Fulmer subpoena an abuse of process?

by Joel on Jul 25, 2008 6:30 AM EDT in Tennessee Volunteer Football Comment 20 comments

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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Joel, I think you’ve lost a bit of perspective on this issue and I’m sure that you know most (probably all) of what I’m about to write, but it’s worth adding to the discussion:

First on your comparison between your experience and Fulmer’s:

The service of process laws vary by state. What constitutes legally valid service in Alabama may or may not constitute the same in Tennessee. I don’t know about Tennessee, but in Alabama the process server need not be licensed. Any non-party can do it. It doesn’t have to be a sheriff’s deputy, a lawyer, or anything else.

There’s a vast difference between serving someone who is already subject to the laws of your state (your corporation, for example) and someone that actually has to be served during a short window while they have availed themselves of the state’s laws for jurisdictional reasons. Your company isn’t going anywhere, can’t hide, and handles these things as a matter of course. Coach Fulmer has demonstrated in the past his willingness to hide out to avoid being served (even at great expense to himself). I can’t say that I blame him, but armed with that fact, I also can’t blame the firm for process-by-ambush.

Second, the media reports of this event have been disappointingly sourced. We had news reports for the longest time saying that Fulmer claimed not to have been served when, in fact, he had only claimed not to have seen the document. That being the case, it’s difficult to put a whole lot of trust in any of the side-stories, including the “thrown subpoena” that you seem to put so much weight on, as though the means of transmission of the document is actually relevant to anything.

I wasn’t there, but I’d guess that it wouldn’t have been easy to walk up to him, shake his hand, introduce yourself, explain why you were there, and then make small-talk while you filled out the paperwork. Even if he didn’t know what was going on, he’d never have stood still long enough for that to happen and, as you might remember from your days as a legal intern, if you’re given a job to do, you do it. Can you imagine the fate of the intern had process not been served? Further, keep in mind that (based on my understanding of Alabama law) Fulmer actually had to be served personally. Service of his body guard or assistant coach wouldn’t have been sufficient—and I’m sure you don’t think Fulmer would have come to the door of his hotel room to be served, do you?

Keep in mind, too, that Judge Graham waived the typical waiting period so that the firm could serve Fulmer at Media Days. I’m not sure how often that happens, but it certainly adds a bit of credibility to the subpoena itself, if not the specific method by which it was served.

Bottom line, you’re upset because your Coach is being dragged into a law suit that many people think shouldn’t even still be going on (as though one’s right to his day in court depends on not inconveniencing football fans), you’re upset that it could be a very real distraction (if the deposition isn’t moved, which I suspect it will be), and I don’t blame you—I’d be annoyed too, but I think that’s slanting your articles, which is something I’m not accustomed to seeing here at RTT.

by PeteHoliday on Jul 25, 2008 10:02 AM EDT reply actions 0 recs

Thanks for your comments, Pete. I’ll assume you’re a lawyer as well, based on your comments and knowledge, but if I’m wrong about that, please clarify.

A few rebuttals:

I don’t know about Tennessee, but in Alabama the process server need not be licensed.

I think you missed my point. It wasn’t that the process server should have been licensed. It’s that the reports were that he was licensed when he was not and that he said one thing early and another thing later. That blame may rest on the reporters, but if any of it is due to his representations to the reporters, he’s to blame. And that would be bad.

I can’t say that I blame him, but armed with that fact, I also can’t blame the firm for process-by-ambush.

I’ll actually concede the point for the time being that Fulmer was avoiding service. Nothing wrong with that if you feel the suit is without merit. Consequently, having to resort to a bit of trickery to get it done might have been necessary. But again, that’s not my main point. See below.

. . . it’s difficult to put a whole lot of trust in any of the side-stories, including the "thrown subpoena" that you seem to put so much weight on, as though the means of transmission of the document is actually relevant to anything.

On the trusting of the reports, agreed, and I don’t know how I could have been more adamant about that fact. The post is absolutely loaded with hedges. On the way service was effected, I still think that’s shady. Perhaps “touch” is the rule, and no, Fulmer’s not going to stand around and make small talk, which is why I said that this situation would probably be different. But you neglect to acknowledge my statement that the Fulmer circumstance shouldn’t be that different. Not only professional courtesy, but prudence would still dictate that you tell the person you’re serving what you’re doing or, if stealth is required, what you’ve done after you did it. Otherwise, that paper could very well get thrown in with the junk mail. Again, if it went down differently than the reports, fine, but if it went down that way, it was unprofessional.

Bottom line, you’re upset because your Coach is being dragged into a law suit that many people think shouldn’t even still be going on (as though one’s right to his day in court depends on not inconveniencing football fans), you’re upset that it could be a very real distraction (if the deposition isn’t moved, which I suspect it will be), and I don’t blame you—I’d be annoyed too, but I think that’s slanting your articles, which is something I’m not accustomed to seeing here at RTT.

This is where you completely miss the point, and that is that they intentionally hijacked Media Days with the intent of embarrassing Fulmer. Your comments neglect to refute the two most important questions (and I’ll concede that they’re still questions): (1) did they tip off the media beforehand, and (2) did they circulate copies of the subpoena to the media gathered in Birmingham to talk about SEC football?

Tell me: what other reason for those two things is there?

Again, I appreciate your comments and the civil discussion.

Go Vols!

by Joel on Jul 25, 2008 10:31 AM EDT up reply actions 0 recs

I’m not (yet) a lawyer—recent graduate, taking the bar (probably the Alabama bar) in February.

My biggest complaint is not so much that I think you’re wrong on the major points you made, but that you’re something of an authority and I think (despite the disclaimers) that the post as a whole made the situation seem much more “known” than it actually is.

To your specific points, though:

1) Assume the media was tipped off. The question I have is what did Smith know and when did he know it? It’s possible that this whole affair was just as shocking to him as to the rest of us. But, furthermore, it’s not difficult to imagine a situation in which the process server said something like “Mr. Fulmer, this is a subpoena issued by the such-and-such court” prior to giving/throwing it to him. It’s also not difficult to believe, should that have been the case, that Fulmer might not have heard it, but those standing near by did. Many of those standing near by may have been members of the press, who would certainly have been interested in a subpoena. Put all of those things together, you get widespread media knowledge of the subpoena combined with Fulmer’s ignorance of it (which I guess we’re just assuming is fact?) looking a lot more like bad circumstance rather than tricky ambush. The ambush element is still there, of course, but it looks far less sinister in that case.

If it was an orchestration to create a media circus, then I agree it was a pretty low-rent way to go, although I hardly think it rises to the level of abuse of process. If tacky were against the law, a healthy portion of both of our fan-bases would find themselves in some serious trouble.

2) This is the tougher one to find a plausible, non-shady explanation for, to be certain. Although I think there’s a difference between this being a part of a plan to sabotage media days versus “Well, in the event that the media is there when we serve him, we might as well bring copies, since they’re going to end up with them anyway.”

I’m skeptical about this point, but I’ve seen the media’s portrayal of a story turn out to be a little “off” enough times that I’m trying to give these folks the benefit of the doubt.

Also: wouldn’t there have been a bigger media circus if the server had been more up-front about the service? I mean, if you were trying to create a hubbub, what would work better than standing firm, handing him the subpoena, and making a photo-op of it?

As for all the talk about this ruining media days or the rivalry, I just don’t buy it. I think it’s a bit of an exaggeration to vilify Smith/Smith’s firm/etc. Yes, Media Days was a circus, but what was the harm, really? Fulmer didn’t have to comment on it (and didn’t to any large degree), nobody has forced anyone to read about the subpoena, and it hasn’t been reported to the exclusion of other interesting things being said at Media Days (of which there are typically very few anyway). And as for the Third Saturday… if y’all can’t get up for the game itself without getting wound up about the legal issues, I just don’t know what to say to you. That will be the farthest thing from my mind when our respective teams take the field.

Finally, and I do apologize for the length, it’s worth considering that this isn’t just a frivolous law suit. If there’s any merit to it at all, I’d prefer just to let Smith have his day in court without crucifying him for messing with our precious football season.

by PeteHoliday on Jul 25, 2008 3:51 PM EDT up reply actions 0 recs

Ooh! Lawyer Fight!

Ok, it’s not that bad, I know. But still.

I’m interested in seeing where this discussion goes. My non-lawyer take is basically this:

+ Everything about this suit looks like a big temper tantrum. You have one booster (is he a former booster, an excommunicated booster, or what?) with an axe to grind, a legal team who grandstanded the service (there were many other ways of handling this that would have been more discreet) and a history of failed Alabama lawsuits against the NCAA.

+ Fulmer is nominally a witness, not a defendant. I only say nominally because I don’t know if anybody’s planning on using his deposition as evidence against his prior actions. (E.g. if his depo. doesn’t perfectly line up with the evidence from 4 years ago, would somebody go after him either for falsifying the old information or for lying on his depo.?) But back to the point, he’s a witness. You would think that the lawyers wouldn’t have to treat him as such a hostile entity: tell the truth and all is well. You’d also think they could have negotiated the timing of everything better – particularly the deposition date.

+ I’m willing to bet the lawyers are getting paid a flat fee on this one, not a percentage of the presumed winnings. Correct me if I’m wrong.

i usually have a two-week rule on such things as this: let the story simmer for two weeks, then look at the information that’s out there and start forming opinions. I jumped the gun on that yesterday and I now wish I hadn’t, but here I am. it still seems bush league to me, as most law firms would have done better

But what really gets me about this is how the football rivalry has turned into a legal war. Somewhere along the line, one or two Alabama boosters lost perspective on football. Now we have a huge mess on our hands, and the average UT/UA fan will have a hard time enjoying the game without being distracted by the sideshow. It’s not so much that the issue should be dropped; it’s that the issue should never have surfaced. This can happen to any major fanbase; the fact that the booster likes UA is really immaterial.

Well, wake me up when football starts.

by Hooper on Jul 25, 2008 11:30 AM EDT reply actions 0 recs

Oh, forgot to say.

I do appreciate the comments, Pete. The fact that you’re an Alabama fan (assumption made based on profile) really means little to me compared to being a fellow countryman (again, assumed) and being engaged in a detailed and civil discourse. Allow me to assume friendship first and rivalry as a distant umpteenth place.

by Hooper on Jul 25, 2008 11:36 AM EDT up reply actions 0 recs

I don’t hate any of you individually… it’s when you turn into a giant sea of rocky-top-singing orange that I start having a problem. ;)

...but if I make it to Knoxville for the game this year, I’d be happy to chat subpoenas or the spread over a round of beverages.

by PeteHoliday on Jul 25, 2008 4:04 PM EDT up reply actions 0 recs

BAMA LAW ?

Pete, What Bama Law, what you know about Bama Law would fit right in the bottom of waste basket. Bama Law ain’t nothing but a bunch of old RED NECK BUBBAS doing what BOSS HOGG wants them to do, and Boss wants Fulmers hide. So I’m gonna take your blog and put it at bottom of my FIRE PLUG and serve it the same way Fulmer was served, HIT or MISS.
GO VOLS !!!, OLD SMOKEY

OLD SMOKEY

by volman on Jul 25, 2008 12:27 PM EDT reply actions 0 recs

Easy now, Old Smokey

I appreciate your canine instinct to protect the program, but Pete’s welcome to try to make his case. He’s not yet countered the main argument (why the media?), but he made some decent points in his first post. Store up all that stuff, and we’ll unleash you on October 25 so you can have your way with the guys in Crimson.

Down, boy.

For now. ;-)

Go Vols!

by Joel on Jul 25, 2008 12:52 PM EDT up reply actions 0 recs

One Other Observation...

I agree with Joel for one very basic reason: Fulmer did not have to be served while in the State of Alabama.

Under the Full, Faith and Credit clause of the US Constitution (a clause which contributed heavily to some annoyingly intractable disputes over states refusing to honor the laws of another state which ended in a small conflict known as the Civil War) each state has to honor and enforce the subpoenas of other states, including having them served.

I have personally had out-of-state subpoenas commissioned on numerous occasions for deponents in other states. I will say this—it is a royal pain-in-the-butt to do, but any lawyer can do it if they take the time to consult the Rules of Civil Procedure for their state and the home state of a deponent (or just call the clerk of court in each location).

There is a very well established system for accomplishing this sort of thing, which any lawyer worth his salt is aware of (or could become aware of with little effort). So any claims by Smith’s attorneys that they had to serve Fulmer while he was in the state is an outright, baldface, lie. Period, it is not even open to discussion.

As an attorney who has represented a lot of healthcare providers, businesses, contractors, and so forth over the years in highly contentious cases, there is only one reason that a party pulls a stunt like what occurred yesterday—to prove a point or gain publicity. It is gamesmanship, it is unprofessional, and irrespective of Coach Fulmer’s involvement it is the sort of tactic a slimeball attorney (a/k/a the kind that generally give the legal profession a bad name) pulls.

I honestly could care less whether the suit is about Alabama or whether Coach Fulmer was involved at all—it’s pure “Bush-League” lawyering, and it is reprehensible.

I’ve got not problem with Alabama or it’s fans - heck I’ve been posting nice things about them for the last few weeks over at Gate 21 - but this isn’t about Alabama at all. For me this is about a rogue booster and his dirtball lawyers. It is also about the “rules of engagement” when it comes to legal disputes.

Personally, I know judges who would sanction the attorneys in this case at the drop of a hat—and not a minor sanction either. While I agree that proving abuse of process can be a tough road to hoe when it comes to proving your case, I agree with Joel that this instance passes the smell-test and is definitely worth pursuing.

Just my humble opinion for what it is worth…

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lawvol: Gate 21 - Life, the Universe, & the Bounce of the Ball

by lawvol98 on Jul 25, 2008 2:26 PM EDT reply actions 0 recs

The problem with that argument is that the full faith and credit clause doesn’t trump jurisdiction. If the Tennessee courts find that the Jackson County (Alabama) Court doesn’t have jurisdiction over Fulmer, they could easily choose not to grant the subpoena full faith and credit. That problem is completely alleviated if the subpoena is served in Alabama.

This is much more likely to be the case when it comes to depositions than defendants. Presumably the suit being filed is contingent upon jurisdiction over the defendant to start with, so serving the person out of state should be an easy thing to do. The same is not the case with a subpoena, where that person may never have stepped foot in, done business with anyone in, or otherwise had any contact with the forum state or her laws.

by PeteHoliday on Jul 25, 2008 2:37 PM EDT up reply actions 0 recs

In response to both, I’d be curious to know how the jurisdiction issue normally works out. In either case, the attorneys had the option of requesting delivery in Tennessee. If lavol’s correct, then there was no reason to not serve Fulmer in Tennessee. (After all, there was a very real chance that the subpoena might not have been served at all yesterday.) If Pete’s correct, then the attorneys basically decided that the Tennessee courts were not reliable for support. Given the common border, I’m sure that Tennessee and Alabama have dealt with FF&C many times and have a well-established protocol for it. I’d guess that this would qualify, particularly since Fulmer has considerable business interest in Alabama (such as recruiting). I don’t know what that protocol is, but I would be very surprised to hear that it would justify the risk involved in waiving the normal waiting period and risking Fulmer’s appearance for one day. (Seriously, if the paper toss hadn’t been successful, what was plan B? Fulmer left immediately afterwards, as I understand things.)

by Hooper on Jul 25, 2008 3:04 PM EDT up reply actions 0 recs

I don’t think it’s as cohesive a system as it might seem from the outside. It’s not really a question of whether the Tennessee courts are reliable—I’m not suggesting that they would try to give Fulmer protection to which he wasn’t entitled, but I do expect that they would give him (and any of their citizens) all of the protection to which they are entitled.

It’s not really “The States” that make it work, it’s the decision of two independent court systems, and if I’m the Tennessee Judge and this subpoena lands on my desk, the first question I ask is “Does this court in Alabama have jurisdiction to compel him to attend the deposition?” If that answer is “no”, it’s not going any farther than that.

It’s possible that I’m misunderstanding the nuances here, but I don’t think I am. I also don’t think there was much chance of the service failing. They surely had a lot of chances to get it to him during the course of the weekend.

Jurisdiction is not the easiest thing to figure out all the time, but one way to look at it is “Did the subject do anything to subject himself to the laws of the state trying to get jurisdiction.” One of the simplest ways of doing that is by coming into the state. There are other ways, of course, like soliciting business in the state can also lead to jurisdiction. It’s much more complicated than that, really, but I don’t think you want an essay on jurisdiction.

by PeteHoliday on Jul 25, 2008 4:00 PM EDT up reply actions 0 recs

No, please

No essay on jurisdiction, please! To this day, the words “Pennoyer v. Neff” strike cold fear into my heart, and I don’t even remember if that’s a jurisdiction case.

Good luck with the bar exam, by the way. Know this: you’ll never know more law than you do this summer. It’s all downhill from here.

But you’re still wrong. ;-)

Go Vols!

by Joel on Jul 25, 2008 4:42 PM EDT up reply actions 0 recs

But you’re still wrong. ;-)

Indeed. I’ve been told that virtually every day since the beginning of law school, I’m sure it’s no less true today.

by PeteHoliday on Jul 25, 2008 4:46 PM EDT up reply actions 0 recs

First it’s law professors. Judges and clients come soon thereafter. Then spouses, then kids. I’m told it only gets better when you retire and your kids becomes parents, and that’s a matter of degree only.

Go Vols!

by Joel on Jul 25, 2008 4:58 PM EDT up reply actions 0 recs

Being Wrong

I was rumored to be correct once … but they had me mixed up with someone else.

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lawvol: Gate 21 - Life, the Universe, & the Bounce of the Ball

by lawvol98 on Jul 25, 2008 8:04 PM EDT up reply actions 0 recs

Jurisdiction...

Well the issue is really not one of jurisdiction.

Jurisdiction over a person really only matters (in a practical sense) when you are suing that person. When it comes to discovery (a/k/a depositions) then the standard is much lower, and not governed by jurisdictional bounds so much as by the contempt power of the Court, and the discretion granted by Rule 37.

Any person with information reasonably calculated to lead to the discovery of admissible evidence is - ulitmately - amenable in some form or fashion to the Court. This would be especially true considering Phillp Fulmer actively conducts business in the State of Alabama (i.e. a football coach’s business is coaching football games, etc.) and he specifically spoke to the NCAA on the issue.

My only question is why the NCAA didn’t or couldn’t manage to get the case removed to Federal Court?

Good lord, this is getting to be like work…

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lawvol: Gate 21 - Life, the Universe, & the Bounce of the Ball

by lawvol98 on Jul 25, 2008 8:01 PM EDT up reply actions 0 recs