PLAINTIFF'S RESPONSE TO MOTION TO STRIKE

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
ROE V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
PLAINTIFF'S RESPONSE TO MOTION TO STRIKE

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CASE NO.: 99-850-CV-19-A

JANE ROE, II
Plaintiff,
v.
AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR.,
PATRICIA B. WINDLE and
WILLIAM P. EGHERMAN, M.D.,
Defendants

PLAINTIFF'S RESPONSE TO MOTION TO STRIKE

Jane Roe, II, Plaintiff, by and through her undersigned attorney, hereby responds to the Motion To Strike, saying:

1. The Plaintiff's Complaint contains statements which the Defendants apparently do not like and have moved to have these stricken from Plaintiff's Complaint claiming that they are redundant, immaterial, impertinent and scandalous.

2. There has been at least a partial waiver of this claim because it was not brought with the August 3, 1999 Motion To Dismiss. Rule 12(g), Federal Rules of Civil Procedure, provides:

If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereat, er make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.

None of the (h)(2) motions are motions to strike. Thus, the motion to strike was waived by at least one Defendant.

3. None of the statements referred to by Defendants are scandalous. Black's Law Dictionary, Sixth Edition, at page 1334, defines "scandal" as:

Defamatory reports or rumors; aspersion or slanderous talk, uttered recklessly or maliciously. Scandalous matter may be ordered stricken from the pleadings by a motion to strike. Fed.R.Civ.P. 12(f). See also Defamation.

The Florida case of Wolfson v. Kirk, 273 So.2d 774 (4 D.C.A., 1973), provides:

Defamation (libel and slander) may generally be defined as the unprivileged publication of false statements.., page 776.

Since there is nothing false about Plaintiff’s statements, the allegations are not scandalous.

Moreover, Black's (supra) defines "Abortion" as follows:

The spontaneous or artificially induced expulsion of an embryo or fetus. As used in legal context, usually refers to induced abortion, page 7. our emphasis.

It also defines "Abortionist" as "(o)ne who performs abortions." page 7. To the extent that any denial of these facts or any others in the Complaint are appropriate, then they should be brought in accord with the general rules of pleading, specifically Rule 8(b), Federal Rules of Civil Procedure.

4. The cited portions of the Complaint are all obviously material to the cause of action under F.A.C.E. The authority of Harrison v. Perea, 168 U.S. 311 (1897), utilized by the Defendants, states at page 319 "(a)ll matter not material to the suit is regarded as impertinent." Since the several offending portions of the Complaint are material to the cause of action, none of them should be stricken as impertinent.

5. Perhaps there are causes of action where the details provided by the present Plaintiff are unnecessary and so might be redundant. However, the Circuit Court of Appeals, Eleventh Circuit, has ruled in Oladeinde v. City of Birmingharn, 963 F.2d 1481 (11th Cir. 1992):

In pleading a section 1983 action, some factual detail is necessary, especially if we are able to see that the allegedly violated right was clearly established when the allegedly wrongfull acts occurred. We also stress that this heightened Rule 8 requirement - as the law of the circuit - must be applied by the district courts. . . page 1485.

Plaintiffs are thus required to plead with much greater factual detail when bringing federal civil rights actions. The details provided by Jane Roe, II, are necessary to meet this heightened standard and so are not unnecessary or redundant.

6. The materiality of the portions of the Complaint to which the Defendants object have been shown to have an essential relationship to the cause of action in accord with the Oladeinde case (supra), and also under White v. Florida Highway Patrol, 928 F.Supp. 1153 (M.D.FIa 1996). Thus, there is no reason to strike any of the pleading on account of it being immaterial.

7. Plaintiff has avoided the name-calling often seen in abortion cases where the doctor may be referred to as a "baby killer", or the abortion clinic called a "death camp". The nouns used are the appropriate ones provided by Black's Law Dictionary, Sixth Edition. The quotations and statements are meant to comply with pleading requirements in effect in this appellate circuit.

WHEREFORE, the Motion To Strike of August 13, 1999 should be denied.

Respectfully submitted,
Christopher F. Sapp <signed>
Post Office Box 1012
Lehigh Acres, Florida 33970
(941) 368-3922
Florida Bar Number 0097823
Attorney for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing was furnished to Richard E. Ramsey, Esquire, Post Office Box 2753, Orlando, Florida 32802-2753 and Andrew W. Menyhart, Esquire, Post Office Box 541760, Merritt Island, Florida 32954-1760 by U. S. Mail this 18^th day of August, 1999.

Christopher F. Sapp <signed>
Attorney