World Wide Web search engine screens and elsewhere.

This Rule is included in order to balance the public's need for useful information, the state's need to ensure a system by which justice will be administered fairly and properly, and the state's need to regulate and monitor the advertising practices of lawyers, with a lawyer's right to advertise the availability of the lawyer's services to the public. This Rule permits public dissemination of information concerning a lawyer's name or firm name, address, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements; lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented; and other factual information that might invite the attention of those seeking legal assistance. Rule 7.2(c) requires advertisements to contain a geographic office location because experience in other jurisdictions has shown, in the absence of such a rule, members of the public have been misled into employing an inaccessible lawyer in a distant city or another state. See Rule 7.04(j), Tex. Disciplinary R. Prof. Conduct.

Neither this Rule nor Rule 7.4 prohibits communications authorized by law, such as

notice to members of a class in class action litigation.

This Rule applies to advertisements and written communications directed at

prospective clients and concerning a lawyer's or law firm's availability to provide legal services. The Rule does not apply to communications between lawyers, including brochures used for recruitment purposes.

Paying Others to Recommend a Lawyer. A lawyer is allowed to pay for advertising

permitted by this Rule, but otherwise is not permitted to pay or provide other tangible benefits to another person for procuring professional work. However, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in lawyer referral programs and pay the usual fees charged by such programs. Paragraph (i) does not prohibit paying regular compensation to

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an assistant, such as secretary or advertising consultant, to prepare communications permitted by this Rule.

[Comment amended effective June 22, 1994; amended February 11, 1999; amended May 20, 1999; amended September 1, 2003, suspended by Order of August 8, 2003; amended effective October 1, 2004.]

RULE 7.3 DIRECT CONTACT WITH PROSPECTIVE CLIENTS

(a) A Lawyer shall not by in-person live telephone or real-time electronic contact solicit professional employment from a particular prospective client with whom the lawyer has no family, close personal, or prior professional relationship when a significant motive of the lawyer's doing so is the lawyer's pecuniary gain.

(b) A lawyer shall not solicit professional employment from a particular prospective client by written, recorded or electronic communication or by in-person , telephone or real time electronic contact even when not otherwise prohibited by paragraph (a), if:

(1) Prospective client has made known to the lawyer the desire not to be solicited by the lawyer or

(2) The solicitation involves coercion, duress or harassment.

(c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a particular prospective client known to be in need of legal services in a particular matter, with whom the lawyer has no family, close personal, or prior professional relationship, shall include the words, "solicitation material" on the outside envelope or at the beginning and ending of any recorded communication.

(d) Notwithstanding the prohibitions of paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer which uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

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[Amended effective June 22, 1994; amended February 11, 1999; amended effective November 3, 2005.]

Comment

There is a potential for abuse inherent in direct in-person, live telephone or real-time electronic contact by a lawyer with a particular prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult to fully evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer's presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.

This potential for abuse inherent in direct in-person, or live telephone or real-time electronic solicitation of particular prospective clients justifies its prohibition, particularly since lawyer advertising and written and recorded communication permitted under Rule 7.2 offer alternative means of conveying necessary information to those who may be in need of legal services. Advertising and written and recorded communications which may be mailed or auto-dialed make it possible for a prospective client to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the prospective client to direct in-person or telephone persuasion that may overwhelm the client's judgment.

The use of general advertising and written, recorded or electronic communications to transmit information from lawyer to prospective client, rather than direct in-person, live telephone or real-time contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 7.2 are permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications in violation of Rule 7.1. The contents of direct in-person, or live telephone or real-time electronic conversations between a lawyer and to a prospective client can be disputed and are not subject to third party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that

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are false and misleading.

But even permitted forms of solicitation can be abused. Thus, any solicitation which contains information which is false or misleading within the meaning of Rule 7.1, which involves coercion, duress or harassment within the meaning of Rule 7.3(b)(2), or which involves contact with a prospective client who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 7.3(b)(1) is prohibited. Moreover, if after sending a letter or other communication to a client as permitted by Rule 7.2, the lawyer receives no response, any further effort to communicate with the prospective client may violate the provisions of Rule 7.3(b).

This Rule is not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or lawyer's firm is willing to offer. This form of communication is not directed to a prospective client. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer. Under these circumstances, the activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 7.2.

The requirement in Rule 7.3(c) that certain communications be marked "Solicitation Material" does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors. General announcements by lawyers, including changes in personnel or office location do not constitute communications soliciting professional employment from a client known to be in need of legal services within the meaning of this Rule.

Paragraph (d) of this Rule would permit an attorney to participate with an organization which uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any lawyer who would be a provider of legal services through the plan. The organization referred to in paragraph (d) must not be owned by or directed (whether as manager or otherwise) by any lawyer or law firm that participates in the plan. For example, paragraph (d) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the

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organization for the in-person or telephone solicitation of legal employment of the lawyer through memberships in the plan or otherwise. The communication permitted by these organizations also must not be directed to a person known to need legal services in a particular matter, but is to be designed to inform potential plan members generally of another means of affordable legal services. Lawyers who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2 and 7.3(b). See Rule 8.4(a).

[Amended effective June 22, 1994; amended February 11, 1999; amended effective November 3, 2005.]

Code Comparison

DR 2-104(A) provided with certain exceptions that "[a] lawyer who has given in-person unsolicited advice to a layperson that he should obtain counsel or take legal action shall not accept employment resulting from that advice . . ." The exceptions include DR 2-104(A)(l), which provided that a lawyer "may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client." DR 2-104(A)(2) through DR 2-104(A)(5) provided other exceptions relating, respectively, to employment resulting from public educational programs, recommendation by a legal assistance organization, public speaking or writing and representing members of a class in class action litigation.

RULE 7.4 LEGAL SERVICE INFORMATION

(a) Each lawyer or law firm that advertises his, her or its availability to provide legal services shall have available in written form for delivery to any potential client:

(1) A factual statement detailing the background, training and experience of each lawyer or law firm.

(2) If the lawyer or law firm claims special expertise in the representation of clients in special matters or publicly limits the lawyer's or law firm's practice to special types of cases or clients, the written information shall set forth the factual details of the lawyer's experience, expertise, background, and training

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in such matters.

Further, any advertisement or written communication shall advise any potential client of the availability of the above information by prominently displaying in all such advertisements and communications the following notice: FREE BACKGROUND INFORMATION AVAILABLE UPON REQUEST.

(b) Whenever a potential client shall request information regarding a lawyer or law firm for the purpose of making a decision regarding employment of the lawyer or law firm:

(l) The lawyer or law firm shall promptly furnish (by mail if requested) the written information described in paragraph (a) of this Rule.

(2) The lawyer or law firm may furnish such additional factual information regarding the law firm deemed valuable to assist the client.

(c) A copy of all information furnished to clients by reason of this Rule shall be retained by the lawyer or law firm for a period of five years after the last regular use of the information.

(d) Any factual statement contained in any advertisement or written communication or any information furnished to a prospective client under this Rule shall not:

(1) Be directly or inherently false or misleading;

(2) Be potentially false or misleading;

(3) Fail to disclose material information necessary to prevent the information supplied from being actually or potentially false or misleading;

(4) Be unsubstantiated in fact; or

(5) Be unfair or deceptive.

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(e) Upon reasonable request by The Mississippi Bar, a lawyer shall promptly provide proof that any statement or claim made in any advertisement or written communication, as well as the information furnished to a prospective client as authorized or required by these Rules, is in compliance with paragraph (d) above.

(f) A statement and any information furnished to a prospective client, as authorized by paragraph (a) of this Rule, that a lawyer or law firm will represent a client in a particular type of matter, without appropriate qualification, shall be presumed to be misleading if the lawyer reasonably believes that a lawyer or law firm not associated with the originally retained lawyer or law firm will be associated or act as primary counsel in representing the client. In determining whether the statement is misleading in this respect, the history of prior conduct by the lawyer in similar matters may be considered.

[Adopted effective June 22, 1994; amended February 11, 1999.]

Comment

Consumers and potential clients have a right to receive factual, objective information from lawyers who are advertising their availability to handle legal matters. The Rule provides that potential clients may request such information and be given an opportunity to review that information without being required to come to a lawyer's office to obtain it. Selection of appropriate counsel is based upon a number of factors. However, selection can be enhanced by potential clients having factual information at their disposal for review and comparison.

[Amended February 11, 1999.]

RULE 7.5 EVALUATION OF ADVERTISEMENTS

(a) Mandatory Submission. A copy or recording of any advertisement to be

published shall be submitted to the Office of the General Counsel of the Mississippi Bar (OGCMB) as set forth in paragraph(c) below prior to its first dissemination.

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(b) Exemptions. The following are exempt from this submission requirement:

(1) Any advertisement that contains no illustrations and no information other than that set forth in Rules 7.2 and 7.4;

(2) Any telephone directory advertisement;

(3) Notices or announcements that do not solicit clients, but rather state new or changed associations or membership of firms, changed location of offices, the opening of new offices, and similar changes relating to a lawyer or law firm;

(4) Professional business cards or letterhead;

(5) On premises office signage;

(6) Notices and paid listings in law directories addressed primarily to other members of the legal profession;

(7) Advertisements in professional, trade, academic, resource or specialty publications circulated to specific subscribing audiences rather than the general public at large that announce the availability of a lawyer or law firm to practice a particular type of law in many jurisdictions and that are not for the purpose of soliciting clients to commence or join in specific litigation to be performed in Mississippi;

(8) Internet Web pages viewed via a Web browser, in a search initiated by a person without solicitation.

(9) Informative or scholarly writings in professional, trade or academic publications;

(10) A communication mailed only to existing clients, former clients or other lawyers;

(11) Any written communications requested by a prospective client;

(12) Any notices or publications required by law; and

(13) Such other exemptions as may be authorized by the OGCMB.

(c) Items to be submitted. A submission with to the OGCMB pursuant to

paragraph (a) shall consist of:

(1) A copy of the advertisement or communication in the form or forms in which it is to be disseminated (e.g., videotapes, audiotapes, print media, photographs or other accurate replicas of outdoor advertising);

(2) A transcript, if the advertisement or communication is on videotape

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or audiotape;

(3) A statement of when and where the advertisement has been, is, or will

be used; and

(4) A fee of twenty-five dollars ($25) per submission of advertisement or

communication timely filed as provided in paragraph (a), or a fee of one hundred and fifty dollars ($150) for submissions not timely filed, made payable to The Mississippi Bar. This fee shall be used only for administration and enforcement of these Rules. A "submission of advertisement" is defined as each advertisement unless the same advertisement is to be republished in print and or electronic media utilizing the same script. An advertisement does not need to be resubmitted upon each dissemination so long as no changes to form or content are made following the previous submission.

(d) Optional Advisory Opinion. A lawyer may request an advisory opinion

concerning the compliance of a contemplated advertisement or communication with these Rules in advance of disseminating the advertisement or communication by submitting the advertisement or communication and fee specified in paragraph (1) below to the OGCMB at least forty-five days prior to such dissemination. The OGCMB shall, upon receipt of such request, evaluate all advertisements and communications submitted to it pursuant to this Rule for compliance with the applicable requirements set forth in this Rule. If an evaluation is requested, the OGCMB shall render its advisory opinion within forty-five days of receipt of a request unless the OGCMB determines that there is reasonable doubt that the advertisement or communication is in compliance with the Rules and that further examination is warranted but such evaluation cannot be completed within the forty-five day time period, and so advise the filing lawyer within the forty-five day time period. In the latter event, the OGCMB shall complete its review as promptly as the circumstances reasonably allow. If the OGCMB does not send any correspondence or notice to the lawyer within forty-five days, the advertisement or communication will be deemed approved.

(1) Items to be submitted to obtain Advisory Opinion. A submission to OGCMB to obtain an advisory opinion pursuant to paragraph (d) shall consist of the same items as (c)(1)(2)(3) above, and an additional fee of fifty dollars ($50) per submission of advertisement or communication made payable to The Mississippi Bar. This fee shall be used only for the purposes of evaluation and/or review of advertisements and preparing the Advisory Opinion. A “submission of advertisement” is defined as each advertisement unless the same advertisement is to be republished in print or electronic media utilizing the same script.

(2) Use of finding. A finding by the OGCMB of either compliance or

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noncompliance shall not be binding in disciplinary proceedings, but may be offered as evidence.

(3) Change of circumstances. If a change of circumstances occurring subsequent to the OGCMB’s evaluation of an advertisement or communication raises a substantial possibility that the advertisement or communication has become false or misleading as a result of the change in circumstances, the lawyer shall promptly resubmit the advertisement or a modified advertisement with the OGCMB along with an explanation of the change in circumstances and a fee of twenty dollars ($20) per “submission of advertisement or communication.”

(e) Substantiation. If requested to do so by the OGCMB, the requesting lawyer

shall submit information to substantiate representations made or implied in that lawyer's advertisement or communication.

(f) Non-compliance. When the OGCMB determines that an advertisement or

communication is not in compliance with the applicable Rules, the OGCMB shall advise the lawyer by certified mail that dissemination or continued dissemination of the advertisement or communication may result in professional discipline.

(g) Policies and procedures. The Mississippi Bar shall formulate the necessary policies and procedures to implement and enforce the provisions of this Rule and submit same to the Supreme Court for approval pursuant to Rule 3 of the Mississippi Rules of Discipline.

[Adopted effective June 22, 1994; amended February 5, 1999; amended effective September 1, 2003, suspended by Order of August 8, 2003; amended effective October 1, 2004.]

Comment

This Rule has a dual purpose: to enhance the Court's and the bar's ability to monitor

advertising practices for the protection of the public and to assist members of the Bar to conform their advertisements to the requirements of these Rules. This Rule requires lawyers to submit their advertisements and other communications and gives them the opportunity to obtain an advisory opinion. In such event, the OGCMB will advise the filing lawyer in writing whether the advertisement appears to comply with the Rules. The OGCMB's opinion will be advisory only, but may be considered as evidence of a good faith effort to comply with these Rules. A lawyer who wishes to be able to rely on the OGCMB's opinion

124

as demonstrating the lawyer's good faith effort to comply with these Rules has the responsibility of supplying the OGCMB with all information material for a determination of whether an advertisement or communication is false or misleading.

[Comment amended February 11, 1999; amended effective September 1, 2003, suspended by Order of August 8, 2003; amended effective October 1, 2004.]

RULE 7.6 COMMUNICATION OF CERTIFICATION OR DESIGNATION

(a) A lawyer may communicate the fact that he or she has been certified or designated in a field of law by a named organization or authority, but only if that certification or designation is granted by an organization or authority whose specialty certification or designation program is accredited by the American Bar Association. Notwithstanding the provisions of this Rule, a lawyer may communicate the fact that he is certified or designated in a particular field of law by a named, non-American Bar Association organization or authority, but must disclose such fact and further disclose that there is no procedure in Mississippi for approving certifying or designating organizations and authorities.

(b) Notwithstanding the provisions of Rule 7.6(a), a lawyer may state or imply as follows:

1. A lawyer who is admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "patent attorney" or a substantially similar designation; or

2. A lawyer engaged in admiralty practice may use the designation "admiralty," "proctor in admiralty" or a substantially similar designation.

[Former Rule 7.4 amended and renumbered effective June 22, 1994; amended February 11, 1999.]

Comment

125

Rule 7.6(a) permits a lawyer to communicate that a lawyer has been certified or designated as a specialist in a field of law when the American Bar Association has accredited the organization's or authority's specialty program to grant such certification or designation. Certification or designation procedures imply that an objective entity has recognized a lawyer's higher degree of specialized ability than is suggested by general licensure to practice law. Those objective entities may be expected to apply standards of competence, experience and knowledge to ensure that the lawyer's recognition as a specialist is meaningful and reliable. In order to ensure that the consumers can obtain access to useful certification or designation information, the name of the certifying or designating organization or other agency must be included in any communication regarding the certification or designation. See Peel v. Attorney Registration & Disciplinary Com., 496 U.S. 91 110 S. Ct. 2281, 210 L. Ed. 2d 83 (1990).

However, even though this Rule permits a lawyer to communicate that a lawyer has been certified or designated as a specialist in the field of law when the American Bar Association has accredited the organization's or authority's specialty program, a lawyer may communicate the fact that he is certified or designated in a field of law by a named, non-American Bar Association accredited organization or authority, provided such fact is disclosed and further disclosure is made that there is no procedure in Mississippi for approving certifying or designating organizations and authorities.

Recognition of specialization in patent matters is a matter of law and established policy of the Patent and Trademark Office, as reflected in Rule 7.6(b)(1).

Rule 7.6(b)(2) recognizes that the designation of admiralty practice has a long historical tradition associated with maritime commerce and the federal courts.

[Amended effective June 22, 1994; amended February 11, 1999.]

RULE 7.7 FIRM NAMES AND LETTERHEADS

(a) A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1.

(b) A lawyer shall not practice under a trade or fictitious name or a name that is

126

misleading as to the identity of the lawyer or lawyers practicing under such name. A lawyer in private practice may use the term "legal clinic" or "legal services" in conjunction with the lawyer's own name if the lawyer's practice is devoted to providing routine legal services for fees that are lower than the prevailing rate in the legal community for those services.

(c) A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.

(d) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm except as permitted by Rule 1.17.

(e) Lawyers may state or imply that they practice in a partnership or to other organization only when that is the fact except as permitted by Rule 1.17.

[Former Rule 7.5 amended and renumbered effective June 22, 1994; amended August 20, 1998; amended February 11, 1999.]

Comment

A firm may be designated by the names of all or some of its members, or by the names of deceased members where there has been a continuing succession in the firm's identity. The United States Supreme Court has held that legislation may prohibit the use of trade names in professional practice. It may be observed that any firm name including the name of a deceased partner is, strictly speaking, a trade name. The use of such names to designate law firms has proven a useful means of identification. However, it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm.

Paragraph (a) precludes use in a law firm name of terms that imply that the firm is something other than a private law firm. Two examples of such terms are "academy" and "institute". Paragraph (b) precludes use of a trade or fictitious name suggesting that the

127

firm is named for a person when in fact such a person does not exist or is not associated with the firm. Although not prohibited per se, the terms "legal clinic" and "legal services" would be misleading if used by a law firm that did not devote its practice to providing routine legal services at prices below those prevailing in the legal community for like services.

With regard to paragraph (c), lawyers sharing office facilities, but who are not in fact partners, may not denominate themselves as, for example, "Smith and Jones", for that title suggests partnership in the practice of law.

[Amended effective June 22, 1994; amended February 11, 1999.]

MAINTAINING THE INTEGRITY OF

THE PROFESSION

RULE 8.1 BAR ADMISSION AND DISCIPLINARY MATTERS

An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

(a) knowingly make a false statement of material fact; or

(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

Comment

The duty imposed by this Rule extends to persons seeking admission to the bar as well as to lawyers. Hence, if a person makes a material false statement in connection with an application for admission, it may be the basis for subsequent disciplinary action if the person is admitted, and in any event may be relevant in a subsequent admission application. The duty imposed by this Rule applies to a lawyer's own admission or discipline as well as

128

that of others. Thus, it is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer's own conduct. This Rule also requires affirmative clarification of any misunderstanding on the part of the admissions or disciplinary authority of which the person involved becomes aware.

This Rule is subject to the provisions of the Fifth Amendment of the United States Constitution and Article 3, Section 26 of the Mississippi Constitution. A person relying on such a provision in response to a question, however, should do so openly and not use the right of nondisclosure as a justification for failure to comply with this Rule.

A lawyer representing an applicant for admission to the bar, or representing a lawyer who is the subject of a disciplinary inquiry or proceeding, is governed by the rules applicable to the client-lawyer relationship.

Code Comparison

DR 1-101(A) provides that "A lawyer is subject to discipline if he has made a materially false statement in, or if he has deliberately failed to disclose a material fact requested in connection with, his application for admission to the bar." DR 1-101(B) provides that "A lawyer shall not further the application for admission to the bar of another person known by him to be unqualified in respect to character, education, or other relevant attribute." With respect to paragraph (b) of Rule 8.1, DR 1-102(A)(5) provides that "A lawyer shall not ... Engage in conduct that is prejudicial to the administration of justice."

RULE 8.2 JUDICIAL AND LEGAL OFFICIALS

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicating officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.

129

Comment

Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.

When a lawyer seeks judicial office, the lawyer should be bound by applicable limitations on political activity.

To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.

Code Comparison

With regard to Rule 8.2(a), DR 8-102(A) provides that "A lawyer shall not knowingly make false statements of fact concerning the qualifications of a candidate for election or appointment to a judicial office." DR 8-102(B) provides that "A lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer."

There is no counterpart to Rule 8.2(b) in the Code.


RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT

(a) A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

130

(b) A lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

[Amended June 23, 1994.]

Comment

Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.

The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the rules applicable to the client-lawyer relationship.

[Amended June 23, 1994.]

Code Comparison

DR 1-103(A) provides that "A lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to ... authority empowered to investigate or act upon such violation."

131

RULE 8.4 MISCONDUCT

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

[Amended effective November 3, 2005 to add new subsection (e) .]

Comment

Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offense carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics

132

relevant to law practice. Offenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law.

Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of attorney. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.

Code Comparison

With regard to Rule 8.4(a)-(d) DR 1-102(A) provides that "A lawyer shall not:

"(1) Violate a Disciplinary Rule.

"(2) Circumvent a Disciplinary Rule through actions of another.

"(3) Engage in illegal conduct involving moral turpitude.

"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

"(5) Engage in conduct that is prejudicial to the administration of justice.

"(6) Engage in any other conduct that adversely reflects on his fitness to practice law."

133

Rule 8.4(e) is substantially similar to DR 9-101(C).

There is no direct counterpart to Rule 8.4(f) in the Disciplinary Rules of the Code. EC 7-34 states in part that "A lawyer ... is never justified in making a gift or a loan to a judge, a hearing officer, or an official or employee of a tribunal." EC 9-1 states that "A lawyer should promote public confidence in our legal system and in the legal profession."

See MSB Ethics Opinions Nos. 22, 38 and 75.

RULE 8.5 JURISDICTION

A lawyer admitted to practice in this jurisdiction is subject to the disciplinary

authority of this jurisdiction although engaged in practice elsewhere. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer advertises, provides or offers to provide any legal services to be performed in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.

[Amended effective September 1, 2003, suspended by Order of August 8, 2003, reinstated effective October 1, 2004.]

Comment

In modern practice lawyers frequently act outside the territorial limits of the

jurisdiction in which they are licensed to practice, either in another state or outside the United States. In doing so, they remain subject to the governing authority of the jurisdiction in which they are licensed to practice. If their activity in another jurisdiction is substantial and continuous, it may constitute practice of law in that jurisdiction. See Rule 5.5. It is settled law that the conduct of a lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction. Extension of the disciplinary authority of this jurisdiction to other lawyers who provide or offer to provide legal services in this jurisdiction is for the protection of the citizens of this jurisdiction. Reciprocal enforcement of a jurisdiction's disciplinary findings and sanctions will further advance the purposes of this Rule. Nothing in this rule shall be construed to allow an unlicensed individual to engage in the practice of law in Mississippi contrary to any other rule or statute. See also

134

Mississippi Rules of Discipline 1(1.1) and 16. The language in Rule 8.5 is reflective of that set forth in the ABA’s Model Rules of Professional Conduct. The scope of Rule 8.5 is not intended to extend to advertisements such as those reference in Rule 7.5(b)(7), unless they are for the purpose of soliciting clients to commence or join in litigation to be performed in Mississippi.

If the rules of professional conduct in the two jurisdictions differ, principles of

conflict of laws may apply. Similar problems can arise when a lawyer is licensed to practice in more than one jurisdiction.

Where the lawyer is licensed to practice law in two jurisdictions which impose

conflicting obligations, applicable rules of choice of law may govern the situation. A related problem arises with respect to practice before a federal tribunal, where the general authority of the states to regulate the practice of law must be reconciled with such authority as federal tribunals may have to regulate practice before them.

[Amended effective September 1, 2003, suspended by Order of August 8, 2003, reinstated effective October 1, 2004.]

Code Comparison


135

F.Supp. 1127, 20 Fair Empl.Prac.Cas. (BNA) 294(Cite as: 452 F.Supp. 1127)

United States District Court, N.D. Illinois, Eastern Division. Edell PLUMMER, Hayward Rose, Josef J. Eggleston, Ivor Taylor, and Alberto Viera, Individually and on be-

half of all others similarly situated, Plaintiffs, v.

CHICAGO JOURNEYMAN PLUMBERS' LOCAL UNION NO. 130, U. A., Plumbing Contractors Association of Chicago and Cook County, and the Joint Apprenticeship Committee, Local No. 130, U.S.A., Defendants.

No. 77 C 1726. April 21, 1978.

Supplemental Memorandum July 24, 1978.

Civil rights suit was brought against union local, contractor's association and joint apprenticeship committee for relief from alleged discriminatory employment practices claimed to preclude blacks and Hispanics from access to employment in plumbing industry. The District Court, Robson, Senior District Judge, held that: (1) since more than 180 days had elapsed from alleged discrimination in employment to filing of some of the EEOC charges, such charges did not provide basis for Title VII complaint; (2) under circumstances, plaintiffs could not seek Title VII relief against committee on behalf of themselves or any other member of the class, but plaintiffs' action against committee under section pertaining to equal rights under the law would stand; (3) receipt of right to sue notices by plaintiffs as well as amendment of plaintiffs' complaint to allege fulfillment of that jurisdictional prerequisite to bring Title VII employment discrimination action gave court jurisdiction over some charges plaintiffs had filed with EEOC; (4) compensatory damages for emotional harm, degradation and humiliation may not be awarded in Title VII action; (5) since testing was means of securing journeyman status in plumbing trade, it was within scope of EEOC charge challenging denial of journeyman status; (6) discrimination based on national origin is not encompassed by section of Civil Rights Act pertaining to equal rights under the law, and (7) plaintiffs' class allegations were sufficient to withstand motion for a more definite statement, despite contention that they failed to adequately identify class sought to be represented.

Motions to dismiss granted in part and denied in part and motions for more definite statement denied.

West Headnotes


78 Civil Rights 78IV

78k1512 78k1513 Most Cited Cases

42 U.S.C.A. § 2000e et seq.

[2] Civil Rights 78 1505(4)


Page 2 of 28

7/10/2012http://web2.westlaw.com/print/printstream.aspx?sv=Split&rs=WLW12.04&vr=2.0&destin...

EXHIBIT "11"


78 Civil Rights 78IV Remedies Under Federal Employment Discrimination Statutes

78k1503 Administrative Agencies and Proceedings 78k1505 Time for Proceedings; Limitations

78k1505(4) k. Effect; excuses in general. Most Cited Cases (Formerly 78k362.1, 78k362, 78k38)

Failure to file EEOC charge within 180 days of alleged violation bars consideration by court of discriminatory acts not made basis of timely charge. Civil Rights Act of 1964, § 706(d) as amended 42 U.S.C.A. § 2000e–5(e).



78k1503 78k1505

Most Cited Cases

amended .




42 U.S.C.A. § ; Fed.Rules Civ.Proc. rule 19, 28 U.S.C.A.



78k1503 Administrative Agencies and Proceedings 78k1505 Time for Proceedings; Limitations

78k1505(3) k. Operation; accrual and computation. Most Cited Cases (Formerly 78k342, 78k33)

EEOC regulation allowing technical defects in charge of discrimination to be cured by amendment does not allow naming of new party in untimely charge to relate back to date of filing of original charge. Civil Rights Act of 1964, § 706(e) as amended 42 U.S.C.A. § 2000e–5(f)(1).


Page 3 of 28





78k1503 78k1505

Most Cited Cases

42 U.S.C.A. § 2000e–5(f)(1);.




42 U.S.C.A. § 2000e–5(d, e), (f)(1).




42 U.S.C.A. § 2000e–5(d,e), (f)(1).



78k1512 Exhaustion of Administrative Remedies Before Resort to Courts 78k1517 k. Parties in administrative proceedings. Most Cited Cases

(Formerly 232Ak41 Labor Relations) Even if joint labor-management organizations were considered to be agent of union local, the organization

could not be subject of Title VII proceeding on agency theory, in absence of showing that it knew of discrimination in employment charges or had opportunity to participate in EEOC's conciliation procedures. Civil Rights Act of 1964, § 706(c–e) as amended 42 U.S.C.A. § 2000e–5(d, e), (f)(1).


Page 4 of 28



[10] Civil Rights 78 1505(7)


78k1503 78k1505

Most Cited Cases

42 U.S.C.A. § 2000e–5(d, e), (f)(1).

[11] Civil Rights 78 1331(5)

78 Civil Rights 78III Federal Remedies in General

78k1328 Persons Protected and Entitled to Sue 78k1331 Persons Aggrieved, and Standing in General

78k1331(5) k. Employment practices. Most Cited Cases (Formerly 78k194, 78k13.1)



78k1521 Persons Protected and Entitled to Sue 78k1522 k. In general. Most Cited Cases

(Formerly 78k366.1, 78k366, 78k38) In absence of any jurisdictional bar to plaintiffs' suit against joint labor-management organization under sec-

tion of Civil Rights Act pertaining to equal rights under the law, plaintiffs who purported to represent class and who had not established requisite standing to sue joint labor-management organization under Title VII were not entitled to seek Title VII relief against organization on behalf of themselves or any other member of the class, but plaintiff's action under section pertaining to equal rights under the law would stand. Fed.Rules Civ.Proc. rule 19, 28 U.S.C.A.; 42 U.S.C.A. § 1981.

[12] Federal Civil Procedure 170A 1742(2)

170A Federal Civil Procedure 170AXI Dismissal

170AXI(B) Involuntary Dismissal 170AXI(B)2 Grounds in General

170Ak1742 Want of Jurisdiction 170Ak1742(2) k. Particular cases and grounds. Most Cited Cases

(Formerly 170Ak1742.1) Since it was shown that state deferral pursuant to Civil Rights Act had been made by plaintiffs in employ-

ment discrimination case, defendant's motion to dismiss for lack of subject matter jurisdiction on basis that state fair employment practices commission had not been given adequate prior opportunity to consider charge would


Page 5 of 28


g g y ,plaintiff's action under section pertaining to equal rights under the law would stand. Fed.Rules Civ.Proc. rule p p

19, 28 U.S.C.A.; 42 U.S.C.A. § 1981.


be denied. Civil Rights Act of 1964, § 706 as amended 42 U.S.C.A. § 2000e–5.



78k1511 k. Civil actions in general. Most Cited Cases (Formerly 78k361, 78k38)

Jurisdictional requirements to be fulfilled before filing of Title VII discrimination in employment action are meant to provide notice to charged party and to bring to bear voluntary compliance and those purposes are served when any charge is filed and a suit follows asserting grievances common to the class. Civil Rights Act of 1964, § 706(d) as amended 42 U.S.C.A. § 2000e–5(e).


170A Federal Civil Procedure 170AII Parties

170AII(D) Class Actions 170AII(D)3 Particular Classes Represented

170Ak184 Employees 170Ak184.25 k. Prior administrative proceeding, use or availability; limitations. Most Cited Cases

(Formerly 78k41) With class action status not yet determined, named plaintiffs would not be dismissed from civil rights em-

ployment discrimination case for failure to exhaust jurisdictional requirements, where defendants had been given notice and EEOC had been given time to bring about voluntary compliance as to plaintiffs who had satisfied jurisdictional requirements and plaintiffs who had not might remain as coplaintiffs because they might, if class were determined, be necessary as class representatives to adequately and fairly protect interests of class within limits of charges filed. Civil Rights Act of 1964, § 706(d) as amended 42 U.S.C.A. § 2000e-5(e).




706(e) as amended .



78k1512 Exhaustion of Administrative Remedies Before Resort to Courts


Page 6 of 28



78k1516 k. Scope of administrative proceedings; like or related claims. Most Cited Cases (Formerly 78k362.1, 78k362, 78k38)

Scope of employment discrimination charges against union local would be limited to issues raised in EEOC charges filed by plaintiff satisfying Title VII jurisdictional prerequisites. Civil Rights Act of 1964, § 706(e) as amended 42 U.S.C.A. § 2000e–5(f)(1).



78k1530 Most Cited Cases

42 U.S.C.A. § 2000e–5(f)(1).



78k1521 Persons Protected and Entitled to Sue 78k1523 k. Right to sue letter or notice; official inaction. Most Cited Cases

(Formerly 78k367, 78k38) Receipt of right to sue notices by plaintiffs as well as amendment of plaintiffs' complaint to allege fulfill-

ment of that jurisdictional prerequisite to bringing Title VII employment discrimination action gave court jurisdiction over charges plaintiffs had filed with EEOC. Civil Rights Act of 1964, § 706(e) as amended 42 U.S.C.A. § 2000e–5(f)(1).


170A Federal Civil Procedure 170AI In General

170AI(A) In General 170Ak8 k. Consolidation of actions. Most Cited Cases

(Formerly 170Ak8.1) Plaintiffs alleging discrimination in employment could have proceeded by first bringing action under civil

rights section pertaining to equal rights under the law to avoid any statute of limitations problems, they could then have petitioned court for stay of that action until Title VII efforts at conciliation and voluntary compliance had been completed and, at that point, they could have filed supplemental pleading adding the Title VII claim or plaintiffs could also have proceeded with separate and independent action under equal rights under the law section, filed Title VII action after jurisdictional prerequisites had been fulfilled and sought consolidation. Fed.Rules Civ.Proc. rules 15(d), 42(a), 28 U.S.C.A.; 42 U.S.C.A. § 1981.




Page 7 of 28


y )Plaintiffs alleging discrimination in employment could have proceeded by first bringing action under civilg g p y p y g g

rights section pertaining to equal rights under the law to avoid any statute of limitations problems,

p , p , y pp p g gcould also have proceeded with separate and independent action under equal rights under the law sec-p

tion,


78k1458 Monetary Relief in General 78k1463 k. Mental suffering, emotional distress, humiliation, or embarrassment. Most Cited Cases

(Formerly 78k273, 78k13.17(5), 78k13.17) Damages for emotional harm, degradation and humiliation may be recovered under section of Civil Rights

Act pertaining to equal rights under the law. 42 U.S.C.A. § 1981.




amended .




42 U.S.C.A. § 2000e–5(e).



78k1532 k. Pleading. Most Cited Cases (Formerly 78k375, 78k42)

Federal Civil Procedure 170A 1788.6


170AXI(B) Involuntary Dismissal 170AXI(B)4 Particular Actions, Insufficiency of Pleadings in

170Ak1788.5 Civil Rights Actions 170Ak1788.6 k. In general. Most Cited Cases

(Formerly 170Ak1788.5) Claim in federal court based upon violation of Title VII of Civil Rights Act may properly encompass any

action of discrimination similar to or reasonably related to allegations made in charge and the requisite similarity between EEOC charge and Title VII complaint is shown if charge gave defendant sufficient notice of alleged kinds and areas of discrimination, but absent finding of requisite similarity, court must dismiss complaint for


Page 8 of 28


y , ( ), )Damages for emotional harm, degradation and humiliation may be recovered under section of Civil Rightsg , g

Act pertaining to equal rights under the law. 42 U.S.C.A. § 1981.


lack of jurisdiction. Civil Rights Act of 1964, § 706(g) as amended 42 U.S.C.A. § 2000e–5(g).




42 U.S.C.A. § 2000e–5(g).


78 Civil Rights 78III


42 U.S.C.A. § 1981; Civil42 U.S.C.A. § 2000e et seq.




42 U.S.C.A. § 1981;42 U.S.C.A. § 2000e et seq.

[27] Civil Rights 78 1395(8)


78k1392 Pleading 78k1395 Particular Causes of Action

78k1395(8) k. Employment practices. Most Cited Cases (Formerly 78k235(1), 78k13.12(3))

Plaintiffs' complaint of racial discrimination in plumbing trade encompassed challenge pursuant to section


Page 9 of 28



42 U.S.C.A. § 1981;

y ( ), ( ))Plaintiffs' complaint of racial discrimination in plumbing trade encompassed challenge pursuant to section


of Civil Rights Act pertaining to equal rights under law and challenge to testing to secure journeyman plumbing status. 42 U.S.C.A. § 1981.


78 Civil Rights 78I


42 U.S.C.A. § 1981.




rights under law. .



78k1314 Adequacy, Availability, and Exhaustion of State or Local Remedies 78k1320 k. Employment practices. Most Cited Cases

(Formerly 78k209, 78k13.9) State employment discrimination remedies need not be exhausted before bringing action under section of

Civil Rights Act pertaining to equal rights under the law. 42 U.S.C.A. § 1981.


170A Federal Civil Procedure 170AVII Pleadings and Motions

170AVII(A) 170Ak625 Form

170Ak627 Most Cited Cases

Fed.Rules Civ.Proc. rule 10(b), 28 U.S.C.A.



Page 10 of 28


of Civil Rights Act pertaining to equal rights under law and challenge to testing to secure journeyman plumbing g pstatus. 42 U.S.C.A. § 1981.



170AVII(A) Pleadings in General 170Ak625 Form

170Ak627 k. Paragraphs; separate counts and defenses. Most Cited CasesIn employment discrimination case separate counts charging violation of Title VII and section 1981 would

not be required where court had already been required to sift through allegations of complaint and exhibits filedand it did not see any real advantage to be gained by requiring separation at the time. 42 U.S.C.A. § 1981; CivilRights Act of 1964, § 701 et seq. as amended 42 U.S.C.A. § 2000e et seq.



170AVII(J) 170AVII(J)1 In General




170AVII(J) 170AVII(J)1 In General


Fed.Rules Civ.Proc. rule 23(a, b),28 U.S.C.A.


170A Federal Civil Procedure 170AII Parties

170AII(D) Class Actions 170AII(D)2 Proceedings

170Ak172 Most Cited Cases (Formerly 170Ak161)

Fed.Rules Civ.Proc. rule 23(a, b), 28 U.S.C.A.



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170AVII(E) Amendments 170Ak839 Complaint

170Ak839.1 k. In general. Most Cited Cases (Formerly 170Ak839)

Federal Civil Procedure 170A 2662

170A Federal Civil Procedure 170AXVII Judgment

170AXVII(G) Relief from Judgment 170Ak2657 Procedure

170Ak2662 k. Hearing and determination. Most Cited CasesAlthough exhibits establishing Title VII jurisdiction were not found in pleadings in civil rights employment

discrimination case, where authenticity of exhibits considered by court before making earlier memorandum and order and exhibits offered in support of plaintiffs' motion to vacate portions of that memorandum and order were not controverted, court would consider exhibits offered by plaintiffs in support of their motion to vacate and plaintiffs would be granted leave to amend so as to allege and attach exhibits showing jurisdictional facts as established. Civil Rights Act of 1964, § 701 et seq. as amended 42 U.S.C.A. § 2000e et seq.

*1131 Supplemental Memorandum Judson H. Miner, Charles Barnhill, Jr., Chicago, Ill., for plaintiffs.

James R. Gannon and Leonard Goslawski, Lewis, Overbeck & Furman, Chicago, Ill., for Joint Apprenticeship Committee.

Howard Barron and William Snapp, Jenner & Block, Chicago, Ill., for Plumbing Contractors Ass'n.

Julian Schreiber, Borovsky, Smetana, Ehrlich & Kronenberg, Chicago, Ill., for Local No. 130.

Marvin Gittler, Asher, Greenfield, Goodstein, Pavalon & Segall, Chicago, Ill., for International Union.

*1132 MEMORANDUM AND ORDER ROBSON, Senior District Judge.

This cause is before the court on defendants' motions to dismiss and for a more definite statement. For the reasons hereinafter stated, the motions to dismiss are granted in part and denied in part, and the motions for a more definite statement are denied.

This action is brought pursuant to the Civil Rights Act of 1870, 42 U.S.C. s 1981, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. s 2000e Et seq. (hereinafter Title VII). The jurisdiction of this court is invoked pursuant to 28 U.S.C. s 1343 and 42 U.S.C. s 2000e-5(f)(1). This is a suit for relief from alleged discriminatory employment practices which are claimed to preclude blacks and hispanics from access to employment in the plumbing industry.

Pursuant to Rule 23(a) and (b)(2) of the Fed.R.Civ.P., plaintiffs have sued on behalf of themselves and all other persons similarly situated. They seek to represent a class consisting of “all Negroes and Hispanics who


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have been denied training and employment in the plumbing industry because of their race or national origin.” Second Amended Complaint at P 5. The named plaintiffs are Edell Plummer, Hayward Rose, Josef J. Eggleston, Ivor Taylor, and Alberto Viera. The named defendants are Chicago Journeyman Plumbers' Local Union No. 130, U.A. (hereinafter Local 130), the Plumbing Contractors Association of Chicago and Cook County (hereinafter PCA), the Joint Apprenticeship Committee, Local 130, U.A. (hereinafter JAC), and the United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry in the United States and Canada (hereinafter the International Union). The International Union was dismissed on March 17, 1978, pursuant to stipulation of the parties, as it was not an indispensable party to these proceedings.

The defendants have filed motions to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. They also have filed separate motions seeking a more definite statement. The court will first consider the motions to dismiss.

TITLE VII CLAIMS [1] A jurisdictional prerequisite to the filing of a Title VII action in district court is that a timely charge has

been filed with the Equal Employment Opportunity Commission (hereinafter EEOC). Alexander v. Gardner-Denver Co., 415 U.S. 36, 48, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). Here, multiple plaintiffs name some but not all of the multiple defendants in their EEOC charges. For the plaintiffs to have a Title VII claim against a defendant, at least one of the plaintiffs must satisfy all of the jurisdictional prerequisites to a Title VII action against a defendant in order for this court to have subject matter jurisdiction over that defendant.

Plaintiffs Edell Plummer, Josef Eggleston, Hayward Rose, Alberto Viera, and Ivor Taylor have all named Local 130 in their EEOC charges. Viera, Rose, and Taylor have named PCA in their EEOC charges. Rose has named JAC in a charge. Although each of the defendants has been charged by at least one of the named plaintiffs, defendants challenge the use of these charges against them on grounds of lack of subject matter jurisdiction for failure to satisfy jurisdictional prerequisites. They further challenge some of plaintiffs' allegations for failure to state a claim under Title VII.

JAC Defendant JAC argues that the Title VII claims of all the plaintiffs must be dismissed against it because no

plaintiff named it in a timely charge to the EEOC. Plaintiffs respond that a claim is adequately stated against JAC under Title VII.

Hayward Rose is the only plaintiff who has named JAC in a charge before the EEOC. Rose first filed a charge with the EEOC on October 28, 1975, complaining against Local 130 for the refusal to hire him as an ap- prentice or journeyman plumber. He alleged that the most recent discrimination*1133 occurred on August 21, 1975. Rose later filed two separate charges with the EEOC on March 9, 1977, complaining against Local 130, PCA, JAC, and the International Union with exactly the same allegations as his earlier charge. He again alleged that the most recent discrimination occurred on August 21, 1975. JAC argues that the later charges filed by Rose are untimely and thus are not grounds for a Title VII claim against it. The issue is whether Rose's initial charge identified JAC or whether the later charges related back to the initial charge so that JAC is properly before the court under Title VII.

[2][3] An EEOC charge must be filed under 42 U.S.C. s 2000e-5(e) within 180 days of the alleged violation. This Title VII statute of limitations bars consideration by a court of discriminatory acts not made the basis of a timely charge. United Airlines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); Moore


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v. Sunbeam Corp., 459 F.2d 811, 821 (7th Cir. 1972). As Rose's later charges refer to the most recent act of discrimination as occurring on August 21, 1975, more than 180 days have elapsed from the alleged violation to the filing of these charges. Thus, these charges do not provide a basis for this Title VII complaint. Moreover, the parties named therein, JAC and PCA, cannot be subject to a Title VII complaint based on these charges.

Nonetheless, plaintiff argues that: first, defendant JAC was identified in the first charge so that the correction of its name in the amended charge was a clarification that relates back to the initial date of filing; second, defendant JAC was an agent of defendants Local 130 and PCA so that it could be sued regardless of whether it had been named in a charge; third, if there was no relation back of the later charges to the first charge, the later charges were still timely as Rose's charge was of a continuing nature; and, fourth, defendant JAC should be kept in the Title VII aspects of this lawsuit as a necessary party under Fed.R.Civ.P. 19. For the reasons hereinafter stated, each of these arguments must fail.

Plaintiffs contend that Rose's initial charge focused directly on the plumber's apprenticeship program naming only Local 130 as Rose knew of no distinction between the apprenticeship program and Local 130. Only later did Rose learn that the apprenticeship program is administered by JAC and that JAC is controlled by a board with an equal number of members from Local 130 and PCA. At that point, seventeen months after the filing of his charge, Rose amended his charge to name the administrator of the apprenticeship program already identified in the initial charge. Thus, he amplified his initial charge. Defendant JAC states that the “amendment” of Rose's charge, seventeen months after his initial charge and just prior to the initiation of this lawsuit, gave it no notice of an alleged violation until long after August, 1975, when Rose claims that the discrimination occurred. This after-the-fact amendment does not relate back to the date of initial filing and completely avoids the goals of reconciliation and voluntary compliance required by Congress. Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969) (hereinafter Bowe ).

[4] A Title VII action may only be brought against “any respondent . . . named in the charge.” 42 U.S.C. s 2000e-5(f)(1). This section establishes a jurisdictional prerequisite to the filing of a Title VII action. Bowe, supra at 719. Satisfaction of this jurisdictional prerequisite serves to notify a charged party of the asserted violation and to bring the charged party before the EEOC so as to promote Title VII's primary goal of securing voluntary compliance. Id.

[5][6][7] Although Title VII does not provide for any amendment of charges of discrimination, EEOC regulations provide at 29 C.F.R. s 1601.11 that:

A charge may be amended to cure technical defects or omissions, including failure to swear to the charge, or to clarify and amplify allegations made therein, and such amendments alleging additional acts which constitute unlawful employment *1134 practices directly related to or growing out of the subject matter of the original charge will relate back to the original filing date.

The EEOC regulation allows curing technical defects such as the filing of verified charges after the expiration of the statutory time period for filing where unverified charges have been filed within the time period, Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355, 357 (6th Cir. 1969), or making a more detailed description of the claims of discrimination than those set forth in the timely charge, EEOC v. Western Publishing Co., 502 F.2d 599, 603 (8th Cir. 1974). The regulation does not allow the naming of a new party in an untimely charge to relate back to the date of filing of the original charge. Landry v. Chicago, Rock Island & Pacific Railroad Co., 8 FEP Cases 498, 500-01 (N.D.Ill.1974). Rose's later charges do not relate back because 42 U.S.C. s 2000e-5(e)


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provides a mandatory limitation period within which a charge must be filed against a respondent to the charge. Kennar v. North American Rockwell Corp., 9 Empl.Prac.Dec. s 9992, at 7136 (C.D.Cal.1974).

[8] Plaintiffs state that an exception to the requirement that Title VII actions can only be maintained against parties named in the EEOC charge exists for agents of named parties. They further allege that JAC is an agent of Local 130 and PCA, so that the naming of Local 130 in Rose's timely charge precludes the need to have even named JAC in an EEOC charge. JAC responds that the complaint's allegation is the only indication that JAC is an agent of Local 130. Thus, no substantial identity exists between these defendants for the agency theory to be applicable here. Moreover, plaintiffs' agency argument ignores the well-established authorities in the Seventh Circuit that no party can be a subject of a Title VII suit, unless it has been previously named in a timely EEOC charge.

In Butler v. Local No. 4, 308 F.Supp. 528, 531 (N.D.Ill.1969), the court held that the Title VII definition of a labor organization, while including its agents, 42 U.S.C. s 2000e(d), does not make an agent a “respondent” within the meaning of 42 U.S.C. s 2000e-5(f)(1) so as to make the filing of a charge naming the agent unnecessary. Thus, the court dismissed the Title VII action against the agent of a labor organization. Although the court stated that the situation may be different when a substantial identity exists between the parties, JAC and Local 130 are not substantially identical. Local 130, the respondent named in Rose's timely charge, had its members holding only half of the positions on JAC's board with the plumbing contractors holding the other half of the positions. A joint labor-management organization, like the JAC, will not here be held to be substantially identical to the labor organization alone.

[9] Moreover, plaintiffs would still have to show that Rose's timely charge not only gave JAC notice of a charge against it but also gave it the opportunity to participate in EEOC conciliation proceedings which the naming in a charge provides. Williams v. General Foods Corp., 492 F.2d 399, 405 (7th Cir. 1974); Bernstein v. Na-tional Liberty International Corp., 407 F.Supp. 709, 716 (E.D.Pa.1976). As the naming of a party in a timely filed EEOC charge is a jurisdictional prerequisite to a Title VII action, plaintiffs could have submitted exhibits or affidavits, as was done to show that other prerequisites were fulfilled, showing that JAC not only knew of the charges but also had the opportunity to participate in the EEOC conciliation procedures. Plaintiffs have not shown either. Thus, JAC cannot be the subject of this Title VII proceeding on an agency theory.

Plaintiffs cite Hairston v. McLean Trucking Co., 62 F.R.D. 642, 661 (M.D.N.C.1974), Vacated on other grounds, 520 F.2d 226 (4th Cir. 1975), in support of their proposition that agents need not be named in an EEOC charge if a timely charge is filed against the principal. The court there decided that a wholly-owned subsidiary not formally charged in the plaintiffs' EEOC complaints was properly before the court where the corporate parent was charged, where one of the plaintiffs had written in his complaint that he was an employee of both the parent *1135 and the subsidiary, and where the EEOC actually investigated the subsidiary. The facts of Hair- ston, supra, are inapposite to the case at bar. First, JAC as a joint labor-management committee was not wholly- controlled by Local 130, the only respondent charged in Rose's timely charge. Second, although plaintiff Rose's charge referred to apprenticeship programs, there is no indication that the EEOC actually investigated JAC as a result of Rose's charge naming only Local 130. In addition, the court in Hairston, supra at 661-62, stated that its result may have been different if the subsidiary had not been previously dismissed as to section 1981 violations. Here, as discussed Infra, JAC remains as a defendant under plaintiffs' section 1981 action.

Plaintiffs further argue that because Rose's charge of a refusal to hire is a continuing wrong, the later charges were timely against the parties named therein including JAC and PCA. As plaintiffs only addressed this


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argument in its supplemental memorandum in response to the International Union's position, defendant JAC did not respond to it. The court will nevertheless respond to plaintiffs' argument, and finds it without merit.

The continuing wrong doctrine has been used to modify the time limitations within which to file a Title VII action until the facts supporting the charge of discrimination would or should have been known to an aggrieved individual. Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 474 (D.C.Cir.1976). Adding a new party after timely charges have been filed against another party for the same alleged discrimination is far different from the practice of using the continuing wrong doctrine to extend time limitations to a plaintiff experiencing the present effects of past discrimination. Adding a new party undermines the notice and conciliation aspects of the Title VII statute of limitations in regard to the new party. See Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1234 (8th Cir. 1975) (en banc).

The alleged violation was recognized by Rose when he filed a timely EEOC charge in October of 1975. In March of 1977, when Rose filed his later charges naming JAC as an additional party, no new violation had occurred. Rose stated in his later charges that the last discrimination occurred in August of 1975.

[10] In Bowe, supra at 719, although a union was not entirely blameless in permitting discrimination to exist and could have worked harder to eliminate the continuing effects of prior discrimination, the failure to charge the union before the EEOC resulted in the dismissal of the union in a Title VII action. In Wallace v. Internation-al Paper Co., 426 F.Supp. 352, 354-57 (W.D.La.1977), because a charge had already been filed against a company and the jurisdictional prerequisites to a Title VII action had not been fulfilled against a union, the union could not be added under the continuing wrong doctrine four years after the filing of the EEOC charge. These decisions show that JAC cannot here be named in a Title VII action on a continuing violation theory where the charge was untimely filed. Plaintiff Rose's initial charge was timely, and a continuing violation can be found against Local 130, the respondent charged. Nonetheless, this court will not extend the continuing wrong doctrine out of its context to allow JAC to be charged nineteen months after the alleged violation which was made the subject of a timely charge against Local 130.

Plaintiffs further argue that JAC must be kept in the Title VII aspect of this lawsuit as a necessary party under Fed.R.Civ.P. 19, as the focal point of this lawsuit will be the apprenticeship program. Thus, they argue that JAC, the body administering the apprenticeship program, should be a defendant in this lawsuit.

[11] When a timely charge has not been filed against a union in an EEOC proceeding, it has been held that the union cannot be kept in as a necessary party pursuant to Fed.R.Civ.P. 19 in the Title VII action. Hardy v. Bucyrus-Erie Co., 398 F.Supp. 64, 68 (E.D.Wis.1975). This is because plaintiff *1136 retains an adequate remedy in the form of a section 1981 action if he has failed to satisfy Title VII's jurisdictional requirements. Id. at 69-70; Waters v. Wisconsin Steel Works, 427 F.2d 476, 486-88 (7th Cir.), Cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970) (hereinafter Wisconsin Steel Works I ). The court does not see any jurisdictional bar to plaintiffs' suit against JAC pursuant to section 1981. As none of the named plaintiffs purporting to represent the class has established the requisite standing to sue JAC under Title VII, the plaintiffs may not seek Title VII relief against JAC on behalf of themselves or any other member of the class. Jones v. United Gas Improvement Corp., 383 F.Supp. 420, 435 (E.D.Pa.1974). Plaintiffs' section 1981 action against JAC will stand.

Deferral to the State Fair Employment Agency Defendant PCA argues that the claims of each of the plaintiffs under Title VII of the Civil Rights Act of

1964, 42 U.S.C. s 2000e Et seq., must be dismissed because none of the plaintiffs has alleged or otherwise


Page 16 of 28


yThis is because plaintiff *1136 retains an adequate rem-y , pp , ( ) p q

edy in the form of a section 1981 action if he has failed to satisfy Title VII's jurisdictional requirements. 70; Waters v. Wisconsin Steel Works, 427 F.2d 476, 486-88 (7th Cir.), Cert. denied, 400 U.S. 911, 91 S.Ct.

y j q; , , (

137, 27 L.Ed.2d 151 (1970) (hereinafter Wisconsin Steel Works I ).

yPlaintiffs' section 1981 action against JAC will stand.


demonstrated that he invoked his state administrative remedies or that he had an adequate excuse for failing to do so. Defendant Local 130 argues that the claim of plaintiff Ivor Taylor under Title VII must be dismissed for failure to cooperate with the Illinois Fair Employment Practices Commission (hereinafter FEPC). Plaintiffs respond that filing with the state FEPC is not a jurisdictional prerequisite to the filing of a Title VII action and that all five of the plaintiffs were referred to the Illinois FEPC pursuant to EEOC procedures approved by the Su- preme Court in Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972).

PCA's statement that matters outside the pleadings cannot be considered in a Fed.R.Civ.P. 12(b) determination is not entirely correct. Where subject matter jurisdiction is at issue, matters outside the pleadings may be considered. Pintozzi v. Scott, 436 F.2d 375, 378 n. 3 (7th Cir. 1970). The express provisions of 42 U.S.C. s 2000e-5 indicate that the filing of charges before the EEOC and receipt of a statutory notice of the right to sue are the only jurisdictional prerequisites to a Title VII suit. Nonetheless, the same section clearly sets forth a procedure whereby a valid charge is instituted with the EEOC only when a state employment practices commission has been given an adequate prior opportunity to consider the charge. Harris v. Commonwealth v. Pennsylvania, 419 F.Supp. 10, 13 (M.D.Pa.1976). In fact, the Court in Love v. Pullman Co., supra, 404 U.S., at 523-24, 92 S.Ct. 616, stated that a person claiming a Title VII violation may not maintain a suit in federal district court until he has first unsuccessfully pursued certain avenues of potential administrative relief including state deferral pursuant to section 706(b), 42 U.S.C. s 2000e-5(b). See Gibson v. Kroger Co., 506 F.2d 647, 650 (7th Cir. 1974),Cert. denied, 421 U.S. 914, 95 S.Ct. 1571, 43 L.Ed.2d 779 (1975). But see Waters v. Heublein, Inc., 547 F.2d 466, 468 (9th Cir. 1976), Cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1100 (1977). The deferral to state agencies does not require the state remedy to be exhausted before an action is brought in federal court, as the statute provides for exhaustion of state procedures after the passage of sixty days. Guse v. J. C. Penney Co., 562 F.2d 6, 8 (7th Cir. 1977); Moore v. Sunbeam Corp., 459 F.2d 811, 821 n. 24 (7th Cir. 1972).

[12] An examination of the exhibits attached to the briefs for Local 130 and for the plaintiffs shows that state deferral satisfying the requirements of Love v. Pullman Co., supra, was made by plaintiffs Plummer, Eggleston, and Rose. Although plaintiffs stated that all five of the plaintiffs were referred to the Illinois FEPC pursuant to the EEOC procedures approved in Love v. Pullman Co., supra, they have failed to attach any exhibit showing deferral on the part of Viera. Accordingly, PCA's motion to dismiss for lack of subject matter jurisdiction will be denied as to Plummer, Eggleston, and Rose. PCA's motion will be granted as to Viera.

*1137 Local 130's challenge to deferral on the part of Taylor must be examined separately. Taylor filed with the Illinois FEPC in 1977 after the filing of his charge with the EEOC. Plaintiffs have not shown that Taylor deferred his EEOC charge to the state in the manner approved by the Court in Love v. Pullman Co., supra. The Illinois FEPC did not waive jurisdiction and sought to conciliate the charge brought by Taylor. In May of 1977, an Illinois FEPC investigator sought to contact Taylor by telephone on two occasions. After failing to reach Taylor, the investigator sent Taylor a letter on May 5, 1977, requesting that he call the FEPC office so that the charge could be reviewed. Despite the lack of a reply by Taylor, the investigator communicated with the respondents charged with discrimination. The investigator, in a letter of May 16, 1977, to Taylor, wrote that she wanted to review the answer of the charged parties so as to further assist Taylor in exercising his rights. The letter also directed Taylor to contact the FEPC, or his charge would be dismissed for his failure to proceed. Taylor failed to make any response to the Illinois FEPC.

On June 29, 1977, the FEPC sent Taylor a notice of dismissal for failure to proceed and pursue the charge. He was given until August 1, 1977, to contact the agency to reconsider its decision. Taylor again failed to respond in any way to the agency's efforts to consider his charge. On August 12, 1977, the Illinois FEPC issued a


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notice of closure to Taylor dismissing his charge and closing its case on the ground of his failure to proceed. Plaintiffs have offered no counteraffidavits or exhibits to dispute this series of events. Instead, they merely conclusively refer to the exhibits concerning Taylor filed by Local 130 as showing that Taylor, like the other plaintiffs, deferred to the state FEPC through an EEOC practice approved in Love v. Pullman Co., supra. Taylor did defer his charge to the Illinois FEPC. Nonetheless, the issue remains whether his deferral adequately provided the state an opportunity to exercise its power so as to satisfy the statutory requirement. Harris v. Com- monwealth of Pennsylvania, supra at 13.

Some deferral to the state FEPC is necessary to give the state agency a prior opportunity to consider discrimination complaints so as to satisfy s 706(b), 42 U.S.C. s 2000e-5(b). Love v. Pullman Co., supra, 404 U.S. at 526, 92 S.Ct. 616. Here, there was total noncooperation on the part of Taylor with the Illinois FEPC. The state agency sought to conciliate by obtaining a response to the charge from the charged respondents. Taylor's total disregard of the state proceedings is inexcusable especially as the state FEPC exercised its jurisdiction at a time when Taylor was represented by counsel in the present suit.FN1

FN1. The complaint here was filed on May 16, 1977.

Senator Dirksen, part of the leadership team proposing the amendment for a state opportunity to conciliate in Title VII proceedings, stated: “(W)ith respect to the enforcement of the title, we undertook to keep primary, exclusive jurisdiction in the hands of the State Commissions for a sufficient period of time to let them work out their own problems at the local level.” 110 Cong.Rec. 13087 (1964). See also the remarks of Senator Humphrey, a co-sponsor of the state deferral amendment, at 110 Cong.Rec. 12707-08, 13088 (1964). Taylor's total disregard of the state proceedings is inconsistent with the statutory mandate of 42 U.S.C. s 2000e-5(b) and the policy behind the section to give the state an opportunity to conciliate.

Although Abshire v. Chicago & Eastern Illinois Railroad Co., 352 F.Supp. 601, 605 (N.D.Ill.1972), involved the total failure to file discrimination charges with a state agency, Taylor's failure to even communicate with the state agency after it had expended substantial effort to pursue conciliation of his charge is analogous. A plaintiff cannot bypass the procedures of Title VII and apply directly to the district court for relief without giving the state *1138 agency and the EEOC the Opportunity to attempt to conciliate so as to obtain voluntary compliance. See Stebbins v. Nationwide Mutual Insurance Co., 382 F.2d 267 (4th Cir. 1967), Cert. denied, 390 U.S. 910, 88 S.Ct. 836, 19 L.Ed.2d 880, Rehearing denied, 390 U.S. 976, 88 S.Ct. 1061, 19 L.Ed.2d 1199 (1968).Taylor's total noncooperation with the Illinois FEPC deprives this court of jurisdiction over his Title VII claim. See Scott v. University of Delaware, 385 F.Supp. 937, 943 (D.Delaware 1974).

The dismissal of plaintiff Taylor's Title VII action for failure to cooperate with the Illinois FEPC, the failure of plaintiffs to demonstrate that Viera pursued state remedies satisfying the requirements of Love v. Pullman Co., supra, and the failure of plaintiff Rose to file a timely charge naming PCA leaves PCA named in no proper charge. Thus, plaintiffs' Title VII claims against PCA will be dismissed.

Satisfaction of Title VII Jurisdictional Requirements Defendants PCA and JAC argue that each plaintiff must satisfy all the jurisdictional prerequisites to a Title

VII action to properly remain as co-plaintiffs and class representatives. Plaintiffs respond that it is unnecessary for each named plaintiff to have exhausted Title VII's administrative remedies.

Courts have uniformly held that Title VII remedies may be awarded on a class basis under Title VII without the exhaustion of administrative procedures by the unnamed class members. Albemarle Paper Co. v. Moody,


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422 U.S. 405, 414 n. 8, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Bowe, supra at 720. These cases do not say what the plaintiffs claim they do each named plaintiff need not exhaust Title VII's administrative remedies prior to a class determination. Nonetheless, the same policy considerations warrant allowing plaintiffs here who have not exhausted Title VII administrative remedies to remain as named plaintiffs.

[13] Jurisdictional requirements to be fulfilled before the filing of a Title VII action, 42 U.S.C. s 2000e-5(e),are meant to provide notice to a charged party and to bring to bear voluntary compliance. These purposes are served when any charge is filed and a suit follows asserting grievances common to the class. Bowe, supra at 720. The court in Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968), gave deference to these purposes and found that it would be wasteful for numerous employees, all with the same grievance, to have to process identical claims with the EEOC. Thus, not all the named plaintiffs were required to satisfy Title VII jurisdictional prerequisites. At the same time, the court stated that the issues raised by the plaintiffs in a class action are limited to those issues raised by a plaintiff satisfying the jurisdictional prerequisites to a Title VII suit. Id. at 499. Following Oatis v. Crown Zellerbach Corp., supra, in class actions, courts have allowed parties to remain named plaintiffs without the satisfaction of Title VII jurisdictional prerequisites. In these cases, the scope of the action is limited to the issues raised by those plaintiffs satisfying Title VII requirements. Schoeppner v. Gener-al Telephone Co., 417 F.Supp. 453, 457 (W.D.Pa.1976); Jones v. United Gas Improvement Corp., 383 F.Supp. 420, 426 (E.D.Pa.1974).

[14] With class action status not yet determined, named plaintiffs will not be dismissed for failure to exhaust jurisdictional requirements. Defendants have been given notice and the EEOC has been given time to bring about voluntary compliance as to the plaintiffs who have satisfied jurisdictional requirements. FN2 Those not satisfying jurisdictional prerequisites may remain as co-plaintiffs, because they may, if a class is determined, be necessary as class representatives to adequately and fairly protect the *1139 interests of the class within the limits of the charges filed by the plaintiffs satisfying all jurisdictional prerequisites. Oatis v. Crown Zellerbach Corp., supra at 499.

FN2. The Fifth Circuit Court of Appeals recently held that if named plaintiffs are similarly situated and class action status has been denied, it will not dismiss the Title VII claims of plaintiffs not satisfying Title VII jurisdictional requirements where one named plaintiff has satisfied the jurisdictional requirements against a defendant. Wheeler v. American Home Products Corp., 563 F.2d 1233 (5th Cir. 1977).

The 180-day requirement Local 130 argues that plaintiffs Plummer and Eggleston have commenced their action without waiting 180

days after filing their discrimination charges with the EEOC as required by 42 U.S.C. s 2000e-5(f)(1). Plaintiffs respond that completion of EEOC procedures by one named plaintiff satisfies the Title VII requirements so that the court has jurisdiction despite the failure of Plummer and Eggleston to wait 180 days before filing suit.

[15][16] The court has already stated Supra that each named plaintiff need not satisfy Title VII's jurisdictional requirements so long as at least one of the plaintiffs has satisfied the jurisdictional prerequisites against a particular defendant. As plaintiff Rose has satisfied all the jurisdictional prerequisites against Local 130, Plum- mer and Eggleston may remain as co-plaintiffs. Nonetheless, the court will consider whether Plummer and Eggleston have satisfied Title VII's jurisdictional requirements. The court will do so because the scope of the charges against Local 130 is limited to the issues raised in the EEOC charges filed by the plaintiffs satisfying Title VII jurisdictional prerequisites against it.


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[17] Although 42 U.S.C. s 2000e-5(f)(1) explicitly provides that a private claimant must wait for 180 days after filing his charge before bringing suit, Plummer and Eggleston filed this suit before the expiration of the 180 days. The Supreme Court recently stated in Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 361, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977), that a plaintiff asserting a private right of action under Title VII must wait 180 days before bringing a lawsuit. Although the EEOC did give Plummer and Eggleston right to sue letters before the expiration of 180 days from the filing of their charges, this immediate issuance of a right to sue letter makes the federal courts, rather than the EEOC, the primary forum for Title VII disputes. This is contrary to the statutory scheme of Title VII to provide the administrative agencies sufficient time to conciliate. Budreck v. Crocker National Bank, 407 F.Supp. 635, 643-45 (N.D.Cal.1976). The failure of Plummer and Eggleston to wait 180 days after filing their charges before proceeding in this court will result in their charges being unavailable to serve as the basis of the plaintiffs' action. The Title VII action against Local 130 will be limited to the scope of Rose's charge.

Right to Sue Letters Defendants argue that plaintiffs Plummer, Eggleston, and Rose have not fulfilled the jurisdictional pre-

requisite of obtaining a right to sue letter from the EEOC prior to the filing of this Title VII action. Plaintiffs respond that the receipt of a right to sue letter subsequent to the filing of a Title VII complaint and the amendment of the complaint to add the new allegations cures the jurisdictional defect in the original complaint. The plaintiffs further state that no other result would be consistent with the Court's suggestion in Johnson v. Railway Express Agency, 421 U.S. 454, 465, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), that plaintiffs file their section 1981 suit while the EEOC processes their Title VII claims.

Although defendants initially questioned whether Viera and Taylor had received right to sue notices prior to the institution of this suit, the exhibits attached to plaintiffs' memorandum in opposition to defendants' motions demonstrate that they did. Plummer, Eggleston, and Rose received right to sue notices from the EEOC subsequent to the filing of this suit. Within ninety days of receipt of these right to sue notices, plaintiffs amended their complaint on two occasions to allege these new jurisdictional facts.

42 U.S.C. s 2000e-5(f)(1) provides for the bringing of a Title VII action by an aggrieved person ninety days after the receipt of a right to sue notice from the EEOC. *1140 The issue here is whether the receipt of a right to sue notice subsequent to the filing of a Title VII action gives a district court jurisdiction over the individual receiving the notice.

[18] In Gibson v. Kroger Co., 506 F.2d 647, 652 (7th Cir. 1974), Cert. denied, 421 U.S. 914, 95 S.Ct. 1571, 43 L.Ed.2d 779 (1975) (hereinafter Gibson ), the plaintiff had filed his lawsuit on March 9, 1973, and did not receive his right to sue notice from the EEOC until August 20, 1973. The court in Gibson nevertheless stated that plaintiff could have amended his complaint after the receipt of the right to sue notice to cure the failure in his complaint to allege the exhaustion of Title VII remedies. The court in Berg v. LaCrosse Cooler Co., 548 F.2d 211, 213 (7th Cir. 1977), followed Gibson and stated that a plaintiff may ask for and receive notice from the EEOC and amend his complaint to allege receipt after the filing of his initial complaint. Accordingly, the receipt of right to sue notices by Plummer, Eggleston, and Rose, as well as amendment of plaintiffs' complaint to allege fulfillment of this jurisdictional prerequisite, gives the court jurisdiction over these charges.FN3

FN3. Of course, these plaintiffs must fulfill other jurisdictional prerequisites for the court to have jurisdiction over their EEOC charges. Plaintiffs Plummer and Eggleston failed to wait 180 days from the filing of their EEOC charge before bringing this action, as discussed Supra. Plaintiff Rose has fulfilled all


Page 20 of 28



the jurisdictional prerequisites against Local 130 based on his initial EEOC charge.

[19] Plaintiffs correctly state that the Supreme Court suggested in Johnson v. Railway Express Agency, supra, 421 U.S. at 465, 95 S.Ct. 1716, that plaintiffs file their section 1981 suit to avoid the tolling of the statute of limitations while the EEOC processes their Title VII charges. Nonetheless, this suggestion does not support the procedure that plaintiffs followed. They filed their Title VII suit, while three plaintiffs were still processing their charges through the EEOC, in order to file in conjunction with their section 1981 action. They then filed two amended complaints after these plaintiffs received right to sue notices. The Court in Johnson v. Railway Ex-press Agency, supra at 466, 95 S.Ct. 1716, stated that section 1981 and Title VII are separate and independent remedies for discrimination. Plaintiffs could have proceeded by first bringing a section 1981 action to avoid any statute of limitations problem. They could then have petitioned the court for a stay of the section 1981 action until the Title VII efforts at conciliation and voluntary compliance had been completed. Id. at 465, 95 S.Ct. 1716. At that point, they could have filed a supplemental pleading pursuant to Fed.R.Civ.P. 15(d), adding the Title VII claim. Plaintiffs could also have proceeded with the separate and independent section 1981 action. They could then have filed their Title VII action after jurisdictional prerequisites had been fulfilled and could have sought consolidation pursuant to Fed.R.Civ.P. 42(a). Plaintiffs' procedure of filing their Title VII claims before jurisdictional prerequisites had been completed certainly did not provide an orderly procedure. Their continued updating with respect to the satisfaction of Title VII jurisdictional prerequisites resulted in two amendments to the complaint and five rounds of complex briefing.

Damages for Emotional Harm, Degradation, and Humiliation All defendants argue that plaintiffs' Title VII claim of damages for emotional harm, degradation, and humi-

liation should be stricken as these forms of damages are not cognizable under Title VII. Plaintiffs respond that although punitive damages are not available under Title VII, the consequential damages they are asking for are available under Title VII.

[20] Although plaintiffs correctly state that they may be entitled to damages for emotional harm, degradation, and humiliation under section 1981 of the Civil Rights Act of 1870, Johnson v. Railway Express Agency, supra at 460, 95 S.Ct. 1716, damages for these forms of compensatory relief *1141 is a separate question under Title VII. In Title VII actions, courts have found compensatory relief unavailable. Id. at 458, 95 S.Ct. 1716; Pearson v. Western Electric Co., 542 F.2d 1150, 1151 (10th Cir. 1976).

[21][22] Title VII provides for injunctive relief and the ordering of appropriate affirmative action, including reinstatement or hiring of employees, with or without backpay, or “any other equitable relief as the court deems appropriate.” 42 U.S.C. s 2000e-5(g).FN4 Upon the finding of a Title VII violation, a court is to make persons whole for the injuries suffered as a result of unlawful employment discrimination within the limitations of its equitable powers. Albemarle Paper Co. v. Moody, supra, 422 U.S. at 418, 95 S.Ct. 2362. Awarding compensatory damages for emotional harm, degradation, and humiliation a legal remedy would be inconsistent with both the language of section 706(g) of Title VII, 42 U.S.C. s 2000e-5(g), and the limitation of a court's powers to the granting of equitable relief in Title VII cases. Jiron v. Sperry Rand Corp., 423 F.Supp. 155, 166 (D.Utah 1975);Pearson v. Western Electric Co., supra at 1151. Accordingly, plaintiffs' claims of damages for emotional harm, degradation, and humiliation under Title VII will be stricken.

FN4. 42 U.S.C. s 2000e-5(g) provides in pertinent part:

If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an un-


Page 21 of 28


Plaintiffs correctly state that the Supreme Court suggested in Johnson v. Railway Express Agency, [ ] y p gg y p g y,supra, 421 U.S. at 465, 95 S.Ct. 1716, that plaintiffs file their section 1981 suit to avoid the tolling of the statute p , , , p gof limitations while the EEOC processes their Title VII charges. Nonetheless, this suggestion does not support p g , gg ppthe procedure that plaintiffs followed. They filed their Title VII suit, while three plaintiffs were still processingp p y , p p gtheir charges through the EEOC, in order to file in conjunction with their section 1981 action. They then filed g g , j ytwo amended complaints after these plaintiffs received right to sue notices. The Court in Johnson v. Railway Ex-p p g ypress Agency, supra at 466, 95 S.Ct. 1716, stated that section 1981 and Title VII are separate and independent p g y, p , , p premedies for discrimination. Plaintiffs could have proceeded by first bringing a section 1981 action to avoid any p y g g ystatute of limitations problem. They could then have petitioned the court for a stay of the section 1981 action un-p y p ytil the Title VII efforts at conciliation and voluntary compliance had been completed. Id. at 465, 95 S.Ct. 1716.y p p ,At that point, they could have filed a supplemental pleading pursuant to Fed.R.Civ.P. 15(d), adding the Title VIIp , y pp p g p ( ), gclaim. Plaintiffs could also have proceeded with the separate and independent section 1981 action. They could p p p ythen have filed their Title VII action after jurisdictional prerequisites had been fulfilled and could have sought j p q gconsolidation pursuant to Fed.R.Civ.P. 42(a). Plaintiffs' procedure of filing their Title VII claims before jurisdic- p ( ) p g jtional prerequisites had been completed certainly did not provide an orderly procedure. Their continued updatingp q p y p y p p gwith respect to the satisfaction of Title VII jurisdictional prerequisites resulted in two amendments to the com-pplaint and five rounds of complex briefing.

Although plaintiffs correctly state that they may be entitled to damages for emotional harm, degrada-[ ] g p y y y g , gtion, and humiliation under section 1981 of the Civil Rights Act of 1870, Johnson v. Railway Express Agency, , g ,supra at 460, 95 S.Ct. 1716, damages for these forms of compensatory relieff *


lawful employment practice charged in the complaint, the court may enjoin the respondent from enga-ging in such unlawful employment practice, and order such affirmative action as may be appropriate,which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay(payable by the employer, employment agency, or labor organization, as the case may be, responsiblefor the unlawful employment practice), or any other equitable relief as the court deems appropriate.

Testing Procedures Defendants Local 130 and JAC argue that the allegations of P 11(f) of the complaint (P 12(f) of the second

amended complaint) that defendants have conditioned journeyman status on a discriminatory and unvalidatedtest should be stricken under both Title VII and section 1981 because no charge was filed with the EEOC con-taining this allegation. The plaintiffs reply that the EEOC charges filed relate to the denial of journeyman status.Because one of the prerequisites to becoming a journeyman plumber is the passing of a test, the charges neces-sarily incorporated the validity of the testing procedures.

[23] It is well-settled that a claim in this court based upon a violation of Title VII may properly encompassany acts of discrimination similar to or reasonably related to the allegations made in the charge initiated beforethe EEOC. Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.) (en banc), Cert.denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976) (hereinafter Jenkins ). The requisite similaritybetween an EEOC charge and a Title VII complaint is shown if the charge gave the defendant sufficient noticeof the alleged kinds and areas of discrimination. Jiron v. Sperry Rand Corp., supra at 159. Absent a finding ofthe requisite similarity, a court must dismiss the claim for lack of jurisdiction. Edwards v. North AmericanRockwell Corp., 291 F.Supp. 199, 203 (C.D.Cal.1968).

The EEOC charge of Hayward Rose alleges that he was denied journeyman status. FN5 As testing is ameans of securing journeyman status in the plumbing trade, it is within the scope of Rose's charge challengingthe denial of journeyman status. Accordingly, plaintiffs' Title VII claim of a discriminatory and unvalidated testwill not be dismissed.

FN5. Plaintiffs Viera and Taylor also allege denial of journeyman status in their EEOC charges. Thecourt has not been shown that Viera has fully satisfied the jurisdictional prerequisites for this Title VIIaction, so it will not rely on his charge for its decision. Taylor's charge also will not be relied upon as hehas failed to fully satisfy the jurisdictional prerequisites to a Title VII action.

[24][25][26][27] Furthermore, plaintiffs' allegation in their complaint of a discriminatory *1142 and unval-idated test necessary to secure journeyman status will not be dismissed under section 1981. Section 1981provides a federal remedy against discrimination in private employment on the basis of race whereby a claimantmay be entitled to legal and equitable relief. Johnson v. Railway Express Agency, supra, 421 U.S. at 459-60,95 S.Ct. 1716. Section 1981 relief is available irrespective of whether a claimant has pursued Title VII adminis-trative remedies. Jenkins, supra at 166. Plaintiffs may challenge the administration of a test used to secure jour-neyman status pursuant to section 1981 even though their Title VII charges may not have encompassed a chal-lenge to discrimination in securing journeyman status. Their complaint of racial discrimination in the plumbingtrade encompasses a challenge to testing to secure journeyman plumbing status pursuant to section 1981.

SECTION 1981

National Origin Discrimination


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Section 1981y j yprovides a federal remedy against discrimination in private employment on the basis of race whereby a claimantp y g p p y ymay be entitled to legal and equitable relief. Johnson v. Railway Express Agency, supra, 421 U.S. at 459-60,y g q y p g y, p , ,95 S.Ct. 1716. Section 1981 relief is available irrespective of whether a claimant has pursued Title VII adminis-trative remedies. Jenkins, supra at 166.


All defendants argue that plaintiffs' allegations of national origin discrimination fail to state a claim under section 1981 of the Civil Rights Act of 1870. Plaintiffs respond that the holding of the Court in McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976), applying section 1981 to white citizens, coupled with previous Supreme Court holdings applying section 1981 to aliens, warrants application of section 1981 to hispanics for national origin discrimination.

[28] It is well-settled that discrimination based on national origin is not encompassed by section 1981.Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); FN6 Vasquez v.Werner Continental, Inc., 429 F.Supp. 513, 515 (N.D.Ill.1977). The Court in McDonald v. Santa Fe Trail Trans-portation Co., 427 U.S. 273, 285-87, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976), limited its determination to a finding that section 1981 prohibits racial discrimination against whites as well as nonwhites. This finding did not overrule the earlier determination by the Court in Jones v. Alfred H. Mayer Co., supra. Accordingly, the allegations of national origin discrimination under section 1981 by Taylor and Viera are stricken.FN7

FN6. Although the Jones decision was based on section 1982 of the Civil Rights Act of 1870, its determination of no national origin discrimination under section 1982 is equally applicable to section 1981 in light of the historical interrelationship of the two sections. Runyon v. McCrary, 427 U.S. 160, 171, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976).

FN7. To the extent that plaintiffs Taylor's and Viera's claims as hispanics are based on racial discrimination in violation of section 1981, these allegations will be allowed to remain. Gomez v. Pima County, 426 F.Supp. 816, 819 (D.Ariz.1976).

Exhaustion of Remedies [29] Defendant Local 130 argues that plaintiffs Plummer's and Eggleston's section 1981 claims must be dis-

missed for failure to exhaust EEOC and state FEPC administrative remedies.FN8 Plaintiffs respond that no exhaustion requirement exists before a section 1981 remedy can be pursued.

FN8. Specifically, Local 130 claims that Plummer and Eggleston did not give the EEOC 180 days within which to effect a voluntary resolution of their charge before bringing their complaint in this action. Local 130 further claims that Plummer and Eggleston have not filed charges with the state FEPC. Des- pite exhibits attached to plaintiffs' supplemental memorandum showing that Plummer and Eggleston have filed charges with the Illinois FEPC, Local 130 has not withdrawn its argument.

[30] Defendant Local 130 argues that under the authority of Waters v. Wisconsin Steel Works I, supra at 487, plaintiffs cannot sue under section 1981 without pleading a reasonable excuse for their failure to exhaust EEOC remedies. In Waters v. Wisconsin Steel Works, 502 F.2d 1309, 1315 (7th Cir. 1974) (hereinafter Wiscon- sin Steel Works II ), the court stated that exhaustion of Title VII remedies is not a jurisdictional prerequisite to an action under section 1981, thus overruling its previous holding in the Wisconsin Steel Works I opinion. The Seventh*1143 Circuit has subsequently affirmed this principle en banc. Jenkins, supra at 166. See also Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 522 F.2d 1235, 1239 (7th Cir. 1975). The court finds that plaintiffs Plummer's and Eggleston's allegations of a section 1981 violation are sufficient without the exhaustion of EEOC remedies.

Defendant Local 130 further argues that plaintiffs Plummer, Eggleston, and Taylor FN9 must exhaust state FEPC remedies before proceeding with their section 1981 action. Just as Title VII remedies need not be exhausted before a section 1981 action is brought, state employment discrimination remedies need not be ex-


Page 23 of 28



hausted. The decision in Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), makes clear that state administrative remedies need not be exhausted before commencing a section 1983 action. Defendants have not shown, and the court does not see any reason, why state FEPC remedies need to be exhausted before commencing a section 1981 action. The court finds that plaintiffs' allegations of a section 1981 violation are sufficient without the exhaustion of state FEPC remedies.

FN9. Taylor has no section 1981 action for discrimination based on national origin, as discussed Supra. Plaintiffs have not informed the court whether Taylor will proceed with a section 1981 claim alleging race discrimination.

MOTIONS FOR A MORE DEFINITE STATEMENT The motions for a more definite statement were filed by JAC, PCA, and Local 130. Defendants' contentions

are essentially threefold:

1. Plaintiffs have failed, as required by Fed.R.Civ.P. 10(b), to state in separately numbered counts the two different causes of action filed pursuant to Title VII and section 1981;

2. Plaintiffs have vaguely and ambiguously identified the nature of their claims making a responsive pleading impossible; and

3. Plaintiffs have not adequately identified the class they seek to represent.

Plaintiffs contend that they have fulfilled the “notice pleading” requirements of the Federal Rules of Civil Procedure. They submit that defendants could not better respond if plaintiffs realleged their Title VII and section 1981 claims in separate counts. They further assert that greater specificity is not required to support their class allegations at this stage of the proceedings. Plaintiffs also argue that they have not failed to identify adequately each of the named plaintiffs and the nature of their respective claims. In support thereof, plaintiffs submit that it is irrelevant which plaintiffs are black and which are hispanic because they have equal standing to represent each other under both Title VII and section 1981. Plaintiffs further submit that it is irrelevant which plaintiffs suffered from each discriminatory practice identified in the complaint because the circuit courts of appeal have uniformly recognized that a named plaintiff in a Title VII case need not have suffered each and every wrong challenged. Plaintiffs state that the courts “have recognized the standing of a minority plaintiff to commence an ‘across-the-board’ challenge to eradicate racial discrimination wherever it may exist within an employment system even though the plaintiff, himself, has not suffered any injury from some of the practices he challenges.” Plaintiffs' answering memorandum at 20.

Defendants take issue with plaintiffs' arguments. With respect to plaintiffs' “across-the-board” theory, defendants submit that a plaintiff is not relieved of his obligation to properly plead his claims merely because he seeks “across-the-board” relief. Defendants further assert that recent federal decisions have signaled the demise of “across-the-board” class actions, citing, Inter alia, East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977), and Lightfoot v. Gallo Sales Co., 15 FEP Cases 614 (N.D.Cal.1977).

Separate Counts [31] Rule 10(b) of the Federal Rules of Civil Procedure provides, Inter alia, that each claim, founded upon a

separate transaction or occurrence, and each defense, other*1144 than a denial, be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth. Separate statements may


Page 24 of 28


Plaintiffs have failed, as required by Fed.R.Civ.P. 10(b), to state in separately numbered counts


be required where there are multiple defendants and their potential liability is several. 2A Moore's Federal Prac- tice P 10.03. Separate statements may be required also where multiple plaintiffs join more than one cause of action against the same defendants. Id. The overriding consideration, however, is whether separate statements by counts will facilitate the clear presentation of the matters set forth. Id.

[32] Although both Title VII and section 1981 prohibit various forms of discrimination, they are not entirely coextensive in their purpose or effect. Johnson v. Railway Express Agency, supra, 421 U.S. at 460, 95 S.Ct. 1716. Separate counts can facilitate the clear presentation of the respective claims. Nevertheless, the court is of the opinion that requiring separate counts will not facilitate matters here. The court has already been required to sift through the allegations of the complaint and the exhibits filed, and it does not see any real advantage to be gained by requiring separation at this time. As Chief Judge Lawrence stated in Boles v. Union Camp Corp., 16 F.R.Serv.2d 1561, 1564 (S.D.Ga.1972):

I think we can make out as things stand. To grant the motion will mainly serve to prolong the ride on the procedural carrousel that this case started a year and a half ago. The motion to require separate counts is therefore denied.

Vague and Ambiguous Pleading Had the court not already ruled on the motions to dismiss, it might well have ordered plaintiffs to file a

more definite statement or to file a third amended complaint on the ground that the second amended complaint is vague and ambiguous making a responsive pleading difficult. The second amended complaint, like the others filed, is certainly not a paragon of clarity. The complaint does not make clear which plaintiffs allege racial discrimination and which allege national origin discrimination. It has been difficult also to determine which plaintiffs have satisfied Title VII jurisdictional prerequisites against which defendants. Likewise, it has been difficult to sort out which defendants may have committed the alleged acts.FN10 Moreover, the court does not believe that plaintiffs should be relieved of their obligation to plead unambiguously merely because “across-the-board” relief might be sought.FN11

FN10. It should also be noted that ruling on the motions to dismiss and the motions for a more definite statement has been difficult. There have been five rounds of briefing on these motions, with some of the issues in the motions being mooted by subsequent amended complaints and exhibits attached to plaintiffs' briefs.

FN11. As for defendants' argument that the “across-the-board” approach has fallen into disfavor with many courts, this argument can be reached another day. In cases such as Lightfoot v. Gallo Sales Co., supra, courts have faced the “across-the-board” question in a different context than that raised here, namely, whether a class should be certified. The question before this court is whether plaintiffs should be required to articulate with greater specificity the nature of their claims so that defendants can make a responsive pleading, and the court has determined that under the circumstances they should not be required to do so. The question whether a class can be certified on an “across-the-board” theory can be reached, if necessary, when the court is asked to address the class certification issue.

[33] Nevertheless, the court is of the opinion that granting defendants' motions for a more definite statement will not facilitate matters. The court has endeavored painstakingly to plow through plaintiffs' complaints and the exhibits which have been filed. Many of the problems raised in the motions for a more definite statement have been dealt with in this court's disposition of the motions to dismiss. If defendants desire further information


Page 25 of 28



about the nature of plaintiffs' claims, discovery is the appropriate means for obtaining it, as well as for developing the issues.

Class Allegations [34] Defendants' final argument is that plaintiffs have failed to adequately identify *1145 the class they seek

to represent. Defendants submit that plaintiffs' class allegations should be more specific to enable them to determine, Inter alia, whether the named plaintiffs are adequate and typical representatives.

[35] The court is of the opinion that the class action allegations are sufficient to withstand a motion for a more definite statement. The burden of proof is going to be on the plaintiffs to establish that the requirements of Rule 23(a) and (b) have been met. Lightfoot v. Gallo Sales Co., supra at 618. When the class certification issue is briefed, defendants will have ample opportunity to argue that certification should be denied. Moreover, defendants can ascertain through discovery whether plaintiffs are adequate and typical representatives. Plaintiffs' class action allegations are sufficient at this time.

CONCLUSION All plaintiffs may continue as co-plaintiffs in their Title VII action. Plaintiffs' claims against JAC and PCA

are dismissed for failure to charge it in any timely EEOC charge. Plaintiffs state a claim against Local 130.

Plaintiffs state a claim in P 12(f) of their second amended complaint to challenge testing procedures to determine journeyman status. Plaintiffs do not state a Title VII claim to recover damages for emotional harm, degradation, and humiliation.

Plaintiffs Viera and Taylor do not state a claim pursuant to section 1981 for national origin discrimination. The plaintiffs may proceed with their section 1981 claims even if they did not all fully exhaust Title VII administrative remedies.

Although the court is not fully satisfied with the state of plaintiffs' second amended complaint, it will deny the motions for a more definite statement to expedite the proceedings.

For the reasons stated, it is therefore ordered that defendants' motions to dismiss shall be, and the same are hereby, granted in part and denied in part, and defendants' motions for a more definite statement shall be, and the same are hereby, denied.

SUPPLEMENTAL MEMORANDUM This cause is before the court on the motion of plaintiffs to vacate portions of this court's memorandum and

order of April 21, 1978, granting in part and denying in part defendants' motions to dismiss. For the reasons stated, the motion is granted in part and denied in part.

[36] In reaching its decision of April 21, 1978, on defendants' motions to dismiss, the court considered exhibits outside of the pleadings where subject matter jurisdiction was at issue in accordance with Pintozzi v. Scott, 436 F.2d 375, 378 n. 3 (7th Cir. 1970). Based on Pintozzi v. Scott, supra, the court considered plaintiffs' allegation in their complaint that they had “fully complied with all procedural requirements of Title VII ” a sufficient statement of jurisdiction because plaintiffs further attached exhibits to their memoranda demonstrating the satisfaction of jurisdictional facts. Defendants Local 130 and PCA in their joint memorandum in opposition to plaintiffs' motion to vacate now point out to the court that the Seventh Circuit Court of Appeals mandates that allegations and exhibits establishing Title VII jurisdiction must be found in the pleadings. Rohler v. TRW, Inc.,


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576 F.2d 1260, 1265-67 (7th Cir. 1978); Gibson v. Kroger Co., 506 F.2d 647, 650 (7th Cir. 1974), Cert. denied, 421 U.S. 914, 95 S.Ct. 1571, 43 L.Ed.2d 779 (1975). Nonetheless, because the authenticity of the exhibits previously considered by the court in the order of April 21, 1978, and the exhibits offered in support of the motion to vacate are not controverted, the memorandum and order on the motions to dismiss and for a more definite statement will stand and the court will consider the exhibits offered by the plaintiffs in support of their motion to vacate. Baker v. California Land Title Co., 349 F.Supp. 235, 237 (C.D.Cal.1972). Because the orders of the court fully consider the extent to which plaintiffs have satisfied Title VII jurisdictional requirements, plaintiffs will be granted leave to amend so as to *1146 allege and attach exhibits showing the jurisdictional facts as established in the memorandum and order of April 21, 1978, and today's supplemental order. Rohler v. TRW, Inc., Supra at 1267.

The court ruled in its memorandum and order of April 21, 1978, that plaintiff Alberto Viera “failed to attach any exhibit showing deferral” to the Illinois Fair Employment Practices Commission (FEPC) as is required by 42 U.S.C. s 2000e-5(c). His failure to defer resulted in his EEOC charge being unavailable as the basis for a Title VII action against Local 130 and PCA. The court further ruled that the EEOC charge of plaintiff Ivor Taylor against Local 130 and PCA could not be relied upon by the plaintiffs as a basis for their Title VII action because of his total noncooperation with the Illinois FEPC in processing his charge. Plaintiffs have now attached exhibits to their motion to vacate showing that Viera's and Taylor's charges were deferred to the Illinois FEPC on December 18, 1975, with the EEOC reassuming jurisdiction on February 18, 1976, sixty days later. When the court decided that Viera's and Taylor's Title VII actions had to be dismissed, it did not have the benefit of the exhibits showing deferral to the state FEPC that have now been presented. Although the court deplores plaintiffs Taylor's and Viera's total noncooperation with the Illinois FEPC impeding potential conciliation, the provision of 42 U.S.C. s 2000e-5(c) for state deferral of EEOC charges requires no more than a sixty-day no-action period by the EEOC to satisfy this jurisdictional prerequisite to a Title VII suit. Guse v. J. C. Penney Co., 562 F.2d 6, 8 (7th Cir. 1977). Because plaintiffs Viera and Taylor have deferred their EEOC charges to the Illinois FEPC for a sixty-day period and have satisfied all other jurisdictional prerequisites to a Title VII suit against defendants Local 130 and PCA, their charges can be relied upon as the basis for plaintiffs' Title VII action against these defendants.

The court ruled that plaintiffs Edell Plummer and Josef Eggleston failed to wait 180 days after filing their administrative charges with the EEOC before initiating their Title VII action contrary to 42 U.S.C. s 2000e-5(f)(1). Plaintiffs have attached exhibits showing that Plummer and Eggleston received their right to sue notices more than 180 days after filing their EEOC charges. Nonetheless, plaintiffs do not dispute that plaintiffs Plummer and Eggleston filed their Title VII complaint against the defendants without waiting 180 days from the filing of their charges as previously determined by the court. The court agrees with the statement by defendants Local 130 and PCA in their memorandum in opposition to plaintiffs' motion to vacate at 10 that “(b)y Prema- turely filing their lawsuit, both Plummer and Eggleston have acted contrary to the scheme of Title VII and deprived the administrative agency of sufficient time to conciliate.” (emphasis in the original). The court reaffirms its previous finding that “(t)he failure of Plummer and Eggleston to wait 180 days after filing their charges before proceeding in this court will result in their charges being unavailable to serve as the basis of the plaintiffs' action.”

The court has ruled that “(a)s none of the named plaintiffs purporting to represent the class has established the requisite standing to sue JAC under Title VII, the plaintiffs may not seek Title VII relief against JAC on behalf of themselves or any member of the class.” Plaintiffs in their motion to vacate petition the court to withhold ruling on whether Title VII jurisdiction is present over JAC until the close of discovery because discovery may


Page 27 of 28



show that JAC is an agent of defendants Local 130 and PCA. The presence of Title VII jurisdiction over defendants Local 130 and PCA does not warrant a finding of Title VII jurisdiction over JAC on an agency theory because JAC was not named in a timely EEOC charge and plaintiffs have jurisdiction pursuant to 42 U.S.C. s 1981 over JAC. The court has adequately considered plaintiffs' agency argument in its memorandum and order of April 21, 1978, and reaffirms its finding of no Title VII jurisdiction over JAC made there.

The court is troubled by the statement of defendants Local 130 and PCA in their *1147 memorandum in opposition to the motion to vacate that their motions for a more definite statement will become germane if the order of April 21, 1978, is amended. The court has examined the case cited by these defendants in support of their proposition Marshall v. Electric Hose and Rubber Co., 65 F.R.D. 599 (D.Del.1974) and does not find its reasoning persuasive. Judges in this district are not obliged to follow a decision of the District Court of Delaware, and the court is not aware of any Seventh Circuit authority adopting the approach of the court in Marshall. In re Folding Carton Antitrust Litigation, 75 F.R.D. 727, 731 (N.D.Ill.1977). The court will not order the plaintiffs to make a more definite statement in their amended complaint for the reasons stated in the order of April 21, 1978.

For the reasons stated, plaintiffs' motion to vacate portions of the court's order of April 21, 1978, shall be, and the same is hereby, granted in part and denied in part. Plaintiffs are further ordered to amend their complaint consistent with the court's order of April 21, 1978, and today's supplemental order on or before August 11, 1978. Defendants are to answer as previously ordered on or before September 1, 1978.

D.C.Ill. 1978 Plummer v. Chicago Journeyman Plumbers' Local Union No. 130, U. A. 452 F.Supp. 1127, 20 Fair Empl.Prac.Cas. (BNA) 294

END OF DOCUMENT


Page 28 of 28


United States Court of Appeals,Fifth Circuit.

Helen Y. HALL, individually and on behalf of others similarly situated, Plaintiff-Appellee Cross-Appellant,v.

SMALL BUSINESS ADMINISTRATION, Louis Lawn, Wiley Messick and Ardis Jones, Defendants-Appel-lants Cross-Appellees.

No. 81-4319.Jan. 14, 1983.

Class appeals were taken from judgment of United States District Court for the Southern District of Missis-sippi, John R. Countiss, Magistrate, in sex discrimination action brought against Small Business Administration,and from denial of motion requesting that magistrate vacate judgment and recuse himself on grounds of appear-ance of partiality arising from his law clerk's conduct. The Court of Appeals, Alvin B. Rubin, Circuit Judge,held that: (1) magistrate's disqualification was required unless he isolated law clerk from all knowledge of andparticipation in case immediately after employment interviews began between law clerk and plaintiff's counsel;(2) recusal motion met timeliness requirement; (3) Small Business Administration did not waive its right to seekrecusal of magistrate; and (4) Small Business Administration, its regional director, and its district director wereimproperly joined as parties.

Vacated and remanded.

West Headnotes

[1] Judges 227 49(1)



Every justice, judge and magistrate is required to disqualify himself in any proceeding in which his imparti-ality might reasonably be questioned. ABA Code of Jud.Conduct, Canon 3, subd. C(1); 28 U.S.C.A. § 455.

[2] Judges 227 53


227k52 Waiver of Disqualification or Objections227k53 k. In General. Most Cited Cases

(Formerly 227k52)Although disqualification of justice, judge or magistrate where his impartiality might reasonably be ques-

tioned may be waived, waiver is forbidden unless it is preceded by full disclosure on record of basis for disquali-fication. ABA Code of Jud.Conduct, Canon 3, subd. C(1); 28 U.S.C.A. §§ 455, 455(e).

Page 1695 F.2d 175, 35 Fair Empl.Prac.Cas. (BNA) 1784, 65 A.L.R. Fed. 766, 30 Empl. Prac. Dec. P 33,271(Cite as: 695 F.2d 175)


EXHIBIT "12"

[3] Judges 227 51(4)



Judge should exercise his discretion in favor of disqualification if he has any question about propriety of sit-ting in particular case. ABA Code of Jud.Conduct, Canon 3, subd. C(1); 28 U.S.C.A. §§ 455, 455(b, e).

[4] Judges 227 51(4)



Judge is required to disqualify himself if reasonable person, knowing all circumstances, would harbordoubts about his impartiality; however, knowledge of all facts implies only knowledge of those that are object-ively ascertainable, and cannot extend to what happens in judge's chambers or to his actual virtue because, werethat so, test would not be appearance of impartiality but absence of actual prejudice. ABA Code of Jud.Conduct,Canon 3, subd. C(1); 28 U.S.C.A. §§ 455, 455(e).

[5] Courts 106 55

106 Courts106II Establishment, Organization, and Procedure

106II(B) Court Officers106k55 k. Ministerial Officers in General. Most Cited Cases

Judge's law clerks are forbidden to do all that is prohibited to judge, and it is duty of law clerk as much asthat of trial judge to avoid any contacts outside record that might affect outcome of litigation.

[6] Judges 227 46


227k46 k. Relationship to Attorney or Counsel. Most Cited CasesWhether law clerk actually affected magistrate's decision, her continuing participation with magistrate in

case in which her future employers were counsel gave rise to appearance of partiality which required magis-trate's disqualification unless judge isolated law clerk from all knowledge of and participation in case immedi-ately after employment interviews began. ABA Code of Jud.Conduct, Canon 3, subd. C(1); 28 U.S.C.A. §§ 455,455(e).

[7] Judges 227 51(2)


227k51 Objections to Judge, and Proceedings Thereon227k51(2) k. Time of Making Objection. Most Cited Cases



Where counsel for Small Business Administration, which was defendant in sex discrimination suit, did notknow that law clerk for magistrate hearing suit had accepted employment with firm representing plaintiff classuntil after trial, then promptly wrote law clerk seeking information about her participation in case, and, whenclerk's response was unsatisfactory, counsel sought hearing before court, request seeking magistrate's recusalmet timeliness requirement. 28 U.S.C.A. § 455(a).

[8] Judges 227 53


227k52 Waiver of Disqualification or Objections227k53 k. In General. Most Cited Cases

(Formerly 227k52)Where at time law clerk's former employment with Small Business Administration was brought to magis-

trate's attention, there was no mention of law clerk's letter of resignation from Small Business Administration inwhich she expressed her belief that she had been victim of sexual discrimination, magistrate and his law clerkfailed to fully disclose basis on which reasonable person might harbor doubts about magistrate's impartiality;therefore, Small Business Administration did not waive its right to seek recusal of magistrate in sex discrimina-tion suit against Small Business Administration. 28 U.S.C.A. § 455(e).



78k1531 k. Parties. Most Cited Cases(Formerly 78k374, 78k41)In any employment discrimination action against federal government, head of department, agency, or unit,

as appropriate, shall be defendant; therefore, only administrator, as head of Small Business Administration, wasproper defendant in sex discrimination suit brought against Small Business Administration, consequently, SmallBusiness Administration, its regional director, and its district director were improperly joined. Civil Rights Actof 1964, § 717(c), 42 U.S.C.A. § 2000e-16(c).

*176 Robert S. Greenspan, Marleigh Dover, Attys., Appellate Staff, Civ. Div., Dept. of Justice, Washington,D.C., for defendants-appellants cross-appellees.

Ellis B. Bodron, Vicksburg, Miss., Danny E. Cupit, Robert W. Sneed, Jackson, Miss., for plaintiff-appelleecross-appellant.

Appeals from the United States District Court for the Southern District of Mississippi.

Before CLARK, Chief Judge, RUBIN and WILLIAMS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:Judicial ethics reinforced by statute exact more than virtuous behavior; they command impeccable appear-

ance. Purity of heart is not enough. Judges' robes must be as spotless as their actual conduct. These expectationsextend to those who make up the contemporary judicial family, the judge's law clerks and secretaries. Because a



magistrate's sole law clerk was initially a member of the plaintiff class in this suit, had before her employmentwith the magistrate expressed herself as convinced of the correctness of its contentions, and accepted *177 em-ployment with its counsel before judgment was rendered, we hold that the magistrate erred in refusing to dis-qualify himself. We, therefore, reverse the judgment and remand for a new trial before a judge or another magis-trate.

In 1975 Helen Hall, a woman employed by the Small Business Administration (SBA) filed a Title VII classaction in the Southern District of Mississippi alleging that the SBA had discriminated against her and other fe-male SBA employees in hiring, salary, and promotion. The parties consented to trial before a magistrate. See 28U.S.C. § 636(c)(1) (Supp. IV 1980). The magistrate was authorized to employ a clerical assistant. The personemployed to fill this position was a lawyer and had the actual duty of a law clerk. Before she began employmentwith the magistrate, she had worked for the SBA. She had resigned in 1978 because she thought that she hadbeen a victim of sexual discrimination. In her letter of resignation, she expressed her disappointment at her treat-ment at SBA and added: “This whole sequence of events has been most upsetting. I believe no male attorneywould have received such contemptuous treatment.” Although it was not brought out at the time of the trial, theSBA was aware that the judge's law clerk had worked in the same office as Ms. Hall during the period in whichit was alleged that the SBA followed discriminatory practices.

This clerical assistant-law clerk participated in the pretrial proceedings. Trial began on June 16, 1980, andwas completed on July 2, 1980. On the opening day of trial, the SBA's trial attorney stated that she wished tocall the magistrate's attention to a “housekeeping problem,” the fact that the judge's law clerk was a member ofthe plaintiff class. The magistrate first stated that he was unaware of that fact, then later that he knew that shewas formerly an SBA employee but that he had not thought about it. He continued:

BY THE COURT:

What are you putting that on the record for? Do you think that might make me biased or prejudiced?

BY [SBA COUNSEL]:

Not you, sir, No, sir. We're just putting it on the record.

BY THE COURT:

Well, are you asking me to recuse myself?

BY [SBA COUNSEL]:

No. And I would also like to introduce ... one of the defendants in the case, and he came over from Atlanta.

BY THE COURT:

Well, I knew that [my law clerk] was a former SBA employee, but that's the first I had thought about it. Itwon't make any difference.

BY [PLAINTIFFS' COUNSEL]:

Just for the clarification of the record, I did not hear an objection voiced by Counsel to either you presiding as



judge, or [your law clerk] acting as law clerk, and I assume there is no objection to either.

BY THE COURT:

I asked them if they wanted me to recuse myself, and Counsel said no they did not.

BY [PLAINTIFFS' COUNSEL]:

We would call Dr. Gordon Henderson.

BY THE COURT:

If I had any doubts about it, I would recuse myself anyway.

On the second day of trial, the magistrate commenced proceedings by stating:

Before [the witness] begins his testimony, I would like to say in advance of the trial that they called to my at-tention for the first time that my Law Clerk is a member of the class certified in this cause. I stated at thattime, and I still feel, that that will not bias or prejudice me in any way. I don't know what her financial interestwould be, if any, certainly not being with the Small Business Administration any more. In the event to avoidany impropriety or appearance of impropriety by the Court, I discussed this with [the law clerk] this morning,and an order has been entered by her today, opting out of the class that has been certified. If there ever was aconflict, I think that would clear it up.

*178 The trial transcript was not typed until after the magistrate rendered judgment. The law clerk sat incourt during the trial and took notes. She also prepared trial (bench) memoranda for the judge.

“Before Christmas 1980” lead counsel for the plaintiff discussed with the magistrate his desire to offer em-ployment to the law clerk, obtained approval from the magistrate, and made the offer, which, after some negoti-ations about salary, the clerk accepted. She actually began work for his law firm about January 4, 1981. The ma-gistrate rendered judgment on January 6, 1981.

On January 19, 1981, the SBA attorney telephoned the magistrate's chambers and asked for the magistrate'slaw clerk. The magistrate's new law clerk informed her that his predecessor no longer worked for the magistrateand had accepted employment with the firm representing the plaintiff class. The new law clerk also stated thatthe opinion in this case was “the last thing” the prior law clerk had worked on before she left. The SBA lawyerwrote the former law clerk asking questions about her dealings with that firm during her tenure as law clerk, butin a letter dated February 11, 1981, she refused to answer them and suggested that “any questions concerning[the magistrate's] integrity” be directed to him.

Sometime after judgment was entered, the SBA “discovered” the letter of resignation from the law clerk toSBA Regional Counsel. Besides the statements we have quoted, the letter contained the law clerk's version ofvarious grievances against her supervisor. The SBA contends, and the magistrate later found, that its counselwas unaware that the letter existed until after the trial. The law clerk never disclosed the letter's existence to themagistrate or to the parties.

In March, the SBA filed a motion requesting that the magistrate vacate his judgment and recuse himself be-cause of the appearance of partiality arising from his law clerk's conduct. The magistrate denied the motion after



a hearing because the law clerk “at no time” expressed an opinion or communicated any extrajudicial informa-tion to him about the SBA; because she had accepted employment only after the magistrate had made his de-cision and had written a rough draft of the opinion in this case, and because the law clerk was, in the magistrate'swords, “little more than an amanuensis in th[e] case.” He stated: “I don't think that any female law clerk is goingto give me a lot of input on how to decide a case.”

I.[1][2] The Code of Judicial Conduct, adopted by the Judicial Conference of the United States, states: “A

judge shall disqualify himself in a proceeding in which his impartiality might reasonably be questioned....” Codeof Judicial Conduct, Canon 3(C)(1), reprinted in 69 F.R.D. 273, 277 (1975). By statute adopted in 1974 that eth-ical standard was converted into mandate: every justice, judge and magistrate is required to “disqualify himselfin any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455 (1976 & Supp. IV1980). This disqualification may be waived FN1 but the judge is forbidden to accept a waiver unless “it is pre-ceded by a full disclosure on the record of the basis for disqualification.” Id. § 455(e) (Supp. IV 1980).

FN1. 28 U.S.C. § 455(b) (1976) relates to disqualification for other reasons, such as interest in the caseor bias. This provision may not be waived. Id. § 455(e) (Supp. IV 1980).

[3] The goal of this portion of the disqualification statute is to exact the appearance of impartiality. Potash-nick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66L.Ed.2d 22 (1980); E. Thode, Reporter's Notes to Code of Judicial Conduct 60-61 (1973). It focuses on what isrevealed to the parties and the public, as opposed to the existence in fact of any bias or prejudice. Potashnick,609 F.2d at 1111. A judge should exercise his discretion in favor of disqualification if he has any question*179about the propriety of his sitting in a particular case. Id. at 1112.

[4] The statute requires the judge to disqualify himself if a reasonable person, knowing all the circum-stances, would harbor doubts about his impartiality. Id. See Fredonia Broadcasting Corp. v. RCA Corp., 569F.2d 251 (5th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167 (1978); Note, Disqualification ofJudges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 745 (1973). But knowledge of all the facts im-plies only knowledge of those that are objectively ascertainable. The term cannot, as suggested by counsel, ex-tend to what happens in the judge's chambers or to his actual virtue because, were that so, the test would be notthe appearance of impartiality but the absence of actual prejudice.

II.[5] Law clerks are not merely the judge's errand runners. They are sounding boards for tentative opinions

and legal researchers who seek the authorities that affect decision. Clerks are privy to the judge's thoughts in away that neither parties to the lawsuit nor his most intimate family members may be. Fredonia BroadcastingCorp., 569 F.2d at 256. We agree with the Sixth Circuit that the clerk is forbidden to do all that is prohibited tothe judge. See Price Brothers Co. v. Philadelphia Gear Corp., 629 F.2d 444, 447 (6th Cir.1980), cert. denied,454 U.S. 1099, 102 S.Ct. 674, 70 L.Ed.2d 641 (1981). It is the duty of the law clerk “as much as that of the trialjudge to avoid any contacts outside the record that might affect the outcome of the litigation.” Kennedy v. GreatAtlantic & Pacific Tea Co., 551 F.2d 593, 596 (5th Cir.1977).

[6] Whether or not the law clerk actually affected the magistrate's decision, her continuing participationwith the magistrate in a case in which her future employers were counsel gave rise to an appearance of partiality.See Miller Industries v. Caterpillar Tractor Co., 516 F.Supp. 84, 89 (S.D.Ala.1980); Simonson v. General Mo-



tors Corp., 425 F.Supp. 574, 576 (E.D.Pa.1976); Reddy v. Jones, 419 F.Supp. 1391 (W.D.N.C.1976) (judge notdisqualified when law clerk “immediately taken off all work ... in cases being tried ... by his prospective em-ployers.”), cert. denied, 439 U.S. 839, 99 S.Ct. 126, 58 L.Ed.2d 136 (1978). See also A. DiLeo and A. Rubin,Law Clerk Handbook § 2250 (1977) (when clerk accepts position with firm, must cease involvement in cases inwhich future employers have interest).

A. Timeliness[7] We have held that § 455(a) includes a timeliness requirement. Delesdernier v. Porterie, 666 F.2d 116,

121-22 (5th Cir.), cert. denied, 459 U.S. 839, 103 S.Ct. 86, 74 L.Ed.2d 81 (1982). Like the court in Potashnick,however, we need not be detained by the issue because counsel for the SBA did not know that the law clerk hadaccepted employment with the firm representing the plaintiff class until after the trial, sometime in January,1981. She promptly wrote the law clerk seeking information about her participation in the case. When the clerk'sresponse was unsatisfactory, SBA counsel sought a hearing before the court. In short, full disclosure did not oc-cur until sometime in January, 1981, and the SBA took action almost immediately afterward. See United Statesv. Conforte, 457 F.Supp. 641, 653 (D.Nev.1978) (party must raise recusal issue at earliest moment after discov-ering facts), aff'd, 624 F.2d 869, 880 (9th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470(1980). Thus, the SBA did not “utilize a disqualification issue as part of [its] trial strategy.” Potashnick, 609F.2d at 1115.

B. Waiver[8] SBA counsel did not remain silent after becoming aware of all relevant facts. She did not lie in wait to

determine whether her client would prevail and then file the motion only because she was disgruntled with theresult.

*180 SBA counsel also did not waive the right to seek the magistrate's recusal in the colloquy on the firstday of trial. See supra at 177. Under § 455(e), counsel may waive the right to recusal only after a full disclosureon the record of the basis for disqualification. In this case, the magistrate mentioned only that his law clerk hadworked for the SBA and was a member of the class. There was no mention of the letter of resignation and, ofcourse, no one could then know that the law clerk would subsequently accept employment with the firm repres-enting the plaintiff class.FN2

FN2. We, therefore, need not consider whether knowledge of the statements in the letter of resignationshould be imputed to SBA counsel.

A judge is required merely to disclose the basis for disqualification, not “every incident or factual detailwhich might contribute to the overall impression of partiality.” United States v. Conforte, 457 F.Supp. at 655(footnote omitted). In this case, however, the magistrate and his law clerk failed fully to disclose the basis onwhich a reasonable person might “harbor doubts about the magistrate's impartiality.” Potashnick, 609 F.2d at1111. Therefore, the SBA did not waive its right to seek recusal of the magistrate. FN3

FN3. The statute expressly requires the judge to state the reasons for his potential disqualification onthe record. If the parties desire to waive the disqualification and consent to his sitting, Advisory Opin-ion No. 25 of the Advisory Committee on Judicial Activities, which antedates the statute, states a re-commended procedure:

In order that there be no question about the voluntary character of the consent, the Committee reiter-ates the recommendation contained in Advisory Opinion No. 20, namely; that the judge advise coun-



sel at the earliest practicable time, through the clerk of the court or in some other appropriate way, ofthe reason for his disqualification, and ask counsel to reply in writing to the clerk whether they wishthe judge to hear the case or participate in the hearing of an appeal. Unless all parties request thejudge to continue, the clerk should not tell the judge which parties did not make such request, and thejudge should not act thereafter in the case.

The judge's assertion that he had made up his mind immediately after hearing the case, without the lawclerk's assistance, is immaterial. Every judge has suffered a change of heart after reaching a tentative decision.Much might happen during research and opinion writing to affect the decision. Until the decision was signed andrendered, it was in pectore judicis, subject to possible influence.

None of our observations is designed to impugn the integrity of the magistrate. There is not the slightest hintthat he in fact engaged in any improper conduct. His errors were those of judgment: in failing voluntarily to dis-qualify himself or to insulate himself from his clerk on the facts known to him before he rendered judgment; inputting SBA counsel on the defensive by asking why she put on record the facts that should properly have beenbrought to his attention; and in failing to grant the motion on the additional facts that were communicated to himwhen the motion to disqualify was filed.

[9] There is patently no cause of action against the SBA, its regional director, or its district director. 42U.S.C. § 2000e-16(c) (1976) specifically provides that in any Title VII action against the federal government,“the head of the department, agency, or unit, as appropriate, shall be the defendant.” The Administrator of theSBA is the head of that agency. Only the Administrator was a proper defendant. See Newbold v. United StatesPostal Service, 614 F.2d 46, 47 (5th Cir.) (per curiam), cert. denied, 449 U.S. 878, 101 S.Ct. 225, 66 L.Ed.2d101 (1980); Davis v. Califano, 613 F.2d 957, 958 n. 1 (D.C.Cir.1979); Ayon v. Sampson, 547 F.2d 446, 447 n. 2(9th Cir.1976).

For these reasons the judgment is VACATED, and the case is REMANDED for dismissal of the parties im-properly joined and for further proceedings consistent with this opinion.

C.A.Miss.,1983.Hall v. Small Business Admin.695 F.2d 175, 35 Fair Empl.Prac.Cas. (BNA) 1784, 65 A.L.R. Fed. 766, 30 Empl. Prac. Dec. P 33,271

END OF DOCUMENT



United States District Court, N.D. Iowa, Eastern Division.Melford J. WOLDUM and Viola Woldum, Plaintiffs,

v.ROVERUD CONSTRUCTION, INC., a Corporation, Defendant.

Civ. No. 67–C–513–EC.Jan. 19, 1968.

On defendant's objections to interrogatories asking whether defendant carried liability insurance at time ofaccident, name and address of insurer, name of insured, and amount of coverage, on grounds that they were anattempt to inquire into privileged matters, and were incompetent, irrelevant and immaterial. The District Court,McManus, Chief Judge, held that permitting discovery of existence and amount of insurance coverage wouldbetter further word and spirit of federal discovery rules than to deny it.

Objections overruled.

West Headnotes


170A Federal Civil Procedure170AX Depositions and Discovery

170AX(D) Written Interrogatories to Parties170AX(D)2 Scope

170Ak1503 k. Relevancy and Materiality. Most Cited Cases



170AX(D) Written Interrogatories to Parties170AX(D)2 Scope

170Ak1512 k. Identity and Location of Witnesses and Others. Most Cited Cases



170AX(E) Discovery and Production of Documents and Other Tangible Things170AX(E)3 Particular Subject Matters

170Ak1595 k. Insurance, Matters Relating To. Most Cited Cases(Formerly 170Ak1514.1, 170Ak1514)Interrogatories asking whether defendant carried liability insurance at time of accident, the name and ad-

dress of insurer, the name of insured, and amount of coverage were not improper on grounds that they were an

Page 143 F.R.D. 420, 11 Fed.R.Serv.2d 767(Cite as: 43 F.R.D. 420)

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. EXHIBIT "13"

attempt to inquire into privileged matters, and were incompetent, irrelevant and immaterial. Fed.Rules Civ.Proc.rule 1, 28 U.S.C.A.



170AX(A) In General170Ak1262 Nature and Purpose

170Ak1262.1 k. In General. Most Cited Cases(Formerly 170Ak1262)Overriding purpose of federal discovery rules is to promote full disclosure of all facts to aid in fair, prompt

and inexpensive disposition of lawsuits. Fed.Rules Civ.Proc. rule 1, 28 U.S.C.A.



170AX(E) Discovery and Production of Documents and Other Tangible Things170AX(E)3 Particular Subject Matters

170Ak1595 k. Insurance, Matters Relating To. Most Cited CasesPermitting discovery of existence and amount of insurance coverage would better further word and spirit of

federal discovery rules than to deny it. Fed.Rules Civ.Proc. rule 1, 28 U.S.C.A.

*420 Frank R. Miller, Decorah, Iowa, for plaintiffs.

Harry Wilmarth, Ralph W. Gearhart, Cedar Rapids, Iowa, for defendant.

ORDER

McMANUS, Chief Judge.This matter is before the court on defendant's Objections to Interrogatories, filed December 29, 1967, and

plaintiffs' resistance thereto.

[1] In this action damages are sought for personal injuries allegedly suffered by plaintiff Melford J. Woldumwhen he was struck by a construction machine operated by an employee of defendant. The interrogatories inquestion ask whether defendant carried liability insurance at the time of the accident, the name and address ofthe insurer, the name of the insured, and the amount of coverage. Defendant objects on the grounds that said in-terrogatories are ‘an attempt to inquire into privileged matters, not proper interrogatories, incompetent, irrelev-ant and immaterial.’

[2][3] The federal courts are divided on the discoverability of insurance. It is this court's view that the betterrule is that taken by courts allowing discovery. E. g., Slomberg v. Pennabaker, 42 F.R.D. 8 (M.D.Pa.1967);Cook v. Welty, 253 F.Supp. 875 (D.D.C.1966); Ash v. Farwell, 37 F.R.D. 553 (D.Kan.1965); 41 A.L.R.2d 968and Supplement Service. The overriding purpose of the federal discovery rules is to promote full disclosure ofall facts to aid in the fair, prompt and inexpensive disposition of lawsuits. Rule 1, F.R.Civ.P., requires that thefederal rules ‘be construed to secure the just, speedy, and inexpensive determination of every action.’ It would



seem that permitting discovery of the existence and amount of coverage better furthers the word and spirit of therules than to deny it.

It is therefore ordered Defendant's Objections to Interrogatories, filed December 29, 1967, are overruled.

N.D. Iowa, 1968Woldum v. Roverud Const., Inc.43 F.R.D. 420, 11 Fed.R.Serv.2d 767

END OF DOCUMENT



F.Supp. 1145, 14 Fair Empl.Prac.Cas. (BNA) 932, 14 Empl. Prac. Dec. P 7567(Cite as: 424 F.Supp. 1145)

United States District Court, N. D. Mississippi, Greenville Division. Johnnie WALTON, etc., Plaintiff,

v. UTILITY PRODUCTS, INC., Defendant.

No. GC 75-104-K. Sept. 2, 1976.

Employee brought action against employer charging that he was discharged for racially discriminatory reasons. On defendant's motion to dismiss, the District Court, Keady, Chief Judge, held that Mississippi statute of limitations setting general six-year period of limitations rather than three-year statute of limitations applicable to claims for back pay was applicable to employee's claim of violation of statute guaranteeing equal rights; that claim filed within six years after alleged discriminatory act was not time barred; and that employee was not precluded from maintaining action because of his failure to file action within 90 days of receipt of failure of conciliation notice.

Motion granted in part and denied in part.

West Headnotes


170B Federal Courts 170BVI State Laws as Rules of Decision

170BVI(C) Application to Particular Matters 170Bk422 Limitation Laws

170Bk425 k. Civil Rights Actions. Most Cited Cases (Formerly 106k375(3))

Since statute guaranteeing equal rights under the law contains no statute of limitations, period of limitations applicable to action under statute is determined by reference to most analogous statute of limitations in force in state in which cause of action arises. 42 U.S.C.A. § 1981.

[2] Limitation of Actions 241 39(1)

241 Limitation of Actions 241I Statutes of Limitation

241I(B) Limitations Applicable to Particular Actions 241k39 Actions or Proceedings Not Specially Provided for

241k39(1) k. In General. Most Cited CasesUnder law of Mississippi, general six-year period of limitations rather than three-year period of limitations

which applies to action founded on implied contracts and action to recover back pay governs employment discrimination suit charging violation of federal statute guaranteeing equal rights under the law. 42 U.S.C.A. § 1981; Code Miss.1972, §§ 15–1–29, 15–1–49.


Page 2 of 6

7/10/2012http://web2.westlaw.com/print/printstream.aspx?fn=_top&spa=003570855-4000&destinati...

y yheld that Mississippi statute of , , y, g , pp

limitations setting general six-year period of limitations rather than three-year statute of limitations applicable to g g y p y ppclaims for back pay was applicable to employee's claim of violation of statute guaranteeing equal rights; that p y pp p yclaim filed within six years after alleged discriminatory act was not time barred;

( )Under law of Mississippi, general six-year period of limitations rather than three-year period of limitationspp , g y p y p

which applies to action founded on implied contracts and action to recover back pay governs employment dis-pp p p y g p ycrimination suit charging violation of federal statute guaranteeing equal rights under the law. 42 U.S.C.A. §g g1981; Code Miss.1972, §§ 15–1–29, 15–1–49.

EXHIBIT "14"




78k1378 Time to Sue 78k1383 k. Employment Practices. Most Cited Cases

(Formerly 78k210, 78k13.10) Under law of Mississippi, three-year statute of limitations applicable to action seeking recovery of back

wages acts as limitation upon back pay liability of employer charged with racial discrimination but does not op-erate to bar entire back pay claim or claim for declaratory or injunctive relief. 42 U.S.C.A. § 1981; CodeMiss.1972, § 15–1–29.




241k39(1) k. In General. Most Cited CasesUnder law of Mississippi, employee's claim against employer charging violation of federal statue guarantee-

ing equal rights, filed within six years of alleged racial discrimination, was not time barred. Code Miss.1972, §15–1–49; 42 U.S.C.A. § 1981.



78k1530 k. Time for Proceedings; Limitations. Most Cited Cases (Formerly 78k373, 78k40)

Time period for bringing civil action under Title VII of the Civil Rights Act does not commence upon char-ging party's receipt of failure of conciliation notice from the Equal Employment Opportunity Commission;90-day time period does not commence until charging party receives right to sue letter from EEOC. Civil RightsAct of 1964, §§ 701 et seq., 706(e) as amended 42 U.S.C.A. §§ 2000e et seq., 2000e–5(f)(1).

[6] Constitutional Law 92 1071

92 Constitutional Law 92VII Constitutional Rights in General

92VII(B) Particular Constitutional Rights 92k1070 Ninth Amendment

92k1071 k. In General. Most Cited Cases (Formerly 92k82(6.1), 92k82(6), 92k82)

Constitutional Law 92 1103

92 Constitutional Law 92VII Constitutional Rights in General


Page 3 of 6


( )Under law of Mississippi, employee's claim against employer charging violation of federal statue guarantee-pp , p y g p y g g g

ing equal rights, filed within six years of alleged racial discrimination, was not time barred. Code Miss.1972, §g q g ,15–1–49; 42 U.S.C.A. § 1981.


92VII(B) Particular Constitutional Rights 92k1101 Involuntary Servitude

92k1103 k. Labor and Employment. Most Cited Cases (Formerly 92k83(2))

Constitutional Law 92 3271

92 Constitutional Law 92XXVI Equal Protection

92XXVI(B) Particular Classes 92XXVI(B)8 Race, National Origin, or Ethnicity

92k3270 Labor, Employment, and Public Officials 92k3271 k. In General. Most Cited Cases

(Formerly 92k219.1) Claims against employer by employee who was allegedly discharged for racially discriminatory reasons for

relief pursuant to Ninth, Thirteenth and Fourteenth Amendments failed to state claims upon which relief could be granted. U.S.C.A.Const. Amends. 9, 13, 14.

*1146 Willie Lee Bailey, Greenville, Miss., for plaintiff.

Jerome S. Hafter, Greenville, Miss., for defendant.

ORDER KEADY, Chief Judge.

Plaintiff alleges that he was hired by defendant on June 30, 1970, and that he continued to work for defendant until September 17, 1971, at which time he was discharged for allegedly racially discriminatory reasons. A timely EEOC charge of racial discrimination ensued, and on November 5, 1974, plaintiff received notice from the EEOC that conciliation efforts had failed, and that plaintiff could pursue his claim in court if he filed an action within 90 days of receipt of an EEOC “right-to-sue” letter which would be furnished to him upon request. Plaintiff's attorney requested the right-to-sue letter on December 2, 1974, and on two subsequent occasions, but the EEOC did not deliver the *1147 letter until June 26, 1975. Suit was then filed on August 15, 1975, three years, eleven months after the occurrence of the alleged racial discrimination against plaintiff, and nine months after receipt of the EEOC failure of conciliation notice, but less than two months after receipt of the EEOC right-to-sue letter.

The court now has before it the motion of defendant to dismiss the complaint in this action. Defendant contends: (1) that all demands for injunctive, declaratory and other relief based on 42 U.S.C. s 1981 are barred by the three-year period of limitations provided in Miss.Code Ann. s 15-1-29 (1972); (2) that all relief based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. s 2000e et seq., is barred because of plaintiff's failure to file this action within 90 days of receipt by plaintiff of notice from the EEOC that efforts to conciliate his case had failed; and (3) that all claims based on the Ninth, Thirteenth, and Fourteenth Amendments of the United States Constitution fail to state a claim upon which relief can be granted.

[1] The court rejects defendant's contention that the three-year limitations period of Miss.Code Ann. s 15-1-29 (1972) bars plaintiff's section 1981 claim. Defendant correctly states that since section 1981 contains no statute of limitations, the applicable period of limitations is determined by reference to the most analogous stat-


Page 4 of 6


The court now has before it the motion of defendant to dismiss the complaint in this action. Defendant con- ptends: (1) that all demands for injunctive, declaratory and other relief based on 42 U.S.C. s 1981 are barred by ( ) j , y ythe three-year period of limitations provided in Miss.Code Ann. s 15-1-29 (1972); (2) that all relief based ony p p ( ); ( )Title VII of the Civil Rights Act of 1964, 42 U.S.C. s 2000e et seq., is barred because of plaintiff's failure to fileg , q , pthis action within 90 days of receipt by plaintiff of notice from the EEOC that efforts to conciliate his case hady p y pfailed; and (3) that all claims based on the Ninth, Thirteenth, and Fourteenth Amendments of the United States; ( ) , ,Constitution fail to state a claim upon which relief can be granted.


ute of limitations in force in the state in which the cause of action arises. Section 15-1-29 pertains to actions founded on implied contracts. The Fifth Circuit Court of Appeals has held that this section is the Mississippi statute of limitations applicable to actions seeking recovery of back wages, and that, therefore, recovery of back pay wages in a section 1981 employment discrimination suit will be limited to a period of three years prior to commencement of the action. Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974). This does not mean, however, that a section 1981 employment discrimination action will be barred if not initiated within three years of the alleged act of discrimination, for such a suit generally involves more than a claim for back pay. In a Title VII case the Fifth Circuit has stated that:

The right to be free from discriminatory practices in employment is not analogous to the right of action on implied or unwritten contracts . . . . Indeed, it is the failure to contract for employment or promotion on an equal basis which gives rise to a Title VII action.

United States v. Georgia Power Co., 474 F.2d 906, 923-24 (5th Cir. 1973).

[2][3][4] This court is of the opinion that the reasoning of Georgia Power is equally applicable to a section 1981 employment discrimination action. As there is no Mississippi statute of limitations for civil rights actions, or a specific Mississippi statue of limitations for actions analogous to actions based on racial discrimination in employment, the general six-year period of limitations provided by Miss.Code Ann. s 15-1-49, rather than the three-year period provided by section 15-1-29, determines the time within which a section 1981 employment discrimination suit must be filed. As noted previously, section 15-1-29 does act as a limitation upon an employer's back pay liability, but it does not operate to bar the entire back pay claim, or a claim for declaratory or injunctive relief.FN1 Since plaintiff filed his section 1981 claim well within the six-year period, defendant's motion to dismiss this portion of the complaint must be denied.

FN1. Subsequent to commencement of this action, s 15-1-29 was amended to provide a one-year period of limitations for actions founded on unwritten contracts of employment, Miss.Code Ann. s 15-1-29 (Supp.1976). In future s 1981 employment discrimination actions, back pay liability therefore will be limited to a period of one year prior to commencement of such actions.

[5] The court also does not agree with defendant's contention that Title VII relief is precluded because of plaintiff's failure to file this action within 90 days of receipt of the EEOC failure of conciliation notice. As pointed out above, the failure of conciliation *1148 notice advised plaintiff of his right to pursue his claim in court, but only by filing a civil action within 90 days after receipt of an EEOC right-to-sue notice, which would be furnished at plaintiff's request. The court is cognizant of the conflicting judicial views of the effect of the EEOC's past “two-letter” notice system on the 90 day limitation provided in section 706(f) of Title VII, 42 U.S.C. s 2000e-5(f), for filing a civil action based on an EEOC charge of discrimination. Both the Eighth and Tenth Cir- cuit Courts of Appeals have held the 90-day period for filing suit begins to run after receipt of the second of the two letters, the right-to-sue notice; Lacy v. Chrysler Corp., 533 F.2d 353 (8th Cir. 1976) (en banc); Williams v. Southern Union Gas Co., 529 F.2d 483 (10th Cir. 1976); Tuft v. McDonnell Douglas Corp., 517 F.2d 1301 (8th Cir. 1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 782, 46 L.Ed.2d 641 (1976). Although several district courts have adopted the view that the 90-day period is measured from receipt of the first letter, the notice of failure of conciliation, to date no circuit court of appeals has so held. In light of this situation, the court follows the reasoning of the Eighth and Tenth Circuits in the Lacy, Tuft, and Williams cases: that the 90-day period does not commence until the charging party is notified that the administrative processes of the EEOC have come to a halt, or until the charging party requests and receives a right-to-sue letter.FN2 Defendant's motion to dismiss the Title


Page 5 of 6


is no

general six-year period of limitations provided by Miss.Code Ann. s 15-1-49,

y, p p y ,Since plaintiff filed his section 1981 claim well within the six-year period,

must be denied.

[2][3][4] This court is of the opinion that the reasoning of Georgia Power is equally applicable to a section [ ][ ][ ] p1981 employment discrimination action. As there Mississippi statute of limitations for civil rights actions,

g g q y pppp g ,

or a specific Mississippi statue of limitations for actions analogous to actions based on racial discrimination inpp gp y

pemployment, the

determines the time within which a section 1981 employment p y ,

y p p ydiscrimination suit must be filed.

ydefendant's mo-j

tion to dismiss this portion of the complaint p

t m

The right to be free from discriminatory practices in employment is not analogous to the right of action on gimplied or unwritten contracts . . . .


VII aspects of plaintiff's complaint is accordingly denied.

FN2. Subsequent to entry of this order, the Court of Appeals for the Fifth Circuit, on facts similar tothis action, ruled that the 90-day period for filing suit run from the date of the second EEOC letter. Zambuto v. American Tel. & Tel. Co., 544 F.2d 1333 (5 Cir. 1977). Zambuto, however, held the two-letter practice violative of s 706(f)(1) of Title VII, but this ruling was to apply prospectively only fromthe date of decision (January 10, 1977) plus 90 days.

[6] Plaintiff's claims for relief pursuant to the Ninth, Thirteenth, and Fourteenth Amendments clearly fail tostate claims upon which relief can be granted, and defendant's motion to dismiss these claims is sustained.

D.C.Miss. 1976. Walton v. Utility Products, Inc. 424 F.Supp. 1145, 14 Fair Empl.Prac.Cas. (BNA) 932, 14 Empl. Prac. Dec. P 7567

END OF DOCUMENT


Page 6 of 6



United States District Court,N. D. Mississippi,Greenville Division. Emmett HEATH, Plaintiff,

v. D. H. BALDWIN COMPANY et al., Defendants.

No. GC 75-123-S. April 29, 1977.

Laid off employee sued employer and unions under Equal Employment Opportunity Act and Civil Rights Act of 1870 alleging defendants that have engaged in unlawful employment practices by discriminating against him and other black persons because of race. Suit was brought as class action and plaintiff asked for declaratory and injunctive relief as well as compensatory and punitive damages. On motion of defendants to dismiss, the District Court, Orma R. Smith, J., held that: (1) original charge filed with EEOC within 90 days of layoff was an amendable charge timely filed so that the official sworn charge related back to the earlier charge; (2) failure of EEOC to give employer notice of charge within ten days of filing would not bar suit where employer showed no significant prejudice; (3) action begun within 90 days after second letter from EEOC stating that employee had right to sue was timely; (4) Mississippi six-year statute of limitations was applicable to action under Civil Rights Act of 1870, and (5) while punitive damages could not be recovered under Title VII action they might be available in action under the Civil Rights statute.

Motions to dismiss denied.

See also D.C., 447 F.Supp. 505.

West Headnotes



78k1503 78k1505

Most Cited Cases

42 U.S.C.A. §



Page 2 of 14


) g y g p y(4) Mississippi six-year statute of limitations was applicable to action under Civil Rights g

Act of 1870, a

EXHIBIT "15"



78k1529 k. Defenses in General. Most Cited Cases (Formerly 78k372, 78k39)

Although court did not believe that the provision of 1972 amendments to Title VII requiring that an employer be notified of an employment discrimination charge within ten days of filing date was applicable to the particular employment discrimination charge because original charge was filed prior to the effective date of amendments, Equal Employment Opportunity Commission's failure to give employer notice within ten days did not bar laid off employee's discrimination action in absence of any showing of substantial prejudice by defendant employer and union. Civil Rights Act of 1964, § 706(a, b) as amended 42 U.S.C.A. § 2000e–5(b, e).



78k1530 k. Time for Proceedings; Limitations. Most Cited Cases (Formerly 78k373, 78k40)

Where first letter from Equal Employment Opportunity Commission to laid off employee stated that EEOC's conciliation efforts had failed but did not specifically inform laid off employee that EEOC had administratively closed his employment discrimination case, 90-day time period within which to bring action against employer and unions began on receipt of second letter advising employee of right to sue, and complaint filed within 90 days thereafter was timely. Civil Rights Act of 1964, § 706(a, e) as amended 42 U.S.C.A. § 2000e–5(b), (f)(1).


170B Federal Courts 170BVI State Laws as Rules of Decision

170BVI(C) Application to Particular Matters 170Bk422 Limitation Laws

170Bk425 k. Civil Rights Actions. Most Cited CasesSince there is no specifically stated or otherwise relevant federal statute of limitations for cause of action

under Civil Rights Act of 1870 against employer and union, court must look to state law and determine first how state would categorize action and then which state limitation period would apply to action so categorized. 42 U.S.C.A. § 1981.




241k39(1) k. In General. Most Cited CasesGeneral six-year statute of limitations in Mississippi was applicable to suit by laid off employee against em-

ployer and union claiming racial discrimination. Code Miss. 1972, § 15–1–49; 42 U.S.C.A. § 1981.



Page 3 of 14


( )General six-year statute of limitations in Mississippi was applicable to suit by laid off employee against em-y pp pp y p

ployer and union claiming racial discrimination. Code Miss. 1972, § 15–1–49; 42 U.S.C.A. § 1981.



78k1466 Monetary Relief in Employment Practices Cases 78k1474 Exemplary or Punitive Damages

78k1474(1) k. In General. Most Cited Cases (Formerly 78k275(1), 78k13.17(7), 78k13.17)



78k1569 Monetary Relief; Restitution 78k1574 k. Measure and Amount. Most Cited Cases

(Formerly 78k403, 78k46(15), 78k46) Former employee, suing employer and unions alleging racial discrimination with respect to layoff could not

recover punitive damages with respect to his action under the Equal Employment Opportunity Act, but he might be able to recover punitive damages with respect to action under the Civil Rights Act of 1870. Equal Employ- ment Opportunity Act of 1972, § 14, 42 U.S.C.A. 2000e–5 note; Fed.Rules Civ.Proc. rule 12(f), 28 U.S.C.A.; 42 U.S.C.A. § 1981.

*496 Robert E. Buck, McTeer, Walls, Bailey & Buck, Greenville, Miss., for plaintiff.

*497 Jerome C. Hafter, Lake, Tindall, Hunger & Thackston, Greenville, Miss., for D. H. Baldwin.

Hugo Swan, Fort Smith, Ark., C. R. McRae, Pascagoula, Miss., for National and Local Unions.

MEMORANDUM OF DECISION ORMA R. SMITH, District Judge.

Defendant D. H. Baldwin Company (Baldwin) and defendants International Chemical Workers Union (Chemical Workers) and Local 800 of the International Chemical Workers Union (Local 800) [FN1] have filed motions to dismiss and motions to strike plaintiff's request for punitive damages.[FN2] Since the issues raised by each motion are essentially identical and since defendants Chemical Workers and Local 800 have adopted Baldwin's memoranda in support of their motions, the court will consider the motions simultaneously.

FN1. Plaintiff filed an amended complaint on February 6, 1976, joining Chemical Workers and Local 800 as defendants to the suit.

FN2. Defendant Baldwin has also filed a motion for a protective order requesting a stay of further discovery until the court has ruled on its motions to dismiss and to strike. Since no discovery has in fact occurred since the filing of the motion and since the court's ruling will render the motion moot, the motion will not be discussed.

Plaintiff Emmett Heath (Heath), a former Baldwin employee, charges that defendants have engaged in unlawful employment practices by discriminating against him and other black persons because of their race. Heath alleges these discriminatory practices violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. ss 2000e et seq. (Title VII) and the Civil Rights Act of 1866, 42 U.S.C. s 1981 (s 1981), and seeks relief under both stat-


Page 4 of 14



utory provisions. The suit is brought as a class action and Heath asks the court for declaratory and injunctive relief and compensatory and punitive damages.

Heath was employed by Baldwin in February, 1961, and worked there until June 22, 1971, when he was laid-off allegedly for racially related reasons. On January 19, 1972, Heath made out a sworn charge [FN3] which was filed with the Equal Employment Opportunity Commission (EEOC) on January 21, 1972, 213 days after being laid-off, wherein he charged that his discharge was related to the fact that he is a black person. A copy of the charge was served on Baldwin on January 20, 1972.[FN4] The EEOC sent a letter dated June 11, 1975, (hereafter referred to as the First Letter) to Heath's attorney, Honorable Robert E. Buck (Buck), informing him that the EEOC had failed in its efforts to conciliate with Baldwin the charge of discriminatory employment practice. Buck received the First Letter on June 16, 1975.[FN5] Subsequently Buck requested a right-to-sue letter from the EEOC. Responding to that request the EEOC sent Buck a letter dated June 26, 1975, (hereafter referred to as the Second Letter) informing him of Heath's right to file suit in federal district court provided the suit was commenced within 90 days of receipt of the letter. Buck received the Second Letter on June 28, 1975.[FN6] The complaint was filed on September 23, 1975 99 days after the date of receipt of the First Letter, 87 days after receipt of the Second *498 Letter and approximately 4 years and 3 months after the date Baldwin discharged Heath.

FN3. A copy of the charge is attached to the complaint as Exhibit “A”.

FN4. The date of service on Baldwin is given as January 20, 1972, in the EEOC's “determination letter' which has been submitted to the court. Defendant Baldwin in its rebuttal brief at page 5 approvingly referred to that date as the date of service.

FN5. A copy of the letter is attached to the complaint as Exhibit “B”. Although the receipt-date stamp on the copy of the letter is not clear, defendant Baldwin states at part II-D on page 3 of its motion to dismiss that the letter was received on June 16, 1975, and plaintiff has not challenged that statement.

FN6. A copy of the letter is attached to the complaint as Exhibit “C”. The letter does not bear a receipt- date and the receipt-date is not provided in the amended complaint. Plaintiff's attorney states at page 2 in the reply memorandum in opposition to the motion to dismiss that he received the Second Letter from the EEOC on or about June 28, 1975.

A. MOTION TO DISMISS Three grounds for dismissal are raised in the motion to dismiss two of which are aimed at the Title VII

claim while the third deals with the claim made under s 1981: (1) the court lacks jurisdiction over the Title VII claim because Heath did not timely file a sworn charge with the EEOC; (2) alternatively, the court lacks jurisdiction over the Title VII claim because Heath failed to begin this action in federal court within the 90-day time period provided by the statute; and (3) the s 1981 claim is time-barred by the applicable 3-year state statute of limitation. Defendants have also moved to dismiss the class allegations of the complaint. The facts and law applicable to each ground for dismissal are discussed below.

1. Motion to Dismiss Title VII Claim Because of Untimely Filing of Charge with the EEOC. Title VII originally required that a charge of discrimination be filed with the EEOC within 90 days of the

occurrence of the unlawful employment practice. 42 U.S.C. s 2000e-5(d) (1970). The Equal Employment Oppor- tunity Act of 1972 [FN7] (hereafter the 1972 Amendments) amended Title VII and extended this period to 180 days. 42 U.S.C. s 2000e-5(e) (Supp. II, 1972). The 1972 Amendments became effective on March 24, 1972, and


Page 5 of 14



apply to charges pending on or filed after that date.[FN8]

FN7. Act of March 24, 1972, Pub.L. No. 92-261, 86 Stat. 103.

FN8. “The amendments made by this Act to section 706 (42 U.S.C. s 2000e-5) of the Civil Rights Act of 1964 shall be applicable with respect to charges pending with the Commission on the date of enactment (March 24, 1972) of this Act and all charges filed thereafter.”

Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, s 14, 86 Stat. 113.

Defendants argue that since the timely filing of a charge is a prerequisite to bringing an action in federal district court,[FN9] Heath's Title VII claim should be dismissed because his charge was filed 213 days after his discharge which is beyond both time periods the applicable 90-day period as well as the 180-day period established by the 1972 Amendments which defendants claim has no bearing on this question.[FN10] The facts revealed in the complaint and the filing date of Heath's charge as shown on the copy attached to the complaint appear to warrant sustaining defendants' motions to dismiss the Title VII claim for failure to timely file a charge with the EEOC.

FN9. The court notes that in Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 928 (5th Cir. 1975), the court stated that the period for filing charges was not a technical jurisdictional requirement to be strictly applied in every case. Instead, the time period was compared to a statute of limitations subject to equitable modifications and in that case the court held that the time period did not commence until “the facts that would support a charge of discrimination under Title VII were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the plaintiff.” Id. at 931.

Since Heath does not claim that he was unaware of the allegedly discriminatory nature of his discharge when it occurred, he cannot and does not rely on Reeb to satisfy the requirement that charges be timely filed. See East v. Romine, Inc., 518 F.2d 332, 336 n. 3 (5th Cir. 1975).

FN10. The United States Supreme Court has held that the 180-day provision applies to charges “where the charge was filed with the EEOC prior to March 24, 1972, and alleged a discriminatory occurrence within 180 days of the enactment of the Act”. International Union of Electrical, Radio and Machinery Workers v. Robbins & Myers, Inc., 429 U.S. 229, 243, 97 S.Ct. 441, 450, 50 L.Ed.2d 427 (1976).(footnote omitted).

Under this test Heath's charge does not come under the 1972 Amendments for purpose of determining whether the charge was timely filed because the alleged discriminatory practice occurred on June 22, 1971, which is not within 180 days of enactment of the 1972 Amendments. To satisfy the filing requirement Heath must show that he filed his charge within the 90-day period.

However, Heath claims that the charge attached to the complaint is not the original charge he filed with the EEOC. He points to a charge received by the EEOC on August 11, 1971, (hereafter the August 11 *499 Charge) which was 50 days after his lay-off on June 22, 1971, and within the 90-day period. To support this claim, Heath has attached to his reply brief a copy of an EEOC “determination letter” wherein the charge's filing date is listed as August 11, 1971. Heath has also submitted to the court an affidavit by Mr. Charles A. Haycraft, Director of the Jackson District Office of the EEOC, wherein Mr. Haycraft states the EEOC received Heath's original charge


Page 6 of 14



on August 11, 1971. [FN11] Copies of the “determination letter” and affidavit were served on defendants butwere not filed with the Clerk of the Court. The court will have these documents filed and consider their contentsin deciding this question.

FN11. The affidavit reads in part:

We received Emmett Heath's charge of discrimination against Baldwin Piano Company on August 11,1971, whereupon it was given Charge Number TJA2-0287. Thereafter, the charge was assigned to aninvestigator who investigated the charge and compiled the facts for review. At this point (May 1, 1973)the case was given a case number, YJA3-361, and then sent to our Decisions Division in Washington,D. C., for a decision. The Decisions Division rendered a Cause decision in this case and returned thefile to our Jackson District Office on January 6, 1975. Subsequently, on February 21, 1975, the casewas assigned to a conciliator for attempts at conciliation. Prior to the conclusion of a failure of concili-ation (June 30, 1975) a right-to-sue letter was issued (June 26, 1975) following a request for the same.As a result of the failure of conciliation, the file was transferred to our Litigation Center for purposes ofdetermining whether the Commission will file a legal action against Respondent. At this date (May 21,1976) the file is still lodged with our Litigation Center in Atlanta, Georgia.

Prior to the 1972 Amendments, Title VII provided that a charge be made “in writing under oath”, 42 U.S.C.s 2000e-5(a) (1970) [FN12] and be filed with the EEOC within 90 days of the allegedly discriminatory employ-ment practice, 42 U.S.C. s 2000e-5(d) (1970).[FN13] Defendants argue that a charge does not satisfy the re-quirements of these two subsections unless it has been made in writing under oath and timely filed with theEEOC. They contend Heath cannot rely on the August 11 Charge to satisfy the timely filing requirement be-cause he has not shown the charge was made under oath.

FN12. The applicable part of 42 U.S.C. s 2000e-5(a) (1970) reads:

Whenever it is charged in writing under oath by a person claiming to be aggrieved, . . . that an employ-er, . . . has engaged in an unlawful employment practice, the Commission shall furnish such employer, .. . with a copy of such charge and shall make an investigation of such charge . . . .

FN13. The applicable part of 42 U.S.C. s 2000e-5(d) (1970) reads:

A charge under subsection (a) of this section shall be filed within ninety days after the alleged unlawfulemployment practice occurred, . . . .

During the early stages of Title VII litigation the Fifth Circuit dealt with and rejected the argument nowpresented by defendants. In Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 1969)and Georgia Power Co. v. EEOC, 412 F.2d 462 (5th Cir. 1969), the court held that a written unsworn chargewhich is timely filed with the EEOC can be amended after the 90-day period to add a sworn verification to meetthe oath requirement of 42 U.S.C. s 2000e-5(a) (1970).[FN14]

FN14. In Weeks, the plaintiff had timely filed a written unsworn charge with the EEOC. After the90-day period had passed, the EEOC obtained a sworn charge from plaintiff. The court held that a writ-ten unsworn charge which is timely filed and is otherwise valid may be amended after the 90-day periodto satisfy the oath requirement of 42 U.S.C. s 2000e-5(a). 408 F.2d at 231.


Page 7 of 14



In Georgia Power Co., the plaintiff had written a letter to the Regional Director of the EEOC setting forth her complaint of discrimination. The letter was received within the 90-day time period. After the expiration of the 90-day period, a formal sworn charge was obtained. The employer, Georgia Power Company, challenged the adequacy of the charge because the letter was not under oath and the formal sworn charge was not timely filed. Quoting from Weeks with approval, the court held that the letter was a valid amendable charge which had been timely submitted to the EEOC. The court found that the formal sworn charge added nothing to the substance of the original letter and therefore concluded that the official sworn charge related back to the filing date of the letter. 412 F.2d at 466-67.

Defendants acknowledge the holding of Weeks and Georgia Power Co., but argue *500 that the legislative history of the 1972 Amendments and the retention of the oath requirement in Title VII after the 1972 Amend- ments reveal an implicit rejection by Congress of these early decisions. Specifically, defendants point out that the House of Representatives version of the 1972 Amendments contained no oath requirement but that it was later added by a Senate amendment to the House version. The Senate version retaining the oath requirement was adopted by the Conference Committee and incorporated in the 1972 Amendments.[FN15]

FN15. Subsection (a) and (d) of 42 U.S.C. s 2000e-5 (1970) quoted in part in notes 12 and 13, supra, were redesignated subsections (b) and (e) respectively by the 1972 Amendments and provide in applicable part:

(b) Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, . . . alleging that an employer, . . . has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer, . . . within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Com- mission requires. . . .

(e) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, . . . .

Although the court does not believe under these facts that the question of timely filing of Heath's charge is governed by the 1972 Amendments, assuming that it is, the court finds defendants' argument unconvincing. De- fendants cite no testimony, documents or comments from the Congressional proceedings specifically supporting their position that Congress intended to overrule the holdings of Georgia Power Co. and Weeks. The retention of the oath requirement in the 1972 Amendments, standing alone, is not persuasive because the court in Georgia Power Co. and Weeks did not waive the requirement that a charge be made under oath; rather the court, recognizing the remedial nature of Title VII, held that a timely filed unsworn charge, valid in all other aspects, may later be amended to allow the party to add a sworn verification.

]

FN16. See EEOC v. United States Fidelity and Guaranty Co., 420 F.Supp. 244 (D.Md.1976).

In this case the court specifically rejected respondent's argument that the legislative history of the 1972 Amendments overruled the holding of Weeks and Georgia Power Co. The court concluded:


Page 8 of 14



In the court's opinion, respondent ascribes too much significance to the language change in the 1972 amendments. There is no evidence in the legislative history that Congress intended to change the results reached by courts interpreting the pre-1972 language.

It is apparent that Congress intended no change in the judicial construction of the oath requirement. To require that all charges be sworn to within the 180-day limit would result in cutting off the rights of complainants who were unaware of the oath requirement. As long as the charge is sworn to before the Commission begins its investigation, the purpose of the oath requirement prevention of harassment of employers is fulfilled.

420 F.Supp. at 248, 249.

*501 [1] The court finds that the August 11 Charge was a valid amendable charge which was timely filed, that the official sworn charge filed on January 21, 1972, adds nothing substantively to the August 11 Charge, and that the sworn charge relates back to the August 11 Charge and amends it by adding the sworn verification.

Defendants also argue that allowing the sworn verification to be added to the August 11 Charge after the expiration of the 90-day period defeats the requirement added by the 1972 Amendments that the EEOC serve an employer with notice that a charge has been filed against it within 10 days of the charge's filing date. 42 U.S.C. s 2000e-5(b), (e) (Supp. II, 1972).

Prior to the 1972 Amendments, Title VII required that an employer be given a copy of the charge, 42 U.S.C. s 2000e-5(a) (1970), (see note 12, supra ), but it did not prescribe any certain time period for furnishing the charge. In title VII actions brought by a private plaintiff where the EEOC had not given a copy of the charge to the employer, the courts generally refused to penalize a private plaintiff for the EEOC's omissions because such omissions were beyond the private plaintiff's control and held that service of the charge on the employer was not a jurisdictional prerequisite for the private plaintiff's court action. E. g. Thornton v. East Texas Motor Freight, 497 F.2d 416, 424 (6th Cir. 1974); Johnson v. ITT-Thompson Industries, Inc., 323 F.Supp. 1258, 1260 (N.D.Miss.1971).

The 1972 Amendments now require the EEOC to serve notice to the employer that a charge has been filed against it within 10 days of the filing date. (see note 15, supra.) In this case Baldwin was not notified that a charge had been filed against it until January 20, 1972. Defendants contend that the delay between the filing of the August 11 Charge and the date notice was received effectively defeats the 10-day notice requirement's purpose to provide prompt notice to the employer in order to protect the employer's due process rights.

[2] The court is not convinced that the 10-day notice provision of the 1972 Amendments is applicable to the charge involved in this case but assuming its applicability, the court finds in this case that the EEOC's failure to give Baldwin notice within 10 days does not bar Heath's court action. The court notes that one district court, following pre-1972 Amendment cases, has held in a Title VII action brought by a private plaintiff that the EEOC's failure to give notice within 10 days does not preclude the private plaintiff from bringing a court action because the providing of notice is not a jurisdictional prerequisite. Garvin v. American Life Insurance Co., 416 F.Supp. 1087, 1091-92 (D.Del.1976) (citing with approval such pre-1972 Amendment cases as Thornton v. East Texas Motor Freight, 497 F.2d 416 (6th Cir. 1974) and Johnson v. ITT-Thompson Industries, Inc., 323 F.Supp. 1258 (N.D.Miss.1971)). Another district court has held in a private plaintiff's Title VII action that the EEOC's failure to give notice to the employer within 10 days does not bar the court action where the employer has suffered no significant prejudice as a result to the delayed notice. Clark v. Morgan's Austintown Foods, Inc., 405 F.Supp.


Page 9 of 14



1008, 1009-10 (N.D.Ohio, 1975).

The court has not found a Title VII action decided by the Fifth Circuit where the court dealt with the question of whether the EEOC's failure to give the employer notice within 10 days precludes a private plaintiff from bringing a court action. However, in EEOC v. Airguide Corp., 539 F.2d 1038 (5th Cir. 1976) the court did deal with the issue in an action brought by the EEOC. In that case, the EEOC alleged that notice of filing had been sent to the employer within 10 days of the charge's filing date but the employer claimed it did not receive the notice and did not learn of *502 the pending charge until 1 year later. After determining from the evidence that the EEOC had probably mailed the notice within 10 days but that it had apparently been lost in the mail, the lower court held that the employer must receive the notice before the EEOC has satisfied the 10-day notice requirement and dismissed the action.

On appeal the Fifth Circuit examined the purpose of the 10-day notice requirement.

It is reasonable to conclude the Congress did not intend to allow the Commission to decide capriciously or arbitrarily whether or not notice of a charge of discrimination is to be sent to the alleged violator.

But neither do we have reason to think that Congress intended to prevent the Commission from suing because of an unintentional defect in compliance, without a showing that such “non-compliance” has caused prejudice to the defendant-employer. This is especially true where, as here, such non-compliance was actually compliance rendered ineffective by unforeseeable and uncontrollable circumstances.

539 F.2d at 1041.

The court then concluded:

We are unwilling to hold that in the present situation where there has been virtual compliance with all the statutory procedural steps, and where there has been no clear showing of substantial prejudice to Airguide there has been a denial of due process sufficient to bar EEOC from bringing suit.

539 F.2d at 1042 (footnote omitted)

The court reversed the dismissal and remanded the case to allow the employer an opportunity to present any evidence it may have to support its claim that it was prejudiced by the delayed notice.

The defendants have not shown that they were substantially prejudiced by the EEOC's failure to provide them with notice of filing of the August 11 Charge within 10 days of its filing date and therefore the court concludes that the delayed notice given defendants cannot bar Heath's court action.[FN17]

FN17. Since the determination of whether a party has been substantially prejudiced is an ad hoc matter, the prudent course for the EEOC to take in cases like this would be to follow the advice given by the Fifth Circuit in an earlier decision under similar circumstances and provide the employer with notice that an unsworn charge has been filed and notify the employer again when a final sworn charge has been obtained. See Georgia Power Co. v. EEOC, 412 F.2d 462, 467 n. 10 (5th Cir. 1969).

By applying the “substantial prejudice” test of Airguide the court does not decide that the standard applied to the EEOC as plaintiff is necessarily applicable to a private plaintiff.[FN18] Instead the court decides that even under the test of Airguide plaintiff's court action is not barred by the failure of the EEOC to comply with the


Page 10 of 14



10-day notice requirement.

FN18. See EEOC v. United States Fidelity & Guaranty Co., 420 F.Supp. 244, 250 (D.Md.1976). (Court suggests that a stricter standard applies to EEOC than to a private plaintiff.)

In summary, since the August 11 Charge as amended by the sworn charge meets the oath and timely filing requirements of 42 U.S.C. s 2000e-5(a), (d) (1970) and 42 U.S.C. s 2000e-5(b), (e) (Supp. II, 1972) and since defendants have failed to show they suffered substantial prejudice as a result of the EEOC's failure to comply with the 10-day notice requirement of 42 U.S.C. s 2000e-5(b) (Supp. II, 1972), the court finds that defendants' motions to dismiss the Title VII claim for the failure of Heath to file a timely charge with the EEOC is not well taken and should be denied.

2. Motion to Dismiss Title VII Claim for Failure to Timely Commence Court Action. The time period within which a party may bring a court action is set forth in 42 U.S.C. s 2000e-5(f)(1)

(Supp. II, 1972) [FN19] which provides in part:

FN19. Prior to the 1972 Amendments, Title VII provided that a party had 30 days to bring a court action. 42 U.S.C. s 2000e-5(e) (1970). Since the court has determined that plaintiff's charge was adequate and thus pending at the time the 1972 Amendments became effective, the court finds that the expanded 90-day time period applies.

*503 If a charge filed with the Commission pursuant to subsection (b) of this section, is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge . . . the Commission has not filed a civil action under this section . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge . . ..

Defendants argue that plaintiff's Title VII claim should be dismissed because the complaint was filed 99 days after receipt of the First Letter which advised plaintiff that the EEOC's conciliation efforts had failed. Plaintiff contends that his suit is timely because the complaint was filed 87 days after receipt of the Second Let- ter which advised plaintiff of his right to sue. Each side has cited cases from various jurisdictions supporting their respective positions. The court believes that the Fifth Circuit's decision in Zambuto v. American Telephone & Telegraph Co., 544 F.2d 1333 (5th Cir. 1977) is dispositive of this issue.

In Zambuto the court dealt with the EEOC's “two tier letter” procedure by which the EEOC sent two different notices to the charging party. The court described the function of each notice:

The first . . . informs the aggrieved party that conciliation efforts have been ineffective and, if desired, the party may request a right-to-sue letter from the EEOC. The second letter, which is not sent until such a request is transmitted, contains formal notification of the right to sue as well as a statement that the EEOC will not itself bring suit.

544 F.2d at 1334.

Mrs. Zambuto's court action was commenced over 180 days after receiving the first notice but within 90 days of receipt of the second notice.


Page 11 of 14



Comparing the two-tier procedure with the language of 42 U.S.C. s 2000e-5(f) (1) (Supp. II, 1972), the court stated:

This language has been read to require communication of both the failure of conciliation and the EEOC's decision not to sue in order to indicate clearly that the administrative process has been completed. . . . A notice which merely informs the aggrieved party that conciliation has failed, may not mean that no suit will be brought. . . . A letter only announcing “no conciliation” would not fulfill the statute's requirement for notice of both inability to conciliate and a determination not to sue by EEOC.

The statutory plan is to keep claims fresh. When the aggrieved party knows EEOC has completed its efforts, the time for suit has come and the statute fixes its season as 90 days. This is a protection to the employer and is plainly there for its benefit alone. To the extent that EEOC has adopted a practice which places the commencement of this 90-day period within the claimant's power by bifurcating the statutory notice, it is an invalid procedure which is counter to the plain language of the statute and to the Congressional purpose undergirding it.

544 F.2d at 1335 (footnote omitted) (emphasis added).

The court made its holding that the two-tier procedure violated the statute prospective and applicable only to actions brought in this circuit after April 11, 1977. Finding that Mrs. Zambuto was misled by the two notices, the court held that the 90-day period began from the date she received the second notice.

[3] Mrs. Zambuto's first notice and Heath's First Letter differ in wording and in the information each con- veys.[FN20] One important*504 difference is that, unlike Mrs. Zambuto's first notice, Heath's First Letter does not indicate or imply that a right-to-sue letter will be sent at a later date and therefore Heath cannot claim the First Letter misled him to believe that the 90-day period began to run on the day he received the Second Letter. [FN21] However, like Mrs. Zambuto's first notice, Heath's First Letter does not satisfy the statutory requirements because it does not specifically inform Heath that the EEOC has administratively closed his case. The letter only states that conciliation has failed but this is not sufficient because it does not indicate that the EEOC had decided not to sue.[FN22] The court finds that the time period began to run on receipt of the Second Letter, and that Heath's complaint was timely filed. The defendants' motion to dismiss Heath's Title VII complaint for failure to timely commence a court action is not well taken and will be denied.

FN20. Mrs. Zambuto's letter reads:

This is to inform you that (the) above-referenced case has been administratively closed. However, we are awaiting the request for issuance of a Right-to-Sue letter from either you or your attorney, as informed would be forthcoming.

544 F.2d at 1334 (footnote omitted)

Heath's First Letter reads:

This letter constitutes the notice required by the Commission's Procedural Regulations (29 CFR 1601.23) which provides as follows:

Should a Respondent fail or refuse to confer with the Commission or its representative, or fail or refuse to make a good faith effort to resolve any dispute, the Commission may terminate its efforts to conciliate the dispute. In such event, the Respondent shall be notified promptly, in writing, that such efforts


Page 12 of 14



have been unsuccessful and will not be resumed except upon the Respondent's written request within the time specified in such notice.

The Commission has determined that its efforts to conciliate this case have been unsuccessful. No further efforts to conciliate this case will be made unless you request resumption of the conciliation effort, in writing, within five (5) days of your receipt of this Notice.

FN21. The court notes that Heath's First Letter is confusing in a different way because it contains the notice the EEOC generally sends to a respondent, the employer, rather than to an employee. The notice is sent after the respondent has failed or refused to participate in conciliation and its purpose is to give “even a recalcitrant respondent one last chance to settle the dispute.” EEOC v. Raymond Metal Products Co., 530 F.2d 590, 596 (4th Cir. 1976). Arguably, Heath could have been misled by the notice itself because it is directed to an employer. Since the court finds that the notice provided in the First Letter is not sufficient under the statute, the court will not determine whether Heath was actually misled.

FN22. The court also notes that Mr. Haycraft states at the conclusion of his affidavit (see note 11, supra) that as of May 21, 1976, Heath's file was at the EEOC's Litigation Center implying that a decision not to sue had not been made as of that date.

3. Motion to Dismiss s 1981 Claim Because Not Timely Commenced. “ [4] Since there is no specifically stated or otherwise relevant federal statute of limitations for a cause of ac-

tion under s 1981,” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975), the court must look to state law, and “determine first how the state court would categorize the action and then which state limitation period would apply to the action so categorized.” Ingram v. Steven Robert Corp.,547 F.2d 1260, 1261 (5th Cir. 1977).

Defendants contend that the 3-year limitation period of Miss.Code Ann. s 15-1-29 (1972) applies to this action and that Heath's s 1981 claim is time-barred because the action was begun over 4 years after the alleged discriminatory act occurred.

[5] For the reasons set forth by Chief Judge Keady in Walton v. Utility Products, Inc., 424 F.Supp. 1145, 1147, (N.D.Miss.1976) the court finds that the 6-year limitation period of Miss.Code Ann. s 15-1-49 (1972) is applicable and therefore Heath's s 1981 claim was timely filed. Defendants' motion to dismiss the s 1981 claim is not well taken and will be denied.

4. Motion to Dismiss Class Action. Defendants have moved to dismiss the class action allegations of the complaint claiming that Heath cannot

adequately represent the class. The court notes that no discovery has occurred while these motions have been pending and the record has not *505 been developed. The court believes a ruling on the current record would be premature and will therefore allow plaintiff additional time to take discovery and file his motion for class certification.

B. MOTION TO STRIKE Pursuant to Fed.R.Civ.P. 12(f) defendants have moved to strike from the complaint plaintiff's request for an

award of punitive damages. Defendants contend that Title VII and s 1981 do not authorize an award of punitive damages and that the allegations of the complaint cannot support awarding punitive damages.


Page 13 of 14


[5] For the reasons set forth by Chief Judge Keady in Walton v. Utility Products, Inc., 424 F.Supp. 1145,[ ] y g y y , , pp ,1147, (N.D.Miss.1976) the court finds that the 6-year limitation period of Miss.Code Ann. s 15-1-49 (1972) is, ( ) y p ( )applicable and therefore Heath's s 1981 claim was timely filed. Defendants' motion to dismiss the s 1981 claim ppis not well taken and will be denied.


[6] Although the courts have differed as to whether punitive damages are available under Title VII,[FN23] this court finds that Heath cannot recover punitive damages under the Title VII claim. E. g., Pearson v. Western Electric Co., 542 F.2d 1150, 1151-53 (10th Cir. 1976); EEOC v. Detroit Edison Co., 515 F.2d 301, 308-10 (6th Cir. 1975). With regard to Heath's s 1981 claim, the court finds that punitive damages may be available. Johnson v. Railway Express Agency, 421 U.S. 454, 460, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); see Faraca v. Clements, 506 F.2d 956, 957 (5th Cir. 1975). Defendants' other allegations are insufficient to support their motion to strike.

FN23. See cases collected in Presseisen v. Swarthmore College, 71 F.R.D. 34, 45 n. 12 (E.D.Pa.1976).

An appropriate order will be entered by the court.

D.C.Miss.,1977. Heath v. D. H. Baldwin Co. 447 F.Supp. 495, 17 Fair Empl.Prac.Cas. (BNA) 135

END OF DOCUMENT


Page 14 of 14


F.Supp. 24(Cite as: 294 F.Supp. 24)

United States District Court S.D. Mississippi, Hattiesburg Division. Andrew H. HOWARD et ux., Plaintiffs,

v. SUN OIL COMPANY, Defendant.

Civ. A. No. 2212. Dec. 11, 1967.

Tort action for conversion of oil in place. The District Court, William Harold Cox, Chief Judge, held that where defendant oil company would not drill well on tract until it made peace with plaintiffs and others claiming interest in tract and would not distribute royalties without agreement of all claimants and all plaintiffs eventually agreed for valuable consideration that they had no interest in royalties and expressly authorized defendant to distribute royalties to other claimants, plaintiffs were estopped from changing their position and were not entitled to recover for conversion of oil in place.

Judgment affirmed, 404 F.2d 596.

West Headnotes



170AXVII(C) 170AXVII(C)1 In General

170Ak2465 170Ak2470.4 Most Cited Cases

(Formerly 170Ak2470)

law. .



170AXI(B) Involuntary Dismissal 170AXI(B)2 Grounds in General

170Ak1744 Parties, Defects as to 170Ak1748 k. Nonjoinder in Particular Actions. Most Cited Cases

Suit in tort for damages for capture and conversion of petroleum products on land claimed by plaintiffs was not subject to dismissal on ground that necessary parties were not before the court, inasmuch as suit was not to cancel cloud on title or to quiet title.


Page 2 of 7

7/10/2012http://web2.westlaw.com/print/printstream.aspx?vr=2.0&mt=26&destination=atp&spa=00...

EXHIBIT "16"


[3] Federal Civil Procedure 170A


170AXVII(C) 170AXVII(C)1 In General

170Ak2465 170Ak2471

.

[4] Compromise and Settlement 23(1)

89 Compromise and Settlement 89I In General

89k23 Evidence 89k23(1) k. Presumptions and Burden of Proof. Most Cited Cases

In action for conversion of oil in place, wherein there was nothing to show existence of any fraud or anyconcealed fraud, it must be presumed conclusively as matter of law that written settlement instrument containedentire agreement between parties.

[5] Limitation of Actions 241 27


241I(B) 241k26

241k27



241I(B) 241k39

241k39(1) Most Cited Cases




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241k39(13) k. Injuries to Property. Most Cited CasesTort action for conversion of oil in place would be barred by Mississippi 6-year statute of limitations where

it was brought 22 years after filing of settlement instrument dealing with land. Code Miss.1942, § 729.



170AVII(A) Pleadings in General 170Ak633 Certainty, Definiteness and Particularity

170Ak636 k. Fraud, Mistake and Condition of Mind. Most Cited Cases

Fraud 184 50

184 Fraud184II

k. Presumptions and Burden of Proof. Most Cited Cases

Fraud 184 58(1)

184 Fraud184II Actions

184II(D) Evidence 184k58 Weight and Sufficiency

184k58(1) k. In General. Most Cited CasesFraud is never presumed and it must be pled with particularity and proved by clear and convincing evid-

ence. Fed.Rules Civ.Proc. rule 9(b), 28 U.S.C.A.

[9] Estoppel 156

156 Estoppel 156III

156III(B) 156k78

Most Cited Cases

[10] Estoppel 22(2)

156 Estoppel


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156II By Deed 156II(A) Creation and Operation in General

156k20 Grounds of Estoppel 156k22 Recitals

156k22(2) k. In Deeds and Mortgages. Most Cited CasesMere recital of fact in deed is as effectual an estoppel as a covenant and binds parties and privies.

*25 Michael R. Eubanks, Lumberton, Miss., for plaintiffs.

John T. Armstrong, Hazlehurst, Miss., for defendant.

WILLIAM HAROLD COX, Chief Judge. This tort action for conversion of oil in place was instituted here on August 29, 1967. The defendant com-

pleted an oil and gas well on November 1, 1947 under a lease executed to the defendant by the record owners on October 16, 1942 of the ten acre tract in Lamar County, Mississippi, described as SW 1/4, NW 1/4, SW 1/4, Section 32, Township 2 N, Range 16 W. The plaintiffs built their home on and a fence around said tract in 1923. On September 13, 1945, there was a settlement of the conflicting claims to this tract by the execution of a quit claim deed by the record owners to Andrew Howard wherein the grantors reserved nine mineral acres and conveyed to the grantee their interest in fee in the surface, but vested the grantee with a non-participating royalty acre which entitled him only to participate in oil and gas as produced. The plaintiffs expressly noted and acknowledged their approval of said deed and the terms thereof on the same date and said instrument was duly filed for record on October 19, 1945. Significantly, the plaintiffs on December 16, 1945 conveyed and warranted their said mineral interest in said land to Jane Lott by instrument duly filed for record on December 17, 1945. Subsequently, on January 21, 1948, the plaintiffs executed a correction deed to Mrs. Jane Lott to clarify their intention to convey all of their undivided royalty interest in said land and to clarify their intention that such instrument ‘covers and includes all oil runs from and after the date of first production.’ On January 21, 1948, the plaintiffs executed and duly acknowledged the division order which recited the execution of a valid oil lease on the subject property to the defendant and for a valuable consideration, it was agreed that Andrew Howard had no royalty interest in said property (his royalty interest being blocked out and initialed by plaintiffs) and the plaintiffs expressly authorized and directed defendant to pay the other named parties all royalties from production on said tract under said lease.

The plaintiffs make several untenable contentions. They assert that they were induced to accept the first mentioned deed by a collateral oral promise that they would be paid five thousand dollars when a well was produced on said tract and were told that no well would be drilled unless said deed was accepted as it was. It is stated as a conclusion that they were tricked into such settlement and that they did not know of their rights and that they were thus defrauded and that such was concealed fraud. Suit in tort is brought for their interest in the oil produced from the J. S. Moody No. 1 Well in the Baxterville Field. Both parties have moved for summary judgment on affidavits and *26 supporting exhibits under Civil Rule 56(e).

[1][2][3] While this rule is not in high favor in this circuit, it is a wholesome procedure by which the Court can obviate the necessity for a lengthy trial when it becomes clearly apparent that there is no genuine issue of any material fact and that one party is entitled to a judgment as a matter of law. The defendant forcefully insists that necessary parties are not before the Court and that the suit should be dismissed unless such parties are made parties to this action. That contention does not reckon with the indisputable fact that this is not a suit to cancel a


Page 5 of 7



cloud on a title to land, or to quiet a title to land. If it were such a suit, then defendant would be eminently correct in its contention, but the complaint would be woefully inadequate and not maintainable without a deraignment of title under the laws of the State of Mississippi.FN1 But this is not such a suit to tort for damages for the capture and conversion of petroleum products on the subject land claimed by the plaintiffs. Let it be assumed in this proceeding that the plaintiffs adversely possessed and owned the subject land prior to September 13, 1945. There does not appear to this Court to be any genuine issue as to any material fact about any other question in this case. It simply may not be gainsaid that there was a settlement made between the plaintiffs and the record owners of this property and that Inez Howard participated therein. It is immaterial that she did not employ any word of conveyance in the settlement made. She signed the division order for a valuable consideration which authorized and directed the defendant to exclude the plaintiffs from any participation in the production on the subject land. The conclusionary statements in the complaint are cast aside under Civil Rule 56(e) and nothing is presented to the Court in opposition to defendant's motion to show the existence of any genuine issue of material fact to deserve or require a trial.

FN1. § 1325 Mississippi Code 1942 provides: ‘In bills to confirm title to real estate, and to cancel and remove clouds therefrom, the complainant must set forth in plain and concise language the deraignment of his title; if title has passed out of the sovereign more than seventy-five (75) years prior to the filing of the bill, then the deraignment shall be sufficient if it show title out of the sovereign and a deraignment of title for not less than sixty (60) years prior to the filing of the bill; and a mere statement therein that complainant is the real owner of the land shall be insufficient, unless good and valid reason be given why he does not deraign his title; and in all such cases final decrees in the complainant's favor shall be recorded in the record of deeds, and shall be indexed as if a coveyance of the land from the defendant or each of them, if more than one; to the complainant or complainants, if more than one.’

[4][5][6][7][8][9][10] There is no concealed fraud in this case. The defendant promptly filed the settlement instrument in the land records of Lamar County approximately twenty-two years before this suit was filed. There is nothing before this Court to show the existence of any fraud or any concealed fraud in this case. Con- sequently, it must be presumed conclusively as a matter of law that the written instruments contained the entire agreement between the parties thereto. Any tenable contention as to the existence of any oral promise to pay five thousand dollars not contained in the written instrument would be barred by the Mississippi Three, year Statute of Limitations.FN2 Ordinarily, a suit in tort for damages is barred by the Mississippi*27 Six Year Statute of Limitations.FN3 Aside from the other tenable defenses here, this right of action in its entirety would be barred by that six year statute. But there is more to this suit. The defendant would not drill this oil well until it first made its peace with these plaintiffs. It would not distribute the royalties until all of the owners claiming any interest therein had agreed thereto. The plaintiffs effectually agreed for a valuable consideration that they had no interest in such royalties and expressly authorized and directed the defendant to make distribution to the named rightful owners thereof.FN4 Surely, under such circumstances even in a court of law these plaintiffs are now estopped FN5 and are even barred by laches from changing their position and undertaking to profit by defendant's action in accordance with its agreements with them. There is simply nothing to try in this case and a trial would not be fruitful, or productive of any different result.

FN2. § 729 Mississippi Code 1942 provides: ‘Actions on an open account or stated account not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, and on any title certificate relating to real property which was not a homestead and on which no title insurance policy was issued, shall be commenced within three (3) years next after the cause of such action accrued, and not after; provided, however, that the certificate referred to herein shall not apply to a certi-


Page 6 of 7



ficate to the correctness of an abstract of title.’

FN3. § 722 Mississippi Code 1942 provides: ‘All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after.’

FN4. There was no relationship of trust or confidence between these parties. Nothing before the Court shows anything to toll the statute. When these instruments were recorded, the alleged concealed fraud rule was dissipated. McMahon v. McMahon, 247 Miss. 822, 157 So.2d 494. Nothing presented to the Court as required by Civil Rule 56(e) shows any fraud perpetrated on plaintiffs. Fraud is never presumed but must be pled with particularity under Civil Rule 9(b), and proved by clear and convincing evidence.

FN5. A mere recital of fact is a deed is as effectual an estoppel as a covenant and binds parties and privies. Bush v. Person, (Miss.1855) 59 U.S. 82, 15 L.Ed. 273.

In sum, the plaintiffs have settled their claims to the full extent of their lawful interests in the mineral estate in said land and there has been a full accord and satisfaction thereasto. Alternatively, any claim they may have had has long since been barred by the three year and the six year statute of limitations. The motion of the plaintiffs for a summary judgment is without merit and will be overruled. The motion of the defendant to require the production of additional parties as necessary parties is without merit and will be overruled. Defendant's motion for a summary judgment is well taken and will be sustained.

A judgment accordingly may be presented.

D.C.Miss. 1967. Howard v. Sun Oil Co. 294 F.Supp. 24

END OF DOCUMENT


Page 7 of 7


F.2d 520, 22 Fair Empl.Prac.Cas. (BNA) 554, 22 Empl. Prac. Dec. P 30,798(Cite as: 614 F.2d 520)

United States Court of Appeals, Fifth Circuit.

Mrs. Shirley Baker (TRUVILLION), Plaintiff-Appellant, v.

KING'S DAUGHTERS HOSPITAL, Defendant-Appellee.

No. 77-2941. March 28, 1980.

Appeal was taken from a judgment of the United States District Court for the Southern District of Missis- sippi, Dan M. Russell, Jr., Chief Judge, dismissing a job discrimination suit. The Court of Appeals, Wisdom, Circuit Judge, held that: (1) summary judgment granted employer in suit brought by EEOC on ground that EEOC failed to meet conditions for bringing suit had no res judicata effects as to EEOC or charging party; (2) filing of suit by EEOC did not cut off charging party's right to bring her own suit under Title VII and charging party did not waive her statutory right by failing to intervene in suit which was dismissed as jurisdictionally defective; (3) EEOC had authority to issue charging party a right-to-sue letter even though its suit brought against employer was dismissed as jurisdictionally defective; and (4) claim against employer grounded on civil rights statute was governed by Mississippi six-year catchall statute of limitations rather than three-year statute of limitations governing unwritten contracts.

Reversed and remanded.

West Headnotes

[1] Judgment 228 560

228 Judgment 228XIII

228XIII(A) 228k560 Most Cited Cases

42 U.S.C.A. §§ 2000e et seq., 2000e-5(f)(1).

[2] Judgment 228 560

228 Judgment 228XIII Merger and Bar of Causes of Action and Defenses

228XIII(A) Judgments Operative as Bar 228k560 k. Nature, Rendition, and Form of Judgment in General. Most Cited Cases

Dismissal of EEOC job discrimination suit against employer for failure to investigate charging party's qualifications was not a judgment on the merits and did not bar a second suit by either EEOC or charging party. Civil Rights Act of 1964, §§ 701 et seq., 706(e) as amended 42 U.S.C.A. §§ 2000e et seq., 2000e-5(f)(1).


Page 2 of 12


g g g g(4) claim against employer grounded on civil rightsp y j y ; ( ) g

statute was governed by Mississippi six-year catchall statute of limitations

EXHIBIT "17"


[3] Judgment 228

228 Judgment 228XIV

228XIV(A) 228k654 Most Cited Cases

amended , 2000e-5(f)(1).

[4] Civil Rights 1511


78k1511 Most Cited Cases

42U.S.C.A. § 2000e




42 U.S.C.A. § 2000e-5(f)(1).



78k1378 Time to Sue 78k1383 k. Employment Practices. Most Cited Cases

(Formerly 78k210, 78k13.10) Job discrimination suit filed under civil rights statute was governed by Mississippi six-year catchall statute

of limitations, rather than three-year statute of limitations governing unwritten contracts. Code Miss.1972, §§15-1-29, 15-1-49; 42 U.S.C.A. § 1981.

*521 John L. Walker, Phillip J. Brookins, Jackson, Miss., for plaintiff-appellant.

Vella M. Fink, E. E. O. C., Washington, D. C., for amicus curiae.


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y , )Job discrimination suit filed under civil rights statute was governed by Mississippi six-year catchall statuteg g y pp y

of limitations, rather than three-year statute of limitations governing unwritten contracts. Code Miss.1972, §§, y15-1-29, 15-1-49; 42 U.S.C.A. § 1981.


M. Curtiss McKee, Armin J. Moeller, Jr., Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WISDOM, TJOFLAT, and REAVLEY, Circuit Judges.

WISDOM, Circuit Judge: This is a job discrimination case. Count I of the complaint raises the question whether, in the unusual cir-

cumstances this case presents, the plaintiff may bring suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. s 2000 et seq. The Equal Employment Opportunity Commission (E.E.O.C.) had previously brought a Title VII suit on behalf of Ms. Shirley B. Truvillion, the charging party, and others similarly situated, seeking the same relief Ms. Truvillion now seeks in the instant suit. The district court dismissed Suit I because of the E.E.O.C.‘s failure to comply with preconditions (termed “jurisdictional”) requisite to the court's going forward to determine the substantive claim. The first prerequisite was compliance with the requirement of the Commis- sion's regulation, 29 C.F.R. s 1601.23 (1974), that it notify the respondent promptly in writing of its unsuccessful attempt to obtain a conciliation agreement. Federal agencies, of course, must obey their own regulations. The second prerequisite was a good faith investigation of the charges, particularly including consideration of the qualifications of the charging party for the job for which she was rejected. The court concluded therefore that the E.E.O.C. had failed to establish a prima facie case of racial discrimination as defined by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 1973, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. In the action now before us, Suit II, the district court granted summary judgment for the defendant on the ground that the earlier judgment was res judicata as to the plaintiff's Title VII claim. We hold that the district court erred in applying the res judicata doctrine; the court in the earlier *522 case never reached the merits of the complaint.

Count II of the complaint was brought under the Civil Rights Act of 1870, 42 U.S.C. s 1981. We hold that the district court erred in applying the Mississippi three year statute of limitations, applicable to unwritten contracts, rather than the Mississippi six year catch-all statute, applicable to actions not covered specifically by a statute of limitations.

I.In October 1972 Ms. Shirley Baker Truvillion filed charges with the E.E.O.C. alleging that King's Daugh-

ters Hospital in Lincoln County, Mississippi, had refused to hire her as a laboratory technician because of her race. The Commission sent the hospital a letter noting that it found reasonable cause to believe that the hospital had discriminated against Ms. Truvillion. The letter further noted that the hospital practiced discrimination by maintaining segregated departments, classifying jobs by race and sex, and engaging in recruitment policies that effectively excluded minority group applicants.

Ms. Truvillion received a copy of the letter. She also spoke to E.E.O.C. personnel on several occasions about possible conciliation with the hospital. In November 1974 the E.E.O.C. notified her that her “charge of racial discrimination was being forwarded to the Equal Employment Opportunity Commission Litigation Center in Atlanta, Georgia, for possible suit”.

In January 1975, the E.E.O.C. filed suit against the hospital (Suit I) under Section 706(f)(1) of Title VII of the Civil Rights Act, as amended, 42 U.S.C. s 2000e-5(f)(1).[FN1] Ms. Truvillion did not learn of the suit until she telephoned the Commission's Atlanta Litigation Center. She called back several times, and was told that the


Page 4 of 12


Count II of the complaint was brought under the Civil Rights Act of 1870, 42 U.S.C. s 1981. We hold that p g g ,the district court erred in applying the Mississippi three year statute of limitations, applicable to unwritten con-pp y g pp y , pptracts, rather than the Mississippi six year catch-all statute, applicable to actions not covered specifically by a ,statute of limitations.


suit was still pending, but at no time was she informed of her right to intervene. Since she repeatedly received similar reports on the suit's progress, she stopped calling and relied on the E.E.O.C. to inform her as to the status of the proceedings.[FN2]

FN1. The E.E.O.C.‘s Suit I complaint, on which Ms. Truvillion based her complaint, alleged that:

7. Since July 2, 1965, and continuously up until the present time, defendant has intentionally engaged in unlawful employment practices at its Brookhaven, Mississippi hospital in violation of Section 703(a) of Title VII. These policies and practices include, but are not limited to, the following:

(a) Failing and refusing to hire blacks because of their race;

(b) Maintaining departments and job classifications which are segregated on the basis of race and sex and otherwise limiting, segregating and classifying employees in a way which deprives and tends to deprive blacks and females of employment opportunities and otherwise adversely affects their status because of their race and sex;

(c) Failing and refusing to recruit blacks on an equal basis with whites and otherwise discriminating against blacks with respect to terms, conditions, and privileges of employment because of their race;

(d) Failing and refusing to take appropriate affirmative action to eliminate its discriminatory employment policies and practices and to correct the effects of past discrimination against blacks and females.

FN2. During the time her claim was being processed by the E.E.O.C., the Hospital offered Ms. Truvil- lion employment as a laboratory aide. This position paid less than the position of laboratory technician for which she had initially applied. Ms. Truvillion accepted this offer and began work at the Hospital in March 1974.

The district court entered summary judgment against the Commission in February 1976 “for failure of the E.E.O.C. to meet the jurisdictional prerequisites to suit.” 12 FEP Cases 484. The court found, first, that the E.E.O.C. had not complied with its own regulation, 29 C.F.R. s 1601.23, which requires that the Commission give written notice to respondent, the hospital, that conciliation efforts had failed and would not be resumed except upon request. Second, the court found that the Commission had not made a “good faith investigation” to determine whether the charging party was qualified for the job she was seeking. Under McDonnell Douglas this was an essential link to establish a prima facie case of racial discrimination.

*523 The E.E.O.C. neither appealed nor informed Ms. Truvillion about the judgment. Instead, eight months later, in October 1976, the Commission on its own initiative sent her a right-to-sue letter. The letter stated that the E.E.O.C. would not proceed with the case, and informed her that she could bring her own action within 90 days of receiving the letter.[FN3]

FN3. The right-to-sue letter stated in part:

The Commission has found reasonable cause to believe your charge of employment discrimination is true but has not entered into a Conciliation Agreement to which you would have been a party because attempts to achieve such a voluntary settlement with the respondent(s) have been unsuccessful.


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The Commission has determined that it will not bring a civil action against the respondent(s) and accordingly is issuing you this Notice of Right-to-Sue. The issuance of this Notice terminates the Com- mission processing of your charge, except that the Commission may seek status as intervenor if you decide to sue on your own behalf as described below.

Ms. Truvillion brought suit in January 1977 on her own behalf and on the behalf of all those similarly situated.[FN4] Seeking relief under Title VII and 42 U.S.C. s 1981, Ms. Truvillion alleged that the hospital had denied her and other black persons equal employment opportunities because of race.

FN4. The class action was not certified under Rule 23, Fed.R.Civ.P.

The district court granted the hospital's motion for summary judgment against Ms. Truvillion in Suit II. The court's decision on her Title VII claim is based on three holdings. First, the “summary judgment granted by the court in the prior suit is considered a final judgment on the merits” and because Ms. Truvillion was in privity with the E.E.O.C. “she is subject to the res judicata effect of the prior judgment”. Second, the filing by the E.E.O.C. of Suit I cut off Ms. Truvillion's private right of action under the statute. She waived her statutory rights by failing to intervene in Suit I. Third, the E.E.O.C. could not issue her a valid right-to-sue letter after having brought Suit I. Because the receipt of a valid right-to-sue letter is a “jurisdictional” prerequisite to a private Title VII suit, the court concluded that it lacked “jurisdiction” over Ms. Truvillion's Title VII claim.

The court found that Ms. Truvillion's claim based on Section 1981 was barred by the statute of limitations. In the absence of a special federal statute of limitations, the court turned to state law and, reasoning that her Sec-tion 1981 claim was on an unwritten employment contract, applied the Mississippi statute of limitations that governs such actions. The limit is three years.[FN5] Ms. Truvillion's Section 1981 claim was brought four years and three months after the Hospital rejected her application for employment.

FN5. The statute was amended in 1976. The limit is now one year.

II. A.

We consider first the district court's determination that the judgment in Suit I is a bar to Ms. Truvillion's Title VII claim. We hold that the district court misapplied the doctrine of res judicata.[FN6]

FN6. Two related doctrines are embraced by the term res judicata. The first, claim preclusion, prevents in a second action the adjudication of claims that were or could have been adjudicated in a prior action between the parties. The second action is said to be merged in the first judgment if the party wins, and barred if he loses. Restatement (Second) of Judgments, ch. 3 (Tent. Draft No. 1, 1973). The second doctrine, issue preclusion, or collateral estoppel, prevents in a second action the relitigation of fact or law that was decided in a previous action, on a perhaps unrelated claim, and that was necessary to the decision. Id. s 68. For discussion of the distinction, see Cromwell v. County of Sac, 1876, 94 U.S. 351, 352-53, 24 L.Ed. 195; Irving National Bank v. Law, 2 Cir. 1926, 10 F.2d 721, 724 (L. Hand, J.). Here we are concerned with claim preclusion, since the claims Ms. Truvillion now pressed were among those pressed by the EEOC in Suit I.

A recent decision of our court states the accepted doctrine of res judicata:

For a prior judgment to bar an action on the basis of res judicata, the parties must be identical in both suits, the


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prior judgment must have been rendered by a court *524 of competent jurisdiction, there must have been a final judgment on the merits and the same cause of action must be involved in both cases.

Kemp v. Birmingham News Co., 5 Cir. 1979, 608 F.2d 1049 at 1052. Contrary to the district court's view, there was no judgment on the merits in Suit I. The requirements of E.E.O.C.‘s notice to the respondent and a good faith investigation by the E.E.O.C. in a loose sense might be treated as jurisdictional. They are, however, nothing more than procedural prerequisites to the court's determination of the substantive issues. They do not touch the merits.

(1) The E.E.O.C. notice protects the employer by warning him of his last chance to obtain an amicable resolution of the E.E.O.C.‘s complaint. E.E.O.C. v. Western Electric Co. Inc., D.Md.1974, 382 F.Supp. 787, 796. The court reasoned correctly that if notice was imperfect, attempts had not yet “failed” within the meaning of s 706(f)(1) of Title VII. Because notice signals a failure at conciliation and such failure triggers the E.E.O.C.‘s authorization to sue, notice is a prerequisite to suit. E.E.O.C. v. Container Corp. of America, M.D.Fla.1972, 352 F.Supp. 262, 265. See E.E.O.C. v. Louisville & Nashville R. Co., 5 Cir. 1974, 505 F.2d 610, 617. Its absence therefore requires dismissal of the complaint.

But such a dismissal does not involve the substantive claim of discrimination. Essentially the dismissal was based upon the failure of the E.E.O.C. to comply with its own regulation.

[1] Even if the prerequisites were considered jurisdictional, the judgment in Suit I did not operate as an adjudication on the merits. Under Rule 41(b), Fed.R.Civ.P., a dismissal, “except for lack of jurisdiction (or) venue”, or failure to join a necessary party, “operates as an adjudication upon the merits” unless the court specifies that the dismissal is without prejudice. The Supreme Court has characterized as “jurisdictional”, for purposes of Rule 41(b), “those dismissals which are based on a plaintiff's failure to comply with a precondition requisite the Court's going forward to determine the merits of his substantive claim”. Costello v. United States, 1961, 365 U.S. 265, 285, 81 S.Ct. 534, 545, 5 L.Ed.2d 551. See also Stebbins v. Nationwide Mutual Ins. Co., 4 Cir. 1975, 528 F.2d 934, 937, cert. denied, 1976, 424 U.S. 946, 96 S.Ct. 1417, 47 L.Ed.2d 353; Stebbins v. Keystone Insur-ance Co., D.C.Cir.1973, 156 U.S.App.D.C. 326, 481 F.2d 501; Tademy v. Scott, 5 Cir. 1946, 157 F.2d 826, 828.Wright & Miller, Federal Practice s 2373, pp. 234-239 (1971). Because a dismissal for failure to meet a condition for filing suit does not “operate as an adjudication upon the merits”, it cannot bar a subsequent suit between the parties.

(2) The court in Suit I discussed the failure of the E.E.O.C. to investigate the plaintiff's qualifications in the following terms:

It is a simple enough proposition that there could be no discrimination against the Charging Party if she were not qualified for the job for which she applied. Her charge has been in three levels of the Commission the investigation stage, the conciliation stage, and the litigation stage. At no point has the Commission ever considered the Charging Party's lack of qualifications, even though the respondent hospital has raised this issue at every stage of the proceedings.

The entire statutory scheme of Title VII stresses voluntary compliance and resolution of disputes by conciliation, attempting to avoid time consuming and expensive litigation. Based upon the evidence before it, this Court must conclude that the complete failure of the Commission to make a good faith investigation of the charges against this respondent is in derogation of the established law and of the Commission's own regulations and can only deter it from reaching its well-meaning goal of eliminating employment discrimination.


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[2] The court read into s 706(f)(1) the requirement that all the prima facie elements of the E.E.O.C.‘s case, as prescribed by McDonnell Douglas v. Green, 1973, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 must be established by the Commission before it can issue a reasonable cause determination. *525 An essential element is a good faith investigation of the charging party's qualification as a condition to filing suit. See E.E.O.C. v. Con-tainer Corp. of America, M.D.Fla.1972, 352 F.Supp. 262, 265. The Commission's failure to meet this condition mandated dismissal of the complaint. This second ground of decision, then, like the first, is concerned with the failure of the E.E.O.C. to meet a condition precedent to suit. The dismissal, therefore, was not on the merits and does not bar a second suit by either the E.E.O.C. or Ms. Truvillion.

[3] All the E.E.O.C. had to do was to start over, conduct a proper investigation, issue a prompt notice to the Hospital if conciliation should fail, make a finding of reasonable cause, and sue again. A fortiori, if the judgment in Suit I has no res judicata effects as to the E.E.O.C., it has no res judicata effects as to Ms. Truvillion.

B. We turn next to the question whether the filing by the E.E.O.C. of Suit I cut off Ms. Truvillion's right to

bring her own suit under Title VII. The trial court based its holding that the filing of a suit by the Commission cuts off a charging party's right to sue on its view of the design of Title VII. That design is intended, the court reasoned, to prevent duplication of proceedings. This intent is manifested by a right to intervene in pending suits, coupled with court fashioned rules against redundant actions. Thus, a private party whose interests may be affected by a suit the E.E.O.C. brings has an unqualified right to intervene in the suit, if he timely seeks to do so. [FN7] And the E.E.O.C. may intervene, at the discretion of the court, in a Title VII suit brought by a private plaintiff.[FN8] Moreover, it has been held that a private plaintiff's sole avenue of redress is intervention if the E.E.O.C. sues.[FN9] Other courts have added the caveat that she may bring a second suit if the relief she seeks differs from that sought by the E.E.O.C. in the first suit.[FN10] Symmetrically, the E.E.O.C. may not bring a second suit based on the transactions that were the subject of a prior suit by a private plaintiff, unless the E.E.O.C. seeks relief different from that sought by the individual. [FN11]

FN7. 42 U.S.C. s 2000e-5(f)(1). See McClain v. Wagner Electric Corp., 8 Cir. 1977, 550 F.2d 1115, 1119; Nevilles v. E.E.O.C., 8 Cir. 1975, 511 F.2d 303, 305.

FN8. 42 U.S.C. s 2000e-6. See, e. g., E.E.O.C. v. Continental Oil Co., 10 Cir. 1977, 548 F.2d 884, 889; E.E.O.C. v. Huttig Sash & Door Co., 5 Cir. 1975, 511 F.2d 453, 454-55.

FN9. McClain v. Wagner Electric Corp., 8 Cir. 1977, 550 F.2d 1115.

FN10. Williamson v. Bethlehem Steel Corp., 2 Cir. 1972, 468 F.2d 1201; E.E.O.C. v. Rinella &Rinella, N.D.Ill.1975, 401 F.Supp. 175. We have not considered the question.

FN11. E.E.O.C. v. Huttig Sash & Door Co., 5 Cir. 1975, 511 F.2d 453. See also E.E.O.C. v. North Hills Passavant Hospital, 3 Cir. 1976, 544 F.2d 664, 668; E.E.O.C. v. Kimberly-Clark Corp., 6 Cir. 1975, 511F.2d 1352, cert. denied, 423 U.S. 994, 96 S.Ct. 420, 46 L.Ed.2d 368. Other circuits have differed, not permitting a second suit by the Commission. See E.E.O.C. v. Continental Oil Co., 10 Cir. 1977, 548 F.2d 884; E.E.O.C. v. Missouri Pacific R.R., 8 Cir. 1974, 493 F.2d 71. In support of permitting a second suit by the E.E.O.C., see Reiter, The Equal Employment Opportunity Commission and “Duplicitous Suits”: An Examination of E.E.O.C. v. Missouri Pacific Railroad Co., 49 N.Y.U.L. Rev. 1130 (1974).


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Congress certainly sought to prevent the duplication of Title VII suits. [FN12] But this easy axiom does not without more solve the problem of when the right to bring a private suit is cut off. The idea that it is cut off by the mere filing of an E.E.O.C. suit assumes the efficacy of the statutory right to intervene in the Commission's suit. True, where a party can intervene in a pending action and add her voice to that of the Commission, she may be assured that her interests are as well represented as they can be. It does no injustice to prevent an individual from prosecuting a second action seeking the relief the E.E.O.C. sought in a prior action, when the individual consciously waived intervention in that action.

FN12. H.R.Rep.No. 92-238, 92nd Cong., 2d Sess., reprinted in U.S.Code Cong. & Admin.News, 1972, pp. 2137, 2147-48.

*526 A different case is presented, however, when the earlier suit brought by the E.E.O.C. was jurisdictionally or procedurally defective. There is no right and no obligation to intervene in a defective suit. As we said in 1926, “(a)n existing suit within the court's jurisdiction is a prerequisite of an intervention, which is an ancillary proceeding in an already instituted suit”. Kendrick v. Kendrick, 5 Cir. 1926, 16 F.2d 744, 745, cert. denied, 1927, 273 U.S. 758, 47 S.Ct. 472, 71 L.Ed. 877. See also United States ex rel. Texas Portland Cement Co. v. McCord, 1914, 233 U.S. 157, 163, 34 S.Ct. 550, 553, 58 L.Ed. 893; Fuller v. Volk, 3 Cir. 1965, 351 F.2d 323,328; ICC v. Southern R. R., M.D.Ga.1974, 380 F.Supp. 386, 394-395, vacated in part on other grounds, 5 Cir. 1976, 543 F.2d 534, 535. The same reasoning applies to a procedurally defective suit such as Suit I. Whether the right to intervene is permissive or unqualified cannot affect the application of this rule. Moreover, Ms. Truvil- lion had no obligation to act; she had the right to rely on the Commission's pursuing her claim vigorously to its conclusion. Only when she learned that the Commission would not bring a second suit on her claim did it become incumbent upon her to act. She learned this when she received her right-to-sue letter, and acted within the statutory period.

The appellee relies on several cases for the proposition that the filing of Suit I by the Commission cut off Ms. Truvillion's cause of action. None is apposite. In Crump v. Wagner Electric Corp., E.D.Mo.1973, 369 F.Supp. 637, the plaintiff sought to maintain an action on the same claim that formed the basis for an E.E.O.C. action then pending on his behalf. The court dismissed his action without prejudice, noting his right to intervene in the E.E.O.C. action. In the present case, of course, there is no action in which Ms. Truvillion could intervene. Appellee next cites McClain v. Wagner Electric Corp., 8 Cir. 1977, 550 F.2d 1115. Plaintiff McClain made a complaint to the E.E.O.C., which then brought suit based in part on his complaint. The suit was terminated by a consent decree. Several years later, McClain requested and received a right-to-sue letter, and sought to bring an action based on the same acts he had complained of to the E.E.O.C. The employer defended by arguing that the plaintiff's claims were resolved in the earlier E.E.O.C. suit. McClain responded that he had not received notice of the suit or of the consent decree that terminated it. The Eighth Circuit held that he had no right to maintain a separate action; “that his remedy was by way of intervention (in the earlier suit)”, 550 F.2d at 1119. We express no opinion on the result that a plaintiff's sole remedy may be intervention in a suit of whose existence he is unaware. McClain, however, was a clear case of the claims the plaintiff wished to raise having been resolved in a prior action. As we have pointed out, such is not the case here. Finally, Appellee cites our case of United States v. Allegheny-Ludlum Industries, Inc., 5 Cir. 1975, 517 F.2d 826, 870 n. 62, cert. denied, 1976, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187. There we discussed whether a charging party may initiate a lawsuit on a claim that was the basis of an earlier suit by the E.E.O.C. merely because the charging party, who did not intervene, is not satisfied with the judgment the Commission obtained. We held that the individual could not. The present case differs. Ms. Truvillion is seeking not to relitigate a case that progressed to the merits, but instead to have the court reach the merits for the first time.


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[4] In a real sense, Ms. Truvillion had no right of intervention in a defective suit to waive. We therefore find that the filing of Suit I by the E.E.O.C. did not cut off her statutory cause of action.

C. We must nevertheless affirm the district court's judgment if it correctly reasoned that the E.E.O.C. was

without authority, once it filed Suit I, to issue Ms. Truvillion a right-to-sue letter. Obtaining such a letter is a jurisdictional prerequisite to a private suit under Title VII. Hodge v. McLean Trucking Co., 5 Cir. 1979, 607 F.2d 1118; *527 Cutliff v. Greyhound Lines, 5 Cir. 1977, 558 F.2d 803, 806.

The Commission's authority to issue right-to-sue letters flows from the following statutory language: “If . . . the Commission . . . has not filed a civil action . . . (it) shall so notify the person aggrieved and within ninety days after the giving of such notice, a civil action may be brought against the respondent . . . by the person claiming to be aggrieved . . . .” 42 U.S.C. s 2000e-5(f)(1).

The reason that a private party's ability to sue is conditioned on notice from the Commission, and that such notice is permitted to issue only “if . . . the Commission . . . has not filed a civil action . . .” is evident: to place primary responsibility for Title VII enforcement with the Commission while reducing the possibility of actions by private parties that duplicate those of the Commission. The statutory mechanism for preventing duplicative private suits cutting off the Commission's ability to authorize a private suit the moment it files suit will operate both fairly and efficiently in the bulk of cases. After all, most suits, once filed, reach a conclusion, and thus their determination by judgment, consent decree, voluntary dismissal, and so on, would be res judicata between the parties. The statutory mechanism of Section 2000e-5(f)(1) may therefore be viewed as a kind of statutory shorthand for the doctrine. The doctrine itself has too many branches, some of them brachiated, to be reproduced faithfully in a statutory device. By selecting the time of filing as the ordinary cut-off for Commission authority to issue a right-to-sue letter, the statute captures the effect of the doctrine in most cases. That date is thus ordinarily a useful benchmark for paring away duplicative suits.

There is no reason, however, to interpret the language of the statute so as to deprive the Commission of authority to issue a valid notice to sue even after it files suit, when, under the doctrine of res judicata, the Commis- sion could itself file a second suit.[FN13] This situation will arise only in the unusual case, certainly not contemplated in the statute, in which the Commission files a suit that is jurisdictionally or procedurally defective, it is dismissed, and is not repaired and pressed by the Commission. To permit the Commission to authorize and an individual to bring suit in such cases is not to permit a duplicative proceeding for there has been no conclusive proceeding on the individual's claim. In such cases, it better comports with the statute's design to read into its authorization mechanism the finer calibrations of the res judicata doctrine. To do so faithfully embodies the congressional intent to avoid duplicative proceedings: that is what res judicata is about. Moreover, the fine tuning thus permitted carries out an equally important congressional purpose: to ensure an opportunity to enforce the statutory rights conferred by Title VII. Put simply, it would be anomalous to deny a person the right to bring her own action, when the E.E.O.C. could have started over, conducted a good faith investigation, issued a reasonable cause finding and brought a second action on the same claim.[FN14]

FN13. See E.E.O.C. v. Rinella & Rinella, N.D.Ill.1975, 401 F.Supp. 175, 185-86, holding that a right- to-sue letter was valid although issued after the Commission filed a suit, seeking preliminary relief, based on the same facts as the private plaintiff's subsequent suit, seeking permanent relief.

FN14. A liberal construction of Title VII is the general rule in this circuit. For example, although timely


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filing with the EEOC is a “jurisdictional prerequisite” to employment discrimination litigation, McAr-thur v. Southern Airways, Inc., 5 Cir. 1978 (en banc), 569 F.2d 276, contra, Bethel v. Jefferson,D.C.Cir.1978, 191 U.S.App.D.C. 108, 118 n. 64, 589 F.2d 631, 641 n. 64, the prerequisite is subject toequitable modification. Marshall v. Sun Oil Co., 5 Cir. 1979, 605 F.2d 1331, 1337-1339 n. 8; Chappellv. Emco Mach. Works Co., 5 Cir. 1979, 601 F.2d 1295; Bickham v. Miller, 5 Cir. 1978, 584 F.2d 736;Reeb v. Economic Opportunity Atlanta, Inc., 5 Cir. 1975, 516 F.2d 924.

Moreover, we have already construed the right-to-sue letter provision of the statute broadly, Franks v.Bowman Transp. Co., 5 Cir. 1974, 495 F.2d 398, 402-06, rev'd on other grounds, 1976, 424 U.S. 747,96 S.Ct. 1251, 47 L.Ed.2d 444. In Franks, over a year had elapsed from the time the E.E.O.C. first is-sued the plaintiff a right-to-sue letter until the time he filed suit. He alleged that the letter was re-ceived and misplaced by a nine year old nephew. We agreed with his argument that he had had no ef-fective notice. We held that “the statutory notification is complete only upon actual receipt of the suitletter”, because that rule “accords with the view we have expressed in prior cases that Congress didnot intend to condition a claimant's right to sue under Title VII on fortuitous circumstances or eventsbeyond his control which are not spelled out in the statute”. 495 F.2d at 404.

[5] *528 The House Report on the 1972 amendments to Title VII noted that “the primary concern (about theprivate right of action) must be protection of the aggrieved person's option to seek a prompt remedy in the bestmanner available”. H.R.Rep.No. 92-238, 92nd Cong., 2d Sess., reprinted in U.S.Code Cong. & Admin.News,1972, p. 2148. To protect that option, we hold that where the E.E.O.C. brings a suit that is dismissed as jurisdic-tionally or procedurally defective, if the Commission does not bring a second suit, it may validly issue a right-to-sue letter to an aggrieved person.

III. The district court dismissed Ms. Truvillion's Section 1981 claim on the ground that it was barred by Missis-

sippi's three-year statute of limitations governing unwritten contracts. Miss.Code Ann. s 15-1-29 (1972).[FN15] The district court was correct in turning to state law to find the appropriate statute of limitations. Hamilton v.General Motors Corp., 5 Cir. 1979, 606 F.2d 576. Although this procedure is “neither rational nor historical, butpurely precedential”, Ingram v. Steven Robert Corp., 5 Cir. 1977, 547 F.2d 1260, 1264, “federal courts mustlook in the first instance to the applicable statute of limitations in actions for back pay or similar damages undera federal statute for which Congress failed to provide limitations period”, id. at 1260-61. Section 1981 is onesuch statute. Id.

FN15. A contractual statute of limitations may be applicable, of course, in some Section 1981 suits. Wehave held that the recovery of back pay from an employer will be so determined. See Johnson v. Goo-dyear Tire & Rubber, 5 Cir. 1974, 491 F.2d 1364, 1378.

[6] The court reasoned that “(a) person suing under Section 1981 to enforce his right to be free of discrimin-ation predicates his claim on the right to contract guaranteed in the statute. The contractual nature of a claim un-der Section 1981 dictates application of the (three year limit for enforcing unwritten contracts)”. But the stat-utory right Ms. Truvillion asserts is not the right to enforce an unwritten contract as the district court as-sumed. There was no contract of any kind between Ms. Truvillion and the hospital concerning the post of labor-atory technician; instead, the hospital allegedly refused for racial reasons to employ her. Ms. Truvillion relieson a statutory right to be free from discrimination. She complains of the refusal of the hospital to deal with her;she does not assert a right arising from an agreement. The complaint sounds in tort, not in contract. Ingram,


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“(a) person suing under Section 1981 to enforce his right to be free of discrimin-[ ] ( ) p g gation predicates his claim on the right to contract guaranteed in the statute. The contractual nature of a claim un-p gder Section 1981 dictates application of the But the stat-( y g )utory right Ms. Truvillion asserts is not the right to enforce an unwritten contract as the district court as-

ppy

sumed. Ms. Truvillion relies

g py ; , p g y

on a statutory right to be free from discrimination.


547 F.2d at 1263. Because Mississippi has no statute of limitations designed to cover actions seeking redress forthe tort of employment discrimination, the State's catch-all statute is applicable.[FN16] See Heath v. D. H. Bald-win Co., N.D.Miss.1979, 447 F.Supp. 495, 504; Walton v. Utility Products, Inc., N.D.Miss.1976, 424 F.Supp.1145, 1147. The statute runs for six years, and does not bar Ms. Truvillion's claim.

FN16. The statute provides:

All actions for which no other period of limitation is prescribed shall be commenced within six yearsnext after the cause of such action accrued, and not after.

Miss.Code Ann. s 15-1-49 (1972).

Ms. Truvillion sought to bring each of her statutory claims as a class action. On remand, the district courtmust determine whether class certification is appropriate under Rule 23(b), Fed.R.Civ.P.

The case is REVERSED and REMANDED as to both causes of action for proceedings consistent with thisopinion.

C.A.Miss., 1980. Truvillion v. King's Daughters Hospital 614 F.2d 520, 22 Fair Empl.Prac.Cas. (BNA) 554, 22 Empl. Prac. Dec. P 30,798

END OF DOCUMENT


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Because Mississippi has no statute of limitations designed to cover actions seeking redress forpp g gthe tort of employment discrimination, the State's catch-all statute is applicable.[FN16] See Heath v. D. H. Bald-p y , pp [ ]win Co., N.D.Miss.1979, 447 F.Supp. 495, 504; Walton v. Utility Products, Inc., N.D.Miss.1976, 424 F.Supp., , pp , ; y ,1145, 1147. The statute runs for six years, and does not bar Ms. Truvillion's claim.

FN16. The statute provides:

All actions for which no other period of limitation is prescribed shall be commenced within six yearsp pnext after the cause of such action accrued, and not after.

To Louis/Tommy/Linda:

This email correspondence is being submitted to confirm that as of Monday, May 15, 2006, my employmentwith Page, Kruger & Holland, P.A. (“PKH”) has been terminated – as Mr. Baine put it “effectiveimmediately.” This termination has been approved by the shareholders of PKH. Those present at theTermination Meeting were as follows:

Louis J. Baine, III (shareholder)Thomas Y. Page, Jr. (shareholder)Linda Thomas (Office Administrator); andMyself/Vogel Newsome (Employee being terminated)

I requested that PKH provide me with written documentation as to the reasons for my termination and/ordocumentation acknowledging termination; however PKH declined to do so and advised they would notprovide any written documentation.

My understanding as to the reasons for my termination is as follows:

1. PKH was advised of a lawsuit I filed in the Hinds County Court.� When I requested who informed PKH of this information, PKH declined to provideme with this information� PKH acknowledged that it checked into whether a lawsuit was filed and confirmedgoing to the courthouse to review the file and obtaining documents.� When I requested information regarding how long PKH was aware of the matter Iam involved in, PKH advised they have known for quite some time. When requestingspecific time frame, PKH declined to give me an exact amount of time they have knownabout it.

2. PKH acknowledged they had conducted an investigation and it revealed:� That I had used PKH equipment to conduct personal business� Faxes sent revealed the PKH name across the top��Faxes sent wound up in the court file and they did not wanttheir name associated with the lawsuit� Personal documents were saved on PKH equipment and they have revieweddocuments and emails on my computer��Great deal of time was used to conduct personal business;however, PKH failed to produce how much time was used for personal business.

(a) While I acknowledged I used PKH equipment for personal business, I sharedothers in the firm did as well and PKH did not and does not deny that otheremployees use PKH equipment for personal business.

Print

1 of 3

EXHIBIT "18"

(b) I acknowledged that I used PKH fax machine for personal business as did otheremployees at PKH who used it for personal business – PKH did not and does notdeny that other employees use their fax machine to send personal faxes.

(c) According to PKH the name appear at the top of all faxes that are transmittedfrom their machines.

(d) I acknowledged that I saved personal documents to the computer as did otheremployees of PKH – PKH did not and does not deny that other employees savepersonal documents to their computer

(e) PKH acknowledge that it was me that they have been observing and me thatthey investigated while it having knowledge that other employees engaged in thesame practices as I.

(f) While PKH stated that a great deal of my time was used to conduct personalbusiness – which was denied by me, it failed to explain how it affected my workperformance.

(g) PKH acknowledged that no personal documentation by me was ever placed onPKH letterhead.

3. PKH acknowledged they conduct conflict checks; however, did not make it clear as towhat that had to do with my termination. While PKH having knowledge that if I believed therewas a conflict regarding me, they were notified of concerns by me; however, elected not torespond.

4. PKH was made aware of my concerns that the action they have taken against me isprejudicial; however, PKH denied such.

5. PKH acknowledged that they were aware of my personal activities for quite some time;however, elected not to address them or to notify me of any wrongs (if wrong at all) that I mayhave been committing. Concerns of said failure by PKH was made known to them.

6. PKH was made aware of my displacement situation – information PKH had prior to themeeting (can be based on their long time monitoring and investigation and being notified of mylawsuit, etc.)

7. PKH was made aware of my concerns of my inability of being able to obtain employmentelsewhere in that it is apparent (them being notified of lawsuit) that efforts will be taken toprevent me from obtaining gainful employment elsewhere; however, PKH denied they would doanything like that and would handle the matter as they have with others when employment isverified.

8. While PKH acknowledged that I may bring lawsuits and it is of no business to them, theaction taken on May 15, 2006, to terminate my employment was to the contrary and PKHacknowledge termination was a result of the lawsuit I filed in the Hinds County Courthouse thatwas brought to their attention.

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9. While PKH acknowledge an investigation was conducted on me and I requested thatPKH provide me with written documentation for their termination, PKH declined to provide mewith documentation.

10. My concerns as to being singled out when others at PKH did the same things were madeknown to PKH; however, PKH had already made up their mind that they were terminating myemployment.

11. PKH acknowledged that the shareholders were in consensus/agreement with terminatingmy employment.

In that I believe that I have been unlawfully terminated, I am requesting that PKH preserve my employmentrecords, any other documents, audio, etc. regarding my employment and reasons for termination.

In that PKH was given an opportunity to provide me with written documentation as to their reasons for mytermination, I will only conclude that any other reasons which may be offered AFTER the fact/terminationwill be pretext in nature – provided in an effort to cover-up/shield PKH’s unlawful employment action takenagainst me.

Sincerely,Vogel Newsome

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U.S. District Court Southern District of Mississippi (Jackson)

CIVIL DOCKET FOR CASE #: 3:10-cv-00704-HTW -FKB

Newsome v. Mitchell McNutt & Sams, P. A. et al Assigned to: District Judge Henry T. Wingate Referred to: Magistrate Judge F. Keith Ball Demand: $50,000,000 Cause: 42:1981 Civil Rights

Date Filed: 12/03/2010 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Plaintiff Vogel Newsome represented by Vogel Newsome

P. O. Box 14731 Cincinnati, OH 45250 601-885-9536 513-680-2922 PRO SE

V. Defendant Mitchell McNutt & Sams, P. A. a Mississippi Corporation

represented by Paula Graves Ardelean BUTLER, SNOW, O'MARA, STEVENS & CANNADA Suite 1400 1020 Highland Colony Parkway P.O. Box 6010 Ridgeland, MS 39158-6010 (601) 948-5711 Fax: 601-985-4500 Email: [email protected]

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant L. F. Sandy Sams, Jr. in His Official and Individual Capacity

represented by Paula Graves Ardelean (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant James Thomas Allen in His Official and Individual Capacity


Defendant Robert T. Gordon, Jr. represented by Paula Graves Ardelean

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EXHIBIT "19"

in His Official and Individual Capacity (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Michael T. Farrell in His Official and Individual Capacity


Defendant Ladye Margaret Townsend in Her Official and Individual Capacity


Defendant Does 1 - 30 in Their Official and Individual Capacities


12/03/2010 1 COMPLAINT against All Defendants ( Filing fee $ 350 paid, receipt number 34643006821), filed by Vogel Newsome. (Attachments: # 1 Exhibits 1 - 58, # 2 Civil Cover Sheet)(ND) (Entered: 12/03/2010)

12/03/2010 2 NOTICE of Opposition to Magistrate Judge Assignment and Address filed by Vogel Newsome. (Attachments: # 1 Exhibits A - L)(ND) (Entered: 12/03/2010)

01/06/2011 3 MOTION for Extension of Time to Serve Complaint filed by Vogel Newsome. (Attachments: # 1 Exhibit A - Notice of a Lawsuit and Request to Waive Service of a Summons, # 2 Exhibit B - Waiver of the Service of Summons, # 3Exhibit C - Mailing Receipt, # 4 Exhibit D - Mailing Receipt, # 5 Exhibit E - Resubmitted Waiver of the Service of Summons, # 6 Exhibit F - Notice of a Lawsuit and Request to Waive Service of a Summons, # 7 Exhibit G - Waiver of the Service of a Summons, # 8 Exhibit H- Proof of Mailing, # 9 Exhibit I - Recusal Order, # 10 Exhibit J - Letter from William K. Suter, # 11 Exhibit K - CNN Article)(ND) (Entered: 01/06/2011)

01/06/2011 4 MOTION to Remove Magistrate Judge Linda R. Anderson from Case, filed by Vogel Newsome. (ND) (Entered: 01/06/2011)

01/31/2011 5 ORDER OF RECUSAL. Magistrate Judge Linda R. Anderson recused. Case reassigned to Magistrate Judge F. Keith Ball for all further proceedings. Signed by Magistrate Judge Linda R. Anderson on 1/31/2011. (WG) (Entered: 01/31/2011)

02/02/2011 6 NOTICE-United States Supreme Court Update by Vogel Newsome. (RRL) (Entered: 02/02/2011)



02/02/2011 7 WAIVER OF SERVICE Returned Executed by Vogel Newsome. James Thomas Allen waiver sent on 12/9/2010, answer due 2/7/2011; Robert T. Gordon, Jr waiver sent on 12/16/2010, answer due 2/14/2011; Mitchell McNutt & Sams, P. A. waiver sent on 12/9/2010, answer due 2/7/2011; L. F. Sandy Sams, Jr waiver sent on 12/9/2010, answer due 2/7/2011. (RRL) (Entered: 02/02/2011)

02/07/2011 8 MOTION to Dismiss by James Thomas Allen, Michael T. Farrell, Robert T. Gordon, Jr, Mitchell McNutt & Sams, P. A., L. F. Sandy Sams, Jr, Ladye Margaret Townsend (Attachments: # 1 Exhibit 1 - Notice of Right to Sue, January 4, 2005)(Ardelean, Paula) (Entered: 02/07/2011)

02/07/2011 9 MEMORANDUM in Support re 8 MOTION to Dismiss filed by James Thomas Allen, Michael T. Farrell, Robert T. Gordon, Jr, Mitchell McNutt & Sams, P. A., L. F. Sandy Sams, Jr, Ladye Margaret Townsend (Attachments: # 1 Exhibit A - Index of Counts Contained in Complaint, # 2 Exhibit B - Notice of Right to Sue, January 4, 2005)(Ardelean, Paula) (Entered: 02/07/2011)

02/08/2011 10 MOTION to Stay Case (Pending Ruling on Defendants' Motion to Dismiss) by James Thomas Allen, Michael T. Farrell, Robert T. Gordon, Jr, Mitchell McNutt & Sams, P. A., L. F. Sandy Sams, Jr, Ladye Margaret Townsend (Ardelean, Paula) (Entered: 02/08/2011)

02/08/2011 11 MEMORANDUM in Support re 10 MOTION to Stay Case (Pending Ruling on Defendants' Motion to Dismiss) filed by James Thomas Allen, Michael T. Farrell, Robert T. Gordon, Jr, Mitchell McNutt & Sams, P. A., L. F. Sandy Sams, Jr, Ladye Margaret Townsend (Ardelean, Paula) (Entered: 02/08/2011)

02/09/2011 12 WAIVER OF SERVICE of Summons Returned Executed by Vogel Newsome. Ladye Margaret Townsend waiver sent on 1/20/2011, answer due 3/21/2011. (Attachments: # 1 Exhibit A - Rule 8, # 2 Exhibit B - Rule 7.530, # 3 Exhibit C - Rule 7.1 - 7.262, # 4 Exhibit D - CNN News Article)(ND) (Entered: 02/09/2011)

02/09/2011 13 WAIVER OF SERVICE of Summons Returned Executed by Vogel Newsome. Michael T. Farrell waiver sent on 1/18/2011, answer due 3/21/2011. (ND) (Entered: 02/09/2011)

02/09/2011 14 NOTICE of Title 11 - Chapter 7 Bankruptcy Proceedings by Ladye M. Townsend, filed by Vogel Newsome. (Attachments: # 1 Exhibit I - US Bankruptcy Court Pleading)(ND) (Entered: 02/09/2011)

02/10/2011 15 ORDER finding as moot 3 Motion for Extension of Time to Serve Complaint Discovery Signed by Magistrate Judge F. Keith Ball on February 10, 2011 (DCL) (Entered: 02/10/2011)

02/22/2011 16 MOTION to Strike 9 Memorandum in Support of Motion, 11 Memorandum in Support of Motion, 10 MOTION to Stay Case (Pending Ruling on Defendants' Motion to Dismiss), 8 MOTION to Dismiss by Vogel Newsome. (Attachments: # 1 Affidavit, # 2 Exhibit)(RRL) (Entered: 02/22/2011)

02/22/2011 17 MOTION for Default Judgment, MOTION for Sanctions by Vogel Newsome. (Attachments: # 1 Affidavit, # 2 Exhibit)(RRL) (Entered: 02/22/2011)



02/22/2011 18 DEMAND for Trial by Jury by Vogel Newsome. (Attachments: # 1 Affidavit, # 2 Exhibit)(RRL) (Entered: 02/22/2011)

02/22/2011 19 NOTICE of Filing by Vogel Newsome. (RRL) (Entered: 02/22/2011)

02/25/2011 20 RESPONSE in Opposition re 16 MOTION to Strike 9 Memorandum in Support of Motion, 11 Memorandum in Support of Motion, 10 MOTION to Stay Case (Pending Ruling on Defendants' Motion to Dismiss), 8 MOTION to Dismiss MOTION to Strike 9 Memorandum in Support of Motion, 11Memorandum in Support of Motion, 10 MOTION to Stay Case (Pending Ruling on Defendants' Motion to Dismiss), 8 MOTION to Dismiss filed by James Thomas Allen, Does 1 - 30, Michael T. Farrell, Robert T. Gordon, Jr, Mitchell McNutt & Sams, P. A., L. F. Sandy Sams, Jr, Ladye Margaret Townsend (Ardelean, Paula) (Entered: 02/25/2011)

02/25/2011 21 MEMORANDUM IN SUPPORT re 20 Response in Opposition to Motion,, (to Strike filed by Plaintiff) filed by James Thomas Allen, Does 1 - 30, Michael T. Farrell, Robert T. Gordon, Jr, Mitchell McNutt & Sams, P. A., L. F. Sandy Sams, Jr, Ladye Margaret Townsend (Ardelean, Paula) (Entered: 02/25/2011)

02/25/2011 22 RESPONSE in Opposition re 17 MOTION for Default Judgment as to MOTION for Sanctions filed by James Thomas Allen, Does 1 - 30, Michael T. Farrell, Robert T. Gordon, Jr, Mitchell McNutt & Sams, P. A., L. F. Sandy Sams, Jr, Ladye Margaret Townsend (Ardelean, Paula) (Entered: 02/25/2011)

02/25/2011 23 MEMORANDUM IN SUPPORT re 22 Response in Opposition to Motion, (for Default and Sanctions filed by Plaintiff) filed by James Thomas Allen, Does 1 - 30, Michael T. Farrell, Robert T. Gordon, Jr, Mitchell McNutt & Sams, P. A., L. F. Sandy Sams, Jr, Ladye Margaret Townsend (Ardelean, Paula) (Entered: 02/25/2011)

03/09/2011 24 MOTION to Strike 21 Memorandum in Support, 22 Response in Opposition to Motion, 20 Response in Opposition to Motion, 23 Memorandum in Support by Vogel Newsome. (RRL) (Entered: 03/09/2011)

03/09/2011 25 MOTION for Rule 11 Sanctions against named defendants by Vogel Newsome. (RRL) (Entered: 03/09/2011)

03/09/2011 26 NOTICE of filing by Vogel Newsome re 24 MOTION to Strike 25 MOTION for Sanctions. (RRL) (Entered: 03/09/2011)

03/10/2011 27 ORDER granting 10 Motion to Stay Case pending Judge Wingate's ruling on Defendants' motion to dismiss Signed by Magistrate Judge F. Keith Ball on March 10, 2011 (DCL) (Entered: 03/10/2011)

03/23/2011 28 Response in Opposition to 27 ORDER granting 10 Motion to Stay Case pending Judge Wingate's ruling on Defendants' motion to dismiss Signed by Magistrate Judge F. Keith Ball on March 10, 2011, filed by Vogel Newsome. (Attachments: # 1 Exhibit 1 - Order 3-10-11, # 2 Exhibit 2 - Letter from William K. Suter, # 3 Exhibit 3 - USDC Docket, # 4 Exhibit 4 - Form AO 85)(ND) (Entered: 03/23/2011)

03/23/2011 29 MOTION to Vacate 27 Order on Motion to Stay Case, filed by Vogel Newsome. (ND) (Entered: 03/23/2011)



03/23/2011 30 MOTION to Show Proof of Legal Authority Challenging Authority to Appear, filed by Vogel Newsome. (Attachments: # 1 Exhibit A - Letter from Paula Graves Ardelean on 2-25-11, # 2 Exhibit B - Letter from Paula Graves Ardelean on 3-14-11, # 3 Exhibit C - Waiver of Service of Summons, # 4Exhibit D - Mailing Receipts, # 5 Exhibit E - Waiver of Service of Summons, # 6 Exhibit F - Mailing Receipts, # 7 Exhibit G - USBC Official Form 9A, # 8Exhibit H - Butler Snow Practice Areas)(ND) (Entered: 03/23/2011)



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Phelps Dunbar LLP New Orleans, Louisiana OfficeView all offices

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Telephone: 504-566-1311Telecopier: 504-568-9130http://www.phelpsdunbar.com

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Established in 1853 in New Orleans, Phelps Dunbar is a regional law firm of more than 270 attorneyswith offices in Louisiana, Mississippi, Texas, Florida, Alabama, North Carolina and London, servingclients in the South as well as nationwide and abroad. Whether it is a matter of admiralty, litigation,business, employment or insurance, we are committed to being the preeminent law firm forcompanies and individuals needing transactional or litigation services. Phelps has a significantgeographic presence and our lawyers have developed a depth and breadth of legal experience sothat our clients need only one firm for legal services throughout the region.Regardless of a client's size or stage of development, we believe that successful legal representationbegins with a clear understanding our our client's business, industry and objectives, followed bycollaboration with the client to achieve the best possible results. Our lawyers and our support staffwork together to deepen client relationships through a commitment to understanding theirbusinesses and their goals, and we strive to advance our clients' interests by providing excellent,effective and efficient legal services and creative solutions across all areas of our practice.

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Admiralty Law; Appellate Practice; Antitrust and Trade Regulation; Bankruptcy; Creditors' Rights;Business Law; Finance; Commercial Litigation; Construction Law; Corporate Law; Securities;Employee Benefits; Energy; Minerals; Environmental Law; Franchise Law; Franchise Distribution;Gaming Law; Government Contracts; Health Care; Health Care Litigation; Health InsurancePortability and Accountability Act (HIPAA); Immigration Law; Insurance; Reinsurance; IntellectualProperty; International Law; Labor And Employment; Legislative Practice; Governmental Relations;Municipal Finance; Oil And Gas Law; Petroleum Marketing; Products Liability; Professional Liability;Public Finance; Public Utility Law; Electric Power; Railroad Law; Real Estate; Regulatory Law;Governmental Matters; Tax Law; Torts; Toxic Torts; Trusts And Estates; White Collar CriminalDefense.

LexisNexis® Martindale-Hubbell® http://www.martindale.com/print.aspx

1 of 2 7/9/2012 11:27 AM

, p gLouisiana, Mississippi, Texas, Florida, Alabama, North Carolina and London,

employment or insurance,

; ;Health Care; Health Care Litigation; Health Insuranceg ; ; ; g ;

Portability and Accountability Act (HIPAA); Immigration Law; Insurance; International Law; Labor And Employment;

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EXHIBIT "20"

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Supreme Court Renders Decision Upholding Health Care Reform as ConstitutionalAlex Glaser,Seale Pylate, July 7, 2012On June 28, 2012, the United States Supreme Court rendered its decision in National Federation ofIndependent Business v. Sebelius, a consolidation of three cases challenging the constitutionality ofthe Patient Protection and Affordable Care Act, commonly called “heath care reform” or...

NLRB Acting General Counsel Releases Third Social Media ReportG. Todd Butler, June 15, 2012Lafe Solomon, Acting General Counsel for the NLRB, issued a third report on May 30th focusing onsocial media policies. According to the report, the key question when developing a social mediapolicy is whether restrictions could "reasonably be construed to chill the exercise of Section 7...

Enforcement of Revised H-2B Program Rules Still on HoldBrandon E. Davis,John D. Mullen, June 1, 2012The H-2B program allows foreign workers to come to the United States to perform temporarynonagricultural work on a one-time, seasonal, peakload or intermittent basis. The Department ofLabor implemented a final rule amending the 2008 H-2B regulations on April 27, 2012. 77 Fed. Reg.10038-10182...

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Year Established: 1853

Representative Clients:

Altria Group, Inc. FKA Philip Morris Incorporated; BancorpSouth Bank; Bank of America; BenderShipbuilding & Repair Co., Inc.; The Britannia Steamship Insurance Assn., Ltd.; Capital OneFinancial Corporation; Cleco Corporation; Credit Suisse First Boston; Dillard Department Stores; DowChemical USA; Edison Chouest Offshore; Entergy Louisiana, Inc.; Fairfield Industries, Inc.;Frito-Lay, Inc.; GATX Corp.; General Motors Corporation; Georgia Pacific Corporation;GlaxoSmithKline; Isle of Capri Casinos, Inc.; J.P. Morgan Chase & Company; Kmart Corporation;Laitram Corporation; Louisiana Lottery Corporation; Louisiana Workers' Compensation Corporation;Lundy Enterprises, Inc.; North Mississippi Health Services, Inc. (and affiliated entities); L3Communications Vertex Aerospace; Regions Financial Corporation; Rolls-Royce North America;Rubicon Inc.; Scottsdale Insurance Company; Southern Farm Bureau Life Insurance Company;Steamship Mutual Underwriting Assn., Ltd.; Stolt-Nielsen Transportation Group Ltd.; TenetHealthcare Corporation; Thibodaux Regional Medical Center; The Tribune Company; TrustmarkNational Bank; Underwriters at Lloyd's London; Union Pacific Railroad Company; Viking RangeCorporation; Westinghouse Electric Corporation; Zurich Reinsurance (London), Ltd.

(For Complete Biographical Data on all Personnel, see Professional Biographies at other locations)

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Bank of America;;Capital Onep g p

Financial Corporation;p

Credit Suisse First Boston;Entergy Louisiana, Inc.;

p ; gJ.P. Morgan Chase & Company;

p ; gUnderwriters at Lloyd's London;

U. S. District Court Eastern District of Louisiana (New Orleans)

CIVIL DOCKET FOR CASE #: 2:99-cv-03109-GTP

Newsome v. Entergy NO Inc, et al Assigned to: Judge G. Thomas Porteous, Jr Demand: $0

Cause: 42:2000 Job Discrimination (Race)Case in other court: 00-30521

Date Filed: 11/03/1999 Date Terminated: Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Plaintiff Vogel Denise Newsome represented by Vogel Denise Newsome

P. O. Box 31265 Jackson, MS 39286-1265 601-885-9536 PRO SE

Michelle Ebony Scott-Bennett Justice for All Law Center, LLC Gretna Plaza Bldg. 1500 Lafayette St.Suite 122 Gretna, LA 70053 504-368-1711 Email: [email protected] TERMINATED: 04/03/2002LEAD ATTORNEY

V.Defendant Entergy New Orleans, Inc.TERMINATED: 01/18/2000

represented by Allyson Kessler Howie Entergy Services, Inc. (New Orleans) 639 Loyola Avenue26th Floor P. O. Box 61000 New Orleans, LA 70113 504-576-5849 Email: [email protected] TERMINATED: 01/18/2000LEAD ATTORNEY

Renee Williams Masinter Entergy Services, Inc. (New Orleans) 639 Loyola Avenue26th Floor

Page 1 of 11LAED CM/ECF - Live

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gy ,Assigned to: Judge G. Thomas Porteous, Jr

EXHIBIT "21"

P. O. Box 61000 New Orleans, LA 70113 504-576-2266 Email: [email protected] TERMINATED: 01/18/2000

Defendant Entergy Services Inc represented by Allyson Kessler Howie

(See above for address) TERMINATED: 06/13/2000LEAD ATTORNEY

Renee Williams Masinter (See above for address) LEAD ATTORNEYATTORNEY TO BE NOTICED

Amelia Williams Koch Baker Donelson Bearman Caldwell & Berkowitz (New Orleans) 201 St. Charles Ave. Suite 3600 New Orleans, LA 70170 504-566-5200 Fax: 504-636-4000 Email: [email protected] ATTORNEY TO BE NOTICED

Jennifer F. Kogos Jones Walker (New Orleans) Place St. Charles 201 St. Charles Ave. Suite 5100 New Orleans, LA 70170-5100 (504) 582-8000 Email: [email protected] ATTORNEY TO BE NOTICED


11/03/1999 1 COMPLAINT ( 1 summons(es) issued ) (daf) (Entered: 11/04/1999)

11/03/1999 2 ORDER granting pla leave to proceed in forma pauperis by Magistrate Sally Shushan (daf) (Entered: 11/04/1999)

11/03/1999 Automatic Referral (Utility Event) to Magistrate Sally Shushan (daf) (Entered: 11/04/1999)

11/10/1999 3 RETURN OF SERVICE of summons and complaint upon defendant Entergy NO Inc on 11/10/99 (cca) (Entered: 11/12/1999)

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Amelia Williams KochBaker Donelson Bearman Caldwell &Berkowitz (New Orleans)

550 F.3d 407 (Cite as: 550 F.3d 407)

Briefs and Other Related Documents Judges and Attorneys

United States Court of Appeals, Fifth Circuit.

Alan Dale WALKER; Paul Everett Woodward; Gerald James Holland, Plaintiffs-Appellants, v.

Christopher B. EPPS, Commissioner, Mississippi Department of Corrections; Lawrence Kelly, Superintendent of the Mississippi State Penitentiary at Parchman, Defendants-Appellees.

No. 08-60652. Nov. 24, 2008.

Background: Death row inmates brought § 1983 action challenging constitutionality of state's lethal injection protocol, and seeking preliminary injunction to prevent state from executing them during pendency of their action. Inmates' motion for stay pending appeal was denied, 287 Fed.Appx. 371. The United States District Court for the Northern District of Mississippi, W. Allen Pepper, Jr., J., 587 F.Supp.2d 763, 2008 WL 2788074, entered summary judgment in state's favor, and inmates appealed. Holdings: The Court of Appeals, E. Grady Jolly, Circuit Judge, held that: (1) action was subject to state's statute of limitations for general personal injury actions; (2) cause of action accrued on date inmates' convictions and sentences became final on direct review, or on date on which challenged protocol was adopted; and (3) state did not fraudulently conceal its lethal injection protocol.

Affirmed.

West Headnotes [1] Civil Rights 78 1382 78 Civil Rights 78III Federal Remedies in General 78k1378 Time to Sue 78k1382 k. Criminal Law Enforcement; Prisons. Most Cited Cases

State inmates' § 1983 action to enjoin state from executing them by method of lethal injection that they alleged unnecessarily risked pain and suffering, in violation of Eighth Amendment, was subject to state's statute of limitations for general personal injury actions, despite inmates' contention that their action sounded in equity, and thus was subject to doctrine of laches. U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983. [2] Federal Courts 170B 427 170B Federal Courts 170BVI State Laws as Rules of Decision


Page 2 of 14

7/12/2012http://web2.westlaw.com/print/printstream.aspx?vr=2.0&mt=Kentucky&destination=atp&...

EXHIBIT "22"

550 F.3d 407 (Cite as: 550 F.3d 407)

170BVI(C) Application to Particular Matters 170Bk422 Limitation Laws 170Bk427 k. Computation and Tolling. Most Cited Cases

Accrual date of § 1983 action in determined by reference to federal law. 42 U.S.C.A. § 1983. [3] Limitation of Actions 241 43

241 Limitation of Actions 241II Computation of Period of Limitation

241II(A) Accrual of Right of Action or Defense 241k43 k. Causes of Action in General. Most Cited Cases

Federal law holds generally that action accrues when plaintiff has complete and present cause of action, or, expressed differently, when plaintiff can file suit and obtain relief. [4] Limitation of Actions 241 58(1) 241 Limitation of Actions 241II Computation of Period of Limitation 241II(A) Accrual of Right of Action or Defense 241k58 Liabilities Created by Statute 241k58(1) k. In General. Most Cited Cases Limitation of Actions 241 105(1) 241 Limitation of Actions 241II Computation of Period of Limitation 241II(G) Pendency of Legal Proceedings, Injunction, Stay, or War 241k105 Pendency of Action or Other Proceeding 241k105(1) k. In General. Most Cited Cases

State inmates' § 1983 action to enjoin state from executing them by method of lethal injection that they alleged unnecessarily risked pain and suffering accrued on date inmates' convictions and sentences became final on direct review, or on date on which challenged protocol was adopted, whichever was later, rather than on date all state and federal remedies were exhausted. 42 U.S.C.A. § 1983. [5] Limitation of Actions 241 95(15) 241 Limitation of Actions 241II Computation of Period of Limitation 241II(F) Ignorance, Mistake, Trust, Fraud, and Concealment or Discovery of Cause of Action 241k95 Ignorance of Cause of Action 241k95(15) k. Civil Rights. Most Cited Cases

United States Supreme Court decisions in Hill v. McDonough and Baze v. Rees, permitting inmates to challenge state's method of execution under § 1983 and constitutional standard to be used in ruling on such challenges, did not reset statute of limitations for state inmates to bring § 1983 suit to enjoin state from executing them by method of lethal injection that they alleged unnecessarily risked pain and suffering. 42 U.S.C.A. § 1983 .

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241


Page 3 of 14


550 F.3d 407 (Cite as: 550 F.3d 407)

[6] Limitation of Actions 241 104(1) 241 Limitation of Actions

241II Computation of Period of Limitation 241II(F) Ignorance, Mistake, Trust, Fraud, and Concealment or Discovery of Cause of Action 241k104 Concealment of Cause of Action

241k104(1) k. In General. Most Cited CasesUnder Mississippi law, plaintiff seeking to toll statute of limitations based on defendant's fraudulent con-

cealment must show that: (1) some affirmative act by defendant was designed to prevent, and did prevent, discovery of claim and (2) despite plaintiff's due diligence, he could not have discovered claim. West's A.M.C. § 15-1-67. [7] Limitation of Actions 241 104(2) 241 Limitation of Actions 241II Computation of Period of Limitation 241II(F) Ignorance, Mistake, Trust, Fraud, and Concealment or Discovery of Cause of Action 241k104 Concealment of Cause of Action 241k104(2) k. What Constitutes Concealment. Most Cited Cases

Under Mississippi law, state did not fraudulently conceal its lethal injection protocol, and thus inmates challenging protocol's constitutionality were not entitled to toll statute of limitation for bringing § 1983 action to enjoin state from executing them pursuant to protocol, even if state's disclosure of protocol in separate case was inaccurate and inadequate, where state adopted protocol in statute, and inmates were aware that they were subject to execution by lethal injection from moment their convictions became final. 42 U.S.C.A. § 1983; West's A.M.C. §§ 15-1-67, 99-19-51. [8] Limitation of Actions 241 55(6) 241 Limitation of Actions 241II Computation of Period of Limitation 241II(A) Accrual of Right of Action or Defense 241k55 Torts 241k55(6) k. Continuing Injury in General. Most Cited Cases

Under Mississippi law, “continuing tort,” for which limitations period resets at each wrongful act, is one inflicted over period of time; it involves wrongful conduct that is repeated until desisted. [9] Limitation of Actions 241 58(1) 241 Limitation of Actions 241II Computation of Period of Limitation 241II(A) Accrual of Right of Action or Defense 241k58 Liabilities Created by Statute 241k58(1) k. In General. Most Cited Cases

Under Mississippi law, state's allegedly unconstitutional lethal injection protocol did not constitute continuing tort, for which limitations period for bringing § 1983 action challenging protocol reset at each wrongful act. 42 U.S.C.A. § 1983; West's A.M.C. § 15-1-49.

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Page 4 of 14


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flicted over period of time; it involves wrongful conduct that is repeated until desisted.nvolve

550 F.3d 407 (Cite as: 550 F.3d 407)

[10] Limitation of Actions 241 13 241 Limitation of Actions

241I Statutes of Limitation 241I(A) Nature, Validity, and Construction in General 241k13 k. Estoppel to Rely on Limitation. Most Cited Cases

State's failure to timely respond to inmates' § 1983 complaint challenging constitutionality of state's lethal injection protocol did not equitably estop state from asserting statute of limitations defense, where inmates were well aware that they were subject to lethal injection from moment their convictions became final, and could have filed their action on basis of that fact alone before statute of limitations had run. 42 U.S.C.A. § 1983. *408 James William Craig (argued), Phelps Dunbar, Jackson, MS, David Paul Voisin, *409 Jackson, MS, James Michael Priest, Jr., Gill Ladner & Priest, PLLC, Jackson, MS, for plaintiffs-appellants. Marvin L. White, Jr., Jason Lewis Davis (argued), Shawn Stephen Shurden, Jackson, MS, for defendants-appellees. Appeal from the United States District Court for the Northern District of Mississippi. Before JOLLY, BARKSDALE and HAYNES, Circuit Judges. E. GRADY JOLLY, Circuit Judge:

The plaintiffs are inmates who have been sentenced to death. At this point they are not challenging that the State can take their lives; they are challenging the method of execution. They contend that Mississippi's lethal injection protocol is unconstitutional under the Eighth Amendment. The district court found that the applicable statute of limitations barred the plaintiffs' § 1983 action and granted summary judgment to the defendants. We reject the plaintiffs' argument that the equitable doctrine of laches applies. Because the statute of limitations applies, and because the statute was not tolled in this case, we affirm.

I. Because this appeal comes to us in a circuitous route, we offer a few background facts.

On October 18, 2007, Alan Dale Walker, Paul Everett Woodward, and Gerald James Holland (collectively,

the “plaintiffs”) filed this 42 U.S.C. § 1983 action in federal district court against the Mississippi Department of Corrections and the Mississippi State Penitentiary, challenging the constitutionality of Mississippi's lethal injection protocol and seeking a preliminary injunction to prevent the State from executing them during the pendency of their action. At that time, Earl Wesley Berry and Dale Leo Bishop, two death-row inmates who have since been executed, were also plaintiffs. Berry's execution date, however, had been set for October 30. The plaintiffs sought additional injunctive relief in the form of an emergency temporary restraining order to prevent the State from executing Berry before the action could be litigated.

The State responded on October 19 with a motion to dismiss Berry from the action. At a hearing on that motion, the State argued that the complaint was dilatory as to Berry because he had waited until just days before his scheduled execution to challenge the State's lethal injection protocol. The State acknowledged, however, that the other plaintiffs' executions were not imminent and told the district court that those plaintiffs were “taking a timely step in those”-a position from which the State apparently has retreated. The district court dismissed Berry


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from the action, and this court affirmed. Berry v. Epps, 506 F.3d 402 (5th Cir.2007). The Supreme Court of the United States, after initially staying Berry's execution, denied his petition for certiorari on April 21, 2008. Berry v. Epps, --- U.S. ----, 128 S.Ct. 2048, 170 L.Ed.2d 796 (2008).

In the meantime, no progress was made in the remaining plaintiffs' case. The State failed to file either an answer or responsive pleading and the plaintiffs moved for default judgment, which was entered on May 5. The State moved to set aside the default on May 6 and filed an answer on May 8. The plaintiffs opposed setting aside the default and, in a cross-motion, asked that the district court condition relief from default on the State's agreement, inter alia, not to assert time-based defenses. On May 16, the district court set aside the default judgment but *410 denied the plaintiffs' cross-motion. Walker v. Epps, No. 4:07-CV-176, 2008 WL 2095696, at *2 (N.D.Miss. May 16, 2008).

The State moved for summary judgment on May 28 on the sole ground that the applicable statute of limitations barred the plaintiffs' § 1983 action. In their response, the plaintiffs argued that, because they did not seek damages but instead only sought prospective injunctive relief, the equitable doctrine of laches-not a statute of limitations-applied to their action. In the alternative, the plaintiffs argued that even if a statute of limitations applied, it would not bar their action because (1) the statute should be tolled because they did not know that they could bring this action, and thus the action did not accrue, before the Supreme Court issued its opinions in Hill v. McDonough, 547 U.S. 573, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), and Baze v. Rees, --- U.S. ----, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008); (2) the State's fraudulent concealment of its lethal injection protocol tolled the limitations period; (3) the existing protocol constitutes a continuing tort for which the limitations period is reset for each wrongful act; and (4) the State is equitably estopped from asserting a statute of limitations defense.

The district court rejected the plaintiffs' arguments. Walker v. Epps, 587 F.Supp.2d 763, No. 4:07-CV-176, 2008 WL 2788074 (N.D.Miss. July 15, 2008). First, the district court concluded that Mississippi's general statute of limitations, which requires that an action be filed within three years of its accrual, applied to the plaintiffs' § 1983 action notwithstanding the fact that they sought only prospective injunctive relief. The district court next concluded that each plaintiff's cause of action accrued on the later of two dates: the date direct review of his individual case was complete or the date on which Mississippi's lethal injection statute became effective, August 15, 1998. Because each of the plaintiffs' actions accrued between 1998 and 1999, the three-year limitations period for each expired between 2001 and 2002. Finding that the plaintiffs had failed to file within their respective limitations periods, and rejecting the plaintiffs' arguments that their § 1983 action should survive nonetheless, the district court granted summary judgment for the State on July 15. The plaintiffs promptly appealed.

II. We review a grant of summary judgment de novo. See, e.g., Hathaway v. Bazany, 507 F.3d 312, 319 (5th

Cir.2007). The plaintiffs sought, under § 1983, to enjoin the State from executing them by a method of lethal injection that they allege unnecessarily risks pain and suffering, in violation of the Eighth Amendment. In Hill v. McDonough, 547 U.S. 573, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), the Supreme Court of the United States held that an inmate may properly challenge a state's method of execution under § 1983. We must decide here the appropriate means of testing the timeliness of such § 1983 method-of-execution actions, which purport to seek equitable, not legal, relief. We will address two questions that this circuit has not had prior occasion to address: whether a statute of limitations, as opposed to the equitable doctrine of laches, applies to § 1983 method- of-execution claims and, if a statute of limitations applies, at what point the cause of action accrues. We review such questions of law de novo. See Newby v. Enron, 542 F.3d 463, 468 (5th Cir.2008); Clymore v. United States, 217 F.3d 370, 373 (5th Cir.2000); In re Hinsley, 201 F.3d 638, 644 (5th Cir.2000).


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*411 A. We begin our analysis by reference to Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254

(1985). There the Supreme Court held that § 1983 actions are best characterized as personal injury actions and, as such, should be subject to state statutes of limitations for general personal injury actions. Id. at 279. Wilson recognized that applying various limitations periods to separate § 1983 actions had been problematic. The court explained that “practical considerations” supported a “simple, broad characterization of all § 1983 claims”:

The experience of the courts that have predicated their choice of the correct statute of limitations on an analysis of the particular facts of each claim demonstrates that their approach inevitably breeds uncertainty and time- consuming litigation that is foreign to the central purposes of § 1983.

Id. at 272, 105 S.Ct. 1938.

To avoid such “useless litigation on collateral matters,” the Supreme Court directed courts of each state to

select:

the one most appropriate statute of limitations for all § 1983 claims. The federal interests in uniformity, certainty, and the minimization of unnecessary litigation all support the conclusion that Congress favored this simple approach.

Id. at 275, 105 S.Ct. 1938.

The question for us is whether the broad and inclusive language of Wilson directs that we apply a statute of

limitations to the plaintiffs' arguably unusual § 1983 case. The plaintiffs contend that their § 1983 action is not a typical tort action, but instead a suit in equity; consequently it is not subject to the statute of limitations that would otherwise apply in the usual § 1983 case. They distinguish their action by pointing out that unlike typical § 1983 cases, they seek no monetary damages. Because they seek only prospective injunctive relief, they argue that this court should revert to the traditional manner of judging the timeliness of equitable claims-that is, the doctrine of equitable laches.

In support of their argument, the plaintiffs direct our attention to Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946), in which the Supreme Court held that in suits seeking solely equitable relief, statutes of limitations do not apply. Id. at 396, 66 S.Ct. 582. In Holmberg, creditors sought to hold shareholders of a debtor bank liable under federal law for the bank's debts. The Supreme Court concluded the suit was one in equity and “[t]raditionally and for good reasons, statutes of limitation are not controlling measures of equitable relief.” Id. at 396, 66 S.Ct. 582. The plaintiffs also point to precedent in this circuit that stands for the proposition that wholly equitable actions are subject to the doctrine of laches, not statutes of limitations. Envtl. Def. Fund, Inc. v. Alexander, 614 F.2d 474, 478 (5th Cir.1980) (“when an equitable remedy was sought, the statute of limitations that ordinarily would apply to a legal right was inapplicable”); Perry v. Allen, 239 F.2d 107, 114 (5th Cir.1956) (applying Holmberg). On the basis of these cases, which did not arise under § 1983, the plaintiffs urge us to find that the equitable doctrine of laches applies to all method-of-execution actions and, as applied, permits the plaintiffs' action here.

[1] In short, the plaintiffs characterize their case as equitable in nature, and contend that statutes of limitation do not generally apply in equity. But although the plaintiffs ably argue their case is one in equity and should be treated differently, we hold that Wilson commands otherwise.


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*412 The Supreme Court was fully aware when it decided Wilson that actions seeking equitable relief only could be brought under § 1983. See, e.g., Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) ( § 1983 action to enjoin Nebraska Legislature from opening its sessions with prayer); Sup. Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980) ( § 1983 action to declare state disciplinary rules governing conduct of attorneys unconstitutional and to enjoin state from enforcing rules); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) (class action under § 1983 seeking sweeping equitable relief from municipality's alleged unconstitutional practices). If the Supreme Court had intended to exclude such actions from its rule, it would have explicitly stated so in Wilson. It is plain, however, that the Court, in directing courts in each state to select “the one most appropriate statute of limitations for all § 1983 claims,” made no exception in Wilson for § 1983 actions that seek only equitable relief. 471 U.S. at 275, 105 S.Ct. 1938 (emphasis added). Indeed, the Court was seeking to avoid the precise dispute we face here: The Court observed that if the statute depended on the particular facts or legal theory, “counsel could almost always argue, with considerable force, that two or more periods of limitations should apply to each § 1983 claim.” Id. at 274-75, 105 S.Ct. 1938. In the same vein, Wilson stressed that resolving the question of whether an action had been timely filed should be “an uncomplicated task for judges, lawyers, and litigants, rather than a source of uncertainty, and unproductive and ever-increasing litigation.” Id. at 275, 105 S.Ct. 1938. Wilson's strongly expressed interests in judicial economy suggest to us a finding of no exception for actions seeking equitable relief.

In the light of such unambiguous language and the policy reasons asserted, we read Wilson to compel the conclusion that an applicable statute of limitations applies with equal force to method-of-execution actions, notwithstanding the kind of relief they request.

B. Our holding is not inconsistent with prior cases addressing emergency motions for stays of execution. The

plaintiffs point out, and we acknowledge, that in prior cases we have referred to the equitable doctrine of laches to determine whether a stay should be granted pending review of a § 1983 method-of-execution action. See Neville v. Johnson, 440 F.3d 221 (5th Cir.2006) (seeking last-minute stay of execution); Harris v. Johnson, 376 F.3d 414 (5th Cir.2004) (seeking last minute injunction). In those cases, however, this court did not reach the issue of eligibility for § 1983 relief, because the plaintiff inmates in both cases were seeking temporary stays of execution to permit examination of the merits of their § 1983 case. Neville, 440 F.3d at 223 (action filed two days before scheduled execution was dilatory); Harris, 376 F.3d at 417 (“We do not decide whether [White] properly states a claim under § 1983, because even if he does, he is not entitled to the equitable relief he seeks” due to his dilatory filing.). Such eleventh-hour filings are naturally suspect. Nelson v. Campbell, 541 U.S. 637, 650, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004) (“[T]here is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.”); Scripps-Howard Radio v. F.C.C., 316 U.S. 4, 10-11, 62 S.Ct. 875, 86 L.Ed. 1229 (1942) (citations omitted) (“ ‘A stay is not a matter of right, even if irreparable injury might otherwise result to the appellant. It *413 is an exercise of judicial discretion. The propriety of its issue is dependent upon the circumstances of the particular case.’ ”). That this court spoke of principles of equity to the requests for stays in those specific cases does not preclude our following the unequivocal teaching of Wilson that statutes of limitations apply generally to the merits of the underlying § 1983 method-of-execution actions.

The plaintiffs continue their argument by citing White v. Johnson, 429 F.3d 572 (5th Cir.2005), for the proposition that an inmate may challenge a state's method of execution at any time after his conviction and sentence become final on direct review. In fact we did state that White's action would have been appropriately filed after his conviction and sentence became final on direct review. Id. at 573. But that language only acknowledges that


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it would be inappropriate for an inmate to challenge a state's method of execution before his own death sentence has been affirmed on appeal. It cannot be understood to permit an inmate an unlimited time period in which to file such actions. White does not address the issue we decide today and the reading of White that the plaintiffs assert does not comply with Wilson's directive to select in each state a statute of limitations for all § 1983 actions.

C. We are not the first court to address whether a statute of limitations, as opposed to the equitable doctrine of

laches, applies to § 1983 method-of-execution actions. Indeed two other circuits have already reached the same conclusion we reach today. Both the Sixth and Eleventh Circuits have in the past year addressed the timeliness of § 1983 method-of-execution actions. Cooey v. Strickland, 479 F.3d 412 (6th Cir.2007), cert. denied, --- U.S. - ---, 128 S.Ct. 2047, 170 L.Ed.2d 811 (2008); McNair v. Allen, 515 F.3d 1168 (11th Cir.), cert. denied, Callahan v. Allen, --- U.S. ----, 128 S.Ct. 2914, 171 L.Ed.2d 850 (2008). The panel majorities in both cases cited Wilson for the general rule that § 1983 actions should be in each state subject to the statute of limitations for general personal injury actions. Cooey, 479 F.3d at 416 (citing Wilson, 471 U.S. at 275-76, 105 S.Ct. 1938); McNair, 515 F.3d at 1174 (citing Wilson, 471 U.S. at 275-76, 105 S.Ct. 1938). Of note, neither case's dissent disputed that a statute of limitations applied. Cooey, 479 F.3d at 419 (Gilman, J., dissenting); McNair, 515 F.3d at 1178 (Wilson, J., dissenting).

There is, however, a district court opinion, Jones v. Allen, 483 F.Supp.2d 1142 (M.D.Ala.2007), that takes the plaintiffs' point of view. That case distinguished between what it called a typical § 1983 case and an atypical § 1983 case: the former seeks relief for a tortious act that has already occurred, while the latter seeks relief for a tortious act that will occur in the future. Because the inmate's method-of-execution action was an atypical § 1983 case, and because the allegedly tortious act (execution) had not occurred, the court reasoned the statute of limitations could not have run, much less have barred the action. Id. at 1149-50. Arguably method-of-execution actions are atypical in that they seek only prospective injunctive relief. Nevertheless, actions seeking only prospective injunctive relief under § 1983 were not unheard of when the Supreme Court in Wilson expressed itself in all-encompassing language. Because they remain § 1983 actions, they are subject to the rules applicable to all § 1983 actions. To adopt the district court's reasoning would require us to create an exception to a clearly-stated, fair, and rational rule for method-of-execution actions, and for non-*414 compelling reasons. We think Wilson unambiguously forecloses such an exception.FN1

FN1. In her dissent to this court's opinion in Walker v. Epps, 287 Fed.Appx. 371 (5th Cir.2008) (unpublished), which denied Dale Leo Bishop's emergency application for injunction or stay of execution, Judge King cited the district court's opinion in Jones for the proposition that “[r]egardless of the fact that it may be framed as a § 1983 action, Bishop's claim seeks an equitable remedy.” Id. at 379 (King, J., dissenting). Nevertheless, Judge King agreed with the majority that it was unwise to decide, in the context of Bishop's application, whether all § 1983 method-of-execution actions should be subject to statutes of limitations. Id. Such a question “is a difficult one that deserves our full and deliberate consideration.” Id.

In sum, we conclude under Wilson that statutes of limitations apply with equal force to § 1983 method-

of-execution actions, notwithstanding the nature of the relief they request.

III. Having concluded that statutes of limitation apply to § 1983 method-of-execution actions, we turn our atten-


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tion to the question of when such causes of action accrue.

[2][3] We determine the accrual date of a § 1983 action by reference to federal law. Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 1095, 166 L.Ed.2d 973 (2007). Federal law holds generally that an action accrues when a plaintiff has “ ‘a complete and present cause of action,’ ” or, expressed differently, “when ‘the plaintiff can file suit and obtain relief.’ ” Id. (quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997) (citations omitted)). As we ourselves have stated, the limitations period begins to run “the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured.” Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir.2001) (quoting Russell v. Bd. of Trustees, 968 F.2d 489, 493 (5th Cir.1992), cert. denied, 507 U.S. 914, 113 S.Ct. 1266, 122 L.Ed.2d 662 (1993)).

[4] The district court concluded that such causes of action necessarily accrue on the later of two dates: the date direct review of an individual case is complete or the date on which the challenged protocol was adopted. We agree with the district court.

Although we have not had prior occasion to rule on this issue, our prior cases have presaged the rule we adopt here. In White, we observed that an inmate may challenge a state's method of execution at any time after his conviction and sentence have become final on direct review. 429 F.3d at 574. In Neville v. Johnson, we reiter- ated that a plaintiff could not wait until days before his scheduled execution to file his action, when he could have filed it immediately after his conviction became final. 440 F.3d at 222-23 (citing White, 429 F.3d at 574). And in Harris v. Johnson, we dismissed an argument that a plaintiff should wait until his habeas relief is denied to challenge a state's method of execution. 376 F.3d 414, 417-18 (5th Cir.2004). These cases leave little doubt that a § 1983 method-of-execution action is most appropriately filed after a plaintiff's conviction and sentence have become final on direct review. We therefore hold the limitations period begins to accrue on the date direct review of a plaintiff's conviction and sentence is complete. Of course, in the event a state changes its execution protocol after a death-row inmate's conviction has become final, the limitations period will necessarily accrue on the date that protocol change becomes effective.

*415 We are not the first circuit to attach accrual to these events. The Sixth Circuit in Cooey held that the statute of limitations for a method-of-execution challenge accrues at the completion of direct review in the state court or, if the protocol has changed, the date the new protocol was instituted. Cooey, 479 F.3d at 422. The Sixth Circuit specifically rejected the “problematic” arguments that a method-of-execution action accrues at the time of execution or after all state and federal remedies have been exhausted. Id. at 418-19. The Eleventh Circuit in McNair held similarly that a method-of-execution action accrues at the completion of direct review or on the date the challenged protocol became apparent. McNair, 515 F.3d at 1174. Our rule is thus in keeping with precedent in other circuits.

In the light of the rule we adopt, the district court correctly found that the statute of limitations has run for each of the three remaining plaintiffs. Each of the plaintiffs' individual § 1983 actions accrued between 1998 and 1999. Direct review of Alan Dale Walker's conviction and sentence was complete on December 2, 1996. See Walker v. State, 671 So.2d 581 (Miss.1995), cert. denied, 519 U.S. 1011, 117 S.Ct. 518, 136 L.Ed.2d 406 (1996) . Therefore, his cause of action accrued on August 15, 1998, the date the statute adopting lethal injection in Mis- sissippi became effective. Direct review of Paul Everett Woodward's conviction and sentence was complete on March 29, 1999. See Woodward v. State, 726 So.2d 524 (Miss.1997), cert. denied, 526 U.S. 1041, 119 S.Ct. 1338, 143 L.Ed.2d 502 (1999). Direct review of Gerald James Holland's conviction and sentence was complete


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on October 5, 1998. See Holland v. State, 705 So.2d 307 (Miss.1997), cert. denied, 525 U.S. 829, 119 S.Ct. 80, 142 L.Ed.2d 63 (1998).FN2 We have just concluded that under Wilson statutes of limitation apply to § 1983 method-of-execution actions and, therefore, the plaintiffs' § 1983 actions were subject to the Mississippi statute of limitations for general personal injury actions. James v. Sadler, 909 F.2d 834, 836 (5th Cir.1990) (Mississippi's residual statute of limitations applies in § 1983 actions). That statute requires plaintiffs to file an action within three years of its date of accrual. MISS.CODE ANN. § 15-1-49. The plaintiffs each had three years to file their action. Thus, Walker's and Holland's limitations periods expired in 2001, and Woodward's limitations period expired in 2002. Their shared § 1983 action, which they did not file until 2007, was and is barred by the statute of limitations.

FN2. Direct review of Dale Leo Bishop was complete on October 22, 2002. See Bishop v. State, 812 So.2d 934 (Miss.2002), cert. denied, 537 U.S. 976, 123 S.Ct. 468, 154 L.Ed.2d 335 (2002). At the time the district court entered summary judgment, Bishop was still a plaintiff in this action. Subsequently, the State set Bishop's execution date for July 23, 2008. On July 17, Bishop applied for an emergency injunction or stay of execution, pending our consideration of the case now before us. On July 21, this court denied his application. Walker v. Epps, 287 Fed.Appx. 371 (5th Cir.2008) (unpublished).

IV.

This determination does not, however, end our analysis. The plaintiffs ask us to find that even if their action was subject to the statute of limitations, the statute was tolled. Just as we borrow the forum state's statute of limitations for § 1983 purposes, we borrow also the state's tolling principles. Hardin v. Straub, 490 U.S. 536, 538-39, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989); Rodriguez v. Holmes, 963 F.2d 799, 803 (5th Cir.1992). The plaintiffs argue here, as they did in the district court, that (1) the statute should be tolled because they did not know that they could bring this action, and thus the action did *416 not accrue, before the Supreme Court issued its opinions in Hill v. McDonough, 547 U.S. 573, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), and Baze v. Rees, --- U.S. ----, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008); (2) the State's fraudulent concealment of its lethal injection protocol tolled the limitations period; (3) existing protocol constitutes a continuing tort for which the limitations period is reset for each wrongful act; and (4) the State is equitably estopped from asserting a statute of limitations defense. We address each of their arguments in turn.

[5] First the plaintiffs argue the statute of limitations should be tolled because they could not have known that they could bring this action, and thus the action could not have accrued, before the Supreme Court decided Hill v. McDonough, 547 U.S. 573, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) (inmate may properly challenge a state's method of execution under § 1983). They argue further that they could not have known the constitutional scrutiny to which Mississippi's lethal injection protocol would be subjected before Baze v. Rees, --- U.S. ----, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion) (protocol that incorporated various safeguards did not present “substantial” or “objectively intolerable” risk of serious harm). We have previously explained, however, that although Hill permitted method-of-execution challenges under § 1983, it did not have the effect of restoring otherwise untimely method-of-execution actions. Reese v. Livingston, 453 F.3d 289, 290-91 (5th Cir.2006) (“[W]e are not persuaded that Hill has undermined the decisions of this Court insisting upon a timely filing or that until Hill the suit could not have been brought.”). Moreover, the fact that the scrutiny to be applied in method-of-execution cases was previously unclear should not have precluded the plaintiffs from filing their actions. As the district court pointed out, as early as 1997 the United States District Court for the Southern Dis- trict of Mississippi recognized that inmates could challenge Mississippi's lethal injection protocol in a § 1983 suit. Walker v. Epps, 587 F.Supp.2d 763, 770-71, No. 4:07-CV-176, 2008 WL 2788074, at *5 (N.D.Miss. July 15, 2008) (citing Booker v. Murphy, 953 F.Supp. 756 (S.D.Miss.1997)). Hence, neither Hill nor Baze reset the


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plaintiffs' limitations period.

[6][7] The plaintiffs next allege that the State fraudulently concealed its lethal injection protocol and thus they could not have discovered the cause of action within the limitations period. Mississippi law tolls a statute of limitations if the cause of action is fraudulently concealed. MISS.CODE ANN. § 15-1-67. A plaintiff must show, however, that (1) some affirmative act by the defendant was designed to prevent, and did prevent, discovery of the claim and (2) despite the plaintiff's due diligence, he could not have discovered the claim. Andrus v. Ellis, 887 So.2d 175, 181 (Miss.2004). Here, the plaintiffs allege only that in other cases the State has resisted requests to disclose the protocol. They allege that, when the State did disclose the protocol in a separate case in 2006, the disclosures were inaccurate and inadequate. They further complain that the State did not fully disclose its protocol until it moved for summary judgment in this case. The district court, however, found no evidence that the State affirmatively acted to conceal its lethal injection protocol. As the district court noted, Mississippi adopted its lethal injection protocol in 1998. MISS.CODE ANN. § 99-19-51. Since then, it has been no secret that Mississippi uses a three-drug combination used in other states. See, e.g., Oken v. State, 381 Md. 580, 851 A.2d 538, 539 n. 2 (2004) (Bell, C.J., dissenting) (acknowledging*417 states' lethal injection protocols). We cannot accept that the State fraudulently concealed the plaintiffs' cause of action, given that the plaintiffs were aware that they were subject to execution by lethal injection from the moment their convictions became final. The plaintiffs could have filed their § 1983 action on the basis of this fact alone, within the limitations period. They did not need the detailed information they allege the State belatedly disclosed to file their action. The plaintiffs have failed to show the State affirmatively acted to conceal their cause of action and, accordingly, the statute was not tolled on the basis of fraudulent concealment.

[8][9] The plaintiffs next argue that the existing protocol constitutes a continuing tort for which the limitations period resets at each wrongful act. Under Mississippi law, a continuing tort is “one inflicted over a period of time; it involves a wrongful conduct that is repeated until desisted.” Stevens v. Lake, 615 So.2d 1177, 1178 (Miss.1993). We previously stated that the doctrine does not apply when a plaintiff “simply alleges that ‘harm reverberates from one wrongful act or omission.’ ” Bellum v. PCE Constructors, Inc., 407 F.3d 734, 741 (5th Cir.2005) (quoting Smith v. Franklin Custodian Funds, Inc., 726 So.2d 144, 149 (Miss.1998)). We do not think the doctrine of continuing torts applies here. The plaintiffs are individually subject to execution, and that act will be a single event. The challenged protocol will affect each plaintiff but once. Under these circumstances, the protocol does not constitute a continuing tort.

[10] Finally, the plaintiffs assert that because the State did not timely respond to their complaint, and this somehow resulted in truncating discovery, it should be equitably estopped from asserting a statute of limitations defense. The plaintiffs' brief devotes hardly more than a couple of sentences to this point and generally we do not pay attention to unargued assertions. In any event, the plaintiffs' suggestion is meritless because, as we have already observed, the plaintiffs were well aware that they were subject to lethal injection from the moment their convictions became final, and could have filed their action on the basis of that fact alone before the statute of limitations had run. Furthermore, they indicate no possibility of evidence that might have been discovered that would have had any effect on the statute of limitations.

In sum, there is no reason to hold that the statute of limitations has been tolled.

V. We have held that Wilson, which directs that all § 1983 actions should be in each state subject to one statute

of limitations, made no exception for § 1983 actions seeking only equitable relief. Therefore, a statute of limita-


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[8][9] The plaintiffs next argue that the existing protocol constitutes a continuing tort for which the limita- [ ][ ] p g g p gtions period resets at each wrongful act. Under Mississippi law, a continuing tort is “one inflicted over a period p g pp , g pof time; it involves a wrongful conduct that is repeated until desisted.” Stevens v. Lake, 615 So.2d 1177, 1178; g p , ,(Miss.1993). We previously stated that the doctrine does not apply when a plaintiff “simply alleges that ‘harm ( ) p y pp y p p y greverberates from one wrongful act or omission.’ ” Bellum v. PCE Constructors, Inc., 407 F.3d 734, 741 (5thg , , , (Cir.2005) (quoting Smith v. Franklin Custodian Funds, Inc., 726 So.2d 144, 149 (Miss.1998)). We do not think ) (q g , , , ( ))the doctrine of continuing torts applies here. The plaintiffs are individually subject to execution, and that act willg pp p y j ,be a single event. The challenged protocol will affect each plaintiff but once. Under these circumstances, theg g pprotocol does not constitute a continuing tort.

F.3d 407 (Cite as: 550 F.3d 407)

tions applies to the plaintiffs' § 1983 method-of-execution action, notwithstanding the nature of the relief theyrequest. We have also held that the statute was not tolled in this case. Because the statute of limitations applies,and because it was not tolled, the judgment of the district court is

AFFIRMED. C.A.5 (Miss.),2008. Walker v. Epps 550 F.3d 407 Briefs and Other Related Documents (Back to top) ��2008 WL 5874272 (Appellate Brief) Appellants' Reply Brief (Aug. 27, 2008) Original Image of this Document(PDF) �� 2008 WL 5874271 (Appellate Brief) Brief of Defendants-Appellees (Aug. 22, 2008) Original Image of thisDocument (PDF) ��2008 WL 5874270 (Appellate Brief) Appellate Brief (Aug. 8, 2008) Original Image of this Document (PDF) ��08-60652 (Docket) (Jul. 24, 2008) Judges and Attorneys(Back to top) Judges | Attorneys Judges � Barksdale, Hon. Rhesa Hawkins United States Court of Appeals, Fifth Circuit New Orleans, Louisiana 70130 Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler � Haynes, Hon. Catharina United States Court of Appeals, Fifth Circuit New Orleans, Louisiana 70130 Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler � Jolly, Hon. E. Grady United States Court of Appeals, Fifth Circuit New Orleans, Louisiana 70130 Litigation History Report | Judicial Motion Report | Judicial Reversal Report | Judicial Expert Challenge Report |Profiler � Pepper, Hon. W. Allen Jr. United States District Court, Northern Mississippi Greenville, Mississippi 38701 Litigation History Report | Judicial Motion Report | Judicial Reversal Report | Judicial Expert Challenge Report |


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F.3d 407 (Cite as: 550 F.3d 407)

Profiler Attorneys Attorneys for Defendant � Davis, Jason L. P.E. Houston, Texas 77010 Litigation History Report | Profiler � Shurden, Shawn Stephen Gulfport, Mississippi 39502 Litigation History Report | Profiler � White, Marvin L. Jr. Jackson, Mississippi 39201 Litigation History Report | Profiler Attorneys for Plaintiff � Craig, James William New Orleans, Louisiana 70113 Litigation History Report | Profiler � Priest, James M. Jr. Jackson, Mississippi 39201 Litigation History Report | Profiler � Voisin, David P. Jackson, Mississippi 39201 Litigation History Report | Profiler END OF DOCUMENT


Page 14 of 14


EXHIBIT "23"

244 F.Supp.2d 678 (Cite as: 244 F.Supp.2d 678)

Motions, Pleadings and Filings Judges and Attorneys

United States District Court, S.D. Mississippi,

Southern Division. Patty CALLAHAN Plaintiff

v. BANCORPSOUTH INSURANCE SERVICES OF MISSISSIPPI, INC. (Stewart Sneed Hewes Division) f/k/a

Stewart Sneed Hewes, Inc. Defendant

No. CIV.A. 1:01–CV–62(BR). Feb. 28, 2002.

Female employee brought suit in state court against former employer, alleging that she was discharged in vi-

olation of Title VII because she complained about gender discrimination. Plaintiff also alleged that she was not compensated for overtime work in violation of the Fair Labor Standards Act (FLSA), and that employer breached her employment contract by not providing 30-days advance written notice of her termination, and by failing to pay vacation pay and bonuses. On defendant's motion for summary judgment, the District Court, Bramlette, J., held that: (1) plaintiff failed to show she engaged in protected activity of opposing sex discrimination during meeting with male supervisor, and thus failed to establish prima facie case of retaliation; (2) plaintiff was an exempt employee pursuant to the administrative exemption of the FLSA; and (3) supplemental jurisdiction would not be exercised over state law claims.

Motion granted in part.

West Headnotes [1] Civil Rights 78 1243 78 Civil Rights 78II Employment Practices 78k1241 Retaliation for Exercise of Rights 78k1243 k. Practices Prohibited or Required in General; Elements. Most Cited Cases (Formerly 255k30(6.10) Master and Servant)

In a Title VII retaliation claim, the plaintiff makes out a prima facie case if she can establish: (1) that there was statutorily protected participation;, (2) that an adverse employment action occurred; and (3) that there was a causal link between the participation and the adverse employment action. Civil Rights Act of 1964, § 704(a), 42 U.S.C.A. § 2000e–3(a). [2] Civil Rights 78 1251 78 Civil Rights

nt Pracaliatio. Prac0(6.1retaliaected

n the 3(a).


Page 2 of 14

7/12/2012http://web2.westlaw.com/print/printstream.aspx?sv=Split&spa=003570855-4000&rs=WL...

EXHIBIT "24"

F.Supp.2d 678 (Cite as: 244 F.Supp.2d 678)

78II Employment Practices 78k1241 Retaliation for Exercise of Rights 78k1251 k. Motive or Intent; Pretext. Most Cited Cases (Formerly 255k40(1) Master and Servant)

If a prima facie case retaliation is established under Title VII, the employer bears the burden of articulatinga legitimate, nondiscriminatory business reason for its action, which the plaintiff has the burden of proving ispretextual. Civil Rights Act of 1964, § 704(a), 42 U.S.C.A. § 2000e–3(a).


78 Civil Rights 78II Employment Practices

78k1241 Retaliation for Exercise of Rights 78k1244 k. Activities Protected. Most Cited Cases (Formerly 255k30(6.35), 255k30(6.10) Master and Servant)

Title VII prohibits retaliation in either of two instances: (1) where the employee has opposed any unlawfulemployment practice; or (2) where the employee has made a charge, testified, assisted, or participated in anymanner in an investigation, proceeding, or hearing. Civil Rights Act of 1964, § 704(a), 42 U.S.C.A. § 2000e–3(a).


78 Civil Rights 78II Employment Practices 78k1241 Retaliation for Exercise of Rights 78k1244 k. Activities Protected. Most Cited Cases (Formerly 255k30(6.10) Master and Servant)

Title VII prohibition of retaliation protects employees who use informal methods to voice their complaints,as well as those who file formal charges. Civil Rights Act of 1964, § 704(a), 42 U.S.C.A. § 2000e–3(a).


78 Civil Rights 78II Employment Practices 78k1241 Retaliation for Exercise of Rights 78k1244 k. Activities Protected. Most Cited Cases (Formerly 255k40(4) Master and Servant)

Female employee who asserted Title VII retaliation claim failed to show she engaged in protected activityof opposing sex discrimination during meeting with male supervisor during which she complained of denial ofan incentive bonus she was promised and requested that she be put back on an hourly wage so that she would beeligible for overtime compensation; although employee complained that she had been “treated unfairly,” she didnot complain specifically about gender-based discrimination, except for cryptic remark implying that she wasnot given a secretary because she was female. Civil Rights Act of 1964, § 704(a), 42 U.S.C.A. § 2000e–3(a).

[6] Labor and Employment 231H 2257

231H Labor and Employment

nt Pracaliatio. Acti0(6.3

nt Pracaliatio. Acti0(6.1bition

o file


Page 3 of 14


y ( ), ( ) )Title VII prohibits retaliation in either of two instances: (1) where the employee has opposed any unlawful

(ibits rp ( ) p y pp y

employment practice; or (2) where the employee has made a charge, testified, assisted, or participated in anyce; orp y p ; ( ) p y g , , , p pmanner in an investigation, proceeding, or hearing. Civil Rights Act of 1964, § 704(a), 42 U.S.C.A. § 2000e–3(a).

;igatio


231HXIII Wages and Hours 231HXIII(B) Minimum Wages and Overtime Pay 231HXIII(B)3 Exemptions 231Hk2253 Executive and Administrative Employees 231Hk2257 k. Particular Employments. Most Cited Cases (Formerly 232Ak1198 Labor Relations)

Employee was an exempt employee pursuant to the administrative exemption of the FLSA, where she was engaged in office work directly related to the general business operations of her employer, requiring the exercise of discretion and independent judgment in the management of an insurance fund, including marketing, administration, underwriting, billing and collecting. Fair Labor Standards Act of 1938, § 13, 29 U.S.C.A. § 213; 29 C.F.R. § 541.2(e)(1, 2). [7] Federal Courts 170B 18 170B Federal Courts

170BI Jurisdiction and Powers in General 170BI(A) In General 170Bk14 Jurisdiction of Entire Controversy; Pendent Jurisdiction

170Bk18 k. Validity or Substantiality of Federal Claims and Disposition Thereof. Most Cited CasesDistrict courts enjoy wide discretion in determining whether to retain supplemental jurisdiction over state

claims once all federal claims are dismissed. 28 U.S.C.A. § 1367(a), (c)(3). [8] Federal Courts 170B 18 170B Federal Courts 170BI Jurisdiction and Powers in General 170BI(A) In General 170Bk14 Jurisdiction of Entire Controversy; Pendent Jurisdiction 170Bk18 k. Validity or Substantiality of Federal Claims and Disposition Thereof. Most Cited Cases

In the interest of comity, judicial economy, convenience, and fairness to the litigants, district court would exercise its discretion and declines to exercise supplemental jurisdiction over the plaintiff's state law claims for breach of employment contract, after dismissal of federal Title VII and FLSA claims. 28 U.S.C.A. § 1367(c)(3); Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.; Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. *679 Jack C. Pickett, Kitchens & Ellis, Pascagoula, MS, Wynn E. Clark, Gulfport, MS, for Plaintiff. Paul O. Miller, III, Phelps Dunbar, Jackson, MS, Defendant.

MEMORANDUM OPINION AND ORDER BRAMLETTE, District Judge.

This cause is before the Court on the defendant BancorpSouth Insurance Services of Mississippi, Inc. (Stewart Sneed Hewes Division), f/k/a Stewart Sneed Hewes, Inc. (“BancorpSouth”)'s motion for summary judgment (docket entry 22). Having carefully considered the motion, the response, the memoranda and all supporting documents, as well as the applicable law, and being fully advised in the premises, the Court finds as follows:

Poweal ction

Validitwide

ims a


Page 4 of 14


Paul O. Miller, III, Phelps Dunbar, Jackson, MS, Defendant.


The plaintiff alleges that BancorpSouth discharged her from employment on November 4, 1999, in retaliation for her engaging in activity protected by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–3(a). Specifically, the plaintiff alleges that she was discharged because she complained about gender discrimination against her on November 3, 1999. The plaintiff also alleges that she was not compensated for overtime work in violation of the Fair Labor Standards Act (FLSA). In addition to her federal claims, the plaintiff includes a breach of contract claim against her employer for failure to provide 30 days written notice of her termination, and failure to pay vacation pay and bonuses.FN1 On April 13, 2000, the plaintiff filed an EEOC charge, and on January 21, 2001, she filed suit in the Circuit Court of Harrison County, First Judicial District. The case was removed to this Court by the defendant on February 15, 2001. The defendant now moves for summary judgment.

FN1. The plaintiff's complaint contains other claims as well, but these have been voluntarily abandoned.

*680 The Supreme Court has held that Rule 56(c) mandates summary judgment in any case where a party fails to establish the existence of an element essential to the case and on which that party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A complete failure of proof on an essential element renders all other facts immaterial because there is no longer a genuine issue of material fact. Id. at 323, 106 S.Ct. at 2552. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Court stated:

By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.... As to materiality, the substantive law will identify which facts are material ....

Anderson, 477 U.S. at 247–48, 106 S.Ct. at 2510 (emphasis in original). When the moving party has carried

the Rule 56(c) burden, the opposing party must present more than a metaphysical doubt about the material facts in order to preclude the grant of summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Indeed, once the defendant has moved for summary judgement, the non-moving party is required to respond with proof of a prima facie case, sufficient for a jury to enter a verdict in its favor. Washington v. Armstrong World Indus., 839 F.2d 1121, 1122–23 (5th Cir.1988) (citing Anderson, 477 U.S. at 249, 106 S.Ct. at 2511). A claim that further discovery or a trial might reveal facts which the plaintiff is currently unaware of is insufficient to defeat the motion. Woods v. Federal Home Loan Bank Bd., 826 F.2d 1400, 1414–15 (5th Cir.1987).

[1][2] The essential elements of a Title VII employment discrimination case, in the absence of direct evidence of discrimination, are set forth in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In a retaliation claim, the plaintiff makes out a prima facie case if she can establish “(1) that there was statutorily protected participation [in EEO activity], (2) that an adverse employment action occurred, and (3) that there was a causal link between the participation and the adverse employment action.” Whatley v. Metro- politan Atlanta Rapid Transit, 632 F.2d 1325, 1328 (5th Cir.1980). If a prima facie case is established, the employer bears the burden of articulating a legitimate, nondiscriminatory business reason for its action, which the plaintiff has the burden of proving is pretextual. See De Anda v. St. Joseph Hospital, 671 F.2d 850, 856 (5th Cir.1982); E.E.O.C. v. MCI Telecommunications Corp., 820 F.Supp. 300, 309 (S.D.Tex.1993).


Page 5 of 14



The FLSA generally requires, for employees covered under its provisions, overtime compensation of one and one-half times the regular rate of pay for time worked in excess of forty hours per workweek. See 29 U.S.C. § 207. However, the FLSA exempts from its overtime requirements any salaried employee who works in a bona fide executive, administrative or professional capacity. 29 U.S.C. § 213(a)(1); Smith v. City of Jackson, 954 F.2d 296 (5th Cir.1992).

Summary judgment is available in employment discrimination cases, see, e.g., Slaughter v. Allstate Ins. Co., 803 F.2d 857, 861 (5th Cir.1986) (case brought under Age Discrimination in Employment Act), and is appropriate where “critical evidence *681 is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, or where it is so overwhelming that it mandates judgment in favor of the nonmovant.” Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir.1993) (Title VII retaliation case). The Fifth Cir- cuit has held that summary judgment is appropriate where the plaintiff fails to show a genuine issue of fact on the pretext issue. See, e.g., Amburgey v. Corhart Refractories Corp., Inc., 936 F.2d 805, 813 (5th Cir.1991); Hanchey v. Energas Co., 925 F.2d 96 (5th Cir.1990). Summary judgment is also available in cases brought under the FLSA, Vela v. City of Houston, 276 F.3d 659 (5th Cir.2001); Lott v. Howard Wilson Chrysler–Plymouth, Inc., 203 F.3d 326 (5th Cir.2000), and is appropriate where the plaintiff fails to show a genuine issue of fact on the exemption issue. See, e.g., Triplett v. Engineering Development Group, Inc., 1998 WL 164851 (E.D.La. April 7, 1998).

The plaintiff's version of the facts is taken from her brief in response to the motion for summary judgment. The plaintiff, a female, was first employed with Stewart Sneed Hughes (“SSH”) in 1993 as a secretary to Presid- ent John Sneed, and Vice–President Wayne Tisdale. The plaintiff was an hourly employee and was paid overtime. On January 9, 1995, the plaintiff became Sales and Public Relations Coordinator with a salary of $25,000 a year. A majority of her duties were with Thompson Plan Administrators (“TPA”), a division of SSH that was the administrator of Associated General Contractor's (“AGC”) Workers' Compensation Fund. This was TPA's only business. The plaintiff was involved in coordinating activities of TPA and the fund under Tisdale's direction. The plaintiff was a salaried employee from this point on, and no longer received overtime pay although she requested to be put back on an hourly wage numerous times.

On October 1, 1997, the plaintiff was placed on a direct sales producer contract. However, the plaintiff's salary of $30,000 and duties with respect to TPA and the AGC Workers' Compensation Fund remained the same. In February of 1998, the plaintiff's job as a producer was eliminated. In the spring of 1998, the plaintiff resigned her employment with SSH because she was in limbo as her sales coordinator and producer jobs had been eliminated. The plaintiff agreed to stay on until July to help with the renewal of the AGC fund.

On August 1, 1998, Tisdale named the plaintiff Manager of TPA with a salary of $38,000. The plaintiff considered this to be an acknowledgment of what she had been doing. Tisdale, by letter dated September 3, 1998, informed the plaintiff of her job description as the manager of TPA. The plaintiff's duties and responsibilities included managing TPA under his direction. The fund was actually managed by the Board of Directors of AGC. According to the plaintiff, she had been performing basically the same duties since she was secretary.

On June 30, 1999, SSH merged with BancorpSouth, and the plaintiff signed a new employment agreement, with her salary and benefits remaining the same.

On November 3, 1999, the plaintiff met with Tisdale who asked her what her plans were for continuing with SSH. The plaintiff stated that “she had no intention of leaving, and was going to take one day at a time and see


Page 6 of 14


244 F.Supp.2d 678(Cite as: 244 F.Supp.2d 678)

what happens.” (Plaintiff's Deposition, at 89). The plaintiff also discussed with Tisdale his denial of an incentive bonus she had been promised, and requested as she had in the past to be put back on an hourly wage so as to compensate her for the many hours of overtime *682 she had been putting in. She also complained that she had been treated unfairly. The plaintiff also asked Tisdale “if he had ever had this type of conversation with any of the guys and told him that if she were a guy, there would be a secretary sitting out there and we wouldn't be having this conversation.” Tisdale responded by saying “It sounds like you're going to sue me,” and left the meeting angry. (Plaintiff's Deposition, at 92).

On November 4, 1999, the plaintiff was called into John Sneed's office. Sneed, president of SSH, had Tis- dale in the office with him. Sneed told the plaintiff that she had maxed out on the value of her position, and that any additional compensation goals she had would not be met. Sneed told the plaintiff she was to pack her be- longings and leave, but that she would be paid through the end of the year and would receive whatever bonuses she was entitled to. Neither Sneed nor Tisdale ever mentioned anything to the plaintiff about her refusal to commit to SSH at this meeting. The next day, the plaintiff returned and cleaned out her desk. The defendant chose to treat the plaintiff's immediate termination as a leave of absence, and the plaintiff received her salary through the end of 1999, but she did not receive her 5% profit sharing bonus, her 10% incentive bonus or vacation pay.

Retaliation Claim The plaintiff claims that she opposed an unlawful employment practice, and that her employer took an ad-

verse employment action against her because of her protected activity. As stated above, in order to establish a prima facie case of retaliation under Title VII, the plaintiff must establish “(1) that there was statutorily protected participation [in EEO activity], (2) that an adverse employment action occurred, and (3) that there was a causal link between the participation and the adverse employment action.” Whatley v. Metropolitan Atlanta Rap- id Transit, 632 F.2d 1325, 1328 (5th Cir.1980). If a prima facie case is established, the employer bears only the burden of articulating a legitimate, nondiscriminatory business reason for its action, which the plaintiff has the burden of proving is pretextual. See De Anda v. St. Joseph Hospital, 671 F.2d 850, 856 (5th Cir.1982); E.E.O.C. v. MCI Telecommunications Corp., 820 F.Supp. 300, 309 (S.D.Tex.1993). Retaliation must be the determining factor in the defendant's decision to take adverse employment action against the plaintiff. Los Angeles Depart- ment of Water v. Manhart, 435 U.S. 702, 711, 98 S.Ct. 1370, 1377, 55 L.Ed.2d 657 (1978). The discrimination and retaliation laws were not intended to be vehicles for judicial second guessing of employment decisions, nor were they intended to transform the courts into personnel managers. Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1507–08 (5th Cir.1988).

[3] Title VII prohibits retaliation in either of two instances: (1) where the employee has opposed any unlawful employment practice (“opposition clause”); or (2) where the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing (“participation clause”). 42 U.S.C. § 2000e–3(a). Since Callahan did not instigate any proceedings based on her grievance and did not testify, assist, or participate in an investigation, her allegations fall under the opposition clause. Aldridge v. Tougaloo College, 847 F.Supp. 480, 483 (S.D.Miss.1994). Although the elements of a retaliation claim under both clauses are the same, the courts have generally granted less protection for activity falling under the opposition clause. Id.

The plaintiff alleges that at a meeting with Wayne Tisdale on November 3, 1999, *683 she asked him “if he had ever had this type of conversation with any of the guys and told him that if she were a guy, there would be a secretary sitting out there and we wouldn't be having this conversation.” Tisdale allegedly responded by saying “It sounds like you're going to sue me,” and left the meeting angry. (Plaintiff's Deposition, at 92). At the meeting, the plaintiff and Tisdale had discussed the plaintiff's plans for continuing in her present employment. The


Page 7 of 14


Title VII prohibits retaliation in either of two instances: (1) where the employee has opposed any unlaw-[ ] p ( ) p y pp yful employment practice (“opposition clause”); or (2) where the employee has made a charge, testified, assisted,p y p ( pp ); ( ) p y g , , ,or participated in any manner in an investigation, proceeding, or hearing (“participation clause”). 42 U.S.C. § p p2000e–3(a).


plaintiff stated that “she had no intention of leaving, and was going to take one day at a time and see what happens.” (Plaintiff's Deposition, at 89). The plaintiff also discussed with Tisdale “his denial of an incentive bonus she had been promised, and requested as she had in the past to be put back on an hourly wage so as to compensate her for the many hours of overtime she had been putting in. She also complained that she had been treated unfairly.” (Plaintiff's Brief, at 3).

[4] The Court has already established that Callahan did not engage in protected behavior under the participation clause. The threshold question, then, is whether Callahan engaged in protected behavior under the opposition clause. The prohibition of retaliation protects employees who use informal methods to voice their complaints, as well as those who file formal charges.

Such informal means include “making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges.” [ Sumner v. United State Postal Serv., 899 F.2d 203, 209 (2d Cir.1990).] However, an employee's statement cannot be deemed to be in opposition to an unlawful employment practice unless it refers to and opposes a specific practice of the employer. See Dupont–Lauren v. Schneider, Inc., 994 F.Supp. 802, 823 (S.D.Tex.1998) (holding employee's statement did not constitute opposition where she made vague comments that failed to apprize employer of any particular practices she viewed as discriminatory or unlawful, nor did she accuse any particular co-worker or supervisor of discrimination). At the very least, if the statement does not mention a specific act of discrimination, the employer must be able to discern from the context of the statement that the employee opposes an allegedly unlawful employment practice. See EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1012–13 (9th Cir.1983) (finding employee engaged in protected activity where he issued a letter accusing his employer of “racism” and “discrimination” because the allegedly unlawful employment practices protested by the employee could be discerned from the context of the letter).

Erlinger v. Denamerica Corp., 2000 WL 537346 *4 (N.D.Tex. May 3, 2000).

[5] In the instant case, the plaintiff has failed to show how she “opposed” a violation of Title VII. Although

express complaints to supervisors about perceived discriminatory practices constitute protected activity,

the “wide range” of protected activity clearly does not include those situations where the opposition relates not to unlawful employment practices but to a personal grievance .... Employees often do not speak with the clarity or precision of lawyers. At the same time, however, employers need not approach every employee's comment as a riddle, puzzling over the possibility that it contains a cloaked complaint of discrimination. But the thrust of inartful, subtle, or circumspect remarks nevertheless may be perfectly clear to the employer, *684 and the Court discerns no evidence that Congress intended to protect only the impudent or articulate. The relevant question, then, is not whether a formal accusation of discrimination is made but whether the employee's communications to the employer sufficiently convey the employee's reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner.

Garcia–Paz v. Swift Textiles, Inc., 873 F.Supp. 547, 559–60 (D.Kan.1995) (citations and parentheticals

omitted).

According to the plaintiff, at the November 3, 1999, meeting with Tisdale she complained to him about his denial of an incentive bonus she had been promised. She also requested to be put back on an hourly wage so that she would be eligible for overtime compensation. The plaintiff also complained that she had been “treated unfairly.” Nowhere in her deposition testimony or brief does she allege that she complained specifically about


Page 8 of 14



gender-based discrimination, except for the cryptic remark, “I said if I had been a guy that there would be a secretary sitting out there and we wouldn't be having this conversation.”

The plaintiff does not allege that in her remarks to Tisdale she attributed his or anyone else's decisions regarding bonuses or overtime to gender-based discrimination, nor does she allege that male employees were treated more favorably in this regard. Her remark concerning the secretary seems to imply that she was not given a secretary because she was female. However, it is undisputed that in proposing the creation of her position to her employer in July of 1998, Callahan requested clerical help rather than a secretary, and that she was in the process of training her clerical help at the time of her meeting with Tisdale. (Plaintiff's Deposition, at 92, and Exhibit 9 thereto).

The Court concludes that the plaintiff's complaint to her employer was not a statutorily protected expression sufficient to support her Title VII retaliation claim. In Aldridge, the court held:

Nowhere in the above grievance does plaintiff protest any form of sex discrimination. Her grievance does not even mention that a male was hired for this position. Instead, her grievance complains that the job vacancy was not properly noticed and that Mrs. Lee had treated her unfairly in certain respects. Plaintiff, then, has not met the first element—statutorily protected expression—of her prima facie case. Her grievance had nothing to do with alleged sex discrimination by Tougaloo College.

847 F.Supp. at 484–85; see also Primes v. Reno, 999 F.Supp. 1007, 1016 (N.D.Ohio 1998) (vague sugges-

tions of racism as one possible explanation of what plaintiff perceived as a poor evaluation was insufficient to constitute “opposition” under Title VII and could not form basis for retaliation claim); Booker v. Brown & Willi- amson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir.1989) (employee's allegation in letter that charges against him were a result of “ethnocism” and that supervisor may be a racist was “vague charge of discrimination” insufficient to constitute “opposition” under state statute patterned after Title VII).

Nor does the Court find that a reasonable person in Tisdale's position would have understood that Callahan was threatening a gender-based discrimination lawsuit. The conversation, as related by the plaintiff, contains insufficient indicia that she was protesting unlawful employment practices under Title VII. The only mention of a lawsuit is alleged to have been made by Tisdale, not by the plaintiff herself. The remark logically could have been in reference to a lawsuit for breach of *685 employment contract rather than one for discrimination under Title VII. As the Booker court explained:

An employee may not invoke the protections of the Act by making a vague charge of discrimination. Other- wise, every adverse employment decision by an employer would be subject to challenge under either state or federal civil rights legislation simply by an employee inserting a charge of “discrimination.” In our view, such would constitute an intolerable intrusion into the workplace.

879 F.2d at 1313. The Court finds that the plaintiff has failed to present a genuine issue of material fact re-

garding a critical element of her retaliation claim. She has not shown statutorily protected conduct that would entitle her to Title VII protection from retaliation. Thus, she cannot establish a prima facie case, and the defendant is entitled to summary judgment.

Overtime Claim [6] As noted above, the FLSA generally requires overtime compensation of one and one-half times the regu-

lar rate of pay for time worked in excess of forty hours per workweek for certain employees. See 29 U.S.C. §


Page 9 of 14



207. Under the FLSA's enforcement provisions, employers violating the Act may be required to pay uncompensated overtime, together with civil penalties and liquidated damages. See 29 U.S.C. § 216. However, the minimum wage and maximum hour requirements of 29 U.S.C. §§ 206 and 207 do not apply to “any employee employed in a bona fide executive, administrative, or professional capacity ... or in the capacity of an outside salesman.” 29 U.S.C. § 213.

The plaintiff filed her complaint on January 10, 2001. Absent a wilful violation, the plaintiff's overtime claims are limited to the period beginning January 10, 1999 (two years before the filing of the complaint), and ending November 4, 1999 (the plaintiff's last day of work). The plaintiff has not shown a wilful violation by the defendant. From August 1, 1998, until November 4, 1999, the plaintiff was manager of TPA, the entity responsible for administering operations of the Workers' Compensation Fund, with a salary of $38,000. Her duties were set forth in a letter to the plaintiff from Tisdale dated September 3, 1998, entitled “Job Description,” which was attached to the plaintiff's employment agreement. The plaintiff's duties were described as follows:

RESPONSIBILITIES: To manage Thompson Plan Administrators which currently only performs work for the AGC Workers Compensation Fund, Inc. dba CompTrust AGC. You will be responsible for all aspects of the operation of this program to include marketing, administration of TPA, billing & collecting etc. You will report to me, I will assist you in management of the account through the Board of Directors. I will coordinate with SRS on the placement of the excess reinsurance and any other matters that are appropriate.

You will perform all normal underwriting functions, referring to Chuck McKinley only matters of exception. Chuck will remain on the investment committee of the Fund, but all other administrative duties will primarily be your responsibility. Chuck will back you up and assist in the event you need help.

Michelle will report directly to you, and you will jointly prepare her annual review with Chuck.

(Exhibit 11 to Plaintiff's Deposition).

The plaintiff stated that as manager of TPA, her duties were to prepare all the reports to Chuck McKinley

and Wayne Tisdale, and assure the efficient operation of the fund and activities of the fund. (Plaintiff's Depos- ition, at 29). Part of the *686 plaintiff's job was to market the AGC fund to sales agents located at the forty-three insurance companies in the State of Mississippi. (Id. at 31). The plaintiff attended state agent functions to promote the fund. (Id.). The plaintiff also marketed the fund to contractors who might become interested in becoming members of the fund, and to sales agents who might be interested in selling the coverage. (Id.). The majority of the time, this was done from the plaintiff's office; however, at times she had to go out to do marketing activities. (Id.). As TPA manager, the plaintiff performed additional duties, which she had previously performed while she was a Sales and Public Relations director and producer, including:

General Sales

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Page 10 of 14



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AGC Workers' Compensation Fund:

Coordination of all arrangements on board meetings, annual meetings, conventions, seminars, receptions and workshops

AGC WCF Safety Committee; coordination of all Safety Committee activities

Convention/Annual Meeting

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(Plaintiff's Deposition, at 32–33, and Exhibit 3 thereto). The plaintiff also trained and supervised clerical

employees Michelle Burger and her replacement, Megan Chambers. (Id. at 36).

In Lott v. Howard Wilson Chrysler–Plymouth, Inc., 203 F.3d 326 (5th Cir.2000), the Fifth Circuit Court of Appeals held:

An administrative employee is an employee whose primary duty consists of office or nonmanual work directly related to management policies or general business operations for the employer or the employer's customers, which includes work requiring the exercise of discretion and independent judgment. 29 C.F.R. §§ 541.2(e)(2), 541.2(e)(1).

Id. at 331. Elsewhere, the Fifth Circuit has defined the term “primary duty” to mean that over 50% of the

employee's time must be spent performing exempt work. Paul v. Petroleum Equipment Tools Co., 708 F.2d 168, 170 (5th Cir.1983) (citing 29 C.F.R. § 541.103). The court in Lott found that the plaintiff was exempt as an administrative employee where her “primary responsibilities consisted of office work directly related to the general business operations of [her employer].” Lott, 203 F.3d at 331. Lott's duties were comparable to those of the plaintiff in this case:

Lott was responsible for the preparation of all payrolls, monthly sales tax returns, monthly workers' compensation returns, monthly state withholding returns, quarterly payroll tax returns, quarterly state *687 and federal tax estimates, state unemployment returns, the reconciliation of several bank statements and month-end financial statements. Ms. Lott exercised discretion and independent judgment with regard to when such returns, re-


Page 11 of 14



ports and other statements were generated.

Id.

From an examination of the plaintiff's primary duties, the Court finds that Callahan was engaged in office work directly related to the general business operations of her employer, requiring the exercise of discretion and independent judgment in the management of the TPA fund, including marketing, administration, underwriting, billing and collecting; thus, she was an exempt employee pursuant to the administrative exemption of the FLSA.

The plaintiff argues that she was not an exempt administrative employee because she was under the direction and supervision of Wayne Tisdale and/or Chuck McKinley, and was not allowed to exercise discretion or independent judgment. She also asserts that her duties as manager of TPA were the same duties she had performed while she held the title of Sales and Public Relations Coordinator from January 1995 to October 1997. She also asserts that she had assisted in performing some of the same duties as Wayne Tisdale's secretary, a non- exempt hourly employee position she held from April 1993 to January 1995.

The plaintiff submits her own affidavit, and that of Sheryl Doyle, a former secretary to Sneed and Tisdale, to the effect that she did not have independent authority to use discretion or independent judgment. However, these conclusory allegations are not supported by the record. As the Seventh Circuit Court of Appeals held in Haywood v. North American Van Lines, Inc., 121 F.3d 1066 (7th Cir.1997):

The fact that [the plaintiff] had supervisors who reviewed her work does not defeat her exempt status under the FLSA. Section 541.207(e) provides:

The term “discretion and independent judgment” as used in the regulations ... does not necessarily imply that the decisions made by the employee must have a finality that goes with unlimited authority and a complete absence of review. The decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than he actual taking of action. 29 C.F.R. § 541.207(e)(1).

Id. at 1073. Section 541.207(2) additionally provides:

The regulations ... contemplate the kind of discretion and independent judgment exercised by an administrative assistant to an executive, who without specific instructions or prescribed procedures, arranges interviews and meetings, and handles callers and meetings himself where the executive's personal attention is not required.

29 C.F.R. § 541.207(2).

In fact, at her deposition, the plaintiff stated:

[by plaintiff]

... with my responsibilities in the AGC, I not only did all the clerical aspects, but I assumed the responsibilities that Wayne and Chuck had previously, a majority of them.

[by Mr. Miller]

So you're comparing—for your equal pay claim, you're comparing yourself to Wayne Tisdale and Chuck


Page 12 of 14



McKinley with respect to the time period in 1998 that you were performing the sales/public relations/TPA manager duties?

[by plaintiff]

*688 I'm relating it to—none of us sold the fund. Wayne did because he was the producer for Stew- art–Sneed–Hewes and he had clients that were in the fund. I promoted the fund, and there was a difference. It was more of a marketing promotion of the fund.

(Plaintiff's Deposition, at 131). The Court finds that the plaintiff's argument that she did not exercise the

kind of discretion and independent judgment required by the FLSA is without merit. Accordingly, the defendant is entitled to summary judgment on the overtime claim.

[7] This case has been before this Court by virtue of the Court's federal question jurisdiction over the plaintiff's Title VII and FLSA claims. The plaintiff is no longer asserting any other federal claims. This leaves only the plaintiff's state law claims for breach of contract. In deciding whether to exercise supplemental jurisdiction over the plaintiffs' state law claims, the Court is guided by 28 U.S.C. § 1367 which gives federal courts jurisdiction over state law claims in limited circumstances:

in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.

28 U.S.C. § 1367(a). Section 1367(c)(3) provides that a district court “may decline to exercise supplemental

jurisdiction over a claim under subsection (a) if ... the district court has dismissed all claims over which it has original jurisdiction.” As the commentary to section 1367(c)(3) explains:

the idea here is that once the crutch is removed—the claim that supports the supplemental jurisdiction of the other claim or claims—the other should not remain for adjudication ....

28 U.S.C.A. § 1367 Practice Commentary. District courts enjoy wide discretion in determining whether to

retain supplemental jurisdiction over state claims once all federal claims are dismissed. Noble v. White, 996 F.2d 797, 799 (5th Cir.1993). In fact, the Fifth Circuit's “general rule is to dismiss state claims when the federal claims to which they are pendent are dismissed.” Parker & Parsley Petroleum v. Dresser Industries, 972 F.2d 580, 585 (5th Cir.1992), citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir.1989); see also Rhyne v. Hender- son County, 973 F.2d 386, 395 (5th Cir.1992).

The Court is guided by the considerations of “judicial economy, convenience, fairness and comity.” Carne- gie–Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). In United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court emphasized that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of the applicable law.”

[8] Because there exists no independent basis of federal jurisdiction, and in the interest of comity, judicial economy, convenience, and fairness to the litigants, the Court exercises its discretion pursuant to 28 U.S.C. § 1367 and declines to exercise supplemental jurisdiction over the plaintiffs' state law claims. The federal claims will therefore be dismissed with prejudice, and this action shall be remanded to the state court. Accordingly,


Page 13 of 14


F.Supp.2d 678 (Cite as: 244 F.Supp.2d 678)

IT IS HEREBY ORDERED that the defendants' motion for summary judgment (docket entry 22) isGRANTED as to the plaintiff's federal claims only. The remainder*689 of this action shall be remanded to theCircuit Court of Harrison County, First Judicial District. S.D.Miss.,2002. Callahan v. Bancorpsouth Ins. Services of Mississippi, Inc. 244 F.Supp.2d 678 Motions, Pleadings and Filings (Back to top) ��1:01CV00062 (Docket) (Feb. 15, 2001) Judges and Attorneys(Back to top) Judges | Attorneys Judges � Bramlette, Hon. David C. III United States District Court, Southern Mississippi Jackson, Mississippi 39201 Litigation History Report | Judicial Motion Report | Judicial Reversal Report | Judicial Expert Challenge Report |Profiler Attorneys Attorneys for Defendant � Miller, Paul O. III Jackson, Mississippi 39211 Litigation History Report | Profiler Attorneys for Plaintiff � Clark, Wynn E. Pascagoula, Mississippi 39568 Litigation History Report | Profiler � Pickett, Jack C. Pascagoula, Mississippi 39567 Litigation History Report | Profiler END OF DOCUMENT


Page 14 of 14


AO 399 (01/09) Waiver of the Service of Summons

UNITED STATES DISTRICT COURTfor the

__________ District of __________

)))))

Plaintiffv. Civil Action No.

Defendant

WAIVER OF THE SERVICE OF SUMMONS

To:(Name of the plaintiff’s attorney or unrepresented plaintiff)

I have received your request to waive service of a summons in this action along with a copy of the complaint,two copies of this waiver form, and a prepaid means of returning one signed copy of the form to you.

I, or the entity I represent, agree to save the expense of serving a summons and complaint in this case.

I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court’sjurisdiction, and the venue of the action, but that I waive any objections to the absence of a summons or of service.

I also understand that I, or the entity I represent, must file and serve an answer or a motion under Rule 12 within60 days from , the date when this request was sent (or 90 days if it was sent outside theUnited States). If I fail to do so, a default judgment will be entered against me or the entity I represent.

Date:Signature of the attorney or unrepresented party

Printed name of party waiving service of summons Printed name

Address

E-mail address

Telephone number

Duty to Avoid Unnecessary Expenses of Serving a Summons

Rule 4 of the Federal Rules of Civil Procedure requires certain defendants to cooperate in saving unnecessary expenses of serving a summonsand complaint. A defendant who is located in the United States and who fails to return a signed waiver of service requested by a plaintiff located inthe United States will be required to pay the expenses of service, unless the defendant shows good cause for the failure.

“Good cause” does not include a belief that the lawsuit is groundless, or that it has been brought in an improper venue, or that the court hasno jurisdiction over this matter or over the defendant or the defendant’s property.

If the waiver is signed and returned, you can still make these and all other defenses and objections, but you cannot object to the absence ofa summons or of service.

If you waive service, then you must, within the time specified on the waiver form, serve an answer or a motion under Rule 12 on the plaintiffand file a copy with the court. By signing and returning the waiver form, you are allowed more time to respond than if a summons had been served.

Southern District of Mississippi

VOGEL DENISE NEWSOME

PAGE KRUGER & HOLLAND, P.A, ET AL.3:12-cv-342 TSL-MTP


06/06/2012

PAGE KRUGER & HOLLAND, P.A.

Certified Mail Return Receipt No. 7006 0100 0000 9901 0081

NOTE: To save cost of litigation Plaintiff provided with "Notice of Lawsuit and Request for Waiver of Service of Summons" and "Waiver of Service of Summons" a document entitled, "Notification Accompanying Waiver of Service of Summons" which she believes contains pertinent information regarding ANSWERING of Complaint - a copy of which is attached to this "Waiver of Service of Summons." EXHIBIT "25"

Search USPS.com or Track Packages

YOUR LABEL NUMBER SERVICE STATUS OF YOUR ITEM DATE & TIME LOCATION FEATURES

70060100000099010081 Delivered June 08, 2012, 1:16 pm FLOWOOD, MS 39232 Certified Mail

Processed throughUSPS Sort Facility

June 07, 2012, 11:45 pm JACKSON, MS 39201

Depart USPS SortFacility

June 07, 2012 CINCINNATI, OH 45235


June 06, 2012, 11:45 pm CINCINNATI, OH 45235

™

USPS.com® - Track & Confirm https://tools.usps.com/go/TrackConfirmAction_input?qtc_tLabels1=7006...

1 of 1 7/9/2012 3:51 PM



__________ District of __________

)))))


Defendant









Address

E-mail address

Telephone number










06/06/2012

THOMAS Y. PAGE












™

USPS.com® - Track & Confirm https://tools.usps.com/go/TrackConfirmAction.action

1 of 1 7/9/2012 4:00 PM



__________ District of __________

)))))


Defendant









Address

E-mail address

Telephone number










06/06/2012

LOUIS G. BAINE III


NOTE: To save cost of litigation Plaintiff provided with "Notice of Lawsuit and Request for Waiver of Service of Summons" and "Waiver of Service of Summons" a document entitled, "Notification Accompanying Waiver of Service of Summons" which she believes contains pertinent information regarding ANSWERING ofComplaint - a copy of which is attached to this "Waiver of Service of Summons." EXHIBIT "27"










™


1 of 1 7/9/2012 4:05 PM



__________ District of __________

)))))


Defendant









Address

E-mail address

Telephone number










06/06/2012

LINDA THOMAS












™


1 of 1 7/9/2012 4:08 PM

EXHIBIT "29"

EXHIBIT "30"

EXHIBIT "31"

EXHIBIT "32"

EXHIBIT "33"

TO: JASON T. MARSH, Esq. and W. THOMAS SILER, JR., Esq. at Fax No. (601) 360-9777 (PHELPS DUNBAR) DATE: July 18, 2012 RE: REQUEST FOR EXPLANATION FOR PHELPS DUNBAR’S/COUNSELS’ KNOWLEDGE OF

CONFLICT OF INTEREST AND DELIBERATE FAILURE TO NOTIFY PARTY(S) OF SAME and GOOD FAITH DEMAND THAT PHELPS DUNBAR WITHDRAW PLEADINGS - Newsome vs. Page Kruger & Holland, et al.; United States District Court – Southern District of Mississippi (Jackson); Civil Action No. 3:12-cv-00342

FROM: Vogel Denise Newsome PLEASE BE ADVISED that Ms. Newsome is demanding that Phelps Dunbar as counsel for the named Defendants (i.e. Page Kruger & Holland P.A., Thomas Y. Page, Louis G. Baine III and Linda Thomas) in the above referenced Lawsuit provide her with an explanation for its/their DELIBERATE failure to notify Ms. Newsome of the CONFLICT-OF-INTEREST which arises with the assignment of Judge Tom S. Lee and his Magistrate Judge F. Keith Ball. Ms. Newsome has found the information in the attached documents VERY DISTURBING and believes that Named Defendants and their Counsel (Phelps Dunbar/W. Thomas Siler Jr./Jason T. Marsh) are practicing before the Court with CRIMINAL intent – i.e. with MALICIOUS forethought, FRIVOLOUSNESS, and reasons known to them - such as for purposes of delay, harassment, hindering proceedings, embarrassment, obstructing the administration of justice, vexatious litigation, increasing the cost of litigation, etc. and other reasons known to Phelps Dunbar/W. Thomas Siler Jr./Jason T. Marsh and their Clients - that are CLEARLY PROHIBITED by Statutes/Laws. Please provide Ms. Newsome with this information by FRIDAY, July 20, 2012. PLEASE BE ADVISED that Ms. Newsome is demanding that Phelps Dunbar as counsel for named Defendants explain its DELIBERATE failure to NOTIFY of Magistrate F. Keith Ball’s relationship – i.e. EMPLOYMENT History – with Phelps Dunbar as well as RECUSAL History of Judge Tom S. Lee and his Magistrate Judge F. Keith Ball because of CONFLICT-OF-INTEREST in matters in which Baker Donelson Bearman Caldwell & Berkowitz have a financial, personal and business interest as is apparent in RECUSAL information attached. Please provide Ms. Newsome with this information by FRIDAY, July 20, 2012. PLEASE BE ADVISED that it is Ms. Newsome’s understanding that additional pleadings (i.e. requesting Staying, etc. of the above reference action) may have been filed. Ms. Newsome will await receipt of these pleadings for review. However, in the meantime this is a GOOD-FAITH DEMAND from Ms. Newsome that Phelps Dunbar/W. Thomas Siler Jr./Jason T. Marsh and/or their Clients (Page Kruger & Holland P.A., Thomas Y. Page, Louis G. Baine III and Linda Thomas) WITHDRAW their pleadings filed in the above referenced lawsuit by FRIDAY, July 20, 2012. Otherwise, Ms. Newsome will move to have any and all future pleadings that are in violation of the Statutes/Laws governing said matters filed by Defendants and their counsel STRICKEN from the record.

Respectfully, Vogel Denise Newsome (via Facsimile)

See ATTACHMENTS

EXHIBIT "34"

U.S. District CourtSouthern District of Mississippi (Jackson)

CIVIL DOCKET FOR CASE #: 3:07-cv-00099-TSL-LRA

CJRA-SU, CLOSED, JURY, LEAD, LRA

Newsome v. Crews et al Assigned to: District Judge Tom S. Lee Referred to: Magistrate Judge Linda R. Anderson Demand: $53,000,000 Cause: 28:1331 Fed. Question: Personal Injury

Date Filed: 02/14/2007 Date Terminated: 12/01/2008 Jury Demand: Plaintiff Nature of Suit: 360 P.I.: Other Jurisdiction: Diversity

PlaintiffVogel Newsome represented by Vogel Newsome

P. O. Box 14731Cincinnati, OH 45250601/885-9536 513/680-2922PRO SE

V.Defendant Melody Crews represented by Grover Clark Monroe , II

DUNBARMONROE, P.A.270 Trace Colony Park, Suite ARidgeland , MS 39157601/898-2073Fax: 601/898-2074Email: [email protected] LEAD ATTORNEYATTORNEY TO BE NOTICED

Benny McCalip May DUNBARMONROE, P.A.270 Trace Colony Park, Suite ARidgeland , MS 39157601/898-2073Fax: 601/898-2074Email: [email protected] TO BE NOTICED

Defendant Spring Lake Apartments LLC represented by Lanny R. Pace

STEEN, DALEHITE & PACEP.O. Box 900Jackson , MS 39205-0900


11/22/2009

EXHIBIT "35"

2008 (DCL) (Entered: 07/01/2008)

07/22/2008 159 MOTION for Extension of Time to File Response/Reply as to 158 Order on Motion for Extension of Time to File, Order on Motion to Stay, by Vogel Newsome (JKM) (Entered: 07/22/2008)

07/22/2008 160 NOTICE OF FILING OF OFFICIAL COMPLAINT WITH THE UNITED STATES LEGISLATURE/UNITED STATES CONGRESS by Vogel Newsome (JKM) (Entered: 07/22/2008)


08/05/2008 162 ORDER granting 159 Motion for Extension of Time to File objection to report and recommendation; objection due by 8/14/08. NO FURTHER EXTENSTIONS WILL BE GRANTED. Signed by District Judge Tom S. Lee on 8/5/08 (LWE) (Entered: 08/05/2008)

08/19/2008 163 Response to Order re 162 ORDER granting 159 Motion for Extension of Time to File objection to report and recommendation; objection due by 8/14/08. NO FURTHER EXTENSTIONS WILL BE GRANTED. Signed by District Judge Tom S. Lee on 8/5/08 (LWE) filed by Vogel Newsome (JKM) (Entered: 08/19/2008)

12/01/2008 164 Memorandum Opinion and Order re 153 REPORT AND RECOMMENDATIONS re 11 MOTION to Dismiss or in the alternative, Motion to Quash filed by William L. Skinner, II, 66 MOTION to Dismiss filed by Malcom McMillan, Hinds County, Mississippi, 16 Amended MOTION to Dismiss or in the aREPORT AND RECOMMENDATIONS re 11MOTION to Dismiss or in the alternative, Motion to Quash filed by William L. Skinner, II, 66 MOTION to Dismiss filed by Malcom McMillan, Hinds County, Mississippi, 16 Amended MOTION to Dismiss or in the a Signed by District Judge Tom S. Lee on 12/1/08 (JKM) (Entered: 12/01/2008)

12/01/2008 165 FINAL JUDGMENT AS SET OUT HEREIN. Signed by District Judge Tom S. Lee on 12/1/08 (JKM) (Entered: 12/01/2008)

12/15/2008 166 NOTICE of Non-Waiver of Constituational Right and Civil Rights, etc. by Vogel Newsome re 165 Judgment (JKM) (Entered: 12/16/2008)


11/22/2009


(601) 969-7054Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

Defendant Dial Equities, Inc. represented by Grover Clark Monroe , II

(See above for address)LEAD ATTORNEYATTORNEY TO BE NOTICED

Benny McCalip May (See above for address)ATTORNEY TO BE NOTICED

Defendant Jon C. Lewisindividually and in his capacity as Constable of Hinds County

represented by Clifford Allen McDaniel , II PAGE, KRUGER & HOLLAND, P.A. P. O. Box 1163Jackson , MS 39215-1163601/420-0333Email: [email protected] TO BE NOTICED

Defendant William L. Skinner, IIindividually and in his capacity as Justice Court Judge

represented by Clifford Allen McDaniel , II (See above for address)ATTORNEY TO BE NOTICED

Defendant Malcom McMillanindividually and in his capacity as Sheriff of Hinds County

represented by J. Lawson Hester PAGE, KRUGER & HOLLAND, P.A. P. O. Box 1163Jackson , MS 39215-1163601/420-0333Fax: 601/420-0033Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED

Clifford Allen McDaniel , II (See above for address)ATTORNEY TO BE NOTICED

Defendant John Does1-26 individually and in their official capacity

Defendant


11/22/2009

Hinds County, Mississippi represented by J. Lawson Hester (See above for address)LEAD ATTORNEYATTORNEY TO BE NOTICED

Clifford Allen McDaniel , II (See above for address)ATTORNEY TO BE NOTICED

Defendant Jane Does1-26 individually and in their official capacity


02/14/2007 1 COMPLAINT against Melody Crews, Spring Lake Apartments LLC, Dial Equities, Inc., Jon C. Lewis, William L. Skinner, II, Malcom McMillan ( Filing fee $ 350 receipt number 17645.) (attachments maintained in court file), filed by Vogel Newsome. (Attachments: # 1 Civil Cover Sheet # 2exhibits# 3 exhibits)(THR, ) (Entered: 02/23/2007)

04/04/2007 2 Change of Address filed by Vogel Newsome, Post Office Box 14731, Cincinnati, Ohio 45250. (Moore, Janet) (Entered: 04/05/2007)

05/01/2007 3 Summons Issued as to Hinds County, Mississippi, Jane Does, Melody Crews, Dial Equities, Inc., Jon C. Lewis, Malcom McMillan, John Does. (Moore, Janet) (Entered: 05/02/2007)

06/06/2007 4 MOTION for Extension of Time to Serve Summons by Vogel Newsome (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit E# 5Exhibit F# 6 Exhibit G# 7 Exhibit H# 8 Exhibit I)(JKM) (Entered: 06/06/2007)

06/06/2007 5 MEMORANDUM in Support re 4 MOTION for Extension of Time to File filed by Vogel Newsome (JKM) (Entered: 06/06/2007)

06/12/2007 6 ORDER granting 4 Motion for Extension of Time to File. Plaintiff given until 9/14/07 to effect service. Signed by Judge James C. Sumner on 6/11/07 (YWJ, ) (Entered: 06/12/2007)

07/12/2007 7 MOTION to Dismiss or Alternatively for Summary Judgment by Spring Lake Apartments LLC (Attachments: # 1 Exhibit List# 2 Exhibit Part 1# 3 Exhibit Part 2# 4 Exhibit part 3# 5 Exhibit part 4# 6 Exhibit part 5# 7 Exhibit part 6# 8 Exhibit part 7# 9 Exhibit part 8# 10 Exhibit part 9# 11 Exhibit part 10# 12Exhibit part 11# 13 Exhibit part 12# 14 Exhibit part 13# 15 Exhibit part 14# 16 Exhibit part 15# 17 Exhibit part 16# 18 Exhibit part 17# 19 Exhibit part 18# 20 Exhibit part 19# 21 Exhibit part 20# 22 Exhibit part 21# 23 Exhibit part 22)(Pace, Lanny) (Entered: 07/12/2007)

07/12/2007 8 MEMORANDUM in Support re 7 MOTION to Dismiss or Alternatively for Summary Judgment filed by Spring Lake Apartments LLC (Pace, Lanny)


11/22/2009

(Entered: 07/12/2007)

07/13/2007 9 MOTION for Bond by Hinds County, Mississippi, Malcom McMillan (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5Exhibit E# 6 Exhibit F)(McDaniel, Clifford) (Entered: 07/13/2007)

07/13/2007 10 MOTION to Stay by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) (Entered: 07/13/2007)

07/16/2007 11 MOTION to Dismiss or in the alternative, Motion to Quash by William L. Skinner, II (Attachments: # 1 Exhibit A)(McDaniel, Clifford) (Entered: 07/16/2007)

07/16/2007 12 ANSWER to Complaint by Hinds County, Mississippi, Malcom McMillan.(McDaniel, Clifford) (Entered: 07/16/2007)

07/16/2007 13 MOTION to Dismiss by Jon C. Lewis (McDaniel, Clifford) (Entered: 07/16/2007)

07/17/2007 14 NOTICE of Appearance by J. Lawson Hester on behalf of Hinds County, Mississippi, Malcom McMillan (Hester, J.) (Entered: 07/17/2007)

07/17/2007 15 ATTACHMENT re 11 MOTION to Dismiss or in the alternative, Motion to Quash by William L. Skinner, II (McDaniel, Clifford) (Entered: 07/17/2007)

07/17/2007 16 Amended MOTION to Dismiss or in the alternative Motion to Quash by Jon C. Lewis (Attachments: # 1 Exhibit A# 2 Exhibit B)(McDaniel, Clifford) (Entered: 07/17/2007)

07/20/2007 17 NOTICE of Appearance by Grover Clark Monroe, II on behalf of Melody Crews, Dial Equities, Inc. (Monroe, Grover) (Entered: 07/20/2007)

07/20/2007 18 NOTICE of Appearance by Benny McCalip May on behalf of Melody Crews, Dial Equities, Inc. (May, Benny) (Entered: 07/20/2007)

07/26/2007 19 MOTION for Extension of Time to File Answer re 1 Complaint, by Melody Crews, Dial Equities, Inc. (May, Benny) (Entered: 07/26/2007)

07/27/2007 Text Only ORDER granting 19 Motion for Extension of Time to Answer. Melody Crews answer due 8/15/2007; Dial Equities, Inc. answer due 8/15/2007. NO WRITTEN ORDER WILL ISSUE. Signed by Judge James C. Sumner on July 27, 2007 (CSF) (Entered: 07/27/2007)

07/27/2007 20 Joinder by Spring Lake Apartments LLC to 9 MOTION for Bond filed by Malcom McMillan, Hinds County, Mississippi (Pace, Lanny) (Entered: 07/27/2007)

07/27/2007 21 Joinder by Spring Lake Apartments LLC to 10 MOTION to Stay filed by Malcom McMillan, Hinds County, Mississippi (Pace, Lanny) (Entered: 07/27/2007)

08/01/2007 22 MOTION for Joinder in Motion for Stay of Proceedings by Melody Crews, Dial Equities, Inc. (Monroe, Grover) (Entered: 08/01/2007)

08/01/2007 23 MOTION for Joinder in Motion for Security of Costs and Separate Motion for


11/22/2009

07/13/2007 9 MOTION for Bond by Hinds County, Mississippi, Malcom McMillan y y, pp ,(Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5(Exhibit E# 6 Exhibit F)(McDaniel, Clifford) (Entered: 07/13/2007)

07/17/2007 16 Amended MOTION to Dismiss or in the alternative Motion to Quash by JonQ yC. Lewis (Attachments: # 1 Exhibit A# 2 Exhibit B)(McDaniel, Clifford) ((Entered: 07/17/2007)

07/16/2007 13 MOTION to Dismiss by Jon C. Lewis (McDaniel, Clifford) (Entered:07/16/2007)

07/16/2007 11 MOTION to Dismiss or in the alternative, Motion to Quash by William L., Q ySkinner, II (Attachments: # 1 Exhibit A)(McDaniel, Clifford) (Entered: , (07/16/2007)

07/17/2007 15 ATTACHMENT re 11 MOTION to Dismiss or in the alternative, Motion to,Quash by William L. Skinner, II (McDaniel, Clifford) (Entered: 07/17/2007)

07/27/2007 20 Joinder by Spring Lake Apartments LLC to 9 MOTION for Bond filed byy p g pMalcom McMillan, Hinds County, Mississippi (Pace, Lanny) (Entered:07/27/2007)

08/01/2007 23 MOTION for Joinder in Motion for Security of Costs and Separate Motion for

Security of Attorney Fees by Melody Crews, Dial Equities, Inc. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)(Monroe, Grover) (Entered: 08/01/2007)

08/02/2007 DOCKET ANNOTATION as to #23 Attorney to refile as 2 separate pleadings. Motion for Joiner and Motion for Security of Attorney Fees. (JKM) (Entered: 08/02/2007)

08/02/2007 24 MOTION for Attorney Fees (Security of) by Melody Crews, Dial Equities, Inc. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)(Monroe, Grover) (Entered: 08/02/2007)

08/06/2007 25 MOTION to Strike 10 MOTION to Stay, 9 MOTION for Bond by Vogel Newsome (JKM) (Entered: 08/08/2007)

08/06/2007 26 MEMORANDUM in Support re 25 MOTION to Strike 10 MOTION to Stay, 9 MOTION for Bond filed by Vogel Newsome (JKM) (Entered: 08/08/2007)

08/06/2007 27 MOTION to Strike 7 MOTION to Dismiss or Alternatively for Summary Judgment by Vogel Newsome (JKM) (Entered: 08/08/2007)

08/06/2007 28 MOTION to Strike 23 MOTION for Joinder in Motion for Security of Costs and Separate Motion for Security of Attorney Fees, 22 MOTION for Joinder in Motion for Stay of Proceedings by Vogel Newsome (JKM) (Entered: 08/08/2007)

08/06/2007 29 RESPONSE in Opposition re 19 MOTION for Extension of Time to File Answer re 1 Complaint, filed by Vogel Newsome (JKM) (Entered: 08/08/2007)

08/06/2007 31 MOTION to Strike 11 MOTION to Dismiss or in the alternative, Motion to Quash, 13 MOTION to Dismiss by Vogel Newsome (JKM) (Entered: 08/08/2007)

08/06/2007 32 MEMORANDUM in Support re 31 MOTION to Strike 11 MOTION to Dismiss or in the alternative, Motion to Quash, 13 MOTION to Dismiss filed by Vogel Newsome (JKM) (Entered: 08/08/2007)

08/06/2007 33 MEMORANDUM in Support re 28 MOTION to Strike 23 MOTION for Joinder in Motion for Security of Costs and Separate Motion for Security of Attorney Fees, 22 MOTION for Joinder in Motion for Stay of Proceedingsfiled by Vogel Newsome (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5)(JKM) (Entered: 08/08/2007)

08/06/2007 34 SUMMONS Returned Executed by Vogel Newsome. Melody Crews served on 7/8/2007, answer due 7/28/2007. (JKM) (Entered: 08/08/2007)

08/06/2007 35 SUMMONS Returned Executed by Vogel Newsome. Spring Lake Apartments LLC served on 6/22/2007, answer due 7/12/2007. (JKM) (Entered: 08/08/2007)

08/06/2007 36 SUMMONS Returned Executed by Vogel Newsome. Jon C. Lewis served on 6/21/2007, answer due 7/11/2007. (JKM) (Entered: 08/08/2007)

08/06/2007 37 SUMMONS Returned Executed by Vogel Newsome. William L. Skinner, II served on 6/21/2007, answer due 7/11/2007. (JKM) (Entered: 08/08/2007)


11/22/2009

08/06/2007 25 MOTION to Strike 10 MOTION to Stay, 9 MOTION for Bond by Vogel yNewsome (JKM) (Entered: 08/08/2007)

08/06/2007 26 MEMORANDUM in Support re 25 MOTION to Strike 10 MOTION to Stay,pp y,9 MOTION for Bond filed by Vogel Newsome (JKM) (Entered: 08/08/2007)

08/06/2007 28 MOTION to Strike 23 MOTION for Joinder in Motion for Security of Costs f y fand Separate Motion for Security of Attorney Fees, 22 MOTION for Joinder p f y f y ,in Motion for Stay of Proceedings by Vogel Newsome (JKM) (Entered:f08/08/2007)

08/06/2007 31 MOTION to Strike 11 MOTION to Dismiss or in the alternative, Motion to,Quash, 13 MOTION to Dismiss by Vogel Newsome (JKM) (Entered: Q ,08/08/2007)

08/06/2007 32 MEMORANDUM in Support re 31 MOTION to Strike 11 MOTION to ppDismiss or in the alternative, Motion to Quash, 13 MOTION to Dismiss filed , Q ,by Vogel Newsome (JKM) (Entered: 08/08/2007)

08/06/2007 33 MEMORANDUM in Support re 28 MOTION to Strike 23 MOTION for ppJoinder in Motion for Security of Costs and Separate Motion for Security of f y f p f y fAttorney Fees, 22 MOTION for Joinder in Motion for Stay of Proceedingsy , f y f gfiled by Vogel Newsome (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit y g (3# 4 Exhibit 4# 5 Exhibit 5)(JKM) (Entered: 08/08/2007)

y answer due 7/11/2007.

Jon C. Lewis served

William L. Skinner, IIserved o

y g answer due 7/11/2007.

Security of Attorney Fees by Melody Crews, Dial Equities, Inc. (Attachments: y f y y y , q , (# 1 Exhibit # 2 Exhibit # 3 Exhibit)(Monroe, Grover) (Entered: 08/01/2007)

08/02/2007 24 MOTION for Attorney Fees (Security of) by Melody Crews, Dial Equities,y ( y f) y y , qInc. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)(Monroe, Grover)((Entered: 08/02/2007)

08/06/2007 38 SUMMONS Returned Executed by Vogel Newsome. Malcom McMillan served on 6/23/2007, answer due 7/13/2007. (JKM) (Entered: 08/08/2007)

08/06/2007 39 SUMMONS Returned Executed by Vogel Newsome. Hinds County, Mississippi served on 6/25/2007, answer due 7/15/2007. (JKM) (Entered: 08/08/2007)

08/08/2007 30 ATTACHMENT re 24 MOTION for Attorney Fees (Security of)Supplemental Evidence in Support of Motion for Security of Attorney Fees by Melody Crews, Dial Equities, Inc. (Attachments: # 1 Exhibit)(Monroe, Grover) (Entered: 08/08/2007)

08/09/2007 40 Second MOTION for Extension of Time to File Answer by Melody Crews, Dial Equities, Inc. (May, Benny) (Entered: 08/09/2007)

08/13/2007 41 ORDER denying 28 Motion to Strike ; granting 40 Motion for Extension of Time to Answer ; granting 9 Motion for Bond; granting 10 Motion to Stay; granting 22 Motion for Joinder; granting 23 Motion for Joinder; denying 24Motion for Attorney Fees; denying 25 Motion to Strike. Case is stayed until Plaintiff posts bond required by Order. Answer for Crews and Dial Equities due fifteen days after Plaintiff posts bond required by Order. Signed by Judge James C. Sumner on 8/13/07 (YWJ, ) (Entered: 08/13/2007)

08/16/2007 42 MOTION to Strike by Vogel Newsome (JKM) (Entered: 08/16/2007)

08/17/2007 TEXT ONLY ORDER finding as moot 42 Motion to Strike Signed by Judge James C. Sumner on August 17, 2007. NO FURTHER WRITTEN ORDER TO ENTER. (DCL, ) (Entered: 08/17/2007)

08/22/2007 43 Summons Returned Unexecuted by Vogel Newsome as to Dial Equities, Inc.. (JKM) (Entered: 08/23/2007)

08/22/2007 44 NOTICE OF FILING TO OJECTIONS TO ORDER by Vogel Newsome re 41 Order on Motion to Strike, Order on Motion for Extension of Time to Answer, Order on Motion for Bond, Order on Motion to Stay, Order on Motion for Joinder,Order on Motion for Attorney Fees. (JKM) Modified on 8/24/2007 (JKM). (Entered: 08/23/2007)

08/22/2007 45 Response in Opposition re 40 Second MOTION for Extension of Time to File Answer by Melody Crews, Dial Equities, Inc. (May, Benny) filed by Vogel Newsome (JKM) (Entered: 08/23/2007)

08/22/2007 46 Response in Opposition re 41 ORDER denying 28 Motion to Strike ; granting 40 Motion for Extension of Time to Answer ; granting 9 Motion for Bond; granting 10 Motion to Stay; granting 22 Motion for Joinder; granting 23Motion for Joinder; denying 24 Motion for Attorney Fees; denying 25 Motion to Strike. Case is stayed until Plaintiff posts bond required by Order. Answer for Crews and Dial Equities due fifteen days after Plaintiff posts bond required by Order. Signed by Judge James C. Sumner on 8/13/07 (YWJ, ) filed by Vogel Newsome (Attachments: # 1 Exhibit Part Two)(JKM) (Entered: 08/23/2007)

08/27/2007 47 MOTION to Strike 31 MOTION to Strike 11 MOTION to Dismiss or in the alternative, Motion to Quash, 13 MOTION to Dismiss, 46 Response in


11/22/2009

08/22/2007 44 NOTICE OF FILING TO OJECTIONS TO ORDER by Vogel Newsome rey g41 Order on Motion to Strike, Order on Motion for Extension of Time to,Answer, Order on Motion for Bond, Order on Motion to Stay, Order on , , y,Motion for Joinder,Order on Motion for Attorney Fees. (JKM) Modified on,8/24/2007 (JKM). (Entered: 08/23/2007)

08/22/2007 46 Response in Opposition re 41 ORDER denying 28 Motion to Strike ; grantingp pp y g ; g40 Motion for Extension of Time to Answer ; granting 9 Motion for Bond;; g ggranting 10 Motion to Stay; granting 22 Motion for Joinder; granting 23g g y; g g ; g gMotion for Joinder; denying 24 Motion for Attorney Fees; denying 25 Motion; y g y ; y gto Strike. Case is stayed until Plaintiff posts bond required by Order. Answer y p q yfor Crews and Dial Equities due fifteen days after Plaintiff posts bond required nq y p qby Order. Signed by Judge James C. Sumner on 8/13/07 (YWJ, ) filed byy g y g ( , )Vogel Newsome (Attachments: # 1 Exhibit Part Two)(JKM) (Entered:g08/23/2007)

08/13/2007 41 ORDER denying 28 Motion to Strike ; granting 40 Motion for Extension of y g ; g gTime to Answer ; granting 9 Motion for Bond; granting 10 Motion to Stay;; g g ; g g y;granting 22 Motion for Joinder; granting 23 Motion for Joinder; denying 24g g ; g g ; y gMotion for Attorney Fees; denying 25 Motion to Strike. Case is stayed untily ; y g yPlaintiff posts bond required by Order. Answer for Crews and Dial Equitiesp q y qdue fifteen days after Plaintiff posts bond required by Order. Signed by Judgey p q yJames C. Sumner on 8/13/07 (YWJ, ) (Entered: 08/13/2007)

08/08/2007 30 ATTACHMENT re 24 MOTION for Attorney Fees (Security of)y ( y f)Supplemental Evidence in Support of Motion for Security of Attorney Fees by pp pp f f y f yMelody Crews, Dial Equities, Inc. (Attachments: # 1 Exhibit)(Monroe,y , q ,Grover) (Entered: 08/08/2007)

Opposition,, 32 Memorandum in Support of Motion, 29 Response in Opposition to Motion, 33 Memorandum in Support of Motion, 45 Response in Opposition, 26 Memorandum in Support of Motion by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) (Entered: 08/27/2007)

08/28/2007 48 MOTION for Joinder in Motion to Strike by Melody Crews, Dial Equities, Inc. (Monroe, Grover) (Entered: 08/28/2007)

08/28/2007 49 Joinder by Spring Lake Apartments LLC to 47 MOTION to Strike 31MOTION to Strike 11 MOTION to Dismiss or in the alternative, Motion to Quash, 13 MOTION to Dismiss, 46 Response in Opposition,, 32Memorandum in Support of Motion, 29 Response in Opposition to Motion, 33Memor MOTION to Strike 31 MOTION to Strike 11 MOTION to Dismiss orin the alternative, Motion to Quash, 13 MOTION to Dismiss, 46 Response in Opposition,, 32 Memorandum in Support of Motion, 29 Response in Opposition to Motion, 33 Memor filed by Malcom McMillan, Hinds County, Mississippi (Pace, Lanny) (Entered: 08/28/2007)

08/30/2007 50 MOTION to Strike 48 MOTION for Joinder in Motion to Strike by Vogel Newsome (JKM) (Entered: 08/30/2007)

08/30/2007 51 RESPONSE to Motion re 46 Response in Opposition,, filed by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) (Entered: 08/30/2007)

08/31/2007 52 MOTION to Strike Plaintiff's Motion to Strike at Docket Entry 50 by Melody Crews, Dial Equities, Inc. (Monroe, Grover) (Entered: 08/31/2007)

09/04/2007 53 Joinder by Spring Lake Apartments LLC to 51 Response to Motion filed by Malcom McMillan, Hinds County, Mississippi (Pace, Lanny) (Entered: 09/04/2007)

09/05/2007 54 ORDER OF RECUSAL. Judge James C. Sumner recused. Case reassigned to Judge Linda R. Anderson for all further proceedings Signed by Judge James C. Sumner on September 5, 2007 (CSF) (Entered: 09/05/2007)

09/10/2007 55 Corporate Disclosure Statement by Melody Crews, Dial Equities, Inc. (Monroe, Grover) (Entered: 09/10/2007)

09/10/2007 56 MOTION for Protective Order and to File Under Seal Part of the Rule 7.1 Disclosure Statement by Melody Crews, Dial Equities, Inc. (Monroe, Grover) (Entered: 09/10/2007)

09/11/2007 57 RESPONSE to Motion re 47 MOTION to Strike 31 MOTION to Strike 11MOTION to Dismiss or in the alternative, Motion to Quash, 13 MOTION to Dismiss, 46 Response in Opposition,, 32 Memorandum in Support of Motion, 29 Response in Opposition to Motion, 33 Memor MOTION to Strike 31MOTION to Strike 11 MOTION to Dismiss or in the alternative, Motion to Quash, 13 MOTION to Dismiss, 46 Response in Opposition,, 32Memorandum in Support of Motion, 29 Response in Opposition to Motion, 33Memor filed by Vogel Newsome (JKM) (Entered: 09/11/2007)

09/11/2007 58 RESPONSE to Motion re 48 MOTION for Joinder in Motion to Strike filed by Vogel Newsome (JKM) (Entered: 09/11/2007)


11/22/2009

09/10/2007 56 MOTION for Protective Order and to File Under Seal Part of the Rule 7.1 fDisclosure Statement by Melody Crews, Dial Equities, Inc. (Monroe, Grover) t(Entered: 09/10/2007)

09/05/2007 54 ORDER OF RECUSAL. Judge James C. Sumner recused. Case reassigned to g gJudge Linda R. Anderson for all further proceedings Signed by Judge James g p g g yC. Sumner on September 5, 2007 (CSF) (Entered: 09/05/2007)

09/11/2007 59 RESPONSE to Motion re 49 Joinder filed by Vogel Newsome (JKM) (Entered: 09/11/2007)

09/20/2007 60 REPLY to Response to Motion re 57 Response to Motion,, filed by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) (Entered: 09/20/2007)

09/20/2007 61 Response in Opposition re 51 RESPONSE to Motion re 46 Response in Opposition, filed by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) filed by Vogel Newsome (JKM) Modified on 9/25/2007 (JKM). (Entered: 09/21/2007)

09/20/2007 62 MOTION for Extension of Time to File Response to Defendant Dial Equties, Inc. Motion for Protective Order and to file under seal part of the Rule 7.1 Disclosure Statement by Vogel Newsome (JKM) (Entered: 09/21/2007)

09/21/2007 63 RESPONSE to Motion re 62 MOTION for Extension of Time to File and to Respond to Defendants' Motion for Protective Order and to File Under Seal Part of the Rule 7.1 Disclosure Statement filed by Melody Crews, Dial Equities, Inc. (Monroe, Grover) (Entered: 09/21/2007)

09/21/2007 64 ATTACHMENT re 63 Response to Motion, Exhibit A by Melody Crews, Dial Equities, Inc. (Monroe, Grover) (Entered: 09/21/2007)

09/21/2007 65 ATTACHMENT re 63 Response to Motion, Exhibit B by Melody Crews, Dial Equities, Inc. (Monroe, Grover) (Entered: 09/21/2007)

09/26/2007 66 MOTION to Dismiss by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) (Entered: 09/26/2007)

09/28/2007 67 ORDER REFERRING MOTION: 11 MOTION to Dismiss or in the alternative, Motion to Quash filed by William L. Skinner, II, 52 MOTION to Strike Plaintiff's Motion to Strike at Docket Entry 50 filed by Dial Equities, Inc., Melody Crews, 62 MOTION for Extension of Time to File filed by Vogel Newsome, 31 MOTION to Strike 11 MOTION to Dismiss or in the alternative, Motion to Quash, 13 MOTION to Dismiss filed by Vogel Newsome, 50 MOTION to Strike 48 MOTION for Joinder in Motion to Strikefiled by Vogel Newsome, 66 MOTION to Dismiss filed by Malcom McMillan, Hinds County, Mississippi, 16 Amended MOTION to Dismiss or in the alternative Motion to Quash filed by Jon C. Lewis, 56 MOTION for Protective Order and to File Under Seal Part of the Rule 7.1 Disclosure Statement filed by Dial Equities, Inc., Melody Crews, 47 MOTION to Strike 31 MOTION to Strike 11 MOTION to Dismiss or in the alternative, Motion to Quash, 13MOTION to Dismiss, 46 Response in Opposition,, 32 Memorandum in Support of Motion, 29 Response in Opposition to Motion, 33 Memor MOTION to Strike 31 MOTION to Strike 11 MOTION to Dismiss or in the alternative, Motion to Quash, 13 MOTION to Dismiss, 46 Response in Opposition,, 32 Memorandum in Support of Motion, 29 Response in Opposition to Motion, 33 Memor filed by Malcom McMillan, Hinds County, Mississippi, 13 MOTION to Dismiss filed by Jon C. Lewis, 7 MOTION to Dismiss or Alternatively for Summary Judgment filed by Spring Lake Apartments LLC, 27 MOTION to Strike 7 MOTION to Dismiss orAlternatively for Summary Judgment filed by Vogel Newsome Signed by


11/22/2009

Judge Tom S. Lee on 9/28/07 (LWE) (Entered: 09/28/2007)

10/01/2007 68 MOTION for Joinder to Dismiss by Melody Crews, Dial Equities, Inc. (May, Benny) (Entered: 10/01/2007)

10/02/2007 69 Response in Opposition re 56 MOTION for Protective Order and to File Under Seal Part of the Rule 7.1 Disclosure Statement by Melody Crews, Dial Equities, Inc. (Monroe, Grover) filed by Vogel Newsome (JKM) (Entered: 10/02/2007)

10/03/2007 70 RESPONSE to Motion re 27 MOTION to Strike 7 MOTION to Dismiss orAlternatively for Summary Judgment filed by Spring Lake Apartments LLC (Pace, Lanny) (Entered: 10/03/2007)

10/03/2007 71 Corporate Disclosure Statement by Spring Lake Apartments LLC (Pace, Lanny) (Entered: 10/03/2007)

10/03/2007 72 REPLY to Response to Motion re 69 Response in Opposition to Plaintiff's Objections to Dial Equities Motion for Protective Order and to File Under Seal Part of the Rule 7.1 Disclosure Statement filed by Melody Crews, Dial Equities, Inc. (Monroe, Grover) (Entered: 10/03/2007)

10/09/2007 73 ORDER granting 62 Motion for Extension of Time to Respond to 56 Motion for Protective Order. Extension granted until October 23, 2007. Signed by Judge Linda R. Anderson on 10/9/07 (CC) (Entered: 10/09/2007)

10/10/2007 74 Response to Order re 67 ORDER REFERRING MOTION: 11 MOTION to Dismiss or in the alternative, Motion to Quash filed by William L. Skinner, II, 52 MOTION to Strike Plaintiff's Motion to Strike at Docket Entry 50 filed by Dial Equities, Inc., Melody Crews, 62 MOTION for Extension of Time to File filed by Vogel Newsome, 31 MOTION to Strike 11 MOTION to Dismiss orin the alternative, Motion to Quash, 13 MOTION to Dismiss filed by Vogel Newsome, 50 MOTION to Strike 48 MOTION for Joinder in Motion to Strikefiled by Vogel Newsome, 66 MOTION to Dismiss filed by Malcom McMillan, Hinds County, Mississippi, 16 Amended MOTION to Dismiss orin the alternative Motion to Quash filed by Jon C. Lewis, 56 MOTION for Protective Order and to File Under Seal Part of the Rule 7.1 Disclosure Statement filed by Dial Equities, Inc., Melody Crews, 47 MOTION to Strike 31 MOTION to Strike 11 MOTION to Dismiss or in the alternative, Motion to Quash, 13 MOTION to Dismiss, 46 Response in Opposition,, 32Memorandum in Support of Motion, 29 Response in Opposition to Motion, 33Memor MOTION to Strike 31 MOTION to Strike 11 MOTION to Dismiss orin the alternative, Motion to Quash, 13 MOTION to Dismiss, 46 Response in Opposition,, 32 Memorandum in Support of Motion, 29 Response in Opposition to Motion, 33 Memor filed by Malcom McMillan, Hinds County, Mississippi, 13 MOTION to Dismiss filed by Jon C. Lewis, 7 MOTION to Dismiss or Alternatively for Summary Judgment filed by Spring Lake Apartments LLC, 27 MOTION to Strike 7 MOTION to Dismiss orAlternatively for Summary Judgment filed by Vogel Newsome Signed by Judge Tom S. Lee on 9/28/07 (LWE) filed by Vogel Newsome (JKM) (Entered: 10/10/2007)

10/10/2007 75 MOTION to Strike 74 Response to Order,,,,,,, by Hinds County, Mississippi,


11/22/2009

10/02/2007 69 Response in Opposition re 56 MOTION for Protective Order and to Filep ppUnder Seal Part of the Rule 7.1 Disclosure Statement by Melody Crews, Dial tf y y ,Equities, Inc. (Monroe, Grover) filed by Vogel Newsome (JKM) (Entered:q ,10/02/2007)

10/03/2007 71 Corporate Disclosure Statement by Spring Lake Apartments LLC (Pace,pLanny) (Entered: 10/03/2007)

Malcom McMillan (McDaniel, Clifford) (Entered: 10/10/2007)

10/15/2007 76 RESPONSE to Motion re 66 MOTION to Dismiss filed by Vogel Newsome (THR) (Entered: 10/15/2007)

10/15/2007 77 RESPONSE to Motion re 66 MOTION to Dismiss filed by Vogel Newsome (Attachments: # 1 Exhibit)(THR) (Entered: 10/16/2007)

10/16/2007 DOCKET ANNOTATION as to #76. Inadvertently entered. #74 is the correct filing. (JKM) (Entered: 10/16/2007)

10/16/2007 78 MOTION to Strike 77 Response to Motion by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) (Entered: 10/16/2007)

10/16/2007 79 REPLY to Response to Motion re 70 Response to Motion filed by Vogel Newsome (JKM) (Entered: 10/16/2007)

10/16/2007 80 RESPONSE to Motion re 72 Reply to Response to Motion, filed by Vogel Newsome (JKM) (Entered: 10/16/2007)

10/16/2007 81 RESPONSE to Motion re 68 MOTION for Joinder to Dismiss filed by Vogel Newsome (JKM) (Entered: 10/16/2007)

10/23/2007 82 RESPONSE to Motion re 78 MOTION to Strike 77 Response to Motion filed by Vogel Newsome (Attachments: # 1 Exhibit One# 2 Exhibit Two# 3 Exhibit Three)(JKM) (Entered: 10/23/2007)

10/24/2007 83 REPLY to Response to Motion re 82 Response to Motion filed by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) (Entered: 10/24/2007)

10/25/2007 84 Response to Order re 73 ORDER granting 62 Motion for Extension of Time to Respond to 56 Motion for Protective Order. Extension granted until October 23, 2007. Signed by Judge Linda R. Anderson on 10/9/07 (CC) filed by Vogel Newsome (JKM) (Entered: 10/25/2007)

10/25/2007 85 RESPONSE to Motion re 78 MOTION to Strike 77 Response to Motion filed by Vogel Newsome (JKM) (Entered: 10/25/2007)

10/25/2007 86 REPLY to Response to Motion re 85 Response to Motion filed by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) (Entered: 10/25/2007)

10/29/2007 TEXT ONLY ORDER Setting Hearing on Motion 78 MOTION to Strike 77Response to Motion, 52 MOTION to Strike Plaintiff's Motion to Strike at Docket Entry 50>, 66 MOTION to Dismiss, 16 Amended MOTION to Dismiss or in the alternative Motion to Quash, 27 MOTION to Strike 7MOTION to Dismiss or Alternatively for Summary Judgment, 50 MOTION to Strike 48 MOTION for Joinder in Motion to Strike 13 MOTION to Dismiss, 75 MOTION to Strike 74 Response to Order, 7 MOTION to Dismiss or Alternatively for Summary Judgment, 11 MOTION to Dismiss or in the alternative, Motion to Quash, 31 MOTION to Strike 11 MOTION to Dismiss or in the alternative, Motion to Quash, 13 MOTION to Dismiss, 56 MOTION for Protective Order and to File Under Seal Part of the Rule 7.1 Disclosure


11/22/2009

Statemen>, 68 MOTION for Joinder to Dismiss 47 MOTION to Strike 31MOTION to Strike 11 MOTION to Dismiss or in the alternative, Motion to Quash 13 MOTION to Dismiss, 46 Response in Opposition, 29 Response in Opposition to Motion, 33 MOTION to Strike 31 MOTION to Strike 11MOTION to Dismiss or in the alternative, Motion to Quash 13 MOTION to Dismiss, 46 Response in Opposition,, 32 Memorandum in Support of Motion, 29 Response in Opposition to Motion, 33 Memor : Motion Hearing set for 11/13/2007 at 11:00 AM with Magistrate Judge Linda R. Anderson via telephone conference. Telephone number for conference: 601-965-4528. Plaintiff shall be responsible for initiating the conference call with all counsel and the Court unless otherwise agreed to by all parties. Signed by Judge Linda R. Anderson on October 29, 2007. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. (WG) (Entered: 10/29/2007)

11/05/2007 87 Response to Order - Plaintiff's Objections to re TEXT ONLY ORDER Setting Hearing on Motion 78 MOTION to Strike 77 Response to Motion, 52MOTION to Strike Plaintiff's Motion to Strike at Docket Entry 50>, 66MOTION to Dismiss, 16 Amended MOTION to Dismiss or in the alternative Motion to Quash, 27 MOTION to Strike 7 MOTION to Dismiss or Alternatively for Summary Judgment, 50 MOTION to Strike 48 MOTION for Joinder in Motion to Strike 13 MOTION to Dismiss, 75 MOTION to Strike 74Response to Order, 7 MOTION to Dismiss or Alternatively for Summary Judgment, 11 MOTION to Dismiss or in the alternative, Motion to Quash, 31MOTION to Strike 11 MOTION to Dismiss or in the alternative, Motion to Quash, 13 MOTION to Dismiss, 56 MOTION for Protective Order and to File Under Seal Part of the Rule 7.1 Disclosure Statemen>, 68 MOTION for Joinder to Dismiss 47 MOTION to Strike 31 MOTION to Strike 11 MOTION to Dismiss or in the alternative, Motion to Quash 13 MOTION to Dismiss, 46Response in Opposition, 29 Response in Opposition to Motion, 33 MOTION to Strike 31 MOTION to Strike 11 MOTION to Dismiss or in the alternative, Motion to Quash 13 MOTION to Dismiss, 46 Response in Opposition,, 32Memorandum in Support of Motion, 29 Response in Opposition to Motion, 33Memor : Motion Hearing set for 11/13/2007 at 11:00 AM with Magistrate Judge Linda R. Anderson via telephone conference. Telephone number for conference: 601-965-4528. Plaintiff shall be responsible for initiating the conference call with all counsel and the Court unless otherwise agreed to by all parties. Signed by Judge Linda R. Anderson on October 29, 2007. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. (WG) filed by Vogel Newsome (JKM) Additional attachment(s) added on 11/6/2007 (JKM). (Entered: 11/05/2007)

11/06/2007 88 REPLY to Response to Motion re 87 Response to Order,Plaintiff's Objections to Text Only Order RE Hearing filed by Melody Crews, Dial Equities, Inc. (Attachments: # 1 Exhibit A)(Monroe, Grover) Modified on 11/15/2007 (JKM). (Entered: 11/06/2007)

11/06/2007 89 MOTION to Strike 87 Response to Order, by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) Modified on 11/15/2007 (JKM). (Entered: 11/06/2007)

11/13/2007 90 ORDER: Plaintiff's objections to magistrate's order executed 8/13/07, motion


11/22/2009

11/05/2007 87 Response to Order - Plaintiff's Objections to re TEXT ONLY ORDER Settingp jHearing on Motion 78 MOTION to Strike 77 Response to Motion, 52g p ,MOTION to Strike Plaintiff's Motion to Strike at Docket Entry 50>, 66y ,MOTION to Dismiss, 16 Amended MOTION to Dismiss or in the alternative ,Motion to Quash, 27 MOTION to Strike 7 MOTION to Dismiss or Q ,Alternatively for Summary Judgment, 50 MOTION to Strike 48 MOTION for y y g ,Joinder in Motion to Strike 13 MOTION to Dismiss, 75 MOTION to Strike 74,Response to Order, 7 MOTION to Dismiss or Alternatively for Summaryp , y yJudgment, 11 MOTION to Dismiss or in the alternative, Motion to Quash, 31g , , Q ,MOTION to Strike 11 MOTION to Dismiss or in the alternative, Motion to ,Quash, 13 MOTION to Dismiss, 56 MOTION for Protective Order and to FileQ , ,Under Seal Part of the Rule 7.1 Disclosure Statemen>, 68 MOTION for ,Joinder to Dismiss 47 MOTION to Strike 31 MOTION to Strike 11 MOTIONto Dismiss or in the alternative, Motion to Quash 13 MOTION to Dismiss, 46, Q ,Response in Opposition, 29 Response in Opposition to Motion, 33 MOTIONp pp , p pp ,to Strike 31 MOTION to Strike 11 MOTION to Dismiss or in the alternative,Motion to Quash 13 MOTION to Dismiss, 46 Response in Opposition,, 32Q , p pp ,,Memorandum in Support of Motion, 29 Response in Opposition to Motion, 33pp , p ppMemor : Motion Hearing set for 11/13/2007 at 11:00 AM with Magistrateg gJudge Linda R. Anderson via telephone conference. Telephone number for g p pconference: 601-965-4528. Plaintiff shall be responsible for initiating thep gconference call with all counsel and the Court unless otherwise agreed to bygall parties. Signed by Judge Linda R. Anderson on October 29, 2007. NO p g y g ,FURTHER WRITTEN ORDER SHALL BE ISSUED. (WG) filed by Vogel( ) yNewsome (JKM) Additional attachment(s) added on 11/6/2007 (JKM). ( )(Entered: 11/05/2007)

11/13/2007 90 ORDER: Plaintiff's objections to magistrate's order executed 8/13/07, motion

to vacate/set aside/expunge order; motion for findings and memorandum of law in support thereof, and jury trial demand are without merit. Accordingly, the order of the magistrate judge is affirmed in all respects. Plaintiff is granted until 12/3/07 to post a $1,000.00 bond and, as stated, all other provisions of the order are declared to be in effect. Signed by Judge Tom S. Lee on 11/13/07 (LWE) (Entered: 11/13/2007)

11/13/2007 Minute Entry for proceedings held before Judge Linda R. Anderson : Motion Hearing held on 11/13/2007 regarding all pending motions filed herein. Participants: Allen McDaniel, counsel for defendant. The Court informed counsel of plaintiff's notice of nonparticipation. Counsel advised the Court of a new complaint that had been filed by plaintiff in this Court and the plaintiff's failure to post a security bond. The Court will proceed to rule on the pending motions. (WG) (Entered: 11/14/2007)

11/14/2007 91 MOTION for Extension of Time to File Response/Reply as to 88 Reply to Response to Motion by Vogel Newsome (JKM) (Entered: 11/14/2007)

11/14/2007 92 NOTICE ON NONPARTICIPATION IN NOVEMBER 13, 2007, HEARING: NON-WAIVER OF RIGHT TO JURY TRIAL ON THE ISSUES IN QUESTION AND NOTICE OF INTENT TO FILE MADAUMUS ACTION by Vogel Newsome (JKM) (Entered: 11/14/2007)

11/14/2007 93 RESPONSE to Motion re 89 MOTION to Strike 87 Response to Order filed by Vogel Newsome (Attachments: # 1 Exhibit I)(JKM) (Entered: 11/14/2007)

11/19/2007 94 NOTICE of Motion to Stay Proceedings by Vogel Newsome (JKM) (Entered: 11/20/2007)

11/19/2007 95 MOTION to Stay by Vogel Newsome (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9)(JKM) (Entered: 11/20/2007)

11/20/2007 96 MEMORANDUM IN SUPPORT re 95 MOTION to Stay filed by Vogel Newsome (JKM) (Entered: 11/20/2007)

11/30/2007 97 RESPONSE to Motion re 95 MOTION to Stay filed by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) (Entered: 11/30/2007)

11/30/2007 98 Joinder by Spring Lake Apartments LLC to 97 Response to Motion filed by Malcom McMillan, Hinds County, Mississippi (Pace, Lanny) (Entered: 11/30/2007)

11/30/2007 99 Joinder by Melody Crews, Dial Equities, Inc. to 97 Response to MOTION filed by Malcom McMillan, Hinds County, Mississippi (Monroe, Grover) Modified on 12/3/2007 (MGB). (Entered: 11/30/2007)

12/11/2007 100 Supplemental MOTION to Dismiss by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) (Entered: 12/11/2007)

12/12/2007 101 Joinder by Spring Lake Apartments LLC to 100 Supplemental MOTION to Dismiss filed by Malcom McMillan, Hinds County, Mississippi (Pace, Lanny) (Entered: 12/12/2007)


11/22/2009

to vacate/set aside/expunge order; motion for findings and memorandum of p g ; glaw in support thereof, and jury trial demand are without merit. Accordingly,pp , j y g y,the order of the magistrate judge is affirmed in all respects. Plaintiff is granted g j g p guntil 12/3/07 to post a $1,000.00 bond and, as stated, all other provisions of p , , , pthe order are declared to be in effect. Signed by Judge Tom S. Lee on g11/13/07 (LWE) (Entered: 11/13/2007)

11/13/2007 Minute Entry for proceedings held before Judge Linda R. Anderson : Motiony p g gHearing held on 11/13/2007 regarding all pending motions filed herein. g g g p gParticipants: Allen McDaniel, counsel for defendant. The Court informed p ,counsel of plaintiff's notice of nonparticipation. Counsel advised the Court of p p pa new complaint that had been filed by plaintiff in this Court and the plaintiff's p y p pfailure to post a security bond. The Court will proceed to rule on the pending p ymotions. (WG) (Entered: 11/14/2007)

11/14/2007 92 NOTICE ON NONPARTICIPATION IN NOVEMBER 13, 2007, HEARING:, ,NON-WAIVER OF RIGHT TO JURY TRIAL ON THE ISSUES INQUESTION AND NOTICE OF INTENT TO FILE MADAUMUS ACTIONQby Vogel Newsome (JKM) (Entered: 11/14/2007)

12/12/2007 102 Joinder by Melody Crews, Dial Equities, Inc. to 100 Supplemental MOTION to Dismiss filed by Malcom McMillan, Hinds County, Mississippi (May, Benny) (Entered: 12/12/2007)

12/13/2007 103 RESPONSE to Motion re 97 Response to Motion filed by Vogel Newsome (JKM) (Entered: 12/17/2007)

12/18/2007 104 MOTION to Strike 101 Joinder, 100 Supplemental MOTION to Dismiss, 102Joinder by Vogel Newsome (JKM) (Entered: 12/19/2007)

12/18/2007 105 MEMORANDUM IN SUPPORT re 104 MOTION to Strike 101 Joinder, 100Supplemental MOTION to Dismiss, 102 Joinder filed by Vogel Newsome (JKM) (Entered: 12/19/2007)

12/18/2007 106 NOTICE OF REQUEST FOR CERTIFICATION by Vogel Newsome re 90Order, (JKM) (Entered: 12/19/2007)

12/18/2007 Remark - Certified copy of record and exhibits checked out to Mr. Moorehead, 633 Northstate Street, Jackson, MS 39209. (JKM) (Entered: 12/19/2007)

12/19/2007 107 RESPONSE to Motion re 104 MOTION to Strike 101 Joinder, 100Supplemental MOTION to Dismiss, 102 Joinder, 105 Memorandum in Support filed by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) (Entered: 12/19/2007)

02/04/2008 108 ORDER denying 95 Motion to Stay Proceedings. Signed by Magistrate Judge Linda R. Anderson on 2/4/08 (CC) (Entered: 02/04/2008)

02/04/2008 109 ORDER denying 104 Motion to Strike 100 Supplemental Motion to Dismiss, 101 Joinder filed by Spring Lake Apartments LLC, and 102 Joinder filed by Melody Crews and Dial Equities, Inc. Signed by Magistrate Judge Linda R. Anderson on 2/4/08 (CC) (Entered: 02/04/2008)

02/19/2008 113 Writ of Continuing Garnishment Issued as to Vogel Newsome. (JKM) (Entered: 02/21/2008)

02/20/2008 110 MOTION for Recusal of Magistrate Judge Anderson by Vogel Newsome (JKM) (Entered: 02/21/2008)

02/20/2008 111 NOTICE OF FILING by Vogel Newsome re 108 Order on Motion to Stay, 109 Order on Motion to Strike (JKM) (Entered: 02/21/2008)

02/20/2008 112 Response in Opposition re 108 ORDER denying 95 Motion to Stay Proceedings. Signed by Magistrate Judge Linda R. Anderson on 2/4/08 (CC), 109 ORDER denying 104 Motion to Strike 100 Supplemental Motion to Dismiss, 101 Joinder filed by Spring Lake Apartments LLC, and 102 Joinder filed by Melody Crews and Dial Equities, Inc. Signed by Magistrate Judge Linda R. Anderson on 2/4/08 (CC) filed by Vogel Newsome (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11Exhibit K, # 12 Exhibit L)(JKM) (Entered: 02/21/2008)

02/20/2008 114 NOTICE OF INTENT TO FILE DISQUALIFICATIONS/RECUSAL


11/22/2009

12/18/2007 106 NOTICE OF REQUEST FOR CERTIFICATION by Vogel Newsome re 90QOrder, (JKM) (Entered: 12/19/2007)

12/18/2007 Remark - Certified copy of record and exhibits checked out to Mr. pyMoorehead, 633 Northstate Street, Jackson, MS 39209. (JKM) (Entered: ,12/19/2007)

02/20/2008 110 MOTION for Recusal of Magistrate Judge Anderson by Vogel Newsomeg(JKM) (Entered: 02/21/2008)

02/20/2008 114 NOTICE OF INTENT TO FILE DISQUALIFICATIONS/RECUSAL

ACTION by Vogel Newsome re 110 MOTION for Recusal (JKM) (Entered: 02/22/2008)

02/21/2008 DOCKET ANNOTATION as to #113. Inadvertently filed in wrong case. (JKM) (Entered: 02/21/2008)

02/23/2008 115 Response in Opposition re 112 Response in Opposition re 108 ORDER denying 95 Motion to Stay Proceedings. Signed by Magistrate Judge Linda R. Anderson on 2/4/08 (CC), 109 ORDER denying 104 Motion to Strike 100Supplemental Motion to Dismiss, 101 Joinder filed by Spring Lake Apartments LLC, and 102 Joinder filed by Melody Crews and Dial Equities, Inc. Signed by Magistrate Judge Linda R. Anderson on 2/4/08 (CC) filed by Vogel Newsome (Attachments: # Exhibit A, # Exhibit B, # Exhibit C, # Exhibit D, # Exhibit E, # Exhibit F, # Exhibit G, # Exhibit H, # Exhibit I, # Exhibit J, # Exhibit K, # Exhibit L)(JKM) filed by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) (Entered: 02/23/2008)

02/23/2008 116 MOTION to Strike 112 Response in Opposition,, by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) (Entered: 02/23/2008)

02/25/2008 117 MOTION for General Relief and, MOTION for Order to Show Cause and for Hearing by Melody Crews (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Monroe, Grover) (Entered: 02/25/2008)

02/25/2008 118 RESPONSE to Motion re 112 Response in Opposition,, filed by Spring Lake Apartments LLC (Attachments: # 1 Exhibit Exhibit 1)(Pace, Lanny) (Entered: 02/25/2008)

02/25/2008 119 Joinder by Melody Crews, Dial Equities, Inc. to 118 Response to Motion filed by Spring Lake Apartments LLC, 116 MOTION to Strike 112 Response in Opposition,, filed by Malcom McMillan, Hinds County, Mississippi, 115Response in Opposition,, filed by Malcom McMillan, Hinds County, Mississippi (May, Benny) (Entered: 02/25/2008)

02/28/2008 120 Joinder by Hinds County, Mississippi, Malcom McMillan to 117 MOTION for General Relief and MOTION for Order to Show Cause and for Hearingfiled by Melody Crews (McDaniel, Clifford) (Entered: 02/28/2008)

03/11/2008 121 Response in Opposition re 117 MOTION for General Relief and, MOTION for Order to Show Cause and for Hearing by Melody Crews (Attachments: # 1 Exhibit A, # Exhibit B)(Monroe, Grover), 116 MOTION to Strike 112Response in Opposition,, by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) filed by Vogel Newsome (JKM) (Additional attachment(s) added on 3/11/2008: # 1 Exhibit 1-16) (JKM). (Entered: 03/11/2008)

03/11/2008 122 MEMORANDUM IN SUPPORT re 121 Response in Opposition, filed by Vogel Newsome (JKM) (Entered: 03/11/2008)

03/12/2008 123 MOTION to Strike 116 MOTION to Strike 112 Response in Opposition,, by Vogel Newsome (Attachments: # 1 Exhibit 1-8)(JKM) (Entered: 03/13/2008)

03/12/2008 124 MEMORANDUM in Support re 123 MOTION to Strike 116 MOTION to Strike 112 Response in Opposition,, filed by Vogel Newsome (JKM) (Entered: 03/13/2008)


11/22/2009

ACTION by Vogel Newsome re 110 MOTION for Recusal (JKM) (Entered: y02/22/2008)

03/13/2008 125 RESPONSE in Opposition re 123 MOTION to Strike 116 MOTION to Strike 112 Response in Opposition,, filed by Hinds County, Mississippi, Malcom McMillan (McDaniel, Clifford) (Entered: 03/13/2008)

03/13/2008 126 ORDER CONSOLIDATING CASES 3:07CV560 AND 3:07CV99 ARE CONSOLIDATED. IT IS FURTHER ORDERED THAT ALL PLEADINGS WILL BE FILED IN LEAD CASE CIVIL ACTION 3:07cv99. Signed by District Judge William H. Barbour, Jr on 3/13/08 (JKM) (Entered: 03/13/2008)

03/13/2008 127 RESPONSE to Motion re 121 Response in Opposition, and Reply to Plaintiff's Objection, Etc. to Motion for Show Cause Hearing and For General Relieffiled by Melody Crews (Monroe, Grover) (Entered: 03/13/2008)

03/14/2008 128 RESPONSE in Opposition re 123 MOTION to Strike 116 MOTION to Strike 112 Response in Opposition filed by Vogel Newsome (Attachments: # 1Exhibit)(THR) (Entered: 03/18/2008)

03/14/2008 129 MOTION for Sanctions by Vogel Newsome (this motion has the same PDF as #128) (Attachments: # 2 Exhibit)(THR) ( Modified on 3/19/2008 to add correct PDF(SEC). on 3/19/2008: # 3 Main Document) (SEC). (Entered: 03/18/2008)

03/14/2008 130 MEMORANDUM in Support re 128 Response in Opposition to Motion, 129MOTION for Sanctions filed by Vogel Newsome (THR) (Entered: 03/18/2008)

03/14/2008 131 MOTION to Strike statements and meterials of defendant Spring Lake Apartments, LLC by Vogel Newsome (THR) (Entered: 03/18/2008)

03/14/2008 132 MEMORANDUM IN SUPPORT re 131 MOTION to Strike filed by Vogel Newsome (THR) (Entered: 03/18/2008)

03/17/2008 TEXT ONLY ORDER hereby relieving any and all Defendants in this cause of the requirement of Uniform Local Rule 7.2(C). By Order of this Court, Defendants shall not be required to respond to any pending or future pleadings or filings by pro se Plaintiff, Vogel Newsome, unless otherwise directed by the Court. Signed by Magistrate Judge Linda R. Anderson on 3/17/08. NO FURTHER WRITTEN ORDER SHALL FOLLOW. (CC) Modified on 3/17/2008 (CC). (Entered: 03/17/2008)

03/25/2008 133 Response in Opposition re 126 ORDER CONSOLIDATING CASES 3:07CV560 AND 3:07CV99 ARE CONSOLIDATED. IT IS FURTHER ORDERED THAT ALL PLEADINGS WILL BE FILED IN LEAD CASE CIVIL ACTION 3:07cv99. Signed by District Judge William H. Barbour, Jr on 3/13/08 (JKM) filed by Vogel Newsome (JKM) (Entered: 03/25/2008)


03/25/2008 135 Response in Opposition re 126 ORDER CONSOLIDATING CASES 3:07CV560 AND 3:07CV99 ARE CONSOLIDATED. IT IS FURTHER ORDERED THAT ALL PLEADINGS WILL BE FILED IN LEAD CASE CIVIL ACTION 3:07cv99. Signed by District Judge William H. Barbour, Jr


11/22/2009

03/17/2008 TEXT ONLY ORDER hereby relieving any and all Defendants in this causey g yof the requirement of Uniform Local Rule 7.2(C). By Order of this Court, q ( ) y ,Defendants shall not be required to respond to any pending or future pleadingsq p y p g por filings by pro se Plaintiff, Vogel Newsome, unless otherwise directed byg y p , g , ythe Court. Signed by Magistrate Judge Linda R. Anderson on 3/17/08. NOg y g gFURTHER WRITTEN ORDER SHALL FOLLOW. (CC) Modified on3/17/2008 (CC). (Entered: 03/17/2008)

03/25/2008 133 Response in Opposition re 126 ORDER CONSOLIDATING CASES p pp3:07CV560 AND 3:07CV99 ARE CONSOLIDATED. IT IS FURTHER ORDERED THAT ALL PLEADINGS WILL BE FILED IN LEAD CASECIVIL ACTION 3:07cv99. Signed by District Judge William H. Barbour, Jr g y g ,on 3/13/08 (JKM) filed by Vogel Newsome (JKM) (Entered: 03/25/2008)

03/13/2008 126 ORDER CONSOLIDATING CASES 3:07CV560 AND 3:07CV99 ARE CONSOLIDATED. IT IS FURTHER ORDERED THAT ALL PLEADINGS WILL BE FILED IN LEAD CASE CIVIL ACTION 3:07cv99. Signed by gDistrict Judge William H. Barbour, Jr on 3/13/08 (JKM) (Entered:g03/13/2008)

03/25/2008 134 MEMORANDUM IN SUPPORT re 133 Response in Opposition, filed by pVogel Newsome (JKM) (Entered: 03/25/2008)

03/25/2008 135 Response in Opposition re 126 ORDER CONSOLIDATING CASES p pp3:07CV560 AND 3:07CV99 ARE CONSOLIDATED. IT IS FURTHER ORDERED THAT ALL PLEADINGS WILL BE FILED IN LEAD CASECIVIL ACTION 3:07cv99. Signed by District Judge William H. Barbour, Jr

on 3/13/08 (JKM) filed by Vogel Newsome (JKM) (Entered: 03/25/2008)


03/25/2008 137 NOTICE OF FILING OF OBJECTIONS by Vogel Newsome re 135 Response in Opposition, 136 Memorandum in Support (JKM) (Entered: 03/25/2008)

03/25/2008 138 NOTICE OF FILING OF OBJECTIONS by Vogel Newsome re 133 Response in Opposition, 134 Memorandum in Support (JKM) (Entered: 03/25/2008)

03/27/2008 139 RESPONSE in Opposition re 40 Second MOTION for Extension of Time to File Answer filed by Vogel Newsome (JKM) (Entered: 03/27/2008)

03/27/2008 140 MEMORANDUM IN SUPPORT re 139 Response in Opposition to Motion filed by Vogel Newsome (JKM) (Entered: 03/27/2008)

04/04/2008 141 Response to Order re TEXT ONLY ORDER hereby relieving any and all Defendants in this cause of the requirement of Uniform Local Rule 7.2(C). By Order of this Court, Defendants shall not be required to respond to any pending or future pleadings or filings by pro se Plaintiff, Vogel Newsome, unless otherwise directed by the Court. Signed by Magistrate Judge Linda R. Anderson on 3/17/08. NO FURTHER WRITTEN ORDER SHALL FOLLOW. (CC) Modified on 3/17/2008 (CC). filed by Vogel Newsome (JKM) (Entered: 04/04/2008)

04/04/2008 142 MOTION for Summary Judgment by Melody Crews, Dial Equities, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Monroe, Grover) (Entered: 04/04/2008)

04/04/2008 143 MEMORANDUM in Support re 142 MOTION for Summary Judgment filed by Melody Crews, Dial Equities, Inc. (Monroe, Grover) (Entered: 04/04/2008)

04/09/2008 144 ORDER: Plaintiff is directed to include civil action number 3:07cv99 in pleadings filed in this action and may further indicate in the style that the two actions (3:07cv99 and 3:07cv560) are consolidated. Furthermore, following entry of this order, the clerk of court is directed to return, unfiled, any "pleadings" which do not comport with this order. Signed by District Judge Tom S. Lee on 4/9/08 (LWE) (JKM). (Entered: 04/09/2008)

04/24/2008 145 ORDER REFERRING MOTIONS: 142 MOTION for Summary Judgment; 131 MOTION to Strike; 123 MOTION to Strike; 116 MOTION to Strike; 75MOTION to Strike; 91 MOTION for Extension of Time to File Response/Reply; 68 Joinder in motion to Dismiss; 110 MOTION for Recusal; 117 MOTION for General Relief and MOTION for Order to Show Cause andfor Hearing; 129 MOTION for Sanctions; 89 MOTION to Strike; 78MOTION to Strike. Signed by District Judge Tom S. Lee on 4/24/08 (LWE) (Entered: 04/24/2008)

04/25/2008 146 Response to Order re 144 ORDER: Plaintiff is directed to include civil action number 3:07cv99 in pleadings filed in this action and may further indicate in the style that the two actions (3:07cv99 and 3:07cv560) are consolidated. Furthermore, following entry of this order, the clerk of court is directed to return, unfiled, any "pleadings" which do not comport with this order. Signed


11/22/2009

04/09/2008 144 ORDER: Plaintiff is directed to include civil action number 3:07cv99 in pleadings filed in this action and may further indicate in the style that the two p g y yactions (3:07cv99 and 3:07cv560) are consolidated. Furthermore, following ( ) ,entry of this order, the clerk of court is directed to return, unfiled, any rry , , , y"pleadings" which do not comport with this order. Signed by District Judgep g p g yTom S. Lee on 4/9/08 (LWE) (JKM). (Entered: 04/09/2008)

04/24/2008 145 ORDER REFERRING MOTIONS: 142 MOTION for Summary Judgment;y g ;131 MOTION to Strike; 123 MOTION to Strike; 116 MOTION to Strike; 75; ;MOTION to Strike; 91 MOTION for Extension of Time to File;Response/Reply; 68 Joinder in motion to Dismiss; 110 MOTION for Recusal;p p y; ; ;117 MOTION for General Relief and MOTION for Order to Show Cause d andf ffor Hearing; 129 MOTION for Sanctions; 89 MOTION to Strike; 78f g; ; ;MOTION to Strike. Signed by District Judge Tom S. Lee on 4/24/08 (LWE) t(Entered: 04/24/2008)

04/25/2008 146 Response to Order re 144 ORDER: Plaintiff is directed to include civil actionpnumber 3:07cv99 in pleadings filed in this action and may further indicate in p g ythe style that the two actions (3:07cv99 and 3:07cv560) are consolidated. y ( )Furthermore, following entry of this order, the clerk of court is directed to , g y ,return, unfiled, any "pleadings" which do not comport with this order. Signed

on 3/13/08 (JKM) filed by Vogel Newsome (JKM) (Entered: 03/25/2008)

03/25/2008 136 MEMORANDUM IN SUPPORT re 135 Response in Opposition, filed by pVogel Newsome (JKM) (Entered: 03/25/2008)

by District Judge Tom S. Lee on 4/9/08 (LWE) (JKM). filed by Vogel Newsome (JKM) (Entered: 04/25/2008)

04/29/2008 147 NOTICE OF FILING OF MOTION FOR CONTINUANCE AND MOTION TO STRIKE by Vogel Newsome (JKM) (Entered: 04/30/2008)

04/29/2008 148 Rebuttal re 142 MOTION for Summary Judgment filed by Vogel Newsome (JKM) (Entered: 05/01/2008)

04/29/2008 149 MEMORANDUM IN SUPPORT re 148 Rebuttal filed by Vogel Newsome (JKM) (Entered: 05/01/2008)

05/05/2008 150 REPLY to Response to Motion re 148 Rebuttal, 149 Memorandum in Support filed by Melody Crews, Dial Equities, Inc. (Monroe, Grover) (Entered: 05/05/2008)

05/06/2008 151 Response in Opposition re 145 ORDER REFERRING MOTIONS: 142MOTION for Summary Judgment; 131 MOTION to Strike; 123 MOTION to Strike; 116 MOTION to Strike; 75 MOTION to Strike; 91 MOTION for Extension of Time to File Response/Reply; 68 Joinder in motion to Dismiss;110 MOTION for Recusal; 117 MOTION for General Relief and MOTION for Order to Show Cause and for Hearing; 129 MOTION for Sanctions; 89MOTION to Strike; 78 MOTION to Strike. Signed by District Judge Tom S. Lee on 4/24/08 (LWE) filed by Vogel Newsome (JKM) (Entered: 05/08/2008)

05/06/2008 152 NOTICE of Filing by Vogel Newsome re 151 Response in Opposition,, (JKM) (Entered: 05/08/2008)

05/29/2008 153 REPORT AND RECOMMENDATIONS: recommending that the complaint be dismissed. Plaintiff should not be allowed to file pleadings in this court without paying the $1000 that she was previously ordered to pay. Objections to R&R due by 6/18/2008. Signed by Magistrate Judge Linda R. Anderson on 5/29/08. (ACF) (Entered: 05/29/2008)

06/09/2008 154 OBJECTION to 153 Report and Recommendations by Melody Crews (Monroe, Grover) (Entered: 06/09/2008)

06/09/2008 155 OPINION AND ORDER. Plaintiff's Motion to Amend[Docket No. 42 in Member Case 3:07cv560WHB-LRA] is hereby denied. The Clerk of Court is directed to file a copy of this Opinion and Order in both of the above referenced lawsuits. No further pleading shall be filed in the Member Case 3:07cv560WHB-LRA, unless authorized by the Court. Signed by District Judge William H. Barbour, Jr on 6-9-08 (Lewis, Nijah) (Entered: 06/09/2008)

06/11/2008 156 OBJECTION to 153 Report and Recommendations by Spring Lake Apartments LLC (Pace, Lanny) (Entered: 06/11/2008)

06/17/2008 157 MOTION for Extension of Time to File and MOTION to Stay. Exhibits maintained in Court file. by Vogel Newsome (JKM) (Entered: 06/24/2008)

07/01/2008 158 ORDER granting 157 Motion for Extension of Time to File to the extent that plaintiff will be allowed until July 17, 2008 in which to file her objection to the report and recommendation; denying 157 Motion to Stay pending congressional investigation. Signed by District Judge Tom S. Lee on July 1,


11/22/2009

by District Judge Tom S. Lee on 4/9/08 (LWE) (JKM). filed by Vogely gNewsome (JKM) (Entered: 04/25/2008)

Judge G. Thomas Porteous is "forever disqualified to hold and enjoy any office of honor, trust or profit under the United States."

(CNN) -- The U.S. Senate found Federal Judge G. Thomas Porteous of Louisiana guilty on four articles of impeachment on Wednesday, which will remove him from the federal bench.

He had been accused of accepting kick-backs and lying to the Senate and FBI.

The vote makes Porteous, 63, only the eighth federal judge in the nation's history to be impeached and convicted.

Porteous is also "forever disqualified to hold and enjoy any office of honor, trust or profit under the United States," Sen. Daniel Inouye said during Wednesday's Senate hearing.

Senate removes federal judge in impeachment conviction By the CNN Wire Staff December 8, 2010 12:46 p.m. EST

Senate removes federal judge in impeachment conviction - CNN.com

12/8/2010http://www.cnn.com/2010/POLITICS/12/08/washington.impeach.judge/index.html

EXHIBIT "36"

The Senate adopted the motion barring Porteous from holding a future federal office by a vote of 94 to 2.

In March, the House of Representatives voted unanimously to impeach Porteous on corruption charges.

"Our investigation found that Judge Porteous participated in a pattern of corrupt conduct for years," U.S. Rep. Adam Schiff, D-California, chairman of the House Judiciary Committee Task Force on Judicial Impeachment.

In a statement at the time, Porteous' lawyer, Richard W. Westling, said the Justice Department had decided not to prosecute because it did not have credible evidence.

"Unfortunately, the House has decided to disregard the Justice Department's decision and to move forward with impeachment," he said. "As a result, we will now turn to the Senate to seek a full and fair hearing of all of the evidence."

Porteous, who turns 64 this year, was appointed to the federal bench in 1994. He has not worked as a judge since he was suspended with pay in the fall of 2008, Westling said.

The most recent previous impeachment of a federal judge by the House was last year.

Judge Samuel B. Kent of the U.S. District Court for the Southern District of Texas resigned after being impeached on charges of sexual assault, obstructing and impeding an official proceeding and making false and misleading statements, according to the website of the Federal Judicial Center.

Before then, Judge Walter L. Nixon of U.S. District Court for the Southern District of Mississippi was impeached in 1989 on charges of perjury before a federal grand jury. The Senate convicted him and removed him from office that year.

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Senate removes federal judge in impeachment conviction - CNN.com

12/8/2010cnn.com/2010/POLITICS/12/08/washington.impeach.judge/index.html

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House votes to impeach federal judge from Louisiana

STORY HIGHLIGHTS� Judge G. Thomas Porteous Jr. was impeached by U.S. House of Representatives � Porteous is from U.S. District Court for the Eastern District of Louisiana � Rep. Adam Schiff: Porteous "participated in a pattern of corrupt conduct for years"

RELATED TOPICS� U.S. Congress� Louisiana� U.S. Senate� Bill Clinton

Washington (CNN) -- The House of Representatives voted unanimously Thursday to impeach Judge G. Thomas Porteous Jr. of U.S. District Court for the Eastern District of Louisiana, making him the nation's 15th federal judge ever impeached.

"Our investigation found that Judge Porteous participated in a pattern of corrupt conduct for years," said U.S. Rep. Adam Schiff, D-California, chairman of the House Judiciary Committee Task Force on Judicial Impeachment.

"Litigants have the right to expect a judge hearing their case will be fair and impartial, and avoid even the appearance of impropriety.Regrettably, no one can have that expectation in Judge Porteous' courtroom."

After the impeachment vote, Schiff and Rep. Bob Goodlatte, R-Virginia, were named the lead impeachment managers for the Senate trial,which will decide whether to remove Porteous from the bench.

"Today's vote marks only the second time in over 20 years that this has occurred," Goodlatte said in a House news release. "However,when evidence emerges that an individual is abusing his judicial office for his own advantage, the integrity of the entire judicial system becomes compromised."

In a statement, Porteous' lawyer Richard W. Westling said the Justice Department had decided not to prosecute because it did not have credible evidence.

"Unfortunately, the House has decided to disregard the Justice Department's decision and to move forward with impeachment. As a result, we will now turn to the Senate to seek a full and fair hearing of all of the evidence."

In a telephone interview, Westling said he did not know when the Senate trial would be held. "There are no clear rules that dictate timing," he said.

Last year, the Task Force on Judicial Impeachment held evidentiary hearings that led to unanimous approval of the four articles of impeachment, citing evidence that Porteous "intentionally made material false statements and representations under penalty of perjury,engaged in a corrupt kickback scheme, solicited and accepted unlawful gifts, and intentionally misled the Senate during his confirmation proceedings," the House release said.

Porteous was appointed to the federal bench in 1994.

In 2007, after an FBI and federal grand jury investigation, the Justice Department alleged "pervasive misconduct" by Porteous and evidence "that Judge Porteous may have violated federal and state criminal laws, controlling canons of judicial conduct, rules of professional responsibility, and conducted himself in a manner antithetical to the constitutional standard of good behavior required of a

Page 1 of 2House votes to impeach federal judge from Louisiana - CNN.com

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Judge G. Thomas Porteous Jr. was impeached by U.S. House of Representatives

The House of Representatives voted unanimously Thursday to impeach Judge G. Thomas Porteous Jr. of U.S. District Court for the Eastern District of Louisiana, making him the nation's 15th federal judge ever impeached.

"Our investigation found that Judge Porteous participated in a pattern of corrupt conduct for years," said U.S. Rep. Adam Schiff, D-ffCalifornia, chairman of the House Judiciary Committee Task Force on Judicial Impeachment.

"Litigants have the right to expect a judge hearing their case will be fair and impartial, and avoid even the appearance of impropriety.Regrettably, no one can have that expectation in Judge Porteous' courtroom."

"Today's vote marks only the second time in over 20 years that this has occurred," Goodlatte said in a House news release. "However,when evidence emerges that an individual is abusing his judicial office for his own advantage, the integrity of the entire judicial system becomes compromised."

In a statement, Porteous' lawyer Richard W. Westling said the Justice Department had decided not to prosecute because it did not have credible evidence.

"Unfortunately, the House has decided to disregard the Justice Department's decision and to move forward with impeachment. As a result, we will now turn to the Senate to seek a full and fair hearing of all of the evidence."

Last year, the Task Force on Judicial Impeachment held evidentiary hearings that led to unanimous approval of the four articles of impeachment, citing evidence that Porteous "intentionally made material false statements and representations under penalty of perjury,engaged in a corrupt kickback scheme, solicited and accepted unlawful gifts, and intentionally misled the Senate during his confirmation proceedings," the House release said.

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The complaint said the department opted not to seek criminal charges for reasons that included issues of statute of limitations and other factors. But Westling said the statute of limitations was not applicable.

An Impeachment Task Force held four hearings late last year that focused on allegations of misconduct by Porteous, including:

-- Involvement in a corrupt kickback scheme

-- Failure to recuse himself from a case he was involved in

-- Allegations that Porteous made false and misleading statements, including concealing debts and gambling losses

-- Allegations that Porteous asked for and accepted "numerous things of value, including meals, trips, home and car repairs, for his personal use and benefit" while taking official actions on behalf of his benefactors

-- Allegations that Porteous lied about his past to the U.S. Senate and to the FBI about his nomination to the federal bench "in order to conceal corrupt relationships," Schiff said in his floor statement as prepared for delivery

Porteous was invited to testify, but he declined to do so, Schiff said. "His long-standing pattern of corrupt activity, so utterly lacking in honesty and integrity, demonstrates his unfitness to serve as a United States District Court judge," he said.

Porteous, 63, has not worked as a judge since he was suspended with pay in the fall of 2008, Westling said.

The last federal judge impeachment occurred last year, when Judge Samuel B. Kent of the U.S. District Court for the Southern District of Texas resigned after being impeached on charges of sexual assault, obstructing and impeding an official proceeding, and making false and misleading statements, according to the Web site of the Federal Judicial Center.

The Senate, sitting as a court of impeachment, dismissed the articles.

Before then, Judge Walter L. Nixon of U.S. District Court for the Southern District of Mississippi was impeached in 1989 on charges of perjury before a federal grand jury. The Senate convicted him and removed him from office that year.

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The complaint said the department opted not to seek criminal charges for reasons that included issues of statute of limitations and other factors. But Westling said the statute of limitations was not applicable.

An Impeachment Task Force held four hearings late last year that focused on allegations of misconduct by Porteous, including:

-- Involvement in a corrupt kickback scheme

-- Failure to recuse himself from a case he was involved in

-- Allegations that Porteous made false and misleading statements, including concealing debts and gambling losses

-- Allegations that Porteous asked for and accepted "numerous things of value, including meals, trips, home and car repairs, for hispersonal use and benefit" while taking official actions on behalf of his benefactors

-- Allegations that Porteous lied about his past to the U.S. Senate and to the FBI about his nomination to the federal bench "in order toconceal corrupt relationships," Schiff said in his floor statement as prepared for delivery

The last federal judge impeachment occurred last year, when Judge Samuel B. Kent of the U.S. District Court for the Southern District of Texas resigned after being impeached on charges of sexual assault, obstructing and impeding an official proceeding, and making false andmisleading statements, according to the Web site of the Federal Judicial Center.

Senate Begins Impeachment Trial of Federal JudgePublished September 13, 2010 | Associated Press

WASHINGTON -- A federal judge from Louisiana is corrupt and unfit to serve on the bench, House members said Monday as they began a rare congressional impeachment trial by laying out their case against the jurist.

Playing the role of prosecutors, Reps. Adam Schiff, D-Calif., and Bob Goodlatte, R-Va., used their opening statements to a Senate impeachment panel to outline what they called a decades-long pattern of unethical behavior by New Orleans-area U.S. District Judge G. Thomas Porteous.

They said that included taking cash, expensive meals and gifts from lawyers and a bail bondsman, lying to Congress and filing for bankruptcy under a false name.

"It is the unanimous view of the House of Representatives that his conduct is not only wrong but so violative of the public trust that he cannot be allowed to remain on the bench without making a mockery of the court system," Schiff said.

Porteous' attorney, Jonathan Turley, denied some allegations but acknowledged others such as accepting meals, which he said is perfectly legal. He said the judge's behavior, while perhaps reflecting poor judgment, doesn't meet the high crimes and misdemeanors standard set in the Constitution for impeachment.

"Judge Porteous has never been indicted, let alone convicted, of any crime," Turley said. "What the Congress has impeached this judge for is an appearance of impropriety."

Turley also said much of the conduct in question occurred when Porteous was a state judge and that Congress would be breaking from precedent by convicting him for behavior that occurred before he joined the federal bench.

The Senate trial is the first since the 1999 case against former President . Porteous, who was appointed by Clinton in 1994, would be just the eighth judge to be impeached and convicted by Congress.

The House voted unanimously in March to impeach Porteous. A two-thirds vote is needed in the Senate to convict him.

Senators hearing the case appear ready to resolve it quickly, scheduling a series of all-day hearings this week and next.

Porteous' behavior was uncovered in a five-year FBI investigation in Jefferson Parish dubbed "Operation Wrinkled Robe." Although the sting netted convictions against more than a dozen others, Porteous was never charged with a crime. He was, however, suspended from the bench.

Turley said Porteous, 63, plans to retire next year regardless of what happens.

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Page 1 of 1FOXNews.com - Senate Begins Impeachment Trial of Federal Judge

9/15/2010http://www.foxnews.com/politics/2010/09/13/senate-begins-impeachment-trial-federal-jud...

Playing the role of prosecutors, Reps. Adam Schiff, D-Calif., and Bob Goodlatte, R-Va., used their opening statements to a Senate impeachment panel to outline what they called a decades-long pattern of unethical behavior by New Orleans-area U.S. District Judge G. Thomas Porteous.

They said that included taking cash, expensive meals and gifts from lawyers and a bailbondsman, lying to Congress and filing for bankruptcy under a false name.

"It is the unanimous view of the House of Representatives that his conduct is not only wrong but so violative of the public trust that he cannot be allowed to remain on the bench without making amockery of the court system,"

"Judge Porteous has never been indicted, let alone convicted, of any crime," Turley said. "Whatthe Congress has impeached this judge for is an appearance of impropriety."

The Senate trial is the first since the 1999 case against former President . Porteous,who was appointed by Clinton in 1994, would be just the eighth judge to be impeached and convicted by Congress.

The House voted unanimously in March to impeach Porteous. A two-thirds vote is needed in theSenate to convict him.

Porteous' behavior was uncovered in a five-year FBI investigation in Jefferson Parish dubbed "Operation Wrinkled Robe." Although the sting netted convictions against more than a dozen others, Porteous was never charged with a crime. He was, however, suspended from the bench.

By BEN EVANS The Associated Press Monday, September 13, 2010; 5:16 PM

WASHINGTON -- A federal judge from Louisiana is corrupt and unfit to serve on thebench, House members said Monday as theybegan a rare congressional impeachment trialby laying out their case against the jurist.

Playing the role of prosecutors, Reps. Adam Schiff, D-Calif., and Bob Goodlatte, R-Va.,used their opening statements to a Senateimpeachment panel to outline what theycalled a decades-long pattern of unethicalbehavior by New Orleans-area U.S. District Judge G. Thomas Porteous. They said thatincluded taking cash, expensive meals andother gifts from lawyers and a bailbondsman, lying to Congress and filing forbankruptcy under a false name.

"It is the unanimous view of the House of Representatives that his conduct is not onlywrong but so violative of the public trustthat he cannot be allowed to remain on thebench without making a mockery of the courtsystem," Schiff said.

Porteous' attorney, Jonathan Turley, denied some allegations but acknowledged otherssuch as accepting meals, which he said isperfectly legal. He said the judge's behavior,while perhaps reflecting poor judgment attimes, doesn't meet the high crimes andmisdemeanors standard set in the

Constitution for impeachment.

"Judge Porteous has never been indicted, let alone convicted, of any crime," Turley said."What the Congress has impeached this judgefor is an appearance of impropriety."

Turley also said much of the conduct in question occurred when Porteous was a statejudge and that Congress would be breakingfrom precedent by convicting him forbehavior that occurred before he joined thefederal bench.

The Senate trial is the first since the 1999 case against former President Bill Clinton. Porteous, who was appointed by Clinton in1994, would be just the eighth judge to beimpeached and convicted by Congress, andthe first in more than 20 years.

The House voted unanimously in March to

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A federal judge fromj gLouisiana is corrupt and unfit to serve on thepbench, House members said Monday as theyy ybegan a rare congressional impeachment trialg g pby laying out their case against the jurist.

They said thatg yincluded taking cash, expensive meals andg pother gifts from lawyers and a bailg ybondsman, lying to Congress and filing fory g gbankruptcy under a false name.

"It is the unanimous view of the House of Representatives that his conduct is not onlypwrong but so violative of the public trustfg pthat he cannot be allowed to remain on thebench without making a mockery of the courtsystem," Schiff said.

bring charges. A two-thirds vote is needed in the Senate to convict him.

The Senate panel hearing the case, chaired by Sen. Claire McCaskill, D-Mo., appears ready to resolve it quickly, scheduling a series of all- day hearings this week and next.

House investigators who spent months investigating say Porteous was strugglingwith drinking and gambling and had rackedup more than $150,000 in credit card debt by2000, mostly for cash advances spent incasinos.

Most of Monday's testimony involved a close relationship that Porteous maintained with t wo attorneys who once worked with thejudge, Robert Creely and Jacob Amato.

As they did earlier before Houseinvestigators, the two acknowledged givingPorteous thousands of dollars in cash goingback to the 1980s, including about $2,000stuffed in an envelope in 1999, just beforePorteous decided a major civil case in theirclient's favor. They also acknowledged takinghim on trips such as one to Las Vegas for abachelor party for the judge's son, at whichCreely said he helped pay for an expensivemeal, a hotel room and dancing at a stripclub.

Creely and Amato, however, said they never received favorable treatment from Porteous and that they gave him money only becausehe was a longtime friend who needed help.

Porteous' behavior was uncovered in a five-year FBI investigation in Jefferson Parishdubbed "Operation Wrinkled Robe." Althoughthe sting netted convictions against morethan a dozen others, Porteous was nevercharged with a crime. He was, however,suspended from the bench, and the JudicialConference of the United Statesrecommended that Congress considerimpeachment.

Turley said Porteous, 63, plans to retire next year regardless of what happens.

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py Porteous was strugglingg g y gg g

with drinking and gambling and had rackedg g gup more than $150,000 in credit card debt byp2000, mostly for cash advances spent incasinos.

As they did earlier before Houseyinvestigators, the two acknowledged givingg g g gPorteous thousands of dollars in cash goinggback to the 1980s, including about $2,000gstuffed in an envelope in 1999, just beforep jPorteous decided a major civil case in theirjclient's favor. They also acknowledged takingy ghim on trips such as one to Las Vegas for ap gbachelor party for the judge's son, at whichp y j gCreely said he helped pay for an expensivey p p y pmeal, a hotel room and dancing at a stripclub.

Porteous' behavior was uncovered in a five-year FBI investigation in Jefferson Parishdubbed "Operation Wrinkled Robe." Althoughy g

pthe sting netted convictions against moreg gthan a dozen others, Porteous was nevercharged with a crime. He was, however,gsuspended from the bench, and the JudicialpConference of the United Statesrecommended that Congress considerimpeachment.

History of the Federal Judiciary

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Impeachments of Federal Judges John Pickering, U.S. District Court for the District of New Hampshire.Impeached by the U.S. House of Representatives on March 2, 1803, on charges of mental instability and intoxication on the bench; Convicted by the U.S. Senate and removed from office on March 12, 1804.

Samuel Chase, Associate Justice, Supreme Court of the United States.Impeached by the U.S. House of Representatives on March 12, 1804, on charges of arbitrary and oppressive conduct of trials; Acquitted by the U.S. Senate on March 1, 1805.

James H. Peck, U.S. District Court for the District of Missouri. Impeached by the U.S. House of Representatives on April 24, 1830, on charges of abuse of the contempt power; Acquitted by the U.S. Senate on January 31, 1831.

West H. Humphreys, U.S. District Court for the Middle, Eastern, and Western Districts of Tennessee.Impeached by the U.S. House of Representatives, May 6, 1862, on charges of refusing to hold court and waging war against the U.S. government; Convicted by the U.S. Senate and removed from office, June 26, 1862.

Mark W. Delahay, U.S. District Court for the District of Kansas. Impeached by the U.S. House of Representatives, February 28, 1873, on charges of intoxication on the bench; Resigned from office, December 12, 1873, before opening of trial in the U.S. Senate.

Charles Swayne, U.S. District Court for the Northern District of Florida.Impeached by the U.S. House of Representatives, December 13, 1904, on charges of abuse of contempt power and other misuses of office; Acquitted by the U.S. Senate February 27, 1905.

Robert W. Archbald, U.S. Commerce Court.Impeached by the U.S. House of Representatives, July 11, 1912, on charges of improper business relationship with litigants; Convicted by the U.S. Senate and removed from office, January 13, 1913.

George W. English, U.S. District Court for the Eastern District of Illinois.Impeached by the U.S. House of Representatives, April 1, 1926, on charges of abuse of power; resigned office November 4, 1926; Senate Court of Impeachment adjourned to December 13, 1926, when, on request of the House manager, impeachment proceedings were dismissed.

Harold Louderback, U.S. District Court for the Northern District of California.Impeached by the U.S. House of Representatives, February 24, 1933, on charges of favoritism in the appointment of bankruptcy receivers; Acquitted by the U.S. Senate on May 24, 1933.

Halsted L. Ritter, U.S. District Court for the Southern District of Florida.Impeached by the U.S. House of Representatives, March 2, 1936, on charges of favoritism in the appointment of bankruptcy receivers and practicing law while sitting as a judge; Convicted by the U.S. Senate and removed from office, April 17, 1936.

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Page 1 of 2History of the Federal Judiciary

9/16/2010http://www.fjc.gov/history/home.nsf/page/judges_impeachments.html

Halsted L. Ritter, U.S. District Court for the Southern District of Florida.Impeached by the U.S. House of Representatives, March 2, 1936, on charges of favoritismp y p gin the appointment of bankruptcy receivers and practicing law while sitting as a judge;pp p y p gConvicted by the U.S. Senate and removed from office, April 17, 1936.

Robert W. Archbald, U.S. Commerce Court.Impeached by the U.S. House of Representatives, July 11, 1912, on charges of improper p y p y g p pbusiness relationship with litigants; Convicted by the U.S. Senate and removed from office, January 13, 1913.

Mark W. Delahay, U.S. District Court for the District of Kansas.yImpeached by the U.S. House of Representatives, February 28, 1873, on charges of p y p y gintoxication on the bench; Resigned from office, December 12, 1873, before opening of trialin the U.S. Senate.

West H. Humphreys, U.S. District Court for the Middle, Eastern, and Western Districtspof Tennessee.Impeached by the U.S. House of Representatives, May 6, 1862, on charges of refusing top y p y g ghold court and waging war against the U.S. government; Convicted by the U.S. Senate andg g gremoved from office, June 26, 1862.

John Pickering, U.S. District Court for the District of New Hampshire.g pImpeached by the U.S. House of Representatives on March 2, 1803, on charges of mentalp y p ginstability and intoxication on the bench; Convicted by the U.S. Senate and removed fromyoffice on March 12, 1804.

Submit Questions About Judicial History | Contact the FJC

Harry E. Claiborne, U.S. District Court for the District of Nevada.Impeached by the U.S. House of Representatives, July 22, 1986, on charges of income tax evasion and of remaining on the bench following criminal conviction; Convicted by the U.S. Senate and removed from office, October 9, 1986.

Alcee L. Hastings, U.S. District Court for the Southern District of Florida.Impeached by the U.S. House of Representatives, August 3, 1988, on charges of perjury and conspiring to solicit a bribe; Convicted by the U.S. Senate and removed from office, October 20, 1989.

Walter L. Nixon, U.S. District Court for the Southern District of Mississippi.Impeached by the U.S. House of Representatives, May 10, 1989, on charges of perjury before a federal grand jury; Convicted by the U.S. Senate and removed from office, November 3, 1989.

Samuel B. Kent, U.S. District Court for the Southern District of Texas.Impeached by the U.S. House of Representatives, June 19, 2009, on charges of sexual assault, obstructing and impeding an official proceeding, and making false and misleading statements; Resigned from office, June 30, 2009. On July 20, 2009, the U.S. House of Representatives agreed to a resolution not to pursue further the articles of impeachment, and on July 22, 2009, the Senate, sitting as a court of impeachment, dismissed the articles.

G. Thomas Porteous, Jr., U.S. District Court for the Eastern District of Louisiana.Impeached by the U.S. House of Representatives, March 11, 2010, on charges of accepting bribes and making false statements under penalty of perjury.

Page 2 of 2History of the Federal Judiciary

9/16/2010http://www.fjc.gov/history/home.nsf/page/judges_impeachments.html

G. Thomas Porteous, Jr., U.S. District Court for the Eastern District of Louisiana.Impeached by the U.S. House of Representatives, March 11, 2010, on charges of acceptingp y pbribes and making false statements under penalty of perjury.

Walter L. Nixon, U.S. District Court for the Southern District of Mississippi.ppImpeached by the U.S. House of Representatives, May 10, 1989, on charges of perjuryp y p y g pbefore a federal grand jury; Convicted by the U.S. Senate and removed from office,gNovember 3, 1989.

Alcee L. Hastings, U.S. District Court for the Southern District of Florida.gImpeached by the U.S. House of Representatives, August 3, 1988, on charges of perjuryp y p g g p j yand conspiring to solicit a bribe; Convicted by the U.S. Senate and removed from office,p gOctober 20, 1989.

Harry E. Claiborne, U.S. District Court for the District of Nevada.yImpeached by the U.S. House of Representatives, July 22, 1986, on charges of income taxp y p y gevasion and of remaining on the bench following criminal conviction; Convicted by the U.S.g gSenate and removed from office, October 9, 1986. Senate and removed from office October 9 1986

Articles of Impeachment Against United States District Court Judge G. Thomas Porteous, Jr. From Wikisource

RESOLUTION

��, That G. Thomas Porteous, Jr., a judge of the United States District Court for the Eastern District of Louisiana, is impeached for high crimes and misdemeanors, and that the following articles of impeachment be exhibited to the Senate:

Articles of impeachment exhibited by the House of Representatives of the United States of America in the name of itself and all of the people of the United States of America, against G. Thomas Porteous, Jr., a judge in the United States District Court for the Eastern District of Louisiana, in maintenance and support of its impeachment against him for high crimes and misdemeanors.

Article I G. Thomas Porteous, Jr., while a Federal judge of the United States District Court for the Eastern District of Louisiana, engaged in a pattern of conduct that is incompatible with the trust and confidence placed in him as a Federal judge, as follows:

Judge Porteous, while presiding as a United States district judge in Lifemark Hospitals of Louisiana, Inc. v. Liljeberg Enterprises, denied a motion to recuse himself from the case, despite the fact that he had a corrupt financial relationship with the law firm of Amato & Creely, P.C. which had entered the case to represent Liljeberg. In denying the motion to recuse, and in contravention of clear canons of judicial ethics, Judge Porteous failed to disclose that beginning in or about the late 1980s while he was a State court judge in the 24th Judicial District Court in the State of Louisiana, he engaged in a corrupt scheme with attorneys, Jacob Amato, Jr., and Robert Creely, whereby Judge Porteous appointed Amato's law partner as a `curator' in hundreds of cases and thereafter requested and accepted from Amato & Creely a portion of the curatorship fees which had been paid to the firm. During the period of this scheme, the fees received by Amato & Creely amounted to approximately $40,000, and the amounts paid by Amato & Creely to Judge Porteous amounted to approximately $20,000.

Judge Porteous also made intentionally misleading statements at the recusal hearing intended to minimize the extent of his personal relationship with the two attorneys. In so doing, and in failing to disclose to Lifemark and its counsel the true circumstances of his relationship with the Amato & Creely law firm, Judge Porteous deprived the Fifth Circuit Court of Appeals of critical information for its review of a petition for a writ of mandamus, which sought to overrule Judge Porteous's denial of the recusal motion. His conduct deprived the parties and the public of the right to the honest services of his office.

Judge Porteous also engaged in corrupt conduct after the Lifemark v. Liljeberg bench trial, and while he had the case under advisement, in that he solicited and accepted things of value from both Amato and his law partner Creely, including a payment of thousands of dollars in cash. Thereafter, and without disclosing his corrupt relationship with the attorneys of Amato & Creely PLC or his receipt from them of cash and other things of value, Judge Porteous ruled in favor of their client, Liljeberg.

By virtue of this corrupt relationship and his conduct as a Federal judge, Judge Porteous brought his court into scandal and disrepute, prejudiced public respect for, and confidence in, the Federal judiciary, and demonstrated that he is unfit for the office of Federal judge.

Wherefore, Judge G. Thomas Porteous, Jr., is guilty of high crimes and misdemeanors and should be removed from office.

Impeaching G. Thomas Porteous, Jr., judge of the United States District Court for the Eastern District of Louisiana, for high crimes and

misdemeanors.��

Introduced by Representative John Conyers, Jr. on January 21, 2010.

Contents � 1 Article I � 2 Article II � 3 Article III � 4 Article IV

Page 1 of 3Articles of Impeachment Against United States District Court Judge G. Thomas Porteous,...

9/28/2010http://en.wikisource.org/wiki/Articles_of_Impeachment_Against_United_States_District_...

Article II G. Thomas Porteous, Jr., engaged in a longstanding pattern of corrupt conduct that demonstrates his unfitness to serve as a United States District Court Judge. That conduct included the following: Beginning in or about the late 1980s while he was a State court judge in the 24th Judicial District Court in the State of Louisiana, and continuing while he was a Federal judge in the United States District Court for the Eastern District of Louisiana, Judge Porteous engaged in a corrupt relationship with bail bondsman Louis M. Marcotte, III, and his sister Lori Marcotte. As part of this corrupt relationship, Judge Porteous solicited and accepted numerous things of value, including meals, trips, home repairs, and car repairs, for his personal use and benefit, while at the same time taking official actions that benefitted the Marcottes. These official actions by Judge Porteous included, while on the State bench, setting, reducing, and splitting bonds as requested by the Marcottes, and improperly setting aside or expunging felony convictions for two Marcotte employees (in one case after Judge Porteous had been confirmed by the Senate but before being sworn in as a Federal judge). In addition, both while on the State bench and on the Federal bench, Judge Porteous used the power and prestige of his office to assist the Marcottes in forming relationships with State judicial officers and individuals important to the Marcottes' business. As Judge Porteous well knew and understood, Louis Marcotte also made false statements to the Federal Bureau of Investigation in an effort to assist Judge Porteous in being appointed to the Federal bench.

Accordingly, Judge G. Thomas Porteous, Jr., has engaged in conduct so utterly lacking in honesty and integrity that he is guilty of high crimes and misdemeanors, is unfit to hold the office of Federal judge, and should be removed from office.

Article III Beginning in or about March 2001 and continuing through about July 2004, while a Federal judge in the United States District Court for the Eastern District of Louisiana, G. Thomas Porteous, Jr., engaged in a pattern of conduct inconsistent with the trust and confidence placed in him as a Federal judge by knowingly and intentionally making material false statements and representations under penalty of perjury related to his personal bankruptcy filing and by repeatedly violating a court order in his bankruptcy case. Judge Porteous did so by--

(1) using a false name and a post office box address to conceal his identity as the debtor in the case;

(2) concealing assets;

(3) concealing preferential payments to certain creditors;

(4) concealing gambling losses and other gambling debts; and

(5) incurring new debts while the case was pending, in violation of the bankruptcy court's order.

In doing so, Judge Porteous brought his court into scandal and disrepute, prejudiced public respect for and confidence in the Federal judiciary, and demonstrated that he is unfit for the office of Federal judge.


Article IV In 1994, in connection with his nomination to be a judge of the United States District Court for the Eastern District of Louisiana, G. Thomas Porteous, Jr., knowingly made material false statements about his past to both the United States Senate and to the Federal Bureau of Investigation in order to obtain the office of United States District Court Judge. These false statements included the following:

(1) On his Supplemental SF-86, Judge Porteous was asked if there was anything in his personal life that could be used by someone to coerce or blackmail him, or if there was anything in his life that could cause an embarrassment to Judge Porteous or the President if publicly known. Judge Porteous answered `no' to this question and signed the form under the warning that a false statement was punishable by law.

(2) During his background check, Judge Porteous falsely told the Federal Bureau of Investigation on two separate occasions that he was not concealing any activity or conduct that could be used to influence, pressure, coerce, or compromise him in any way or that would impact negatively on his character, reputation, judgment, or discretion.

(3) On the Senate Judiciary Committee's `Questionnaire for Judicial Nominees', Judge Porteous was asked whether any unfavorable information existed that could affect his nomination. Judge Porteous answered that, to the best of his knowledge, he did `not know of any unfavorable information that may affect [his] nomination'. Judge Porteous signed that questionnaire by swearing that `the



information provided in this statement is, to the best of my knowledge, true and accurate'.

However, in truth and in fact, as Judge Porteous then well knew, each of these answers was materially false because Judge Porteous had engaged in a corrupt relationship with the law firm Amato & Creely, whereby Judge Porteous appointed Creely as a `curator' in hundreds of cases and thereafter requested and accepted from Amato & Creely a portion of the curatorship fees which had been paid to the firm and also had engaged in a corrupt relationship with Louis and Lori Marcotte, whereby Judge Porteous solicited and accepted numerous things of value, including meals, trips, home repairs, and car repairs, for his personal use and benefit, while at the same time taking official actions that benefitted the Marcottes. As Judge Porteous well knew and understood, Louis Marcotte also made false statements to the Federal Bureau of Investigation in an effort to assist Judge Porteous in being appointed to the Federal bench. Judge Porteous's failure to disclose these corrupt relationships deprived the United States Senate and the public of information that would have had a material impact on his confirmation.


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EXHIBIT "37"

CUT & PASTED AS OF 11/8/09 FROM:http://www2.wjtv.com/jtv/news/state_regional/article/hinds_co._judge_delaughter_pleads_guilty_to_federal_charge/16411/

Feds Recommend 18 Month Sentence For Bobby DeLaughter Judge DeLaughter Pleads Guilty To Federal Charge...

Associated Press and Staff Reports Published: July 30, 2009 Updated: July 30, 2009

Hinds County Circuit Judge Bobby DeLaughter has pleaded guilty in court to a federal charge against him in Aberdeen. The government has dropped the other 4 counts against him. The government has recommended an 18 month sentence, however the charge carries a maximum sentence of 20 years. The judge won’t sentence him until a presenting report is completed in about 5 weeks. Also this morning DeLaughter handed in his resignation from the court to Gov. Haley Barbour this morning.

The charge DeLaughter pleaded guilty to was for lying to an FBI agent who was investigating a judicial corruption case involving former prominent lawyer Richard “Dickie” Scruggs.

An indictment accused DeLaughter of attempting to obstruct, influence and impede an official proceeding while being interviewed. Prosecutors accused DeLaughter of ruling in favor of Scruggs, a once powerful Mississippi lawyer who is now in prison, in hopes that Scruggs would use his connections to help DeLaughter get appointed to a federal judgeship.

g y g p g y The government has dropped the other 4 counts against him.

DeLaughter pleaded guilty to was for lying to an FBI agent who was investigating g g p g y y g ga judicial corruption case involving former prominent lawyer Richard “Dickie” Scruggs.

f attempting to obstruct, influence and impede an officialgproceeding while being interviewed. Prosecutors accused DeLaughter of ruling in favor of fp g g g gScruggs, a once powerful Mississippi lawyer who is now in prison, in hopes that Scruggs would gg , p pp y p , puse his connections to help DeLaughter get appointed to a federal judgeship.

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T H U R S D A Y , J U L Y 3 0 , 2 0 0 9

Mississippi Judge Bobby DeLaughter Admits He Lied to FBI

Mississippi judge Bobby DeLaughter pleads guilty to lying to FBI agent

Miss. — Mississippi judge Bobby DeLaughter pleaded guilty to an

obstruction of justice charge after lying to an FBI agent during an

investigation into corruption.

In return for DeLaughter admitting guilt, conspiracy and mail fraud

charges were dropped by prosecutors.

Previously, DeLaughter had been accused of giving an unfair

advantage to former attorney Richard Richard "Dickie" Scruggs; who

won millions from asbestos lawsuits.

(Scruggs, father and son, are in prison.)

Prosecutors recommended an 18-month prison sentence for

Delaughter.

To make a report on other judges, see USAJudges.com or,

KillerJudges.com

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Judicial Transparency NowD E M O N S T R A T I N G W H Y B E I N G A P R O F E S S I O N A L C I T I Z E N I S A N I M P O R T A N T J O B .

Page 1 of 4Judicial Transparency Now: Mississippi Judge Bobby DeLaughter Admits He Lied to FBI

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EXHIBIT "38"

LINDA DASCHLE: DEPUTY of the Federal Aviation Administration (FAA) – Under United States President William “Bill” Clinton; Acting Administrator for FAA; Senior Vice President of American Association of Airport Executives; Director Federal Affairs at Air Transport Association of America; Director/Regional Director at Civil Aeronautics Board; SENIOR Policy Advisor for Baker Donelson Bearman Caldwell & Berkowitz – i.e. bringing approximately 20 Years in the AVIATION Industry.— http://www.opensecrets.org/revolving/rev_summary.php?id=50112

� Wife of Former South Dakota’s United States Senator Thomas Daschle – i.e. Senate MAJORITY/Minority Leader [Tom Daschle was an early supporter of Barack Obama’s presidential candidacy, and was offered the position of Secretary of the Department of Health and Human Services after the 2008 election. He was President Obama's nominee to serve as the Secretary of Health and Human Services (HHS) in the Cabinet, but withdrew his name on February 3, 2009, amid a growing controversy over his failure to accurately report and pay income taxes];

� One of the Airline Industry’s TOP Lobbyists for TWO (2) Decades;

� Approximately 11 days after the 9/11 attacks, her husband (United States Senator Thomas Daschle) RUSHED through a “DEMOCRATIC” Senate a “$15 BILLION” Bailout for the airline industry – i.e. the Daschles making sure that Bailout EXEMPTED American (having safety issues and FAILING safety standards), and others from real liability to lawsuits from families of the 9/11 victims; - - http://macsmind.com/wordpress/2009/02/01/daschles-problem-not-new-revisting-his-wifes-lobbyist-ties-in-2003/

� Linda Daschle was cited in an FAA report for failing to enforce a "zero tolerance" policy she announced in 1996 while Deputy Director of the FAA against violent airline passengers a pledge that some say could have prevented the 9/11 terrorist hijackings; - - http://www.freerepublic.com/focus/news/585010/posts

� PRIOR to 9/11, Senator Daschle SPEARHEADED what appears to be “Behind-the-Door” deals that FORCED the FAA to buy DEFECTIVE Baggage Scanners (i.e. acts which may have CONTRIBUTED to the Role required to COVER-UP the United States Corruption and carrying out of the 9/11 attacks on its OWN Citizens and others);

� Linda Daschle’s client list included airlines American and Northwest, aircraft maker Boeing, and aviation technology companies L-3 Communications, Loral and United Technologies. She also represents airport executives, airports in Cleveland and Englewood, Colo., and a trade association for concrete paving contractors. Those clients paid Daschle's law and lobbying firm, Baker, Donelson, Bearman & Caldwell, about $1.1 million in the year ending last June, the most recent records available. - - http://www.usatoday.com/news/washington/june01/2001-06-06-daschle-linda.htm

� DOCUMENT DESTRUCTION: It appears that documents EXPOSING the Daschles’ efforts to MINIMIZE inspection of . . . planes were SHREDDED by FAA Officials under the direction and leadership of Linda Daschle; and

� It appears Linda’s husband Tom Daschle led the Democrat effort to PREVENT the IMPEACHMENT of President William “Bill” Clinton.

– It appears from RESEARCH that Baker Donelson may have relied upon another Woman

DANIELLA LANDAU AVIATION TIES with – i.e. American Airlines. American Airlines planes were used in the carrying out of the September 11, 2001 “DOMESTIC” TERRORIST Attacks which appear to have been ORCHESTRATED and “Carried Out” under the DIRECTION and LEADERSHIP of Baker Donelson under the “SHIELD/LIES” that there were FOREIGN TERRORIST – i.e. Al Qaeda involved (when it was NOT). IMPORTANT TO NOTE: (1) There September 11, 2001 “Domestic” Terrorist attacks appear to have been PLANNED under Former President William “Bill” Clinton’s WATCH; (2) CARRIED out under Former President George W. Bush’s WATCH; and (3) the FALSE/MALICIOUS Lie of the “Killing of Osama Bin Laden” to COVER-UP the United States of America’s 9/11 CONSPIRACIES and Criminal Acts under President Barack Obama’s WATCH:

� DANILLA LANDAU was: (A) Aide/Staff of the PRESIDENTIAL Transition Team for President Clinton; (B) Managing Director of AMERICAN AIRLINES; and (C) Employee of Baker Donelson Bearman Caldwell & Berkowitz. – http://www.opensecrets.org/revolving/rev_summary.php?id=70371 EXHIBIT

"39"

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Sources: Napolitano top choice for homeland security secretary � Story Highlights � Arizona Gov. Janet Napolitano top choice for homeland security � Ex-Sen. Tom Daschle to become head of HHS, sources say � More than half of those named to Obama's transition or staff posts have Clinton ties � Transition team says it's dedicated to creating team that's "diverse in many ways"

(CNN) -- President-elect Barack Obama's top choice for secretary of homeland security is Arizona Gov. Janet Napolitano, multiple Democratic sources close to the transition told CNN on condition of anonymity.

One source said he believed the final decision depends on the vetting of the Democratic governor, much like the selection of Eric Holder for attorney general.

Also, multiple Democratic sources say billionaire Chicago businesswoman Penny Pritzker is Obama's choice for commerce secretary.Pritzker ran Obama's record-breaking fundraising effort, serving as the campaign's finance chair.

The sources say she will accept the job, which would be formally offered after vetting is complete. But whether the rigors of the Obama vetting process will present a challenge to a business person with no record in public office -- and presumably extensive financial holdings -- was unknown. See whose names are emerging »

Obama met last week with Sen. Hillary Clinton to discuss the possibility of her serving as secretary of state. The Obama team is also vetting her husband, former President Bill Clinton, who has made several concessions in moving the process along. Sen. Clinton'sresponse is expected this week. Watch how Obama's team wants to avoid 'distractions' »

However, a Democratic official said Wednesday that Senate leadership is considering a new role for Sen. Clinton should she decide to remain in the Senate.

Also Wednesday, three sources close to the transition said Obama has chosen former Sen. Tom Daschle to be Secretary of Health andHuman Services, and the former Senate majority leader has indicated he wants the job. Watch how Obama's Cabinet will have ties to lobbyists »

The sources said that Daschle negotiated that he will also serve as the White House health "czar," or point person, so that he will report directly to the incoming president.

By wearing two hats, Daschle -- not White House staffers -- will be writing the health care plan that Obama submits to Congress next year.

The sources said the timing of the announcement has not been worked out, but Daschle is likely to join the Obama transition team as the lead adviser on health issues in the next few weeks. Watch what the Daschle pick could mean »

An Obama transition official would not comment.

Daschle is currently billed as a "special public policy adviser" in the Washington office of the law firm Alston & Bird.

He is not a federally registered lobbyist, but his wife, Linda Daschle, is a registered lobbyist at the firm Baker Donelson, which has clients in health-related fields.

Critics question whether Obama's top staff picks so far represent the "change" that he promised during the campaign. iReport.com: Who would you choose for Obama's cabinet?

More than half of the people named to Obama's transition or staff posts have ties to President Clinton's administration.

Page 1 of 2Sources: Napolitano top choice for homeland security secretary - CNN.com

11/19/2009http://cnn.site.printthis.clickability.com/pt/cpt?action=cpt&title=Sources%3A+Napolitan...

Also Wednesday, three sources close to the transition said Obama has chosen former Sen. Tom Daschle to be Secretary of Health andHuman Services, and the former Senate majority leader has indicated he wants the job.

The sources said that Daschle negotiated that he will also serve as the White House health "czar," or point person, so that he will reportdirectly to the incoming president.

By wearing two hats, Daschle -- not White House staffers -- will be writing the health care plan that Obama submits to Congress next year.

The sources said the timing of the announcement has not been worked out, but Daschle is likely to join the Obama transition team as thelead adviser on health issues in the next few weeks.

An Obama transition official would not comment.

Daschle is currently billed as a "special public policy adviser" in the Washington office of the law firm Alston & Bird.

He is not a federally registered lobbyist, but his wife, Linda Daschle, is a registered lobbyist at the firm Baker Donelson, which has clients in health-related fields.

Critics question whether Obama's top staff picks so far represent the "change"ff that he promised during the campaign. i

More than half of the people named to Obama's transition or staff posts have ties to President Clinton's administration.

© 2008 Cable News Network

In addition to Sen. Clinton and incoming White Chief of Staff Rahm Emanuel, who is a former top aide to President Clinton, Eric Holder and Peter Orszag also have Clinton ties.

Holder, who is expected to be named attorney general, served as Clinton's deputy attorney general. Orszag, who will reportedly head the Office of Budget and Management, was Clinton's special assistant at the National Economic Council and served on the Council of Economic Advisers.

The Clinton-heavy team has caused Republicans to question Obama's call for change. Watch analysts weigh in on Obama's staff picks »

"I think several individuals are very frustrated to think that President-elect Obama may just cut and paste from some of the Democratic operatives from the Clinton administration and put them into his White House," said Leslie Sanchez, a Republican strategist and CNN contributor.

Republicans aren't the only ones who want Obama to branch out. Robert Kuttner, a liberal and author of "Obama's Challenge," says the president-elect should broaden his recruiting efforts.

"It's not as if the only competent people who ever served in government or who are capable of serving in government are veterans of the Clinton administration, so he's got to be careful how many Clintonistas he appoints to top level government posts," Kuttner said.

Before Clinton, however, Democrats had not been in the White House since Jimmy Carter, and many of those in Carter's administration are too old to serve again under Obama.

The Obama transition team said in a statement that they are dedicated to building a well-rounded administration.

"President-elect Obama is committed to putting together a competent team that is diverse in many ways, including experience. Serving in high level positions whether in government, in the private sector or in public service is seen as a positive," spokesman Nick Shapiro said.

CNN's Gloria Borger, Jason Carrol, Ed Henry, Jamie McIntyre, John King and Jessica Yellin contributed to this report.

All AboutBarack Obama • Bill Clinton

Find this article at:http://www.cnn.com/2008/POLITICS/11/19/transition.wrap/index.html

Check the box to include the list of links referenced in the article.

Page 2 of 2Sources: Napolitano top choice for homeland security secretary - CNN.com

11/19/2009http://cnn.site.printthis.clickability.com/pt/cpt?action=cpt&title=Sources%3A+Napolitan...

Close WindowHartford Looks to Hire Former Congresscritter Nancy Johnson as Its Washington DC Lobbyistby: ken_krayeske Sun Jan 11, 2009 at 12:30:27 PM EST

(Oh my... - promoted by ctblogger)

Cross-posted from the40yearplan.com

Former Congresswoman Nancy Johnson couldn't win enough votes in Connecticut's Fifth Congressional District to secure re-election in 2006.

Come Monday, January 12, Johnson needs only five votes in Hartford's Court of Common Council to win a $13,000 a month, six month lobbying contract for her new employer, the Tennessee law/lobbying firm of Baker Donelson.

That's more than $65,000 from January to June 2009, with an option to renew for another six months, to lobby for Hartford's wish list of $50 million for levee repair, and a few million more for a new public safety complex.

The city put the federal lobbying contract out to bid, and Mayor Eddie Perez's chief of staff Matt Hennessey and former mayoral aide Derek Donnelly winnowed the responses down to five finalists based on price, experience and other factors, according to City Councilman Matt Ritter.

Ritter and Council President Calixto Torres helped Hennessey and Donnelly, who was recently laid off, interview the five finalists. Baker Donelson gave the best presentation, Ritter said.

"Nancy Johnson was in the interview, but she was not the lead presenter," Ritter said. "She had three other people with her. She talked about what she does, more health care and things like that."

If Johnson will not lead Baker Donelson's team of former Congressional staffers to lobby for Hartford, why does her mug grace page one of Baker Donelson's proposal? Ritter acknowledges may be a misplay on their part.

"It's probably because she is from Connecticut," he said. But the voters of Connecticut showed her the door, and votedin Chris Murphy, whose father is Ritter's boss at the Hartford law firm of Shipman and Goodwin.

Baker Donelson won because it has expertise in environmental issues, which would help with the levee, Ritter said. Nor does Baker Donelson represent a lot of other cities.

Even still Ritter does not know if Johnson's lobbying proposal will pass

Page 1 of 3My Left Nutmeg :: Where Connecticut Dems Scratch That Progressive Itch

11/19/2009http://www.myleftnutmeg.com/showDiary.do?diaryId=10961&view=print

Even still, Ritter does not know if Johnson s lobbying proposal will pass.

"I don't know if we will have five votes," Ritter said. "It is a gamble. The fee is not contingent on them giving you success. They may not be able to get you success. I think it is a calculated risk worth taking now."

Councilman Luis Cotto doubts the need for such a $13,000 a month roll of the dice.

"That is hard pill to swallow," Cotto said. "$13,000 a month is more than I make a year. There is no guarantee. What has been our track record with lobbyists? Maybe we are wasting our money."

The $13,000 comes from a letter to the City, Cotto said. Baker Donelson's September 16, 2008 proposal calls for an $18,000 a month fee.

If it brings home $50 million, Cotto said it is probably worth it. But hiring a lobbyist begs the question - isn't this what Hartford elected Congressman John Larson to do? After all, Larson sits as one of the five most powerful Dems in the House of Representatives.

"This resolution speaks to the fact that municipalities have to compete with other municipalities," Cotto said. "It's not as simple as don't pay and yippee yiyay, Larson will get us some money."

Many constituent groups peddle different visions of Hartford to Larson, and he also has to address the needs of East Hartford, West Hartford and the rest of his district, Ritter said.

"Hartford needs to do well in this stimulus package," Ritter said of President-elect Obama's proposed trillion dollar infrastructure and economic rejuvenation bill.

"John Larson is a dear family friend, and a great Congressman for our district," Ritter said. Larson has spent time on the Capewell project, and sees that as key to Hartford's future, Ritter said.

"But he can't do everything, and it is unfair for him to do everything for us," Ritter said. "That is the decision we have to make on Monday night."

But Baker Donelson's proposal doesn't inspire much confidence. Baker Donelson is historically a Republican firm. Howard Baker, the former Tennessee Senator and one-time Chief of Staff for Ronald Reagan, is the grandson of the firm's namesake. Baker, at 83 years young, is listed in an "of counsel" capacity in the firm's materials.

The Baker Donelson proposal advertises the presence of Linda Daschle, the wife of Tom Daschle, Obama's nominee for Secretary of Health and Human Services. Linda Daschle resigned from Baker Donelson around November 18, and Baker Donelson's website has scrubbed any references to her.

Considering that this is a Democratic Congress, Ritter said he thought Daschle's departure doomed Baker Donelson, leaving it without a heavy-hitting Democrat.

"We took them off the list," Ritter said. "But according to Derek Donnelly, they have assured the city, they are hiring another major Democrat to take Linda Daschle's spot. That comforted Matt and Derek enough to go for Baker Donelson."

Big lobbying firms in Washington understand how the game is played, Ritter said, and they know they need to bring in another Democrat.

The rest of the Baker Donelson's RFP reads like boilerplate slag from the firm's website, and not just the Public Policysection directed at Hartford.

The RFP runs through pages of Baker Donelson's commitment to diversity, its Women's Initiative, and a six-page newsletter on the Federal Gulf Coast Reconstruction Bulletin, Baker Donelson's post-Katrina contract.

None of which immediately impacts Hartford. The parts of the RFP directed to Hartford should give any takers pause. For example, in the general work plan, it says Baker Donelson will "Invite key agency officials to take firsthand tours of pressing needs in the county." County? Connecticut doesn't have a county system of government, and why is Hartford paying to support the interests of suburbs?



The Baker Donelson proposal advertises the presence of Linda Daschle, the wife of Tom Daschle, Obama's nominee forSecretary of Health and Human Services. Linda Daschle resigned from Baker Donelson around November 18, and Baker Donelson's website has scrubbed any references to her.

Considering that this is a Democratic Congress, Ritter said he thought Daschle's departure doomed Baker Donelson,leaving it without a heavy-hitting Democrat.

"We took them off the list," Ritter said. "But according to Derek Donnelly, they have assured the city, they are hiring another major Democrat to take Linda Daschle's spot. That comforted Matt and Derek enough to go for Baker Donelson."

Big lobbying firms in Washington understand how the game is played, Ritter said, and they know they need to bring in another Democrat.

Hartford isn't. This is just a sloppy presentation. Considering that Baker Donelson's other clients ante up anywhere from $20,000 to $900,000, according to OpenSecrets.org, one might expect better.

Baker Donelson's general work plan for Hartford gives no insight into Eddie Perez's vision for the remainder of his term, rather, the plan provides insight into what Baker Donelson imagined it could extract from the federal government for a prospective client in a pre-Obama world.

The response doesn't talk about environmental hurdles to rebuilding levees or how a new public safety complex would help to fight crime. Instead, Baker Donelson focuses on transportation dollars from SAFETEALU - the $300 billion pork barrell surface transportation funding act that expires in September 2009.

Congress will renew SAFETEALU in 2010, funding highways and other pork transit projects like the "Bridge to Nowhere." Yet neither levees nor public safety complexes are covered in SAFETEALU's surface transportation description.

Say this for Baker Donelson - it knows where in Congress to look for dough: "Schedule City of Hartford representativesfor appearances before the Appropriations committees and develop written testimony justifying City of Hartford's projects requests and policy requests, if any." Although its grammar seems a bit off.

One would hope that Johnson, Perez et al push for mass transit and bicycle and pedestrian project funding from SAFETEALU, rather than federal funding to rebuild the Aetna Viaduct. Yet since ConnDOT has no ready plans for I-84, will shovel-ready projects get Obama's nod over Hartford's pipe dreams?

Ahhh, don't worry. Baker Donelson covers its ass: "While the federal public policy process often does not lend itself to predictable timetables, the firm constantly monitors [government actions] which could affect the client's needs."

Caveat emptor. Congress may change its mind. And Ritter said he can't disagree with this criticism.

"We won't know for six months to a year whether it was the right decision," Ritter said. "There may be five people on Council who agree with you."



Linda Daschle Categories: Politics

�

� Attended Kansas State University� Married Tom Daschle in 1984USA Today: Daschle, lobbyist wife vow to keep careers

separate (June 5, 2001)1

� Administrator of the FAA from 1993-1997� First woman ever to serve as the FAA's acting administratorBakerDonelson.com: Linda H.

Daschle Biography2

� Received the Amelia Earhart Pioneering Achievement Award in 2003BakerDonelson.com: Linda H. Daschle Biography2

� Past clients include American Airlines, Boeing and Lockheed MartinPolitico: Daschle'swife to open lobbyist firm (November 19, 2008)3

� Won Miss Kansas pageant in 1976USA Today: Daschle, lobbyist wife vow to keep careers separate (June 5, 2001)1

�

The Suffolk Group, LLCInfluential Massachusetts Lobbyists Lobbying, Regulatory, Procurementwww.thesuffolkgroup.com

Linda, Linda, Linda DVDAki Maeda & Yuu Kashii playing Blue Hearts Now In Stores!www.linda-movie.com

Hold Congress accountableCorruption won’t stop itself Find out how you can take actionwww.citizensforethics.org

�

Former administrator of the Federal Aviation Administration, Linda Hall Daschle is among the most influential and prominent lobbyists for the airline industry.BakerDonelson.com: Linda H. Daschle Biography2 On December 11, 2008, Linda Daschle's husband, former Senate Majority Leader Tom Daschle, was nominated by President-Elect Barack Obama to head the Department ofHealth and Human Services and the be the director of the White House office of health reform.CNN: Obama taps Daschle as 'lead architect' of health care plan (December 11, 2008)4

� Careful Career ChoicesAlthough some raised questions about possible ethics violations regarding the Daschle's marriage and careers, she being a lobbyist and he being a Senator, the Daschles have reportedly been careful not to cross boundaries.USA Today: Daschle, lobbyist wife vow to keep careers separate(June 5, 2001)1 When Tom Daschle joined the Senate, Linda Daschle ceased lobbying Senate staff and only resumed dealings with the Senate after her husband was no longer a member.The Hill: Linda Daschle to lobby the Senate (December 8, 2004)5 In November of 2008, when her husband's name was being mentioned in regards to a position in the Obama administration, Linda Daschle announced that she would be leaving her position as senior public policy adviser at lobbying firm

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Page 1 of 2Linda Daschle

11/21/2009http://www.mahalo.com/linda-daschle

In November of 2008, when her husband's y ( , ) ,name was being mentioned in regards to a position in the Obama administration, Linda Daschle g g p ,announced that she would be leaving her position as senior public policy adviser at lobbying firm

Baker Donelson to start her own firm. As the Daschles' new positions, although both political in nature, are in unrelated industries, there is unlikely to be any conflict of interest, according to Melanie Sloan, executive director of Citizens for Responsibility and Ethics.Politico: Daschle'swife to open lobbyist firm (November 19, 2008)3

Page 2 of 2Linda Daschle

11/21/2009http://www.mahalo.com/linda-daschle

Baker Donelson to start her own firm. A

Reflective Daschle urges Dems to 'stand up' for their beliefs By Albert Eisele - 01/04/05 07:00 PM ET

Former Senate Minority Leader Sen. Tom Daschle (D-S.D.) is urging fellow

Democrats to stay true to their party’s principles without bending to tough new

tactics contemplated by Republicans.

In a telephone interview from his home in Northwest Washington on his last

day in office, after a career spanning 26 years in Congress, Daschle

acknowledged that the “obstructionist” label was a factor in his being driven

from office by Republican John Thune.

Former Senate Minority Leader

Sen. Tom Daschle (D-S.D.) is

urging fellow Democrats to stay

true to their party’s principles

without bending to tough new

tactics contemplated by

Republicans.

In a telephone interview from

his home in Northwest

Washington on his last day in

office, after a career spanning

26 years in Congress, Daschle

acknowledged that the

“obstructionist” label was a

factor in his being driven from

office by Republican John

Thune.

patrick g. ryan

Former Senate Minority Leader Tom

Daschle at his Foxhall Road N.W. home

yesterday.

But Daschle, who just turned 57, said he hopes fellow Democrats will not back

down as a result of his loss. “I think it would be the wrong lesson to learn from

my experience — somehow not to stand up for what you believe and do the

right thing while you’re here,” he said.

Asked whether the Democrats need to change direction after losing seats in

both the House and Senate, as well as their bid for the White House, Daschle

said it was “essential that we continue to find ways to make it a stronger and

more vigorous party than it has been.” But he added, “I don’t think that it means

morphing into a second Republican Party or some entity that is not reflective of

our philosophical and political approach.”

Daschle made his comments on the eve of a trip to New York City, where he

said he plans to meet with several investment-banking and law firms about job

possibilities.

He also has spoken to a number of colleges, universities and other institutions.

He said he plans to remain involved in South Dakota issues as well, focusing on

rural development and American Indians, while doing some work with his alma

mater, South Dakota State University.

He said he doesn’t plan to become a lobbyist. “I have nothing against those who

lobby, and my wife is a very good one herself,” he said. “One in the family is

probably all we need.” Linda Daschle is a successful lobbyist for Baker

Page 1 of 3Reflective Daschle urges Dems to 'stand up' for their beliefs - TheHill.com

11/18/2009http://thehill.com/homenews/news/11213-reflective-daschle-urges-dems-to-stand-up-for-t...

Former Senate Minority Leader Sen. Tom Daschle (D-S.D.)

He said he doesn’t plan to become a lobbyist. “I have nothing against those who

lobby, and my wife is a very good one herself,” he said. “One in the family is

probably all we need.” Linda Daschle is a successful lobbyist for Baker

Donelson.

Daschle warned of the erosion of some of the Senate’s long-standing traditions

and cautioned Republicans not to undertake the so-called “nuclear” option of

forcing an end to Democratic filibusters of judicial nominees.

“I worry about the degradation of the institutional character of the Senate,” he

said. “That will be seen in a dramatic way if we go through what is commonly

referred to as the nuclear option where yet another institutional characteristic so

unique to the United States Senate will be obliterated.”

“I worry about the institution and its demise and what effect it could have on our

democracy in this republic were it to continue to erode as we’ve seen over the

course of the last few years,” he added.

Daschle took some parting shots at House Republicans, whom he has chided

for political extremism over the years, when asked about Republican leadership

efforts to change House ethics rules to protect Majority Leader Tom DeLay (R-

Texas).

“I think you see the arrogance of power,” he said, “and with that arrogance

come mistakes that not only are regrettable for the country but ultimately will be

seen as regrettable for the Republican caucus and party. This is exactly what

got Democrats in trouble in the late ’80s and early ’90s. Ironically, we’re seeing

some of the same mistakes being made again.”

Asked for his assessment of President Bush as he begins his second term,

Daschle called Bush a very “likable and disarming individual.” But he said Bush

also is “rigidly ideological and in some ways uncompromisingly partisan, and

when he is in that mode there is little you can do.”

In the face of such tactics, Democrats must stay united, Daschle said, “because

it’s only through our unity that we have any strength. As soon as we lose the

unity, we lose any negotiating ability, and ultimately then, just by picking off a

few Democrats, the president and the Republicans have all they need.”

Daschle called the debate on Social Security reform a “classic example” of a

case where the parties have profound differences. He said that Democrats

should work with Bush to make the system more viable but that the fight against

privatization is an example of where Democrats should stand their ground.

“I think it’s one of those times where Democrats urgently need to be counted

and stand up for something they feel is as important to our country as anything

we’ll be taking up this year.”

Daschle brought up his close personal relationship with former Senate Majority

Leader Trent Lott (R-Miss.), with whom Daschle worked to help steer the

Senate through President Clinton’s impeachment, the Sept. 11, 2001, attacks

and an anthrax attack on Daschle’s office.

“We were unlikely friends, and I don’t know the degree to which today Senator

Lott is even able to acknowledge that friendship, but I think it’s really what got

us through these crises we faced when we were both leaders.”



Donelson.

But he was less forthcoming when asked to assess Majority Leader Bill Frist (R-

Tenn.). “Senator Frist is a good leader, too. He has a different style. I had a

good working relationship with him as well.”

On the war in Iraq, which he and most Senate Democrats initially supported,

Daschle said the situation “is increasingly looking like a quagmire. I think that it’s

very, very difficult to see how we extricate ourselves from Iraq in the near

future.”

Asked how he would like to be remembered, Daschle replied, “I guess if I can

be remembered for anything, it would be that I was a good leader and that I

reflected well on the people of my state in leadership capacity as well as my role

as a United States senator. If that could be generally acknowledged, I guess I

would feel satisfied.”

Daschle predicted that yesterday’s swearing-in ceremony for new members,

which he didn’t attend, would be “bittersweet.” He put his visiting mother on a

plane back to Aberdeen, S.D., on Monday and said she advised him to “just

keep looking forward.”

“I think that’s about as good a piece of advice as one can have,” he said.



FROM: http://macsmind.com/wordpress/2009/02/daschles-problem-not-new-revisting-his-wifes-lobbyist-ties-in-2003/ In accordance with Federal Laws provided For Educational and Information Purposes – i.e. of PUBLIC Interest

Daschle’s Problem Not New – Revisting his wife’s lobbyist ties in 2003 01 Feb Posted by MacRanger as Uncategorized

Tom Daschle’s tax issue is simply one facet of the corruption he and his lobbyist wife have been involved in From LA Law Weekly six years ago.

“The national press corps didn‘t bother to tell you why Tom Daschle, the Democrats’ Senate leader, decided at the 11th hour not to run for president: In the end, he calculated that he couldn‘t survive scrutiny of his persistent service to the clients of his wife. Linda Daschle has been one of the airline industry’s top lobbyists for two decades — when she wasn‘t busy running the Federal Aviation Administration (FAA), which explains why, just 11 days after the 911 attacks, her husband rushed through the Democratic Senate, which he controlled, the $15 billion bailout for the airline industry, a notorious taxpayer rip-off.

Right after then-Congressman Tom Daschle dumped his first wife for a younger, prettier one, the former Miss Kansas Linda Daschle went to work as chief lobbyist for the Air Transport Association, the airline industry’s main lobby; she then became the senior vice president of the American Association of Airport Executives; and these days hangs her hat at the pricey top Washington lawlobby shop Baker, Donelson, Bearman & Caldwell, headed by former GOP Senate leader and ex–Reagan chief of staff Howard Baker — where she peddles influence on behalf of a long list of lucrative aviation clients. The clients for whom Linda lobbied brought more than $5.86 million into Baker, Donelson in one three-year period, including Northwest Airlines ($870,000 from 1997 through 2001) and American Airlines ($1.26 million in fees). Northwest was already teetering on the edge of bankruptcy even before 911. American, which has had six fatal crashes since 1994 (not counting 911) and has been repeatedly fined by the FAA for a skein of safety violations, had the reputation as the most unsafe major U.S. carrier.

Yet these two clients of Linda Daschle‘s got nearly $1 billion from the airline bailout her husband pushed into law — thanks to which Northwest (which was the second largest contributor to Senator Daschle’s 1998 campaign, and which scooped up $404 million in government cash) actually posted a $19 million profit in the third quarter after the twin-towers attacks. And, as the lone senator to vote against the bailout, Illinois GOPer Peter Fitzgerald, decried, “The only people who got bailed out were the shareholders. The 1 million airline employees were left twisting in the wind.” So much for the populist noises that occasionally come from Senator Daschle‘s mouth. The Daschles also made sure that the bailout exempted American (which has consistently lobbied against tougher airline safety standards) and other carriers with lousy safety records from any real liability to lawsuits from the families of 911 victims. Moreover, the General Accounting Office found that the airline industry’s representations to Congress to secure the bailout overstated its anticipated losses from 911 by as much as $5 billion.

Before 911, Senator Daschle pushed through the sleazy deal in the backrooms of Capitol Hill that forced the FAA to buy defective baggage scanners from one of Linda‘s other clients, L-3 International (from which Linda’s firm raked in $440,000 in the ‘97–’01 period). Under a provision Linda‘s husband had slipped into the 2000 budget for the U.S. Department of Transportation (DOT), the FAA was required to buy one of L-3’s scanners for every one it purchased from the company‘s competitors. The L-3 scanners were found to be substandard by DOT’s inspector general; FAA tests of the scanners showed high failure rates; and most have not yet been installed because of their

defects (the one at the Dallas–Fort Worth airport — another of Linda‘s clients — leaked radiation), which is a major reason DOT says it won’t be able to screen all luggage for explosives for years to come.

In one of those corporate-coddling moves for which the Clinton administration became infamous, President Bubba appointed Linda Daschle deputy administrator of the FAA, putting her in charge of regulating her once-and-future clients; and she wound up running the agency as acting administrator. This, of course, significantly boosted the Daschle family income by hyping the amount Linda could charge her clients when she left government service. She didn‘t wait long to cash in. Example: While running the FAA, she awarded Loral Space Technologies (a major Democratic contributor that figured in the ’96 campaign-finance scandals) a nearly $1 billion contract from the federal government; after Linda passed through the revolving door to Baker, Donelson, Loral paid the lobby shop $740,000 in 2000-2001 for Linda‘s services. When the FAA was pondering making mandatory a criminal-background check for all airport employees, Linda, who was then running the agency, vigorously opposed this common-sense move — echoing the position of the airline-industry lobby that had previously employed her.

A particularly odiferous episode involved charges that the senator and his wife had tried to sabotage safety inspections of an air-charter firm owned by Murl Bellew, a Daschle family friend who taught Tom how to fly. The scandal erupted and triggered an official investigation when a Bellew small plane chartered by the Indian Health Service crashed in North Dakota, killing the pilot and three doctors en route to an Indian-reservation clinic. Forest Service inspectors had been arguing that Bellew’s firm should be banned from getting government contracts because the operation had been unsafe for years. Senator Daschle obligingly pushed legislation taking the Forest Service out of the business of inspecting small-plane carriers, and senior FAA bureaucrats said Linda had also tried to submarine a proposal to train Forest Service inspectors to conduct FAA investigations. An FAA inspector reported a cover-up: Documents showing the Daschles‘ assiduous efforts to minimize inspections of Bellew’s planes were shredded by FAA officials under Linda‘s thumb. While an I.G. report failed to find Linda guilty of any lawbreaking, there’s an old saying in Washington: The scandal isn‘t what’s illegal, the real scandal is what‘s legal.”

FROM: http://www.laweekly.com/2003-01-23/news/i-m-linda-fly-me/ In accordance with Federal Laws provided For Educational and Information Purposes – i.e. of PUBLIC Interest

News

I’m Linda, Fly Me The real reason Tom Daschle didn’t run for president

By Doug Ireland Thursday, Jan 16 2003

The national press corps didn‘t bother to tell you why Tom Daschle, the Democrats’ Senate leader, decided at the 11th hour not to run for president: In the end, he calculated that he couldn‘t survive scrutiny of his persistent service to the clients of his wife. Linda Daschle has been one of the airline industry’s top lobbyists for two decades -- when she wasn‘t busy running the Federal Aviation Administration (FAA), which explains why, just 11 days after the 911 attacks, her husband rushed through the Democratic Senate, which he controlled, the $15 billion bailout for the airline industry, a notorious taxpayer rip-off.

Right after then-Congressman Tom Daschle dumped his first wife for a younger, prettier one, the former Miss Kansas Linda Daschle went to work as chief lobbyist for the Air Transport Association, the airline industry’s main lobby; she then became the senior vice president of the American Association of Airport Executives; and these days hangs her hat at the pricey top Washington lawlobby shop Baker, Donelson, Bearman & Caldwell, headed by former GOP Senate leader and ex--Reagan chief of staff Howard Baker -- where she peddles influence on behalf of a long list of lucrative aviation clients. The clients for whom Linda lobbied brought more than $5.86 million into Baker, Donelson in one three-year period, including Northwest Airlines ($870,000 from 1997 through 2001) and American Airlines ($1.26 million in fees). Northwest was already teetering on the edge of bankruptcy even before 911. American, which has had six fatal crashes since 1994 (not counting 911) and has been repeatedly fined by the FAA for a skein of safety violations, had the reputation as the most unsafe major U.S. carrier.

Yet these two clients of Linda Daschle‘s got nearly $1 billion from the airline bailout her husband pushed into law -- thanks to which Northwest (which was the second largest contributor to Senator Daschle’s 1998 campaign, and which scooped up $404 million in government cash) actually posted a $19 million profit in the third quarter after the twin-towers attacks. And, as the lone senator to vote against the bailout, Illinois GOPer Peter Fitzgerald,

decried, “The only people who got bailed out were the shareholders. The 1 million airline employees were left twisting in the wind.” So much for the populist noises that occasionally come from Senator Daschle‘s mouth. The Daschles also made sure that the bailout exempted American (which has consistently lobbied against tougher airline safety standards) and other carriers with lousy safety records from any real liability to lawsuits from the families of 911 victims. Moreover, the General Accounting Office found that the airline industry’s representations to Congress to secure the bailout overstated its anticipated losses from 911 by as much as $5 billion.

Before 911, Senator Daschle pushed through the sleazy deal in the backrooms of Capitol Hill that forced the FAA to buy defective baggage scanners from one of Linda‘s other clients, L-3 International (from which Linda’s firm raked in $440,000 in the ‘97--’01 period). Under a provision Linda‘s husband had slipped into the 2000 budget for the U.S. Department of Transportation (DOT), the FAA was required to buy one of L-3’s scanners for every one it purchased from the company‘s competitors. The L-3 scanners were found to be substandard by DOT’s inspector general; FAA tests of the scanners showed high failure rates; and most have not yet been installed because of their defects (the one at the Dallas--Fort Worth airport -- another of Linda‘s clients -- leaked radiation), which is a major reason DOT says it won’t be able to screen all luggage for explosives for years to come.

In one of those corporate-coddling moves for which the Clinton administration became infamous, President Bubba appointed Linda Daschle deputy administrator of the FAA, putting her in charge of regulating her once-and-future clients; and she wound up running the agency as acting administrator. This, of course, significantly boosted the Daschle family income by hyping the amount Linda could charge her clients when she left government service. She didn‘t wait long to cash in. Example: While running the FAA, she awarded Loral Space Technologies (a major Democratic contributor that figured in the ’96 campaign-finance scandals) a nearly $1 billion contract from the federal government; after Linda passed through the revolving door to Baker, Donelson, Loral paid the lobby shop $740,000 in 2000-2001 for Linda‘s services. When the FAA was pondering making mandatory a criminal-background check for all airport employees, Linda, who was then running the agency, vigorously opposed this common-sense move -- echoing the position of the airline-industry lobby that had previously employed her.

A particularly odiferous episode involved charges that the senator and his wife had tried to sabotage safety inspections of an air-charter firm owned by Murl Bellew, a Daschle family friend who taught Tom how to fly. The scandal erupted and triggered an official investigation when a Bellew small plane chartered by the Indian Health Service crashed in North Dakota, killing the pilot and three doctors en route to an Indian-reservation clinic. Forest Service inspectors had been arguing that Bellew’s firm should be banned from getting government contracts because the operation had been unsafe for years. Senator Daschle obligingly pushed legislation taking the Forest Service out of the business of inspecting small-plane carriers, and senior FAA bureaucrats said Linda had also tried to submarine a proposal to train Forest Service inspectors to conduct FAA investigations. An FAA inspector reported a cover-up: Documents showing the Daschles‘ assiduous efforts to minimize inspections of Bellew’s planes were shredded by FAA officials under Linda‘s thumb. While an I.G. report failed to find Linda guilty of any lawbreaking, there’s an old saying in Washington: The scandal isn‘t what’s illegal, the real scandal is what‘s legal.

It’s a sign of how lazy, blinkered and source-coddling the Beltway‘s national press corps is when one considers that none of all this made the dissections of the senator’s presidential withdrawal -- even though a tough piece by the Washington Monthly‘s Stephanie Mencimer in the January 2002 issue laying out much of it was still on newsstands. As she observed, “It doesn’t take Lee Atwater to see how Mrs. Daschle‘s professional life might play out in a nasty re-election or presidential campaign: ’Sen. Daschle‘s wife lobbyist for nation’s most dangerous airline,‘ or ’majority leader‘s wife lobbied to make airlines less safe.’”

Linda Daschle has tried to pooh-pooh her obvious conflicts of interest as an influence peddler, telling The New York Times last August that the staff members she lobbies “are pretty junior and may or may not know who I am” -- a mind-boggling, risible assertion. But her senatorleader husband has always refused to make public his and his wife‘s tax returns, despite repeated press requests. As a presidential candidate, Tom Daschle could not have avoided giving the press a look at those returns -- which would have spelled out just how much cash Linda brings in from her clients.

FROM: http://www.usatoday.com/news/washington/june01/2001-06-06-daschle-linda.htm In accordance with Federal Laws provided For Educational and Information Purposes – i.e. of PUBLIC Interest

06/05/2001 - Updated 06:59 PM ET

Daschle, lobbyist wife vow to keep careers separate

By Jim Drinkard, USA TODAY

WASHINGTON — Tom Daschle's rise to the helm of the Senate spotlights an awkward fact of life for Washington's power couples: When professional lives intertwine, ethical conflicts can follow.

The South Dakota Democrat's wife, Linda, is a lobbyist who mostly represents airlines, aircraft makers and other aviation-related interests — all of which have a steady stream of issues before the Senate. As majority leader, Tom Daschle has the power to set the Senate's agenda.

Linda Daschle says she will deal with that potential pitfall the way she has since she resumed her lobbying career in 1997: by never lobbying her husband or any member or committee of the Senate. "With dual careers in public policy, you need to be careful and take steps to avoid any appearance problem," she says. "I feel very comfortable with my activities."

Baker, Donelson,

Bearman & Caldwell

Linda Daschle.

Linda Daschle's clients

These are the companies and groups represented by Linda Daschle, a lobbyist and wife of new Senate Majority Leader Tom Daschle, D-S.D.:

• American Airlines. • American Association of Airport Executives. • American Concrete Pavement Association. • American Trucking Associations. • Boeing. • Centennial Airport, Englewood, Colo. • Hopkins International Airport, Cleveland. • L-3 Communications, makers of cockpit technology. • Loral Space and Communications. • Northwest Airlines.

Ethics groups say Daschle's new job makes it even more important that he and his wife keep their business separate. "They have to make sure she's not given any special favor because of who she's married to, and that he not get involved in anything she is directly lobbying," says Larry Noble, director of the Center for Responsive Politics, which researches links between political money and public policy. "This is a problem for a lot of couples now in Washington."

For example, when Dick Cheney became vice president, it called attention to the many business connections of his wife, Lynne, who serves on two corporate boards. Sen. Tom Harkin, D-Iowa, the new chairman of the agriculture committee, is married to lobbyist Ruth Harkin.

For such two-career couples, the most common issue raised by ethics watchdogs is the appearance that relatives of powerful policymakers are snagging lucrative clients because of who they know, rather than what they know. In some cases, the arrangement can look like an indirect payoff to the public official.

In Linda Daschle's case, that possibility seems remote because most of her lobbying is in a field where she has long-standing expertise and contacts. For five years — from 1993 to 1997 — she was deputy administrator of the Federal Aviation Administration. She served for the last few months as the agency's acting administrator. She was a top manager at the Civil Aeronautics Board from 1980 to 1984 and worked for aviation trade groups during a 20-year Washington career.

Her client list includes airlines American and Northwest, aircraft maker Boeing, and aviation technology companies L-3 Communications, Loral and United Technologies. She also represents airport executives, airports in Cleveland and Englewood, Colo., and a trade association for concrete paving contractors. Those clients paid Daschle's law and lobbying firm, Baker, Donelson, Bearman & Caldwell, about $1.1 million in the year ending last June, the most recent records available.

One client that attracted attention because it was outside Daschle's normal area of expertise was Schering-Plough, the pharmaceutical giant that sought unsuccessfully last year to extend the patent life of its allergy drug, Claritin. Several ethics groups said the lucrative lobbying arrangement smacked of buying special access.

But Marc Miller, a Washington attorney who has studied the potential conflicts that arise for congressional spouses, says it appears that Tom and Linda Daschle's arrangements more than meet normal ethics guidelines.

Miller says disclosure of lobbying relationships is a key to avoiding conflicts. "If in the next reporting period, she starts to show a whole bunch of brand-new clients in areas other than aviation, that would be a red flag," he says.

Linda Daschle, 46, was born in Oklahoma and educated at Kansas State University. She became a weather observer for the FAA while in college. She won the Miss Kansas competition in 1976 before going to Washington to launch her career. She and the senator were married in 1984, the year after he and his first wife, Laurie, were divorced.

• Schering-Plough, a pharmaceutical company. • United Technologies, a defense contractor.

Source: Secretary of the Senate

And that, children, was the ticking time bomb that would inevitably have exploded if the senator had sought the White House -- and is the bottom-line reason he chose not to run.

Daschle, Linda H (individual profile)

LobbyistLHD & Assoc (firm profile)

Employment Timeline

Employment HistoryPeriod Employer Title Additional Info

2009- LHD & AssocRevolving Door Personnel: (1)

Firm lobbying profileMajor Donor profile

1998-2009 Baker, Donelson et alRevolving Door Personnel: (40)

Senior Public Policy Advisor Firm lobbying profileMajor Donor profile

1997- Federal Aviation AdministrationRevolving Door Personnel: (42)

Senior Public Policy Advisor Agency lobbying profile

1993-1997 Federal Aviation AdministrationRevolving Door Personnel: (42)

Deputy Administrator Agency lobbying profile

1987-1993 American Assn of Airport ExecutivesRevolving Door Personnel: (5)

Senior Vice President Client lobbying profileMajor Donor profile

1985-1987 Air Transport Assn of AmericaRevolving Door Personnel: (23)

Director, Federal Affairs Client lobbying profileMajor Donor profile

1980-1984 Civil Aeronautics BoardRevolving Door Personnel: (8)

Director/Regional Director

Lobbying Firm Private Sector Federal Govt. State/Local Govt.

For registered lobbyists, employment histories may be incomplete prior to 1998 because the Senate Office of Public Records does not make registrations andreports available electronically for those years.

Feel free to distribute or cite this material, but please credit the Center for Responsive Politics. For permission to reprint for commercial uses, such as textbooks, contact the Center.

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Not Reported in F.Supp.2d, 2008 WL 5132047 (N.D.Miss.) (Cite as: 2008 WL 5132047 (N.D.Miss.))

Motions, Pleadings and Filings Judges and Attorneys Only the Westlaw citation is currently available.

United States District Court, N.D. Mississippi, Eastern Division.

Judd and Donna HAMBRICK, Plaintiffs, v.

BEAR STEARNS RESIDENTIAL MORTGAGE a/k/a Encore Credit Corp. a/k/a Performance Credit Corp and Wells Fargo Bank, N.A. d/b/a America's Servicing Company, Defendants.

Civil Action No. 1:07CV258-P-D.

Dec. 5, 2008.

West KeySummaryDamages 115 57.40 115 Damages 115III Grounds and Subjects of Compensatory Damages 115III(A) Direct or Remote, Contingent, or Prospective Consequences or Losses 115III(A)2 Mental Suffering and Emotional Distress 115k57.40 k. Debt Collection Practices. Most Cited Cases

Dismissal of mortgage borrowers' negligent infliction of emotional distress claim against lenders was warranted for failure to allege demonstrable physical harm. The borrowers' complaint alleged only “emotional distress and mental anguish,” but did not allege a demonstrative physical harm and instead concentrated on the outrageous nature of “giving a mortgage that will result in foreclosure.” Michael Burnis McHenry, Gleason & McHenry, Tupelo, MS, for Plaintiffs. Frederick Natale Salvo, III, Sheryl Bey, Baker, Donelson, Bearman & Caldwell, James Shelson, Phelps Dunbar, Jackson, MS, for Defendants.

MEMORANDUM OPINION W. ALLEN PEPPER, JR., District Judge.

*1 These matters come before the court upon Bear Stearns Residential Mortgage and Encore Credit Corp.'s motions to dismiss, or in the alternative, motions for summary judgment [42, 47 respectively]. After due consideration of the motions and the responses filed thereto, the court is prepared to rule.

I. FACTUAL BACKGROUND Judd and Donna Hambrick obtained a mortgage loan from Encore Credit Corp. on or about January 13,

2006. On November 5, 2007 the Hambricks filed the instant action. On August 20, 2008 they filed their Second Amended Complain wherein they allege the following causes of actions against Bear Stearns and Encore: (1)


Page 2 of 7


Frederick Natale Salvo, III, Sheryl Bey, Baker, Donelson, Bearman & Caldwell, James Shelson, Phelps Dunbar,Jackson, MS, for Defendants.

, ,

EXHIBIT "40"


“predatory lending”; (2) violation of Regulation Z of the Truth in Lending Act; and (3) intentional or negligent infliction of emotional distress.

Defendants Bear Stearns and Encore filed the instant motions wherein they seek dismissal of the plaintiffs' claims against them for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Alternatively, these defendants seek summary judgment.

II. DISCUSSION A. Motion to Dismiss Standards

Pursuant to Fed.R.Civ.P. 12(b)(6) a defendant may file a motion to dismiss a plaintiff's claim or claims for failure to state a claim upon which relief can be granted. The traditional test for ruling upon a 12(b)(6), as announced in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), is “in appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” However, the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1968-69, 167 L.Ed.2d 929 (2007) “retired” that test, stating instead that:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Factual allegations must be enough to raise a right to relief above the speculative level, [and] “the pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

127 S.Ct. at 1964-65. (some citations omitted for clarity).

Thus, the court must determine whether the defendants has established that the plaintiff's factual allegations

in her Complaint, taken as true, are enough to raise a right to relief above the speculation level.

*2 With regard to converting a Rule 12(b)(6) motion into one for summary judgment, Fed.R.Civ.P. 12(b) provides in pertinent part:

If, on a motion asserting the defense numbered (6) to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleadings are presented to an not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Thus, if the court considers matters outside the pleadings in ruling upon a Rule 12(b)(6) motion to dismiss,

the court must convert the motion to one for summary judgment. Tuley v. Heyd, 482 F.3d 590, 592 (5th Cir.1973). However, “[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim.” Causey v. Sewell Ca- dillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.2004).

Since it will not be consulting matters outside of the pleadings, the court will treat the instant motions as Rule 12(b)(6) motions to dismiss.


Page 3 of 7



B. Analysis At issue in this discussion is only the plaintiff's claims asserted against Bear Stearns and Encore-i.e.,

“predatory lending,” violation of Regulation Z of the TILA, and intentional or negligent infliction of emotional distress. 1. “Predatory Lending” Claim

The defendants are correct that the plaintiffs have not cited any Mississippi or applicable federal law, precedential or statutory, creating a cause of action for “predatory lending.” The court is unaware of any such cause of action. In response to the defendants' motions, the plaintiffs cite the Mississippi Mortgage Consumer Protec- tion Law, Miss.Code Ann. § 81-18-27, for the proposition that there is such a cause of action even if not under the precise rubric of “predatory lending” and even though the Second Amended Complaint does not cite any specific authority for the cause of action.

Encore argues that § 81-18-7 (the licensing statute) and § 81-18-27 were repealed. However, according to § 81-18-51, “Sections 81-18-1 through 81-18-49 [of the Mississippi Mortgage Consumer Protection Law] shall stand repealed on July 1, 2012.” Accordingly, the repeal of the statute in question is not yet effective.

Nevertheless, the defendants are correct that the Mississippi Legislature did not provide a private remedy for violation of the MMCPL. Section 81-18-39, regarding cease and desist orders, injunctive relief, and civil penalties, specify only that the Mississippi Department of Banking and Consumer Finance can enforce § 81-18-27. Similarly, in § 81-18-43, the Department is given sole authority to enforce the MMCPL through criminal penalties.

Thus, since there is no private remedy for a violation of the MMCPL, the defendants have met their burden in demonstrating that the factual allegations in the plaintiffs' Complaint, even taken as true, are insufficient to raise a right to relief for “predatory lending” above the speculation level. Accordingly, this claim should be dismissed with prejudice. 2. The TILA and Regulation Z Claim

*3 Count 2 of the Second Amended Complaint asserts that Bear Stearns and Encore are liable for violating various sections of the Truth in Lending Act, 15 U.S.C. § 1601 et seq. and Regulation Z, 12 C.F.R. Pt. 226 et seq.

The defendants argue that any claims based on the TILA and Regulation Z are time barred since the applicable statute of limitations period pursuant to 15 U.S.C. 1640(e) is one year and the plaintiffs obtained their home loan on January 13, 2006-approximately one year and ten months before they filed their original Complaint on November 5, 2007. The plaintiffs counter that pursuant to 15 U.S.C. § 1635(f), the statute of limitations period for a Regulation Z claim is three years. The defendants argue that the three year statute of limitation found in § 1635(f) only applies to rescission and the plaintiff have not requested the remedy of rescission. Rather, Count 2 of the Second Amended Complaint confines itself to monetary relief, stating: “By reason of the aforesaid violations of the Act and Regulation Z, defendant is liable to plaintiff in the amount of twice the finance charge, actual damages to be established at trial, and attorneys fees and costs in accordance with 15 U.S.C. § 1640.” Second Amended Complaint at ¶ 23.

Section 1640(e) provides in pertinent part: “Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.” The defendants are correct that § 1635(f)'s three-year statute of limitations period applies


Page 4 of 7



to rescission. The court thus concludes that because the Second Amended Complaint does not seek the remedy of rescission, the one-year statute of limitations period applies to the plaintiff's TILA and Regulation Z claims. Because the plain language of Count 2 confines itself to monetary relief, as previously cited, and because Count 2 also confines itself to “[t]he disclosure statement issued in conjunction with this consumer credit transaction,” Second Amended Complaint at ¶ 23, which occurred on January 13, 2006, the court concludes that the plaintiff's TILA and Regulation Z claims are time barred by 15 U.S.C. § 1640(e).

Accordingly, the Count 2 should be dismissed with prejudice. 3. Intentional or Negligent Infliction of Emotional Distress

Count 6 of the Second Amended Complaint alleges that Bear Stearns and Encore are liable for intentional or negligent infliction of emotional distress by repeatedly failing to accept mortgage payments and increasing the amounts due, preventing the plaintiffs from making informed decisions by constantly threatening to foreclose unless the plaintiffs paid additional money immediately, and failing to disclose material information within the defendants' sole control-all of which contributed to emotional and mental anguish.

The defendants argue that the intentional infliction of emotional distress claim is barred by the one-year statue of limitation period for intentional torts pursuant to Miss.Code. Ann. § 15-1-35. The plaintiffs did not respond to the defendants' statute of limitations argument. The defendants are correct that the plaintiffs' factual allegations against Encore and/or Bear Stearns are limited to the origination of the subject home loan on January 13, 2006. See Second Amended Complaint at ¶ 11. Consequently, the plaintiffs' intentional infliction of emotional distress claim against Bear Stearns and Encore are time barred pursuant to § 15-1-35.

*4 The statute of limitations period for a negligent infliction of emotional distress, however, is three years, rather than one-given that such a cause of action does not allege intentional conduct covered by § 15-1-35. See Randolph v. Lambert, 926 So.2d 941, 946 (Miss.Ct.App.2006). Even though the Second Amended Complaint confines its allegations against Bear Stearns and Encore to the January 13, 2006 origination of the subject loan, a claim for negligent infliction of emotional distress arising therefrom would not be barred by a three-year statute of limitations. Therefore, the court must determine whether the plaintiff has stated a claim for negligent infliction of emotional distress that is beyond speculative.

Unlike the tort of intentional infliction of emotional distress, “[a] plaintiff may not recover for a claim of negligent infliction of emotional distress without showing that he or she suffered a physical injury.” Waters v. Allegue, 980 So.2d 314, 318 (Miss.Ct.App.2008) (citing Wilson v. GMAC, 883 So.2d 56, 65 (Miss.2004); see also Community Bank, Ellisville, Mississippi v. Courtney, 884 So.2d 767, 775 (Miss.2004); Ill. Centr. R.R. v. Hawkins, 830 So.2d 1162, 1174 (Miss.2002) (where an alleged tort is “one of ordinary garden variety negli- gence [as opposed to intentional in nature], the plaintiffs ... have to prove some sort of injury, whether it be physical or mental. If the conduct was not malicious, intentional or outrageous, there must be some sort of demonstrative harm.”).

In other words, since the plaintiffs' intentional infliction of emotional distress claim is time barred, the onus is upon the plaintiff to allege a demonstrative physical harm rather than relying solely upon allegations of outrageous conduct. The plaintiffs do not allege a demonstrative physical harm. Rather, the Second Amended Com- plaint alleges only “emotional distress and mental anguish.” Neither do the plaintiffs allege a demonstrative physical harm in their briefs. In response to the defendants' arguments regarding their negligent infliction of emotional distress claim, the plaintiffs concentrate on the outrageous nature of “giving a mortgage that will res-


Page 5 of 7



ult in foreclosure” being a factual issue.

Thus, the court concludes that the plaintiffs negligent infliction of emotional distress claim does not ariseabove the speculation level given there is no allegation of demonstrable physical harm. Accordingly, this claimshould be dismissed with prejudice.

III. CONCLUSION For the reasons discussed above, Bear Stearns Residential Mortgage and Encore Credit Corp.'s motions to

dismiss [42, 47 respectively] should be granted and the plaintiffs' claims against them should be dismissed withprejudice. Accordingly, a Partial Final Judgment shall issue forthwith, N.D.Miss.,2008. Hambrick v. Bear Stearns Residential Mortg. Not Reported in F.Supp.2d, 2008 WL 5132047 (N.D.Miss.) Motions, Pleadings and Filings (Back to top) �� 2009 WL 2057580 (Trial Motion, Memorandum or Affidavit) Memorandum in Support of Motion to Dismissor, Alternatively, for Summary Judgment (Mar. 6, 2009) Original Image of this Document (PDF) �� 2008 WL 6567721 (Trial Motion, Memorandum or Affidavit) Encore Credit Corp.'s Reply in Support of Mo-tion to Dismiss or, Alternatively, for Summary Judgment (Nov. 6, 2008) Original Image of this Document (PDF) �� 2008 WL 2908452 (Trial Pleading) First Amended Complaint (May 21, 2008) Original Image of this Docu-ment (PDF) ��1:07cv00258 (Docket) (Nov. 5, 2007) Judges and Attorneys(Back to top) Judges | Attorneys Judges � Pepper, Hon. W. Allen Jr. United States District Court, Northern Mississippi Greenville, Mississippi 38701 Litigation History Report | Judicial Motion Report | Judicial Reversal Report | Judicial Expert Challenge Report |Profiler Attorneys Attorneys for Defendant � Bey, Sheryl Jackson, Mississippi 39211 Litigation History Report | Profiler


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� Salvo, Frederick Jackson, Mississippi 39211 Litigation History Report | Profiler � Shelson, James William Jackson, Mississippi 39211 Litigation History Report | Profiler Attorneys for Plaintiff � McHenry, Michael B. Tupelo, Mississippi 38804 Litigation History Report | Profiler END OF DOCUMENT


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v-card »

3 Sanctuary BoulevardSt 201Mandeville, Louisiana 70471T: 985.819.8416F: 985.819.6716Email

Shareholder

Gerardo R. Barrios

Gerardo R. Barrios

Gerardo "Gerry" R. Barrios, shareholder in the Mandeville office, concentrates his practice in the

areas of construction law and commercial litigation. Mr. Barrios has broad experience with

international commercial disputes between U.S. and foreign companies, product liability, toxic torts,

expropriation, appellate litigation and other areas of general commercial litigation. He has substantial

litigation experience handling complex cases before federal and state courts, as well as through the

use of alternative dispute resolution, such as arbitration and mediation.

In the areas of construction law, Mr. Barrios has represented owners, contractors, subcontractor and

design professionals in all aspects of construction, including construction contract negotiation and

drafting, pre-claim counseling during construction, and resolving construction disputes before Federal

and State courts and arbitration panels. His dispute resolution experience includes representation on claims of breach of contract,

change orders, defective work, delay, disruption, inefficiency, differing site conditions, unfair trade practices, liens, Miller Act claims and

other construction-related claims.

Mr. Barrios previously practiced law as a partner in the commercial litigation group of the New Orleans office of Phelps Dunbar, LLP for

ten years and as an associate in the Washington, D.C., office of Covington & Burling for two years. He also served as a law clerk for the

Honorable Robert R. Beezer on the U.S. Court of Appeals for the Ninth Circuit in Seattle, Washington, from 1987 – 1988. Mr. Barrios'

family is from Colombia, South America, and he speaks Spanish.

Publications & Speaking Engagements

Co-Author – "A 'Consumer' in One Jurisdiction May Not Have Standing in Another, " ABA Business Torts Journal, Vol. 14, No. 3,

Spring 2007

Co-Author – "Standing Under the LUTPA – The Circuit Split Widens," Louisiana Bar Journal, Vol. 54, No. 5, February/March 2007

Speaker – "Hurricane Katrina: Recovery and Future Prospects," British-American Project Annual Conference, Birmingham,

England, November 2005

Speaker – "Defining the Public interest, British-American Project Annual Conference, Washington, D.C., November 2002

Louisiana Technology Journal, former contributing author

"What to Do Now - the Legal Aspects of Y2K," Louisiana Technology Journal, 1999, contributing author

"Y2K and the Law," Louisiana Technology Journal, 1999, contributing author

Baker Donelson | Professionals | Gerardo R. Barrios http://www.bakerdonelson.com/gerardo-r-barrios/

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Mr. Barrios previously practiced law as a partner in the commercial litigation group of the New Orleans office of Phelps Dunbar, LLP for

ten years and as an associate in the Washington, D.C.,

EXHIBIT "41"

"The Alien Tort Statute: Domestic Enforcement of Customary International Law," Essays on International Human Rights, 1991

Speaker, "CLE Seminar on Technology Legal Issues," Tulane Law School

Professional Honors & Activities

American Bar Association

Assistant Secretary, Council of the ABA section of International Law & Practice (2000 – 2001)

Co-Chair, Unfair Trade Practices Subcommittee of the Business Torts Litigation Committee, ABA Section of Litigation

(2006 – 2010)

Editor, ABA Business Torts Journal (2009 – 2010)

Forum on the Construction Industry

Former Member, Dispute Resolution Section

Practice Assistance and Improvement Committee

Alternative Dispute Resolution Section

Legal Fee Dispute Subcommittee

Louisiana State Bar Association

New Orleans Bar Association

AV® Preeminent™ Peer Review Rated by Martindale-Hubbell

Listed in The Best Lawyers in America® in the area of Construction Law since 2009

Recognized as a "Top Lawyer" in Construction Law by New Orleans Magazine, 2010

Leadership St. Tammany (Class of 2006)

Associate Member – Associated Builders and Contractors

Member – Tulane Latin American Law Institute since 2009

Member – Hispanic Chamber of Commerce of Louisiana

Member – Hispanic Lawyers Association of Louisiana

Member – Greater Covington Bar Association

Member – World Trade Center of New Orleans

Selected by New Orleans CityBusiness to its Power Generation III - 2001 ("Forty Faces of the Future" - One of "40 outstanding and

promising professionals under the age of 40 who are making a mark as a leader in business and their profession, and who are

innovative, energetic and successful with their own careers and in the community.")

U.S. Fellow and Regional Nominating Chairman - British-American Project

U.S. Delegate – British-American Project Conference, Harrogate, U.K. (Nov. 1999)

Charter Member and Co-Founder, George Washington Latino Law Alumni Association

Executive Board Member – George Washington Law Alumni Association (1998 – 2002, 2009 – present); Strategic Planning

Committee (2009 – present)

Arbitrator, Legal Fee Dispute Arbitration Program, Louisiana State Bar Association


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NITA Trial Advocacy Graduate, July 1998, San Diego, CA

Law Firm Representative – Trade Mission to Honduras and Guatemala, MetroVision/Chamber of Commerce (June 1997)

Hiring Partner (1996 – 1998) and United Way Partner (1996), Phelps Dunbar, LLP

Admissions

Louisiana, 1992

District of Columbia, 1989

U.S. Court of Appeals for the District of Columbia Circuit

U.S. Court of Appeals for the Fifth Circuit

U.S. Court of Appeals for the Tenth Circuit

U.S. District Court for the District of Columbia

U.S. District Court for the District of Minnesota

U.S. District Court for the Eastern, Middle and Western Districts of Louisiana

Education

George Washington University Law School, J.D., 1987, High Honors; Articles Editor, George Washington Law Review; Order of

the Coif; Honors, Moot Court

Louisiana State University, B.A., 1984, summa cum laude

University of Essex, Centre of International Human Rights Law, 1989 (Rotary Foundation Scholar)


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Hiring Partner (1996 – 1998) and United Way Partner (1996), Phelps Dunbar, LLP

Published on �� (http://nashvillepost.com)

��

Local attorney to head Tennessee efforts for regional firm

Published March 2, 2010 by Geert De Lombaerde

Baker Donelson Bearman Caldwell & Berkowitz has launched a gaming industry teamto represent operators before the region's state gaming commissions and otherregulatory bodies.

The �� [2] will be led by Dan McDaniel, a former Phelps Dunbarattorney who recently joined Baker Donelson's Jackson, Miss., office as shareholder.Among the state vice chairs is Joel Buckberg, of counsel in Baker Donelson's Nashvilleoffice. Buckberg is a former deputy general counsel for Cendant Corp. who specializesin working with hospitality, franchising and distribution companies.

"Gaming clients face issues that call for experienced legal representation in every stepof the process, including the pre-licensing, licensing and post-licensing phases," said

McDaniel. "I'm proud to lead a group of professionals with extensive experience in gaming law and well-earnedreputations as leaders in the gaming industry."

��

�� !�!"�!��!�#$

Dan McDaniel, a former Phelps Dunbarattorney who recently joined Baker Donelson's Jackson, Miss., office as shareholder.

Anne Ligman Turner Joins Baker Donelson's Corporate/M&APracticeAnne Ligman Turner

February 21, 2012

(Jackson, MS/February 21, 2012) Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,announces the addition of Anne Ligman Turner to the Firm's Jackson, Mississippi office. Shewas previously counsel with Phelps Dunbar LLP.

Ms. Turner, who joins as of counsel and a member of Baker Donelson's Corporate/Mergers &Acquisitions Practice Group, practices in the area of intellectual property, corporatetransactional and tax law for clients with domestic and international interests, especially thosein the geophysical and oil and gas exploration industries. Her intellectual property experienceencompasses a wide variety of matters and includes software licensing and developmentagreements (including for mobile platforms), trademark and copyright counseling, registrationand maintenance and the negotiation of domestic and international patent, trademark,copyright and trade secret license agreements.

A 1995 graduate of the University of San Diego School of Law, Ms. Turner also holds anLL.M. in Taxation from the University of San Diego School of Law.

"Ms. Turner's unique blend of experience in intellectual property and corporate transactionswill complement our well-established practices in each of these areas," noted William S.Painter, managing shareholder of Baker Donelson's Jackson office. "We're pleased towelcome her as we continue to broaden the service and experience available to serve ourclients' needs."

News Contact:

Johanna Burkett901.577.2201

Related Practices

Intellectual Property

Mergers and Acquisitions

Taxation - Federal Income,

Employment & Other

Offices

Jackson

Baker Donelson | News & Events | News | February 21, 2012 - Anne Ligm... http://www.bakerdonelson.com/anne-ligman-turner-joins-baker-donelson...

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f Anne Ligman Turner to the Firm's Jackson, Mississippi office. Shewas previously counsel with Phelps Dunbar LLP.

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Name: Tom S LeeFirm: Senior Status Judge-FedAddress: 245 E Capitol St Ste 110City, State, Zip: Jackson, MS 39201-2413County: HindsTelephone: (601) 965-4963Fax: (601) 965-4594E-mail: [email protected]: ActiveAdmit Date: 08/21/1965

The Mississippi Bar Association - Lawyerdirectory By Last https://www.msbar.org/lawyerdirectory_by_last.php?first_letter=L

1 of 1 7/3/2012 6:20 PM

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Chief of Staff to the President of the UnitedStates; U.S. Senate Majority Leader; U.S. Secretary of State; Members of the United States Senate;Members of the United States House of Representatives;

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Baker Donelson represents local, regional, national and international clients. The Firm provides innovative, results-oriented solutions, placing the needs of the client first. Our state-of-the-art technologies seamlessly link all offices, provide instant information exchange, and support clients nationwide with secure access to our online document repository.

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Description for BakerDonelson.com Baker, Donelson, Bearman, Caldwell & Berkowitz, PC was ranked in 2004 as one of the 10 fastest growing law firms in the U.S. by The National Law Journal and is one of the 100 largest law firms in the country. Through strategic acquisitions and mergers over the past century, the Firm has grown to include more than 440 attorneys, and public policy and international advisors, in 10 U.S. markets, as well as a representative office in Beijing, China. Baker Donelson represents clients across the U.S. and abroad from offices in Memphis, Nashville, Chattanooga, Knoxville and Johnson City, Tennessee; Atlanta, Georgia; Birmingham, Alabama; Jackson, Mississippi; New Orleans and Mandeville, Louisiana; Washington, D.C.; and Beijing, China.

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Senator Lamar Alexander (TN)

Current Office: U.S. Senate Seniority: Senior Seat First Elected: 11/05/2002 Last Elected: 11/04/2008 Next Election: 2014 Party: Republican

Background InformationGender: MaleFamily: Wife: Honey Buhler 4 Children: Andrew, Leslee, Kathryn, William. Birth Date: 07/03/1940 Birthplace: Maryville, TN Home City: Nashville, TN Religion: Presbyterian

Education: JD, New York University Law School, 1965 BA, Latin American History, Vanderbilt University, 1962.

Professional Experience:Lawyer, Law Firm of Fowler, Roundree and Robertson, 1993-presentLawyer, Law Firm of Baker, Worthington, Crossley, Stansberry and Woolf, 1998 Lawyer, Law Firm of Baker, Donelson, Bearman and Caldwell, 1993-1995 Chair, Republican Exchange Satellite Network, 1993-1995 President, University of Tennessee, 1988-1991 Chair, Leadership Institute at Belmont University, 1987-1988 Co-Founder, Corporate Child Care Services with 1200 employees today, 1987 Special Counsel to Senate Minority Leader Howard Baker, 1977 Commentator, WSM Television in Nashville, 1975-1977 Lawyer/Founding Partner, Law Firm of Dearborn and Ewing, 1970-1976 Executive Assistant to Bryce Harlow, White House Congressional Liaison for President Richard Nixon, 1969-1970 Legislative Assistant, Tennessee Republican Senator Howard Baker, 1967-1968 Law Clerk, United States Circuit Court Judge John Minor Wisdom, 5th Circuit Court of Appeals, New Orleans, 1965-1966 Author Goodman Professor, Harvard University Kennedy School of Government.

Political Experience:Senator, United States Senate, 2002-present Primary candidate, United States President, 2000 Candidate for United States President, 1996 Secretary, Department of Education, 1991-1993 Governor of Tennessee, 1979-1987 Candidate for Governor of Tennessee, 1974 Director, Tennessee Governor Winfield Dunn's Election Campaign, 1970 Director, Howard Baker's campaign for United States Senate, 1966.

Organizations:President/Co-Director, Empower America, 1994-1995 Senior Fellow, Hudson Institute, 1994-1995 President, Common Arms Outdoors, 1985-1987 Chair, National Governors' Association, 1985-1986 Member, Phi Beta Kappa Member, Tennessee Bar Association Elder, Westminster Presbyterian Church.

Caucuses/Non-Legislative Committees: Chairman, President Reagan's Commission on Americans Outdoors

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Washington, D.C. Webmail:http://alexander.senate.gov/pu ...Washington, D.C. Website:http://alexander.senate.gov/

Washington, D.C. Address455 Dirksen Senate Office Building Washington, DC 20510 Phone: 202-224-4944 TTYD: 202-224-1546 Fax: 202-228-3398

District AddressTerminal Building, #101 Tri-Cities Regional Airport 2525 Highway 75 Post Office Box 1113 Blountville, TN 37617 Phone: 423-325-6240 Fax: 423-325-6236

District Address3322 West End Avenue, Suite 120 Nashville, TN 37203 Phone: 615-736-5129 Fax: 615-269-4803

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Lawyer, Law Firm of Baker, Donelson, Bearman and Caldwell, 1993-1995

President, University of Tennessee, 1988-1991

Special Counsel to Senate Minority Leader Howard Baker, 1977

Executive Assistant to Bryce Harlow, White House Congressional Liaison for President Richard Nixon, 1969-1970 Legislative Assistant, Tennessee Republican Senator Howard Baker,1967-1968

Senator, United States Senate, 2002-present

Governor of Tennessee, 1979-1987 Candidate for Governor of Tennessee, 1974

Director, Howard Baker's campaign for United States Senate, 1966.

Chairman, President Reagan's Commission on Americans Outdoors

Chairman, Senate Republican Conference Chairman, Tennessee Valley Authority Caucus, 2003-2004.

Committees:Appropriations, Member Budget, Member Environment and Public Works, Member Health, Education, Labor and Pensions, Member Rules and Administration, Member Subcommittee on Children and Families, Ranking Member Subcommittee on Commerce, Justice, Science, and RelatedAgencies, Member Subcommittee on Energy And Water Development, Member Subcommittee on Financial Services and General Government,Member Subcommittee on Interior, Environment, and Related Agencies,Ranking Member Subcommittee on Labor, Health and Human Services, Education,and Related Agencies, Member Subcommittee on Public Sector Solutions to Global Warming, Oversight, and Children s Health Protection, Member Subcommittee on Retirement and Aging, Member Subcommittee on Transportation, Housing and Urban Development, and Related Agencies, Member Subcommittee on Water and Wildlife, Member

District AddressClifford Davis Federal Building 167 North Main Street, Suite 1068 Memphis, TN 38103 Phone: 901-544-4224 Fax: 901-544-4227

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Chairman, Senate Republican Conference

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Motions, Pleadings and Filings Court-Filed Expert Resumes filed in this case Judges and Attorneys Only the Westlaw citation is currently available.

United States District Court, N.D. Mississippi, Eastern Division.

Edgar & Martha ALEXANDER, et. al., Plaintiffs v.

EASY FINANCE OF NEW ALBANY, INC., Easy Finance of Tupelo, Inc., and Easy Finance of Booneville, Inc., Defendants.

No. 1:03cv91-D-D.

Jan. 25, 2007. Brian Henry Neely, Attorney, Tupelo, MS, for Plaintiffs. Rachel M. Pierce, Phelps Dunbar, Tupelo, MS, for Defendants.

SUPERCEDING OPINION GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDG- MENT

GLEN H. DAVIDSON, Chief Judge. *1 Presently pending before the Court is Defendants' motion for summary judgment. Upon due considera-

tion, the Court finds that the motion shall be granted in part and denied in part

A. Factual and Procedural Background The Plaintiffs originally filed this action in the Circuit Court of Monroe County, Mississippi, on December

18, 2002, against a sole defendant, Easy Finance. The Plaintiffs alleged that the Defendants wrongfully charged excessive fees on loans, fraudulently misrepresented credit life insurance, and acted unconscionably in their business dealings with Plaintiffs. On February 14, 2003, Easy Finance removed the action to this Court asserting Federal Question jurisdiction. After a series of filing and discovery disputes, it was discovered that Easy Finance was not the correct defendant in this case. On April 16, 2005, the parties and this Court held a telephone conference where it was determined by this Court that Easy Finance was not the proper defendant, and this Court gave the Plaintiffs fifteen days to amend their complaint. On May 6, 2005, the Plaintiffs filed their Amended Com- plaint and named the current Defendants in this action. On June 29, 2005, the Defendants moved this Court to require the Plaintiffs to plead a more definitive statement or in the alternative to dismiss this case. The Plaintiffs failed to respond the Defendants' motion for seventyeight days. On October 19, 2005, this Court issued an order requiring Plaintiffs to plead a more definitive statement within thirty days. The thirty day deadline passed without a response or filing from the Plaintiffs. On November 29, 2005, the Defendants moved this Court to dis-


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Rachel M. Pierce, Phelps Dunbar, Tupelo, MS, for Defendants.

EXHIBIT "53"


miss this action due to Plaintiffs' failure to comply with this Court's order under Rule 41(b) of the Federal Rules of Civil Procedure. On December 2, 2005, the Court received by mail Plaintiffs' motion for additional time. This was Plaintiffs' first communication with this Court in forty-three days.

On December 5, 2005, this Court entered an order denying Defendants' motion to dismiss, granting Plaintiffs' motion for additional time to amend its complaint and imposing sanctions. The Court found that the Plaintiffs had acted in an unreasonable, vexatious and reckless manner. The Court sanctioned the Plaintiffs in the amount of $200.

On December 19, 2005, the Plaintiffs complied with this Court's order by submitting an Amended Com- plaint. On December 27, 2005, the Plaintiffs moved to alter that Amended Complaint. That motion was granted in an order dated February 22, 2006. The Plaintiffs submitted their Amended Complaint on March 1, 2006. On April 24, 2006, this Court granted the Defendants' motion for extension of time to answer Plaintiffs' Amended Complaint until ten days after the Court's action on the Defendants' motion to dismiss.

On April 21, 2006, the Defendants again moved for this Court to dismiss the Plaintiffs' claims in their entirety. On May 30, 2006, this Court denied the Defendants' motion to dismiss, stating that the Plaintiffs had substantially complied with the Court's previous orders. In addition, the Court stated that it would revisit some of the Defendants' arguments at the close of discovery.

*2 The Defendants now move this Court to grant them summary judgment on almost all of the Plaintiffs' claims. The Defendants state that five of the Plaintiffs never conducted business with the Defendants. However, the Defendants fail to name those five Plaintiffs. In addition, the Defendants argue that the statute of limitations bars the claims of forty Plaintiffs. The Defendants further argue that six Plaintiffs had binding arbitration agreements and should be compelled into arbitration. The Defendants also state that the Plaintiffs' claims are misjoined and should be severed. Finally, the Defendants argue that sole remaining Plaintiff's claims are without merit.

The Plaintiffs respond stating that the Defendants committed fraud and misrepresentation against individuals and that equitable tolling should apply. The Plaintiffs argue that they lack sufficient education and did not have the ability to calculate their own interest. In addition, the Plaintiffs argue that the Defendants have waived arbitration by failing to raise that defense prior to this motion. Finally, the Plaintiffs argue that the claims are not misjoined and that the Defendants have not met their burden for summary judgment against the Plaintiffs.

B. Standard of Review When considering a motion for summary judgment, the movant has the initial burden of showing the ab-

sence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265, 275 (1986) (the burden on the moving party may be discharged by ‘showing ... that there is an absence of evidence to support the non-moving party's case”). Under Rule 56(e) of the Federal Rules of Civil Pro- cedure, the burden shifts to the nonmovant to “go beyond the pleadings and by ... affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ “ Celotex Corp ., 477 U.S. at 324, 106 S.Ct. at 2553, 91 L.Ed.2d at 274. That burden is not discharged by “mere allegations or denials.” Fed.R.Civ.P. 56(e). All legitimate factual inferences must be made in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct 2505, 2513, 91 L.Ed.2d 202, 216 (1986). Rule 56(C) mandates the entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which


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that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322, 106 S.Ct. At 2552, 91 L.Ed.2d at 273. Before finding that no genuine issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the non-movant. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U .S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 536, 552 (1986).

C. Applicable Law Federal Courts sitting in diversity must apply state substantive law. See Krieser v. Hobbs, 166 F.3d 736, 739

(5th Cir.1999). “The core of what has become known as the ‘Erie Doctrine’ is that the substantive law to be applied by a federal court in any case before it is state law, except when the matter before the court is governed by the United States Constitution, an Act of Congress, a treaty, international law, the domestic law of another country, or in special circumstances, by federal common law.” Hanley v. Forrester, 903 F.2d 1030, 1020 (5th Cir.1990) (citing Erie R. Co. v. Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.2d 1188 (1938)). When deciding an unsettled issue of state law, this Court must consider how the Mississippi Supreme Court has, or would, interpret the question. See Batts v. Tow-Motor Forklift Co., 978 F.2d 1386, 1389 (5th Cir.1992) (citing American Waste & Pollution Control Co. V. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir.1991)). The Court must first determine whether any final decisions of the Mississippi Supreme Court are dispositive. See Transcontin- ental Gas Pipe Line Corp. v. Transportation Ins. Co ., 953 F.2d 985, 988 (5th Cir.1992). When a Court must make an Erie guess, it is not the Court's role to create or modify state law, but rather only to predict it. Batts, 978 F.2d at 1386.

D. Discussion 1. Statute of Limitations

*3 “All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.” Miss.Code Ann. § 15-1-49 (Rev.2003). The Mississippi Supreme Court has held that claims of breach of a fiduciary duty, misrepresentation and conspiracy are subject to a three-year statute of limitations. Carter v. Citigroup, Inc., 938 So.2d 809, 817 (Miss.2006); Am. Bankers' Ins. Co. v. Wells, 819 So.2d 1196, 1200 (Miss.2001). The Mississippi Supreme Court has also applied a three-year statute of limitations to the claim of fraudulent concealment. Stephens v. Equitable Life Assurance So- ciety, 850 So.2d 78, 82 (Miss.2003); Sanderson Farms Inc. v. Ballard, 917 So.2d 783, 789 (Miss.2005) (fraudulent inducement and fraudulent concealment claims have a three-year statute of limitations and fraud claims accrue at the time of the completion of a sale induced by false representations or consummation of the alleged fraud).

The Mississippi Code provides that:

If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.

Miss.Code Ann. 15-1-67 (Rev.2003). “Under the doctrine of fraudulent concealment, the running of the

statute of limitations is tolled.” Andrus v. Ellis, 887 So.2d 175, 181 (Miss.2004); Stephens, 850 So.2d at 83. There are two elements required to prove fraudulent concealment: (1) subsequent affirmative acts of concealment by the Defendant, and (2) due diligence on the part of the Plaintiff. Id. The Plaintiff must show that the De- fendant committed a subsequent affirmative act or acts that were designed to prevent the Plaintiff from discovery his claim and did prevent discovery of the claim. Stephens, 850 So.2d at 83-84. Then, the Plaintiff must show that despite his due diligence the Plaintiff was unable to discover the claim. Id.


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In the case sub judice, the Plaintiffs allege that they were unaware of the Defendants' wrongful conduct until just prior to the filing of this lawsuit. The Plaintiffs claim that the Defendants improperly required insurance in order to obtain the subject loans and wrongfully concealed the commissions the Defendants would earn on those insurance premiums. In addition, the Plaintiffs allege that the Defendants concealed the method for calculating interest. Finally, the Plaintiffs sole argument for equitable tolling is that the Plaintiffs lacked sufficient education to appreciate the content of the loan documents.

This controversy implicates the law of contracts and the execution of documents. “In Mississippi, a person is charged with knowing the contents of any document he executes.” Russell v. Performance Toyota, Inc., 826 So.2d 719, 725 (Miss.2002) (citing J.R. Watkins Co. v. Runnels, 172 So.2d 567, 571 (1965) (“A person cannot avoid a written contract which he has entered into on the ground that he did not read it or have it read to him.”)). “A person is under no obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed be reading the contract.” Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So.2d 1254, 1257 (Miss.1991). “To permit a party when sued on a written contract, to admit he signed it but to deny that it expresses the agreement he made or to allow him to admit that he signed it but did not read it or know its stipula- tions would absolutely destroy the value of all contracts.” Alliance Trust Co., Ltd. v. Armstrong, 186 So. 633, 635 (Miss.1939).

*4 The Court is of the opinion that the Plaintiffs' argument for equitable tolling fails. The Plaintiffs have failed to allege a subsequent act of concealment. In addition, the Plaintiffs' filings lack even a hint of due diligence by the Plaintiffs. Thus, the Plaintiffs' argument fails and the statute of limitations defense will succeed against the applicable Plaintiffs. The Court notes that this lawsuit was filed on December 18, 2002. Thus, applying the applicable three-year statute of limitations, all claims associated with loans issued before December 18, 1999, are barred as a matter of law. Thus, the claims of the following Plaintiffs are dismissed as a matter of law: Edgar Alexander, Martha Alexander, Eddie Anderson, Virginia Anderson, Willie Anderson, Alice Anderson, Dewayne Boyd, Betty Boyd, Henry Cameron, Kandis Cameron, Katie L. Cox, Joyce Cunningham, Larson Garner, Kristie Garner, Josephine Gillard, William Hatch, Betty Hatch, Ronnie Johnson, Juanita Johnson, Luther Jones, Annie Jones, Sharon Jones, Kenneth Keys, Lee Mosley, Gwenda Mosley, Cleophus Robinson, Melvin Shackleford, Deborah Shackleford, Mary Simmons, Corey E. Smith, Lorene Smith, Mary Francis Thomas, Hat- tie Elaine Tucker, Jerry Waldrop, Melissa Waldrop, and Alice Williams. 2. Arbitration Agreements

The Defendants next argue that Plaintiffs Willie Lee Brown, Sr., Robert Finley, Annette Foster, Kelly Turn- er, Lisa Turner and Rosemary Wilson all signed “Alternative Dispute Resolution Agreements.” Thus, the De- fendants move that these Plaintiffs be compelled to arbitrate their claims and these proceedings be stayed as to those Plaintiffs. The Plaintiffs counter that the Defendants waived their right to arbitrate in this case. The Plaintiffs argue that this represents the first time that the Defendants raised the arbitration issue and that the Plaintiffs' Amended Complaint was filed over nineteen months ago.

The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, provides that a written arbitration provision contained in a contract involving commerce is valid, irrevocable, and enforceable. 9 U.S.C. § 2. The FAA expresses a strong national policy in favor of arbitration, and any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. Southland Corp. v. Keating, 465 U.S. 1, 10, 105 S.Ct. 852, 857, 79 L.Ed.2d 1 (1983); Mouton v. Metropolitan Life Ins. Co., 147 F.3d 453, 456 (5th Cir.1998).


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The Fifth Circuit has directed that courts are to perform a two-step inquiry to determine whether parties should be compelled to arbitrate a dispute. OPE Int'l LP v. Chet Morrison Contractors, Inc., 258 F.3d 443, 445 (5th Cir.2001). First, the court must determine whether the parties agreed to arbitrate the dispute. OPE Int'l, 258 F.3d at 445. In conducting this inquiry, the court must determine whether a valid agreement to arbitrate exists, and whether the dispute in question falls within the scope of that arbitration agreement. Id.; Pennzoil Explora- tion and Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1065 (5th Cir.1998). Once the court finds that the parties agreed to arbitrate the claims, it must consider whether any federal statute or policy renders the claims nonarbitrable. OPE Int'l, 258 F.3d at 446.

*5 Arbitration agreements are a matter of contract between the parties. Washington Mutual Finance Group, LLC v. Bailey, 334 F.3d 260, 264 (5th Cir.2004). Accordingly, the question of whether the parties formed a valid agreement to arbitrate is a matter governed by the principles of state contract law. May v. Higbee Co., 372 F.3d 757, 764, (5th Cir.2004). Under Mississippi law, the elements of a valid contract are: (1) two or more contract- ing parties; (2) consideration; (3) an agreement that is sufficiently definite; (4) parties with the legal capacity to make a contract; (5) mutual assent; and (6) no legal prohibition precluding contract formation. Mauldin Co. v. Lee Tractor Co. of Miss., Inc., 920 So.2d 513, 514 (Miss.Ct.App.2006); Rotenberry v. Hooker, 864 So.2d 266, 270 (Miss.2003).

In the case sub judice, the Court is of the opinion that the parties intended to arbitrate such a dispute. In addition, the Court finds that a valid arbitration agreement existed and the dispute in this lawsuit falls within that arbitration agreement. The Court notes that the Plaintiffs have filed several Amended Complaints, including the latest on March 1, 2006. Thus, the Plaintiffs' main argument against arbitration is that the Defendants waived their rights to arbitration by not raising this issue at an earlier time. The Court now addresses this narrow issue.

The Fifth Circuit has held that waiver of arbitration is not a favored finding and there is a presumption against it. Cargill Ferrous Int'l v. Sea Phoenix MV, 325 F.3d 695, 700 (5th Cir.2003); Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324, 326 (5th Cir.1999); see Steel Warehouse Co. v Abolone Shipping Ltd. of Nicosai, 141 F.3d 234, 237 (5th Cir.1998); see also Leadertex Inc. v. Morganton Dyeing and Finishing Corp., 67 F.3d 20, 25 (2d Cir.1995) (stating waiver of arbitration “is not to be lightly inferred” in light of the strong federal policy favoring arbitration). A waiver of arbitration occurs when a party's participation in the litigation has been so substantial that compelling arbitration would prejudice the non-moving party. Sea Phoenix MV, 325 F.3d at 700. “The question of whether a movant's participation in the litigation has been substantial enough to constitute waiver is fairly strict: waiver of an arbitration right will not be lightly inferred without some showing of prejudice.” Id. (quoting Ventura Maritime Co. Ltd. v. ADM Export Co. 44 F.Supp.2d 804 (E.D.La.1999)). The Fifth Circuit stated in Sea Phoenix MV that the proper test in determining whether a party waived its right arbitration was whether its participation in the litigation prejudiced the other party. Id. To invoke the judicial process “[t]he party must, at the very least, engage in some overt act in court that evinces a desire to resolve the arbitrable dispute through litigation rather than arbitration.” Subway, 169 F.3d at 329. Further, “a party only invokes the judicial process to the extent it litigates a specific claim it subsequently seeks to arbitrate.” Id. at 328.

*6 In addition to the invocation of the judicial process, the non-moving party must suffer prejudice before the court will find that arbitration has been waived. Republic Insurance Company v. Paico Receivables, LLC, 383 F.3d 341, 346 (5th Cir.2004). “[F]or purposes of a waiver of an arbitration agreement: ‘prejudice ... refers to the inherent unfairness in terms of delay, expense, or damage to a party's legal position that occurs when the party's opponent forces it to litigate an issue and later seeks to arbitrate that same issue’ “ Subway 169 F.3d at 327 (quoting Doctor's Assocs v. Distajo, 107 F.3d 126, 134 (2d Cir.1997)). Ultimately, “[t]he question of what


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constitutes waiver of a right of arbitration depends on the facts of each case.” Teeneco Resins, Inc. v. Davy Int' l, AG, 770 F.2d 416, 420 (5th Cir.1985). In Republic Insurance Company, the Fifth Circuit found the following three factors were relevant in making a prejudice determination: (1) pre-trial activity related to all of the parties' claims, including those that are arbitrable; (2) the time and expense in discovery, summary judgment motions, and other pre-trial activity; and (3) a party's failure to timely assert to right to arbitrate a dispute. 383 F.3d at 346 .

In the case sub judice, the Court notes that this case is four years old and has been plagued by delay on both sides. The Court also notes that the Defendants have asserted their right to arbitration in both their original An- swer and their Answer to the Plaintiffs' Amended Complaint. The Court further notes that the Plaintiffs contributed significantly to the delay of this case. The Court had to order that the Plaintiffs submit a more definitive statement and the Plaintiffs moved to amend their Complaint several times. On the other hand, the Court notes that the Plaintiffs have spent considerable amounts of time and money in discovery and other pre-trial activity. This pretrial activity likely included addressing the arbitrable claims.

The Court is of the opinion that the Plaintiffs would have participated in discovery and spent time and expense in this case whether these six Plaintiffs were involved or not. The case originally had fifty-two Plaintiffs and their claims are substantially similar. Thus, the Court finds that the Plaintiffs did not spend any additional time or cost in addressing these claims. In addition, the Court finds that the Defendants raised the arbitration defense in their answers and at the first opportunity after discovery. Therefore, the Court is of the opinion that the Plaintiffs will not be prejudiced by compelling their claims into arbitration. Thus, the Court finds that Plaintiffs Willie Lee Brown, Sr., Robert Finley, Annette Foster, Kelly Turner, Lisa Turner, and Rosemary Wilson's claims are compelled into arbitration. As such, the claims of these Plaintiffs shall be dismissed. Section 3 of the Federal Arbitration Act provides that, upon a showing that the issues involved in an action are properly referable to arbitration, the court “shall ... stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement.” 9 U.S.C. § 3. The Fifth Circuit has ruled, however, that Section 3 of the FAA does not limit dismissal of a case in the proper circumstances and that if all of the issues raised in the district court are arbitrable, dismissal of the case is proper. See Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir.1992) (holding that retaining jurisdiction and staying an action “serve[s] no purpose” when all issues are arbitrable); Fedmet Corp. v. M/V Buyalyk, 194 F.3d 674, 678 (5th Cir.1999). 3. Other Grounds for Summary Judgment

*7 Although the Defendants have moved for summary judgment on other grounds, the Court is of the opinion that the Defendants have not met their burden. The court finds that genuine issues of material fact exist, and that the Defendants have failed to show that they are entitled to judgment as a matter of law. Further, the court has the discretion, which it exercises here, to allow all claims to proceed to trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986) (“Neither do we suggest ... that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial.”).

E. Conclusion In sum, the Court finds that the claims of thirty-six Plaintiffs are barred by the statute of limitations. As

such, the Defendants are granted judgment as a matter of law against those Plaintiffs named above. In addition, the Court finds that the claims of six Plaintiffs are compelled to arbitration and their claims are dismissed from this case. Furthermore, the Defendants recently filed a motion to dismiss the claims of P.A. Cameron, Donna L. Jackson, Bobby Robinson, George Simmons, and Earlene Simmons. The Defendants claim that these Plaintiffs


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never conducted business with the Defendants. In their motion for summary judgment, the Defendants assertedthat Plaintiffs' counsel had agreed to dismiss those Plaintiffs at an earlier time. The Court will wait on thePlaintiffs' response before ruling on such a motion. In addition to those five Plaintiffs, the following Plaintiffs'claims survive summary judgment and shall proceed to trial: Mary Lou Boyd, Sharon Boyd, David Pratt, BrendaPratt, and Walter Rodgers.

A separate order in accordance with this opinion shall issue this day. N.D.Miss.,2007. Alexander v. East Finance of New Albany, Inc. Not Reported in F.Supp.2d, 2007 WL 295220 (N.D.Miss.) Motions, Pleadings and Filings (Back to top) �� 2007 WL 5446320 (Expert Report or Affidavit) (Report or Affidavit of Tony L. Tate, B.S., A.A.S.) (Jan. 11,2007) Original Image of this Document (PDF) �� 2006 WL 6868736 (Expert Report or Affidavit) Affidavit of Tony L. Tate (Dec. 22, 2006) Original Image ofthis Document (PDF) ��2006 WL 1468059 (Trial Motion, Memorandum or Affidavit) Memorandum Brief in Support of Motion to Dis-miss of Defendants Easy Finance of New Albany, Inc., Easy Finance of Tupelo, Inc., and Easy Finance ofBooneville, Inc. (Apr. 21, 2006) Original Image of this Document (PDF) ��2006 WL 1193006 (Trial Pleading) Amended Complaint (Mar. 1, 2006) Original Image of this Document (PDF) �� 2006 WL 797104 (Trial Motion, Memorandum or Affidavit) Response of Defendants to Plaintiffs' Motion forReconsideration of Sanctions (Feb. 8, 2006) Original Image of this Document (PDF) ��1:03cv00091 (Docket) (Feb. 14, 2003) Court-Filed Expert Resumes filed in this case (Back to top) ��2007 WL 7687972 (Court-Filed Expert Resume) Expert Resume of Tony L. Tate (Jan. 3, 2007) Original Imageof this Document (PDF) Judges and Attorneys(Back to top) Judges | Attorneys Judges � Davidson, Hon. Glen H. United States District Court, Northern Mississippi Aberdeen, Mississippi 39730 Litigation History Report | Judicial Motion Report | Judicial Reversal Report | Judicial Expert Challenge Report |Profiler


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EXHIBIT "54"


Attorneys Attorneys for Defendant � Pierce, Rachel M. Tupelo, Mississippi 38804 Litigation History Report | Profiler Attorneys for Plaintiff � Neely, Brian H. Tupelo, Mississippi 38802 Litigation History Report | Profiler END OF DOCUMENT


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EXHIBIT "55"

EXHIBIT "56"

EXHIBIT "57"

Henry WingateCurrent Court Information:

United States District Court for theSouthern District of Mississippi

Title: JudgePosition: Seat #4Station: Jackson, MS

Service:Appointed by: Ronald Reagan

Active: 10/17/1985 - CurrentChief: 2003 - 2010

Preceded by: 98 Stat. 333Personal HistoryBorn: 1947

Home State: Jackson, MSBachelors: Grinnell College,

B.A., 1969Law School: Yale Law, J.D., 1972

Military service: U.S. Navy 1973 -1976, Reserves 1983- Current

Contents

1 Early life and education2 Professional career3 Judicial career

3.1 Southern District of Mississippi4 Notable cases

4.1 Criticisms of case delays4.2 Obama threat case

5 See also6 External links7 References

Henry WingateFrom Judgepedia

Henry Travillion Wingate is an Article III federaljudge for the United States District Court for theSouthern District of Mississippi. He joined the court in1985 after being nominated by President RonaldReagan. Wingate began serving as Chief Judge of thecourt in 2003.

Early life and education

A Mississippi native, Wingate graduated from GrinnellCollege of Iowa with his Bachelor's Degree in 1969 andlater graduated from Yale Law School with his JurisDoctor Degree in 1972. [1]

Professional career

Law clerk, Community Legal Aid, Jackson, Mississippi, 1972-1973Private practice, Jackson, Mississippi, 1973Lieutenant, Naval Legal Services Office, U.S. Navy, 1973-1976Senior assistant defense counsel, 1973-1974Trial counsel, 1974-1976Adjunct instructor, Golden Gate University, 1975-1976Adjunct lecturer, Tidewater Community College, 1976Special assistant attorney general, State of Mississippi, 1976-1980Adjunct professor, Mississippi College School of Law, 1978-1983Assistant district attorney, Seventh Circuit Court District, State of Mississippi, 1980-1984U.S. Navy Reserve, 1983-Assistant U.S. attorney, Southern District of Mississippi, 1984-1985 [1]

Judicial career


On the recommendation of Mississippi U.S. Senator Thad Cochran, Wingate was nominated to the Southern District of Mississippi by PresidentRonald Reagan on September 11, 1985 to a new seat created by 98 Stat. 333 which was approved by Congress. Wingate was confirmed by theU.S. Senate on October 16, 1985 on a Senate vote and received commission on October 17, 1985. Wingate has served as the court's chief judgesince 2003. [1]

Notable cases

Criticisms of case delays

Judge Wingate was criticized by a three judge panel of the Fifth Circuit Court of Appeals on March 25, 2010, for failing to enter a judgment in acase in which a person won $1.3 million on a 2002 jury verdict against his former employer.

Fifth Circuit judge Grady Jolly criticized the court for being slow in resolving cases as the Mississippi court had previous complaints filed againstthem to the circuit's judicial council.

Jolly also emphasized in his ruling that the court must seek the resources of the Fifth Circuit to prevent any problems they seem necessary. [2]

Obama threat case

Judge Wingate is presiding in the trial of a Wisconsin man who threatened to assassinate then-President-elect Barack Obama. Steven Christopheris accused of using his website to plot an assassination attempt against the President of the United States. No trial date has been scheduled;however, the judge ruled on July 28, 2009 that Christopher was mentally competent to stand trial. [3]

Henry Wingate - Judgepedia http://judgepedia.org/index.php/Henry_Wingate

1 of 2 7/24/2012 1:00 PM

He joined the court inpp j1985 after being nominated by President RonaldReagan.

Judge Wingate was criticized by a three judge panel of the Fifth Circuit Court of Appeals on March 25, 2010, for failing to enter a judgment in ag g y j g p ppcase in which a person won $1.3 million on a 2002 jury verdict against his former employer

Fifth Circuit judge Grady Jolly criticized t

Judge Wingate is presiding in the trial of a Wisconsin man who threatened to assassinate then-President-elect Barack Obama. Steven Christopherg g p gis accused of using his website to plot an assassination attempt against the President of the United States. No trial date has been scheduled;

[3]however, the judge ruled on July 28, 2009 that Christopher was mentally competent to stand trial. EXHIBIT "58"

[show]

[show]

See also

United States District Court for the Southern District of Mississippi

External links

The Robing Room- Rate Judge Wingate (http://www.therobingroom.com/Judge.aspx?ID=933)Judge Wingate's Biography (http://www.fjc.gov/servlet/nGetInfo?jid=2616&cid=97&ctype=dc&instate=ms) from the Federal JudicialCenter

References

↑ 1.0 1.1 1.2 Judge Wingate's Biography (http://www.fjc.gov/servlet/nGetInfo?jid=2616&cid=97&ctype=dc&instate=ms) from the Federal Judicial Center.1.↑ Law.com "5th Circuit Scolds Miss. Federal Judge Over Delays", March 26, 2010 (http://www.law.com/jsp/article.jsp?id=1202446824169&th_Circuit_Scolds_Miss_Federal_Judge_Over_Delays)

2.

↑ "Clarion Ledger" Man accused in Obama threat competent for trial, July 29, 2009 (http://www.clarionledger.com/article/20090729/NEWS/907290349/1001/news/Man-accused-in-Obama-threat-competent-for-trial)

3.

Federal judicial offices

Preceded by:NA-New Seat

Southern District of Mississippi1985–Current

Seat #4

Succeeded by:NA

Federal judges who have served the United States District Court for the Southern District ofMississippi

Federal judges nominated by Ronald Reagan

Retrieved from "http://judgepedia.org/index.php/Henry_Wingate"Categories: Southern District of Mississippi, Seat 4 | Former chief judge, Southern District of Mississippi | Federal judge, Southern District ofMississippi | Yale Law Alumni | Appointed by Ronald Reagan | Confirmed 1985 | Current federal judge | Navy veteran | Grinnell College Alumni

This page was last modified on 2 April 2012, at 11:58.

Henry Wingate - Judgepedia http://judgepedia.org/index.php/Henry_Wingate

2 of 2 7/24/2012 1:00 PM

Federal judges nominated by Ronald Reagan

U.S. District Courts for the Districts of Mississippi

Judges of the Southern District of Mississippi

Wingate, Henry Travillion

Born 1947 in Jackson, MS

Federal Judicial Service:Judge, U.S. District Court, Southern District of MississippiNominated by Ronald Reagan on September 11, 1985, to a new seat authorized by 98Stat. 333. Confirmed by the Senate on October 16, 1985, and received commission onOctober 17, 1985. Served as chief judge, 2003-2010.

Education:Grinnell College, B.A., 1969Yale Law School, J.D., 1972

Professional Career:Law clerk, Community Legal Aid, Jackson, Mississippi, 1972-1973Private practice, Jackson, Mississippi, 1973Lieutenant, Naval Legal Services Office, U.S. Navy, 1973-1976Senior assistant defense counsel, 1973-1974Trial counsel, 1974-1976Adjunct instructor, Golden Gate University, 1975-1976Adjunct lecturer, Tidewater Community College, 1976Special assistant attorney general, State of Mississippi, 1976-1980Adjunct professor, Mississippi College School of Law, 1978-1983Assistant district attorney, Seventh Circuit Court District, State of Mississippi, 1980-1984U.S. Navy Reserve, 1983-Assistant U.S. attorney, Southern District of Mississippi, 1984-1985

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History of the Federal Judiciary http://www.fjc.gov/servlet/nGetInfo?jid=2616&cid=97&ctype=dc&insta...

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HOWARD HENRY BAKER, JR. United States White House Chief of Staff United States (Ronald Reagan). Senate MAJORITY/Minority Leader (Republican). United States Ambassador

to Japan. of Japan – United States Strategic Advisory. FOUNDER

SECRETARY of the FREEDOM FORUM. (IMPEACHED) Former President Richard Nixon

to fill a vacancy wanted Baker on the United States Infamous for the question asked aloud, "What Supreme Court.

did the President know and when did he know it?" Ran for President of the United States in 1980. SENIOR Counsel Baker Donelson Bearman Caldwell & Berkowitz (Has been ranked the 72nd largest law firm in the United States, and the LARGEST in the state of

Tennessee) - son of Howard Henry Baker, son-in-law of Everett Dirksen (i.e. one of the Senate's buildings was renamed the Dirksen Senate Office Building in his honor. The headquarters of the United States District Court for the Northern

District of Illinois is also named for him). FOUNDER: Baker Donelson Offices in Washington, D.C. and LONDON, England.

EXHIBIT "59"

Posted at 2:40 PM on November 15, 2009 by Philip Thomas

Keith Ball of Jackson New Southern District Magistrate Judge

Keith Ball of Jackson has been named the new Magistrate Judge for the Southern District of Mississippi. Ballreplaces the popular retiring Magistrate Judge James Sumner. Ball beat out four other finalists and many moreapplicants from a field narrowed by the Magistrate Selection Panel. The sitting Southern District Judges madethe selection.

Ball is originally from Jackson and is a 1990 graduate of the University of Mississippi School of Law. Hepracticed in Jackson as a civil litigation defense lawyer with Phelps Dunbar and Currie Johnson before movingto Louisville. In Louisville he had a general practice that is typical for many small town lawyers. He stayed inLouisville for about five years before returning to Jackson for another stint with Currie Johnson. At the time ofhis selection as Magistrate Judge, Ball was working as the Director of Development at Reformed UniversityMinistries.

I expect Ball to be a popular Magistrate. The fact that he has two stints with the same law firm suggests thathe gets along with people and does not burn bridges.

I am not nearly as concerned that Ball drinks the defense side cool-aide because of his years in a generalpractice in Louisville. This comment is not a slam of defense lawyers. I would not want a judge who drinks theplaintiff side cool-aide either.

Great judges are the ones who both sides believe are fair. Ball has the potential to be that kind of judge.

Comments (0) Read through and enter the discussion with the form at the endwww.mslitigationreview.com Philip W. Thomas747 North Congress St.Jackson, MS 39202Phone:(601) 714-5660

Fax:(601) 714-5659

Keith Ball of Jackson New Southern District Magistrate Judge : Mississip... http://www.mslitigationreview.com/2009/11/articles/general-1/keith-ball-...

1 of 1 7/25/2012 11:13 AM

g pp Ball beat out four other finalists and many morep p p g g g

applicants from a field narrowed by the Magistrate Selection Panelg .

Heg y g ypracticed in Jackson as a civil litigation defense lawyer with Phelps Dunbar

I expect Ball to be a popular Magistrate. The fact that he has two stints with the same law firm s

t Ball drinks the defense side cool-aide b

EXHIBIT "60"

Mississippi Litigation Review & CommentaryPosted at 1:01 PM on August 18, 2009 by Philip Thomas

Judge Wingate Appoints Magistrate Selection Panel

On August 14 Judge Wingate entered an Order Appointing Merit Selection Panel for the Magistrate Judgeposition that is open as a result of Judge Sumner retiring. Here is the Order. the Chairman of the Panel is MaisonHeidelberg of Ridgeland. Other lawyer members of the panel are Amy Ryan- Woodville; Robert Latham-Natchez; Robert Allen- Brookhaven; Skipper Samson- Gulfport; Michael McWilliams- Jackson; Doug Minor-Jackson; Steve Montagnet- Ridgeland; James Heidelberg- Pascagoula; Paul Franke- Gulfport; Bill Liston III-Jackson; Rob McDuff- North Congress St., Jackson; and Latoya Merritt; Jackson. The panel included twonon-lawyer: Dr. William Ashford (Jackson opthamologist); and Katie McCarstle- Natchez. It's my understandingthat all the Southern District judges had input on the panel subject to approval by Judge Wingate.

It is generally expected among the bar that there will be hundreds of applicants for the position. I do not recallthe exact number that I heard applied for the seat that Judge Parker filled, but it was over a hundred. Thefederal magistrate seat pays more than state court judge positions and many people expect a lot of state courtjudges to apply. The Order states that the panel is "to assist the court in identifying and recommending theapplicants who are best qualified to fill said position." My understanding of the process is that the panel narrowsthe field to five finalists with the Southern District Judges making the final decision.


Fax:(601) 714-5659

Judge Wingate Appoints Magistrate Selection Panel : Mississippi Litigati... http://www.mslitigationreview.com/2009/08/articles/politics-in-mississip...

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EXHIBIT "61"

Mississippi Litigation Review & CommentaryPosted at 9:47 AM on November 24, 2009 by Philip Thomas

Judge Wingate Confirms that Keith Ball is the New Southern District Magistrate

Last Monday I reported that Keith Ball has been selected as the new Magistrate Judge for the Southern District.I had heard the news the previous Friday from someone who was not on the Magistrate Selection Panel.

Then last Wednesday I heard that one of the Southern District Judges was telling lawyers that no announcementhad been made on the selection yet.

But the Clarion-Ledger reported this morning that Judge Wingate confirmed that Keith Ball is the choice:

U.S. District Judge Henry Wingate, chief judge for the Southern District, on Monday confirmedBall's selection.

On another note, I saw a comment on another blog that Judge Winston Kidd's name has been submitted forthe vacant 5th Circuit Court of Appeals seat. I'm not sure what the person meant by "submitted", but I do notbelieve it to be true unless he meant that Judge Kidd was one of many potential candidates submitted to theWhite House for consideration.

It's my understanding that the White House is still in the vetting process and has not decided on a nominee. Theslow pace of President Obama filling judicial vacancies continues to receive national attention. The WhiteHouse attorneys in charge of the selection and vetting process are leaving their posts soon, which threatens tofurther slow the process.

Every so often I am asked my opinion of what it might mean that there has been no announcement for thevacant Southern District Court or 5th Circuit positions. I do not believe that much should be read into it. TheWhite House is just slow in this area. I would not read anything else into it until most of the other open slotsaround the country are filled with ours still open.

There could be announcements soon, or not for a long time. I don't think anyone really knows which it will be.


Fax:(601) 714-5659

Judge Wingate Confirms that Keith Ball is the New Southern District Magi... http://www.mslitigationreview.com/2009/11/articles/us-district-courts-in...

1 of 1 7/18/2012 3:15 PM

Last Monday I reportedy p that Keith Ball has been selected as the new Magistrate Judge for the Southern Distrd icty p g gI had heard the news the previous Friday from someone who was not on the Magistrate Selection Panel.

Then last Wednesday I heard that one of the Southern District Judges was telling lawyers that no announcementyhad been made on the selection yet.

EXHIBIT "61"

Keith BallCurrent Court Information:

United States District Court for theSouthern District of Mississippi

Title: Magistrate JudgeStation: Jackson, MS

Service:Active: 11/2009 - CurrentPersonal History

Law School: U. of MississippiLaw, J.D., 1990

Contents

1 Education2 Career3 External links4 References

[show]

Keith BallFrom Judgepedia

This federal court or judge-related article is a stub. You can helppeople learn about the federal judiciary by expanding it(http://judgepedia.org/index.php?title=Keith_Ball&action=edit) .

F. Keith Ball is a magistrate judge for the United States District Court for theSouthern District of Mississippi. He was appointed to this position in Novemberof 2009 to replace the retired Judge James Summer.[1]

Education

Judge Ball received his law degree in 1990 from the University of Mississippi School of Law.[1]

Career

Judge Ball began his career practicing law with Phelps Dunbar and Currie Johnson in Jackson, Mississippi. He then ran his own practice inLouisville, Mississippi, for about six years. He returned to practice with Currie Johnson for a time and then became the Director of Development atReformed University Ministries. He was appointed to the District Court in 2009.[1]

External links

Judges of the U.S. District Court for the Southern District of Mississippi (http://www.mssd.uscourts.gov/judges.htm)

References

↑ 1.0 1.1 1.2 Mississippi Litigation Review and Commentary, "Keith Ball of Jackson New Southern District Magistrate Judge", November 15, 2009(http://www.mslitigationreview.com/2009/11/articles/general-1/keith-ball-of-jackson-new-southern-district-magistrate-judge/)

1.

Federal judges who have served the United States District Court for the Southern District ofMississippi

Retrieved from "http://judgepedia.org/index.php/Keith_Ball"Categories: Federal judiciary stubs | Magistrate judge, Southern District of Mississippi | Federal magistrate judge | U. of Mississippi Law Alumni

This page was last modified on 4 March 2012, at 09:15.

Keith Ball - Judgepedia http://judgepedia.org/index.php/Keith_Ball

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Judge Ball began his career practicing law with Phelps Dunbar

EXHIBIT "63"

Lawsuit Details

RFC Case Number: C-S12-394R

Court Case Number: 3:12-cv-00394-CWR-FKB

File Date: Wednesday, June 06, 2012

Plaintiff: Sweet Wishes Stationery, LLC

Plaintiff Counsel: Cable Matthew Frost, Jeremy Matthew Clay of Baker,Donelson, Bearman, Caldwell & Berkowitz, PC

Defendant: Rosanne Beck

Cause: 17:101 Copyright Infringement

Court: Mississippi Southern District Court

Judge: District Judge Carlton W. ReevesReferred To: Magistrate Judge F. Keith Ball

Notes:

Docket Text

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Date # Docket Text

6/6/2012 2 NOTICE REPORT ON THE FILING OR DETERMINATION OF AN ACTION ORAPPEAL REGARDING A COPYRIGHT mailed to Register of Copyrights, CopyrightsOffice, Library of Congress, Washington, DC 200559 AO-121 in re 1 Complaint. (ND)(Entered: 06/06/2012)

6/6/2012 1 COMPLAINT against Rosanne Beck ( Filing fee $ 350 receipt number 34643016187),filed by Sweet Wishes Stationery, LLC. (Attachments: # 1 Exhibits 1 thru 24 -Copyrighted Work, # 2 Civil Cover Sheet)(ND) (Entered: 06/06/2012)

Lawsuit Summary - Sweet Wishes Stationery, LLC v. Rosanne Beck http://www.rfcexpress.com/lawsuits/copyright-lawsuits/mississippi-south...

1 of 1 7/18/2012 3:08 PM

Referred To: Magistrate Judge F. Keith Ball

17:101 Copyright Infringement

f Baker,Donelson, Bearman, Caldwell & Berkowitz, PC

EXHIBIT "64"

EXHIBIT "65"

EXHIBIT "66"

MOTION TO STRIKE - Motion To Stay (PKH)

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