On pages 15 and 16, Acker addresses UAB attorney Lisa Huggins:
So we've established--through Acker's words, not mine--there was no scheduling order and no discovery of any sort. Why did Acker have to treat UAB's motion as a motion for summary judgment? Huggins answers that herself, on page 22 and 23:
THE COURT: So you're, in effect, joining me in converting that into a summary judgment motion?
Huggins tried to back herself out of that corner, but even a judge as bad as Acker knew that couldn't fly. After all, he already had stated the issue clearly on page 19, addressing points I had raised:
By referring to my ability to "poke around into your people," Acker is referring to discovery--that I could issue interrogatories, conduct depositions, request production of documents, etc. What used to be Rule 56(f) in the Federal Rules of Civil Procedure is now Rule 56(d). In conjunction with Eleventh Circuit case law styled Snook v. Trust Company of Georgia, 859 F. 2d 865 (11th Cir., 1988), 56(d) holds that a non-moving party merely needs to alert the court that discovery is outstanding, and summary judgment cannot be addressed until the party has had an adequate opportunity for discovery.
I invoked the protection of Rule 56(d), just as Acker said I could, but he proceeded to ignore it--granting summary judgment when his own words show that he knew that could not be done.
What happened between the hearing on December 10, 2010, and Acker's ruling on January 28, 2011? I can think of only one answer--someone with connections to the federal courthouse in Birmingham took steps to make sure that a fix was in. That would almost have to be one or more persons in the legal community, and UAB officials surely know what went on.
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