ORDER

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
ORDER

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

MEREDITH T. RANEY, JR.,
Plaintiff,
v.
AWARE WOMAN CENTER FOR
CHOICE, INC., a Florida
corporation, EDWARD W. WINDLE, JR., and PATRICIA
B. WINDLE,
Defendants,

AWARE WOMAN CENTER FOR
CHOICE, INC., a Florida
Corporation, EDWARD WINDLE,
and PATRICIA BAIRD-WINDLE, Citizens of Florida,
Third-Party Plaintiffs,
v.
SPHERE DRAKE INSURANCE
COMPANY PLC., and WESTCO
CLAIMS MANAGEMENT SERVICES,
INC., FOREIGN BUSINESS ENTITIES,
Third-Party Defendants.

ORDER

This cause came before the Court on the following matters:

1) The Court's Notice to both parties that it is considering sua sponte whether summary judgment should be granted for the Defendants on the Plaintiff's Complaint (Doc. No. 121, filed February 1, 1999); AWCC Memorandum in Further Support of Motion for Summary Judgment (Doc. No. 122, filed February 8, 1999); Plaintiff's Memorandum Requested by the District Judge in that Order Dated February 1, 1999 (Doc. No. 128, filed February 22, 1999).

2) Defendants' Application for Stay (Doc. No. 126, filed February 18, 1999) and Plaintiff's Response to Defendants' Application for Stay (Doc. No. 134, filed February 25, 1999).

3) Motion for Judgment on the Pleadings in Favor of the Plaintiff with Memorandum in Support Thereof (Doc. No. 116, filed January 15, 1999) and Opposition Memorandum of AWCC Defendants to Motion for Judgment on Pleadings (Doc. No. 120, filed January 28, 1999).

4) Additional Motion for Judgment on the Pleadings in Favor of the Plaintiff Together with Memorandum in Support Thereof (Doc. No. 118, filed January 20, 1999).

5) Objections to the Filing or Use of the "Deposition" of Keith Chandler and the "Deposition" of S.W. Smith (Doc. No. 132, filed February 23, 1999).

6) Third-Party Defendants' Dispositive Motion to Dismiss Third-Party Complaint (Doc. No. 91, filed November 18, 1998) and AWCC Opposition to Sphere Drake/Odyssey Motions to Dismiss Third Party Complaint and to Vacate Milburn Order (Doc. No. 96, filed December 9, 1998).

7) Third-Party Defendants' Motion to Vacate or for Relief from Order of September 16, 1998 (Doc. No. 92, filed November 18, 1998) and AWCC Opposition to Sphere Drake/Odyssey Motions to Dismiss Third Party Complaint and to Vacate Milburn Order (Doc. No. 96, filed December 9, 1998).

8) AWCC Insured Motion for Partial Summary Judgment on Obligation of Insurers to Cover and Indemnify, and Prima Facie Showing of Insurer bad Faith - Dispositive Motion as to Law of Case on Liability of Insurers (Doc. No. 77, filed September 15, 1998); Suggestion of Default by Insurance Third Party Defendants as to Motion of AWCC for Partial Summary Judgment (Doc. No. 89, filed November 16, 1998); and AWCC Opposition to Sphere Drake/Odyssey Motions to Dismiss Third Party Complaint and to Vacate Milburn Order (Doc. No. 96, filed December 9, 1998).

9) Plaintiff's Motion to Conduct Limited Discovery (Doc. No. 135, filed February 25, 1999) and Plaintiff's Memorandum in Support of Motion to Conduct Limited Discovery (Doc. No. 136, filed February 25, 1999).

10) Plaintiff's Motion in Limine and Memorandum in Support (Doc. No. 137, filed February 25, 1999).

11) Plaintiff's Renewed Motion for Judgment on the Pleadings and Memorandum in Support (Doc. No. 138, filed February 25, 1999).

BACKGROUND

Plaintiff Meredith T. Raney, Jr., has brought this suit against Defendants Aware Woman Center For Choice, Inc. ("Aware Woman Center"), Edward W. Windle, Jr., and Patricia B. Windle for violation of the Freedom of Access to Clinic Entrances Act of 1994 ("FACE"), 18 U.S.C. § 248. Plaintiff asserts that he was unlawfully interfered with, threatened, and physically prevented from providing reproductive health services at a facility performing such services by the Melbourne City Police, who were allegedly acting as Defendants' agents. On three separate occasions Plaintiff contends that he was physically removed from the reproductive health services facility after having been threatened and intimidated by Melbourne City Police.

A. Summary Judgment

In the Court's February 1, 1999 Order, the Court notified both parties that it was considering sua sponte whether to grant summary judgment for the Defendants on the issue of whether the police were acting as agents for the Defendants when the Plaintiff was arrested. See Massey v. Conqressional Life Ins. Co., 116 F.3d 1414, 1417 (11th Cir. 1997). The Court instructed the Defendants to file a brief and any supporting evidence with respect to the Court's sua sponte consideration of summary judgment by February 10, 1999. The Court instructed the Plaintiff to file a brief and any supporting evidence in response by February 22, 1999. Both parties have filed such briefs and supporting evidence.

Before determining whether to grant summary judgment, the Court first considers whether it has jurisdiction to consider this issue because the Defendants appealed the Court's December 16, 1999 Order under the collateral order doctrine. After a careful analysis, the Court determines that it does have such jurisdiction. However, in an abundance of caution, the Court will defer entering judgment on this order until after the interlocutory appeal is concluded.

It appears that the Court has jurisdiction because a district court retains jurisdiction where a party appeals a non-appealable order. See e.q. United States v. Hitchmon, 602 F.2d 689, 694 (5th Cir. 1979) ("[w]e are persuaded that filing a notice of appeal from a nonappealable order should not divest the district court of jurisdiction"). In this case, it appears that the December 16, 1999 Order was a non-appealable order. The December 16, 1999 Order considered whether the Defendants' Motion for Summary Judgment should be granted based on Younger abstention grounds or the Rooker-Feldman doctrine. Appellate courts have declined to exercise jurisdiction under the collateral order doctrine for appeals of district court orders that involved these issues. See Bryant v. Sylvester, 57 F.3d 308, 316 (3d Cir.1995), vacated on other grounds, 516 U.S. 1105 (1996) (holding that denial of motion to dismiss on Rooker-Feldman grounds is not immediately appealable under the collateral order doctrine); Confederated Salish v. Simonich, 29 F.3d 1398 (9th Cir. 1994) (holding that an order denying a motion to abstain under the Younger abstention grounds was not immediately appealable under the collateral order doctrine); Coleman by Lee v. Stanziani, 735 F.2d 118, 119-20 (3d Cir.1984) (holding that the denial of a motion to dismiss on Younger abstention grounds was not immediately appealable under the collateral order doctrine). (Footnote 1)

Accordingly, the Court now examines whether it should grant summary judgment for the Defendants. In his Complaint, the Plaintiff alleges that the Defendants violated 18 U.S.C. § 248 when he "was unlawfully interfered with, threatened, and physically prevented from providing reproductive health services by the Melbourne City Police who, as agents of and taking direction from the Defendants, threatened Plaintiff with physical removal from the facility and then physically took Plaintiff away from the facility." (Doc. No. 1 at ¶ 15, filed October 1, 1997). Because the record does not reflect any colorable evidence that the Melbourne City Police were acting as agents of the Defendants, the Court finds that summary judgment is warranted.

In order to establish the existence of an agency relationship, the record must reflect some evidence that the alleged principal had the right to control the behavior of the alleged agent. See Restatement (Second) of Agency § 1 (1958) ("[a]gency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act"); see also General Building Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 392 (1982); State v. American Tobacco Co., 707 So.2d 851, 854 (Fla. Dist. Ct. App. 1998). Based on this requirement, a number of courts have held that police officers were not agents of defendants as a matter of law where the record did not reflect evidence that the defendants controlled the actions of the police officers. See Johnston v. Warren County Fair Ass'n, Inc., 110 F.3d 36, 38 (8th Cir. 1996) (finding that police officers were not agents of the defendant where the plaintiff did not contend that the defendant hired the police department to perform security work and where the plaintiff did not offer evidence that the defendant's actually controlled the police officers); McGeorqe v. Continental Airlines, Inc., 871 F.2d 952, 955 (10th Cir. 1989) (affirming dismissal against defendant where the trial court "ruled that plaintiff could not show defendant had control over the officer, and without control the officer could not have been [the defendant's] agent") Hinqson v. Pacific Southwest Airlines, 743 F.2d 1408, 1416 (9th Cir. 1984) (affirming directed verdicts where there was no evidence that the defendant had the right to control the police officers).

In this case, the record reflects evidence that the Defendants notified the Melbourne City Police when abortions were being performed, that the police patrolled the area on such occasions, and that the Defendants compensated them. (Doc. No. 129, filed February 22, 1999; Doc. No. 130, filed February 22, 1999; Doc. No. 131, filed February 22, 1999). Also, the Defendants stated in their Motion to Dismiss that they notified the police that the Plaintiff was violating the injunction. (Doc. No. 128; Doc. No. 8, filed February 22, 1999). There is undisputed evidence that the police independently observed the Plaintiff violate the injunction before arresting him. (Doc. No. 122, Exh. 1). Such evidence when viewed in a light most favorable to the Plaintiff is not sufficient for a reasonable jury to find that the Defendants controlled the Melbourne City Police. Thus, the Court finds that a reasonable jury could not find that the Melbourne City Police were agents of the Defendants. See Johnston, 110 F.3d at 38 (finding as a matter of law that the police officers' routine patrolling of the fair was insufficient to create an agency relationship); McGeorqe, 871 F.2d at 955 (finding as a matter of law that police officers were not agents of the defendant where the defendant summoned the officers); Hinqson 743 F.2d at 1416 (finding as a matter of law that police officers were not agents of defendant airline where airline requested police assistance); Mahon v. City of Bethlehem, 895 F.Supp. 310, 312 (E.D. Pa. 1995) (finding that police officers were not agents of the defendant even though the police were paid and the police enforced some of the defendant's rules where the defendant did not have discretion over enforcement decisions); Leach v. Penn-Mar Merchants Ass'n, 308 A.2d 446, 450 (Md. Ct. App. 1973); cf. White v. Scrivner Corp., 594 F.2d 140, 143-44 (5th Cir. 1979) (finding as a matter of law in a Section 1983 action that the defendant did not act in concert with the police where the police conducted their own investigation).

Accordingly, the Court grants summary judgment for the Defendants on the Plaintiff's Complaint.

B. Plaintiff's Motions for Judgment on the Pleadings

Plaintiff has filed two motions for judgment on the pleadings because the Defendants allegedly did not comply with the Court's Case Management and Scheduling Order. These motions are denied.

C. Third-Party Defendant's Motion to Dismiss Third Party Complaint

Defendants filed a Third Party Complaint against Third Party Defendants Sphere Drake Insurance Company PLC and Westco Claims Management Company, Inc. for indemnification.

Third Party Defendants have moved to dismiss for lack of subject matter jurisdiction because the Third Party Complaint fails to properly allege diversity of citizenship. "When jurisdiction depends on citizenship, citizenship should be 'distinctly and affirmatively alleged.'" McGovern v. American Airlines, Inc., 511 F.2d 653, 654 (5th Cir. 1975). A corporation is deemed to be a citizen of any state in which it is incorporated and any state where it has its principal place of business. See 28 U.S.C. 1332(c) (1) . The Third Party Complaint fails to allege the principal place of business or the state of incorporation of either of the Third Party Defendants. (Doc. No. 75, filed August 31, 1998). Thus, the Court cannot exercise subject matter jurisdiction based on diversity of citizenship. See Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994); McGovern, 511 F.2d at 654; Delome v. Union Barqe Line Co., 444 F.2d 225, 233 (5th Cir. 1971).

The Court also declines to exercise supplemental jurisdiction over the Third Party Complaint. The Court may decline to exercise supplemental jurisdiction over a claim if it "has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c) (3) . "Where § 1367(c) applies, considerations of judicial economy, convenience, fairness, and comity may influence the court's discretion to exercise supplemental jurisdiction." See Baqqett v. First National Bank of Gainesville, 117 F.3d 1342, 1353 (11th Cir. 1997); see also Nobles v. Alabama Christian Academy, 917 F.Supp. 786, 790 (M.D. Ala. 1996). The state law questions involved in this case should be decided by a state court. See Baqqett, 117 F.3d 1353. This is especially true because summary judgment will be granted on the Plaintiff's Complaint before trial. See id. (Footnote 2) Thus, the Third Party Complaint is dismissed without prejudice.

CONCLUSION

Based on the foregoing, the Court rules as follows:

1) Summary judgment is GRANTED sua sponte in favor of the Defendants on Counts I, II, and III of the Plaintiff's Complaint (Doc. No. 1). However, the Court defers entering judgment until the conclusion of the interlocutory appeal. Thus, the Clerk is directed not to enter judgment until the interlocutory appeal is concluded.

2) Because the Defendants have voluntarily dismissed their counterclaims (Doc. No. 106), a trial is not necessary in this case.

3) Defendants' Application for Stay (Doc. No. 126) is DENIED AS MOOT.

4) The Motion for Judgment on the Pleadings in Favor of the Plaintiff (Doc. No. 116) is DENIED.

5) The Additional Motion for Judgment on the Pleadings in Favor of the Plaintiff (Doc. No. 118) is DENIED.

6) The Objections to the Filing or Use of the "Deposition" of Keith Chandler and the "Deposition" of S.W. Smith (Doc. No. 132) are DENIED AS MOOT. The Court did not rely on these depositions in deciding whether to grant summary judgment.

7) Third-Party Defendants' Dispositive Motion to Dismiss Third-Party Complaint (Doc. No. 91) is GRANTED IN PART. The Third Party Complaint (Doc. No. 75) is DISMISSED WITHOUT PREJUDICE. The Third Party Plaintiffs shall have ten (10) days from the date that the mandate of the Eleventh Circuit is issued with reference to the current appellate proceedings to file an amended pleading.

8) Third-Party Defendants' Motion to Vacate or for Relief from Order of September 16, 1998 (Doc. No. 92) is DENIED AS MOOT.

9) AWCC Insured Motion for Partial Summary Judgment on Obligation of Insurers to Cover and Indemnify, and Prima Facie Showing of Insurer Bad Faith (Doc. No. 77) is DENIED AS MOOT.

10) Plaintiff's Motion to Conduct Limited Discovery (Doc. No. 135) is DENIED AS MOOT.

11) Plaintiff's Motion in Limine (Doc. No. 137) is DENIED AS MOOT.

12) Plaintiff's Renewed Motion for Judgment on the Pleadings (Doc. No. 138) is DENIED.

DONE AND ORDERED at Orlando, Florida this, 26th day of February, 1999.

PATRICIA C. FAWSETT <signed>
UNITED STATES DISTRICT JUDGE

Footnote 1 - However, the Court notes that if the December 16, 1998 Order is an appealable order, then it is less clear whether the Court should proceed. Cf. 15A Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3911 (1991) (indicating a trial court may undertake further proceedings following collateral order appeals); Taylor v. Sterrett, 640 F.2d 663, 667-68 (5th Cir. Unit A 1981) (indicating that where appeal is allowed from an interlocutory order that the district court may only proceed with matters not involved in the appeal); United States v. Neumann, 556 F.2d 1218, 1219 (5th Cir. 1977) (dismissing a collateral order appeal as moot because trial had "already run its course"). For this reason, as noted above, the Court will defer entering judgment on this order until the interlocutory appeal is concluded.

Footnote 2 - The Court notes that the outcome of the interlocutory appeal does not affect this determination. If the Defendants are successful on their interlocutory appeal, then the Plaintiff's Complaint will be dismissed on those grounds. If the Defendants are unsuccessful on their interlocutory appeal, then summary judgment will be entered on the Plaintiff's Complaint.