DEFENDANT MARK HALL'S MEMO IN OPPOSITION TO MOTION TO AMEND 10/21/99 ORDER

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
AWARE WOMAN V RANEY
DOCKET / CHRONOLOGICAL FILE
DEFENDANT MARK HALL'S MEMO IN OPPOSITION TO MOTION TO AMEND 10/21/99 ORDER

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NO. 99-5-CV-ORL-19C

AWARE WOMAN CENTER
FOR CHOICE, INC., ET AL.,
Plaintiffs,
v.
MEREDITH T. RANEY, JR., ET AL.
Defendants.

DEFENDANT MARK HALL'S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS' MOTION TO ALTER OR AMEND ORDER OF OCTOBER 21, 1999

Plaintiffs move the Court, pursuant to Fed.R.Civ.P. 59(e), for an order reversing the October 21, 1999 award of costs and fees to Defendant Mark Hall.⁽¹⁾ The October 21 Order altered the Court's September 1, 1999 Order dismissing, without prejudice, all of Plaintiffs' claims against Defendant Hall. Thus Plaintiffs' motion is, in essence, a motion that the Court reconsider its previous reconsideration. Because Plaintiffs misunderstand the applicable law, fail to bring forth any cognizable reason for the Court to reverse itself, and continue to demonstrate a lackadaisical attitude toward the Local Rules of the Court,⁽²⁾ Plaintiffs' motion should be denied.

ARGUMENT

The Middle District of Florida is reticent to grant orders under Rule 59(e): A motion to alter or amend a judgment must demonstrate why the court should reconsider its prior decision and "set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." . . . This Court has recognized three (3) grounds justifying reconsideration of an order: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or manifest injustice.⁽³⁾ . . . However, this Court recognizes that reconsideration of a previous order is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.⁽⁴⁾

Wendy's International, Inc., et al. v. Nu-Cape Construction, Inc., 169 F.R.D. 680, 684-85 (M.D. Fla., 1996)(emphasis added, citations omitted). "A motion to alter or amend a judgment is not appropriately used to advance arguments or theories that could and should have been made before the district court rendered a judgment, or to present evidence that was available earlier." Manning v. School Bd. of Hillsborough County, 28 F.Supp.2d 1353, 1355, n.1 (M.D.Fla.1998)(emphasis added).⁽⁵⁾ "For reasons of policy, courts and litigants cannot be repeatedly called upon to backtrack through the paths of litigation which are often laced with close questions. There is a badge of dependability necessary to advance the case to the next stage." Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D.Fla.1994)(denying Rule 59(e) motion for reconsideration)(emphasis added).

It must be noted that none of the above weighty reasons for reconsideration included a viable explanation as to why one of three attorneys could not find the time to either respond to Defendant Hall's motion, or, if hardship was truly evident, file a motion for extension of time in which to respond to Defendant Hall's motion. Rule 59(e) simply does not codify "Mulligans." See Sequa Corp. v. GBJ Corp.,156 F.3d 136, 144 (2d Cir.1998)("[i]t is well-settled that Rule 59 is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a 'second bite at the apple'--and we in no way depart from that basic principle"). Neither is Rule 59(e) a font of "Mulligans," allowing attorneys to "fiddle while Rome burns," and then simply rewind the proceedings to the tune of "play it again, Sam." See Vasapolli v. Rostoff, 39 F.3d 27, 36 (1^st Cir.1994).

1. Plaintiffs advance no arguments save those already presented to the Court, and/or those theories that could and should have been made before the district court rendered a judgment.

Plaintiffs advance five reasons for reconsideration of the order amending the previous dismissal of Plaintiffs' claims. The initial reason proffered is Attorney Lucas' apology for not responding to Defendant Hall's motion. Yet Plaintiffs' counsel does not aver that they were without knowledge of Defendant Hall's motion, only that Attorney Lucas, an out-of-state practitioner, was busy with rehabilitation, relocation and dodging numerous hurricanes. But see Affidavit of Attorney Brown, ¶10. No excuse is forthcoming from Florida attorneys Ross and England, who are charged with responsibility "for the progress of the case," Local Rule 2.02(a)(1), and who were not only copied on Defendant Hall's motion, but also received a phone call prior to the filing, in keeping with Local Rule 3.10(g). See Defendant Hall's Motion Seeking Reconsideration, pages 5 and 6.⁽⁶⁾

Plaintiffs also wrongly argue (see footnote 1) that the Court should reconsider, and repudiate, its October 21, 1999 Order because Plaintiffs' case-in-chief was overwhelmingly meritorious. See, e.g., Motion to Alter, p.2 ("highly substantial," encompassing "a great deal of law," revolving around "a mountain of facts," a "quite solid claim"); id., p.3 ("substantial claims"); id., p.4 ("meritorious lawsuit"). The factual allegations advanced in support of the dismissed lawsuit are not supported by freshly-tendered affidavits, but instead merely paraphrase, without reference to the record, the affidavits (many subject to motions to strike) and wild allegations of counsel previously filed, before the Court dismissed Plaintiffs' case for lack of prosecution on September 1, 1999.⁽⁷⁾ As such, Plaintiffs not only fail to bring forth new evidence, they clearly seek to move the Court to reconsider its previous reconsideration, improperly based upon a "rehashing [of] arguments already rejected by the court" or arguments "refuting the court's [September 1, 1999] decision." Wendy's, 169 F.R.D. at 686.

As for law, Plaintiffs cite little that is on point and supported by the pleadings against Mr. Hall, and none that has been decided since September 1 or October 21, 1999.⁽⁸⁾ No law is cited which fairly meets, let alone refutes, the cases relied upon by the Court. (Chambers v. NASCO, Inc., 501 U.S. 32, 44-46 (1991), Read Corp. v. Bibco Equip. Co., 145 F.R.D. 288, 290 (D.N.H.1993), Puerto Rico Maritime Shipping Auth. v. Leith, 668 F.2d 46, 51 (1^st Cir.1981)). Plaintiffs not only fail to document an intervening change in controlling law, but are found advancing no legal claims save those which they had previously marched forth.

Thus Plaintiffs' motion for reconsideration contains nothing new, but instead "advance[s] arguments or theories that could and should have been made before the district court rendered a judgment." Wendy's, 169 F.R.D. at 686 (emphasis added). Plaintiffs, therefore, in petitioning the Court to reconsider its previous reconsideration, are swimming against the tide of judicial policy, requesting the Court to "backtrack through the paths of litigation," in a manner threatening the very "badge of dependability" undergirding judicial decorum and order. See Sussman, 153 F.R.D. at 694.

2. Plaintiffs err in positing that public interest law firms are exempt from the benefits of court-ordered fee shifting, and that defunct abortion clinics and allegedly impoverished former abortion clinic owners should be exempt from the payment of court-ordered fees.

Having put forth no viable argument based upon new law or previously undisclosed facts, Plaintiffs argue, in essence, that a manifest injustice flows out of the Court's October 21, 1999 Order. This injustice, in the form of "substantial hardship," is visited upon AWCC and the Windles (since their business is no longer operational), arising out of the October 21 Order that monies be paid to Mr. Hall's attorneys, who work for a "religious non-profit entity . . . . enigmatically named [the] American Family Association." Plaintiffs' Motion to Reconsider, p.3.

Plaintiffs' novel legal theory, that because Mark Hall was represented by a "religious non-profit entity" Plaintiffs should be excused from the fee-shifting sting of Fed.R.Civ.P. 41(a)(2) and/or Local Rule 3.10, is in error. Plaintiffs' attempt to cause the American Family Association to bear all of the burden for Plaintiffs' "vexatious" litigation practices,⁽⁹⁾ just because the AFA is a public interest law firm, does not square with law or equity.⁽¹⁰⁾ The Supreme Court has awarded fees to entities similar to the American Family Association Center for Law and Policy. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 729, n.10, 97 L.Ed.2d 585, 107 S.Ct. 3078 (1987)(discussing limitations set by I.R.S. on such awards); see also id., 483 U.S. at 734, 107 S.Ct. at 3091 (Blackmun, Brennan, Marshall, Stevens, JJ., dissenting)(noting that "[i]n [a previous ruling], this Court made clear that nonprofit legal-aid organizations should receive no less in fee awards than the hourly rate set by the private market for an attorney's services"); see also id., 483 U.S. at 744, n.8, 107 S.Ct. at 3096, n.8 ("[a]cceptance of statutory fee awards within limits, however, does not jeopardize [I.R.S.] status"); see also Blum v. Stenson, 465 U.S. 886, 894 104 S.Ct. 1541, 1547 (1984)( "'In determining the amount of fees to be awarded, it is not legally relevant that plaintiffs' counsel ... are employed by ... a privately funded non-profit public interest law firm'" (quoting Davis v. County of Los Angeles, 1974 WL 180 (C.D.Cal. 1974))).

Plaintiffs' plea that they pay none of the cost of defending Mr. Hall due to the identity and corporate structure of his counsel is an argument devoid of legal foundation, and one that would give cause for a challenge under the First Amendment and Equal Protection doctrine if adopted by the Court. Beyond this, Plaintiffs' theory crassly devolves into the following: As long as the target of frivolous and/or vexatious litigation is represented by a religious non-profit entity, the attorneys and plaintiffs are insulated from any responsibility for their litigation tactics under 42 U.S.C. § 1988, 28 U.S.C. § 1927, Fed.R.Civ.P. 11, or the inherent power of the court. Thus Plaintiffs move the Court to declare "open season" on all clients of religious non-profit public interest law firms! The law can never countenance such folly.

Plaintiffs further plea that AWCC and the Windles should be exempt, due to their line of work, unproven allegations against Mr. Hall, and allegedly impoverished circumstances, from the fee-shifting provisions that are generally applicable to all other litigants, raising yet more Equal Protection concerns. No argument is advanced that Plaintiffs Tiffany, Don and Grandfather Poe, the Does, or even Plaintiffs' counsel should be exempt from the payment of Mr. Hall's costs and fees. Neither do Plaintiffs explain why the laws of due process, homestead, incorporation and bankruptcy fail to offer Plaintiffs AWCC and the Windles sufficient respite from the specter of any unjustified payment of Hall's costs and fees. Nor do Plaintiffs submit affidavits documenting the allegedly impoverished state of the subclass of Plaintiffs seeking protection (i.e., the Plaintiffs who recently sold a business to the State of Florida for almost a quarter of a million dollars ($242,500)).⁽¹¹⁾ Instead Plaintiffs plea for mercy, a mercy that they were not planning to extend to Mr. Hall. See Plaintiffs Complaint (demanding compensatory, statutory, treble, and punitive damages, the forfeiture of real and personal properties, a court order that Defendant Hall work to pay off damages and judgment debts (i.e., involuntary servanthood), preliminary and permanent injunctive relief, and payment of all reasonable and necessary litigation expenses). See also footnote 10.

Plaintiffs set forth no argument of manifest injustice of a strongly convincing nature, and thus should not induce the Court to abandon its October 21 Order.

3. Precedent binding upon the Court and directly on point recommends that the fee-shifting order stand as decreed.

The Middle District of Florida has published many opinions applying Rule 59(e). Other courts have addressed Rule 59(e) under factual situations quite similar to that at bar.⁽¹²⁾ Sussman v. Salem, Saxon & Nielsen, P.A, 153 F.R.D. 689 (M.D.Fla., 1994) should prove dispositive to Plaintiffs' motion for reconsideration of the Court's previous reconsideration. The Sussman defendants petitioned the court to reconsider its ruling on summary judgment. The court noted that the defendants failed to bring forth any new facts advising the court as to why it should have ruled differently, and chided the defendants for not seeking continuances if more time was needed. Id. at 694. The court then noted that defendants failed to report any intervening change in controlling law, or bring forth any viable argument that reconsideration was "imperative to correct a clear error." Id. at 695. Judge Kovachevich therefore denied the motion for reconsideration:It seems that Defendants adopted a wait-and-see attitude. . . . [But] [a]fter a judgment has been entered, the interest in finality may be deemed 'compelling.' Union Planters Nat'l Leasing v. Woods, 687 F.2d 117, 121 (5th Cir.1982), quoting Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 598 n. 2 (5th Cir.1981). 'A busy district court need not allow itself to be imposed upon by the presentation of theories seriatim.' Id., quoting Freeman v. Continental Gin Co., 381 F.2d 459, 469 (5th Cir.1967).

153 F.R.D. at 695.

Because Plaintiffs at bar have failed to support their motion for reconsideration with any applicable law, or a presentation of clear judicial error, or manifest injustice, or facts supporting anything other than the conclusion that Plaintiff had "adopted a wait-and-see attitude" as to the outcome of Defendant Hall's previous motion for reconsideration of the motion for dismissal, Plaintiffs' motion asking the court to reconsider its previous reconsideration should, in keeping with the established law of the Middle District, be denied as nothing more than the desire to take a forbidden "second bite at the apple."

Conclusion

The Court's October 21, 1999 order should not be abolished, altered or amended. Plaintiffs' motion for reconsideration should be denied, with costs and fees for the filing of this response taxed against Plaintiffs.

Respectfully submitted,
Brian Fahling, Trial counsel WA Bar #18894
Bryan J. Brown KS Bar #17634
Stephen Crampton NM Bar #3744
Michael J. DePrimo CT Bar #402211
AMERICAN FAMILY ASSOCIATION CENTER FOR LAW & POLICY
100 Parkgate Drive
P.O. Drawer 2440
Tupelo, MS 38803
(601) 680-3886
FAX (601) 844-4234

Heidi Wolff Isenhardt FL Bar # 0123714,
2344 Temple Drive
Winterpark, FL 32789
(407) 657-8277
Attorneys for Defendant Hall

CERTIFICATE OF SERVICE

This will certify that the undersigned defense attorney has this date caused to be delivered, in keeping with the Federal Rules of Civil Procedure, a true and correct copy of the foregoing to counsel of record listed below:

Plaintiffs' Counsel:
Roy Lucas, Esq.
c/o P.O. Box 1433
Melbourne, FL 32902-1433
Phone: 407/725-2413
Fax: 407/725-3847

Scott R. Rost, Esq.
228 Park Ave. North
Winter Park, FL 32789
Phone: 407/539-1140
Fax: 407/539-1126

Susan England, Esq.
2805 Lakeview Drive
Fern Park, FL 32730
Phone: 407/339-4600
Fax: 407/331-3006

Defendants' Counsel:
William P. Donovan, Jr., Esq.
MCI Communications Corporation
Associate Litigation Counsel
1133 19^th St., NW
Washington, DC 20036
Phone: 202/736-6000
Fax: 202/
(for CompuServe, Inc.)

Patrick Carome, Esq.
Wilmer-Cutler-Pickering
2445 M St., NW
Washington, DC 20037-1420
Phone: 202/663-6000
Fax: 202/
(For AOL, Inc.)

Frederick Nelson, Esq.
P. O. Box 547503
Orlando, FL 32854-7503
Phone: 407/786-7007
Fax: 407/786-2705
(for Meredith Raney, Wm & Allen LeStourgeon, John "Jay" Rogers, Anne Blackburn, Luther Laite, III, Pat McEwen, Dolly Edwards, Richard Dean, Cheryl Palmer, Allen & Norma Munroe, defendants)

Sean Doherty, CEO
TML Information Services, Inc.
P. O. Box 907
Forest Hills, NY 11375
THIS 3rd day of November 1999.

Bryan Brown
Attorney for Defendant.

EXHIBIT A

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NO. 99-5-CV-ORL-19C

AWARE WOMAN CENTER
FOR CHOICE, INC., ET AL.,
Plaintiffs,
v.
MEREDITH T. RANEY, JR., ET AL.
Defendants.

ATTORNEY BROWN'S AFFIDAVIT

Attorney Bryan J. Brown does depose and state under oath, cognizant of the penalty of perjury, that all of the foregoing averments are true:

1. I am over the age of eighteen and subject to no legal impediments in placing this testimony before the court.

2. I attempted to place a call to opposing counsel, in keeping with the duties placed upon moving counsel by Local Rule 3.01(g), on September 14, 1999.

3. I was unable to reach Attorney Lucas in person via telephone in order to confer on the motion.

4. No one answered my call to Attorney England's office. I left a message regarding the motion upon Attorney England's answering machine, requesting a timely return call.

5. Attorney Ross' office was staffed by only one person, a female who was charged with answering the phone. I left a message with her for Attorney Ross, requesting a return call.

6. Attorney Ross returned my call on or about September 16, 1999, after I had sent Mark Hall's motion for reconsideration to the Court. I informed him of the unavailability of Attorney Lucas, and the need for he or Attorney England, in the absence of Attorney Lucas, to discuss the potential settlement of legal costs and fees pursuant to Fed.R.Civ.P. 41. Attorney Ross replied that he was not involved in the case in any level of detail, and would defer such a discussion to Attorney England.

7. To the best of my knowledge, Attorney England did not return my September 14, 1999 call. The phones at the office of the Center for Law & Policy have been staffed during all office hours, and when not staffed tended by answering machines, in the fall of 1999.

8. Defendant Mark Hall's Motion Seeking Reconsideration of the September 1, 1999 Order was placed in the U.S. mails, with first class postage, to Attorneys Lucas, England and Ross on September 15, 1999.

9. No one at the office of the Center for Law & Policy received a call, letter, message or any such communication in keeping with the conferencing demands of Local Rule 3.01(g) prior to the filing of Plaintiffs' most recent motion for reconsideration of the October 21, 1999 Order.

10. On November 3, 1999, I called the Brevard County Clerk's office at 407/259-1211. Irmala informed me that Hurricane Floyd had caused the Brevard County Courts to be closed for one-half day on September 13, and for the full days of September 14 and 15. Irmala reported that no other hurricanes have caused the Brevard County Courts to close in the fall of 1999.

Under penalties of perjury, I declare that I have read the foregoing motion and that the facts recounted in paragraphs 1-10 are true.

Bryan Brown

SWORN TO and subscribed before me this the 3rd day of November, 1999.

NOTARY PUBLIC

My Commission expires:

FOOTNOTES

1. Plaintiffs do not advance their Rule 59(e) motion to reconsider the substantive order of September 1, 1999. This they cannot do, for such an attack upon the Court's dismissal the substantive issues would be belated, and thus of no effect. See Wendy's International, Inc., et al. v. Nu-Cape Construction, Inc., 169 F.R.D. 680, 685 (M.D. Fla., 1996). Yet Plaintiffs still, under the guise of an attack upon the October 21, 1999 Order, strike at the September 1, 1999 Order. See, e.g., footnotes 7 & 8, and accompanying text, infra.

2. Defendant Hall, in section IV of his response to Plaintiffs' unsuccessful application for stay (filed August 27, 1999), put Plaintiffs' counsel on notice as to the need to file the proper representation documents pursuant to Local Rule 2.02, and to abide by the "meet and confer" demands of Local Rule 3.01(g). Attorney Lucas has once again moved the Court, without either satisfying the special admission requirements of Local Rule 2.02(a)(1), or filing certification documenting any attempts to confer, in keeping with Local Rule 3.01(g). No such conference took place prior to Plaintiffs' filing of the motion at bar. What differs in the latest motion is that Plaintiffs are down one Florida attorney, as that Scott R. Rost, whose name had appeared on all preceeding pleadings, does not move the Court pursuant to Fed.R.Civ.P. 59(e). Thus only Susan England joins Attorney Lucas in the apparent and ongoing violation of the Rules of the United States District Court for the Middle District of Florida.

3. But see Ware v. United States, 1994 WL 34173 (M.D.Fla.1994)(listing only a change in the law, or the facts upon which a decision is based, as justification to reconsider a previous order).

4. "[R]econsideration of a judgment after its entry in an extraordinary remedy which should be used sparingly. . . . . [B]ecause of the narrow purposes for which they are intended, Rule 59(e) motions are typically denied." Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2810.1.

5. Rule 59(e) "cannot be considered a vehicle for raising issues or citing authorities the party could or should have presented prior to the court's ruling. In addition, it is not a vehicle for rehashing arguments already rejected by the court or for refuting the court's prior decision."

Wendy's, 169 F.R.D. at 686(citing In re Williams, 188 B.R. 721 (Bkrtcy.D.R.I.1995)).

6. Attorney Ross returned the voice mail message to Attorney Brown a few days after the same was left at his office, stating that he had no opinion on the present litigation, deferring to Attorneys England and Lucas as to strategy. See Affidavit of Attorney Brown, attached as Exhibit A.

7. Many of these unsubstantiated accusations are contained in Plaintiffs' Complaint, which Plaintiffs' incorrectly label as "verified" in their motion. See Motion to Reconsider, p.4.

8. Plaintiffs also misrepresent the September 1, 1999 Order, coloring it as the stay which Plaintiffs had requested rather than the dismissal order that it was. Compare Plaintiffs' Motion to Alter, page 1 ("the action was dismissed without prejudice, pending the outcome of the Supreme Court decision in Reno v. Condon") with September 1, 1999 Order ("The court finds that the present case should be dismissed without prejudice for failure to prosecute pursuant to Local Rule 3.10. . . . [P]lantiffs have been delinquent in prosecuting this case. . . . [A]ll pending motions . . . are DENIED as moot.") with October 21, 1999 Order ("the Court finds that the plaintiffs' failure to prosecute this case, as outlined in this Court's September 1, 1999 order, imposed a significant cost upon Mr. Hall and constitutes vexatious conduct sufficient to warrant an award of costs and attorneys fees").

9. See October 21, 1999 Order.

10. Equity's scales clearly tip toward the granting of legal fees to Defendant Hall for the very reason that Plaintiffs' boldly proclaim, in the conclusion of their motion for reconsideration, that "[i]f 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." Motion to Alter, p.4. The AFA entered this litigation with the potential of being "hit" with costs and fees against our client pursuant to 42 U.S.C. § 1988, against counsel under 28 U.S.C. § 1927, or against either incident to the inherent power of the Court. See, e.g., Avirgan v. Hull, 932 F.2d 1572, 1582-83 (11^th Cir.1991)("Status as a public interest law firm. . . does not confer immunity from attorneys' fees for bringing and maintaining frivolous lawsuits."). As is taught in kindergarten, 'What is good for the goose is good for the gander.' In other words, by giving voice to their own litigation endgoal, they deliver the equitable argument that Plaintiffs should pay Defendant's reasonable costs and fees.

11. See exhibit B of Defendant Mark Hall's previously filed Response to Application . . . for Stay.

12. See, e.g., Yoffe v. Keller, 582 F.2d 982, 984 (5^th Cir.1978), which well supports the Court's award of costs and fees to Defendant Hall. The reality of litigation is that plaintiffs who seemingly care not for the amount of the fees that they ring up 'on the other side' through the advancing (and in this case abandoning) of hollow and meaningless arguments sometimes get caught 'holding the bag.' Such is the real danger of using litigation as a harassment tactic in the federal court system, and such must be the cost, if the federal system is to preserve proper respect among members of the bar. See also Hutchinson v. Staton, 994 F.2d 1076,1081-82 (4^th Cir.1993)(fee awards which are "factually supported and legally justified" should not be overturned pursuant the a Rule 59(e) motion which does nothing more than disagree with the court's ultimate conclusions).