PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CASE NO.: 97-1197-CIV-ORL-19B

MEREDITH T. RANEY, JR.,
Plaintiff,
v.
AWARE WOMAN CENTER FOR CHOICE, INC.,
a Florida corporation,
EDWARD W. WINDLE, JR., and
PATRICIA B. WINDLE,
Defendants.

MOTION TO ALTER OR AMEND JUDGMENT AND MOTION FOR RELIEF FROM JUDGMENT AND MEMORANDA IN SUPPORT OF EACH MOTION

MOTION TO ALTER OR AMEND JUDGMENT

Meredith T. Raney, Jr., the Plaintiff, by and through his undersigned attorney, hereby moves for alteration or amendment of the summary judgment signed on February 26, 1999 and entered in this Court on August 11, 1999, in support thereof saying:

1. This Motion is brought pursuant to Federal Rules of Civil Procedure, Rule 59(e) and is filed no later that ten days after entry of the Judgment.

2. There are several substantial reasons why the Summary Judgment entered against the Plaintiff should be altered or amended so that it is no longer a valid judgment or if it is continued as a valid judgment, then it is one in favor of the Plaintiff and against the Defendants; some of those reasons are as follows:

a) the standard for imposing liability on a business for police wrongdoing on or about its premises involves "procurement" and not "control".

b) even if "control" is the new standard for imposing liability on a business for police wrongdoing, Plaintiff showed that Defendants "controlled" the police wrongdoing.

c) alternatively, if "control" is the new standard for imposing liability on a business for police wrongdoing, its determination should have been left up to a jury.

d) justice required the addition of the City of Melbourne to the case as a Defendant rather than a dismissal of the action.

3. Plaintiff is entitled to have the summary judgment altered or amended as shown by this motion.

WHEREFORE, the Plaintiff moves for an order amending or altering the Summary Judgment dated February 26, 1999.

MEMORANDUM IN SUPPORT OF MOTION TO ALTER OR AMEND JUDGMENT

The Plaintiff submits the following Memorandum in support of the foregoing motion to alter or amend judgment, saying:

4. The Motion is brought pursuant to Rule 59 (e) which provides that any motion to alter or amend the judgment shall be filed no later than ten days after entry of the judgment, which in this case was accomplished on August 11, 1999.

5. This rule is based on the case of Boaz v. Mutual Life Ins. Co. of New York, C.C.A.8, 1944, 146 F.2d 321 where the trial judge reconsidered a decision made at trial:

On the reconsideration required by the defendant's motion, the Court was convinced that such decision was erroneous. The reasons set forth in its opinion for its final decision on the issue in favor of the defendant and for its dismissal of the case we hold to be sufficient. There being no fair probability or even claim on plaintiff's part that additional evidence could be furnished by plaintiff, there was neither error or abuse of discretion in terminating the lawsuit so far as the district court was concerned, by final dismissal.

6. The summary judgment of February 26, 1999 therefore should be reconsidered and amended. There are several substantial reasons to do so.

7. An important reason to change this judgment is the case of Gilbert v. Sears, Roebuck and Co., 899 F. Supp. 597 (MD.Fla. 1995) which is a prior case in the Middle District of Florida which approved the doctrine of Johnson v. Weiner, 155 Fla. 169, 19 So.2d 699 (1944) for imposing liability on a business for police wrongdoing on or about its premises. The legal standard is "procurement" which was admitted by the defendants in the initial stages of this case. Document 7, page 3. After time for discovery was over, the defendants tried to repudiate their previous admission which subjected them to liability under the "procurement" test. Additionally, the affidavits supplied by the plaintiff clearly showed that defendants had "procured" the F.A.C.E. violations. Documents 128, 129, 130.

8. Even if "control" is the new legal standard for determining liability of a business for police wrongdoing on or about its premises, the plaintiff clearly showed that the defendants "controlled" the police and the resulting F.A.C.E. violations. The police were stationed like guard dogs on a schedule specified by Defendants at their facility. The Court recognized that they were being paid by the defendants. There is a saying, "A dog doesn't bite the hand that feeds it." This would be true in this case: a policeman who did not chase pro-life counselors away from the abortion facility would soon find his money-dish empty.

9. Alternatively, if "control" is the new legal standard for determining liabilty of a business for police wrongdoing on or about its premises, then a jury should have been used to determine whether or not the city police could in fact serve two masters: the public or the abortion clinic.

10. Rule 19(a) provides:

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties...

Thus it is clear that the City of Melbourne should have been joined by the Court as a defendant in this cause rather than enter judgment dismissing the case. This requirement is echoed in Rule 21 where it states:

Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.

11. Justice required the addition of the City of Melbourne to the case rather than a dismissal of the action.

WHEREFORE, Plaintiff respectfully requests that the foregoing Motion to Alter or Amend the Judgment be granted.

MOTION FOR RELIEF FROM JUDGMENT

Meredith T. Raney, Jr., Plaintiff, hereby moves for relief from the Summary Judgment dated February 26, 1999 and entered in this Court on August 11, 1999, in support thereof saying:

1. This Motion is brought pursuant to Federal Rules of Civil Procedure, Rule 60(a) and 60(b) and is filed within a reasonable time after the entry of the aforesaid Summary Judgment.

2. There have been errors arising from oversight or omission which should be corrected by the Court. These include the following:

a) oversight of the standard for determining a business's liability for police wrongdoing about its premises according to the Gilbert - Johnson cases, supra, which is "procurement".
b) oversight in creation of two different legal standards in the Middle District to determine a business's liability for police wrongdoing about its premises: one for alleged homosexuals, i.e. "procurement"; the other for pro-life counselors, i.e. "control".
c) the clearly erroneous finding that police officers were not "controlled" by Defendants.

3. It is just to relieve the Plaintiff from the summary judgment signed on February 26, 1999 because after that date, the Defendants maintained their appeal claiming "immunity" based on their use of the police to remove Plaintiff from the facility.

4. Plaintiff is entitled to relief under both Rule 60(a) and Rule 60(b).

WHEREFORE, Meredith T. Raney, Jr. requests that the Court award him relief from the aforesaid summary judgment, which relief shall include the appropriate modification of the aforesaid judgment, voiding the judgment adverse to Plaintiff, and permitting him trial by jury on all issues so triable.

MEMORANDUM IN SUPPORT MOTION FOR RELIEF FROM JUDGMENT

The Plaintiff submits the following Memorandum In Support of the foregoing Motion For Relief From Judgment, saying:

5. This Motion is brought pursuant to Rule 60(a) and 60(b), which require that it be brought within a reasonable time after entry of the judgment.

6. Until February 26, 1999, the legal standard for determining the liability of a business for police wrongdoing on or about its premises was based on the Gilbert case, supra, which adopted the standard delineated in Johnson, supra, which is "procurement". Plaintiff respectfully suggests that the Court overlooked the Gilbert doctrine in its determination of this case.

7. Plaintiff further suggests that this oversight has resulted in two different legal doctrines in the Middle District for determining the liability of a business for police wrongdoing on or about its premises: one for alleged homosexuals who were targeted in a Sears store in Tampa and the other for pro-life counselors who were targeted by the Aware Woman clinic owners in Melbourne, Florida. Such unequal and unfair standards are contrary to various provisions of the United States Constitution.

8. Not only does the evidence show that Defendants "procured" the F.A.C.E. violations described in the Complaint, but also there is no good reason to believe that the Melbourne City Police were on patrol when they sat for hours on end in their portable guard shacks (otherwise known as police cars) watching the facility on behalf of the Defendants, in order to drag away prolife reproductive health service providers, such as the Plaintiff. Black's Law Dictionary, Sixth Edition, defines "procure":

To initiate a proceeding; to cause a thing to be done; to instigate; to contrive, bring about, effect, or cause. To persuade, induce, prevail upon, or cause a person to do something, page 1208.

Black's also defines "control":

To excercise restraining or directing influence over. To regulate; restrain; dominate; curb; to hold from action; overpower; counteract; govern, page 329.

Florida business owners have traditionally received special services and favorable treatment from the local police. The inducements have varied from out and out bribery to political influence. Some inducements are as subtle as discounts and "freebies" on goods and services. Generally, these "freebies are difficult to uncover as there is no paper trail and the recipients often worry about their failure to report this under-the-counter income. The same is true about cash payments. The end result is a system where business owners get what they want in the way of favorable, special treatment. Whether the pertinent verb is "control" or "procure", the defendants in this case got what they wanted, namely violations of Meredith T. Raney, Jr.'s rights under F.A.C.E.

9. The Defendants have maintained an appeal in the Circuit Court of Appeals, 11th Circuit, until its recent dismissal by the Court wherein they claimed immunity because the police were working for them. They should not now be allowed the benefits of claiming the opposite.

WHEREFORE, Plaintiff, Meredith T. Raney, Jr., respectfully requests that the foregoing Motion For Relief From Judgment be granted.

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 3.01(g)

The moving party has attempted to confer with the counsel for the opposing parties in a good faith effort to resolve the issues raised by the forgoing motions and was unable to speak with opposing counsel and so was unable to agree with him on the resolution of motions.

Respectfully submitted,
Christopher F. Sapp <signed>
Post Office Box 1012
Lehigh Acres, Florida 33970
(941 ) 368-3922
Florida Bar Number 0097823
and
Michael R. Hirsh
Hirsh & Heuser
125 Townpark Drive, Suite 300
Kennesaw, Georgia 30144
Attorneys for the Plaintiff

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a tree and correct copy of the foregoing has been furnished by U.S. Mail to Roy Lucas, Esquire, Post Office Box 1433, Melbourne, Florida 32902, Susan England, Esquire, 2805 Lakeview Drive, Fern Park, Florida 32730 and to Lawrence M. Sift, Esquire, O'Connor & Meyers, PA, 2801 Ponce de Leon Blvd., 9a Floor, (Coral Gables) Miami, Florida 33134 this 23rd day of August, 1999.

Christopher F. Sapp <signed>
Attorney