Motion in FOP vs. Little/Spain

ELECTRONICALLY FILED 12/16/2011 2:56 PM CV-2011-000341.00 CIRCUIT COURT OF CALHOUN COUNTY, ALABAMA TED HOOKS, CLERK

IN THE CIRCUIT COURT OF CALHOUN COUNTY, ALABAMA SEVENTH JUDICIAL COURT ANNISTON FRATERNAL ORDER OF POLICE LODGE #4 PLAINTIFF, v.

BEN LTTLE, JOHN SPAIN, DEFENDANTS.

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CASE NUMBER: CV-2011-000341.00

MOTION TO SET ASIDE ENTRY OF DEFAULT COMES NOW, Ben Little and John Spain, as named in the above-styled matter, by and through their undersigned attorney of record, moves this Court, pursuant to Rule 60(b) to set aside the Default Judgment entered against them on December 5, 2011 on the grounds of (1) mistake, inadvertence, surprise and excusable neglect; (2) manifest injustice will result if the judgment remains; (3) and the judgment was not rendered in a manner consistent with procedural due process.

On December 6, 2011 a Default Judgment was granted against the defendants as to Counts Seven (7) and Eight (8) of Plaintiff’s Complaint. The Defendants’ default is excused by reason that the summons delivered on November 21, 2011 clearly gave the defendants thirty (30) days to answer the complaint (see Exhibits 1 & 2). Thus, the defendants should have been given until December 21, 2011 to answer the complaint instead of seven days as stated in the Motion for Default Judgment.

The 5th

Amendment made applicable to the States through the 14th Amendment of the United

States Constitution requires fairness

“with notice and the opportunity to present

evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them.” Ex parte Weeks, 611 So.2d 259, 261 (Ala.1992). The defendants should have been given proper notice of when to answer a complaint so that an opportunity is provided to attend and present a claim or defense. Article 1, §§ 6 and 13, Alabama Constitution of 1901. See also Ex parte Family Dollar Stores of Alabama, Inc., 906 So.2d 892,888 (Ala.,2005); See also Mickens v. Calame, 497 So.2d 505, (Ala.Civ.App.,1986) (where summons was void, thereby entitling defendant to relief from default judgment, where it failed to notify defendant of consequences of failure to respond). A judgment is void if it is rendered in a manner inconsistent with due process. Nichols v. Pate, 992 So.2d 734, 736 (Ala.Civ.App.,2008).

The Defendants, and each of them, have a meritorious defense to this abuse of process, conspiracy, injunction, harassment, intimidation, negligence, wantonness, malice, and defamation action.

WHEREFORE, PREMISES CONSIDERED, since the summons served on the defendants clearly gave the defendants thirty (30) days to respond; therefore, the Default Judgments against the Defendants were the result of mistake, inadvertence, surprise and excusable neglect. To allow the judgments to stand would be a manifest injustice, since it was rendered in a manner inconsistent with fairness and due process.

The Defendants respectfully request that this Court set aside the Default Judgments and

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allow the defendants the opportunity to prosecute the complaint, complete discovery, and proceed to a trial on the merits.

Respectfully submitted this 16th day of December, 2011. /S/Raymond L. Johnson, Jr. Attorney for Defendants

THE JOHNSON LAW FIRM, LLC 1205 – 19th Street North Birmingham, Alabama 35234 205-731-2150 – Voice 205-322-2832 – Fax

CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the above foregoing motion to all parties of record via by electronic filing transmission through AlaFile and/or U. S. Mail properly address, postage prepaid on this 16th day of December, 2011 as follows:

R. Joel Laird, Jr. LAI004 Attorney for the Plaintiffs 19 W 11th Street Anniston, AL 36201 256-237-3080 /S/Raymond L. Johnson, Jr. OF COUNSEL

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