Fulmer subpoena an abuse of process?

To establish a claim of abuse of process, [the plaintiff] must prove: “(1) the existence of an ulterior purpose; 2) a wrongful use of process, and 3) malice.” (citation omitted). "[T]he [ulterior motive] must culminate in an actual abuse of the process by perverting it to a use to obtain a result which the process was not intended by law to effect." Willis v. Parker, 814 So.2d 857 (Ala., 2001).

Imagine you're ten, and it's Christmas morning. You wake at first light and run downstairs as loud as you can, making sure to wake everyone as you go so that you can get to the business of opening your gifts.

And then the front door opens. No ring. No knock. It just opens, and in walks your wicked aunt and her 17 yappy dogs, cigarette smoke and obscenities oozing from her mouth in equal portions. Your heart sinks, because you know. You know she's here to stay, and she's ruined your one chance this year at a happy Christmas.

Or imagine working your butt off through four years of college and actually finishing at the top of your class. At the graduation ceremony, the President of the University sets aside time to present an award to you in front of the entire assembly. Just as you are making your way across the stage, some flunkie from the back row asserts himself at the podium and begins a five minute political speech about the evils of plate tectonics. He's robbed you of the moment for which you've worked so hard.

I think you see where I'm going with this.

The national headline from SEC Media Days Thursday was that Phillip Fulmer was served a subpoena requiring him to appear, in the middle of football season, for a deposition in a defamation case by former Alabama booster Wendell Smith against the NCAA. Well, maybe "Fulmer was served" isn't quite the right phrase. Try "they served the subpoena at him." Yeah, that's better. They served it at him, like a tennis ball. Aim, swing, grunt, hit. And if the guy isn't paying attention, you just might get yourself an ace.

I'm General Counsel with a health care company in a particularly litigious sector of that industry. We get frivolous lawsuits all of the time, and I, as GC, am the guy who gets served.

Here's how it works: A deputy or some other official-looking dude shows up at the front door and asks for me because I'm listed as the registered agent for the company. The receptionist calls back to my office. I go to the front, see the badge and the sidearm, and shake hands with the man in blue. "Who's this one from, officer?" We chat about the weather while he fills out paperwork, which includes a signed statement by him that he has delivered the documents to me. After that's done, I take the papers, and he leaves. Very professional. Now those are Complaints -- lawsuits -- and the serving of deposition subpoenas may be different, but . . . not this different.

The way coach Fulmer was reportedly served his subpoena in Birmingham is despicable, and those responsible for it have (ironically in the process of pursuing their client's suit for alleged injury to his reputation) damaged the reputation of Alabama fans everywhere. Let's recap . . . and because (1) the actual events that occurred yesterday are still largely unsettled, (2) I haven't been able to verify any facts other than what I've heard or read, most of which was a moving target all day (including the fact that information appears to have been posted and subsequently removed at various websites), and (3) it appears that you can very easily get sued by some asinine Alabama fan for merely speaking, . . . consider the following bullet points to all be peppered with generous portions of "allegedly," "reportedly," "apparently," or your other favorite hedge word:

  • Someone tipped off at least a couple of media outlets prior to serving the subpoena. (Reported on The Sports Page this morning.)
  • The process server disguised herself by posing as a Tennessee fan, wearing orange and ambushing Fulmer as he was exiting his vehicle. (I can no longer find the "wearing orange" bit, but I know it was published somewhere on the web this afternoon. It's apparently been removed, so the veracity of this particular point is even more suspect than the others.)
  • The process server did not announce herself or her intentions, but essentially tossed the subpoena at Fulmer like she was playing kickball and she would win if only she touched him with the magic paper.
  • Almost immediately after service, copies of the subpoena were distributed to the media. (Also reported on The Sports Page this morning as it was happening.)
  • A representative of the law firm was initially identified as a lawyer, but turned out to be an unlicensed law clerk. He also said at one point that he personally served Fulmer and later that the process server did the deed.

If all of that is true, it's the shadiest kind of shady. Sketchy. Low. Reprehensible. Really, the only part that need be true to get it into that category would be that they tipped off the media and circulated copies of the subpoena at Media Days. That would be bad enough.

Why? Because when you add up all of the factors, it's readily apparent that the goal wasn't simply to secure the deposition of Fulmer, but to wreak havoc, to embarrass, to harrass. To steal the microphone and shine the spotlight on your own idiotic legal manuevering. Memo to Jeff Hagood (Fulmer's attorney in Knoxville): get a clerk researching the "abuse of process" intentional tort.

This was a time for Fulmer and Tennessee fans to honor the accomplishments of seniors Arian Foster and Robert Ayers and to talk about the upcoming season, but instead, some moron walked to the podium uninvited and screeched out his own agenda, utterly without consideration of the desires of everyone else convened there for another reason.

Let me be clear: if they needed Fulmer's deposition testimony for their suit, fine. I suspect that the claim is frivolous, but fine. Go ahead and serve him, if you must, but do it professionally and then go back to your office.

But make no mistake: the plaintiff, his attorneys, and their process server turned the simple task of securing jurisdiction over a person into a circus, and (again, if the above is true) they appear to have done so intentionally. They robbed Fulmer, Foster, Ayers, and Tennessee fans of their SEC Media Day this year.

Fulmer himself nailed it: "The issue is its all crap and they are trying to use the press trying to use a day that’s very special to the Southeastern conference for players and the coaches."

He may as well have said, "misuse of process with malice for an ulterior motive." And yeah, if it all turns out to be true, it sure smells that way from here.

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