DEFENDANTS' MOTION TO DISMISS COMPLAINT

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
ROE V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANTS' MOTION TO DISMISS COMPLAINT

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CASE NO.: 99-850-CV-19-A

JANE ROE, II
Plaintiff,
v.
AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR.,
PATRICIA B. WINDLE and
WILLIAM P. EGHERMAN, M.D.,
Defendants

MOTION TO DISMISS COMPLAINT

Defendants, AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation, EDWARD W. WINDLE, JR., PATRICIA B. WINDLE and WILLIAM P. EGHERMAN, M.D., by and through their undersigned attorney, and pursuant to Fed. R.Civ. P. 12(b)(6), hereby file this their Motion to Dismiss the Plaintiff, JANE ROE, II's Complaint for damages and states:

1. Plaintiff, Jane Roe, II has filed a complaint for damages against Defendants collectively alleging violations of an Act of Congress known as Freedom of Access to Clinic Entrances, set forth in 18 U.S.C. § 248 (also known as "FACE").

2. Plaintiff’s complaint is in the form of one count against all Defendants.

3. As it relates to Plaintiff's claim against Defendants, Edward W. Windle, Jr. and Patricia B. Windle, the Plaintiff makes no factual allegations to support a claim for relief under 18 U.S.C. § 248 (Freedom of Access to Clinic Entrances). The complaint alleges the Defendant, Aware Woman Center for Choice, Inc. is a Florida corporation and the only allegation against the Defendants, Edward W. Windle, Jr. and Patricia B. Windle was that they controlled said corporation. There is no other material allegation against the Windle's.

4. The Plaintiff further has failed to state a claim against all Defendants on which relief can be granted pursuant to the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248 and Plaintiff's claim should be dismissed.

5. Plaintiff’s claim falls outside the plain language and construction of 18 U.S.C. § 248, and therefore, Plaintiff is not entitled to pursue a civil remedy under said Act. Further to the extent Plaintiff's action is for medical negligence it is barred by the applicable two year statute of limitations set forth in 95.11, Florida Statute.

6. The Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248 was created by Congress to prevent a nationwide problem of violent protests and blockades at abortion clinics and protect those individuals seeking reproductive health services.

7. Nowhere in the four corners of Plaintiff's complaint does it allege any of the Defendants intentionally injured, intimidated or interfered with, or attempted to injure, intimidate or interfere with Plaintiff from obtaining reproductive health services.

8. The Complaint rather sets forth numerous allegations Plaintiff in fact underwent an abortion procedure, however, during the process of the procedure was injured.

9. Plaintiff alleges Defendants violated the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248 by "preventing the egress of Plaintiff from the facility on March 29, 1997, when Defendants and/or their employees did unlawfully interfere with, intimidate and use physical obstruction to restrain the Plaintiff and render impassible her desired egress from the facility".

10. This allegation in and of itself is insufficient to bring Plaintiffs claim within the parameters of the civil remedy set forth in the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248.

WHEREFORE, the Defendants, AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation, EDWARD W. WINDLE, JR., PATRICIA B. WINDLE and WILLIAM P. EGHERMAN, M.D. respectfully request that this Court enter an order dismissing the Plaintiff’s complaint for damages.

Respectfully submitted,
ANDREW W. MENYHART, ESQUIRE <signed>
Florida Bar No. 0961507
SHELDON D. STEVENS, ESQUIRE
Florida Bar No. 0202754
Stevens & Menyhart, P.A.
60 McLeod Street
P. O. Box 541760
Merritt Island, FL 32954-1760
Tel.: (407) 453-2221
Fax: (407) 459-3024
Attorneys for Defendants