CHARLESTON – The plaintiff in a civil rights lawsuit is urging a federal judge to follow Kanawha County Circuit Court Judge Tod Kaufman’s lead and deny a motion to dismiss recently filed by former Mingo Circuit Judge Michael Thornsbury.
Robert Woodruff made the argument on Dec. 2 in his lawsuit against Thornsbury, who is alleged to have attempted to violate his civil rights in an effort to woo Woodruff’s wife. Thornsbury is awaiting sentencing following pleading guilty to depriving another man of his civil rights.
Thornsbury alleged he wasn’t properly served with complaints filed by Woodruff and his wife Kim. Kaufman recently ruled against Thornsbury on the matter in Kim’s lawsuit.
“Defendant Thornsbury had lived at the address where service was made and was known to live there up until two days before service was affected,” Kaufman ruled.
“Defendant’s wife still lived in the house and obviously sought to avoid service of process.
“Defendant or Defendant’s wife made the effort to obfuscate proper service by filing a complaint with the postmaster. Defendant obviously had and has ‘actual notice.’”
Woodruff was referred to as R.W. in an indictment filed against Thornsbury by U.S. Attorney Booth Goodwin. On Oct. 2, Thornsbury pleaded guilty to charges in an information alleging a second scheme and resigned. He faces a maximum penalty of 10 years imprisonment.
Woodruff’s complaint says his wife was subjected to sexual harassment.
Goodwin alleged Thornsbury instructed a co-conspirator to plant illegal drugs under the truck of a man known as Woodruff. Goodwin alleged this happened after the secretary broke off a romantic relationship with Thornsbury, though Woodruff’s complaint says his wife resisted the advances.
However, the co-conspirator backed out of the plan at the last minute, Goodwin alleges.
Thornsbury then told a state trooper to file a criminal complaint against Woodruff, the indictment says. The indictment alleged Woodruff was stealing scrap metal from his employer, even though Woodruff had permission to salvage the metal.
A criminal complaint was filed against Woodruff in December 2008.
Thornsbury presided over the grand jury in January 2009 and picked Jarrod Fletcher, the county’s director of Homeland Security and Emergency Management with whom he co-owned real estate and a wine shop, as jury foreperson.
Goodwin alleges Thornsbury was able to co-opt the grand jury’s authority and used it to victimize Woodruff. He created a set of subpoenas that ordered Woodruff’s employer and other local companies to surrender private documents, Goodwin says.
One company resisted and discovered the business ties between Thornsbury and Fletcher, the indictment says. Thornsbury eventually abandoned his plan to use the grand jury against Woodruff, it says.
In 2012, Woodruff was charged with assault and battery. He had been involved in an altercation with two other men, one of whom drew a gun. The charges against the two men were dismissed, and Thornsbury told the county prosecutor to ensure Woodruff received six months’ home confinement, the indictment says.
After Woodruff refused a plea deal, the prosecutor dismissed the case on the eve of trial.
Thornsbury is claiming the civil complaint was not served on him properly.
“In this matter, the plaintiff has served a copy of the summons and complaint on the wrong address and upon a person who was not an agent of Mr. Thornsbury’s,” the memorandum in support of his motion to dismiss says.
“Therefore, Mr. Thornsbury has yet to be served. While Mr. Thornsbury did formerly live at the address where service was attempted, he moved out of that address into another residence.
“He has not visited or slept at the residence, nor has he kept any of his personal belongings at the location since on or before Oct. 3, 2013.”
As a result, the complaint should be dismissed, attorney Philip B. Sword of Shuman, McCuskey & Slicer in Charleston argues.
The man who attempted to serve Thornsbury with the complaint submitted the following testimony:
“Arrived at Thornsbury home at 5:55 p.m. on Oct. 5, 2013. Was greeted at door by Dreama Thornsbury. Introduced myself as Benjamin Cisco and tried to hand her paperwork and I stated “you have been served.” She closed the door and I stated again “you have been served.” I placed the paperwork in the next mail box attached to the home and exited the property.”
Someone took the summons and complaint to John Masters, the postmaster of Williamson, Kaufman wrote. Masters wrote Woodruff’s attorneys, Neely & Callaghan, that warned that nothing but mail was to be placed in mail boxes.
“Were this a case in which the Defendant averred that he had not received ‘actual notice,’ the circumstances of service would not warrant the entry of a default judgment,” Kaufman wrote.
“The object of the service of process rules is to provide a mechanism to give defendants ‘actual notice’ of proceedings brought against them. However, the whole undertaking of service of process is not a game: The rules are not designed to confound justice, but rather to further the ends of justice.”
Kaufman ruled that because Thornsbury never publicized his new address, service was made on his wife and someone complained to the postmaster on his behalf, proper service was made on him.
Woodruff’s motion requests U.S. District Judge John Copenhaver find Thornsbury’s motion to dismiss moot.
From the West Virginia Record: Reach John O’Brien at email@example.com.