ORDER OF DISMISSAL

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
OCALA WOMEN'S CENTER V CITY OF OCALA
DOCKET / CHRONOLOGICAL FILE
ORDER OF DISMISSAL

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
CASE NO. 98-371-Civ-OC-10C

OCALA WOMEN'S CENTER, INC.,
a Florida corporation, and
JAMES S. PENDERGRAFT, M.D.,
on their own behalves and for the class of
patients, staff and associated physicians,
Plaintiffs,
-vs-
CITY OF OCALA, et al.
Defendants

ORDER OF DISMISSAL

This case is before the Court on Defendant Martin's motion to dismiss for lack of prosecution and to assess attorney's fees and costs (Doc. 101). Defendants Ken Ergle, Morrey Deen, Horace "Ed" Dean, and Marion County have filed notices (Docs. 102, 103, 110, 111) adopting Defendant Martin's motion to dismiss. The Plaintiffs have failed to file any response to the motion. For the reasons that follow, the Court agrees that this case has not been diligently prosecuted and should be Dismissed.

Plaintiffs initiated this action on December 10, 1998, alleging claims against the City of Ocala end Marion County under 42 U.S.C. §1983-1986 for alleged violations of the equal protection and due process clauses of the Fourteenth Amendment, and against all Defendants for invasions of state and federal privacy rights, negligent infliction of emotional distress, interference with business and professional relationships, and civil conspiracy. The complaint also asserted multiple violations of the Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. §248, by Defendants Martin and Raney, et al. Plaintiffs sought preliminary injunctive relief, and on April 27, 1999, after a hearing, the Court entered an order (Doc. 49) granting in part and denying in part the Plaintiffs' application for a preliminary injunction. The Court subsequently denied Plaintiffs' motions to reconsider (Doc. 59) and for further preliminary injunctive relief (Doc. 62); however, the Court permitted the Plaintiffs to file an Amended complaint (Doc. 70). The Plaintiffs then instituted interlocutory appeals (Docs. 63 & 80) from both orders under 28 U.S,C, §1292(a) and sought to have the action stayed in the District Court pending resolution of the appeals. By order entered August 31, 1999 (Doc. 82), the Court denied the motion for stay. The Plaintiffs then filed, under seal, a second motion seeking a stay of all discovery pending the appeals or "in the further alternative Plaintiffs' voluntary dismissal under Rule 41." By order dated October 21, 1999 (Doc. 100), the Court again found no basis to stay discovery and denied the motion. The Court also noted that it was then unclear whether the Plaintiffs intended to voluntarily dismiss the action at that time and stated that if "the Plaintiffs now wish to pursue voluntary dismissal under Rule 41, they are free to do so at any time by filing a separate notice or pleading which complies with the rule." The Plaintiffs did not thereafter file a notice of dismissal.

Subsequent to the filing of the amended complaint (Doc. 70), the Defendants filed numerous motions to dismiss, to strike, and to compel discovery. In particular, Defendant moved for sanctions (Docs. 89, 93, & 95) when Plaintiffs failed to produce Dr. James Pendergraft for a previously scheduled deposition on September 14, 1999. Prior to the deposition, Plaintiff took the view that extreme circumstances merited a stay of discovery, including postponement or cancellation of the deposition, irrespective of the fact that the District Court had previously denied their first motion to stay on August 31, 1999, In addition, following the filing of Plaintiffs' amended complaint, the following motions have been submitted: Defendant's Dean's motion to compel discovery (Doc. 71); Chief Morrey Dean and Sheriff Horace Dean's motions to strike Plaintiff's claim for punitive damages (Docs. 74 & 77); Defendant Dean's motions to dismiss (Doc. 76}; and to compel discovery and for sanctions (Doc. 79), adopted by Defendant Ergle (Doc, 94); Defendant Martin's motions to strike and to sever (Doe. 91) and to compel discovery and for sanctions (Doc. 95). In addition, on November 8, 1999, Defendant Martin filed a motion to dismiss for want of prosecution (Doc, 101). This motion has been adopted by Defendants Horace Dean, Morrey Dean, Ken Ergle, and Marion County. Plaintiffs have failed to respond to any of these motions, and the Court notes that with the exception of the motions to stay, the Plaintiffs have failed to take any action in this case since the filing of their amended complaint on August 4, 1999.

It thus appears that the Plaintiffs have abandoned this action, and that they intended, by the alternative prayer in their second motion for stay, that the action be voluntarily dismissed under Rule 41 if the stay was denied (as it was). Accordingly, this action is now dismissed without prejudice? Given such dismissal, the Defendants' claims for attorney's fees are severally Denied; provided, however, in the event this action, or one substantially similar to it, is subsequently reinstated by the Plaintiffs, the Defendants may renew the claims for attorney's fees as a condition to the maintainance of such action. The Clerk is directed to enter judgment to this effect.

IT IS SO ORDERED.

DONE and ORDERED in Ocala, Florida, this 16th day of December, 1999.

Wm Terrell Hodges (signed)
UNITED STATES DISTRICT JUDGE

Copy to counsel of record
Copy to the Hon. Timothy J. Corrigan