U.S. DISTRICT COURT N.D. OF ALABAMA - Popehat · PDF fileUNITED STATES DISTRICT COURT , .. ... Plaintiffs Roger Shuler and Carol Shuler ... U.S. DISTRICT COURT N.D. OF ALABAMA:

UNITED STATES DISTRICT COURT , .. ' r.;? t ~~'..i ;:.-. ~NORTHERN DISTRICT OF ALABAMA ~.

SOUTHERN DIVISION

ROGERSHULER,CAROLSHULER ) Plaintiffs ) Pro Se )

~ ) CIVIL ACTION NUMBER INGRAM & ASSOCIATES, ) NCO FINANCIAL SYSTEMS INC, ) 2:08-cv-1238-AKK

Defendants ) ) ORAL ARGUMENT REQUESTED

RESPONSE TO COURT'S ORDER ON MOTION TO RECONSIDER, PLUS MOTION

FOR RECUSAL

Plaintiffs Roger Shuler and Carol Shuler ("Shulers") are in receipt of this court's order

dated Jan. 31,2011, denying their Motion to Reconsider, Plus Motion to Recuse (Doc. 99). The

Shulers respond as follows:

1. The court's order is unlawful regarding what it does address. And it is even more

unlawful regarding what it does not address.

2. On the former, the court denies the Shulers' recusa1 motion by citing E.J. Gallo Winery v.

Gallo Cattle Co, 967 F. 2d J280 (9'h Cir., 1992). As has been this court's practice

throughout the instant litigation, it either intentionally or unintentionally misstates the

findings of a cited case. The Gallo court found:

"However, it does not necessarily follow that a party having information that raises a possible

ground for disqualification can wait until after an unfavorable judgment before bringing the

information to the court's attention. It is well established in this circuit that a recusal motion must

be made in a timely fashion. Molina v. Rison, 886 F.2d 1124, 1131 (9th Cir.1989)."

FILED 2011 Feb-23 AM 09:39U.S. DISTRICT COURT

N.D. OF ALABAMA

Case 2:08-cv-01238-AKK Document 101 Filed 02/22/11 Page 1 of 12

3. The Shulers based their recusal motion on Judge KaHon's order dated Jan. 18,2011, in

which he clearly gave no serious consideration to the matters raised, reflecting a bias that

merits recusal. The Shulers renew their recusal motion, including an affidavit pursuant to

28 U.S.C. 144. (See Exhibit A.) Judge KaHon's disqualification from this case is required

on the basis of personal bias as described in 28 U.S.C. 455.

4. The Shulers filed their recusal motion immediately; they did not wait, as happened in the

Gallo case. The Gallo court stated:

While there is no per se rule that recusal motions must be made at a fixed point in order to be timely, see

Preston (section 455 motion timely even though made 18 months after assignment to district court judge

and shortly after an adverse discovery ruling), such motions "should be filed with reasonable promptness

after the ground for such a motion is ascertained." ld. at 733.

5. The Shulers clearly filed their motion with reasonable promptness after they ascertained

the grounds for such a motion. Therefore, Gallo does not support denial of the Shulers'

motion.

6. This court cites Christo v. Padgett, 233 F. 3d 1324 (l1 th Cir., 2000), and other cases, to

support its finding that the Shulers' motion is premised on an insufficient ground for

recusal-their dissatisfaction with the court's rulings against them. A plain reading of the

Shulers' motion shows they based it on this court's less than one-day turnaround on a

matter that involved some 70 pages for review. The Shulers' motion cites this court's

personal bias and clear lack of seriousness regarding the fulfillment of its duties, not its

rulings themselves. Christo and other cases cited by this court do not support a denial of

the Shulers' motion. In summary, Judge KaHon's recusal is required by 28 U.S.c. 455.

7. Judge KaHon's recusal also is required by Caperton v. Massey, 129 S. Ct. 2252 (2009),

which found that recusal is required in cases where "the probability of actual bias on


the part of the judge or decisionmaker is too high to be constitutionally tolerable." As the

Shulers' affidavit shows (see Exhibit A), the probability of Judge KaHon's actual bias

against them is overwhelming.

8. Meanwhile, this court never addresses the primary issue raised in the Shulers motion of

Jan. 21, 2011 (Doc. 99). The Shulers make it clear that they never received in the U.S.

mail the Dec. 7 scheduling order (Doc. 93) regarding their Rule 60(b) motion. The court

made a finding, denying the Shuler's 60(b) motion, without considering their reply brief,

which was sent past a deadline about which they were never notified. (See Exhibit B.)

This represents gross prejudice against pro se litigants who must rely on the U.S. mail for

receipt of documents, while opposing parties who are represented by counsel have access

to the court' electronic filing system.

9. Exhibit B is a sworn statement, showing that the Shulers' did not receive the scheduling

order regarding the 60(b) motion. This court's failure to address the issue amounts to a

clear violation of the Shulers' right to due process and equal protection under the law.

The court is denying the Shulers' a right to be heard on critical issues simply because, as

pro se plaintiffs, they did not receive information in the U.S. mail.

10. This court is bound by fundamental constitutional concepts to correct this violation by

considering the Shulers' reply motion, which shows that the court's findings were based

on an incomplete record and numerous misinterpretations of relevant law.

WHEREFORE, premises considered, the Shulers move Judge Abdul KaHon to

recuse himself from this case, pursuant to 28 U.S.C. 455 and pursuant to the due process

provisions ofthe U.S. Constitution, as described in Caperton v. Massey, 129 S. Ct. 2252


(2009). Furthermore, the Shulers move this court to vacate its order of Jan. 18 and vacate

its order of Jan. 7, which was not fully briefed because the Shulers did not receive notice

regarding a reply-brief deadline. The Shulers move this court to correct prejudice against

pro se plaintiffs by considering their reply motion, which shows that the court's findings

were based on an incomplete record and numerous misinterpretations of relevant law.

Again, this involves due process issues as defined in Caperton v. Massey.

Respectfully submitted, this 0,).""') day of Ft.~ [, ,2011

/;?L U;/1 ~::J'fLJj-r,1

Roger Shuler, Pro Se

Carol Shuler, Pro Se

Roger and Carol Shuler 5204 Logan Drive Birmingham, Alabama 35242


CERTIFICATE OF SERVICE

We hereby certify that a copy of the foregoing has been duly served via e-mail on the following:

Laura Nettles, Esq. Lloyd Gray & Whitehead 2501 20th Place South, Ste. 300 [email protected]

Wayne Morse lr. Waldrep Stewart & Kendrick 2323 Second Avenue North Birmingham, AL 35203 [email protected]

Roger Shuler, Pro Se

Carol Shuler, Pro Se


mailto:[email protected]

mailto:[email protected]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROGER SHULER, CAROL SHULER ) Plaintiffs ) Pro Se )

v. ) CIVIL ACTION NUMBER INGRAM & ASSOCIATES, ) NCO FINANCIAL SYSTEMS INC, ) 2:08-cv-1238-AKK

Defendants ) )

AFFIDA VIT OF CAROL SHULER AND ROGER SHULER

STATE OF ALABAMA)

SHELBY COUNTY)

Before me, the undersigned Notary Public, in and for said County and State, personally

appeared Carol Shuler and Roger Shuler, who are known to me and who said the following:

1. My name is Carol Shuler. I am over 19 years ofage and have personal knowledge of the

matters stated in this affidavit.

2. My name is Roger Shuler. I am over 19 years of age and have personal knowledge of the


3. U.S. Judge Abdul Kallon has been assigned to two cases in which we are plaintiffs-

Roger and Carol Shuler v. Ingram & Associates, et al (2:08-cv-1238-AKK) and Roger

and Carol Shuler v. William E. Swatek, et al (2: 1 O-cv-Ol 1215-AKK). In both cases, Judge

Kallon has displayed a persistent and blatant personal bias against us.


4. KaHon's bias has been both extrajudicial, requiring recusal under 28 U.S.C. 455, and

intrajudicial, requiring recusal under the due process clause of the U.S. Constitution and

Caperton v. Massey, 129 S. Ct. 2252 (2009).

5. KaHon's extrajudicial bias, based on information and belief, stems from his association

with the Birmingham law firm Bradley Arant. KaHon served as an attorney at this firm

before being appointed a federal judge in 2009. Bradley Arant is one of the most

powerful law firms in Alabama, with strong connections to former Governor Bob Riley

(2003-2011.)

6. The Shulers' legal issues encompassed in the two referenced lawsuits grew from a

groundless property-related complaint filed against Roger Shuler in Shelby County,

Alabama, by a neighbor named Mike McGarity. The attorney who filed that case is

William E. Swatek, who is based in Pelham and has a 30-year history of misconduct with

the Alabama State Bar, including a suspension of his license and a criminal trial on

perjury charges. Despite his sordid background, Bill Swatek has strong ties to the

Alabama Republican Party, and we have seen him repeatedly receive favorable treatment

from state judges, especially those elected or appointed as Republicans.

7. Swatek receives favorable treatment, based on information and belief, largely because his

son (Dax Swatek) is a Montgomery-based political consultant who was Bob Riley's

campaign manager in 2006.

8. The Riley administration has extremely close ties to Bradley Arant, where Judge KaHon

once practiced. According to press reports, the firm received millions of taxpayer dollars

during the Riley era, much of it connected to a dubious campaign against gambling

interests. The governor's son-in-law, Rob Campbell, is an attorney at Bradley Arant.


9. We have received numerous anonymous threats via e-mail indicating that individuals

connected to the Riley administration have caused much ofour legal headaches,

including cheating us out of our jobs at UAB and Infinity Property & Casualty,

respectively.

10. On his blog, Legal Schnauzer, Roger Shuler has written extensively about Bradley

Arant's involvement in an Alabama domestic-relations case involving a man named Ted

Rollins, who is CEO of Charlotte-based Campus Crest Communities and a member of

one of America's wealthiest families. Using public documents, Roger Shuler has reported

that Bradley Arant lawyers apparently helped Ted Rollins receive unlawfully favorable

treatment in Alabama courts, at the expense ofhis ex wife (Sherry Carroll Rollins) and

his daughters (Sara and Emma). Roger Shuler also has written about a number of race

discrimination lawsuits filed against Ted Rollins' company.

11. Before becoming a federal judge, Abdul Kallon was involved in Bradley Arant's defense

ofTed Rollins in the discrimination lawsuits. In short, Abdul Kallon was part ofa

defense effort that Roger Shuler has described as deeply suspect, perhaps even unlawfuL

12. Based on information and belief, Abdul Kallon has a deep-seated bias against the Shulers

because they have stood up to both the Riley administration and Ted Rollins' company

two entities from which Kallon's former law firm has made millions of dollars, and from

which Kallon himself almost certainly has profited.

13. Regarding intra judicial bias, Kallon has made-by a conservative estimate-at least 20

unlawful rulings in our two cases before him. The unlawful rulings are too numerous to

mention here but they are presented in two documents-motion to alter or amend


judgment in the IngramlNCO case (filed May 28,2010) and motion to alter or amend

judgment in the Swatek case (filed Jan. 21, 2011).

14. In Caperton v. Massey, 129 S. Ct. 2252 (2009), the U.S. Supreme Court held that recusal

is required where "the probability ofactual bias on the part ofthe judge or decisionmaker

is too high to be constitutionally tolerable." Such bias, the nation's high court found,

violates the constitutional guarantee ofdue process and the right to an impartial arbiter.

15. Ifsome 20 unlawful rulings over two cases are not constitutionally intolerable-and both

cases are pending, with many more opportunities for Judge Kallon to act unlawfully-

then what is? Just how corrupt does a federal judge have to be before litigants can expect

the protection required by the Caperton ruling?

Carol Shuler

Roger Shuler

Sworn to and subscribed before me on this if. \ ;AT

day of Jimuary, 2011.

.re~"'~~7

Notary Public

Commission Expires: /?31;;;0 I y


UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROGER SHULER, CAROL SHULER ) Plaintiffs ) Pro Se )

~ ) CIVIL ACTION NUMBER INGRAM & ASSOCIATES, ) NCO FINANCIAL SYSTEMS INC, ) 2:08-cv-1238-AKK

Defendants ) )

AFFIDAVIT OF CAROL SHULER AND ROGER SHULER

STATE OF ALABAMA)

SHELBY COUNTY)

Before me, the undersigned Notary Public, in and for said County and State, personally

appeared Carol Shuler and Roger Shuler, who are known to me and who said the following:

1. My name is Carol Shuler. I am over 19 years of age and have personal knowledge of the


2. My name is Roger Shuler. I am over 19 years of age and have personal knowledge of the


3. We received an order signed by Judge Abdul KaHon, dated Jan. 18,2011, in the above-

styled matter. The order stated that our Motion to Reconsider the judge's ruling on a

Motion to Vacate Judgment [Rule 60(b) FRCP] was being denied. As grounds, the order

stated that "by order dated December 7, 2010, (the court) gave Plaintiffs until December

28 to submit their reply in support of their original motion. See Doc. 93. Plaintiffs failed

to reply."


4. We did not fail to reply. We filed a reply on Jan. 18,2011, which was late because we

never received Doc. 93 in the U.S. mail.

5. As pro se plaintiffs, we must rely on the U.S. mail to receive documents in this case. We

had never missed a deadline throughout the course of this litigation-almost three years

now-and would not have missed this one had we received notice of the deadline.

6. Opposing parties in this case are represented by counsel, and thus have access to the

court's electronic filing system. This puts pro se parties at a severe disadvantage,

especially when the U.S. mail fails to deliver important documents.

7. We note that, since we both are plaintiffs in this matter, we receive two copies of all

documents from the court. We received no copies of Doc. 93, and we find it hard to

believe that the U.S. mail would fail to deliver at least one of our two copies, had they

been placed in the mail. That strongly suggests to us that Doc. 93 never was sent from

the U.S. Courthouse. This court has presented no evidence that said document was placed

in the U.S. mail, and it almost certainly was not. Given that our Rule 60(b) motion

involved serious allegations of misconduct by members of the Alabama State Bar, whom

this court apparently is trying to protect, we suspect the failure to mail the deadline notice

to us was intentional.

8. Regardless ofwhat caused Doc. 93 to not be delivered, we hereby state that we did not

receive the document, causing us to miss a deadline on a matter of critical importance in

this case.


Carol Shuler

Roger Shuler

~ Sworn to and subscribed before me on this ~7 \ day of'Jam.taI:y, 2011 .

.FeYx~.>'-"1

Notary Public

Commission Expires: ---'='--_____--'--______


U.S. DISTRICT COURT N.D. OF ALABAMA - Popehat · PDF fileUNITED STATES DISTRICT COURT , .. ... Plaintiffs Roger Shuler and Carol Shuler ... U.S. DISTRICT COURT N.D. OF ALABAMA:

Documents