DEFENDANTS' MOTION FOR SPECIAL FINDINGS ON UNREASONABLENESS OF PLAINTIFF'S CLAIMS

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANTS' MOTION FOR SPECIAL FINDINGS ON UNREASONABLENESS OF PLAINTIFF'S CLAIMS

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

MEREDITH T RANEY, JR,
Plaintiff,
-versus-
AWCC, et al,
Defendants.

AWCC MOTION & MEMORANDUM FOR SPECIAL FINDINGS ON UNREASONABLENESS OF PLAINTIFF'S CLAIMS

Defendants AWCC et al respectfully submit this Motion and Memorandum in support of important and needed special findings to accompany the order and judgment dismissing the complaint of Mr Raney, entered by this Court:

RULE 52 AUTHORITY

This Court may make special findings on the authority of Fed R Civ Proc 52 to support its determination granting summary judgment to AWCC dismissing the complaint of Mr Raney, and for further relief.

BASIS FOR FINDINGS

The requested findings are necessary to do complete justice for AWCC, Patricia, and Edward Windle who have endured the stress, considerable burden and expense, and defense of this lawsuit from October 1, 1997, to date, over twenty-two months of a federal lawsuit without merit.

On February 26, 1999, this Court found that "because the record does not reflect any colorable evidence that the Melbourne City Police were acting as agents of the Defendants ... summary judgment is warranted." (Doc. No. 140, at p.7, filed February 26, 1999).

The record also reflects no evidence that prior to and during over nineteen months of this litigation, plaintiff or his counsel conducted any interviews of accessible, relevant witnesses to the three occurrences in question, such as the Police involved, U.S. Marshals present, or bystanders.

The record reveals no evidence that plaintiff or his counsel conducted any interviews of other City or Police officials with knowledge and information relevant to the claims, such as City managers, the Police Chief, or those who maintain records relevant to possible evidentiary questions involved in this case, employment and otherwise.

Nor does the record reflect evidence that plaintiff or his counsel reviewed, for they did not submit, the pertinent daily "log sheets" which Mr Raney, LeStourgeon, and others, maintain of vehicles and persons entering and leaving AWCC premises. These might have revealed witnesses present with knowledge relevant to the claims made by Mr Raney, or the absence of the Windle defendants.

The record shows no depositions taken by plaintiff and his counsel of any material witness or party with evidence concerning the claims made in this action: not of Police, U.S. Marshals, bystanders, or anyone else. Plaintiff and his counsel did not attend depositions of the Police Chief and one Officer, nor of witness Mr LeStourgeon, nor did they themselves attempt to schedule or reschedule any such discovery.

The record shows no documentary discovery by plaintiff or his counsel from the City or AWCC of any of the kinds of materials traditionally relevant to the "employment" situation claimed in the complaint: employment contracts, memoranda about employment, wage statements, work assignments, W-2 forms of police, 1099 forms of police, or any other kind of employment-related business documentation.

Plaintiff and his two experienced counsel, Messrs Sapp and Hirsh, have not to this date produced legally sufficient evidence of employment or agency, although the case was filed over twenty-two months ago. Mr Hirsh became involved both as to appellate matters and personally appeared at the Pretrial Conference before the Magistrate.

The videotapes of the three occurrences themselves, produced by Mr Raney, if anything, show a total absence of employment or agency. Police and a U.S. Marshal were onsite, on City property, the Police in City uniform, using a City Police car. The Police warned and quickly apprehended Mr Raney, with no time for prompting or direction by AWCC. Neither Patricia nor Edward Windle is present, as the Raney log sheets show. These were not proffered by Mr Raney or his counsel, but by AWCC and the Windles.

Additional material facts relevant to other necessary elements of plaintiffs claim were also lacking in evidentiary support. Mr Raney and his counsel did not plead nor proffer evidence of absence of probable cause to arrest Mr Raney for contempt. That defect has always been fatal to Mr Raney's claim, and was timely raised by AWCC (Doc. No. 46, filed May 29, 1998: "... Mr Raney did not even allege absence of probable cause or show any basis for inferring wrongful intent .... ").

As to statutory and case law authority, Mr Raney and his counsel did not even cite the Restatement {Second} of Agency, much less adequately address the several U.S. Court of Appeals level decisions ultimately relied upon by the Court. Nor did plaintiff show any awareness of the Eleventh Circuit line of decisions on the probable cause issue, although cited to them. in the briefing more than once. See Marx v. Crumbinner, 905 F.2d 1503, 1506-07 (11th Cir. 1990); Herren v. Bowyet, 850 F.2d 1543, 1547 (11th Cir. 1988).

Plaintiff and his counsel also offered neither cases nor legislative history regarding F.A.C.E., 18 USC §248, itself which came even close to supporting their claims in the context of violating a state court ordered buffer zone outside of a reproductive health care facility. The statute, its history, and the role of plaintiff himself in the reported cases, all suggest that the claim of Mr Raney is implausible on its face. He was, after all, the person chasing the physician on the highway and making the gun gesture discussed by the Florida Supreme Court and in the separate opinion of Mr Justice Stevens. See Madsen v. W.H.C., 512 U.S. 753 (1994), modifying 626 So.2d 664 (Fla. 1993)

Also, plaintiff and his counsel did not disclose to this Court the fact of his multiple prior state court convictions for substantially identical contempt of court incidents in violating the buffer zone. There defendants have claimed and documented that Mr. Raney had full and fair opportunities to and did fully litigate whether the buffer zone applied to him as a non-party to the initial injunction, albeit acting in concert or participation. See Alf v. Florida, 116 S. Ct. 65, 133 L. Ed2d 27 (1995), denying cert. to 651 So.2d 691, 692, 1211 (Fla. 5th DCA)(applying Madsen buffer zone to convict Mr. Raney and 107 others). This omission obstructed the Court's consideration of any collateral estoppel issue, and brings to mind the words' of Circuit Judge Tjofiat in Cramer v Florida, 117 F.3d 1258, 1261 n.5 (11th Cir. 1997):

"Counsel's failure to disclose the existence of [relevant]... state court litigation is reprehensible. We surmise that counsel intended to conceal the matter from this court because they knew that the Rooker-Feldman doctrine would bar [his] suit."

While this Court earlier declined to apply Rooker-Feldman, the existence of such relevant and substantial state court litigation involving the same sets of facts should have been disclosed by plaintiff Mr. Raney and his counsel, and argued before the Court, instead of not even being addressed.

Further, plaintiff Mr Raney and his counsel did not bring up their prior State court proceeding based upon the same three incidents, Raney v City of Melbourne, 97-3763-CA-X (Fla Cir Ct, Brevard Cnty, dismissed July 30, 1998)("Raney II"). There Mr Raney did not even sue these defendants AWCC and the Windles. He complained instead of the same three incidents wherein "... a certain police officer of Defendant, CITY OF MELBOURNE ... acting as a police officer ..." arrested him. The State court case claimed agency with the City, while this federal case claimed agency with AWCC. Mr Raney cannot have it both ways in Raney I and Raney II.

Yet, again, after summary judgment against Mr Raney was declared, he filed still another federal case here, Raney v City of Melbourne, 99-416-CV-ORL-19B (MD Fla)("Raney III"). This time Mr Raney claims other incidents than the three occurrences from Raney I-II, but remains with the City-Police agency theory.

In light of the above, this Court may and should find that Mr. Raney and his counsel Messrs. Sapp and Mr. Hirsh could not reasonably have believed that the facts or the law supported their extensive federal claims. Their continued prosecution of the claims without supporting evidence or law was unreasonable and groundless from the outset. They carelessly ignored the absence of supporting evidence and law for month after month, in reckless disregard of the interests of the defendants AWCC and Windles.

The requested findings may form the basis of a claim for prevailing defendants' litigation fees and expenses. Defendants respectfully request leave until forty-five (45) days from the date of the Order on findings to file an application for prevailing defendants' fees and expenses under 42 USC §1988 and 18 USC §248.

The Proposed Findings are respectfully attached for consideration by the Court.

RESPECTFULLY SUBMITTED,
Roy Lucas <signed>
Trial Counsel
c/o PO Box 1433
Melbourne, FL 32902-1433
TEL: 1-407-725-2413
FAX: 1-407-725-3847
and
Susan A England
2805 Lakeview Drive
Fern Park, Fl 32730
TEL: 1-407-339-4600
FAX: 1-407-331-3006

ATTORNEYS FOR AWCC et al DEFENDANTS.

CERTIFICATE OF SERVICE & Rule 3.01 Certification: The foregoing Motion for Special Findings and Memorandum of Plaintiffs AWCC have been served by the undersigned RL by First Class mail, postage prepaid, sent this Wednesday, the l8th day of August, 1999, to the following who are counsel for all appearing adverse parties. Counsel previously telephoned Mr Sapp and conferred appropriately with him at 1:40 pm, Monday, April 12, 1999, but could not agree as to the motion and proposed findings. Counsel had previously E-Mailed Mr Hirsh three times over a two week period without any response to date:

TO: Christopher Sapp, Esq.
PO Box 1012
Lehigh Acres, FL 33970
and
Michael Hirsh, Esq.
125 Townpark Drive, Ste 300
Kennesaw, GA 30144

BY: Roy Lucas <signed>