Judge denies SWAC's motion to dismiss Washington's lawsuit to go forward
LUT WILLIAMS
BCSP Editor
A judge in Birmingham Tuesday refused to dismiss fired
Southwestern Athletic Conference
Commissioner Rudy Washington's suit against
the conference and gave the conference 30 days to answer the complaint.
In denying the SWAC's June 14 motion to dismiss the suit, Judge
Jack Carl sent the case forward to the discovery phase where both sides are
expected to take depositions (sworn statements by parties in the case to be used when
the case comes to trial).
In his brief comments to the attorneys for both sides, Judge Carl
recommended mediation or settlement but also indicated to the SWAC's attorney,
Kenneth L. Thomas, that if the facts presented in his motion to dismiss held
up, he could come before him again with a motion for summary judgement.
Judge Carl rendered his decision not long after the parties entered
his Jefferson County Circuit Court at 8:30 a.m. Both sides put a positive spin on
the outcome.
"This is definitely not a
setback," said Kenneth L. Thomas, the Birmingham attorney who is representing
the SWAC when contacted Tuesday afternoon on his cell phone.
"I think the judge sent a powerful message that he would consider a
motion to dismiss on the merits. It's clear the plaintiff (Washington) has some
issues (problems in his case)." Thomas said he had been
"hopeful" that Judge Carl would grant their
motion to dismiss but understood the summary judgement would require more
substantiated evidence.
"We understand that the judge would be more comfortable granting the
dismissal after more documented evidence," Thomas said.
John Falkenberry of Birmingham, who is representing Washington
along with Birmingham attorneys, Brian Bostick and Payton Lacy, had
another view.
"We're happy the way the worm is turning," Falkenberry quipped late
Tuesday from his office while saying that he had expected the judge to deny the
motion. "The way things are turning out is more and more helpful to us.
"The judge ruled that it (the SWAC's motion) was inappropriate as a motion
to dismiss, it was premature. The standard for dismissal is pretty high. This was
a small victory but not a signal that we have the case won."
Falkenberry said, based on his view of the facts, he doubts the SWAC has
a case for summary judgement. He expects the case is headed for an
out-of-court settlement or to trial.
"In order to get a summary judgement, they'd have to prove that none
of the facts are in dispute," said
Falkenberry. "Frankly, that just won't happen."
Both sides say they are and will be taking depositions over the next
month. Thomas did not say if or when he might file a motion for summary judgement
on behalf of the conference.
Washington was not present for Tuesday's proceedings.
Washington filed suit against the SWAC on May 17 seeking to halt
his firing and to be reinstated as commissioner after he was informed in
writing by the conference's Council of Presidents on May 8 that he was being
terminated for a number of financial improprieties. His termination was effective
June 8. He had been placed on indefinite leave by the Council in late April.
He also asks in the suit that conference officials and representatives of
member institutions be ordered to stop implying that he has stolen money from
the conference or otherwise acted in some unethical way in the performance of
his duties. He is seeking damages and compensation because the whole matter
has cast doubts and aspersions on his character.
The longer the case goes on, the more expensive it is expected to get
for both parties. The conference, who says in documents from a recent audit that
it ended fiscal year 2000 with an operating deficit of $460,000, would appear to
be the most financially strapped.
Former Commissioner, Dr. James
Frank, has replaced Washington on an interim basis in the Birmingham
office and has indicated that he will leave the office in early August.
