ABORTION INDUSTRY IN MELBOURNE, FLORIDA
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANTS' MOTION TO DISMISS COMPLAINT
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
MEREDITH T. RANEY, JR.,
AWARE WOMAN CENTER
FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR., and
PATRICIA B. WINDLE
CASE NO.: 97-1197-CV-ORL-19B
MOTION TO DISMISS COMPLAINT OR, ALTERNATIVELY TO STRIKE COMPLAINT
Defendants, AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation, EDWARD W. WINDLE, JR., and PATRICIA B. WINDLE, by and through their undersigned attorneys, move to strike Plaintiff's Complaint pursuant to Rule 11(a), Fed. R. Civ. P., and Rules 2.01(a) and 2.03(a), U.S. District Court-Middle District Rules, and as grounds therefore state:
1. Plaintiff filed a Complaint in this action signed by his attorney of record, Christopher F. Sapp, who is not currently admitted to practice in the Federal District Court.
MEMORANDUM OF LAW
The U.S. District Court-Middle District Rule 2.01 (a) provides that only persons duly admitted to practice in the Federal Court shall be permitted to "appear' or to be heard as counsel for another in proceedings brought in that court. Local Rule 2.01(a). The filing of any kind of pleading or paper by an attorney in the Federal Court constitutes a "general appearance' on behalf of the attorney's client. Local Rule 2.03(a). Plaintiff's attorney Christopher F. Sapp, who signed the complaint which was filed in this action is not currently admitted to practice in the Federal District Court. The filing of Plaintiffs Complaint by counsel constituted an unauthorized appearance under the Local Rules. Because the filing of the pleading constituted an appearance, and because an attorney not admitted to the Federal Court may not appear, the pleading should not have been filed. Accordingly, this Court should dismiss, or alternatively, strike the Complaint.
Additionally, the pleading signed by an attorney not admitted to practice in the District Court would constitute an unsigned paper which should be stricken as provided in Rule 11(a). Rule 11(a), Fed. R. Civ. P., provides that an unsigned, filed paper shall be stricken by the Court unless the omission can be corrected promptly after the attorney or party is placed on notice. See Fed. R. Civ. P. 11(a). As Christopher F. Sapp must make application and await a periodic swearing-in ceremony in the Federal Court before he is admitted to practice in this Court, his correction of the omission cannot be accomplished in a timely fashion as provided under Rule 11(a). Therefore, Plaintiff's Complaint must be stricken.
WHEREFORE, Defendants request this Honorable Court dismiss, or alternatively, strike Plaintiff's Complaint pursuant to Rule 11(a), Fed. R. Civ. P. and Rules 2.01(a) and 2.03(a), U.S. District Court-Middle District Rules.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Christopher F. Sapp, Esq., P.O. Box 1012, Lehigh Acres, FL 33970, this 22nd day of December, 1997.
FRESE, NASH & TORPY, P.A.
VINCENT G. TORPY, JR. <signed>
Florida Bar No. 394882
930 S. Harbor City Blvd., Suite 505
Melbourne, FL 32901
Attorney for Defendants
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