Lumumba File

8/19/2019 Lumumba File

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IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

CHOKWE A. LUMUMBA PLAINTIFF

v. CAUSE NO. 15-526

TONEY A. BALDWIN, IN HIS OFFICIAL AND

INDIVIDUAL CAPACITIES; BALDWIN & BALDWIN, PLLC;

AND DOE DEFENDANTS 1-5 DEFENDANTS

MOTION TO RECUSE

By this Motion, Plaintiff Chokwe A. Lumumba, and pursuant to Canon 3E(1), Code of

Judicial Conduct, moves the Honorable Jeff Weill, Judge of the Circuit Court of Hinds County,

First Judicial District, to recuse himself, and shows the following:

1. That the subject case has been assigned to the Honorable Jeff Weill, pursuant to a

random selection process.

2. Judge Weill has extensive history with the Plaintiff and his family, including a bar

complaint the Plaintiff’s father Chokwe Lumumba.

3. That Judge Weill should be disqualified and/or recused from adjudicating in any

manner whatsoever in the subject proceedings in that Judge Weill's impartiality might reasonably

be questioned,

4. Canon 3E(1), Code of Judicial Conduct, Disqualification, provides in pertinent

part:

“Judges should disqualify themselves in proceedings in which their

impartiality might be questioned by a reasonable person knowingall the circumstances or for other grounds provide in the code of

Judicial Conduct or otherwise as provided by law, …”

Case: 25CI1:15-cv-00526-JAW Document #: 12 Filed: 02/04/2016 Page 1 of 5


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5. The Defendant feels that should Judge Weill fail to disqualify himself, his

impartiality might be open to question under the guidelines promulgated both by the American

Bar Association and Mississippi law. Under those guidelines, Judges should disqualify

themselves not only when their impartiality may be questioned, but they should disqualify

themselves in order to avoid the very appearance of impropriety.

6. Judge Weill's impartiality might be questioned by a reasonable person knowing

that Judge Weill had a pending bar complaint against the Plaintiff’s father.

7. The affidavit of Chokwe A. Lumumba, as required by Rule 1.15 of the

Mississippi Uniform Rules of Circuit and County Court, is attached hereto and incorporated as if

fully set forth herein by reference.

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that Judge Weill

recuse himself, or in the alternative, that an evidentiary hearing be held to divulge the facts

herein and that said Judge then recuse himself.

Respectfully submitted this the 4th day of February, 2016.

CHOKWE A. LUMUMBA

Counsel for Plaintiff:

__ /s/ Thomas J. Bellinder, Esq. ________

Thomas J. Bellinder (MSB # 103115)

BELLINDER LAW FIRMPinnacle at Jackson Place

190 E. Capitol Street, Suite 460

Jackson, MS 39201Phone: (601) 487-9340

Fax: (601) 265-1795

Email: [email protected]


mailto:[email protected]:[email protected]


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CERTIFICATE OF SERVICE

The undersigned counsel does hereby certify that a true and correct copy of the foregoing

document has been forwarded to opposing counsel via hand-delivery, electronic means, U.S.

Mail and/or facsimile to their usual place of business, to-wit:

Robert L. GibbsGibbsWhitwell PLLC1400 Meadowbrook Road, Suite 100

Jackson, MS 39205

[email protected]

This the 4th day of February, 2016.

BY: __ /s/ Thomas J. Bellinder, Esq. ______



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IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT


v. CAUSE NO. 15-526

TONEY A. BALDWIN, IN HIS OFFICIAL AND

INDIVIDUAL CAPACITIES; BALDWIN & BALDWIN, PLLC;

AND DOE DEFENDANTS 1-5 DEFENDANTS

AFFIDAVIT OF CHOKWE A. LUMUMBA

STATE OF MISSISSIPPI

COUNTY OF RANKIN

I, CHOKWE A. LUMUMBA, being duly sworn, state under oath as follows:

1. I am the Plaintiff in the above entitled cause.

2.

This case has been assigned to Judge Jeff Weill.

3. Judge Weill filed a bar complaint against my father for alleged behavior occurring during

the last and only trial he tried before Judge Weill.

4. Among other things Judge Weill noted in his complaint that the defendant in that case

was found not guilty. Judge Weill appears to reference this not guilty verdict as an undesired

result that was either caused by or an unfortunate consequence of my father’s behavior in that

case.

5.

In the previous trial Judge Weill demonstrated bias against the defendant and my father.

6. Despite learning that there was no evidence that the defendant or my father had been

notified of his trial date until shortly before the trial, Judge Weill refused to grant the defendant a

continuance. Judge Weill's refusal to grant the continuance was lodged over my father’s

representation that he was unprepared for trial. It should be noted that the defendant was

charged with armed robbery, which carries a possible life sentence. Further, Judge Weill refused



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to grant the continuance after the District Attorney agreed to the same. Judge Weill also

disallowed the defendant an opportunity to negotiate a plea agreement with the State. It should

also be noted that Judge Weill refused to discuss the case with Defense Counsel without the

presence of one or more of the Assistant District Attorneys who were white. He would not

discuss the case with the Defense Attorney who was black and the District Attorney who was

black, without the presence of the District Attorney's white assistants. The case involved a black

criminal defendant. Judge Weill is white.

7. This prior case before Judge Weill is the only one that my father encountered in his 36

years of practice where the Judge required that the assistant prosecutor be present for discussion

and argument on Motions when the District Attorney was available for argument on the motions.

8.

Judge Weill's behavior in the previous trial indicated bias against my father and his client.

His behavior in that trial suggested an exercise of racial preference with respect to pretrial

motion consideration.

9.

Judge Weill prosecuted a bar complaint against my father, which I believe disqualifies

him as an objective judge in the present case.

FURTHER AFFIANT SAYETH NOT.

_________________________________

Chokwe A. Lumumba

Sworn to and subscribed before me this the _____ day of ___________________, 2016.

_________________________________

Notary Public

My Commission Expires:

____________________



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Case: 25CI1:15-cv-00526-JAW Document #: 12-1 Filed: 02/04/2016 Page 1 of 5


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IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT

OF HINDS COUNTY, MISSISSIPPI

CHOKWE ANT AR LUMUMBA

PLAINTIFF

vs

CAUSE NO.: 251-16-115

ST. DOMINIC S HOSPITAL, ET AL

DEFENDANT

0

The undersigned hereby recuses himself from the above styled and numbered

cause because plaintiff is an attorney who aptJ1ars before me in court.

SO ORDERED, this

ｴ

day o February, 2016

WINSTON L KIDD

CIRCUIT JUDGE



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IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF

HINDS COUNTY, MISSISSIPPI


VS. CAUSE NO. 25CI1:15-cv-00526JAW

TONEY A. BALDWIN, IN HIS OFFICIAL

AND INDIVIDUAL CAPACITIES;

BALDWIN & BALDWIN, PLLC AND

DOE DEFENDANTS 1-5 DEFENDANTS

RESPONSE AND MEMORANDUM IN OPPOSITION

TO PLAINTIFF’S MOTION TO RECUSE

COMES NOW, Defendants, Toney A. Baldwin, in his Official and Individual Capacities

and Baldwin & Baldwin, PLLC (hereinafter “Defendants”), by and through undersigned

counsel, and files this their Response in Opposition Plaintiff’s Motion To Recuse and would

show unto the Court as follows:

1.

On or about October 13, 2015, Plaintiff filed this action against Defendants alleging

Negligence, Gross Negligence, Intentional Interference with Business Contract, Res Ipsa

Loquitur , Civil Conspiracy and Tortious Interference with Business Relationships. This case was

assigned to this Honorable Court at that time.

2. On November 30, 2015, Defendants filed a Motion to Dismiss Plaintiff’s Complaint. In

the Motion, Defendants attached the affidavits of the clients in question disputing Plaintiff’s

version of the facts. On December 14, 2015, Plaintiff responded to Defendants’ Motion to

Dismiss.

3.

On February 4, 2016, Plaintiff filed a Motion to Recuse. It is worth noting that this

motion was filed some four (4) months after this case was filed and after Defendants filed their

Motion to Dismiss. In other words, there was only a problem with this Honorable Court

presiding over this case after Defendants filed a Motion to Dismiss.



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4. Nonetheless, Plaintiff’s Motion does not meet the requirements of Rule 1.15 of the

Uniform Rules of Circuit and County Court, which states in pertinent part:

“A motion seeking recusal shall be filed with an affidavit of the party or

the party's attorney setting forth the factual basis underlying the asserted

grounds for recusal and declaring that the motion is filed in good faith

and that the affiant truly believes the facts underlying the grounds stated

to be true. Such motion shall, in the first instance, be filed with the judge

who is the subject of the motion within 30 days following notification to

the parties of the name of the judge assigned to the case; or, if it is based

upon facts which could not reasonably have been known to the filing party

within such time, it shall be filed within 30 days after the filing party

could reasonably discover the facts underlying the grounds asserted. The

subject judge shall consider and rule on the motion within 30 days of the

filing of the motion, with hearing if necessary. If a hearing is held, it shall

be on the record in open court.”

5.

Plaintiff knew at the time of the filing of this law suit that it was assigned to this

Honorable Court. In fact, the new electronic filing system (MEC) sends notification to attorneys

alerting them to any filings and the assigned court. Furthermore, Plaintiff’s father died in 2013.

Therefore, any believed animosity between Plaintiff’s father and this Court was known prior to

this case being filed. However, Plaintiff waited until four months after this case was filed and

two months after Defendant filed a Motion to Dismiss/Motion For Summary Judgment to file a

Motion to Recuse. It is clear Plaintiff’s motion is untimely.

6.

However, if this Court does find that Plaintiff’s motion is not untimely filed. The facts



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presented by Plaintiff are not sufficient for this Court to recuse itself. The Mississippi Code of

Judicial Conduct provides the standard for disqualification of judges. Code of Judicial Conduct,

Canon 3(E). Pursuant to Canon 3, subdivision E, of the Code of Judicial Conduct states , “Judges

should disqualify themselves in proceedings in which their impartiality might be questioned by a

reasonable person knowing all the circumstances or for other grounds provided in the Code of

Judicial Conduct or otherwise as provided by law.” (Emphasis added). Illustrative of that

standard are several instances listed in Canon 3(E)(1)(a)-(d) where the judge should recuse

himself/herself, none of which are present here.

7.

There is no reason for this court to recuse itself from this case. Plaintiff relies on a bar

Complaint filed by his late father several years ago. However, that bar complaint has nothing to

do with Plaintiff and certainly nothing to do with this case. Neither does the fact that Plaintiff

represents two attorneys that has filed bar complaints against this court. Especially when it is

undetermined if these complaints even have merit. None of these circumstances would cause a

reasonable person to view this court as being impartial. The Mississippi Supreme Court has

consistently held that there is a presumption “that a judge, sworn to administer impartial justice,

is qualified and unbiased. To overcome the presumption, the evidence must produce a

‘reasonable doubt’ (about the validity of the presumption) [.]” Turner v. State, 573 So.2d 657,

678 (Miss.1990). Under the circumstances presented, Plaintiff has failed to overcome this

presumption. Therefore, Plaintiff Motion to Recuse is meritless and should be denied.

WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request that the

Court enter an order denying Plaintiff’s Motion to Recuse and for any other relief that is just in

the premises.


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RESPECTFULLY SUBMITTED, this the 22nd day of February, 2016.

Respectfully submitted,


AND INDIVIDUAL CAPACITIES ANDBALDWIN & BALDWIN, PLLC

s/ Robert L. Gibbs

Robert L. Gibbs

OF COUNSEL:

Robert L. Gibbs, MSB No. 4816

Gibbs Travis PLLC

1400 Meadowbrook Road, Suite 100Jackson, Mississippi 39211

Telephone: 601-487-2640Facsimile: 601-366-4295



The undersigned hereby certifies that a true copy of the foregoing was duly served upon

all known counsel of record, this the 22nd

day of February, 2016, and upon all parties registered

with the Court’s electronic filing system by operation of the Court’s ECF system.

s/ Robert L. Gibbs

Robert L. Gibbs


mailto:[email protected]:[email protected]:[email protected]:[email protected]


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IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF

HINDS COUNTY, MISSISSIPPI


VS. CAUSE NO. 25CI1:15-cv-00526JAW


AND INDIVIDUAL CAPACITIES;

BALDWIN & BALDWIN, PLLC AND

DOE DEFENDANTS 1-5 DEFENDANTS

MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT

COMES NOW, Defendants, Toney A. Baldwin, in his Official and Individual Capacities

and Baldwin & Baldwin, PLLC (hereinafter “Baldwin”), by and through counsel of record and

moves this Court to Dismiss this action pursuant to M.R.C.P. 12(b)(6) and/or for Summary

Judgment pursuant to M.R.C.P. 56. And for cause thereof would state the following:

1. This is an action for Negligence, Gross Negligence, Intentional Interference with

Business Contract, Res Ipsa Loquitur , Civil Conspiracy and Tortious Interference with Business

Relationships. According to the allegations of the Complaint Defendant Toney A. Baldwin, an

attorney licensed to practice in the State of Mississippi, reached out to and met with Kayla Clark

and Charita Kennedy while Clark and Kennedy were represented by Plaintiff, Chokwe A.

Lumumba, also an attorney licensed to practice in the State of Mississippi. The Complaint,

alleges that Baldwin knew Clark and Kennedy were represented by Plaintiff, but Baldwin, in

violation of the Mississippi Rules of Professional Conduct encouraged Clark and Kennedy to

breach a validly executed Contract for Legal Services. As will be demonstrated by affidavits

from the two people who are at the center of this dispute, Clark and Kennedy, these allegations

have no basis in fact and Plaintiff and his attorney filed the instant lawsuit without properly



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2

investigating the facts and thus violated M.R.C.P. 11 and the Mississippi Litigation

Accountability Act, Mississippi Code § 11-55-1, et seq.

2. The true facts of this case, as evidenced by the affidavits of Clark and Kennedy

are that Clark and Kennedy never sought out Plaintiff to represent them. But on July 14, 2015, a

few days after Plaintiff entered into a Contract for Legal Services (“Contract”) (Exhibit “A”)

with Frances Sanders - Clark and Kennedy were invited to the home of Sanders. Once Clark and

Kennedy arrived they learned that Sanders had scheduled a meeting with Plaintiff. At the

meeting Plaintiff encouraged Clark and Kennedy to hire him to represent them in litigation

involving the death of Jonathan Sanders, who had been killed by an officer in Clarke County.

Frances Sanders is the mother of Jonathan Sanders and Clark and Kennedy are mothers of

Jonathan Sanders’ two children. At this so called meeting, Clark and Kennedy initially refused

to sign the Contract with Plaintiff, but through pressure and what Clark and Kennedy felt was

intimidation, Clark and Kennedy signed the Contract. It should be noted that the Contract was

not prepared for Clark and Kennedy, but was the one prepared for and executed by Frances

Sanders. As Clark and Kennedy states in their affidavits, (Exhibits “B” and “C”), they “had

already made a decision that we would get our own attorneys.” (See ¶4 of Exhibits “B” and

“C”).

Following the execution of the Contract, Clark felt that she really needed her own

attorney. This feeling turned into a decision to hire her own attorney by a number of events.

First, there was no communication between her and Plaintiff. Second, Clark ’s friends were

encouraging her to get her own attorney. She was told that her interest and the interest of her

child were different than the interest of Ms. Sanders, which was the mother of Jonathan Sanders.

Third, a dispute occurred between Ms. Sanders, Clark and Kennedy when Sanders accused



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3

Kennedy of stealing money belonging to Jonathan Sanders, this was the final straw. Thereafter,

Clark sought out Baldwin, whom she had met shortly after Jonathan’s death and before the July

14, 2015 execution date of the contract.

It was Clark who sought out Baldwin. However, Baldwin refused to meet with or discuss

this matter with her while she was Plaintiff’s client. Thereafter, Clark drafted a short

handwritten letter (Exhibit “D”), terminating Plaintiff as her attorney. It was only after receiving

this handwritten termination letter did Baldwin discuss this case with Clark. Later Kennedy,

after speaking with Clark, made the decision to terminate Plaintiff and retain Baldwin. (Exhibit

“E”). Once Baldwin was retained he learned that no one had opened an estate on Jonathan’s

behalf, even though the Contract between Plaintiff and Frances Sanders stated that Frances

Sanders was an “Administratrix.” Therefore, Baldwin filed Petition for Letters of

Administration and to Employ Attorney and Approval of Contingency Contract on behalf of

Clark. The Chancery Court of Clarke County entered a Decree on August 12, 2015 appointing

Clark as Administratrix and approving the Employment Contract with Baldwin to prosecute the

wrongful death claim.

As the above facts demonstrate, Baldwin did not interfere with a business contract, and

the Complaint was filed without any investigation into the facts. Also, there is no negligence or

gross negligence in that Baldwin did not owe a duty to Plaintiff, thus there was no breach of

duty. Res Ipsa Loquitur is likewise not applicable. Res Ipsa Loquitur presumes negligence if

Baldwin had complete control over what caused the injury even though there is no specific

evidence of negligence. As stated earlier, there is no negligence because there is no duty and

thus no breach of duty. Further, Plaintiff has not been injured. Finally, there is no civil

conspiracy because Toney A. Baldwin and Baldwin & Baldwin are the same. In fact, Toney A.



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4

Baldwin is sued both in his individual and official capacities, which means he is sued as Baldwin

& Baldwin. The law is clear one cannot conspire with himself. Further, based on the undisputed

facts there are no facts to support this or Plaintiff’s other theory of relief.

3. Based on the affidavits of Baldwin, Clark and Kennedy it is clear that there are no

facts to support the allegations of the Complaint, and since there are no disputed facts, judgment

should be entered on behalf of Baldwin.

WHEREFORE, PREMIESES CONSIDERED, Baldwin moves the Court to dismiss this

matter for failure to state a claim and because the facts are not disputed, grant judgment as a

matter of law. Baldwin also moves the Court for such other relief as it deems appropriate.

This the 30th day of November, 2015.

Respectfully submitted,

TONEY A. BALDWIN, IN HIS OFFICIALAND INDIVIDUAL CAPACITIES AND

BALDWIN & BALDWIN, PLLC

s/ Robert L. Gibbs

Robert L. Gibbs

OF COUNSEL:

Robert L. Gibbs, MSB No. 4816Gibbs Whitwell & Travis PLLC

1400 Meadowbrook Road, Suite 100

Jackson, Mississippi 39211Telephone: 601-487-2640

Facsimile: 601-366-4295



mailto:[email protected]:[email protected]


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The undersigned hereby certifies that a true copy of the foregoing was duly served upon

all known counsel of record, this the 30th day of November, 2015, and upon all parties registered

with the Court’s electronic filing system by operation of the Court’s ECF system.

s/ Robert L. Gibbs

Robert L. Gibbs


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