PLAINTIFF'S MOTION TO STRIKE

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V MELBOURNE
DOCKET / CHRONOLOGICAL FILE
PLAINTIFF'S MOTION TO STRIKE

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CASE NO. 99-416-CIV-ORL-19B

MEREDITH T. RANEY, JR.,
Plaintiff,
v.
CITY OF MELBOURNE, FLORIDA,
Defendant.

PLAINTIFF'S MOTION TO STRIKE INSUFFICIENT DEFENSES AND OTHER MATTER, PLAINTIFF'S MEMORANDUM IN SUPPORT OF HIS MOTION TO STRIKE, AND PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

MOTION TO STRIKE

Plaintiff, Meredith T. Raney, Jr., by and through his undersigned attorney, hereby moves this Honorable Court as follows:

1. Defendant on May 3, 1999 filed in this cause a Motion To Dismiss And Memorandum Of Law In Support Of Motion.

2. The aforesaid Motion is based on five specific defenses all of which are plainly insufficient.

3. The Defendant has attached a pleading as an exhibit to the Motion To Dismiss, which pleading has never been served.

4. Defendant has included such a host of misstatements of fact in the aforesaid Motion and Memorandum that the entire pleading should be stricken.

WHEREFORE, Meredith T. Raney, Jr., the Plaintiff, hereby requests that Defendant's Motion To Dismiss and Memorandum of Law In Support of Motion be stricken.

CERTIFICATE OF COMPLIANCE OF LOCAL RULE 3.01(g)

5. Meredith T. Raney, Jr., the Plaintiff, by and through his undersigned attorney, hereby certifies that there has been compliance with Local Rule 3.01(g) before filing the previous Motion To Strike.

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION TO STRIKE

Plaintiff, by and through his undersigned attorney, hereby submits this Memorandum In Support of the Motion To Strike, saying:

6. Federal Rule of Civil Procedure 12(f) provides that a pleading containing insufficient defenses or any redundant, immaterial, impertinent or scandalous matter may be stricken.

7. It is plain that the Defendant has reviewed the papers and pleadings filed to date in the companion case, Raney v. Aware Woman, U.S. District Court, Middle District of Florida, Orlando Division Case Number 97-1197-CV-ORL-19B, wherein the City of Melbourne learned that Meredith T. Raney, Jr. has standing to sue for F.A.C.E. violations and has obviously stated a cause of action.

8. The beginning and ending dates of the wrongful program engaged in by the City of Melbourne have been stated. This civil action was commenced long before the statute of limitations had run.

9. The ‘defense' stated in paragraphs number 2 and 3 of the Defendant's Motion To Dismiss is never grounds for dismissal according to Federal Rule of Civil Procedure 41(d) but is simply an occasion for a stay of the proceedings in order that the Defendant may recover costs incurred in a previous action for the same claim.

10. Additionally, the Defendant failed to attach any evidence that costs were actually incurred in another case; worse yet, the Defendant has failed or refused to provide the Plaintiff with any showing whatsoever as to the amount or nature of these costs as requested in the correspondence attached hereto as Exhibit A. Exhibit B hereto is the only response from Defendant to date on this matter.

11. Defendant's Motion To Dismiss is therefore void of any sufficient defense or grounds for dismissal of the Plaintiff's Complaint.

12. The Answer attached by Defendant to its Motion To Dismiss as Exhibit C was not served on Plaintiff as required by the Florida Rule of Civil Procedure 1.080 (b) and so is a sham and impertinent matter.

13. Defendant mis-characterizes this action and related matters, including the decision of this District Court in the Raney v. Aware Woman case, in its aforesaid Motion To Dismiss and Supporting Memorandum and so the entire matter should be stricken as scandalous and impertinent.

WHEREFORE, Plaintiff's Motion To Strike Insufficient Defenses And Other Matter should be granted for the reasons and authority herein recited. The granting of the Motion To Strike will render the following Memorandum moot.

MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

LEGAL BACKGROUND

14. The City of Melbourne, Florida utilized a private injunction to which it was not a party as an excuse to help the Aware Woman abortion clinic sell more abortions: the City stationed its armed policemen at the business to unlawfully prevent F.A.C.E.- protected pro-life assistance from reaching desperate pregnant mothers. The City has pretended that it had been ordered by the State court to threaten these persons, but the U.S. Court of Appeals, Eleventh Circuit, saw through this subterfuge in the case of McKusick v. City of Melbourne, Florida. 96 F. 3d 478 (11 Cir. 1996) where it wrote:

"As McKusick correctly points out, the injunction authorizes, but does not command, local law enforcement to arrest those persons who appear to be in violation of the injunction.

Reasonably construed, McKusick's complaint alleges that the City has developed an administrative construction of the injunction that causes it to arrest all antiabortion protestors found within the 36-foot buffer zone, not just parties named in the injunction or who are shown by probable cause to be acting in concert with those named parties. The City has as much as admitted placing such a construction on the injunction...

We agree with McKusick that the development and implementation of an administrative enforcement procedure, going beyond the terms of the injunction itself, leading to the arrest of all antiabortion protesters found within the buffer zone, including persons not named in the injunction nor shown by probable cause to be acting in concert with named parties, would amount to a cognizable policy choice." (our emphasis)

15. The charter for the City of Melbourne also failed to supply any authorization for the City's unlawful entry into the abortion business. Charter provision Sec. 3.11. requires the City police to enforce city ordinances and Federal and state laws. The Aware Woman private injunction is not one of these laws: it is not ordinance enacted by the City government, the state legislature, nor the United States Congress. In fact, the City was violating not only F.A.C.E. but its own charter when it stationed its police officers at Aware Woman to intimidate and threaten pro-life reproductive health service providers.

16. The United States Court of Appeals, Eleventh Circuit, has clearly promised federal protection to those pro-life persons whose rights have been violated by the City of Melbourne, when it wrote just before its conclusion in the McKusick case:

"We note that if McKusick should ever be wrongfully arrested or punished for the exercise of her First Amendment rights, she will have remedies through which to vindicate those rights."

Thus, it is plain that our U.S. Court of Appeals would allow Linda McKusick to successfully pursue a claim for damages had she entered the buffer zone as a pro-life reproductive health service provider protected under F.A.C.E.. Meredith T. Raney, Jr. stands in her legal shoes.

FIVE INSUFFICIENT GROUNDS

17. The Defendant raises five defenses in its Motion To Dismiss brought pursuant to Federal Rules of Civil Procedure 12. None of these grounds are sufficient for dismissal of the Complaint.

1. FAILURE TO STATE A CAUSE OF ACTION

18. This action is not one for false arrest. The Defendants would have the Court believe that the City is being sued for false arrest and that Plaintiff, by omitting allegations as to probable cause, has filed a defective complaint. Nowhere in the Complaint is there any claim for false arrest, nor are the actions or decisions of any police officer made as individuals called into question.

19. The United States Court of Appeals, Eleventh Circuit, has termed the City's stationing of police officers in the buffer zone as "a cognizable policy choice". McKusick, supra. It is this policy choice, namely, the City's decision to intentionally intimidate pro-life reproductive health service providers in an effort to prevent their providing F.A.C.E -. protected services, that is the basis for liability herein. It is not the individual officers who are accused of making bad decisions. It was the City government itself that has chosen to violate F.A.C.E. with its policy decision and subsequent actions in furtherance of that decision, by using its officers and their weapons for unlawful intimidation .

20. The elements of the civil wrongdoing required by 18 U.S.C. §248 have been alleged in the Complaint. Thus, the Plaintiff's Complaint states a cause of action against the City of Melbourne.

2. FAILURE TO PAY COSTS
and
3. FAILURE TO PAY COSTS

21. The appropriate rule of procedure permits a stay of some complaints when the cost of previous litigation has not been paid. This rule does not provide for dismissal of the Complaint in question. Federal Rule of Civil Procedure 41(d).

22. Additionally, Meredith T. Raney, Jr. has asked the Defendant what, if any, costs it is referring to in its Motion to Dismiss. He has not received an answer. Copies of the appropriate correspondence are attached as Exhibits A and B, respectively.

23. Both "cost" defenses of the Motion to Dismiss are predicated on the same theory. According to the Federal Rules of Civil Procedure, however, there should be no dismissal regardless of whether costs of any prior action have or have not been paid.

4. STANDING

24. The Defendant argues that reproductive health service providers are protected by F.A.C.E. only when they are pro-abortion and never when they are pro-life. In the case of United States v. Soderna, 82 F. 3d 1370 (7th Cir. 1996) this proposition was rejected for the Appellate Court ruled that Congress had been even-handed in enacting F.A.C.E. This is not a pro-abortion law but one which protects pro-life counselors equally well.

25. More recently, a United States District Judge stated in the Greenhut case:

"Now, for the first time, FACE is being invoked to penalize threats directed against a pro-life volunteer. Neither party questions the applicability of this statute to pro-life reproductive health service providers, ... and the court finds no reason to do so." Greenhut v. Hand, 996 F.Supp. 372 (D.N.J. 1998) at page 375.

Meredith T. Raney, Jr. is a reproductive health service provider with pro-life views. He has standing and protection under F.A.C.E..

5. STATUTE OF LIMITATIONS

26. Federal civil rights actions are subject to the statutes of limitations of the state in which suit is brought. Williams v. Hartje. 827 F.2d 1203 (8th Cir. 1987).

27. Here in Florida, continuing or repeated tortious acts are treated as follows:

"The general rule that the period of limitation for a suit for damages in tort runs from the date of the initial injury is subject to modification where the wrongful act is shown to be continuing or repeated. Where separate and successive actions would lie for the damages as they accrue, the statute of limitations as to such successive actions does not run from the date when the first wrong was suffered, but from the successive dates of the accrual of such damages." 35 Fla Jur 2d Limitations And Laches §62 at page 65.

Thus, the Complaint is not subject to a successful attack based on the Florida statutes of limitations.

CONCLUSION

28. Had the City of Melbourne decided to stake out vicious bull-dogs trained to attack only those who are pro-life instead of stationing well-armed City policemen in the facility, the legal result would have been exactly the same: violations of F.A.C.E.

WHEREFORE, the Plaintiff has shown that none of the five defenses stated in the Motion To Dismiss are sufficient and so the Motion To Dismiss must be denied.

Respectfully submitted,
Christopher F. Sapp <signed>
Post Office Box 1012
Lehigh Acres, Florida 33970
(941) 368-3922
Florida Bar No.: 0097823
Attorney for Plaintiff

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Lamar Oxford, Esquire, Post Office Box 2928, Orlando, Florida 32802 this 19th day of May, 1999.

Christopher F. Sapp <signed>
Attorney

Exhibit A

CHRISTOPHER F. SAPP
Attorney At Law Post Office Box 1012
Lehigh Acres, Florida 33970
(941) 368-3922

May 5, 1999

Lamar D. Oxford, Esquire
Post Office Box 2928
Orlando, Florida, 32802

Re: Raney v. City of Melbourne

Dear Mr. Oxford,

My personal check in the amount of $15.00 is enclosed. Please use these funds to accomplish the immediate transmittal by U.S. Express Mail of the following items:

1. A photocopy of the transmission report showing that a copy of the Answer of Defendant City of Melbourne in Case Number 97-3763-CA-X in the Circuit Court of Brevard County was sent to me by Facsimile on the 12th day of June, 1998, or any other date.

2. A photocopy of all items of "costs" which were paid by your client, the City of Melbourne, and which are referred to in Defendant's Motion To Dismiss And Memorandum Of Law In Support Of Motion (Dispositive) filed on May 3, 1999 in Case Number 99-416-CIV-ORL-19B, as referred to in paragraphs 2 and 3 of the first page.

3. A photocopy of that portion of the transcript of the deposition which corroborates your personal testimony as an officer of the Court on page 3 of the Motion described in the preceding paragraph of this letter.

In order that I can receive these photocopies in time to properly respond to your Motion, I am sending this letter by overnight, next-morning delivery. Please return the requested items tomorrow, so that I have them for review on Friday.

Thank you. I appreciate your prompt attention to this matter.

Sincerely,
Christopher F. Sapp <signed>

Exhibit B

Dean, Ringers, Morgan and Lawton
A Professional Association
ATTORNEYS AT LAW
Eola Park Central, Suite 1020
200 East Robinson Street
Post Office Box 2928
Orlando, Florida 32802
(407)422-4310
FAX (407)648-0233

May 6, 1999

FACSIMILE

Christopher F. Sapp, Esq.
P.O. Box 1012
Lehigh Acres, Florida 33970

Re: Meredith Raney v. City of Melbourne

Dear Mr. Sapp:

I am Mr. Oxford's legal assistant, and received your UPS letter today. Unfortunately, Mr. Oxford is out of the office until next week, so he will have to return and review this letter before responding.

I am certain he will agree to an extension of time for your Reply, if necessary. I am also sure he will respond shortly after his return, and I remain,

Very truly yours,

JAN L. SHELLARD
(Legal Assistant to Lamar D. Oxford)

P.S. I could not obtain your fax number.