ELECTRONICALLY FILED 12/12/2013 3:41 PM 63-CV-2012-900538.

00 CIRCUIT COURT OF TUSCALOOSA COUNTY, ALABAMA MAGARIA HAMNER BOBO, CLERK

IN THE CIRCUIT COURT OF TUSCALOOSA COUNTY, ALABAMA SARAH GRIMES, PLAINTIFF, VS. § § § § § § § § § §

Case No.: CV-2012-900538

KRISTEN SABAN, DEFENDANT.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT COMES NOW the Defendant Kristen Saban, by and through her attorneys of record, and pursuant to Rule 56(c) of the Alabama Rules of Civil Procedure moves this Honorable Court for entry of summary judgment against Plaintiff Sarah Grimes. In support thereof Defendant states as follows: I. STATEMENT OF THE CASE

This case originated with the filing of the Complaint by the Plaintiff on June 26, 2012. The Complaint contains various allegations all of which are incorporated into a single count for assault and battery. The Complaint tends to allege, although never does so directly, two legal concepts on which Plaintiff relies: first, that the Defendant committed an assault and battery on the Plaintiff; second, the Defendant used excessive force in defending herself. Under Alabama law an assault and battery occurs when there is “Any touching by one person of the person or clothes of another in rudeness, or in anger, or in a hostile manner...”.1 As part of her Answer to this Complaint, Defendant pled, inter alia, self-defense. For self-defense to be proven, the finder-of-fact would have to reasonably conclude that “…the defendant did not provoke or bring on the difficulty, that the defendant did not fight willingly but fought only to
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Alabama Pattern Jury Instructions 5.00. 1

repel or prevent an attack being made upon him and that the defendant did not use any more force than was necessary to repel such an attack…,” and “[t]he use of more force than was necessary to defend oneself is an assault and battery even if the other party provoked the difficulty.”2 Defendant files this motion for summary judgment because the Plaintiff has not shown, and cannot show by substantial evidence, that the Defendant committed an assault or battery on the Plaintiff or that in defending herself, the Defendant used excessive force. II. SUMMARY JUDGMENT STANDARD

The standard of review on a motion for summary judgment is well settled under Alabama law. Pursuant to Alabama Rule of Civil Procedure 56(c)(3), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Once the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant's prima facie showing by ‘substantial evidence.’” Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala. 1992). “(S)ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989) (Emphasis added). Here, Defendant easily presents a prima facie showing that not only did Defendant not assault or batter Plaintiff, it was the other way around, Plaintiff committed an assault and battery on Defendant. Moreover, to Plaintiff’s physical attack, Defendant used only a reasonable amount of force in defense of herself. As the evidence proffered herein clearly shows, Defendant used only the necessary amount of force required to repel Plaintiff’s assault and battery on her.
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Alabama Pattern Jury Instruction 5.02 2

The quality and quantity of evidence from all non-party witnesses renders it impossible for Plaintiff to present substantial evidence of an assault and battery by Defendant, or that Defendant did anything other than act reasonably when defending herself from Plaintiff’s verbal and physical attacks on her. III. 1. STATEMENT OF UNDISPUTED FACTS

On August 29, 2010, at about 2 a.m., Plaintiff Sarah Grimes, Defendant Kristen Saban

and their friends McKinnon Moultrie, Hannah Muncher, and Megan Williams were in the kitchen of the Defendant's house. (Exhibit A: Grimes, Dep. 77:16-78:7). Plaintiff Grimes had been drinking vodka that night and mixing it with prescription medication that did not mix well with alcohol; it made her act strange. “Q. You're still drinking the vodka out of your purse? A. With a Sprite from Rounders, which they're on the house. So it wouldn't -there wouldn't have been a tab for that.” (Grimes, Dep. 86:9-14). “To the best of my memory, prescription medications taken within 24 hours of assault were taken the morning of August 28, and include Amphetamine Salts, Buspirone, and Metoclopramide.” 3(Exhibit B: Plaintiff’s Response to Defendant’s Interrogatory #4 dated 9/28/2012). “[Sarah] took migraine meds even before this incident. Alcohol doesn't mix well with her meds and she knew that and she would sometimes get strange when drinking.” (Exhibit C: Affidavit of Courtney Reigel, p.3). 2. While the Plaintiff and Defendant were in the kitchen of Defendant’s house, Plaintiff

acted in a rude manner and yelled insults at the Defendant. “And finally I just said something to the effect of, shut up, we're tired of hearing about it.” (Exhibit A: Grimes, Dep. 106:3-5).(Emphasis added). “No one else was saying anything about Kristen talking about a boy or shutting up or anything, Sarah just snapped and started yelling at Kristen.”(Exhibit D: Affidavit of McKinnon Moultrie,p.1). (Emphasis added).
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These were potent prescription drugs, the names and nature of which will be provided to the Court at the summary judgment hearing. 3

3.

In response, Defendant got up and went to her bedroom. “Kristen got her feelings hurt at Sarah and started walking back to her room.” (Exhibit E: Affidavit of Hannah Muncher, p.1). “And she went in her room.” (Exhibit A: Grimes, Dep. 106:10).

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As Defendant was retreating to her bedroom, Plaintiff called her “crazy” and told her she

was a “psycho”. “I may have told her in the kitchen you're crazy.” (Exhibit A: Grimes, Dep. 133:1-2). (Emphasis added).
“Sarah called Kristen a ‘psycho’ as she was walking to her room.”

(Exhibit E: Affidavit of Hannah Muncher, p.1). (Emphasis added). “Sarah called Kristen ‘psycho’ and ‘crazy’.” (Exhibit D: Affidavit of McKinnon Moultrie,p.1). (Emphasis added). 5. As Defendant entered her bedroom, she shut and locked the door to get away from

Plaintiff. “So, [Kristen] went into her room and locked the door.” (Exhibit C: Affidavit of Courtney Reigel, p.1). “Q. But you do agree she was inside a locked door? A. She was…” (Exhibit A: Grimes, Dep. 411:2-4). 6. McKinnon Moultrie, Courtney Reigel and Plaintiff Grimes went to Courtney Reigel's

room, which was right across from the Defendant’s room. Thirty minutes later, Hannah Muncher went to Defendant's room to check on her. After Hannah entered Defendant's room she also locked the door after herself. (Grimes, Dep. 125:1-4, 129:12-14). 7. While in her room, at some point Defendant put a post on her Facebook page which

stated: “No one likes Sarah, yay”. (Grimes, Dep. 129:15). When Plaintiff saw the post on her cell phone, despite being told not to go by her friend, she immediately advanced to the Defendant's locked bedroom door, but not before telling her friend, “if she touches me I will kill her.” (Grimes, Dep. 145:12-13, 373:1-375:3).
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8.

Approaching Defendant’s bedroom, where Plaintiff knew Defendant had retreated thirty

minutes earlier to get away from Plaintiff’s insults and yelling, Plaintiff started a second altercation with Defendant. “Q. She [Defendant] retreated? A. Yes. Q. She got away from the situation? A. Yes. Q. Okay. Y'all are not arguing during that thirty minutes? A. Correct. Q. You see the Facebook post, you get up and you go towards her room. Don't you know that an argument is fixing to start? A. A verbal argument, probably, yes.” (Grimes, Dep. 156:6-17). 9. In addition to admitting she was the aggressor of the second altercation, Plaintiff also

admitted that there would have been no fight but for her initiating the second argument. “Q. Yeah. Well, would it be a fair statement at that point to say that you were the aggressor? A. For the verbal altercation, yes, I went to Kristen's door.” (Grimes, Dep. 156:20-22-157:3-4). (Emphasis added). “Q. If you had walked away when she was inside with the door locked, [the fight] wouldn't have happened? A. Yes, I've taken responsibility for verbal.” (Grimes, Dep. 409:9-13). (Emphasis added). 10. Plaintiff started loudly banging on Defendant's locked bedroom door screaming and

cursing at Defendant. “Q. You got up, though; right? A. Yes. Q. And went to the door. She said you started yelling and screaming. Did you do that? A. My voice was raised when I was banging on Kristen's door, yes. Q. Well, would that be a yell? A. I suppose you could call it a yell, yes. Q. A scream? A. Possibly.” (Grimes, Dep. 401:13-23-402:1-2). (Emphasis added).

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11.

Banging on the Defendant’s locked bedroom door and attempting to open it, Plaintiff

Grimes screamed "Take it off", "Open the fucking door you crazy bitch", "I'm going to kill you, you crazy bitch." (Exhibit E: Affidavit of Hannah Muncher, p.1). (Emphasis added). “She tried to open it but the door was locked. She was screaming at the top of her lungs, ‘open the fucking door before I kill you.’ She was mad and shaking.” (Exhibit C: Affidavit of Courtney Reigel, p.2). (Emphasis added). “I remember sitting on the end of Courtney's bed and the next thing I know Sarah is screaming and yelling to Kristen for her to ‘open this door right now or I swear to God I'm going to kill you!’ Sarah was very angry and out of control.” (Exhibit D: Affidavit of McKinnon Moultrie, p.1). (Emphasis added). 12. Defendant took the post off and opened the door to show Plaintiff that the post was off. “Q. When Kristen opened the door, who spoke first, you or her? A. She took her phone. She had it in her hand. And I believe she had taken the status off of Facebook. I didn't look at the phone to even see. She said, I took it off, I took it off” -- (Grimes, Dep. 151:9-16). (Emphasis added). 13. As Defendant opened the door showing Plaintiff her phone, Plaintiff continued to yell at

Defendant, calling her crazy. “A. She said, I took it off, I took it off -Q. Uh-huh. A. -- in reference to the Facebook status. Q. Uh-huh. A. And I said something to the effect of, I don't care, okay, but we're done, and I called her crazy.” (Grimes, Dep. 151:15-23). (Emphasis added). 14. At that point, as Plaintiff testified, it did not matter to Sarah Grimes whether the post was

taken off, anger had built up inside her for other reasons. “Q. She took the post off, as far as you know. She said she did. She's trying to show it to you. Why wouldn't that be mission accomplished and you turn around and walk off? A. I think at that point there had been so much of a buildup that that was the surmise (sic) of our friendship at that point -6

Q. Okay. A. -- regardless of whether it had been taken off.” (Grimes, Dep. 153: 13-23154:1). (Emphasis added). 15. Defendant was not screaming back at Plaintiff, but was upset, scared and crying because

of the Plaintiff’s yelling, cursing and banging on Defendant’s bedroom door. “At that point, Kristen opened the door and looked scared because of Sarah's yelling and pounding on her door. Kristen was not yelling and did not raise her voice.” (Exhibit C: Affidavit of Courtney Reigel, p. 2). (Emphasis added). “Kristen was not yelling back, but she was crying and upset.” (Exhibit E: Affidavit of Hannah Muncher, p.1). (Emphasis added). 16. Again, Plaintiff Grimes admitted that she was the aggressor. “One thing for certain, Sarah did not walk away at any point, and had she not been cussing and yelling and pounding on Kristen's door, none of this would have happened.” (Exhibit C: Affidavit of Courtney Reigel, p.2). “Q. Okay. But -- so you were willing to engage in a verbal altercation -A. Yes. Q. -- right? Okay. To that extent, you were the aggressor; right? A. Verbally. Q. Okay. Are you agreeing with me? A. Yes. Q. Okay. So you bang on the door, she comes, she shows you the phone, and she says, it's off; correct? A. (Witness nodding head affirmatively.)” (Grimes, Dep. 158:4-18). (Emphasis added). 17. At that point, as a result of the Plaintiff’s continuing threats and insults aimed at

Defendant and because Plaintiff advanced to within inches of Defendant’s face, a scared but justified Defendant, in an effort to remove Plaintiff from getting so close to Defendant’s face, pushed Plaintiff away. “Q. So, now, what changed – you say, you're crazy. How far apart were y'all at that point? A. We were fairly close. I'm not sure an approximate distance.” (Exhibit A: Grimes, Dep. 158:19-23). (Emphasis added).

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“Sarah is continuing to yell at Kristen at this point and got within inches of her face.” (Exhibit C: Affidavit of Courtney Reigel, p. 2). (Emphasis added). “Once Sarah got close to Kristen, Kristen pushed Sarah out of the way to get her out of her face.” (Exhibit C: Affidavit of Courtney Reigel, p. 2). (Emphasis added). 18. The push did not cause Plaintiff to fall or hit anything. “Q. Okay. You didn't fall down, did you? A. No.” (Grimes, Dep. 162:8-10).
“[Kristen] didn't push her hard enough to hurt her and Sarah did not hit the wall or the doorframe because of Kristen's push.” (Exhibit C: Affidavit of Courtney Reigel, p.2).

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Instead of the argument being over because the Facebook post had been removed and

Plaintiff was no longer in the Defendant’s face, Plaintiff advanced to Defendant again, this time she grabbed Defendant's throat and shoved her. With Plaintiff’s hand(s) around her throat, Defendant hit at Plaintiff, striking her face. From that point on, it was mostly pushing, pulling, scratching and pulling of hair by both Plaintiff and Defendant. “A. And I grabbed her like this (indicating) and I shoved her back. Q. And grabbed her where? A. One hand on her throat, one hand on her chest…” (Grimes, Dep. 160:1620). (Emphasis added). “Sarah then put her hand on Kristen's throat and at that point was when Kristen hit her. I only saw one punch. Kristen told me later that Sarah was coming for her throat and that's when she hit her. That matches with what I saw.” (Exhibit C: Affidavit of Courtney Reigel, p. 2). “Kristen defended herself and landed a punch on Sarah's nose or eye” (Exhibit E: Affidavit of Hannah Muncher, p.1). “Both of them were throwing punches but it was more of a cat fight than anything else. Not many punches were landed, they were mainly just scratching and pulling hair.” (Exhibit E: Affidavit of Hannah Muncher, pp.1-2). “I only saw a punch or two and both girls were swinging. It was mostly pushing and pulling and some scratching and hair pulling. It was more or
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less a cat fight and a pretty even one from what I saw.” (Exhibit D: Affidavit of McKinnon Moultrie, p.1). 20. cry. After the girls were separated, Defendant went to her room, fell to the floor and started to Again, Plaintiff followed Defendant into her bedroom. This time she got on top of

Defendant.
“We finally got them apart and Kristen went to her room and she kind of collapsed on the floor and was bawling crying.” (Exhibit F: Affidavit of Beth Terry, p.2).

“I then walked into Kristen's room and Sarah was sitting on top of Kristen.” (Exhibit G: Affidavit of Megan Williams, p.1). 21. With Plaintiff sitting on top of the Defendant, Defendant stated that Plaintiff threatened to

kill her and grabbed her throat and only then did she strike at Plaintiff. “I then walked into Kristen's room and Sarah was sitting on top of Kristen and both of them were crying. Kristen was saying ‘you threatened to kill me, you came at me.’” (Exhibit G: Affidavit of Megan Williams, p.1). (Emphasis added). A. “I just wanted her (Kristen) to look at my face. And I said, I would never do this to you. Q. Yeah. And what did she say? A. She (Kristen) immediately said, you grabbed my throat.” (Grimes, Dep. 184:510). 22. Even though Plaintiff was “drunk” and her injuries were minor, Plaintiff insisted on

going to the emergency room to “document her injuries” for her car accident case pending in Florida. “Sarah kept saying that she needed to go to hospital ‘to document this’ for her car wreck case.” (Exhibit E: Affidavit of Hannah Muncher, p.2).
“Sarah was just drunk.” (Exhibit E: Affidavit of Hannah Muncher, p.1).

“I did not think Sarah needed to go to the hospital at the time. Sarah was insisting on going to the hospital, so I went took her since she was in no shape to drive.” (Exhibit C: Affidavit of Courtney Reigel, p.2).

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23.

Shortly thereafter, Plaintiff and her mother attempted to extract money from Kristen’s

family, not Kristen. Sarah Grimes asked her mother, Tina Grimes, to talk to Defendant’s mother, Terry Saban, for two reasons: “to make things right financially" and "so it wouldn't happen again," not for compensation of any “injuries.” “A. I asked my mother to go sit down and talk with her [Defendant’s mother]. Q. For what purpose? A. I assume that they would be able to somehow make the situation right. Q. To make a settlement? A. I'm not even sure if that's why. I just thought that it would have been taken care of. Q. Taken care of monetarily for your bills? A. For my hospital bills -Q. Yeah. A. -- possibly. And -- making sure it didn't happen again. Q. Okay. So two reasons. One to make things right financially, and, two, so it wouldn't happen again; right? A. Yeah.” (Grimes, Dep. 222:9-23-223:1-8). (Emphasis added.). 24. When Plaintiff was unable to obtain a settlement from the Defendant's parents, she filed

this lawsuit on June 26, 2012. “A. I just -- I thought it would be able to be resolved just through them talking, and it wasn't. Q. Uh-huh. A. And I'm not sure why that was. I'm not saying I know why it was, but it wasn't. Q. But when you say it resolved, but it had two parts, as you said? A. (Witness nodding head affirmatively.)” (Grimes, Dep. 224:20-23225:1-7). A. “Why did I wait so long to file a Complaint? Because, obviously, I was hoping this would have been resolved without needing to file a lawsuit. Q. And by "resolved," that's the two things we've covered, money and – A. Right..”(Grimes, Dep. 366:11-17).

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IV.

ARGUMENT AND MEMORANDUM OF LAW

In the case sub judice, the undisputed facts4 firmly establish that on August 29, 2010, Plaintiff Sarah Grimes, a guest at Defendant’s house, while under the influence of alcohol and prescription drugs which rendered her too drunk to drive a car, initiated an altercation with Defendant in the Defendant’s house. Thirty minutes later, Plaintiff assaulted Defendant in the doorway of the Defendant’s bedroom, positioning herself within inches of Defendant’s face, forcing Defendant to defend herself from Plaintiff’s aggressive acts of threatening, then choking Defendant. The undisputed facts also establish that Plaintiff filed this suit only because she sought, but was unable to obtain, a monetary settlement from the Defendant’s parents. As discussed infra, the undisputed evidence shows that there are no genuine issues of material fact and Defendant Kristen Saban is due to be granted summary judgment on Plaintiff’s claim for assault and battery. A. PLAINTIFF GRIMES WAS THE INITIAL AGGRESSOR WHO INITIATED ALTERCATIONS WITH DEFENDANT AND FORCED DEFENDANT TO DEFEND HERSELF FROM PLAINTIFF’S MULTIPLE ATTACKS. On August 29, 2010 Plaintiff Sarah Grimes, while under the influence of alcohol and prescription drugs, initiated several altercations with Defendant in the Defendant’s house. When they were sitting in the kitchen, Plaintiff initiated the first altercation by yelling to Defendant “Shut up, we are tired of hearing about it”. Plaintiff’s yelling hurt Defendant’s feelings. She got up and retreated to her bedroom. As Defendant was retreating to her room, Plaintiff, called her a “psycho”; Plaintiff admitted calling Defendant “crazy.” Defendant then entered her bedroom and
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All facts in this motion are either admissions of the plaintiff or testimony of eyewitnesses, or both; no fact is from Defendant’s testimony. The only “fact” the Plaintiff refused to admit was that the fight was a draw (as every witness testified) with neither sustaining injuries that warranted a trip to DCH Regional Medical Center. Significantly, Plaintiff admits saying she needed to get the event “documented” because of her already pending personal injury suit in Florida. Her inflated description of “beating” in her Complaint is belied by every eyewitness’ affidavit, all of which are attached hereto. Even if Plaintiff attempted to suggest she was not the aggressor or that Kristen Saban was somehow excessive in her defense, her biased testimony does not rise to the level of evidence needed to defeat summary judgment. See Walsh v. Douglas, supra. 11

locked the door to get away from Plaintiff. While in her room Defendant posted “No one likes Sarah, yay” on her Facebook page. Plaintiff saw the post and immediately went to Defendant’s bedroom door. This time, Plaintiff admitted to being the aggressor when she went to Defendant’s door, started loudly banging on the door, attempted to open it and demanded entry, yelling obscenities and threats on Defendant’s life.5 The actions by Plaintiff, without a doubt, scared and upset Defendant. When Defendant finally opened the door to show Plaintiff that the Facebook post had been removed, Plaintiff continued yelling, and cursing Defendant, and in a provoking manner, got within inches of the Defendant’s face while Defendant was standing in her bedroom doorway. Having the drunk, angry, yelling and threatening Plaintiff in her face and with nowhere to retreat, the Defendant was justified in using a sufficient amount of force to repel her aggressor—she pushed Plaintiff away from her face in a defensive move. See Ala. Code §13A-323 (“[a] person is justified in using physical force upon another person in order to defend herself….from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person….”). Indeed, under similar circumstances, the court in Harris v. Lombardi granted summary judgment to a defendant who pushed plaintiff away in a defensive move when he got in the defendant’s face shouting threats. Harris v. Lombardi, 897 So.2d 1136, 1138 (Ala.Civ.App.,2004). Plaintiff admitted that the second altercation, the one on which she sued, would have been over if Plaintiff had simply walked away after her demand to have the Facebook post removed was accomplished. However, the Plaintiff did not walk away; her aggression towards Defendant continued and escalated. She lunged at the Defendant and began choking her in the doorway of the Defendant’s bedroom. Certainly, Defendant was legally entitled to repel this
Plaintiff attempts to dilute this fact by describing herself as only the “verbal aggressor,” but the aggressor, nonetheless. (Undisputed Facts, §16). Alabama law recognizes no such distinction.
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attack also, and had no other choice but to defend herself from Plaintiff. Defendant only hit at Plaintiff as a direct result of Plaintiff’s choking Defendant.6 Both parties then started pushing, scratching, swinging fists and punching at each other. Obviously, had Plaintiff not been choking the Defendant, the remainder of this altercation would not have occurred. These undisputed facts show that Plaintiff Sarah Grimes was the initial aggressor who provoked Defendant to act in self-defense. “[Self-defense] is complete in the [civil] class of cases, if it appears that the defendant did not provoke the difficulty, and did not fight willingly, but only to repel or prevent an attack upon him, and that in doing this, he used only such force as was reasonably necessary to that end.” Greenwood Cafe v. Walsh, 15 Ala.App., 519, 74 So. 82 (Ala.App. 1917). The facts described above establish that Defendant did not provoke the difficulty and did not fight willingly. In fact, the evidence shows that it was Plaintiff who started all the altercations. First, Plaintiff yelled insults to Defendant in the kitchen of Defendant’s house which made Defendant retreat to her bedroom. Second, Plaintiff advanced to Defendant’s door, cursing and threatening to kill Defendant. Next, Plaintiff virtually invited Defendant to act in selfdefense when she aggressively moved to within inches of Defendant’s face in the doorframe of Defendant’s own bedroom. Fourth, when Defendant justifiably moved her back from her face with a “push” not hard enough to injure Plaintiff or to disturb Plaintiff’s balance, Plaintiff tried to follow through with her drunken promise of “if she touches me I will kill her.” Having been touched by Defendant, Sarah Grimes immediately retaliated with excessive force by choking the Defendant. From that point on, the facts show Defendant’s additional defensive actions were

All witnesses stated this was the only hit that landed. Plaintiff’s description of the altercation from this point on differs from all witnesses. However, that is of no consequence since the physical encounter in which they both participated had begun and because Plaintiff’s unsupported version does not have enough substance to be of the necessary weight and quality of evidence necessary to defeat summary judgment. 13

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reasonably necessary to repel the attack by Plaintiff.

The facts of this case clearly and

convincingly establish that Plaintiff Sarah Grimes was the initial aggressor who provoked the Defendant into acting in self-defense. Her act of self-defense was to apply only a reasonable amount of force necessary to repel Plaintiff’s multiple attacks. Because Defendant’s actions were in self-defense, they are a complete bar to this civil action for assault and battery; Plaintiff Sarah Grimes cannot recover in this suit7. B. THE FACTS OF THIS CASE SHOW THAT IT WAS PLAINTIFF WHO ASSAULTED AND BATTERED DEFENDANT.

Plaintiff claims she was assaulted and battered by Defendant. However, the facts show it was Plaintiff who committed the assault and battery, not Defendant. In a case very similar to the case at bar, the following rules were applied concerning what constitutes an assault and battery: “An assault consists of ‘. . . an intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented. On the other hand, a show of force accompanied by an unlawful or unjustifiable demand, compliance with which will avert the threatened battery, is an assault.’ ” Holcombe v. Whitaker, 294 Ala. 430, 318 So.2d 289 (Ala. 1975) (citing 1 Harper & James, The Law of Torts, at 223 (1956)). “[T]he defendant is not free to compel the plaintiff to buy his safety by compliance with a condition which there is no legal right to impose.” Id. at 294. “The evidence from the plaintiff was that the defendant was pounding on her door making every effort to get into the apartment, and threatening to kill her if she persisted in ‘taking him to

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See Ala.Code 1975 § 13A-3-23: “A person who uses force, including deadly physical force, as justified and permitted in this section [in self-defense] is immune from criminal prosecution and civil action for the use of such force…” 14

court.’ We cannot say, as a matter of law, that this was not sufficient to arouse an apprehension of harm or offensive conduct.” Id. Here, Plaintiff assaulted Defendant when Plaintiff intentionally went to Defendant’s bedroom door and started loudly banging on it, attempting to open it and threatening to kill Defendant if she did not open the door. As stated in Holcombe, such an unlawful and unjustified demand by Plaintiff, compliance with which would avert the threatened harm to Defendant, constitutes an assault. Therefore, in the case sub judice, Plaintiff’s banging on Defendant’s door, an attempt to enter Defendant’s bedroom and the yelling of threats to kill Defendant if she did not open the door, constitutes an assault of Defendant by Plaintiff Sarah Grimes. The second act of assault of Defendant by Plaintiff Sarah Grimes occurred when Defendant opened the door to show Plaintiff the Facebook post had been removed. However, instead of looking to verify the post was gone, Plaintiff began yelling and cursing at Defendant, and then aggressively advanced to within inches of Defendant’s face while Defendant was standing in the doorframe of her own bedroom. This intentional and unlawful act by an obviously intoxicated, angry and rude Plaintiff constituted the most important and obvious act of assault of Defendant by Plaintiff Sarah Grimes. This act of unprovoked aggression by Plaintiff was met, appropriately enough, with a push-away act of self-defense. When Defendant, acting in self-defense, moved Plaintiff away from her face with a “push” not hard enough to injure Plaintiff or to disturb Plaintiff’s balance, Plaintiff retaliated with excessive force by choking the Defendant. This act, without a doubt, constituted an assault and battery of Defendant by Plaintiff Sarah Grimes. The Plaintiff’s aggressive actions towards Defendant preclude any recovery Plaintiff seeks. See Bynum v. Jones, 177 Ala. 431, 59 So. 65

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(Ala. 1912) (in an action for assault, where it appears that the plaintiff first attacked the defendant who fought in self-defense, plaintiff cannot recover). Incredibly, that was not the last unlawful touching of Defendant by Plaintiff. After they were pulled apart, Plaintiff followed Defendant to her bedroom. Seeing the Defendant lying on the floor crying, Plaintiff went over to Defendant and sat on top of her. This unwanted touching of Defendant by the intoxicated Plaintiff restricted Defendant’s movement and constituted another act of battery of Defendant by Plaintiff. As such, Plaintiff cannot continue the prosecution of this action under Alabama law. C. THE GREAT WEIGHT OF THE EVIDENCE SHOWS THAT THE DEFENDANT USED ONLY REASONABLE FORCE TO REPEL THE PLAINTIFF.

Concerning the degree of force, Defendant Kristen Saban used (in defense of herself), the following salient facts exonerate Defendant. First, taking only Plaintiff’s version of events:  Plaintiff was sitting on the bed with Courtney Reigel when she noticed on her cell phone that Defendant had posted on her Facebook page that “Nobody likes Sarah, yay.”  Plaintiff immediately got up and headed towards Defendant’s locked bedroom door informing Courtney that if Defendant touched her, she would kill her.  Plaintiff proceeded across the hall and began banging on Defendant’s door using profanity and threats.  When Defendant opened the door to show her that the post had been taken down, the Plaintiff called the Defendant “crazy” and got “in close proximity” to Defendant. While eye-witnesses say Plaintiff got within inches of Defendant’s

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face, Plaintiff reluctantly conceded: “We were fairly close. I’m not sure of an approximate distance”; “we were closer than that (an arm’s length).”  Defendant pushed her away then Plaintiff grabbed Defendant’s throat. According to the Plaintiff, during the shove she hit the door frame of Kristen’s room striking her head on the door. However much that fact was stretched, Plaintiff was willing to admit she did not fall down and at no time lost consciousness.  After that, a physical altercation began with the next thing happening from the Plaintiff, “….I shoved her back,” (Grimes Dep. 160:17), actually, she began choking Defendant. Then, Plaintiff says Defendant “starts punching me…” (Grimes, Dep. 163:5-6). According to the Plaintiff, the Defendant hit her in her face, (Grimes, Dep. 164:5).  Plaintiff could not remember how many blows there were after that. However, she was able to remember she did not swing back and lifted her arms only to defend herself, (Grimes, Dep. 164:10-12).  Plaintiff says the Defendant pulled her hair, (Grimes, Dep. 164:13), and she confirms that neither one of them was on the ground during the fight, (Grimes, Dep. 165:18-20). She does not remember if Defendant actually hit her arm or not, (Grimes, Dep. 168:12-15). She claims that she got hit more than five times, but does not remember a specific number, although she did say the most it could have been was seven or eight, yet she could not state where any of them landed. (Grimes, Dep. 169:1-4, 7). The Plaintiff admits that she was scratching the Defendant during the altercation, (Grimes, Dep. 407:20-21).

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Plaintiff claims she sustained head injuries, had repeated night terrors, anxiety, physical trembling, fears of dying from brain injuries, trouble sleeping, and intrusive recollections of the event. She also says she had an increase in her migraine headaches since this incident. Because the following evidence from all eye-witnesses shows these claims to be false in their entirety, Defendant pretermits her argument that these injuries were pre-existing from Plaintiff’s earlier car wreck. Moreover, because Plaintiff brought any injuries she sustained on herself during her assault and battery of Defendant, she cannot receive any compensation for her “injuries.” Next, contrary to the Plaintiff’s biased testimony, each and every witness who actually saw the “assault”, all of whom acknowledged being friends with both parties, testified completely opposite from all of the Plaintiff’s material allegations. Courtney Reigel, who was seated on the bed in her room located across the hall from the Defendant’s room and could clearly see the events as they unfolded, stated in her affidavit that the Plaintiff got within inches of the Defendant’s face and when the Defendant pushed her “out of the way to get her out of her face,” she did not push her hard enough to hurt her and Sarah did not hit the wall or the door frame because of Kristen’s push. Sarah then put her hand on Kristen’s throat and at that point is when Kristen hit her.” She only saw one punch. From that point on, the altercation amounted to scratching at each other and pulling hair. Concerning the Plaintiff’s injuries, Courtney stated “I did not think Sarah needed to go to the hospital at the time and I still do not think she needed to go to the hospital.” “Her face was a little bit swollen and her nose was a very small amount of blood on it. Both Sarah and Kristen had scratch marks and blood on them.” She was with Sarah the whole time at the hospital and was there when the doctors were talking to the Plaintiff. She stated in her affidavit: “They checked her out and told her she was fine. They never mentioned she had a concussion…” “The doctors told her that she looked ok and gave her some pain

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medicine. There was no mention of nerve damage, needing follow up care, or anything like that.” She also stated that the Plaintiff took lots of medicines for anxiety and for pain prior to this night and the altercation with the Defendant. She added that the Plaintiff “took medicines to wake up and to go to sleep. She took migraine meds even before this incident.” “The next day after this event, Sarah was fine except there was a small bruise on her cheek. Sarah never slowed down with going to parties, football games, swaps. She and I went together to the Penn State game on September 11, 2010 and she showed no effects whatsoever of this event.” “I have noticed no difference in Sarah’s health or well-being since this incident. Her personality seems the same, there is no difference in appearance once that bruise went away in a couple of days, and she only complained about arm for about 1 week after the event.” Hannah Muncher was in the room with Kristen when Sarah Grimes was pounding on Kristen’s door and yelling obscenities. She had a bird’s eye view of the entire incident. She stated in her affidavit: “When Kristen opened the door, Sarah immediately came at her throat and was punching at Kristen. Kristen defended herself and landed a punch on Sarah’s nose or eye. Both of them were throwing punches, but it was more of a cat fight than anything else. Not many punches were landed, they were mainly just scratching and pulling hair. At some point, Kristen fell back and hit her head on either the bed or the dresser. Sarah was on top of her at that point” (Emphasis added). “At the end of it all, Kristen’s nose was bleeding and she had scratches on her back and Sarah had a puffy eye. From what I saw, it was pretty much an even fight. Neither got the better of the other.” “Her eye was swollen and was a little red and I could see where she would be a little concerned, but I just didn’t think it was bad enough to go to the hospital. Sarah kept saying that she needed to go to hospital ‘to document this,’ for her car wreck case and that she needed to get it checked out because ‘what if this hurts my head even worse?’”

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McKinnon Moultrie was also a witness to this altercation. She stated that the fight “…didn’t last more than a few seconds. I only saw a punch or two and both girls were swinging. It was mostly pushing and pulling and some scratching and hair pulling. It was more or less a cat fight and a pretty even one from what I saw.” After the fight ended “Sarah goes back over to Kristen and is screaming and yelling in her face that she needed to go to the Emergency Room. I laughed when I heard that because neither of them needed to go to the ER and I told Sarah that she didn’t need to go to the ER. They both had some minor scratches and bruises on them, but there certainly were no pools of blood in the floor or blood running down Sarah’s chest…” “Sarah’s temple was a tad puffy, but that’s it. I remember seeing just a drop or two of blood on the floor. McKinnon stated that she did not stay long at the ER because she didn’t think she (Sarah Grimes) needed to go in the first place. While she was there, however, “…I didn’t hear the doctors or nurses telling her anything at all about her injuries. There were certainly no lifethreatening injuries to either girl.” “From what I saw of the scuffle between her and Kristen, I don’t think Kristen caused her to have nose surgery or give her a concussion.” “I have been around Sarah lots of times since this fight. I’ve never heard her mention any nightmares or fears of dying after this fight. I never heard her complaining about being hurt or having any headaches or saw any evidence of any injuries at all.” Finally, Megan Williams who was outside when the altercation began, came back in and heard Kristen Saban say to Sarah Grimes, “You threatened to kill me, you came at me” and Sarah said, “Kristen we are best friends, we need to talk about all this, but I need to go to the hospital.” “Sarah was saying how she ‘needed to go and get checked out to make sure this hasn’t made my head injury worse.’ She was talking about how she had migraines all of the time from that wreck and was afraid that this altercation with Kristen could make it worse.’” (Emphasis

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added). Megan testified that what she saw was nothing like what Plaintiff Grimes had described: “She had just a little blood on her nose and her eye was a little puffy. I didn’t think she needed to go to the hospital. Kristen had scratches all over her back.” “I have seen Sarah out a couple of times since this night. She acts and looks the same.” Plaintiff has the burden of coming forward with substantial evidence. Plaintiff has the burden of proof at trial8 to clearly show an act of assault and battery was administered to her by Defendant through admissible evidence. Here, her “facts” of assault do not even approach our required substantial evidence standard. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989) (Emphasis added). However, “[m]ere conclusory allegations or speculation that fact issues exist will not defeat a properly supported summary judgment motion, and bare argument or conjecture does not satisfy the nonmoving party's burden to offer substantial evidence to defeat the motion.” Blackburn v. State Farm Auto. Ins. Co., 652 So. 2d 1140, 1142 (Ala.1994). See also Ex Parte Nail Air Freight, Inc., 690 So. 2d 1219 (Ala. 1997) (Hooper, C.J. dissenting) (“The only evidence offered to show that the plaintiff did not make the bomb threats was the plaintiff's own testimony . . . . I am not satisfied that the plaintiff's own testimony is substantial enough to meet the burden the plaintiff must meet to defeat the defendant's motion for summary judgment”). In Mitchell v. Torrence Cablevision USA, Inc., 806 So. 2d 1254 (Ala. Civ. App. 2000) the court held that the plaintiff’s own testimony did not present substantial evidence that she exercised reasonable care when she tripped and fell over a coaxial cable in her yard. 806 So. 2d

8

Plaintiff also has the burden of coming forward with substantial evidence to rebut Defendant’s prima facie evidence at summary judgment. 21

at 1259. The court found the record devoid of any evidence supporting the plaintiff’s claim that she exercised reasonable care. Id. As shown above, it is not uncommon that a party’s own testimony does not rise to the level of substantial evidence in order to defeat a party’s properly supported motion for summary judgment, especially when the party’s affidavit merely parrots the allegations contained in the Complaint.9 See Walsh v. Douglas where the Court held that a summary judgment against a nonmovant was proper because the nonmovant's own testimony was unsupported and directly conflicted with testimony of the movant and other witnesses. Walsh v. Douglas, supra (citing Hurst v. Alabama Power Co., 675 So.2d 397, 400 (Ala.1996)). That is exactly the situation that exists in the case sub judice. There is no corroborating evidence to support the naked allegations of an obviously biased Plaintiff. When an objective evaluation is conducted on these facts, one has to be impressed with the lack of weight and quality surrounding Plaintiff’s rendition of the facts of this case vis-à-vis the facts as described by all of the eye witnesses. Significantly, every witness to this event says they are friends with both Plaintiff and Defendant. All say, in some form or the other, that Plaintiff was drunk, out of control, aggressive, insulting, rude and threatening. All describe the altercation in the same way: a Facebook posting; a demand to take it down; it is taken down; Plaintiff is told and shown it has been taken down; Plaintiff does not return to the other room; Plaintiff continues to yell at Defendant getting within inches of Defendant’s face; Defendant pushes Plaintiff away from her face; in response to the push-away by Defendant, Plaintiff begins choking Defendant; Defendant strikes at Plaintiff landing one hit; the altercation from that point is wild swinging, pushing,

9

As reported in Ex Parte Kenneth P. Quinlan, 922 So. 2d 914 (Ala. 2005), it can be enough so long as the Complaint is more than conclusionary and the affidavit shows sufficient facts on firsthand knowledge, and otherwise rises to the substantial evidence level. 22

scratching, and hair pulling, all done by both parties; the “fight” ended in a draw with no one suffering serious injuries. Momentarily setting aside Plaintiff’s motive for filing this suit, her embellished, biased, stretched, self-serving testimony amounts to no more than fiction. The Plaintiff’s “facts” were made up in hopes the Defendant (rather her family) would not let the mention of these potentially embarrassing allegations see the light of day, appear on the broadcaster’s script or become part of the printer’s ink. Now that they have, the light cast on Plaintiff’s false allegations (illuminated by the truth as spoken by each witness) makes them disappear like a magician’s ink. When our Appellate Courts speak in terms of substantial evidence being evidence of such weight and quality necessary to defeat summary judgment, it is no coincidence they marry the words “genuine” with “issue,” “material” with “fact,” and “reasonably” with “infer.” Yes, Plaintiff offers her testimony as “evidence” in an attempt to prop-up her claim. But does her unsupported testimony rise to the level that creates a genuine issue of a material fact? And most importantly, is her evidence substantial? Is it the type evidence that is of “such weight and quality that fair-minded jurors in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved?” Her “facts,” which she seeks to show solely by her own testimony, are noticeably void of Kristen Saban offering to touch her in an intentional, unlawful, rude or angry manner to such an extent that Plaintiff had a well-founded fear of an imminent battery. Nowhere in her deposition does Plaintiff recount any type of threat made by Kristen Saban. The most she can come up with is a lame Facebook posting of “Nobody likes Sarah, yay!” Plaintiff does not even attempt to describe an offer from Kristen Saban to harm her in any way, much less in an intentional, rude or angry manner. Plaintiff made such an overture to Defendant, but Defendant never made one to Plaintiff. Accordingly, Plaintiff could not have

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reasonably been placed in fear of a battery. As direct evidence she did not experience fear, Plaintiff charged Defendant’s locked room with no consideration of fear. On the contrary, she was mad, hostile and ready to battle. Moreover, her uncorroborated testimony omits the very core element of an assault - an offer to touch Plaintiff, a threat, something that puts fear in the Plaintiff. An assault this was not. Even though Plaintiff was the assaulter, Plaintiff could attempt to assert that Defendant’s physical response somehow offended the rules of fair play and teetered over into the area of “excessive force.” Stated differently, Plaintiff could say Defendant used more force than was necessary to defend herself. Plaintiff could attempt to do this by trying to establish her unsupported conclusions such as “Defendant beat me,” as she states in her Complaint, or this paraphrased version from her deposition of how she was struck several times, yet only held her arms up in a defensive posture, never taking a swing at Kristen. (Grimes, Dep. pp. 164-167). However, Plaintiff admits to being intoxicated, admits to shouting at Defendant while pounding on Defendant’s locked door demanding entry or else, then moving her face and body to within inches of Defendant’s face. When Defendant justifiably pushed Plaintiff away, Plaintiff retaliated by attempting to strangle Defendant with her bare hands. Simply stated, her “fairytale” story defies common sense. What juror, using impartial judgment would reasonably infer the existence of that fact - that she never swung at or hit the Defendant - even without considering all the direct evidence from all witnesses to the contrary? To do so, the juror would have to conclude that this drunk, belligerent, threatening Plaintiff suddenly morphed into a passive victim, who “rope-a-doped” while Defendant “beat” her with numerous blows to the head. The obvious answer is this - none would. On the other hand, if those same jurors believed that both parties hit, pulled, pushed, and scratched, and both received

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expected minor injuries from that type affray, then Defendant did not exceed the expected, reasonable amount of force applied back to Plaintiff. Equally persuasive is this analysis: even if a reasonable juror somehow ignored his life experiences and common sense and weighed the evidence on this issue (the amount of selfdefense used by Defendant), he or she would be left, on the one hand, with the naked, unsupported version from a Plaintiff motivated by the hope of hush-money from Kristen Saban’s parents, and on the other hand, with every eyewitness, each in close proximity to the event, each friends with both parties, each telling it exactly opposite from Plaintiff. Every witness said it was Plaintiff, not Defendant, that issued threats, started the fight, and then complained that it might interfere with her already-pending lawsuit in Florida for the same type injuries she so needed to “document.” They all say the fight was a “draw,” a “tie,” with neither landing punches and both using the same fighting techniques: pushing, pulling, scratching and hair-pulling. Plaintiff’s version of the “facts” is simply not of the weight and quality to be considered substantial evidence. This case is due to be summarily ordered out of court. V. CONCLUSION.

What does it mean when our Appellate Courts opine that evidence must be of such weight and quality to create a reasonable inference of a fact? Obviously, not any evidence will do. The evidence has to be adequate to support a conclusion when viewed by a reasonable mind.10 To be of such “weight”, the evidence must be persuasive in comparison with other evidence.11 To be of such “quality”, the evidence must have a particular character or property, often essential for a particular result.12

10 11

Black’s Law Dictionary 580 (9th ed. 2009). Id. at 1588. 25

How can any reasonable person (juror) view Plaintiff’s “evidence” and be persuaded by its weight and quality that Defendant assaulted and battered Plaintiff? Even by Plaintiff’s story, Defendant never threatened to do anything to Plaintiff, much less be violent towards her. Plaintiff is left clinging to a hope that the struggle between the parties somehow constituted a battery on the Plaintiff. The problem with that hope are all the admissions Plaintiff made concerning the events leading up to the first touching. Plaintiff admits advancing to the Defendant; she admits pounding on Defendant’s door demanding entry; she admits the event which made her angrily approach Defendant had been remedied (Facebook post removed); she admits then moving towards Defendant and getting “pretty close” to Defendant’s face, still issuing threats. She says Defendant pushed her away. Justified? If so, the case is over, assuming Defendant did not use excessive force in defending herself from Plaintiff’s assault and battery on her. First, all eye witnesses say Plaintiff got very close to Defendant’s face – “within inches”. Significantly, Plaintiff does not deny this. Much like the patron who will admit to “two beers” when pulled over for driving intoxicated, Plaintiff says she does not remember, but it was “pretty close” and less than an arm’s length. On a college girl that is around twenty inches measuring from the upper torso. When someone is threatening you and mad, that is way too close prevent the other person from fearfully reacting. Defendant does react to this situation by pushing Plaintiff back. What other reasonable option did she have? She was in her own bedroom making it impossible to retreat. There is no dispute about what happened next – Plaintiff grabbed Defendant’s throat. Defendant pushed Plaintiff and swang at Plaintiff, and the cat fight began. Plaintiff does not claim Defendant used any weapon or even object to battle her. Nor does she say Defendant got her down on the ground. Where is the excessive force by Defendant? Plaintiff
12

Id. at 1255. 26

admits they got into a physical “fight”; fights are physical. Defendant fought back – swinging, scratching, pulling. Plaintiff even admits to scratching and hair pulling. She just denies throwing any punches. There it is - the point of departure on the “facts” of the fight. The Plaintiff says she did not throw any punches. She says she only held her arms up to keep from getting hit. The Defendant says Plaintiff did throw punches. Hannah Muncher and McKinnon Moultrie all say Plaintiff threw punches. Common sense says Plaintiff threw punches. The circumstances say Plaintiff threw punches. So could a reasonable person he persuaded that Plaintiff did not throw a punch in this melee? Is Plaintiff credible? We know she is biased. We know she was intoxicated. Is this singular proffer of evidence of the weight and quality that amounts to substantial evidence and able to defeat summary judgment? The question is rhetorical. In summary, the undisputed facts show that: 1) Plaintiff Sarah Grimes was the initial aggressor who forced Defendant to act in self-defense; 2) Defendant did not provoke the difficulties; 3) Defendant did not fight willingly but had to apply reasonable force to repel the attacks by Plaintiff; 4) Ironically, it was Plaintiff Sarah Grimes who assaulted and battered the Defendant, 5.) Kristen Saban was forced to act in self-defense and she did so in a reasonable manner. Because Plaintiff Sarah Grimes was the initial aggressor who initiated the altercations, forced Defendant to act in self-defense, assaulted and battered Defendant, Plaintiff cannot recover in this suit as a matter of law. THEREFORE, THESE PREMISES CONSIDERED, Defendant Kristen Saban respectfully asks this Honorable Court to enter an order: 1) granting Defendant’s Motion for Summary Judgment against Plaintiff on all claims; and 2) granting Defendant such further relief as the Court deems just and proper.

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Respectfully submitted, /s/Robert F. Prince (PRI-011) /s/Joshua P. Hayes (HAY-059) Prince, Glover & Hayes 1 Cypress Point 701 Rice Mine Road North Tuscaloosa, Alabama 35406 Phone: (205) 345-1234 Fax: (205) 752-6313 Email: rprince@princelaw.net jhayes@princelaw.net

CERTIFICATE OF SERVICE I hereby certify that the foregoing document filed through the Alabama Judicial System will be sent electronically to the registered participants as identified on the Notice of Electronic Filing and paper copies will be sent to those indicated as non-registered participants. Stephen A. Strickland, Esquire This the 12th day of December, 2013. /s/Robert F. Prince Of Counsel

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