For anyone who has attempted to sue a Family Court Judge or Lawyer in South Carolina you quickly find out that these individuals have a get out of “jail free card” called Judicial Immunity from wrong doing.
This will be a short series of articles on this particular subject that has affected thousands of families and individuals.
In plain english these individuals can’t be touched even if you can prove that they knowingly did wrong.
For years many litigants in family courts throughout South Carolina have attempted to sue Family Court Judges and Family Court Attorney’s for their false actions and violations of law with little or no success. But recently a new aspect of this has begun to emerge.
Several Litigants in these cases have begun suing these Lawyers and Judges under allegations of “Fraud Upon the Court“.
What is fraud upon the court?
According to legalmatch.com it is: Fraud on the Court, or Fraud upon the Court, is where a material misrepresentation has been made to the court, or by the court itself. The main requirement is that the impartiality of the court has been so disrupted that it can’t perform its tasks without bias or prejudice.
Within the last few years several cases of fraud upon the court have arisen in the legal community negating this “get out of jail free” card for Family Court Judges and Attorney’s. The Judgements in these cases are either vacated completely or the cases are reheard from the begining.
In several successful cases Judges have been removed from the bench and then sued civilly and Attorneys have lost their licenses and also been sued.
For years several Family Court Judges and Attorneys have enjoyed this immunity from wrongful prosecution, for not following the law and rules of the Court. But the tides are changing and more and more people are beginning to demand this immunity be stripped from these Court Officials.
In the hierarchy of our Judicial System Family Court or Domestic Relations Court as is its actual name is considered the lowest courts possible. But these officials have the most protections and allowances to do what they want and violate State Statues and Constitutional Protections.
Here is an example of a cases that won based upon “Froud Upon the Courts”:
Smith v. Garcia
This case started with a defamation lawsuit based on comments contained in two blog posts. The lawsuit was purportedly brought by “Bradley Smith” (“Plaintiff”) against “Deborah Garcia” (“Defendant”). Shortly after that lawsuit was filed, the Court was presented with a Consent Motion for Injunction and Final Judgment, which the Court adopted and entered. The Consent Judgment included an admission by Defendant that the comments at issue constituted defamation and provided an Order that could be submitted to various internet search engines so that the defamatory statements would be removed.
Several months later, Myvesta submitted a Motion for Leave to Intervene. Myvesta operates the website on which the allegedly defamatory comments had been posted. According to Myvesta, the Consent Judgment was obtained through fraud on the Court. Myvesta’s attorney attempted to contact Defendant by mail at the address listed on the Consent Judgment submitted by the parties, but the letter was returned as undeliverable.
Myvesta’s attorney also contacted the attorney for the named Plaintiff in this case. Plaintiff’s attorney “confirmed … both that [Plaintiff] had not signed the papers submitted in this case and in his name and that [Plaintiff] had not authorized the filing of this action in his name.”)
When these matters were brought to the Court’s attention, the Court scheduled a hearing for November 16, 2016. Both Plaintiff and Defendant were absent from that hearing. Plaintiff’s attorney explained that Plaintiff would not be attending because “it is not his case” and because he “can’t spend the money and time to fly across the country on a case he did not file.” Defendant provided no explanation for her absence. After hearing the motion, the Court directed the file be sent to the United States Attorney for investigation.
II. Motion to Vacate
Myvesta has submitted a Motion to Vacate the Consent Judgment. Relief from a final judgment is appropriate where the order at issue was procured through fraud or misrepresentation.
In light of the evidence that the Consent Judgment was procured through fraud on the Court, including the misrepresentation that the named Plaintiff instigated the action, Myvesta’s Motion to Vacate is GRANTED.
III. Motion for Disclosure
Myvesta requests that the Clerk of Court provide a copy of the check submitted as payment for the filing fee in this case in order to assist Myvesta in determining what person or persons should be held responsible for this fraud on the Court. Myvesta’s Motion for Disclosure is GRANTED. The Clerk of Court is hereby directed to provide a copy of the check submitted as payment for the filing fee in this case.
IV. Motion to Dismiss
Myvesta has submitted a Motion to Dismiss, claiming the Court lacks subject matter jurisdiction and that Plaintiff failed to state a claim on which relief may be granted. “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Having reviewed the Complaint and the evidence submitted, the Court agrees with Myvesta that there is no subject matter jurisdiction and dismissal is therefore appropriate.
On the face of the Complaint, the only possible basis for subject matter jurisdiction is diversity jurisdiction. To establish diversity jurisdiction, “there must be complete diversity among the parties” … “Generally, once challenged, the party invoking subject matter jurisdiction … has the burden of proving by a preponderance of the evidence the facts supporting” diversity among the parties. In this case, the named Plaintiff has failed to provide any evidence supporting a finding of diversity jurisdiction and has refused to even appear before the Court. Moreover, according to the affidavit presented by Myvesta, the named Plaintiff is claiming to have never filed this action in the first place. Under these circumstances, and without any evidence to establish diversity jurisdiction, dismissal for lack of subject matter jurisdiction is appropriate. Myvesta’s Motion to Dismiss is GRANTED.
V. Motion for Award of Attorney’s Fees
In conjunction with Myvesta’s Motion to Dismiss, Myvesta has requested that the Court establish a briefing schedule on the issue of attorney’s fees and sanctions.The Court agrees that attorney’s fees may be appropriate in this case. Additionally, the Court has inherent authority to “award sanctions upon finding that a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” The Court directs the parties to submit argument on what, if any, attorney’s fees and sanctions are appropriate in this case in accordance with Rule 54 of the Federal Rules of Civil Procedure.Additionally, given the apparent confusion regarding the identity of the person who filed both the Complaint and the Consent Judgment, the parties are further directed to submit argument on who should be responsible for paying those attorney’s fees.
For the foregoing reasons, Defendant-Intervenor’s Motion to Vacate, Motion for Disclosure, and Motion to Dismiss are GRANTED.
The Clerk of Court will provide a copy of the check submitted as payment for the filing fee in this case to Defendant-Intervenor. Lastly, the parties are hereby ORDERED to submit initial filings on the issue of attorney’s fees and sanctions within thirty (30) days. No final judgment shall enter until all matters are disposed of.
In following articles we will give links to the cases for everyone to be able to look them up and read the cases for themselves.
Categories: Family Court