Case 1:15-cv-00104-CG-N Document 35 Filed 03/25/15 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARI D. SEARCY,

)
)
Plaintiff,
)
)
vs.
)
)
HON. DON DAVIS, individually and )
in his official capacity as Probate
)
Judge for Mobile County, Alabama, )
)
Defendant.
)

Case No. 1:15-cv-104-CG-N

DEFENDANTS RESPONSE TO PLAINTIFFS MOTION TO DISMISS,

SUPPORTING DISMISSAL WITH PREJUDICE
COMES NOW defendant Don Davis, Judge of Probate of Mobile County,
Alabama (Judge Davis), and states as follows in response to the plaintiffs motion
to dismiss, respectfully moving the Court to dismiss all claims with prejudice.
Judge Davis previously moved to dismiss the plaintiffs claims with prejudice.
(Doc. 8). Subsequently, Judge Davis filed an amended motion to dismiss (Doc. 27)
informing the Court of the same facts now asserted by the plaintiff in her motion to
dismiss, i.e. (1) that Judge Davis issued an amended interlocutory order in the
plaintiffs adoption case removing the qualifying language that was a subject of the
plaintiffs Complaint before this Court, and (2) that Judge Davis has recused himself

Case 1:15-cv-00104-CG-N Document 35 Filed 03/25/15 Page 2 of 5

from the plaintiffs adoption proceedings. (See Doc. 27 and Doc. 34). As Judge Davis
pointed out in his prior motions, the plaintiffs claims for relief have been entirely
resolved by Judge Davis recusal from the plaintiffs adoption proceedings and the
amendment of the interlocutory order, as well as his judicial immunity, qualified
immunity and 11th Amendment immunity. In the status conference on March 16, 2015,
the Court asked the plaintiffs counsel why this case should not be dismissed and,
upon request, granted the plaintiff 15 days to show cause why dismissal was not
warranted. By filing her own motion to dismiss, the plaintiff has now acknowledged
that all her claims are, in fact, due to be dismissed. The plaintiff has not shown any
reason the dismissal should be without prejudice. Rather, concerns for finality of
litigation are now compelling and outweigh any considerations favoring dismissal
without prejudice.
In Martinez v. Carnival Corp., 744 F.3d 1240 (11th Cir. 2014), the Eleventh
Circuit Court held that after the district court compelled arbitration between the parties
and disposed of all pending motions leaving no other issues for the district court to
resolve, it effectively and functionally has issued a decision that ends the litigation
on the merits. Id. at 1244, and fn. 2. (Quotation marks and citation omitted.) The
plaintiff has acknowledged that Judge Davis amendment of the interlocutory order
in the plaintiffs adoption case and his recusal from that case resolves all the issues
2

Case 1:15-cv-00104-CG-N Document 35 Filed 03/25/15 Page 3 of 5

between the parties in this litigation. The dismissal now sought by both parties will
functionally end the case on its merits and should therefore be with prejudice.
Although the plaintiff initially opposed Judge Davis motion to dismiss, by
filing her own motion to dismiss she has now rendered Judge Davis motion
unopposed. Granting an unopposed motion is similar to granting a default judgment
against a defendant who fails to respond. See Fed. R. Civ. P. 55. And default
judgments are treated as conclusive and final adjudications that are given the same
effect as a judgment rendered on the merits. Hosseinzadeh v. Green Point Mortg.
Funding, Inc., 577 Fed. Appx. 925, 929 (11th Cir. Ga. 2014). The Courts order
granting the now unopposed motion to dismiss should therefore dismiss all claims
with prejudice.
WHEREFORE, Judge Don Davis respectfully shows to the Court that the
dismissal of this case, now requested by both parties, should be with prejudice in
accordance with the relief sought in Judge Davis motion to dismiss and amended
motion to dismiss. Judge Davis respectfully moves for dismissal of all claims with
prejudice.

Case 1:15-cv-00104-CG-N Document 35 Filed 03/25/15 Page 4 of 5

s/ Clay R. Carr
Clay R. Carr (ASB-5650-C42C)
Mark S. Boardman (ASB-8572-B65M)
Teresa B. Petelos (ASB-8716-L66T)
BOARDMAN, CARR, BENNETT, WATKINS,
HILL & GAMBLE, P.C.
400 Boardman Drive
Chelsea, Alabama 35043-8211
Telephone: (205) 678-8000
Facsimile: (205) 678-0000

/s/ Harry V. Satterwhite

Harry V. Satterwhite
J. Michael Druhan, Jr.
SATTERWHITE, DRUHAN, GAILLARD &
TYLER, L.L.C.
1325 Dauphin Street
Mobile, Alabama 36604
Telephone: (251)432-8120
Facsimile: (251)405-0147

Along With:

Lee L. Hale
HALE AND HUGHES
501 Church Street
Mobile, Alabama 36602
Attorneys for Honorable Don Davis,
Judge of Probate of Mobile County, Alabama

Case 1:15-cv-00104-CG-N Document 35 Filed 03/25/15 Page 5 of 5

CERTIFICATE OF SERVICE
I hereby certify that on March 25, 2015, I electronically filed the foregoing with
the Clerk of Court using the AlaFile electronic filing system which will send
notification of such filing to the following counsel of record. If any of the following
are not registered with the AlaFile electronic filing system, I certify that a copy will
be served by mailing a copy of the same by United States Mail properly addressed and
first class postage prepaid, to wit:
David G. Kennedy, Esq.
THE KENNEDY LAW FIRM
P.O. Box 556
Mobile, Alabama 36601

Christine Cassie Hernandez, Esq.

P.O. Box 66174
Mobile, Alabama 36660

s/ Clay R. Carr
OF COUNSEL