IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

J.B., a minor child, by and through *

his next friend, ADDIE WARD, on *

behalf of himself and all others *

similarly situated; *

*

Plaintiff, *

vs. * CASE NO:02:06cv755-MHT

*

*

WALTER WOOD, in his individual *

capacity, *

*

Defendant. *

J.B., a minor child, by and through *

his next friend, ADDIE WARD, on *

behalf of himself and all others *

similarly situated; *

*

Plaintiff, *

vs. * CASE NO:02:06cv908-MEF

*

*

WALTER WOOD, in his individual *

capacity, *

*

Defendant. *

PLAINTIFF’S MOTION TO STRIKE OR IN THE ALTERNATIVE

MOTION FOR LEAVE TO RESPOND TO DEFENDANT’S

SUMMARY JUDGMENT REPLY BRIEF

COMES NOW the plaintiff, by and through counsel, and files this his Motion to

Strike or in the alternative Motion for Leave to Respond to Defendant’s Summary

Judgment Reply Brief and in support thereof states as follows:

Case 2:06-cv-00755-MHT-CSC Document 56 Filed 08/06/2007 Page 1 of 4
1. Subsequent to the filing of plaintiff’s brief in opposition to summary judgment,

the defendant filed two pleadings. The first being defendant’s Motion to Suppress, which

presumably was intended to be a Motion to Strike, and the second being defendant’sreply

brief. The Motion to Suppress was filed on July 20, 2007 and the reply brief was filed

July 27, 2007.

2. The purported basis of the motion to suppress is the assertion that plaintiff’s

evidentiary submissions are factually immaterial. In support of his motion the defendant

asserts facts not presented nor supported in his motion for summary judgment. In

addition, the defendant attaches documents not offered in support of his motion for

summary judgment. For example, in the Motion and brief in support of summary

judgment the defendant never asserts or claims that a bed was not available for J.B. or

that the acceptance of J.B. within seven days of notice of commitment would cause DYS

to be in violation of a state statute or standard. See Defendant’s “Undisputed Facts” to the

summary judgment brief and the exhibits attached thereto. Yet, in the Motion to

Suppress, albeit without evidentiary support, the defendant eight (8) times asserts that no

bed was available for J.B. See pages 7,9,10,11,and 12, of the motion to suppress.

3. The Court has directed plaintiff to file his response to the Motion to Suppress

on or before August 9, 2007.

4. Like the Motion to Suppress, the defendant’s reply brief asserts purported facts

for the first time, namely, that no bed was available for J.B. See page 13. Defendant,

although not directly stating, for the first time intimates that placing J.B. within seven

days would have the resulted in the violation of a state statute or standard. See pages 23

and 44. Interestingly, the defendant does not identify the statute or standard which would

Case 2:06-cv-00755-MHT-CSC Document 56 Filed 08/06/2007 Page 2 of 4
have been violated by the placement of J.B. within seven days.

5. In addition to the foregoing, and the defendant’s supplemented and corrected

“Procedural Background and Facts,” the defendant has attached additional documents and

affidavits to his reply brief to which plaintiff has no opportunity to address and challenge

absent leave to respond.

6. The defendant’s new factual assertions in the Motion to Suppress are replicated

in the Reply Brief, as are the exhibits attached respectively thereto.

7. That the plaintiff believes the reply brief and evidentiary admissions attached

thereto are subject to being struck as they assert facts for the first time, however, in the

alternative, plaintiff requests the Court to grant leave to file a response to the reply brief

and to allow plaintiff to incorporate his response to the reply brief with his response to the

motion to suppress which is due August 9, 2007.

8. Should the Court grant plaintiff leave to respond to the reply brief,

incorporating the same with the motion to suppress response would eliminate duplicitous

and repetitive pleadings.

WHEREFORE THE PREMISES CONSIDERED, the plaintiff, absent the Court

striking the reply brief to the extent of new facts and exhibits, requests the Court to grant

leave for the filing of a response to the reply brief and to allow incorporation of the same

with the response to the motion to suppress due on August 9, 2007.

Submitted on this the 6th day of August, 2007.

s//Robert D. Drummond, Jr.

Attorney for the Plaintiff

ASB-4619-O78R

Case 2:06-cv-00755-MHT-CSC Document 56 Filed 08/06/2007 Page 3 of 4
323 De La Mare Ave.

Fairhope, AL 36532

251-990-6249

fax:251-650-1264

robertdrummond@bellsouth.net

s//Michael J. Crow

Michael J. Crow (CRO039)

Attorney for the Plaintiff

BEASLEY. ALLEN, CROW,

METHVIN, PORTIS &MILES

P.O. 4160

Montgomery, AL 36103-4160

334-269-2343

CERTIFICATE OF SERVICE

I hereby certify that on this 22nd day of March, 2007, the foregoing was

electronically filed with the Clerk of this Court thereby providing notice to counsel for the

defendant, T. Dudley Perry, Esq.

s//Robert D. Drummond, Jr.

Case 2:06-cv-00755-MHT-CSC Document 56 Filed 08/06/2007 Page 4 of 4