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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
Case 2:08-cv-01238-AKK Document 101 Filed 02/22/11 Page 2 of 12
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
Case 2:08-cv-01238-AKK Document 101 Filed 02/22/11 Page 3 of 12
(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
Case 2:08-cv-01238-AKK Document 101 Filed 02/22/11 Page 4 of 12
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 lnettl~s@lgwpc.com
Wayne Morse lr. Waldrep Stewart & Kendrick 2323 Second Avenue North Birmingham, AL 35203 morse@wskllc.com
Roger Shuler, Pro Se
Carol Shuler, Pro Se
Case 2:08-cv-01238-AKK Document 101 Filed 02/22/11 Page 5 of 12
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
matters stated in this affidavit.
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.
Case 2:08-cv-01238-AKK Document 101 Filed 02/22/11 Page 6 of 12
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.
Case 2:08-cv-01238-AKK Document 101 Filed 02/22/11 Page 7 of 12
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
Case 2:08-cv-01238-AKK Document 101 Filed 02/22/11 Page 8 of 12
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
Case 2:08-cv-01238-AKK Document 101 Filed 02/22/11 Page 9 of 12
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
matters stated in this affidavit.
2. My name is Roger Shuler. I am over 19 years of age and have personal knowledge of the
matters stated in this affidavit.
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."
Case 2:08-cv-01238-AKK Document 101 Filed 02/22/11 Page 10 of 12
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.
Case 2:08-cv-01238-AKK Document 101 Filed 02/22/11 Page 11 of 12
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: ---'='--_____--'--______
Case 2:08-cv-01238-AKK Document 101 Filed 02/22/11 Page 12 of 12
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