Judge Senter wants to talk – or listen or both – and has scheduled a Status Hearing in the Rigsby qui tam case.
NOTICE of HEARING: STATUS HEARING SET for 9/20/2010, 10:00 A.M., in Courtroom 506, Gulfport, MS, before District Judge L. T. Senter, Jr. All counsel to be present…(Docket entry: 9/03/10)
Be assured, there is no lack of topics. In addition to the yet unanswered Motion to Reconsider dismissal of defendant Forensic (FAEC) filed by the USA, there is also a Motion to Dismiss defendant Lecky King on the table, along with a supporting Memorandum:
Alexis King (“Ms. King”) respectfully submits this memorandum in support of her motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) for failure to timely serve her with summons and complaint as required by Federal Rule of Civil Procedure 4(m).
SLABBED readers are likely to find the Relators’ Notice of Non-Opposition the most surprising aspect of King’s motion. I know I did – at first. However, after giving the matter more thought, I believe the lack of service was a strategic decision of the Relators’ “new counsel”. Dismissing King personally as a defendant is certainly consistent with the Rigsbys’ Motion to Reconsider Scope of Proceedings in Light of Evidence Adduced in Discovery” – ask Court for additional time to conduct Discovery into “the Scheme”.
The history of attempts to serve King provides support for the Rigsbys’ non-opposition as a strategic decision. The docket of the Rigsbys’ qui tam case documents the Relators original counsel made repeated attempts at service of process and King’s own motion provides back-up:
Although Relators made flawed attempts to serve Ms. King first through the Mississippi Insurance Department  and then through an executive secretary at State Farm , Ms. King has never been personally served as required by Federal Rule of Civil Procedure 4(e).
It is also King’s motion that suggests the Rigsbys’ current counsel made a strategic decision – not an error – in not completing a complying service of process:
Despite ample opportunity to personally serve Ms. King, Relators have failed to do so for over two years…In fact, on May 5, 2009, pursuant to a Notice of Deposition of Alexis King  that was served on attorneys for State Farm (but not Ms. King individually), Ms. King was produced for deposition as an employee of State Farm. Relators made no attempt to serve a summons upon Ms. King during her deposition.
Not only did Relators have the opportunity “to serve to serve a summons upon Ms. King during her deposition”, research reveals case law suggesting she is “estopped to object proper service was not made”:
As a general rule, defects in process, service of process, and return of service may be waived… It is also generally held that a defendant may also, by his conduct, be estopped to object that proper service was not made. Such conduct may include participating in discovery, in addition to failing to raise the issue of insufficiency of service clearly or with the necessary specificity. Faulks v. Crowder, 99 S.W.3d 116, 125 (Tenn. Ct. App. 2003)
King playing games? Maybe so, maybe not – but State Farm has never stopped as this Scruggsed-up story from the National Underwriter shows:
As the five-year anniversary of the most destructive natural disaster in the U.S. approached, State Farm entered motions in the U.S. District Court in Southern Mississippi. The documents ask Judge L.T. Senter to dismiss the case based on a number of factors including that the Rigsby sisters violated the False Claims Act’s mandatory seal requirement …The Rigsby sisters, with Mr. Scruggs by their side, were regulars on national news programs following the storm… Mr. Scruggs is now serving a seven-year sentence in a federal facility in Kentucky…According to the court calendar, a settlement conference is scheduled for Oct. 6. Both sides are to bring possible settlement figures to the conference, to be viewed only by the court.
Anyone have suggestions of an appropriate amount for destroying the Coast economy and crippling recovery?