IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION 

CINCINNATI INSURANCE COMPANY, ) 

) 

Plaintiff, ) 

) 

v. ) Civil Action No: 3:06: CV 733-DRB 

) 

JOSEPH DONALD PRATHER and ) 

LINDA PRATHER, ) 

) 

Defendants. ) 

MOTION TO DISMISS

COMES NOW Defendants, Joseph Donald Prather and Linda Prather, by and 

through their counsel of record in the above style cause, and moves this court to 

dismiss the above-entitled action on the grounds that the Plaintiff has failed to Join 

Indispensable Parties Pursuant to Rule 19 of the Federal Rules of Civil Procedure 

and/or Plaintiff has improperly attempted to remove “this action” to this Court: 

1. Jason Swader, of 2173 County Road 187, Lanett, Alabama 36863, is a party 

whose joinder is indispensable and necessary to the just adjudication of this 

action, and that such person has not been made a party to this action; and that a 

rendition of judgment in this action without such person as a party would be 

wholly inadequate to the present parties. 

2. Tracy Swader, of 2173 County Road 187, Lanett, Alabama 36863, is a party 

whose joinder is indispensable and necessary to the just adjudication of this 

action, and that such person has not been made a party to this action; and that a 

rendition of judgment in this action without such person as a party would be 

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wholly inadequate to the present parties. 

3. Steven Bullard, of 3305 21st Avenue, Valley, Alabama 36854, is a party whose 

joinder is indispensable and necessary to the just adjudication of this action, and 

that such person has not been made a party to this action; and that a rendition of 

judgment in this action without such person as a party would be wholly 

inadequate to the present parties. 

4. There is an action pending that was previously filed regarding the basis of this 

Complaint for Declaratory Judgment. Jason and Tracy Swader sued Steven 

Bullard and Plaintiff Cincinnati Insurance Company (“CIC”) on or about April 18, 

2006 in the Circuit Court of Chambers County, Alabama, Civil Action No.: 2006-

82. (See Attached) 

5. CIC filed an answer to Jason and Tracy Swaders’ Complaint that sought 

Uninsured/Underinsured Motorist Benefits on or about May 22, 2006. (See 

Attached) 

6. CIC also filed a Subpoena for Production of Documents Under Rule 45 in the 

Circuit Court of Chambers County. 

7. In filing this declaratory actions, CIC is trying to circumvent the Alabama Rules of 

Civil Procedure by asking this Court to rule on a this matter. CIC should have 

filed a motion to have the original action removed to this Court. CIC did not seek 

to have the original action removed because venue is proper in the Circuit Court 

of Chambers County, and an attempt to have it removed would have been swiftly 

denied. 

8. CIC could have/should have filed a Motion for Summary Judgment in the Circuit 

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Court of Chambers County to resolve the issues raised in its Complaint for 

Declaratory Judgment. 

9. CIC is simply venue shopping. The Circuit Court of Chambers County has 

jurisdiction over this matter and is fully capable of rendering the correct judgment. 

 

WHEREFORE the Defendants, Joseph Donald Prather and Linda Prather, 

respectfully request that this Honorable Court dismiss this action without prejudice. 

DILLARD & ASSOCIATES, L.L.C 

Attorneys for Plaintiffs 

s/ Timothy L. Dillard 

Timothy L. Dillard (DIL003) 

The Berry Building, Suite 400 

 2015 Second Avenue North 

Birmingham, Alabama 35203 

(205) 251-2823 

TRIAL COUNSEL:

Timothy L. Dillard (DIL 003) 

Stewart S. Wilbanks (WIL 312) 

CERTIFICATE OF SERVICE

I hereby certify that on August 31, 2006, I electronically filed the forgoing with the Clerk of 

the Court using the CM/ECF system which will send notification of such filing to the following: 

Jennifer T. Dewees 

2001 Park Place North, Suite 911 

Birmingham, Alabama 35203 

Steven Bullard 

3305 21st Avenue 

Valley, AL 36854-3138 

 

s/ Timothy L. Dillard 

Of Counsel 

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