DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE SECOND AMENDED COUNTERCLAIM

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE SECOND 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

DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE SECOND AMENDED COUNTERCLAIM

AWCC respectfully submits this Reply in support of its Motion for Leave to File Second Amended Counterclaim, and in further support thereof states:

COMPLIANCE WITH RULE 3.01(g)

In all other cases, and with all other counsel, Rule 3.01(g) compliance is straightforward. Telephone calls, Faxes, or E-Mails are exchanged and matters discussed in the context of rules and cases. In the April-November 1998 period since undersigned counsel have been involved, communications with Mr Sapp alone, however, have been extraordinarily difficult because of a seeming lack of reasonable cooperation and understanding at that end. Briefly, the 3.01 problem is not in not consulting with Mr Sapp. It is in Mr Sapp misstating and setting up opposing counsel to be accused of not consulting, as follows:

E-Mail: Mr Sapp never would acknowledge having an E-Mail address where Rule 3.01(g) communications could easily take place without misunderstanding. Counsel Lucas finally found such address, however, a few days ago while searching the anti- abortion web sites. Mr Sapp in fact has an E-Mail address to raise funds for himself for this lawsuit. From now on this can perhaps be used for court business. It is ChrisSapp@iline.com. Counsel Lucas and England both have E-Mail where Mr Sapp could write and obtain prompt replies, but he has never done so. Lucas is OwlLawyer@AOL.com.

FAX: Mr Sapp shows a FAX address, and sends out Faxes on 1-941-368-3922, but he refuses to keep an open line or to use a machine that stores incoming messages. To test this problem, Lucas has often set his Fax at auto-redial for 10 hour periods, trying in vain to send communications to Mr Sapp, even automatically redialing all night, overnight, finding only the Fax equivalent of a black hole and continuous busy signal.

Mr Raney, however, seems able to Fax Mr Sapp at will, according to telephone records. This is selective lack of cooperation which prevents rapid communications and delays business before this Court.

TELEPHONE: Only once in seven months has Mr Sapp been at his phone when called by Lucas, just a few days ago. This was for a 3.01(g) consult on the AWCC motion to compel. Mr Lucas always writes or tries to call Mr Sapp to consult under 3.01 as required. The call is a routine now since the Sapp Fax has proven to be invariably off-line. Usually a telephone answering service takes a message for Mr Sapp. Reply times vary widely, from a day to a week, or not at all.

For Rule 3.01(E) purposes the best we can do is to leave Mr Sapp a telephone or E Mail message. That has been done regularly, and was done in this case as telephone records will certainly show when the bill comes.

By contrast and estoppel, these AWCC counsel have never complained at the several times Mr Sapp has certified a 3.01 compliance that was a ghost or phantom. Trivial complaints only waste time and impose on the Court. The merits in this case are important. Traditionally, the anti-abortion litigation bar avoids the merits and seeks endless delay on collateral matters that waste the Court's time. It is in their strategy textbook. This is just one more example of collateral harassment for delay.

As corroboration of this problem, enclosed are three of the regular letters sent by Lucas to Sapp regarding Rule 3.01 consultation or to clear up misunderstandings about discovery, objecting to the "dump it in a box and ignore the subpoena" approach.

Further on the telephone, the smattering of phone records produced in discovery by Mr Raney show that he can get Mr Sapp on the phone easily, and with additional Phone or Fax number(s) never provided to opposing counsel or the Court. This is consistent with intentional avoidance by Mr Sapp of telephone calls, and especially Faxes from Mr Lucas. Caller I.D. facilitates that.

The big picture behind this is simple. Poor communication can create obfuscation opportunities and misunderstanding. Mr Sapp can come back and claim that Mr Torpy, or Ms Hogreve, or Ms England, or Mr Lucas said something they did not. That has happened innumerable times in this case. It is so common as to be expected. Any verbal communication to Mr Sapp will be misunderstood, somehow. Any written communication will be avoided as if it were a grand jury subpoena, and certainly not facilitated by an open Fax.

If Mr Sapp would simply receive written Fax messages, he could not deny or misrepresent the contents. He may stop the miscommunication any time he chooses, and quit coming back with his uncopyrighted misunderstandings. At least now E- Mail can be sent and printed to prove attempts at consultation.

The Court should direct Mr Sapp to keep his Fax open and read his E-Mail regularly. Then there will be no further misunderstandings by Mr Sapp.

Counsel Lucas reiterates that he consulted with Mr Sapp in the only way Sapp has allowed, by leaving a phone message. Lucas consulted again the next week, and fortuitously caught Mr Sapp answering his own phone for a change. A Fax would be better. One Lucas Fax line or another is open 24 hours a day and is necessary for normal litigation work.

CASE MANAGEMENT & SCHEDULING

Mr Sapp complains that the Counterclaim amendments would disrupt case management. To the contrary, litigation of the now fleshed-out counterclaims with all necessary parties would put to rest in one moderately-sized case what otherwise could become several overlapping duplicative lawsuits. Why make AWCC retype page one and file separate lawsuits? That seems senseless and ritualistic, inappropriate for a civilized and sophisticated federal judicial system where total justice is the goal.

The circumstances of this case have changed enormously since the initial Case Management plan. That was developed by earlier counsel who had a very limited defense plan.

This civil action started as a straight forward if time consuming and complex matter. It appeared to the women and men of AWCC as just another form of harassment by Mr Raney in his ten year siege of AWCC and the Windles. This was just more polymer glue in the clinic locks, or fundamentalist extremists chained to the clinic doors. The initial Case Management and Scheduling plans were certainly adequate for the trying of Mr Raney's case alone, if it ever got to trial, and if discovery went smoothly, instead of being the uncooperative obstacle course it became.

The Raney case itself has never been anything more than a civil action waiting to be dismissed, under one rule or another, on any one of about eight different legal grounds. That straightforward case was amenable to the earlier Case Management plan, not the case we have now that so many more horrific facts have been uncovered.

The case has become much more complicated, and more serious, because Mr Raney and his co-conspirators have nine years of documented harassment to account for. Moreover, Raney's claim has become the latest phase of a continuing national effort by anti-abortion and extremist fundamentalist organizations. They are indirectly trying to shut down the AWCC clinic, through the work of those individuals now named in the proposed counterclaims.

It is time to bring the entire harassment team to justice, not just the ringleader. Mr Raney did not act alone. He did not commit just a few violations of FACE and FDPPA. He and his circle of extremist "thieves of privacy" have insidiously, if negligently, invaded the rights of AWCC and thousands of patients. Raney sits on a computerized "blackmail database" of nightmarish proportions. It was compiled by Raney and the numerous additional counterclaim-defendants. Justice must not be blind to that. They need to be brought to justice and tried together as accomplices.

The initial Counterclaim was filed prior to any meaningful discovery and before AWCC was able to hire complex federal litigation counsel experienced in the class action, privacy, medical, and reproductive health fields. The first amended counterclaim did not even have the benefit of the deposition of Mr Raney, much less the wealth of incriminating documents he eventually produced when ordered in August, 1998, following months of evasion and delay.

Nine years of tortious harassment by a dozen secretive fundamentalist tortfeasors cannot be sorted out in just a few months. The counterclaim case is very complex. It is intertwined with the actions of many individuals and entities in addition to Mr Raney. AWCC and the Windles are not the only victims of the Raney group. Other similar counterclaimants have an important right to be heard, and this is their only opportunity.

New counsel Lucas and England, and additional Orlando co-counsel to be added, are a necessary part of the future of this case. They were not available when Mr Raney filed in October, 1997, nor for the next approximately seven months. The original direction of the defense case was very limited well into 1998. Now that has changed.

AWCC now has more resources to litigate fully its entire defenses and counterclaims through experienced federal counsel who have handled close to one hundred reported cases nationwide, from as early as Roe/Doe in 1973. We should not be limited in seeking full justice and relief for AWCC by an earlier defense plan that was inadequate to the overall case problem.

The Raney case should soon be dismissed outright on one or more of the eight solid legal grounds previously briefed. The appropriate motion for summary judgment is pending and under consideration.

Then, the Second Amended Counterclaim should be allowed to go forward, and a new, separate Case Management plan developed by all parties plaintiffs and defendants. That is the optimum sensible approach to the total problem.

OTHER FORUMS?

The final segment of Mr Sapp's Response contains a section entitled "OTHER FORUMS." There is no legal analysis as to what that means, and no relief requested.

The AWCC Second Amended Counterclaim asserts federal claims over which this Court has exclusive jurisdiction. Those claims are not involved in any way in the other cited state court or Illinois federal RICO case. AWCC is at most a peripheral participant in those other cases. The Madsen "36 foot buffer zone" is not presently being enforced by state prosecutors or city police. AWCC has not been a party to the contempt proceedings, which are managed by state government lawyers.

That is a classic example of an inadequate or non-existent state forum, with very limited ineffective remedies. Mr Raney is not a named party in either case mentioned. Those have not been in any way adequate "OTHER FORUMS" for anything involved here.

The counterclaim FDPPA claim, 18 USC §2721, is also an important exclusively federal civil claim. In fact this is the very first private party civil injunctive and damages FDPPA case nationwide. It could be precedent setting as a major decision on citizen security and privacy. FDPPA will likely be before the Supreme Court toward the end of this October Term. These FDPPA claims should probably not be tried to a jury before the Supreme Court decision because of the sharply divisive opinions in the lower federal courts on multiple matters of first impression. Appeals on the public law parts of the FDPPA statute have already been argued in the Fourth, Seventh, Tenth, and Eleventh Circuits. The only reported opinion in this Circuit is the well and carefully reasoned decision of Pryor v Reno, 998 F Supp 1317 (MD Ala 1998).

The AWCC counterclaim FACE claim, 18 USC §248, is another significant, exclusively federal civil claim. It is one of the first substantial private party civil injunctive and damages FACE claims nationwide. It seeks meaningful and tailored relief against the highly sophisticated forms of harassment pioneered interstate among extremist fundamentalists by Meredith Raney and his mentors. The highly appropriate relief requested will break new ground under this young statute.

All in all, the Second Amended Counterclaim should be allowed and a new Case Management plan developed by all of the real parties in interest on both sides. This is far more sensible than making AWCC refile a new series of lawsuits to accomplish the same result. The AWCC counterclaim will save the Court a great deal of time in the short and long runs.

CONCLUSIONS

For the reasons set out, this Court should allow the Second Amended Counterclaim, dismiss the initial Raney complaint with prejudice, costs & fees, and vacate the Case Management and Scheduling Order, so that the counterclaim class action may go forward in a reasonable manner.

RESPECTFULLY SUBMITTED:
Roy Lucas <signed>
DC # 153957
c/o PO Box 1433
Melbourne, FL 32902

Susan A. England
FL # 0186018
2805 Lakeview Drive
Fern Park, FL 32730

ATTORNEYS FOR AWCC ET AL COUNTERCLAIM PLAINTIFFS.

CERTIFICATE OF SERVICE

This AWCC Reply to the Response of Plaintiff Raney has been served by mail deposited the 8th day of December, 1998, sent to Christopher Sapp, PO Box 1012, Lehigh Acres, FL 33970, and Lawrence Siff, PO Box 149022, Coral Gables, FL 33114-9022.

BY: Roy Lucas <signed>