PLAINTIFF'S MOTION TO DISMISS DEFENDANTS' FIRST AMENDED COUNTERCLAIM

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
PLAINTIFF'S MOTION TO DISMISS DEFENDANTS' FIRST AMENDED COUNTERCLAIM

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

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

CASE NO.: 97-1197-CV-ORL-19B

PLAINTIFF'S MOTION TO DISMISS DEFENDANTS' FIRST AMENDED COUNTERCLAIM

COMES NOW Plaintiff, by and through counsel, and pursuant to Fed. R. Civ. P. 12 (b)(6) and moves this Honorable Court to dismiss Defendants' First Amended Counterclaim. In addition, Plaintiff moves this Court to grant to Plaintiff the costs and attomey's fees incurred in bringing this Motion. In support of this Motion, Plaintiff offers the following grounds:

1. Defendants' Amended Counterclaim completely fails to state a claim upon which any relief can be granted and merely makes assertions that are not actionable. Specifically:

a. Paragraph 5 simply regurgitates that Plaintiff has filed a lawsuit against Defendants.

b. Paragraph 6 states that Defendants have not employed Plaintiff.

c. Paragraph 7 consists of argument.

d. Paragraph 8 makes the bald assertion that Plaintiff s lawsuit is meritless and offers pure conjecture as to Plaintiff s motives for bringing the current action.

e. Paragraph 9 merely asserts that anti-abortion extremists have been threatened with removal or in fact removed from the area surrounding Defendants' property. This hardly provides any basis for the filed Amended Counterclaim.

f. Paragraph 10 argues that Defendants believe that Plaintiff is acting in concert with others in file meritless claims in the future. Defendants do not assert that this onslaught of lawsuits has actually occurred: only that others are posed (sic) to file these actions.

g. Plaintiff is not aware of others who are either posed or poised to file a lawsuit.

h. Whether Plaintiff cooperates with others who may file lawsuits either now or in the future simply does not provide a basis upon which relief can be granted.

i. In the law, there is a category for lawsuits brought by individuals who collaborate with each other to initiate litigation: class action.

j. Paragraph 11 bemoans the fact that Defendants have had to spend money on legal fees to defend this action. Presumably, this expenditure has been exacerbated by Defendants' own Counterclaim. In any event, defending a lawsuit is not an allegation upon which relief can be granted in a counterclaim.

k. Similarly Paragraphs 12 and 13 merely reiterate Defendants' argument about this hertofore unknown (and currently non-existent) conspiracy of lawsuits that others are posed (or poised) to file.

1. Further, Defendants lament that they cannot wait until a final determination on the merits. Based on the tendered Counterclaim, it appears that Defendants seek to have this Court dispense with the demands of due process and to deny Plaintiff his day in court. In any event, these concerns fail to prove 'de a basis upon which relief can be granted and their inclusion in a counterclaim is, at best, inappropriate.

2. Defendants' Amended Counterclaim consists of argument and pejorative characterizations. Specifically:

a. Paragraphs 7, 9, and 10 call Plaintiff an anti-abortion extremist.

b. Paragraph 8 argues that Plaintiff's sole objective and intent is to harass Defendants.

c. Paragraphs 8, 10, 11, and 12 argue that Plaintiff's lawsuit is meritless.

3. If the offending paragraphs are stricken, Defendants' First Amended Counterclaim will be completely eviscerated.

WHEREFORE, for the reasons stated above, it is appropriate for this Court to grant Plaintiff's Motion To Dismiss Defendants' First Amended Counterclaim for failure to state a claim upon which relief can be granted. In addition, Plaintiff should be awarded the costs and attorney's fees incurred in bringing this Motion.

Respectfully submitted,
Christopher F Sapp <signed>
Post Office Box 1012
Lehigh Acres, Florida 33970
Florida Bar Number 0097823
Attorney for Meredith T. Raney, Jr.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Vincent G. Torpy, Jr., Esquire 930 S. Harbor City Blvd., Suite 505, Melbourne, Florida 32901, to Roy Lucas, Esquire, P. 0. Box 1433, Melbourne, Florida 32902-1433 and to Susan A. England, Esquire, 2805 Lakeview Drive, Park, Florida 32730-2007, this 5th day of June, 1998.

Christopher F. Sapp <signed>
Attorney