DEFENDANTS MOTION & MEMORANDUM FOR CERTIFICATION OF INTERLOCUTORY APPEAL

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANTS MOTION & MEMORANDUM FOR CERTIFICATION OF INTERLOCUTORY APPEAL

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NO 97-1197-CIV-ORL

MEREDITH T RANEY, JR,
Plaintiff,
-versus-
AWARE WOMAN CENTER FOR CHOICE, INC, et al,
Defendants, Third Party Plaintiffs,
-versus-
SPHERE DRAKE INSURANCE COMPANY PLC
[ aka ODYSSEY RE (LONDON) LTD ],
WESTCO CLAIMS MANAGEMENT SERVICES, INC,
Third Party, Defendants.

DEFENDANTS MOTION & MEMORANDUM FOR CERTIFICATION OF INTERLOCUTORY APPEAL UNDER 28 USC §1292(b) FROM DENIAL OF AWCC MOTION FOR SUMMARY JUDGMENT

Defendants AWCC & Windles are filing this day a Notice of Appeal under 28 USC §1291 from the Order of December 16, 1998 (Doc 100, filed Dec 16, 1998), denying defendants' AWCC Dispositive Motion for Summary Judgment (Doc 46, filed May 29, 1998). This appeal is taken by AWCC under the collateral order doctrine as to matters of law and final determinations necessarily decided adversely to AWCC and conclusively up to and including the Order appealed from. Those issues briefed and persistently argued by AWCC throughout May to December include:

(1) McKusick-Younger abstention,

(2) Rooker-Feldman and collateral estoppel preclusion of FACE, 18 USC §248, false arrest claims, following buffer zone arrests of persons previously convicted, affirmed, and certiorari denied, for identical buffer zone violations,

(3) refusal to dismiss FACE, 18 USC §248, false arrest claims for Madsen buffer zone violation arrests, although plaintiff Raney made no allegation and presented no evidentiary proffer of absence of probable cause,

(4) determination as a matter of law that the Madsen 36 foot buffer zone may possibly be a part of the AWCC "facility" for purposes of plaintiff Raney's FACE claim to be an unwanted counselor in the open street and very zone protecting AWCC from him, where no facts were in dispute,

(5) determination as a matter of law that the Melbourne City police may possibly have been employees or agents of AWCC although contrary facts were not in dispute, and plaintiff Raney proffered no affidavit whatsoever on the agency issue in the fourteen months since he tiled this lawsuit, and

(6) determination as a matter of law that the individual defendant Windles may possibly be responsible down the respondeat superior line, although contrary proffered facts were not in dispute, and plaintiff Raney proffered no affidavits whatsoever on this agency or control issue in the past fourteen months.

Those issues of law, (1)-(6), all raised and discussed persistently by AWCC, were necessarily decided adversely by the Order of December 16, 1998, in denying the AWCC motion for summary judgment dismissing plaintiff Raney's claims.

Issues (1)-(6) appear to AWCC to be separable matters of law appealable as a matter of right under the collateral order doctrine. That is for the Eleventh Circuit ultimately to decide.

Out of an abundance of procedural caution however, AWCC and the Windles respectfully move this Court to certify under 28 USC §1292(b) that the Order of December 16, 1998, denying summary judgment to AWCC also "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation...." This case has national implications far beyond the individual facts of the dispute, and AWCC must appeal or persons convicted of violating buffer zone court injunctions can then proceed under FACE for damages in federal court, directly contradicting the state court injunction rulings.

RESPECTFULLY SUBMITTED:

Roy Lucas <signed>
DC # 153957
c/o PO Box 1433
Melbourne, FL 32902

Susan England
FL 0186018
2805 Lakeview
Fern Park, FL 32730

ATTORNEYS FOR DEFENDANTS AWCC & WINDLES

CERTIFICATE OF SERVICE

This Motion and Memorandum for Certification of Interlocutory Appeal, and Notice of Appeal have been served by first class mail this 24th day of December 1998 upon Mr Sapp, PO Box 1012, Lehigh Acres, FL 33970, and Mr Sift, PO Box 149022, Coral Gables, FL 33114-9022.

BY: Roy Lucas <signed>