Carter v. The City of Montgomery et al (JOINT ASSIGN)
MEMORANDUM OPINION, for the reasons stated herein, the Court DENIES Defendant Branch D. Kloess's 104 Motionto Sever; A separate Order 139 was issued on 3/29/2018. Signed by Honorable Judge Royce C. Lamberth on 7/20/18. (djy, )
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
INDIVIDUALLY,AND FOR A CLASS
OF SIMILARLY SITUATED
PERSONS OR ENTITIES
Civil Case No. 2:15-cv-00555(RCL)
THE CITY OF MONTGOMERY and
BRANCH D. KLOESS; JUDICIAL
CORRECTION SERVICES,INC., a
HEALTHCARE COMPANIES,INC., a
Now before the Court is Defendant Branch D. Kloess's Motion to Sever[ECF No. 104].
This Court denied Kloess's motion on March 29, 2018, after considering it and the plaintiffs
Response in Opposition.[ECF No. 110 & 139]. This Memorandum explains the Court's ruling.
Plaintiff Aldaress Carter alleges that several of his statutory and constitutional rights were
violated by defendants' "policies and practices employed to collect debts from the fines, fees,
costs, and surcharges that the City assesses, usually for traffic tickets." [ECF No. 11]. Plaintiffs
First Amended Complaint explains that he and others similarly situated were victims of a "Pay or
Stay" scheme perpetrated by the City of Montgomery, Judicial Correction Services ("JCS"), and
Branch D. Kloess. [ECF No. 18]. For the purposes of the present motion, the Court focuses on
plaintiffs first count, alleging that Montgomery and Kloess denied due process to him and others
in violation of42 U.S.C. § 1983.
In sum, plaintiff alleges that in 2011 he was placed on "probatioe under the supervision
of defendant JCS for failure to pay fines, fees and costs related to traffic tickets. After plaintiff
failed to respond to several "failure to reporr letters issued by JCS, which plaintiff alleges he did
not receive, JCS petitioned for pla'intiffs "probation" to be revoked. Plaintiff never received
notice that a hearing was being held, but on January 30, 2013, Montgomery issued a warrant for
plaintiffs arrest for "Failure to Appeal'in court. Plaintiff was arrested nearly a year later, still
without having received notice ofthe earlier court dates or bench warrant until his arrival at the
Montgomery City jail. [ECF No. 18 at 20-22.] When plaintiff appeared before the judge he was
ordered to pay $915 for the fines and fees associated with his unpaid traffic tickets to secure his
release. Plaintiff was released on January 30, 2014, after his mother paid $452 on his behalf.
Plaintiff then discovered that defendant Kloess had entered a notice of appearance on his behalf,
though he had never met Kloess and did not know who he was. Defendant Kloess "did not
appear before the judge to plead [plaintiffs] indigency or request that the judge reduce his
sentence based on his inability to pay, nor did he meet with [plaintiff] and file any pleading
raising the issue of his indigency." [ECF No.18 at 22-24].
Plaintiff claims that Montgomery exceeded its statutory authority and violated his
constitutional right to due process by entering into an agreement allowing JCS "to bind its
municipal court to include probation and fees for JCS in every court order entered by its hired
judge." [ECF No. 18 at 30] Plaintiff alleges that "Montgomery, by its practice and policy,
permitted, approved and conspired with JCS, a private actor with a financial stake in the
outcome, to play the role of a neutral probation office and, at its discretion, to use threats of
revoking probation, increased fines and costs, arrest and jail time for purposes of collection."
[ECF No. 18 at 33]. Next, plaintiff argues that Kloess, and other public defenders employed by
Montgomery to represent the indigent,"have a policy and practice of not requesting indigency
hearings despite the fact that the only clients they represent under the contract with
[Montgomery] are indigents." [ECF No. 18 at 35]. Plaintiff asserts that this alleged policy—and
defendant Kloess's actions—are in violation of his constitutional due process rights. [ECF No.
Under Federal Rule of Civil Procedure 21, a court is authorized to sever a claim against
any party "at any time, on just terms" on motion ofthe parties or sua sponte. See Fed. R. Civ. P.
21. "In determining whether to join or sever claims, courts employ the permissive joinder
requirements articulated in Rule 20(a), which permits claims to be joined if: 1)the claims arise
from the same transaction or occurrence, or series oftransactions or occurrences; and 2)any
question oflaw or fact common to all plaintiffs arose in the action." Pinson v. U.S. Dep't of
Justice, 74 F. Supp. 3d 283, 288(D.D.C. 2014); see also Fisher v. Ciba Specialty Chemicals
Corp., 245 F.R.D. 539, 541-42(S.D. Ala. 2007).
To satisfy the first prong, the claims must be logically related. Moore v. New York
Cotton Exchange, 270 U.S. 593,610(1926)("Transaction' is a word of flexible meaning. It
may comprehend a series of many occurrences, depending not so much upon the immediateness
oftheir connection as upon their Iogical relationship."); Alexander v. Fulton County, Ga., 207
F.3d 1303, 1323 (11th Cir. 2000)(overruled on other grounds by Manders v. Lee, 338 F.3d
1304, 1328 n.52(11th Cir. 2003)). The Supreme Court has instructed the courts to "entertainp
the broadest possible scope of action consistent with fairness to the parties; joinder of claims,
parties and remedies is strongly encouraged." United Mine Workers ofAm. v. Gibbs, 383 U.S.
715, 724(1966). The second prong—a common question oflaw or fact— "does not require that
all questions oflaw and fact raised by the dispute be common,but only that some question of
law or fact be common to all parties." Alexander, 207 F.3d at 1324(emphasis original); Fisher,
245 F.R.D. at 542. The determination of whether to grant the motion to sever is left to the
discretion ofthe trial court. See West v. Jamssen Pharm., Inc., No. 2:15-CV-553-WKW-DAB,
2017 WL 3492871, at *2-3(M.D. Ala. Aug. 4, 2017, report and recommendation adopted, No.
2:15-CV-553-WKW,2017 WL 3976294(M.D. Ala. Sept. 8, 2017); Fisher, 245 F.R.D. at 541.
To determine whether the claim against defendant Kloess should be severed, the Court
applies the permissive joinder requirements of Rule 20(a) to test whether there exists "1)a right
to relief arising out ofthe same transaction or occurrence, or series oftransactions or
occurrences, and 2)some question oflaw or fact common to all persons seeking to be joined."
See Fed.R.Civ.P. 20(a).
First, the Court considers whether the claims arise from the same transaction or
occurrence, or series of transactions or occurrences. Alexander, 207 F.3d at 1323. Claims are
part ofthe same transaction or occurrence when they are logically related. Moore,270 U.S. at
610. Here, plaintiff alleges that his public defender, defendant Kloess, was involved in
Montgomery's'Pay or Stay" scheme. More specifically, plaintiff alleges defendant Kloess
failed to provide him with adequate representation in accord with Montgomery's public
defenders' alleged practice of not providing their indigent clients with adequate representation.
Strangely, the moving party argues that "[s]ince Kloess is alleged not to have been present, there
is no common transaction or occurrence alleged." [ECF No. 104 at 4]. The Court disagrees.
Kloess's alleged deliberate absence lies directly at the heart of plaintiffs claims. Because
Kloess's alleged failure to adequately represent plaintiff contributed to defendants'"Pay or Stay"
scheme, the Court finds that the claims are sufficiently related to satisfy the same transaction or
Next, the Court determines whether any question oflaw or fact common to all plaintiffs
arose in the action. Alexander, 207 F.3d at 1324. Kloess argues that there are no common
questions of fact with regard to how Montgomery and Kloess violated plaintiffs constitutional
right to due process. Kloess concedes, however, that there is one claim that is common to him
and Montgomery: that plaintiffs constitutional right to due process was violated. [ECF No.
104]. Because defendant Kloess conceded in his motion that a common question oflaw exists,
the Court finds that the second prong ofthe Rule 20(a)(2) analysis is satisfied without further
While both prongs of the Rule 20(a)(2) analysis are satisfied, the determination of
whether to grant the motion to sever is nevertheless left to the discretion of the trial court. See
Alexander, 207 F.3d at 1324 n.16; M.K. v. Tenet, 216 F.R.D. 133, 137(D.D.C. 2002).
Accordingly, the Court considers defendant Kloess's contention that he will be severely
prejudiced if severance is not granted. Defendant Kloess argued that the claim against him "is
isolated and unique' while the "other claims made against the other parties are complicate[d] and
are going to take substantial discovery, substantial motion practice with regard to the asserted
class, and, if tried, lengthy trials with very [c]omplicated issues for a jury to consider." [ECF
Defendant Kloess claims his counsel will be subjected to additional work that will have
no bearing on the claim against him if the claim is not severed, whereas if the claim is severed
the plaintiff will suffer substantially no prejudice. Plaintiff argues that the claims against Kloess
and Montgomery are interwoven and the "same discovery would be needed and the same
evidentiary foundation would have to be laid in both trials in order to establish the joint scheme
that ungirds Plaintiffs claims." [ECF No. 110]. The Court agrees with plaintiffs reasoning.
Although denying the motion to sever might cause defendant Kloess to be subjected to a
longer trial and discovery process, the potential for prejudice against him is not enough to
warrant severance in this case. Additionally, the current record does not establish any basis to
believe a jury would be confused by Kloess's claimed role in the broader alleged scheme.
For the reasons stated herein, the Court DENIES Defendant Branch D. Kloess's Motion
to Sever. [ECF No. 104]. A separate Order was issued on March 29, 2018. [ECF No. 139].
.--- oyce C. Lamberth
United States District Judge
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