DEFENDANTS' OPPOSITION MEMORANDUM TO MOTION FOR JUDGMENT ON PLEADINGS

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANTS' OPPOSITION MEMORANDUM TO MOTION FOR JUDGMENT ON PLEADINGS

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NO 97-1197-CV-ORL- 19B

MEREDITH T RANEY, JR,
Plaintiff,
-versus-
AWARE WOMAN CENTER, et al,
Defendants.

OPPOSITION MEMORANDUM OF AWCC DEFENDANTS TO MOTION FOR JUDGMENT ON PLEADINGS

AWCC defendants respectfully submit this memorandum in opposition to the Motion for Judgment on the Pleadings received from plaintiff Raney on the 20th day of January, 1999.

STATUS OF CASE

This case is on appeal. This Court issued the Order appealed from on December 16, 1998. (Doc 100).

AWCC filed and served a timely Notice of Appeal Dec 29, 1998. The ongoing motion activity of plaintiff Raney is totally inappropriate, and out of line with proper federal practice.

JURISDICTION IN COURT OF APPEALS

AWCC has appealed the denial of summary judgment as a matter of right under 28 USC §1291 and the collateral order doctrine. A right of appeal exists here the same as in the qualified immunity and several other settings. If there is any shadow of doubt as to appellate jurisdiction, that is for the Court of Appeals to decide, not Mr Raney, and not this Court.

This issue is being briefed fully in the Court of Appeals. Supporting cases include: Behrens v Palletier, 516 US 299, 313 773 (1996)(qualified immunity appeal); accord, Mitchell v Forsyth, 472 US 511, 524-30 (1985); Abney v United States, 431 US 651, 662 (1977)(right not to go to trial in double jeopardy); Mastrotanni v Bowers, 160 F3d 671, 677 (11th Cir 1998)(appeal of denial of summary Judgment on qualified immunity grounds); Moniz v Ft Lauderdale, 145 F3d 1278, 1281 (11" Cir 1998)("the issue presented on appeal is ... purely legal question ... ).
A particularly apt precedent is Jones v Preuit & Mauldin, 808 F2d 1435, 1437 (11th Cir 1987)(private defendants in civil rights action entitled to qualified immunity).

The Raney Motion for Judgment on the Pleadings cites no cases, no authorities, and shows no awareness whatever of relevant appellate practice principles or precedent. It must be disapproved and denied.

EFFECT OF NOTICE OF APPEAL

The issues on appeal are nationally important and should be authoritatively decided at the highest level as soon as reasonably possible. They would dispose of this case entirely because AWCC incorporated its voluntarily dismissed counterclaims into a new, more comprehensive lawsuit. The right and immunity not to go to trial on a multiply frivolous legal claim is the core right asserted here. That is why an appeal of right lies under 28 USC §1291 and the collateral order doctrine. That immunity would be destroyed, not vindicated by a trial, the same as in the cases cited.

AWCC filed a notice of appeal on December 29, 1998.

It is well settled that the filing of a notice of appeal transfers all but ministerial jurisdiction to the Court of Appeals.

As Justice O'Connor stated in Marrese v AAOS:

"In general, filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal." 470 US 373, 379 (1985).

Judge Wisdom, then of this Circuit, noted the same in Local P-171 v Thompson Farms:

"The general rule is that the filing of a notice of appeal with the district court deprives that court of power to act further on the cause appealed from." 642 F2d 1065, 1073 (7th Cir 1981).

WRIGHT & MILLER and the massive authorities they cite only emphasize and develop the correctness of AWCC's position:

"[T]he case passes from the district court to the court of appeals immediately and automatically upon a timely filing of a notice of appeal."

16A WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE Ch 9A, §3949.1, at p46 (1996 ed).

Mr Raney and his counsel have cited no authority at all, as has too often been the case in this litigation.

It follows that this Court no longer has jurisdiction, but must await the outcome of the appeal. Reversal would all but end the case, and the Court would not be burdened with an unnecessary trial.

EFFECT OF REQUEST FOR CERTIFICATION

AWCC, before filing the notice of appeal, also filed a request for certification of the appeal under 28 USC §1292(b). That is common federal appellate practice when any doubt or side issue exists that could be clarified by such a certification.

Again, Justice O'Connor in Marrese v AAOS approved this procedure:

"[T]he pendency of the appeal from the contempt judgment did not prevent the District Court from certifying the denial of the motion to dismiss for immediate appeal under 1292(b)." 470 US 373, 379 (1985).

Accordingly, this Court may, and should, make the 1292(b) certification.
Again, plaintiff Mr Raney has cited no authority to the contrary, none at all.

FURTHER PROCEEDINGS HERE

The case management, scheduling, and trial setting are obviously suspended during the appeal. A trial would plainly contradict the subject matter of the appeal. A trial should never take place on the Raney claims, and AWCC is asking the Court of Appeals for such a determination on a number of solid legal grounds.

However, there are several important loose ends of a ministerial nature on which the Court should rule.

Plaintiff Raney has managed to elude discovery on numerous key matters for almost a year now. The Court should grant the pending motion to compel (Doc 93, filed 11/23/98), and bring that evasion to an end before any more discovery documents disappear. This must be done eventually, in this case, or in another of the three federal actions targeting Mr Raney for his harassing behavior. It would preserve important evidence, and not impact the appeal.

Further, this Court may properly grant the motion of AWCC for partial summary judgment against Sphere Drake [ Odyssey Re (Ltd) London. (Docs 77, 89, filed 9/15/98 & 11/16/98]. That is in all respects a separate and distinct matter, but of pressing importance. AWCC was abandoned by its insurer, left alone to defend this complex litigation with minimal resources.

CONCLUSIONS

For the reasons set out, this Court should deny the Motion for Judgment on the Pleadings filed by plaintiff-appellee Mr Raney, and discontinue any proceedings of substance during pendency of the appeal.

The Court should, however, rule on pending separate and ministerial matters under advisement, such as the AWCC motion to compel (Doc 93), and the insurance motions for partial summary judgment (Docs 77, 89).

RESPECTFULLY SUBMITTED:

Roy Lucas
c/o PO Box 1433
Melbourne, FL 32902-1433

Susan England
2805 Lakeview Drive
Fern Park, FL 32730-2007

ATTORNEYS FOR AWCC et al.

CERTIFICATE OF SERVICE: This Opposition Memorandum of AWCC Defendants to Motion for Judgment on the Pleadings has been served by First Class Mail, postage prepaid, sent by the undersigned this 27th day of January 1999 to Christopher Sapp, PO Box 1012, Lehigh Acres, FL 33970-1012, and Lawrence Sift, PO Box 14-9022, Coral Gables, FL 33134.

BY: Roy Lucas.