PLAINTIFFS’ MOTION TO AMEND 10/21/99 ORDER

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
AWARE WOMAN V RANEY
DOCKET / CHRONOLOGICAL FILE
PLAINTIFFS’ MOTION TO AMEND 10/21/99 ORDER

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
No. 99-05-CIV-ORL-18C

AWARE WOMAN CENTER FOR CHOICE, INC,
Plaintiffs,
vs.
MEREDITH RANEY, et al,
Defendants.

PLAINTIFFS’ MOTION TO ALTER OR AMEND ORDER OF OCTOBER 21, 1999

Plaintiffs AWCC respectfully move this Court to amend the Order of October 21, 1999, Doc 63. F.R.C.P. 59(e).

Five substantial reasons justify modifying the Order, and leaving this matter as it stood, when the action was dismissed without prejudice, pending the outcome of the Supreme Court decision in Reno v Condon (US No 98-1464):

Preliminarily, counsel apologizes to the Court for not having responded earlier to the motion of the AFA on behalf of Mr Hall. These motions came in a flurry in the same time period as two hurricanes that flooded the Melbourne area, where counsel had been keeping his files and records in this case. Moreover, counsel has been staying only temporarily in Melbourne, and was away during almost all of the time since evacuating for hurricane Floyd, from then to date. Counsel has also been in the process of relocating and of re-establishing his practice in D.C., following recovery and rehabilitation after a three year episode with non-Hodgkins lymphoma. Much of September and October were pre-occupied with time consuming physical rehabilitation efforts (which have been modestly successful). The Hall motion was excusably overlooked during this time, when the assumption had been made that the case was dismissed without prejudice, and would be inactive for months.

1. First, the plaintiffs in this action present highly substantial claims against Mr Hall and others to redress a decade of harassment and intimidation of patients and staff. Plaintiffs have a great deal of law, and a mountain of facts on their side, implicating Mr Hall and others in reprehensible misconduct and serious invasions of privacy. Plaintiffs in similar actions in Dallas, Chicago, Portland, ME, and elsewhere have enjoyed enormous success in restraining similar patterns of tortious misconduct by persons similarly situated to Mr Hall. See, e.g., Tompkins v Cyr, F Supp (ND Tex 1998)($8.4 million verdict against comparable "Operation Rescue" harassment); N.O.W. v Scheidler, F Supp 2d (ND Ill, 7/16/99)(injunction and treble damages against "Operation Rescue"). The highly publicized Portland verdict for Planned Parenthood et al in January, 1999, was for $108 million.

Documents in this case show that Mr Hall was a designated "scribe." He controlled the "Spy House" across the street from AWCC in all of 1999. That has been the staging area for harassment since 1993. He directly copied license plates of patients entering AWCC, then turned the data over to Mr Raney, who accessed names and addresses from CompuServe, and made unconsented, unwanted contact with patients, thereby outrageously invading their reasonable expectations of privacy. Essentially Mr Hall helped compile and store a veritable "blackmail database" identifying some 2,000 women who were patients at AWCC.

The AWCC motion for preliminary injunction and partial summary judgment clearly showed that the plaintiffs' claims are quite solid, if and when they are able to go forward. That depends to some extent now on the outcomes of Reno v Condon (US No 98-1464), Hill v Colorado (US No 981856), and the Eleventh Circuit case of OWC v City of Ocala, Ed Martin, et al (11th Cir Nos 99-13254 & 99-12002)(briefs filed 10/26/99).

Moreover, Congress very recently reinforced privacy interests in this area by passing Public Law No 106-69, 113 Stat 986, that condemns trafficking in personal information from driver's license records. The link to the Spending Clause undermines Pryor v Reno, 171 F3d 1281 (11th Cir 1999), whether it could have survived review or not. The private enforcement of FDPPA, 18 USC §2721 in Florida may well become a reality.

2. Second, Mr Hall has not likely incurred any attorneys' fees and costs of his own in this action. He is represented by a religious non-profit entity out of Tupelo, MS, that handles such cases for no net earnings, and itself is funded from other not well known outside religious sources. This enigmatically named American Family Association has filed a vast amount of paper in this lawsuit. AFA should not be allowed to burden AWCC because of its own production of excessive paper.

3. Third, Mr Hall comes before this Court with unclean hands. AWCC has substantial claims against him for a long pattern of privacy-invading misconduct. AWCC never went after Mr Hall. He, however, moved his activities to the AWCC neighborhood and has pretended to be a crusader against AWCC and the constitutional rights of women for years. His keeping of the label "Killing Place" on his mailbox outside of AWCC has been a serial defamation to intimidate women, not unlike a hate symbol on a synagogue.

4. Fourth, the imposition of defendants' attorney fees on these plaintiffs would cause substantial hardship. AWCC is closed now, the Windles having given up after a decade of relentless harassment and intimidation. Mr Hall and those in concert with him claim to have reduced patient numbers at AWCC by 50%. That is enough damage, and for that AWCC should eventually have redress. To seek attorneys' fees that were self-inflicted is the height of audacity. To award fees to Mr Hall would be akin to rewarding the Inquisitors when victims lacked the resources to carry forward suits against them for a decade of persecution.

5. Fifth, any award of attorneys' fees such as requested would be inconsistent with the law of this Circuit pertaining to fees for prevailing defendants.

The Eleventh Circuit has considered the standard for recovery of litigation costs and fees for "prevailing defendants." {These defendants are not now nor likely ever to be "prevailing" in this lawsuit.}

Initially, the legislative history of FACE, 18 USC §248, is clear. The Congressional Joint Conference Report on FACE appears in the 1994 US Code Congressional & Administrative News regarding P.L. 103-259, 108 Stat. 694, states:

"Specifically, the Conferees intend that under this provision, as under 42 U.S.C. 2000e-5(k), attorneys' fees and costs may be awarded to a defendant 'upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.' " 1994 USCCAN, PL 103-259, p 727.

This action, as shown by the verified complaint, substantial exhibits, and the plaintiffs' materials in support of partial summary judgment, is a very meritorious lawsuit. Defendant Hall could not possibly contend otherwise. His own conduct, and that of many others participating with him, embodied classic elements of stalking, intimidation, invasions of privacy, tortious interference, and a concerted effort to burden a lawful, licensed medical facility.

Mr Hall and his counsel have not proffered material remotely sufficient to support findings that would entitle them to attorney's fees on any part of this case. If AWCC is able to take this case forward after the pending federal appellate cases referenced earlier, it is AWCC that should be entitled to litigation fees and expenses as eventually prevailing parties. RESPECTFULLY SUBMITTED:

RL <initialed>
Roy Lucas
PO Box 1433
Melbourne, FL 32902-1433

Susan England
2805 Lakeview Drive
Fern Park, FL 32730

Attorneys for Plaintiffs.

CERTIFICATE OF SERVICE: This motion to alter or amend has been served upon the following counsel for defendants by first class mail, postage prepaid, sent this 28th day of October 1999, by the undersigned: Brian Fahling, PO Drawer 2440, Tupelo, MS 38803; Frederick Nelson, PO Box 547503, Orlando, FL 32854-7503; John Marino, LeBoeuf, Lamb, 50 N Laura St, Ste 2800, Jacksonville, FL 32202-3650; Charles P Scheeler, Pipe*Marbury, 36 So Charle St, Baltimore, MD 21201-3018.

By: RL <initialed>