HomeMy Public PortalAboutPRR 16-2096From: Cercatore della Verita [mailto:archiverecordbuilder@gmail.com]
Sent: Monday, January 18, 2016 8:28 AM
To: Rita Taylor <RTaylor@gulf-stream.org>; Scott Morgan <SMorgan@gulf-stream.org>;
scottmorgan75@gmail.com; publicrecordsrequest@mydelraybeach.com; gscafinsec@gmail.com;
beaudelafield@gmail.com; lalexander@jonesfoster.com; rsweetapple@sweetapplelaw.com;
grichman@richmangreer.com
Subject: Request to Inspect a Public Record - I.D. Number 0011
Public Record Request
Date Request First Made: Jan 18. 2015
Request I.D.Number: 0011
REQUESTEE: Town of Gulf Stream et al. *
REQUESTOR: Cercatore della Verita
REQUESTOR'S CONTACT INFORMATION: Direct all responses and communication
to Cercatore della Verita at email address: archiverecordbuilderna,gmail.com
RECORD REQUEST: Please provide for my inspection all public records which are each of the
twelve emails described as follows:
Two most recent email communications between smorgan@gulf-stream.org
or scottmorgan75@gmail.com and any email account ending in @mvdelraybeach.com
Two most recent email communications between smorgan@gulf-stream.org
or scottmorgan75@gmail.com and any email account ending in @jonesfoster.com
Two most recent email communications between smorgan@gulf-stream.org
or scottmorgan75@gmail.com and any email account ending in @sweetapplelaw.com
Two most recent email communications between smorgan@gulf-stream.org
or scottmorgan75@gmail.com and any email account ending in @gulf-stream.org
Two most recent email communications between smorgan@gulf-stream.org
or scottmorgan75@gmail.com and any email account ending in @richmangreer.com
Two most recent email communications between smorgan@gulf-stream.org
or scottmorgan75@gmail.com and beaudelafield@gmail.com
ADDITIONAL INFORMATION OF REQUEST:
*Town of Gulf Stream is a term used herein for convenience and expedience. The collective
meaning of the term Town of Gulf Stream includes all of each of the folowing: Town of Gulf
Stream, Gulf Stream Civic Association, City of Delray Beach (as Town Building Department),
Jones, Foster, Johnston & Stubbs P.A., Sweetapple Broeker & Varkas P.L., Richman Greer,
P.A., and others including but not limited to other entities substantially similar to those entities
named in addition to all employees, partners, owners, appointees and elected members of those
entities (collectively, the REQUESTEE).
REQUESTOR seeks to inspect the aforementioned public records as soon as possible and
therefore notifies all or most all of the above referenced known REQUESTEE by copy of this
email and asks that they jointly and severally act to produce all records responsive to this
request.
This request for public records is intended to be made to the Custodian of Public Records or the
person having custody of public records or his or her designee for each and every member of that
collective group. If you are not that person then I ask that you forward this request to that person.
If the Custodian of Public Records or the person having custody of public records designates
another person to permit the inspection or copying of public records by fulfilling this request
please provide the identity of the designee as per FS I I9.07(1)(b).
I ask that you acknowledge this request promptly and make a good faith effort to respond
including making reasonable efforts to determine from others the existence and location of all
responsive records as per 119.07(1)(c).
Refer to FS 119.011(12) for the legislative definition of public records that may be responsive to
this request.
I request that records be produced in the original electronic format in which they were created or
received if the records sought in this request are maintained by you in electronic format.
Any costs authorized by statute you expect to incur in the process of fulfilling this request (if
any) must be approved by me in advance of you incurring that cost. No obligation to pay such
costs will be agreed to by REQUESTOR unless written approval to incur that cost is first
granted by REQUESTOR.
By providing records to me it will be assumed that you have provided ALL records responsive to
my request unless you indicate that your response is limited to only a partial production of
responsive records. By fulfilling this record request, you acknowledge that the responsive
documents you provide are "public records" as defined and described by Florida Statutes Chapter
119.
Records containing permanently or temporarily exempt information must be carefully redacted
so as not to redact any portion of the record which is not exempt and is therefore subject to
disclosure (please refer to (FS 119.011(13) and 119.07(1)(d). State the basis for the exemption as
per FS 119.07(1)(e). I request that the custodian of public records shall state in writing and with
particularity the reasons for the conclusion that the record is exempt or confidential as per FS
119.07(1)(f).
If you claim a record does not exist, it will be assumed that the record never existed unless you
indicate that the record once existed but no longer exists. In all cases if a record that would
otherwise be responsive to this request no longer exists but once existed, then provide the record
of its disposition. The disposition record, as required by FS 119.021(2) and FS 257.36 must
include a retention schedule number, item number, record series title, inclusive dates, volume (if
required), disposition action and date.
Please identify all responses to this request with the Request I.D. Number which is assigned to
this request and noted at the top of this page.
This request is made pursuant to Article 1, Section 24 of the State of Florida Constitution and
Florida Statutes Chapter 119. Refer to the entire Florida Statute Chapter 119 for information
about all your obligations when responding to this request. I specifically request you adhere to all
provisions of Chapter 119 when responding to this request.
REQUESTOR reserves his rights to inspect public records, granted by the Florida Constitution
and Florida State Statutes, considers those rights to be of utmost importance and is dedicated to
defending and protecting those rights. REQUESTOR herein notices REQUESTEE that, when
appropriate, REQUESTOR may petition a court of competent jurisdiction to enforce those rights
and seek reasonable costs of enforcement including reasonable attorney fees as per FS 119.12.
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
January 20, 2016
Cercatore della Verita [mail to: archiverecordbuilder@gmail.com]
Re: GS #2096 (I.D. Number 0011)
Please provide for my inspection all public records which are each of the twelve emails described
as follows:
(1) Two most recent email communications between smorgan@guufstream.org
orscottmorgan75@gmail.com and any email account ending in @mydelraybeach.com
(2) Two most recent email communications between smorgan@gulf-stream.org
or scottmorgan75@gmail.com and any email account ending in @jonesfoster. com
(3) Two most recent email communications between smorgan@guufstream.org
or scottmorgan75@gmail.com and any email account ending in @sweetapplelaw.com
(4) Two most recent email communications between smorgan@gzulf-stream.org
or scottmorgan75@gmail.com and any email account ending in @guu fstream.org
(5) Two most recent email communications between smorgan@guilf-stream.org
orscottmorgan75@gmail.com and any email account ending in @richmangreer.com
(6) Two most recent email communications between smorgan@guufstream.org
or scottmorgan75@gmail.com and beaudelalieldagmail.com
Dear Cercatore della Verita [mail to: archiverecordbuilderna.email.com],
The Town of Gulf Stream has received your public records requests dated January 18, 2016. The
original public record requests can be found at the following links: http://www2.gulf-
stream.ore/weblink/O/doc/75924/Pagel.asnx. Please refer to the referenced number above with
any future correspondence.
The Town of Gulf Stream is currently working on a large number of incoming public records
requests. The Town will use its very best efforts to respond to you in a reasonable amount of time
with the appropriate response or an estimated cost to respond.
Sincerely, Town Clerk, Custodian of the Records
From: scottmoraan75Ca1gmail.Com
Sent: Monday, September 08, 2014 2:12 PM
To: DeelMakur(d)aol.com ; Beau Delafield
Cc: damitacoroorouo.com ; scottfooarty(Eomail,com
Subject: Re: 32963 Cell Phone Tower Article
Thank you to all for your input. Bill Thrasher called Indian River Shores this morning and was
told that their attempts to get a cell tower lease have been ongoing for several years but
without success. The 80' flag tower was a new approach but Mr. Stabe, the town manager,
indicated there is little interest from any of the carriers or from his residents in actually
installing it. He was not optimistic that his town will ever get a tower, regardless of the
technology.
I think Gary's observation about a "fish -cell phone market" is probably spot-on. The carriers
don't see an economic benefit to installing towers in a place like Gulf Stream. Dan's suggestion
of getting a booster for improved signal strength is probably the best advice.
Regards,
Scott W. Morgan
w-561-752-1936
c-561-573-6006
From: Beau
Sent: Monday, September 8, 2014 11:56 AM
To: DeelMakur@aol.com
Cc: scottmoraan75@email.com; dan(atacoroeroua.com; scottfoearty@email.com
One of the points in forwarding the article is that if Verizon is willing to put up an aesthetically
decent looking flag pile cell tower at John's Island in Indian River County, they should really be
interested in doing the same in Gulf Stream as we/ our surrounding areas have a far denser
population.
Best,
Beau
Sent from my iPhone
From: scottmorgan75Colomail.com
Sent: Monday, April 06, 2015 5:12 PM
To: Gerry Richman ; Eric Sodhi : Joanne O'Connor ; Robert Sweetaoole
Subject: Fw: O'Boyle v. Gulf Stream
Status, please.
From: scottmorgan75Cdgmail.com
Sent: Thursday, October 01, 2015 12:59 PM
To: Joanne O'Connor ; Robert Sweetaoole ; Eric Sodhi
Subject: Conference Call on Brief
Joanne,
Would you please make sure everyone has a copy of your brief and then set up a telephone
conference in the next few days to go over it?
Thanks.
Scott W. Morgan
(561) 752-1936
From: scottmoroan75(&grnail.com
Sent: Wednesday, January 06, 2016 5:04 PM
To: Joanne O'Connor; Robert Sweetap Ike
Subject: FYI
Page I of 1
Incident Type:
Location of Incident:
Type of Premises:
Time of Call:
Time ofArrival:
Time Completed:
Officer Injured:
Date/Time Reported:
Occurred From:
Domestic:
Juvenile Involved:
Reporting Officer:
Name:
Home Address:
Gulf Stream Police Department
246 Sea Road
Gulf Stream, FL 33483
Phone: (561) 278-8611 Fax: (561) 276-2528
Complaint Number: 16-0024
NON CRIMINAL OFFENSE REPORT
POLICE SERVICE
23 N. HIDDEN HARBOUR DRIVE
GULF STREAM FL 33483
RESIDENCE -SINGLE FAMILY
0421
0421
0500
NO
01/042016 04:21
NO
NO
OFC. CHRIS HAMORI
MARTIN OBOYLE
23 HIDDEN HARBOUR DR
GULF STREAM FL 33483
Zone:
Processed By:
3
OFC C HAMORI
Officer Killed/Assaulted: NO
OTHER
Home Phone: (561) 272-5468
INCIDENT SUMMARY
WHILE PATROLLING IN THE DEVELOPMENT KNOWN AS HIDDEN HARBOUR I DISCOVERED WHITE WRITING
ON THE PAVEMENT IN FRONT OF 23 HIDDEN HARBOUR BELONGING TO THE OBOYLE RESIDENCE.
UPON FURTHER INVESTIGATION I FOUND THAT THE WRITING ON THE PAVEMENT WAS ADDRESSED TO
MAYOR MORGAN, THE MESSAGE SAID IN LARGE WHITE SPRAY PAINT LETTERS (MAYOR MORGAN IS A
CHARLATAN). PHOTOGRAPHS WERE TAKEN. NO OTHER POLICE ACTION TAKEN AT THIS TIME.
Kellv Aver
From: Robert Sweetapple <rsweetapple@sweetapplelaw.com>
Sent: Thursday, January 7, 2016 4:03 PM
To: scottmorgan75@gmail.com'
Cc: OConnor, Joanne M.
Subject: GS - Updates for your review
Attachments: Amended Affirmative Defense 1.6.16.docx; CAR v Gulfstream Affirmative Defenses.docx
Scott,
Attached for your review are the proposed revised Affirmative Defenses and Request to Produce to be filed in the CAFI
cases(.64 and .65). The third defense, Plaintiffs Bad Faith, will be used for a majority of the pending cases. Thank you.
Amended Affirmative Defense
1. Plaintiffs Bad Faith. To the extent that Defendant was untimely or deficient in
any response to the public records request as sued upon, such was the result
of Plaintiffs bad faith. Plaintiff acting in concert, Le, an agreed upon
combination of Martin O'Boyle, Jonathan O'Boyle, Christopher O'Hare, Citizens
Awareness Foundation, Inc., Commerce Group, Inc. and others, have inundated
the Town, its agents and attorneys with thousands of public records requests.
This is being done in order to cripple the Town's ability to respond, conduct
its business and to close the Town of Gulfstream's Clerk's Office to the balance
of the public. Plaintiff and its co-conspirators and agents have jammed the
Clerk's Office with dozens of obscure and complex requests submitted on the
same day, have jammed the Town's fax machine and personally occupied and
monopolized the Clerk's office. Under the outrageous conditions and
circumstances intentionally created by Plaintiff and its cohorts, Defendant has
acted reasonably and in good faith to respond to the subject records requests
despite Plaintiffs bad faith conduct. Plaintiffs conduct was at all times
designed to prevent or frustrate compliance by Defendant.
Mtn for Leave to Amend t Add Affirmative Defense
Comes Now, Town of GS, by and thorugh undersigned counsel and requests an order
1. In light of discovery and recent appellate decisions, including consu,er Rigths
v Union County, cite, Def seeks to amend to add the defense of PI. bad faith. A
opy of this proposed defense is attached hereto.
Leave to amend freely given -etc.
CAR v Gulfstream Affirmative Defenses
1. Lack of Standing. Plaintiff lacks standing to bring suit because it is not a bona
fide Florida Not For Profit Corporation. The corporation was formed for
fraudulent purposes and has no bona fide, not for profit purpose. It is merely
a corporate veil designed to perpetrate a sham on Florida governmental and
private agencies and to defraud them. Martin O'Boyle and his lawyer son
Jonathan O'Boyle formed the corporation through their designees. The entire
purpose of the entity is to generate public record requests for the sole purpose
of filing lawsuits seeking statutory fee awards. All suits are then brought on its
behalf by Jonathan O'Boyle's law firm. The law firm then pretends that it has a
contingency fee agreement with its "client" and demands inflated "lodestar"
attorney's fees to which it has no legal entitlement. Plaintiff and The O'Boyle
law firm attorneys claim that their client owes them these lodestar fees. By
doing so they have defrauded defendants throughout the State of Florida.
Plaintiff has been involved in this scheme for two years and has filed well over
100 cases and defrauded scores of victims using this scam. (The law firm also
uses runners to bring suit and divides attorneys' fees with them. When it
employs contingency fee agreements, it uses a fee agreement that is prohibited
by Florida Law.)
Plaintiff has failed to comply with the requirements of Florida law. It has not
kept proper financial or business records, minutes or accounts. It is run by
Martin O'Boyle, through his paid employees, and operates at his direction and
control. Martin O'Boyle has taken great efforts to disguise his involvement,
including falsely denying this involvement under oath. CAM has co -mingled
funds with Martin O'Boyle and his other entities. It is, is in fact, merely an alter
ego of Martin O'Boyle.
2. Lack of Authority. The subject Public Request was not authorized by CAFI but
instead brought by Martin O'Boyle. Over the objection of Joel Chandler, the
then Director of CAFI, Mr. Martin O'Boyle directed that his office personnel file
the subject public record request and over 100 others in the name of CAFI and
directed to Defendant. Furthermore, no authorization for the filing of this suit
was provided by CAFI's then Director Joel Chandler, nor was it the subject of
any approved corporate action. Instead, Mr. O'Boyle individually directed that
his son and his firm file this lawsuit. Mr. O'Boyle funds and is the major
benefactor of The O'Boyle law firm. He provides office space for both the law
firm and the sham Plaintiff in an office building owned by his company. A copy
of the affidavit of the former director of CAFI, Joel Chandler, detailing this
scheme has been filed in this proceeding.
3. Plaintiffs Bad Faith. To the extent that Defendant was untimely or deficient in
any response to the public records request as sued upon, such was the result
of Plaintiffs bad faith. Plaintiff acting in concert, Le, an agreed upon
combination of Martin O'Boyle, Jonathan O'Boyle, Christopher O'Hare, Citizens
Awareness Foundation, Inc., Commerce Group, Inc. and others, have inundated
the Town, its agents and attorneys with thousands of public records requests.
This is being done in order to cripple the Town's ability to respond, conduct
its business and to close the Town of Gulfstream's Clerk's Office to the balance
of the public. Plaintiff and its co-conspirators and agents have jammed the
Clerk's Office with dozens of obscure and complex requests submitted on the
same day, have jammed the Town's fax machine and personally occupied and
monopolized the Clerk's office. Under the outrageous conditions and
circumstances intentionally created by Plaintiff and its cohorts, Defendant has
acted reasonably and in good faith to respond to the subject records requests
despite Plaintiffs bad faith conduct. Plaintiffs conduct was at all times
designed to prevent or frustrate compliance by Defendant.
Request to Produce
1. Any applications, or written communications between CAFI or its
representatives and the United States IRS, concerning application for or
granting of not for profit status, including but not limited to IRS form1023.
2. Minutes of any director, shareholder or other meetings of CAFI.
3. Any and all financial reports for CAFI including Financial Statements, Balance
Sheets or Statement of Operations for 2014 and 2015.
4. All payroll records of CAFI.
S. Records of any distribution to CAFI members or directors.
6. Any promissory notes executed by CAFI.
7. Any communication between any present or former CAFI Director, employee
or representative and Martin O'Boyle.
8. Any and all communications, including lawyer demand letters, lawsuits,
records of payment, settlement agreements or other writings exchanged
between CAM and any Florida governmental entity, agency or private
contractor concerning any public records request issued by CAFI.
9. Records of any attorneys' fees or costs paid to the O'Boyle Law Firm or
Jonathan O'Boyle by CAM, including copies of all bills or invoices.
10. Any charts or logs of public records requests made by CAM to any
governmental entity, agency or private contractor.
11. Any and all fee agreements between the O'Boyle Law Firm and CAM.
Kelly Avery
From: OConnor, Joanne M. <JOConnor@jonesfoster.com>
Sent: Thursday, January 14, 2016 11:08 AM
To: Scott Morgan
Cc: Kelly Avery
Subject: PRR 2045
Attachments: 1OA2409-outline documents produced request bar upl files.DOCX
Scott —
As of 11/6/15, the Town received a public records request for:
Provide a copy of all communications that the Town of Gulf Stream sent to the Florida Bar and/ or the
Florida Bar Ethics Committee. This request would include all memos, drafts, letters, photographs, video
tapes, and audio tapes. This request is made for the period January 1, 2013 through the date of this
request. The term 'Town of Gulf Stream" shall mean each of the following: the Town of Gulf Stream, its
Commissioners, its Manager, its employees, its Police Department, its Police Officers and its Counsel
(including, without limitation, the following law firms) Sweetapple, Broeker & Varkus; Richman Greer, PA; and
Jones, Foster, Johnston & Stubbs, (including, without limitation, the attorneys, employees and partners of each
such law firm.)
have compiled the attached list and highlighted the items sent to the Florida Bar/Board of Bar Examiners.
Please advise if you are aware of anything I have missed.
Thanks,
Joanne
JONES FOSTER
Joanne M. O'Connor Attorney
Direct Dial: 561.650.0498 1 Fax: 561.650.5300 1 joconnorajonesfoster.com
Jones, Foster, Johnston Esc Stubbs, P.A.
Flagler Center Tower, 505 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33401
561-659-3000 1 www.jonesfostevcom
Incoming ernails are filtered which may delay receipt. 11iis email is personal to the named recipient(s) and may be privileged
and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying
of this email is prohibited. Please immediately notifi us by email and delete the original message.
Index to Florida Bar Communications
8/22/14 JMO email to Morgan with draft Bar complaint
8/25/14 Complaint
Re J. O'Boyle to UPL
Re J. O'Boyle to Fla Bar
Re Ring
Re Mesa
Re Taylor
Re V. Williams
Re R. Witmer
[9/3/14 Sweetapple to Bar re J. O'Boyle, providing Chandler statement]
[9/1014 Sweetapple to Bar re J. O'Boyle, providing motion for sanctions]
9/17/14 Canter to Morgan re forwarding J. O'Boyle UPL complaint to UPL division
Canter to Morgan with Bar letter of same date to Ring
Canter to Morgan re V. Williams
Canter to Morgan re Mesa, requesting additional information by 10/6/14
Canter to Morgan re Taylor, requesting additional information by 10/6/14
Canter to Morgan re Witmer, requesting additional information by 10/6/14
10/16/14 Janet Morgan, Branch UPL Counsel to Scott Morgan re referral to 17th
JDC UPL Committee
10/28/14 Morgan to Canter and Morgan to J. Morgan attaching Chandler Affidavit
(not reproduced)
11/10/14 Sweetapple to Gavagni at Board of Bar examiners re UPL enclosing
O'Boyle depo Ex. 3
Motion to Disqualify/Sanctions
Video and transcript of O'Boyle
11/9/14 FCIR article
11/11/14 Morgan to Canter enclosing article from Fla. Center Investigative
Reporting 11/9/14 (not reproduced)
[11/24/14 Morgan letter to Tozian requesting extension of time to respond to Tozian
11/21/14 letter]
12/5/14 Janet Morgan to J. O'Boyle re complaint
12/22/14 Tozian to Morgan
1/9/15 Tozian to Holcomb re UPL Complaint
[1/16/15 Sweetapple to Bar re complaints against Ring, Taylor, Mesa and Witmer]
2/25/15 Morgan email to Avery attaching docs to be sent to Bar (all exhibits to
letter to Morgan sent 2/26/15 but they do not appear to have been
produced unless email was produced electronically)
2/26/15 Morgan to Janet Morgan supplementing J. O'Boyle complaint w/RICO
complaint, Gray deposition transcript, Motion to File Amended Answer in
Case No. 4474 and Blanc Order granting leave to amend 2/23/15 (none
were attached/produced)
4/24/15 Vazquez to S. Morgan attaching J. O'Boyle 2/4/15 response to UPL
complaint
5/18/15 Morgan to JMO and Sweetapple with draft response to Vazquez
5/20/15 JMO email to Morgan cc Sweetapple re responses to 2/4/15 letter
5/21/15 Morgan to Vazquez re J. O'Boyle UPL file
5/26/15 Vazquez to S. Morgan — advising J. O'Boyle UPL file closed
5/26/15 S. Morgan forwards the Affidavit of J. O'Boyle internally
Kelly Avery
From: scottmorgan75@gmail.com
Sent: Thursday, January 14, 2016 12:16 PM
To: OConnor, Joanne M.
Subject: Re: PRR 2045
Joanne,
I believe you and I spoke before on this and we provided all of the information relative to the UPL case since
that is closed.
Relative to the Bar complaints, those matters are still under consideration so depending upon who is
requesting these records, it may not be appropriate for us to disclose anything. In addition, whatever I have
supplied to the Bar would likely have included a c.c. to Tozien so there should not be any letters sent that he
as counsel to the involved parties does not have.
Scott
From: OConnor, Joanne M.
Sent: Thursday, January 14, 2016 11:07 AM
To: Scott Morgan
Cc: Kelly Avery
Subject: PRR 2045
Scott —
As of 11/6/15, the Town received a public records request for:
Provide a copy of all communications that the Town of Gulf Stream sent to the Florida Bar and/ or the
Florida Bar Ethics Committee. This request would include all memos, drafts, letters, photographs, video
tapes, and audio tapes. This request is made for the period January 1, 2013 through the date of this
request. The term "Town of Gulf Stream" shall mean each of the following: the Town of Gulf Stream, its
Commissioners, its Manager, its employees, its Police Department, its Police Officers and its Counsel
(including, without limitation, the following law firms) Sweetapple, Broeker & Varkus; Richman Greer, PA; and
Jones, Foster, Johnston & Stubbs, (including, without limitation, the attorneys, employees and partners of each
such law firm.)
I have compiled the attached list and highlighted the items sent to the Florida Bar/Board of Bar Examiners.
Please advise if you are aware of anything I have missed.
Thanks,
Joanne
JONESFOSTER
Joanne M. O'Connor Attorney
Direct Dial: 561.650.0498 1 Fax: 561.650.5300 1 ioconnornjonesfoster.com
Jones, Poster, Johnston & Stubbs, P.A.
Flagler Center Tower, 305 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33401
561-659-3000 1 mmw.jonesfoster.com
Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged
and confidential. If you are not the intended recipient, you received this in error. If so, any revie" v, dissemination, or copying
of this email is prohibited. Please immediately notify us by email and delete the original message.
Kelly Avery
From:
scottmorgan75@gmail.com
Sent:
Tuesday, December 29, 2015 11:42 AM
To:
Kelly Avery
Subject:
Letter to Bar
Attachments:
Florida Bar-Mendez.1e.12-29-15.docx
Hi Kelly,
Would you please print out the attached letter on stationary for my signature?
I will be in after 2:30 to sign it.
Thanks.
Scott W. Morgan
1315 Neptune Dr.
Boynton Beach, FL 33426
(561) 752-1936
Kelly Avery
From: scottmorgan75@gmail.com
Sent: Monday, December 28, 2015 11:17 AM
To: Kelly Avery
Subject: RICO Briefs
Attachments: Town Appellate Brief.PDF; Town Reply Brief.PDF
Hi Kelly,
Would you please print out the attached Brief and Reply Brief for me?
Thanks.
Scott W. Morgan
1315 Neptune Dr.
Boynton Beach, FL 33426
(561) 752-1936
CASE NO. 15 -13433 -DD
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
CLASS ACTION
TOWN OF GULF STREAM, et al.,
Plaintiffs/Appel l ants,
V.
MARTIN E. O'BOYLE, et al.,
Defendants/Appellees.
On Appeal From The United States District Court
For The Southern District of Florida
Case No.: 9:15-cv-80182-KAM
INITIAL BRIEF OF APPELLANT,
TOWN OF GULF STREAM
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
Joanne M. O'Connor, Esquire
Florida Bar No.: 0498807
505 South Flagler Drive, Suite 1100
West Palm Beach, FL 33401
Telephone: (561) 659-3000
Facsimile: (561) 650-5300
Email: ioconnor(i ,ionesfoster.com
Attorney for Appellant, Town of Gulf Stream
RicHMAN GREEK, P.A.
Gerald F. Richman, Esquire
Florida Bar No: 066457
grichman(&richmangreer. com
Leora B. Freire, Esquire
Florida Bar No: 013488
lfreireArichmangreer.com
250 Australian Ave., South, Suite 1504
West Palm Beach, FL 33401
Telephone: (561) 803-3500
Eric M. Sodhi, Esquire
Florida Bar No: 0583871
esodhi(i4ichmanereer.com
396 Alhambra Circle,
North Tower, 14th Floor
Miami, FL 33134
Telephone: (305) 373-4099
Attorneys for Appellant, Town of Gulf Stream
Case No. 15-13433- DD
Town of Gulf Stream, et al. v. Martin E. O'Boyle, et al.
AMENDED CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26. 1, 11 `h Cir. R. 26.1-1, 11`h
Cir. R. 26.1-2 and 11' Cir. R. 26.1-3, Plaintiff/Appellant, Town of Gulf Stream
certifies that the following persons and entities have, or may have, an interest in the
outcome of this case. This Certificate is amended to add Joanne M. O'Connor, Esq.
and the law firm of Jones, Foster, Johnston & Stubbs, P.A., additional counsel for
Appellant, Town of Gulf Stream. The Appearance of Counsel was filed September 17,
2015.
AIRLINE HIGHWAY, LLC
ASSET ENHANCEMENT, INC.
BERGER SINGERMAN
BERGER, Esq., MITCHELL W. (Counsel for Defendants)
CG ACQUISITION CO., INC.
CITIZENS AWARENESS FOUNDATION, INC,
COMMERCE GP, INC.
COMMERCE GROUP, INC.
COMMERCE REALTY GROUP, INC.
C-1 of 3
CRO AVIATION, INC.
DEMARTINI, DENISE (Counsel for Defendants)
DESOUZA LAW, P.A.
DESOUZA, Esq., DANIEL (Counsel for Defendants)
FREIRE, Esq., LEORA B. (Counsel for Plaintiffs)
GLASS, Esq., ROBERT C. (Counsel for Defendants)
GMM MADISON, P.A.
HANNA, Esq., MARK (Counsel for Defendant)
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
LAW OFFICES OF STUART MICHELSON
MARK, Esq., ETAN (Counsel for Defendants)
MARRA, JUDGE KENNETH A. (Presiding District Court Judge)
MCCABE RABIN, P.A. (Counsel for Defendants)
MESA, GIOVANI (Counsel for Defendants)
MICHELSON, Esq., STUART R. (Counsel for Defendants)
O'BOYLE, JONATHAN R.
O'BOYLE, MARTIN E.
O'CONNOR, Esq., JOANNE M. (Counsel for Appellant Town of Gulf Stream)
O'HARE, CHRISTOPHER
OUR PUBLIC RECORDS, LLC
C-2 of 3
PUBLIC AWARENESS INSTITUTE, INC,
RABIN, Esq., ADAM T. (Counsel for Defendants)
RICHMAN GREER, P.A.
RICHMAN, Esq., GERALD F. (Counsel for Plaintiffs)
RING, WILLIAM
SODHI, Esq., ERIC (Counsel for Plaintiffs)
STOPDIRTYGOVERNMENT, LLC
TAYLOR, NICKLAUS
THE O'BOYLE LAW FIRM, P.C., INC
TOWN OF GULF STREAM
WANTMAN GROUP, INC.
WEBER, Esq., STEVEN D. (Counsel for Defendants)
WITMER, RYAN
C-3 of 3
STATEMENT REGARDING ORAL ARGUMENT
Appellant respectfully suggests that the decisional process would be
significantly and further aided by oral argument because this appeal includes novel
issues of law that this Court has not had occasion to address, including whether this
Court's decisions in Raney v. Allstate Insurance Co., 370 Fad 1086 (11" Cir. 2004),
and United States v. Pendergraft, 297 F.3d 1198 (11`h Cir. 2002), as clarified in
United States v. Lee, 427 F.3d 881 (11" Cir. 2005), preclude extortion as a predicate
act when, as part of a scheme to defraud with an intent to deceive, a defendant sues or
threatens to sue to extort money that it otherwise has no right to, and the suit
threatened or brought has no relation to the dispute in which the threat was made (i. e.,
resolution of the threatened litigation could not resolve the dispute in which the threat
is made).
TABLE OF CONTENTS
Page
AMENDED CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT...........................................0-I
STATEMENT REGARDING ORAL ARGUMENT ................................................ i
TABLEOF CONTENTS.......................................................................................... ii
TABLE OF CITATIONS.........................................................................................iv
PREFACE.................................................................................................................ix
STATEMENT REGARDING SUBJECT -MATTER
AND APPELLATE JURISDICTION.......................................................................x
STATEMENT OF THE ISSUES...............................................................................1
STATEMENT OF THE CASE..................................................................................1
A. Nature of the Case.................................................................................1
B. Course of Proceedings in District Court ...............................................2
C. Statement of The Facts..........................................................................4
D. Standard of Review............................................................................... 8
SUMMARY OF THE ARGUMENT...................................................................... 10
ARGUMENT...........................................................................................................1 1
A. The District Court Erred in Dismissing the Complaint
with Prejudice for Failure to Allege RICO Predicate
Acts...................................................................................................... l l
1. The Use of the Mails and Wires with the
Intent to Deceive the Town Into Foregoing
Special Service Fees to Which it is Entitled is
aPredicate Act.......................................................................... l 1
ii
TABLE OF CONTENTS
(continued)
Page
2. The Town Sufficiently Alleged Predicate Acts
of Extortion Far Beyond Mere Frivolous
Litigation...................................................................................17
B. No Alternate Grounds Exist to Affirm the District
Court's Dismissal of the Complaint with Prejudice ............................22
1. The Complaint Sufficiently Alleged that All
Defendants Participated, Directly or
Indirectly, in the Operation or Management of
theEnterprise............................................................................22
2. The Complaint Sufficiently Alleged a RICO
Enterprise Separate and Distinct from its
Members....................................................................................24
3. The Complaint Sufficiently Alleged an
"Injury to Business or Property."..............................................26
4. The Complaint Sufficiently Alleged Damages
Proximately Caused by the Predicate Acts...............................28
CONCLUSION........................................................................................................30
CERTIFICATE OF COMPLIANCE.......................................................................31
CERTIFICATE OF SERVICE................................................................................32
iii
TABLE OF CITATIONS
Cases
Page
Allstate Ins. Co. v. Palterovich,
653 F.Supp.2d 1306 (S.D. Fla. 2009)............................................................24
Al-Rayes v. Willingham,
2007 WL 788401 (M.D. Fla. Mar. 14, 2007) ...............................................24
Angermeir v. Cohen,
14 F.Supp.3d 134 (S.D.N.Y. 2014..................................................................9
Anza v. Ideal Steel Supply Corp.,
547 U.S. 451, 126 S.Ct. 1991 (2006)............................................................29
Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937 (2009).............................................................8
Bell Atl. Corp. v. Twombly,
550 U.S. 544, 127 S. Ct. 1955 (2007).............................................................8
Board of Cty. Commis of Highlands Cty v. Colby,
976 So. 2d 31 (Fla. 2d DCA 2008)..........................................................26, 27
Bonner v. Pritchard,
661 F.2d 1206 (11" Cir. 198 1) ......................................................................16
Bridge v. Phoenix Bond & Indem. Co.,
553 U.S. 639, 128 S.Ct. 2131, 2141 (2008) ..................................................29
Brooks v. Blue Cross & Blue Shield of Fla., Inc.,
116 F.3d 1364 (11`h Cir. 1997)........................................................................9
*Calabrese v. CSC Holdings, Inc.,
283 F. Supp. 2d 797 (E.D.N.Y. 2003) .....................................................19, 21
IV
TABLE OF CITATIONS
(continued)
Page
Canyon County v. Syngenta Seeds, Inc.,
519 F.3d 969 (9" Cir. 2008)..........................................................................26
Carpenter v. United States,
484 U.S. 19, 108 S.Ct. 316 (1987)................................................................16
Cedric Kushner Promotions, Ltd. v. King,
533 U.S. 158 121 S.Ct. 2087 (2001).......................................................24, 25
Chandler v. Greenacres,
140 So. 3d 1080 (Fla. 4' DCA 2014)............................................................15
*Chevron Corp. v. Donziger,
871 F. Supp. 2d 229 (S.D.N.Y. 2012) .........................................18, 19, 21, 28
*Chevron Corp. v. Donziger,
974 F. Supp. 2d 362 (S.D.N.Y. 2014) ....................................................19, 20
City of Miami Beach v. Public Employees Relations
Comm'n, 937 So. 2d 226 (Fla. 3d DCA 2006) ..............................................27
Consumer Rights, LLC v. Union Cty.,
159 So. 3d 882 (Fla. 15` DCA 2015)..............................................................15
Corp. Express Office Prods., Inc., v. Phillips,
847 So. 2d 406 (Fla. 2003)............................................................................25
Cox. v. Adm'r U.S. Steel & Carnegie,
17 F.3d 1386 (11" Cir.),
opinion modified on reh'g, 30 F.3d 1347 (11`h Cir. 1994) ...........................29
Deck v. Engineered Laminates,
349 F.3d 1253 (10" Cir. 2003)......................................................................18
Design Pallets, Inc. v. Grayrobinson, P.A.,
515 F.Supp.2d 1246 (M.D. Fla. 2007)..........................................................25
V
TABLE OF CITATIONS
(continued)
Page
Fla. Inst'l Legal Servs., Inc. v. Fla. Dept Corrections,
579 So. 2d 267 (Fla. I" DCA 199 1) .............................................................27
Friedlander v. Nims,
755 F.2d 810 (11' Cir. 1985)..........................................................................9
Huff v. United States,
301 F.2d 760 (5" Cir. 1962)....................................................................16, 17
Illinois Dept. of Revenue v. Phillips,
771 F.2d 312 (7" Cir. 1985)..........................................................................28
In re Managed Care Litig.,
298 F.Supp.2d 1259 (S.D. Fla. 2003)...........................................................27
Ironworkers Local Union 68 v. 4straZeneca Pharms., LP,
634 F.3d 1352 (11th Cir. 2011).......................................................................8
*La Suisse, Societe D'Assurances Sur La Vie v. Kraus,
2014 U.S Dist. LEXIS 99847 (S.D.N.Y. July 21, 2014) ......................... 18,21
Lundy v. Catholic Health Sys. of Long Island Inc.,
11 F.3d 106 (2d Cir. 2013)..............................................................................9
Motorola Credit Corp. v. Uzan,
202 F. Supp. 2d 239 (S.D.N.Y. 2002),
rev'd on other grounds by, 322 F.3d 130 (2d Cir. 2003) .............................19
Murr Plumbing, Inc. v. Scherer Bros. Fin. Servs. Co.,
48 F.3d 1066 (8" Cir. 1995)............................................................................9
Pasquantino v. United States,
544 U.S. 349, 125 S.Ct. 1766 (2005)......................................................27, 28
vi
TABLE OF CITATIONS
(continued)
Page
Porcelli v. United States,
303 F.3d 452 (2d Cir. 2002............................................................................28
*Raney v Allstate Insurance Co.,
370 F.3d 1086 (11"' Cir. 2004) ...................................... i, 1, 11, 12, 13, 14, 16
Reves v. Ernst & Young,
507 U.S. 170, 113 S.Ct. 1163 (1993)......................................................22, 23
Schmuck v. United States,
489 U.S. 705, 109 S.Ct. 1443 (1989)..............................................................9
Sedima, S.P.R.L. v. Imrex Co.,
473 U.S. 479, 105 S.Ct. 3275 (1985)..............................................................9
United States v. Godwin,
765 F.3d 1306 (11' Cir 2014).......................................................................23
United States v. Goldin Indus.,
219 F.3d 1271 (11`h Cir. 2000)..........................................................24, 25, 26
*United States v. Lee,
427 F.3d 881 (11' Cir. 2005)...............................................................i, 13, 14
*United States v. Pendergraft,
297 F.3d 1198 (11" Cir. 2002) ................................ i, 1, 12, 13, 14, 17, 18, 19
United States v. Tobin,
155 F.3d 636 (3d Cir. 1998)..........................................................................21
United States v. Corona,
885 F.2d 766 (11" Cir. 1989)........................................................................17
West Hartford v. Operation Rescue,
915 F.2d 92 (2d Cir. 1990)...........................................................................26
vii
TABLE OF CITATIONS
(continued)
Other
Page
18 U.S.C. § 1341......................................................................................................11
18 U.S.C. § 1353......................................................................................................11
18 U.S.C. § 1951(a)................................................................................................17
18 U.S.C. § 1951(b)(2).............................................................................................17
18 U.S.C. § 1962(c).....................................................................................22, 23, 24
18 U.S.C. § 1964(c)............................................................................................ 2,29
28 U.S.C. 1291...........................................................................................................x
Fla. Stat. § 119.07(4)................................................................................................27
Fla. Stat. § 119.12......................................................................................................4
Fed. R. Civ. P. 9(b)....................................................................................................8
viii
PREFACE
Plaintiff/Appellant, TOWN OF GULF STREAM, shall be referred to as
"Appellant" or "the Town."
Plaintiff, WANTMAN GROUP, INC., shall be referred to as "Wantman
Group."
Defendants/Appellees, AIRLINE HIGHWAY, LLC, COMMERCE GP, INC.,
CG ACQUISITION CO., INC., CRO AVIATION, INC., ASSET ENHANCEMENT,
INC, COMMERCE REALTY GROUP, INC., COMMERCE GROUP, INC. will be
referred to as the "Corporate Defendants."
Defendants/Appellees, GIOVANI MESA, NICKLAUS TAYLOR and RYAN
WITMER will be referred to as the "Attorney Defendants."
Defendant/Appellee, CITIZENS AWARENESS FOUNDATION, INC. will be
referred to as "CAFI."
Defendant/Appellee, PUBLIC AWARENESS INSTITUTE, will be referred to
as "PAI."
Defendant/Appellee, THE O'BOYLE LAW FIRM, P.C. will be referred to as
"the O'Boyle Law Firm."
Judge Kenneth A. Marra, United States District Court Judge for the Southern
District of Florida, will be referred to as the "District Court."
Lm
The Class Action Complaint filed on February 12, 2015 shall be referred to as
the "Complaint." The Complaint and the Exhibits thereto will be cited as "Compl. at
" and "Compl. Ex. _"
The Opinion and Order (the "Order") granting the motions to dismiss and
dismissing the case with prejudice entered by the District Court on June 30, 2015 shall
be referred to as the "Order." The Order will be cited as "Order at "
Appellant's citations to the record shall be to the Docket/Tab number and
specific page number and will be cited as "DE _ at _ "
STATEMENT REGARDING SUBJECT -MATTER
AND APPELLATE JURISDICTION
The District Court had original jurisdiction pursuant to 28 U.S.C. § 1331 as the
action was brought under 18 U.S.C. §1961, § 1962 and §1964. The District Court also
had original jurisdiction pursuant to 18 U.S.C. §§ 1964(a) -(c).
This appeal is from a final order and judgment that disposed of all of
Appellant's claims. The District Court entered its Order granting Appellees' motions
to dismiss with prejudice on June 30, 2015 and entered judgment in favor of
Defendants on July 1, 2015. Thus, this Court has jurisdiction pursuant to 28 U.S.C. §
1291, which states that "[tjhe courts of appeals ... shall have jurisdiction of appeals
from all final decisions of the district courts of the United States."
x
Appellant timely filed its notice of appeal on July 29, 2015, within 30 days of
the District Court's June 30, 2015 Order and the Court's July 1, 2015 final judgment,
as prescribed by Federal Rule of Appellate Procedure 4(a).
xi
STATEMENT OF THE ISSUES
Whether the District Court erred in determining that Plaintiffs failed to
sufficiently allege the independent predicate acts of mail and wire fraud, and instead
finding these independent predicate acts were essentially superseded by the allegations
of extortion.
Whether the District Court erred in determining that this Court's opinions in
Raney v. Allstate Insurance Co., 370 F.3d 1086 (11 " Cir. 2004) and United States v.
Pendergraft, 297 F.3d 1198 (11`x' Cir. 2002) bar the Plaintiffs RICO claim.
Whether the District Court erred in dismissing, with prejudice, the Complaint
brought under the Federal Racketeer Influenced and Corrupt Organizations Act, 18
U.S.C. §§ 1961 et seg. ("RICO"), for failure to state a claim.
STATEMENT OF THE CASE
A. Nature of the Case
This case involves a scheme to defraud and extort the Town and other state and
local municipalities, municipal agencies, and private contractors throughout the State
of Florida. Part of the scheme involves the submission of thousands of public records
requests pursuant to Florida's Public Records Act, Chapter 119, Fla. Stat. (the "Act")
ostensibly to obtain the legitimate goal of obtaining public records. In reality,
Defendants do not want the relief requested (the public records); they are making the
requests with an intent to deceive as part of their scheme to defraud and to initiate the
extortion process.
Defendants corrupt the process by, among other things, snaking public records
requests using false aliases to intentionally deceive the Town into believing that
different persons or entities are making the requests in a concerted effort to avoid
paying the mandatory costs for which the requestors are otherwise responsible under
the Act. Defendants thereafter use the pending records requests and subsequent
lawsuits, coupled with the threat of further, wholly unrelated public records requests
and litigation to magnify the risk to the municipality and as leverage to force the
payment of money in the form of windfall profits exceeding the attorney fees
permitted under the Act. As a result of Defendants' inherently wrongful conduct, from
which these municipalities have the right to be free, the Town alone has incurred tens
of thousands of dollars in lost statutory service fees, unreimbursed labor costs,
attorneys' fees and other recoverable costs.
B. Course of Proceedings in District Court
On February 2, 2015, the Town and the Wantman Group, on behalf of state and
local municipalities, municipal agencies and their private contractors in Florida, filed
a class action complaint against Appellees for violations of the Racketeer Influenced
Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961, 1962 and 1964.
Motions to dismiss the class action complaint were filed by the Attorney
Defendants on March 9, 2014 (DE 9) and by the Corporate Defendants and Martin
O'Boyle on March 13, 2015 (DE 10). On March 16, 2015, Defendants Denise
2
DeMartini, CAFI, Our Public Records, Stop Dirty Government and PAI joined in the
aforementioned motions to dismiss and submitted supplemental argument (DE 12).
Also on March 16, 2015, Defendants William Ring, Jonathan O'Boyle and the
O'Boyle Law Firm also joined in the motions to dismiss and the DeMartini, et. al.
supplement (DE 13). Defendant Christopher O'Hare joined the two prior motions to
dismiss and the two prior joinders and submitted a supplemental motion to dismiss on
March 18, 2015 (DE 17).
Appellants submitted one omnibus response to Appellees' motions to dismiss
on April 6, 2015 (DE34).
Appellees thereafter filed replies: the Attorney Defendants replied on April 14,
2015 (DE 35); the Corporate Defendants, O'Boyle, DeMartini, CAFI, Our Public
Records, Stop Dirty Government and PAI submitted a joint reply on April 16, 2015
(DE 36); and O'Hare joined in the two prior replies and submitted a supplemental
reply on April 16, 2015 (DE 37).
The District Court entered its Order granting the motions to dismiss and
dismissing the case with prejudice on June 30, 2015and rendered a Final Judgment in
favor of Appellees on July 1, 2015. (DE 47, 48). On July 29, 2015, Appellants filed a
notice of appeal from the Order and Final Judgment. (DE 49).
3
C. Statement of The Facts
The Complaint details a scheme through which O'Boyle joined with the other
Defendants to deceive, defraud and extort municipal entities and private contractors
throughout Florida into paying "windfall" settlements that included a profit
component in derogation of the Act. (Compl. at $T53-61). This scheme has to date
involved the creation of the O'Boyle Law Firm (see id. at ¶ 62), the formation of
contrived not-for-profit corporations to serve as "clients" (see id. at ¶T 63-64), the
retention of an experienced public records advocate to lend it legitimacy (see id. at ¶J
65-74), the joinder of forces with another disgruntled Town resident familiar with
using public records requests and litigation as a weapon to punish public servants (see
id. at ¶T 75-88) and, ultimately, a carefully crafted onslaught of public records
requests designed to induce non-compliance and generate hundreds of lawsuits and
windfall fees (see id. at % 103-108 & Ex. B).'
The Florida RICO Enterprise originated in early 2014. (Compl. at 161). Just a
few months earlier, after the Town of Gulf Stream denied certain of his variance
requests, O'Boyle had unleashed a barrage of hundreds ofpublic records requests and
more than one dozen lawsuits on his hometown, a tiny community with a population
1 Florida's Public Records Act requires a court to assess and award against the
responsible agency the reasonable costs of enforcement, including reasonable
attorney's fees for an unlawful refusal to permit a public record to be inspected or
copied. Fla. Stat. § 119.12. Municipalities and government contractors have no
corresponding right to obtain fees and costs incurred in successfully defending against
public records suits, even those that are frivolous or were brought in bad faith.
0
of less than 1,000 residents and just 17 municipal employees. (See id. at IT 56-58).
O'Boyle succeeded in obtaining a $180,000 settlement from the Town for the
purported attorneys' fees he had incurred litigating public records suits against them.
(See id. at ¶ 59). With Jonathan O'Boyle having recently graduated from law school,
father and son realized that they could induce violations of the Act on a grand scale in
order to generate ill -gained profits. (See id. at ¶¶ 57-61).
One of the first steps in this scheme to defraud and extort was to create the
O'Boyle Law Firm. While not a Florida lawyer, Jonathan O'Boyle opened the foreign
profit corporation and operated it from the Broward County offices of one of his
father's corporate entities. (See id. at ¶ 62).
The law firm then needed "clients" to make public records requests and file
suits. (See id. at ¶ 63). O'Boyle and Jonathan, together with William Ring and Denise
DeMartini, activated several of O'Boyle's dormant corporations and not -for -profits
and formed several other not -for -profits for the sole purpose of making public records
requests to generate litigation and fees for the O'Boyle Law Firm. (See id.). One of the
new not-for-profit entities formed by the members of the Enterprise to feed public
records litigation to the O'Boyle Law Firm was the Citizens Awareness Foundation,
Inc. ("CAFI"). (See id. at ¶T 65-74). A self-employed civil rights and public
information activist, Joel Chandler, was hired as Executive Director of CAM to lend
legitimacy to Defendants' scheme and the RICO Enterprise. (See id.). He would later
resign in the spring of 2014, after learning that the Enterprise had no legitimate
interest in open government issues, but rather was focused on defrauding the Plaintiffs
and maintaining the profit center. (Compl. at ¶¶ 89-101).
Christopher O'Hare, another disgruntled Town resident who also had a history
of barraging the Town of Gulf Stream with public records requests (and who had a
prior relationship with Chandler (see id. at IT 75-76, 79)), joined the RICO Enterprise
at its inception. (See id. at ¶J 77-88). Regular meetings between O'Boyle, Jonathan
O'Boyle and O'Hare led to an agreement to work in concert to file hundreds of public
records requests. (See id. at ¶¶ 77, 103-08).
To advance the interests of the Enterprise, O'Hare began making hundreds of
public records requests using fraudulent aliases. (See id. at ¶T 84-85 & Compl. Ex. B).
O'Hare used these aliases not to exercise his right to make anonymous public records
requests to governmental entities, but to prevent the Town from charging a reasonable
fee to recoup the public resources consumed by the actions of this one individual.
Specifically, O'Hare sought to avoid paying the Town the special service charges
permitted under the Act for extensive use of information technology resources and/or
clerical assistance. (Compl. at % 82-85). The Town had begun assessing these charges
against O'Hare in early 2014, after advising that he had failed to pick up the vast
majority of records the Town had gathered in response to more than 500 public
records requests he had made since August 2013. (See id. at ¶J 82-83). To avoid the
special service charges, O'Hare began to make multiple, individual public records
requests in a single day or spread out over a few days using fraudulent aliases such as
"Buffy Howell," "Americo Vespuchi" and "Wyatt Burp" (See id. at ¶ 84 & Ex. B).
Other aliases, including "Billy Trasher," "Scotty Morgin," "Gonna White", "Groan
Orthwein," and `Bobby Gangrene" deliberately mocked Town officials. (See id.).
O'Hare thereafter turned the nearly one thousand public records requests he has made
against the Town into more than two dozen lawsuits, in many of which he is
represented by the O'Boyle Law Firm. (See id. at T¶ 86-87).
The RICO Enterprise used the barrage of public records requests and litigation
as a hammer to extract windfall attorneys' fees from their municipal and private
contractor targets. It perfected this scheme in the Town, where the Defendants have
collectively submitted more than 2,000 public records requests and where some two
dozen lawsuits were pending as of June 2014. (Compl. at T¶ 2, 103-08 & Ex. B). Once
the requests and suits were pending, O'Boyle and O'Hare blatantly threatened
hundreds more public records requests and accompanying litigation with continuously
skyrocketing legal fees absent an immediate settlement and monetary payment.
(Compl. at ¶¶127-33).
With the tiny Town of Gulf Stream as its epicenter, the scheme to defraud has
now spread to approximately 31 municipalities or agencies located throughout
11
Florida. (Compl. Ex. C). 2 At least one Florida court has labeled this type of scheme as
an "unreasonable and flagrant abuse of the state [Public Records Act]," amounting to
"nothing more than a scam." (Compl. Ex. A at 118, p.6).
D. Standard of Review
This Court reviews a district court's grant of a Rule 12(b)(6) motion to dismiss
for failure to state a claim de novo. Ironworkers Local Union 68 v. AstraZeneca
Pharms., LP, 634 F.3d 1352, 1359 (11th Cir. 2011). The allegations of the complaint
must be accepted as true and construed in the light most favorable to Plaintiffs. See id.
Motions to dismiss should not be granted if a plaintiff's "complaint ... contain[s]
sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on
its face. "' Ashcroft v. Iqbal, 556 U.S. 662, 678,129 S. Ct. 1937, 1949 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,127 S. Ct.1955,1974 (2007)). "[O]nce
a claim has been stated adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint." Twombly, 550 U.S. at 563.
Because the Town brings its RICO claims in part based on a pattern of
fraudulent activity, Rule 9(b) requires the circumstances constituting the predicate acts
of mail and wire fraud to be "stated with particularity." Fed. R. Civ. P. 9(b). A
"scheme to defraud" sufficient to support mail or wire fraud may be established even
2 Indeed, the chart attached to the Complaint as Exhibit C reflects public records suits
brought to advance the goals of the RICO Enterprise by just one Defendant, the
Citizens Awareness Foundation, Inc. and it is anticipated that the number of municipal
class members is substantially larger.
L
if the mailings or wires themselves do not contain any false or misleading information
but are in furtherance of and "incident to an essential part of the scheme." Schmuck v.
United States, 489 U.S. 705, 712-15, 109 S.Ct. 1443, 1448-50 (1989). In that
circumstance, the complaint need not plead with particularity as to the mailings
themselves, but must particularly describe the circumstances constituting the overall
fraudulent scheme. SeeMurrPlumbing, Inc. v. Scherer Bros. Fin. Servs. Co., 48 F.3d
1066, 1069 n.6 (8`h Cir. 1995); Angermeir v. Cohen, 14 F.Supp.3d 134,145 (S.D.N.Y.
2014) (citing Lundy v. CatholicHealth Sys. ofLonglsland Inc., 711 F.3d 106,119 (2d
Cir. 2013)). Nevertheless, the application of Rule 9(b) to RICO actions must not be
read to abrogate the concept of notice pleading. See Brooks v. Blue Cross & Blue
Shield of Fla., Inc., 116 F.3d 1364, 1371 (1 Vh Cir. 1997); see also Friedlander v.
Nims, 755 F.2d 810, 813 n.3 (11'h Cir. 1985) ("[A] court considering a motion to
dismiss for failure to plead fraud with particularity should always be careful to
harmonize the directives of Rule 9(b) with the broader policy of notice pleading.").
The Supreme Court has directed that "RICO is to be read broadly" and
"liberally construed to effectuate its remedial purposes," which are "nowhere more
evident than in the provision of a private action...." Sedima, S.P.R.L. v. Imrex Co.,
473 U.S. 479, 497-98, 105 S.Ct. 3275, 3285-86 (1985) (footnote omitted).
SUMMARY OF THE ARGUMENT
The Court should reverse the Order granting the Motions to Dismiss and vacate
the Final Judgment. The Complaint sufficiently alleged dozens of predicate acts of
mail and wire fraud, which alone are sufficient to support its RICO claims. In
dismissing the Complaint with prejudice, the District Court never considered case law
from this Court which explained the limited holding of the cases on which the District
Court relied. Because the Complaint identifies the commission of numerous predicate
acts of mail and wire fraud made with the intent to deceive to avoid having to pay
statutorily authorized costs and fees under the Act, the Town properly stated a claim
on which relief can be granted and dismissal pursuant to Rule 12(b)(6) was improper.
Moreover, the multi -faceted, extortionate scheme carried out by Defendants goes far
beyond simply threatening to file or actually filing frivolous lawsuits. Rather, it
involves fraudulent representations, systematic threats and intimidation of future
actions wholly unrelated to the underlying litigation activity, all done solely to obtain
leverage and generate windfall and impermissible profits. Finally, there are no
alternative grounds for a dismissal of the Complaint with prejudice at this early stage
in the litigation.
10
ARGUMENT
A. The District Court Erred in Dismissing the Complaint with Prejudice for
Failure to Allege RICO Predicate Acts.
The District Court dismissed the Complaint with prejudice solely on the basis
of a failure to adequately allege at least two qualifying predicate acts in support of the
RICO claims.' In so doing, the District Court determined that the alleged predicate
acts of mail fraud under 18 U.S.C. § 1341, wire fraud under 18 U.S.C. § 1353, and
extortion under the Hobbs Act, 18 U.S.C. § 1951, were all "ultimately dependent
upon" the threat of filing lawsuits or the actual filing of lawsuits (Order at 5-6) and
thus could never constitute RICO predicate acts. The District Court erred by failing to
separately consider the mail and wire fraud allegations and effectively treating the
extortion claim as some type of superseding predicate act, by failing to consider
subsequent law from this Court limiting Raney and Pendergraft in cases alleging an
intent to deceive, and by erroneously characterizing the scheme as mere litigation
activity that cannot constitute extortion.
1. The Use of the Mails and Wires with the Intent to Deceive the Town Into
Foregoing Special Service Fees to Which it is Entitled is a Predicate Act.
The District Court rejected the mail and wire fraud allegations out of hand,
finding that the gist of the RICO claims were for extortion. It then found this Court's
decision in Raney v Allstate Insurance Co., 370 F.3d 1086 (11°i Cir. 2004), to be
3 The District Court did not reach any of the other grounds asserted in support of the
motions to dismiss.
11
"dispositive of the issue" and the instant case "indistinguishable from Raney. " Order
at 4-5. In doing so, the District Court misconstrued this Court's decision in Raney as it
relates to mail fraud as a predicate act. Specifically, Raney, which relied upon United
States vPendergraft, 297 F.3d 1198 (11`s Cir. 2002), rejected mail fraud claims as a
predicate RICO act because there were no allegations of an intent to deceive. This
Court has consistently held that absent such an intent, there can be no scheme to
defraud, and, therefore, no predicate act. The District Court overlooked the fact that,
unlike in Raney and Pendergraft, the Complaint alleges that Defendants committed
the predicate acts of mail and wire fraud with the requisite intent to deceive.
In Pendergraft, the defendants were convicted of mail fraud and conspiracy to
commit mail fraud based on affidavits they gave falsely accusing the Chairman of the
Marion County Board of Commissioners of threatening them if their abortion clinic
remained open. 297 F.3d at 1201-02. The false affidavits were attached to a motion
for preliminary injunction that was served by mail on lawyers for the parties in
ongoing federal litigation. See id. at 1202. This Court reversed the mail fraud and
conspiracy convictions, finding that because the defendants knew that the Chairman
would deny making such threats, they "knew that their affidavits would not trick [him]
into admitting otherwise." Id. at 1209. This Court stated:
If they knew that they could not deceive Marion County, then they could
not have had an intent to deceive. See Pelletier v. Sweifel, 921 F.2d 1465,
1499 (11`h Cir. 199 1) ("A defendant cannot possibly intend to deceive
someone if he does not believe that his intended `victim' will act on his
12
deception."); Norton v. United States, 92 F.2d 753, 755 (9" Cir. 1937)
("There can be no intent to deceive where it is known to the party
making the representations that no deception can result.").
Since there was no intent to deceive, there was no "scheme to
defraud," and we hold that Pendergraft and Spielvogel's mailing of
litigation documents, even perjurious ones, did not violate the mail -fraud
statute.
Id. (emphasis added). This Court reversed solely because defendants had no intent to
deceive the County when they mailed the false affidavits.
In Raney, this Court extended Pendergraft and held that actual litigation, like
threatened litigation, cannot constitute a RICO predicate act of mail fraud absent an
intent to deceive the victim. 370 F.3d at 1087-89. This Court stated:
Similarly, we held in Pendergraft that, absent an intent to deceive the
victim, the mailing of litigation documents... did not violate the mail
fraud statute. Raney does not allege any intent to deceive him, and he
therefore cannot establish mail fraud as a predicate act for his RICO
claims. Id. at 1088 n. 2 (emphasis added).
The District Court's analysis ended with Raney (Order at 5-6) and did not consider
this Court's limitation of Raney in United States v. Lee, 427 F.3d 881(11"' Cir. 2005).
In Lee, another mail fraud predicate act case, this Court explained the limited
nature of its holding in Pendergraft. Lee involved defendants convicted of mail fraud
in part based on fraudulent litigation materials sent to opposing counsel in response to
a foreclosure action filed by a lender. 427 F.3d at 888-89. Testimony indicated that the
mailings were part of a package of documents intended to mislead and influence the
lender to discharge the mortgage. See id. at 889-91. In response to defendants'
13
reliance on Pendergraft when challenging their convictions, this Court observed that
its statements to the effect that "a malicious prosecution claim might be a more
appropriate vehicle to deal with mailings made in the course of litigation" were
"simply dicta." See id. at 890 (citing Pendergraft, 297 F.3d at 1209). It then
confirmed that its focus in Pendergraft had been on whether the defendants "had the
necessary intent to deceive":
Ultimately, it was due to the absence of an intent to deceive, and not
upon any policy concerns relating to using the mails in connection
with litigation, that we held that the mail fraud indictment failed to
charge an offense as a matter of law.
Id. (citing Pendergraft, 297 F.3d at 1209) (emphasis added). While recognizing the
"concerns inherent in allowing litigation materials to form the basis of a mail fraud
claim" and of "placing obstacles in the path of full access to our courts," this Court
nevertheless affirmed the mail fraud convictions: "we cannot countenance mailing
false claims clothed in legalese to lenders, with the intent of perpetrating or
perpetuating a fraud, even where litigation is ongoing." Id. at 891.
In sum, this Court has consistently held that without an intent to deceive there
can be no scheme to defraud (Raney, Pendergraft). Conversely, when the use of the
mails furthers a scheme to defraud and is accompanied by the intent to deceive, it
constitutes the predicate act of mail fraud (Lee).
Here, the Complaint alleges that Defendants used the mail and the wires with
the requisite intent to deceive the Town and, therefore, adequately pleads dozens of
14
violations of the mail and wire fraud statutes as predicate RICO acts. Specifically, the
Complaint details the repeated use of the mail and wires by O'Hare, using fraudulent
aliases in furtherance of the scheme to defraud, with an intent to deceive and trick the
Town into not charging him those special service charges that the Town was
otherwise entitled to recover for the extensive use of resources and clerical assistance
incurred in responding to requests from a single individual under the Public Records
Act. (Compl. at $T 82-84).
Any argument by O'Hare that the requisite intent to deceive cannot be found
because the Town knew the requests were made by him must be rejected. The
Complaint alleges that when a cursor hovers over five (5) of the 18 email aliases, a
link appears to relate those addresses to him. (Compl. at ¶ 84 & n.8-12). Plaintiffs did
not allege that Town officials took this extra step prior to incurring fees and
responding, let alone made any inquiries as to who made the subject requests. Indeed,
as Defendants noted below, the Town is not permitted to inquire as to the true identity
of records requestors. See Chandler v. Greenacres, 140 So. 3d 1080, 1084 (Fla. 4`h
DCA 2014).a
4 However, at least one Florida appellate court has recently noted that no law "requires
a governmental entity to provide public records to a generic email address, at least not
until such time as it is made clear that the address belongs to a person." Consumer
Rights, LLC v. Union Cty., 159 So. 3d 882, 886 (Fla. 15` DCA 2015) ("If a generic
email address were treated as the equivalent of a `person' within the meaning of the
constitution and the statute, an unscrupulous computer hacker could bring the work of
15
The issue is not whether the Town was actually deceived but whether
Defendants intended to deceive it. See Huff v. United States, 301 F.2d 760, 765 (5"
Cir. 1962) ("There is no requirement that the victim be actually deceived, but only that
there be a scheme to defraud... Nor is it essential that the scheme be successful..") 5 By
deliberately submitting dozens ofrequests to the Town using various fictitious aliases,
O'Hare clearly intended to deceive the Town into believing the requests originated
from different individuals in order to prevent the Town from exercising its statutory
right to recoup and offset the costs associated with such burdensome requests. The
Town has more than sufficiently alleged fraud under the circumstances.b
In sum, the District Court overlooked the allegations of the Complaint
establishing the intent to deceive, which distinguishes the instant action from Raney
a government agency to a halt... and in the process expose the agency to multiple
attorney fee awards for no good reason.").
5 In Bonner v. Pritchard, 661 F.2d 1206 (11 `h Cir. 1981), this Court adopted as binding
precedent all decisions of the former Fifth Circuit handed down before October 1,
1981.
6 Under RICO, the expansive definition of fraudulent conduct proscribed by the
federal mail and wire fraud statutes:
Reach[es] any scheme to deprive another of money orproperty by means
of false or fraudulent pretenses, representations, or promises.... The
words "to defraud" in the mail fraud statute have the common
understanding of wronging one in his property rights by dishonest
methods or schemes, and usually signify the deprivation of something of
value by trick, deceit, chicane[ry] or overreaching.
Carpenter v. United States, 484 U.S. 19, 27, 108 S.Ct. 316, 321 (1987) (internal
citations and quotations omitted).
16
and Pendergraft and supports numerous predicate acts of mail and wire fraud in
fintherance of the RICO scheme. Because the Complaint identifies far more than two
distinct predicate acts of mail and wire fraud, whether the Town also sufficiently
alleged predicate acts of extortion under the Hobbs Act is immaterial. As this Court
held in Huff, a case cited in Pendergraft, wire fraud and extortion are not mutually
exclusive; "[t]he mere fact that extortion may constitute one aspect of the transaction
does not insulate the fraudulent representations and plan from prosecution as a scheme
to defraud." 301 F.3d at 765. See also U.S. v. Corona, 885 F.2d 766 (11`h Cir. 1989)
(upholding RICO conviction where verdict left no doubt that jury relied on at least
two valid predicate acts). In any event, the Complaint sufficiently alleged extortion.
2. The Town Sufficiently Alleged Predicate Acts of Extortion Far Beyond
Mere Frivolous Litigation.
The District Court also erred in dismissing the Complaint with prejudice for
failure to allege the predicate acts of extortion. The Hobbs Act requires only
obtaining, or attempting to obtain, "property from another, without his consent,
induced by wrongful use of... fear (including fear of economic loss)." 18 U.S.C. §§
1951(a), 1951(b)(2). In dismissing the Complaint, the District Court relied on
Pendergraft and Raney, cases in which this Court had found that the threat of and
pursuit of frivolous litigation cannot constitute the predicate RICO act of extortion.
This Court opined in Pendergraft that "allowing litigants to be charged with extortion
would open yet another collateral way for litigants to attack one another" given the
17
"reality ... that litigating parties often accuse each other of bad faith." 297 F.3d at
1207. Other courts have similarly reasoned that `[w]henever an adverse verdict results
from failure of the factfinder to believe some evidence presented by the plaintiff, the
adverse party could contend that the plaintiff engaged in extortionate litigation." Deck-
v.
eck
v. Engineered Laminates, 349 F.3d 1253, 1258 (10°i Cir. 2003). See also La Suisse,
Societe D'Assurauces Sur La Vie v. Kraus, 2014 U.S Dist. LEXIS 99847, at * *25-27
(S.D.N.Y. July 21, 2014) (collecting cases). The Town does not dispute that the threat
to file, or actual filing of, a frivolous lawsuit should not alone result in a predicate
RICO act. As this Court acknowledged in Pendergraft, its holding was "a narrow
one." 297 F.3d at 1208.
This Court has not had occasion to detennine whether its narrow holding
applies to circumstances involving the systematic use of unjustified lawsuits as part
of a more extensive extortion scheme to obtain money to which the extorter is not
otherwise entitled, but others have.
In Chevron Corp. v. Donziger, for instance, the district court was faced with a
motion to dismiss RICO claims alleging that a New York lawyer and others
conceived, executed, funded and directed a scheme to extort and defraud Chevron by
bringing a baseless lawsuit, fabricating evidence for use in that lawsuit and exerting
pressure on Chevron by means of the litigation and public attacks based on false and
misleading statements to coerce it to pay monies. 871 F.Supp.2d 229, 236-37
IN
(S.D.N.Y. 2012). Defendants moved to dismiss, arguing that Chevron's predicate act
allegations of extortion were insufficient because "claims of vexatious litigation and
defamation cannot constitute extortion." Id. at 248. The court distinguished the
defendants' cases, including Pendergraft, as "hold[ing] only that frivolous litigation
and defamatory statements are not alone sufficient to constitute extortion." Id. at 249
& n. 90 (emphasis added). Where Chevron had alleged that the RICO defendants were
"executing a multi -faceted, extortionate scheme" that included not only bringing the
litigation, but fabricating evidence, making false statements, and bringing false
charges, "all for the purpose of coercing Chevron `into paying to stop the campaign
against it,"' the complaint survived the motion to dismiss. Id. at 249
Following judgment for Chevron, the district court again rejected the argument
that "the bringing of a lawsuit" "always exerts some pressure on the defendant to part
with something of value in exchange for peace" and is therefore not extortion. See
Chevron Corp. v. Donziger, 974 F. Supp. 2d 362, 579 (S.D.N.Y. 2014). It reaffirmed
' See also Calabrese v. CSC Holdings, Inc., 283 F. Supp. 2d 797, 809-10 (E.D.N.Y.
2003) (denying motion to dismiss where extortion allegations included an agreement
to compel individuals to pay money by using "misrepresentations, threats and
lawsuits" "whether or not the Defendants had any legal entitlement to the monies");
Motorola Credit Corp. v. Uzan, 202 F. Supp. 2d 239,247 n.3 (S.D.N.Y. 2002), rev'd
on other grounds by, 322 F.3d 130 (2d Cir. 2003) ("While some lower courts have
held that the threat of civil litigation or even the initiation of unjustified civil lawsuits
does not constitute a Hobbs Act predicate act under RICO ... none of these cases ...
involved, as here, the perjurious obtaining of a criminal charge ... to try to extort
economic concessions.").
19
the holding that corrupting the adjudicative process removes any First Amendment
shield; the use of wrongful means meant the conduct presented was not protected
petitioning activity. See id. at 580-81. Chevron also noted that there was no nexus
between the property the attorney sought to obtain by threatening Chevron's lawyers
with criminal prosecution and any plausible claim that those lawyers had violated
Ecuadoran law in connection with circumstances arising years earlier. See id. at 587.
The lawyer defendant had instead used the criminal prosecutions to "keep the hammer
over [Chevron's] head" and to "force [Chevron] to the table." Id. The court
summarized the distinction between the circumstances in which the threat of
economic harm is not extortionate or wrongful and those in which it is:
Put still another way, one engaged in litigation either accepts the risk of
an adverse result reached by fair and honest methods or settles, and that
is fine. But a litigant who magnifies the risks to its adversary by
corrupting the litigation in order to "get the price up" creates leverage
purely attributable to the corruption, which is inherently wrongful, which
bears no proper nexus to any plausible claim that may have been asserted
in the first place, and from which the victim has a right to be free. Id. at
580.
The Chevron analysis is entirely consistent with that conducted by Kraus, relied
on by Plaintiffs in response to the motions to dismiss. (DE 34 at 9-11). After
acknowledging the "nearly unanimous" view that "the pursuit of frivolous litigation
does not constitute the predicate RICO act of extortion," Kraus distinguished the
alleged scheme before it, which involved insurance brokers who attempted to extort
carriers by using the threat of litigation, actual litigation and future litigation on
20
behalf of policyholders to force the carriers to make payments directly to them. 2014
U.S. Dist. LEXIS 99847, at **3-4, 15, 26-27. Citing United States v. Tobin, 155 F.3d
636, 640 (3d Cir. 1998), for the proposition that litigation may constitute extortion
where the victim has "a pre-existing right to be free from the threats invoked," Kraus
found that the policyholder lawsuits were extortionate because the brokers had no
legitimate claim of right to the proceeds. Id. at *28. The threatened litigation could not
resolve any dispute between the brokers and the insurance carrier.
As in Chevron: and Calabrese, the wrongful conduct alleged here goes far
beyond mere litigation activity. The Complaint alleges that Defendants "are executing
a multi -faceted extortionate scheme," Chevron, 871 F. Supp. 2d at 249, that includes
not simply making public records requests and then threatening to file or actually
filing public records lawsuits alleging unlawful refusal in responding to those requests
if records are not produced. Instead, the RICO Defendants are alleged to have created
a business model which involved their acting in concert to make thousands of public
records requests, including through the improper use of fraudulent aliases by the mail
and wire to avoid payment of fees, filing dozens of frivolous lawsuits including suits
in the name of entities created solely for the purpose of generating litigation and
thereafter threatening to make hundreds more records requests and file additional
lawsuits if the Town would not make windfall payments of purported "attorney fees"
(which, in the case of threatened litigation, could never have been incurred) to
21
O'Boyle and O'Hare. None of the public records suits gave O'Boyle and O'Hare the
right to any monetary damages. Nor would threats by O'Boyle and O'Hare to bring
future records requests and lawsuits absent payment of monies to them resolve the
underlying public records suits brought by their affiliated entities (such as CAFI) by
production of any allegedly withheld documents.
The Complaint details the use of inherently wrongful means bearing no proper
nexus to any plausible public records claim that may first have been asserted solely to
provide the RICO Defendants with leverage to force the Town to pay money. The
alleged misconduct is indictable under the Hobbs Act and, therefore, constitutes the
predicate act of extortion for purposes of RICO. The District Court erred in dismissing
the Complaint with prejudice for failure to allege a predicate act of extortion.
B. No Alternate Grounds Exist to Affirm the District Court's Dismissal of the
Complaint with Prejudice.
The Complaint Sufficiently Alleged that All Defendants Participated,
Directly or Indirectly, in the Operation or Management of the Enterprise.
The Corporate and Attorney Defendants and O'Hare argued below that the
Complaint failed to allege that they operated or managed the RICO Enterprise. In
Reves v. Ernst & Young, the Supreme Court held that in order to "'participate, directly
or indirectly,' in the conduct of such enterprise's affairs, one must have some part in
directing those affairs." 507 U.S. 170, 179,113 S.Ct. 1163, 1170 (1993). Moreover,
"liability under § 1962(c) is not limited to upper management"; "an enterprise is
22
"operated' ... also by lower -rung participants in the enterprise who are under the
direction of upper management," or by "others "associated with' the enterprise who
exert control over it ...." Id. at 184, 113 S.Ct. at 1173. Even then, Section 1962(c)
does not "require[] significant control over or within an enterprise." United States v.
Godwin, 765 F.3d 1306, 1320 (11`h Cir 2014) (citation omitted). Reves declined to
decide "how far [liability under] § 1962(c) extends down the ladder of operation." Id.
at 184 n. 9, 113 S.Ct. at 1173 at n. 9. As this Court has recognized, however,
"[b]ecause the RICO net is woven tightly to trap even the smallest fish, those
peripherally involved with the enterprise, even lower -rung participants or virtual
outsiders may, by virtue of their conduct, find themselves ensnared." United States v.
Godwin, 765 F.3d 1306 (11`h Cir 2014) (internal quotations and citations omitted).
Here, the Complaint more than sufficiently alleges that all of the Defendants,
including O'Hare, the Corporate Defendants and the Attorney Defendants directly or,
at a minimum, indirectly, participated in the affairs of the Enterprise. O'Hare's
argument that he could not have had any part in directing the affairs of the Enterprise
because he was already making public records requests and had filed multiple lawsuits
against the Town "long before" the scheme began and because only a few
coincidences link him with the other members of the Enterprise ignores the well -pled
allegations of the Complaint. Specifically, Plaintiffs allege that O'Hare "met
regularly" with O'Boyle and Jonathan O'Boyle and agreed to work with them to
OR
accomplish the goals of the Enterprise, including by himself committing numerous --
if not hundreds -- of predicate acts of mail and wire fraud by using fraudulent aliases
to avoid being charged statutorily permitted fees. Indeed, the Complaint details the
vital roles played by each Defendant in carrying out the Enterprise's affairs. (Compl.
¶j 123-25). These allegations are more than sufficient. See, e.g., AI-Rayes v.
Willingham, 2007 WL 788401, *2-3 (M.D. Fla. Mar. 14, 2007) (denying motion to
dismiss where plaintiff met operation and management requirement by alleging that
lawyer defendant misrepresented that he was a fiduciary, created entities to buy and
sell real estate at inflated prices, and concealed the true purchase price of real estate).
2. The Complaint Sufficiently Alleged a RICO Enterprise Separate and
Distinct from its Members.
The "distinctness" requirement set forth in Section 1962, whereby the "person"
and the "enterprise" must be separate and distinct entities, "applies only when the
singular person or entity is defined as both the person and the only entity comprising
the enterprise." United States v. Goldin Indus., 219 F.3d 1271, 1275 (111' Cir. 2000)
(collecting cases) (emphasis added); accord Allstate Ins. Co. v. Palterovich, 653
F.Supp.2d 1306 (S.D. Fla. 2009). See also Cedric Kushner Promotions, Ltd. v. King,
533 U.S. 158, 161, 121 S.Ct. 2087, 2090 (2001) ("[T]o establish liability under
§1962(c) one must allege and prove the existence of two distinct entities: (1) a
`person'; and (2) an `enterprise' that is not simply the same `person' referred to by a
different name."). In fact, although RICO liability will not lie where the person and
alleged enterprise are one in the same, it is well established that a defendant can be
both a person under RICO and also part of the RICO enterprise. Kushner, 533 U.S. at
163 (finding CEO and sole shareholder could be RICO "person" and part of RICO
"enterprise" consisting of himself and the company); Goldin (holding that three
corporations could each be a RICO person and part of a RICO enterprise comprised of
a union of the three corporations). Moreover, corporations are legal entities separate
and distinct from the employees and persons that comprise them. See Kushner, 533
U.S. at 163 ("The corporate owner/employee, a natural person, is distinct from the
corporation itself, a legally different entity with different rights and responsibilities
due to its different legal status."); Corp. Express Office Prods., Inc., v. Phillips, 847
So. 2d 406, 411 (Fla. 2003). "A corporation can [therefore] be liable for the RICO
violations of its employees when `the corporation is actually the direct or indirect
beneficiary of the pattern of racketeering activity, but not when it is merely the victim,
prize, or passive instrument of racketeering." Design Pallets, Inc. v. Grayrobinson,
P.A., 515 F.Supp.2d 1246, 1257 (M.D. Fla. 2007) (declining to dismiss RICO claims
against attorneys at law firm where plaintiffs alleged law finn profited from their
activities).
The Complaint here does not define as the enterprise a singularperson or entity
but multiple individuals and entities acting free and independently of one another to
advance their own separate interests. No defendant is alleged to have merely been "the
25
victim, prize or passive instrument of racketeering"; all are alleged to have played an
active role in the Enterprise. Under the circumstances, the RICO Enterprise is
sufficiently pled. See Goldin, 219 F.3d at 277.
3. The Complaint SufficientlyAlleeed an "Injury to Business or Property."
Defendants argued to the District Court that the Town and municipal class
members had failed to allege an injury to "business or property" because the alleged
expenditures were all made in the performance of government functions. (DE 9 at 11,
DE 10 at 9). Plaintiffs distinguished the cases on which Defendants' relied, Canyon
County v. Syngenta Seeds, Inc., 519 F.3d 969 (9°i Cir. 2008) and West Hartford v.
Operation Rescue, 915 F.2d 92 (2d Cir. 1990).
As Plaintiffs pointed out below, this is not a case where the municipal class
members have alleged some diffuse injury to their general economies. Instead, the
municipal class members alleged with particularity the precise damages they have
incurred by reason of Defendants' conduct. (Compl., Exs. E, F). More specifically, the
damages to the municipal class members include the loss of statutory fees and charges
to which they otherwise would have been entitled but for the scheme to deceive and
defraud them of this revenue. The Florida Legislature does not require municipalities
to comply with their obligation to provide access to public records for free. See Board
of Cry. Conn n'rs of Highlands Ctv v. Colby, 976 So. 2d 31 (Fla. 2d DCA 2008)
(finding the cost of labor and of duplication along with the requirement of an advance
26
deposit permitted under Florida statute as "taxpayers should not shoulder the entire
expense of responding to an extensive request for public records"). In addition to
charges to copy the record, Fla. Stat. § 119.07(4), the Public Records Act expressly
"permits the addition of a special service charge keyed to actual cost if the nature or
volume of the public records requested is extensive." City of Miami Beach v. Public
Employees Relations Comm'n, 937 So. 2d 226, 227 (Fla. 3d DCA 2006) (citing Fla.
Stat. § 119.07(4)(d)). Florida courts have thus approved special service fees based on
"extensive use" that exceeds 15 minutes of time to locate, review and produce
requested public records. See Colby, 876 So. 2d at 36-37; Fla. Inst'l Legal Servs., Inc.
v. Fla. Dep't Corrections, 579 So. 2d 267, 267-69 (Fla. 15` DCA 1991).
The loss of service fees and charges deprived the Town "of a property right— in
this case money rightfully theirs — in perhaps the most legally primitive sense." In re
Managed Care Litig., 298 F.Supp.2d 1259, 1279-80 (S.D. Fla. 2003). As Southern
District of Florida Chief Judge Federico Moreno held in denying a motion to dismiss
RICO claims involving mail and wire fraud, allegations that plaintiff health care
providers "performed the services and were defrauded of rightful monetary payments"
when the managed care company defendants failed to pay claims in full and in a
timely manner "easily [fell] under the rubric of a property interest." Id. at 1279.8
8 Finding an injury to valuable property here is also consistent with the line of federal
authority holding that tax losses to governmental entities from unpaid taxes are
"property" for purposes of the mail and wire fraud statutes. See Pasquantino v. United
27
The attorneys' fees proximately caused by the RICO violations and detailed in
the Complaint and Exhibit F thereto are likewise sufficiently pled as detailed by the
Town in response to the motions to dismiss (DE 34 at 15). See also Donziger, 871 F.
Supp. 2d at 253 & n.130 ("[Plaintiff] more than sufficiently has alleged at least that it
has sustained substantial attorneys' fees and professional costs in responding to
defendants' allegedly fraudulent statements to U.S. courts ....").
4. The Complaint Sufficiently Alleged Damages Proximately Caused by
the Predicate Acts.
Defendants also suggested to the District Court that the Complaint did not
allege an injury to business or property caused "by reason of a criminal RICO
violation or predicate act. Not surprisingly, Defendants continue to use the Public
Records Act as a sword and a shield, arguing that it was the Act and voluntary
decisions of the Plaintiffs, not any predicate act by them, that "caused" the injury. (DE
10 at 11-12). Effectively, they reframe as a causation challenge the argument that
Plaintiffs did not plead predicate criminal acts. (DE 10 at 12, "Plaintiffs do not allege
States, 544 U.S. 349, 355-56,125 S.Ct. 1766, 1771-72 (2005) (finding Canada's right
to uncollected excise taxes on liquor imported into the country by petitioners was a
valuable entitlement to collect money and thus "property" within meaning of wire
fraud statute); Porcelli v. United States, 303 F.3d 452 (2d Cir. 2002) (finding
defendants' fraudulent under -reporting of sales tax returns concealed obligation to pay
state sales taxes and constituted injury to property sufficient to support RICO mail
fraud convictions); Illinois Dept. of Revenue v. Phillips, 771 F.2d 312, 314-16 (7t' Cir.
1985) (rejecting notion that governmental entity is limited to competitive or
commercial injuries under RICO; state department of revenue could bring RICO suit
against retailer to collect unpaid sales taxes).
that Defendants performed any unlawful act that caused the Plaintiffs to fail to comply
with the Public Records Law and incur damage..."). For all of the reasons set forth
above, the Town sufficiently alleged predicate acts to support the RICO claims.
In a RICO action, a plaintiff must show that it was "injured in [its] business or
property by reason of a violation of section 1962 ...." 18 USC § 1964(c) (emphasis
added). The "by reason of language requires a RICO plaintiff to establish that a
defendant's violation was the proximate cause of his injury. Bridge v. Phoenix Bond
& Indem. Co., 553 U.S. 639, 654,128 S.Ct. 2131, 2141 (2008). The proximate cause
inquiry focuses on "whether the alleged violation led directly to the plaintiffs
injuries."Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461, 126 S.Ct. 1991, 1998
(2006). RICO does not, however, require a plaintiff to show that the injurious conduct
is the sole cause of the injury. Rather, a factor is a proximate cause if it is "a
substantial factor in the sequence of responsible causation." Cox v. Adm'r U.S. Steel &
Carnegie, 17 F.3d 1386, 1399 (1 Vh Cir.), opinion modified on reh'g, 30 F.3d 1347
(11th Cir. 1994).
The Complaint alleges that Defendants scheme to deceive and defraud targeted
the Town and municipal class members throughout the State of Florida and directly
caused them damages in the form of otherwise unnecessary expenditures and costs
and attorneys' fees associated with responding to public records requests and
accompanying litigation. (Compl. at ¶J 39, 136-40 & Exs. E, F). Moreover, any
29
argument by Defendants that the damages resulting from lost statutory fees to which
municipalities are otherwise entitled under the Public Records Act as a result of the
predicate acts of mail and wire fraud were not explicitly referenced at the conclusion
of the Complaint (DE 36 at 4) is not grounds for dismissal with prejudice as any
deficiency in this regard can clearly be remedied with amendment. In sum, the
proximate cause issue does not raise a fatal pleading deficiency but simply a factual
dispute ripe for discovery.
CONCLUSION
The Class Action Complaint states a cause of action for violations of RICO.
The District Court's Order dismissing the Complaint should be reversed and the Final
Judgment in favor of Appellees vacated.
30
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FRAP 32(a)(7)(B) because this brief contains 7,131 words, excluding the parts of the
brief exempted by FRAP 32(a)(7)(B)(iii).
I further certify that this brief complies with the typeface requirements of FRAP
32(a)(5) and the type style requirements of FRAP 32(a)(6) because this brief has been
prepared in a proportionally spaced typeface using 14 -point Times New Roman.
/s/Joanne M. O'Connor
Joanne M. O'Connor, Esquire
Florida Bar No.: 0498807
i oconnor(a,jonesfoster.com
Attorney for Appellant, Town of Gulf Stream
Dated: October 8, 2015
31
CERTIFICATE OF SERVICE
I hereby certify that on October 8, 2015, I electronically filed the foregoing
Initial Brief of Appellant, Town of Gulf Stream, with the Clerk of Court using
CM/ECF and sent the original and six copies of the Initial Brief of Appellant, Town of
Gulf Stream, via Federal Express to the Clerk of the United States Court of Appeals
for the Eleventh Circuit, 56 Forsyth St., N.W., Atlanta, GA 30303.
I also certify that I served a true and correct copy of the Initial Brief of
Appellant, Town of Gulf Stream on all counsel of record identified on the attached
Service List using CM/ECF on October 8, 2015.
By: /s/ Joanne M. O'Connor
Joanne M. O'Connor, Esquire
Florida Bar No.: 0498807
ioconnor0i onesfoster.corn
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
505 South Flagler Drive, Suite 1100
West Palm Beach, FL 33401
Telephone: (561) 659-3000
Facsimile: (561) 650-5300
RicHmAN GREER, P.A.
Gerald F. Richman, Esquire
Florida Bar No.: 066457
grichmanna,richmangreer. com
Leora B. Freire, Esquire
Florida Bar No.: 013488
lfreireaa,richmanareer.com
250 Australian Ave., South, Suite 1504
West Palm Beach, FL 33401
Telephone: (561) 803-3500
32
Eric M. Sodhi, Esquire
esodhiArichmangreer.com
Florida Bar No.: 0583871
396 Alhambra Circle,
North Tower, 14th Floor
Miami, FL 33134
Telephone: (305) 373-4099
Attorneys for Appellant, Town of Gulf Stream
33
Town of Gulf Stream, et al. v. Martin E. O'Boyle, et. al.
Case No. 15 -13433 -DD
SERVICE LIST
Gerald F. Richman, Esquire
Florida Bar No.: 066457
Qrichman(i4ichmangreer.com
Leora B. Freire, Esquire
Florida Bar No: 013488
lfreire(o)richmangreer.com
RICHMAN GREER, P.A.
250 Australian Ave., South, Suite 1504
West Palm Beach, FL 33401
Telephone: (561) 803-3500
Attorneys for Plaintiff/Appellant, Town of Gulf Stream
Eric M. Sodhi, Esquire
Florida Bar No.: 0583871
esodhi(&richmangreer.com
RICHMAN GREER, P.A.
396 Alhambra Circle, North Tower, 14th Floor
Miami, FL 33134
Telephone: (305) 373-4099
Attorney for Plaintiff/Appellant, Town of Gulf Stream
Joanne M. O'Connor, Esquire
Florida Bar No.: 0498807
ioconnornjonesfoster.com
JONES FOSTER JOHNSTON & STUBBS, P.A.
505 South Flagler Drive, Suite 1100
West Pahn Beach, FL 33401
Telephone: (561) 659-3000
Attorney for Appellant, Town of Gulf Stream
34
Adam T. Rabin, Esquire
Florida Bar No.: 985635
arabin(a)mccaberabin.com
Robert C. Glass, Esquire
Florida Bar No.: 052133
rglass(ia mccaberabin.com
MCCABE RABIN, P.A.
1600 Forum Place, Suite 505
West Palm Beach, FL 33401
Telephone: (561) 659-7878
Attorneys for William Ring, Jonathan O'Boyle
and The O'Boyle Law Firm, P. C., Inc.
Daniel DeSouza, Esquire
Florida Bar No.: 19291
ddesouzaaa,desouzal aw. com
DESOUZA LAW, P.A.
101 NE Third Avenue, Suite 1500
Fort Lauderdale, FL 33301
Telephone: (954) 603-1340
Attorney for Denise DeMartini, Citizens
Awareness Foundation, Inc., Our
Public Records, LLC, StopDirtyGovernment,
LLC and Public Awareness Institute, Inc.
Mitchell W. Berger, Esquire
Florida Bar No.: 311340
mberger(a,bergersingerman.com
Steven D. Weber, Esquire
Florida Bar No.: 47543
sweber a,bergersingerman.com
BERGER SINGERMAN, LLP
350 East Las Olas Blvd., Suite 1000
Fort Lauderdale, FL 33301
Telephone: (954) 525-9900
Attorney for Martin E. O'Boyle, Airline Highway, LLC,
Commerce GP, Inc., CG Acquisition Co., Inc., CRO
Aviation, Inc., Asset Enhancement, Inc., Commerce
Realty Group, Inc., and Commerce Group, Inc.
35
Etan Mark, Esquire
Florida Bar No.: 720852
emarkCa,bergersingerman.com
BERGER SINGERMAN, LLP
1450 Brickell Avenue, Suite 1900
Miami, FL 33131
Telephone: (305) 755-9500
Attorney for Martin E. O'Boyle, Airline Highway, LLC,
Commerce GP, Inc., CG Acquisition Co., Inc., CRO
Aviation, Inc., Asset Enhancement, Inc., Commerce
Realty Group, Inc., and Commerce Group, Inc.
Stuart R. Michelson, Esquire
Florida Bar No.: 286982
smichelsonnasmichelsonlaw.com
LAW OFFICE OF STUART R. MICHELSON
800 S.E. Third Avenue, 4th Floor
Fort Lauderdale, FL 33316
Telephone: (954) 463-6100
Attorney for Giovani Mesa,
Nicklaus Taylor, Ryan Witmer, Jonathan R.
O'Boyle, William Ring and The O'Boyle Law
Firm, P.C., Inc.
Mark J. Hanna, Esquire
Florida Bar No.: 0045251
mhanna(7a,g3m1aw.com
servicena,g3mlaw.com
GMMIMADISON P.A.
401 South County Road #3272
Palm Beach, FL 33480
Telephone: (561) 223-9990
Attorney for Christopher O'Hare
p:\docs\l 3147\00086\pld\l nn9251.docx
36
Case: 15-13433 Date Filed: 12/07/2015 Page: 1 of 35
CASE NO. 15 -13433 -DD
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
CLASS ACTION
TOWN OF GULF STREAM, et al.,
Plaintiffs/Appellants,
V.
MARTIN E. O'BOYLE, et al.,
Defendants/Appellees.
On Appeal From The United States District Court
For The Southern District of Florida
Case No.: 9:15-cv-80182-KAM
REPLY BRIEF OF APPELLANTS,
TOWN OF GULF STREAM AND WANTMAN GROUP, INC.
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
Joanne M. O'Connor, Esquire
Florida Bar No.: 0498807
505 South Flagler Drive, Suite 1100
West Palm Beach, FL 33401
Telephone: (561) 659-3000
Facsimile: (561) 650-5300
Email: ioconnor(a ionesfoster.com
Attorney for Appellant, Town of Gulf
Stream
Case: 15-13433 Date Filed: 12/07/2015 Page: 2 of 35
RicHMAN GREER, P.A.
Gerald F. Richman, Esquire
Florida Bar No.: 066457
grichmanna,richmangreer.com
Leora B. Freire, Esquire
Florida Bar No.: 013488
lfreire(a)richmangreer.com
250 Australian Ave., South, Suite 1504
West Palm Beach, FL 33401
Telephone: (561) 803-3500
Eric M. Sodhi, Esquire
Florida Bar No.: 0583871
esodhi 24ichmanereer.com
396 Alhambra Circle,
North Tower, 14th Floor
Miami, FL 33134
Telephone: (305) 373-4099
Attorneys for Appellants
Case: 15-13433 Date Filed: 12/07/2015 Page: 3 of 35
Case No. 15 -13433 -DD
Town of Gulf Stream, et al. v. Martin E. O'Boyle, et al.
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and l Vh Cir. R. 26.1-
2(b) (Rev. 12/15), Appellants certify that the Certificate of Interested Persons
contained in the initial brief and two answer briefs, is complete.
C-1 of 3
Case: 15-13433 Date Filed: 12/07/2015 Page: 4 of 35
TABLE OF CONTENTS
Page
TABLEOF CONTENTS........................................................................................... i
TABLE OF AUTHORITIES.................................................................................... ii
PREFACE................................................................................................................ iv
ARGUMENT.............................................................................................................1
A. There is No Absolutely Unfettered Right to Petition
Government and the Courts.................................................................1
B. Appellees Cannot Avoid Liability by Cloaking the
Commission of RICO Predicate Acts Under the Guise of
Protected Petitioning Activity ............................................................11
C. Appellees' Arguments as to Proximate Cause, RICO
Standing and Operation or Management Lack Merit ........................ 14
CERTIFICATE OF COMPLIANCE.......................................................................16
CERTIFICATE OF SERVICE................................................................................17
1
Case: 15-13433 Date Filed: 12/07/2015 Page: 5 of 35
TABLE OF AUTHORITIES
Cases
Page
Board of Cry. Commis of Highlands Cty. v. Colby,
976 So. 2d 31 (Fla. 2d DCA 2008)................................................................13
Bryant v. Avado Brands, Inc.,
187 F.3d 1271 (11" Cir. 1999).....................................................................10
California Motor Transport Co. v. Trucking Unlimited,
404 U.S. 508, 92 S. Ct. 609 (1972) ..............................................1, 2, 3, 5, 11
City of Columbia v. Omni Outdoor Advertising,
499 U.S. 365, 111 S. Ct. 1344 (1991)............................................................3
City of Gainesville v. Fla. Power & Light Co.,
488 F. Supp. 1258 (S.D. Fla. 1980)................................................................3
Cunningham v. Dist. Attorney's Off ce for Escambia Cty.,
592 F.3d 11237 (11`h Cir. 2010)...............................................................9, 10
Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc.,
365 U.S. 127, 81 S. Ct. 523 (1961)................................................................2
Florida Inst 7 Legal Servs., Inc. v. Fla. Dept. of Corrections,
579 So. 2d 267 (Fla. 15` DCA 199 1) .............................................................13
Hanover 3201 Realty, LLC v. Vill. Supermarkets, Inc.,
2015 U.S. App. LEXIS 19694, at *38 (3d Cir. Nov. 12, 2015) ................. 4, 5
Huff v. United States,
301 F.2d 760 (5" Cir. 1962).........................................................................13
P.R. Tel. Co. v. San Juan Cable, LLC,
885 F. Supp. 2d 534 (D.P.R. 2012)................................................................4
ii
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PrimeTime 24 Joint Venture v. Nat'l Broad. Co.,
219 F.3d 92 (2d Cir. 2000).............................................................................4
Professional Real Estate Investors, Inc. v. Columbia Pictures
Indus. ("PRET'), 508 U.S. 49, 113 S. Ct. 1920 (1993) ..............................2, 5
Raney v. Allstate Ins. Co.,
370 F.3d 1086 (11" Cir. 2004).........................................................11, 12, 14
Schmuck v. United States,
489 U.S. 705, 109 S. Ct. 1443 (1989)..........................................................12
United Mine Workers v. Pennington,
381 U.S. 657, 85 S. Ct. 1585 (1965)..............................................................2
United States v. Jones,
29 F.3d 1549 (11`h Cir. 1994).......................................................................10
United States v. Lee,
427 F.3d 881 (11`h Cir. 2005)...................................................................1, 12
United States v. Pendergraft,
297 F.3d 1198 (11`h Cir. 2002).........................................................1 I, 12,14
USS -POSCO Indus. v. Contra Costa Cty. Bldg. & Constr. Trades
Council, AFL-CIO, 31 F.3d 800 (9" Cir. 1994) .............................................4
Waugh Chapel South, LLC v. United Food & Commer. Workers
Union Local 27, 728 F.3d 354 (0 Cir. 2013) ........................................2, 4, 5
Other
Ch. 119, Fla. Stat............................................................................................. passim
iii
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PREFACE
References to "Law Firm Appellees" means collectively the Appellees
Giovani Mesa, Jonathan R. O'Boyle, William Ring, Nicklaus Taylor, Ryan Witmer
and The O'Boyle Law Firm, P.C., Inc. (Answer Brief filed November 6, 2015).
References to "O'Boyle and O'Hare Appellees" means collectively the
Appellees Martin E. O'Boyle, Airline Highway, LLC, Commerce GP, Inc., CG
Acquisition Co., Inc., CRO Aviation, Inc., Asset Enhancement, Inc., Commerce
Realty Group, Inc., Commerce Group, Inc., Denise DeMartini, Citizens Awareness
Foundation, Inc., Our Public Records, LLC, StopDirtyGovernment, LLC, Public
Awareness Institute, Inc., and Christopher O'Hare. (Answer Brief filed November
12,2015).
References to "Appellees" means all Appellees in this case.
ry
Case: 15-13433 Date Filed: 12/07/2015 Page: 8 of 35
ARGUMENT
This Court should reject Appellees' efforts to cloak a massive scheme to
deceive, defraud and extort local municipalities, municipal agencies, and private
contractors throughout the State of Florida as petitioning activity protected by the
First Amendment. As the Supreme Court held in a case relied on by the Law Finn
Appellees, "First Amendment rights are not immunized from regulation when they
are used as an integral part of conduct which violates a valid statute." Cal. Motor
Transport Co. v. Trucking Unlimited, 404 U.S. 508, 514, 92 S. Ct. 609, 613 (1972)
(citation omitted). Petitioners like Appellees, whose actions are not genuinely
aimed at procuring the relief ostensibly sought, but who instead bring a series of
legal proceedings to abuse the administrative and judicial processes do not enjoy
First Amendment protections. Indeed, as this Court held in United States v. Lee,
427 F.3d 881 (11`h Cir. 2005), "we cannot countenance mailing false claims
clothed in legalese .... with the intent of perpetrating or perpetuating a fraud, even
where litigation is ongoing." 427 F.3d at 891.
A. There is No Absolutely Unfettered Right to Petition Government
and the Courts.
Appellees contend that their First Amendment right to petition the
government by making public records requests and to petition the courts by
thereafter filing lawsuits blanketly insulates their fraudulent and extortionate
conduct from liability. (Ans. Brief Law Finn Appellees at 11, "O'Hare had the
Case: 15-13433 Date Filed: 12/07/2015 Page: 9 of 35
unfettered right under Florida law to make public records requests...," and 19-21;
Ans. Brief O'Boyle & O'Hare Appellees at 9-18). In effect, Appellees assert that
their litigation activity is protected under the Noerr-Pennington doctrine, by which
those who petition government for redress are generally immune from antitrust,
statutory or tort liability as part of the First Amendment right to petition the
government. See United Mine Workers v. Pennington, 381 U.S. 657, 669, 85 S. Ct.
1585 (1965); Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S.
127, 136-39, 81 S. Ct. 523 (1961).
First Amendment immunity does not protect petitioners like Appellees,
however, when their "petitioning activity, ostensibly directed toward influencing
governmental action, is a mere sham to cover ... an attempt" to violate federal law.
Profl Real Estate Investors, Inc. v. Columbia Pictures Indus. ("PRET), 508 U.S.
49, 56, 113 S. Ct. 1920 (1993) (internal quotations omitted). See also Waugh
Chapel South, LLC v. United Food & Commer. Workers Union Local 27, 728 F.3d
354, 356 (4' Cir. 2013) ("Although the courts are a medium by which citizens may
exercise their First Amendment right to petition their government, the act of
petitioning those courts may not serve as the means to achieve illegal ends.")
(citing Cal. Motor Transport, 404 U.S. at 515, 92 S. Ct. 609). In fact, the Supreme
Court first examined this exception in California Motor Transport, cited by the
Law Firm Appellees at page 20 of their Answer Brief. The conspiracy alleged in
2
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California Motor Transport involved the filing of state and federal proceedings to
defeat the license applications of a competitor, with no expectation of achieving
the denial of the license. Cal. Motor Transport, 404 U.S. at 509, 92 S. Ct. at 611.
Recognizing the ease with which a "pattern of baseless, repetitive claims" could
corrupt the administrative process, the Court concluded:
First Amendment rights may not be used as the means or the
pretext for achieving "substantive evils" (see NAACP v. Buttons,
371 U.S. 415, 444) which the legislature has the power to control.
Certainly the constitutionality of the antitrust laws is not open to
debate. A combination of entrepreneurs to harass and deter their
competitors from having "free and unlimited access" to the agencies
and courts, to defeat that right by massive, concerted, and purposeful
activities of the group are ways of building up one empire and
destroying another... If these facts are proved, a violation of the
antitrust laws has been established. If the end result is unlawful, it
matters not that the means used in violation may be lawful.
Id. at 515, 92 S. Ct. at 614 (emphasis added). "The essence of the sham in
California Motor is that the litigant in court or the party before an administrative
agency does not really want the relief ostensibly sought from the court or
agency." City of Gainesville v. Fla. Power & Light Co., 488 F. Supp. 1258, 1265
(S.D. Fla. 1980) (emphasis added). See also City of Columbia v. Onvu Outdoor
Advertising, 499 U.S. 365, 380, 111 S. Ct. 1344, 1354 (1991) ("A `sham' situation
involves a defendant whose activities are 'not genuinely aimed at procuring
favorable government action' at all...") (citation omitted).
3
Case: 15-13433 Date Filed: 12/07/2015 Page: 11 of 35
When alleged sham litigation involves a pattern of legal proceedings as
opposed to a single legal action, the focus is not on whether any one lawsuit has
objective merit, but on whether "the legal filings [were] made, not out of a genuine
interest in redressing grievances, but as part of a pattern or practice of successive
filings undertaken essentially for purposes of harassment[.]" USS -POSCO Indus. v.
Contra Costa Cty. Bldg. & Constr. Trades Council, AFL-CIO, 31 F.3d 800, 811
(91h Cir. 1994). See also Waugh, 728 F.3d at 364; PrimeTime 24 Joint Venture v.
Nat'l Broad. Co., 219 F.3d 92, 100-01 (2d Cir. 2000); Hanover 3201 Realty, LLC
V. Vill. Supermarkets, Inc., 2015 U.S. App. LEXIS 19694, at *38 (3d Cir. Nov. 12,
2015). The analysis is entirely prospective, not retrospective. PrimeTime, 219 F.3d
at 101 (quoting USS -POSCO Indus., 31 F.3d at 811). It is therefore irrelevant that
some of the suits may prove not to be frivolous. See USS -POSCO, 31 F.3d at 811
("[T]he fact that a small number in the series of lawsuits turn out not to be
frivolous will not be fatal to a claim under California Motor Transport; even a
broken clock is right twice a day.").'
1 See also Waugh, 728 F.3d at 365 ("[T]he fact that there may be moments of merit
within a series of lawsuits is not inconsistent with a campaign of sham litigation.");
PrimeTime, 219 F.3d at 101 ("it is immaterial that some of the claims might, `as a
matter of chance,' have merit"); Hanover 3201 Realty, 2015 U.S. App. LEXIS
19694, at **39-40 ("even if a small number of the petitions tum out to have some
objective merit, that should not automatically immunize defendants from
liability"); P.R. Tel. Co. v. San Juan Cable, LLC, 885 F. Supp. 2d 534, 537 (D.P.R.
2012) ("The question in pattern cases is not whether the suits have merit, but
4
Case: 15-13433 Date Filed: 12/07/2015 Page: 12 of 35
Courts consider not only subjective motivation and objective merits, but
other indicia of bad -faith litigation to determine "whether the record evidence
presents a genuine issue of material fact as to whether the [purported petitioners]
indiscriminately filed (or directed) a series of legal proceedings without regard for
the merits and for the purpose of violating federal law." Waugh, 728 F.3d at 364.
See also Hanover 3201 Realty, 2015 U.S. App. LEXIS 19694, at **40-41 (court
should perform a "holistic review" that may include defendant's filing success as
circumstantial evidence of subjective motivations but "should also consider other
evidence of bad -faith as well as the magnitude and nature of the collateral harm
imposed on plaintiffs by defendants' petitioning activity ...") (citing Professional
Real Estate, 508 U.S. at 68) (Stevens, J., concurring). The question is inherently
factual and ill -fitted for determination as a matter of law on a motion to dismiss.
See, e.g., Cal. Motor, 404 U.S. at 515-16, 92 S. Ct. at 614 (affirming the appellate
court's reversal of the dismissal for failure to state a cause of action and allowing
discovery to proceed); Waugh, 728 F.3d at 367 (vacating dismissal as to union
defendants; "In light of the poor litigation record and the signs of bad -faith
petitioning, a factfmder could reasonably conclude that the unions have abused
their right to petition the courts and, as a result, have forfeited the protection of the
First Amendment.").
whether they were instituted as part of or pursuant to a pattern, without regard to
the merits.") (denying motion to dismiss) (citation omitted).
5
Case: 15-13433 Date Filed: 12/07/2015 Page: 13 of 35
The Complaint details thousands of public record requests and hundreds of
lawsuits brought by the RICO Enterprise throughout the State of Florida for the
sole purpose of using the governmental and judicial processes, rather than the
outcome of the processes, to harass, deceive, defraud and extort the putative class
members. Appellants allege that the RICO Enterprise used the mail and wires to
send out bogus public records requests that were "nothing more than bait, a records
request for documents that the RICO Enterprise had no intention of reviewing, and
instead, intended to be overlooked or missed by the receiving class member so as
to trigger the next step in the RICO Enterprises' scheme." (Compl. at 137). The
RICO Enterprise then demanded settlements in excess of the actual attorneys' fees
and costs incurred in responding or face the threat of additional bogus records
requests and litigation. (Compl. at 138). The RICO Enterprise never wanted the
public records they sought. Instead, they wanted just the opposite: "to cause the
recipient of the public records request to overlook the request" so they could file a
lawsuit or pre -suit settlement demand for an amount far in excess of their costs and
fees from which they would pocket a generous profit. (Compl. at 161).
Appellants' allegations are far from conclusory. Contrary to Appellees'
claim that the Complaint only infers the mailing of hundreds of "inconspicuous
and frivolous public records requests" because it only attaches one records request
made to Wantman Group by "An Onoma" (Ans. Brief of Law Firm Appellees at
C
Case: 15-13433 Date Filed: 12/07/2015 Page: 14 of 35
14), the Complaint attaches a detailed log of the hundreds of inconspicuous and
frivolous public records requests made to the Town.z While the copy filed with the
District Court was regrettably difficult to read, that exhibit logs the multitude of
requests made to the Town from
emailfmder.mail.mail@gmail.com,
inconspicuous addresses such as
publicdocsearch@gmail.com,
permit.record.search@gmail.com and record.public@yahoo.com seeking absurd
volumes of records such as "All email addresses created or received by the Town
of Gulf Stream" (Compl. at ¶ 105; DE 4-2 at p.2, No. 1) and requests plainly
intended to require the Town to gather records containing exempt information and
then incur the expenses of redacting all of that information prior to production (See
id. at p. 10, No. 322, "Any and all records containing a social security number. ,).3
As to RICO Enterprise member Christopher O'Hare, who had begun making
public records requests to the Town in July 2013, it is specifically alleged that after
making the Town jump through the hoops of responding to these frivolous
requests, he never even sought to retrieve the records he requested:
82. In response to sixty (60) individual public records requests
O'Hare submitted to the Town in a single day — on January 16, 2014,
the Town wrote to O'Hare to advise that since August 2013, O'Hare
had made more than 500 public records requests, that the Town had
already spent more than 200 hours responding to Mr. O'Hare's prior
requests, that O'Hare had failed to retrieve the vast majority of
Z See Compl. at ¶ 104; DE 4-2, Compl. Ex. B.
3 Fla. Stat. § 119.071(5)(a)5 makes confidential and exempt from disclosure social
security numbers held by an agency.
7
Case: 15-13433 Date Filed: 12/07/2015 Page: 15 of 35
documents gathered by the Town in response to his requests, and
that O'Hare had failed to pay the copy charges associated with
those documents that had been made available or to pay estimates
associated with other requests. (Compl. at ¶ 82) (emphasis added)
O'Hare nevertheless turned the nearly one thousand public records requests made
to the Town into more than two dozen lawsuits. (Compl. at ¶ 86). Indeed, although
the Town responded to the approximately 40 requests he made to it on a Sunday in
September 2013 by producing documents, providing fee estimates or advising that
no responsive documents existed, O'Hare ultimately filed seven lawsuits over just
those requests and continued to litigate them. (Compl. at ¶ 106). O'Hare sought
wholly collateral outcomes, including "to force the Town to approve his roof'
application. (Compl. at % 75-77).
With regard to the efforts of the O'Boyle Law Firm and the purported not-
for-profit Citizens Awareness Foundation, Inc. ("CAFI"), CAM's former
Executive Director, Joel Chandler, reported:
By [May 2014], it had become abundantly clear to Chandler that
DeMartini, Ring and O'Boyle were only concerned with the volume
of cases that could be generated, and of course the profits that
could be had in such cases by way of fraudulent settlement
demands, rather than any public service.
(Compl. at ¶ 98) (emphasis added). Based as they are on statements attributed to
Mr. Chandler, Appellants' allegations that the "sole intended consequence" of
these requests and associated settlement demands was to cause the class members
to expend resources and bring windfall financial gain to the RICO Enterprise
H.
Case: 15-13433 Date Filed: 12/07/2015 Page: 16 of 35
including contrived not-for-profit corporations (Compl. at ¶140, 61) (emphasis
added) are more than sufficiently supported.
There can be no question but that the extensive pattern or series of
petitioning used by Appellants to carry out their illegal scheme is detailed in the
Complaint. In the tiny Town of Gulf Stream, the epicenter of the RICO Enterprise,
Appellees had collectively submitted more than 1,000 public records requests and
filed some two dozen lawsuits as of June 2014.4 (Compl. at IT 2, 103-108 & DE 4-
4 As the chart attached as Exhibit "A" reflects, 43 public records suits have now
been filed against the Town by members of the RICO enterprise since 2013 and 40
remain pending.
Three (3) other suits brought by Appellees O'Hare and O'Boyle against the
Town are presently pending before this Court, the Town having successfully
defended the suits before the district court. See, e.g., O'Boyle v. William Thrasher,
Garrett Ward and Gulf Stream, USDC Case No. 14-cv-81248 (S.D. Fla.), USCA
Case No. 15-10997; O'Hare v. Gulf Stream, Gulf Stream Commission, Town
Manager William Thrasher, Special Magistrate Lara Donlon, Officer David
Ginsberg, Sergeant Adam Gorel, Steven Tobias and Marty Minor, USDC Case No.
13-cv-81053 (S.D. Fla.), USCA Case No. 15-14528; O'Boyle v. Gulf Stream,
USDC Case No. 14-cv-80317 (S.D. Fla.), USCA Case No. 15-13964.
Four (4) additional suits against the Town by O'Hare, O'Boyle and/or
O'Boyle's affiliated entities remain pending in Florida state and federal courts,
including suits against the Town's counsel, Robert Sweetapple, Esq., John
Randolph, Esq. and Joanne O'Connor, Esq. See O'Hare v. Gulf Stream and
William H. Thrasher, Jr., Case No. 502014000720XXXXMB AI (15`h Jud. Cir. in
and for Palm Beach Cty., Fla.); O'Boyle v. Robert A. Sweetapple and Mayor Scott
Morgan, USDC Case No. 14-cv-81250 (S.D. Fla.); O'Boyle v. Gulf Stream, Case
No. 502015CA001498XXXXMB AI (15`h Jud. Cir. in and for Palm Beach Cty.,
Fla.); O'Boyle and Asset Enhancement, Inc. v. Gulf Stream, Scott Morgan, John
Randolph, Robert Sweetapple and Joanne O'Connor, Case No.
502015CA001737XX ,XMB AJ (15`h Jud. Cir. in and for Pahn Beach Cty., Fla.).
The Court may take judicial notice of records filed in other courts under
Rule 201(b)(2) of the Federal Rules of Evidence. Cunningham v. Dist. Attorney's
9
Case: 15-13433 Date Filed: 12/07/2015 Page: 17 of 35
2, Compl. Ex. B). Further, it is alleged that he RICO Enterprise extended well
beyond the Town to encompass hundreds of spurious lawsuits by the O'Boyle Law
Firm on behalf of members of the RICO Enterprise, including more than 100
lawsuits filed just by Appellee CAM against municipalities, governmental agencies
and private contractors throughout the State of Florida, which suits are identified in
Exhibit C to the Complaint .5 (DE 4-3, Compl. Ex. Q.
In sum, the Complaint's allegations that Appellees are abusing the
administrative and judicial processes by making public records requests and filing
lawsuits throughout the State of Florida at every opportunity to harass and without
regard to the merits of those requests or a genuine interest in redressing grievances
Office for Escambia Cty., 592 F.3d 1237, 1255 (1 11h Cir. 2010) (taking judicial
notice of state and federal court proceedings in which the plaintiff was convicted or
challenged the conviction); U.S. v. Jones, 29 F.3d 1549, 1533 (11`h Cir. 1994) ("a
court may take judicial notice of a document filed in another court not for the truth
of the matters asserted in the other litigation, but rather to establish the fact of such
litigation and related filings") (citations omitted). Judicial notice may be taken at
any stage of the proceeding. Fed. R. Evid. 201(f). Further, judicial notice of certain
facts will not convert a motion to dismiss into a motion for summary judgment.
Bryant v. Avado Brands, Inc., 187 Fad 1271, 1278 (11" Cir. 1999).
5 These putative class plaintiffs include state and municipal agencies like the
Florida Department of Agriculture, the City of Miami, City of Tampa, Office of
the State Attorney, Fourth Judicial Circuit of Florida, South Florida Water
Management District. DE 4-3 at 12-15. They also include educational institutions
such as Florida Atlantic University and Florida State University Schools, Inc.,
Marco Island Academy, a public charter high school, New Beginnings High
School and Nova Southeastern University. DE 4-3 at 7-11. Numerous not -for-
profit -agencies throughout Florida have likewise been subject to the RICO
enterprise's campaign, including as the Area Agency on Aging of Central Florida,
Inc., Catholic Charities Diocese of Venice, Inc., Homeless Coalition of Palm
Beach County, Inc. and the Hope Foundation for Autism. DE 4-3 at 7-11.
10
Case: 15-13433 Date Filed: 12/07/2015 Page: 18 of 35
and suits preclude Appellees from seeking safe harbor in the First Amendment
right to petition.
B. Appellees Cannot Avoid Liability by Cloaking the Commission of
RICO Predicate Acts Under the Guise of Protected Petitioning
Activity.
Consistent with the Supreme Court's admonition in California Motor
Transport that First Amendment rights are not immunized when used as an integral
part of conduct that violates a valid statute, 404 U.S. at 513-14, 92 S. Ct. at 613,
this Court has never held that conduct violative of the federal racketeering laws is
absolutely protected simply because that conduct is advanced by threats of
litigation and actual litigation. Rather, in both United States v. Pendergraft, 297
F.3d 1198 (11`f' Cir. 2002) and Raney v. Allstate Insurance Co., 370 F.3d 1086
(11'h Cir. 2004), panels of this Court recognized that petitioning and pre -petitioning
activity can and will constitute the RICO predicate act of mail and wire fraud when
accompanied by an intent to deceive. Indeed, this Court confirmed in United States
v. Lee that it "cannot countenance mailing false claims clothed in legalese" with
the intent to perpetuate a fraud, regardless of whether litigation is ongoing. 427
F.3d at 891.
Appellees continue to give short shrift to Appellants' allegations that the
RICO Enterprise committed numerous predicate RICO acts by using the mails and
wires to make public records requests incident to an underlying scheme which
11
Case: 15-13433 Date Filed: 12/07/2015 Page: 19 of 35
itself has a fraudulent or deceptive purpose, Schnnick v. United States, 489 U.S.
705, 712-15, 109 S. Ct. 1443 (1989), including with an intent to deceive and
defraud the Town into foregoing statutorily authorized costs and fees to which it is
entitled under Florida's Public Records Act. Under this Court's precedent in
Raney, Pendergraft and Lee, where it is alleged that a member of the RICO
Enterprise intended to deceive his intended victim through the use of the mails or
the wires, a scheme to defraud will be found even where that scheme involves the
threat of or actual litigation. Appellants have alleged just such a subjective intent.
Specifically, it is alleged that after Christopher O'Hare made hundreds of public
records requests to which the Town devoted hundreds of hours responding, O'Hare
failed to retrieve the vast majority of documents or to pay associated copy charges
and the Town invoked its statutory right to assess special service charges against
him. (Compl. at ¶¶ 80-83). Only then did O'Hare begin to use the mails and the
wires to make public records requests using fictitious names. (Compl. at ¶ 84).
O'Hare used these aliases "in order to fraudulently induce the Town not to assess
special service charges against him." (Compl. at ¶¶ 84-85).
On de novo review of the District Court's grant of a Rule 12(b)(6) motion to
dismiss, this Court should reject the argument that O'Hare could never have
intended to deceive the Town as a matter of law because he was permitted to make
requests anonymously and the Town could have charged fees in response to each
12
Case: 15-13433 Date Filed: 12/07/2015 Page: 20 of 35
individual request it received. The issue is not whether the Town was actually
deceived but whether a member of the RICO Enterprise intended to deceive it. See
Haff v. United States, 301 F.2d 760, 765 (5" Cir. 1962). While O'Hare may have
the right to make anonymous public records requests, he did not exercise that right.
Instead, he affirmatively hid behind fraudulent aliases, e.g., Rodrigo Tejera,
Nevada Smith and Frank Smith, in order to make multiple requests to the Town
and avoid the extensive use fee after the Town deigned to advise him it would
begin to assess such a fee.
"Florida has long required those who seek such [public] records to defray
the extraordinary costs associated with their requests;" the Florida Legislature has
determined that taxpayers "should not shoulder the entire expense of responding to
an extensive request for public records." Bd. of Cty. Commis of Highlands Cry. v.
Colby, 976 So. 2d 31, 35-37 (Fla. 2d DCA 2008). The Florida Attorney General's
Office has directed agencies to implement the service charge authorization "in a
manner that reflects the purpose and intent of the Public Records Act." Fla. AGO
13-03. As a result, although Fla. Stat. § 119.07(4)(d) does not define "extensive
use," one Florida appellate court has upheld administrative rules defining
"extensive" to mean that it would take more than 15 minutes to respond to a
particular request. See Fla. Inst'l Legal Servs., Inc. v. Fla. Dept of Corrections,
579 So. 2d 267, 268 (Fla. 15` DCA 1991).
13
Case: 15-13433 Date Filed: 12/07/2015 Page: 21 of 35
Appellees now suggest that a single requestor can break a public records
requests into an unlimited number of sub -requests by hiding behind false aliases
and make public records requests to a Florida municipality every 15 minutes of the
day (or more often) using false aliases in order to misrepresent "[t]he nature of the
specific individual request" (Ans. Brief O'Boyle and O'Hare Appellees at 16) and
avoid the extensive use fee. Such a result would eviscerate the extensive use fee
and make it impossible for any Florida municipality to recoup its expenses.
Nothing in Florida law precludes the Town or any other entity subject to the Public
Records Act from aggregating deceptively individualized requests made by a
single requestor in a single day for purposes of the special service fee.
Most importantly, it is entirely consistent with Florida law and the facts
detailed in the Complaint to allege that O'Hare intended to deceive the Town with
regard to the extensive use fee. The District Court overlooked the allegations of the
Complaint establishing the intent to deceive associated with numerous predicate
acts of mail and wire fraud in furtherance of the RICO scheme, which
distinguishes this case from Raney and Pendergraft. As a result, this Court should
reverse the grant of the Rule 12(b)(6) motion.
C. Appellees' Arguments as to Proximate Cause, RICO Standing
and Operation or Management Lack Merit.
The O'Boyle and O'Hare Appellees repeat at pages 18-24 of their Answer
Brief the same alternative arguments made to the District Court regarding
14
Case: 15-13433 Date Filed: 12/07/2015 Page: 22 of 35
proximate cause, RICO standing and operation or management of the enterprise.
Appellants have already addressed these arguments in their Initial Brief (I.B. at 22-
30) and in their Omnibus Response to Defendants' Motions to Dismiss (DE 34 at
13-20) and stand on those prior pleadings.
CONCLUSION
The Class Action Complaint states a cause of action for violations of RICO.
Appellants ask this Court to reverse the District Court's Order dismissing the
Complaint, vacate the Final Judgment in favor of Appellees, and remand the case
to the District Court for further proceedings.
15
Case: 15-13433 Date Filed: 12/07/2015 Page: 23 of 35
CERTIFICATE OF COMPLIANCE
I CERTIFY that this brief complies with the type -volume limitation set forth
in FRAP 32(a)(7)(B) because this brief contains 4,662 words, excluding the parts
of the brief exempted by FRAP 32(a)(7)(B)(iii).
I further certify that this brief complies with the typeface requirements of
FRAP 32(a)(5) and the type style requirements of FRAP 32(a)(6) because this brief
has been prepared in a proportionally spaced typeface using 14 -point Times New
'Q m
/s/Joanne M. O'Connor
Joanne M. O'Connor, Esquire
Florida Bar No.: 0498807
ioconnor(a ionesfoster.com
Attorney for Appellant, Town of Gulf
Stream
Dated: December 7, 2015
16
Case: 15-13433 Date Filed: 12/07/2015 Page: 24 of 35
CERTIFICATE OF SERVICE
I hereby certify that on December 7, 2015, I electronically filed the
foregoing Reply Brief of Appellant, Town of Gulf Stream, with the Clerk of Court
using CM/ECF and sent the original and six copies of the Initial Brief of Appellant,
Town of Gulf Stream, via Federal Express to the Clerk of the United States Court
of Appeals for the Eleventh Circuit, 56 Forsyth St., N.W., Atlanta, GA 30303.
I also certify that I served a true and correct copy of the Reply Brief of
Appellant, Town of Gulf Stream on all counsel of record identified on the attached
Service List using CM/ECF on December 7, 2015.
By: /s/ Joanne M. O'Connor
Joanne M. O'Connor, Esquire
Florida Bar No.: 0498807
i oconnore,i onesfoster. com
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
505 South Flagler Drive, Suite 1100
West Palm Beach, FL 33401
Telephone: (561)659-3000
Facsimile: (561) 650-5300
Attorney for Appellant, Town of Gulf
Stream
17
Case: 15-13433 Date Filed: 12/07/2015 Page: 25 of 35
Ricam-tAN GREER, P.A.
Gerald F. Richman, Esquire
Florida Bar No.: 066457
Qrichmanna,richmangreer.com
Leora B. Freire, Esquire
Florida Bar No.: 013488
lfreirea,richmangreer.com
250 Australian Ave., South, Suite 1504
West Palm Beach, FL 33401
Telephone: (561) 803-3500
Eric M. Sodhi, Esquire
esodhi(a)richmanereer.com
Florida Bar No.: 0583871
396 Alhambra Circle,
North Tower, 14th Floor
Miami, FL 33134
Telephone: (305) 373-4099
Attorneys for Appellants
I".
Case: 15-13433 Date Filed: 12/07/2015 Page: 26 of 35
Town of Gulf Stream, et al. v. Martin E. O'Boyle, et. al.
Case No. 15 -13433 -DD
SERVICE LIST
Gerald F. Richman, Esquire
Florida Bar No.: 066457
grichman(&richmangreer.com
Leora B. Freire, Esquire
Florida Bar No.: 013488
lfreirena,richmangreer.com
RICHMAN GREER, P.A.
250 Australian Ave., South, Suite 1504
West Palm Beach, FL 33401
Telephone: (561) 803-3500
Attorneys for Plaintiffs/Appellants
Eric M. Sodhi, Esquire
Florida Bar No.: 0583871
esodhi(i ichmangreer.com
Florida Bar No.: 0583871
RICHMAN GREER, P.A.
396 Alhambra Circle, North Tower, 14th Floor
Miami, FL 33134
Telephone: (305) 373-4099
Attorney for Plaintiffs/Appellants
Joanne M. O'Connor, Esquire
Florida Bar No.: 0498807
i oconnor0 i onesfoster. com
JONES FOSTER JOHNSTON & STUBBS, P.A.
505 South Flagler Drive, Suite 1100
West Palm Beach, FL 33401
Telephone: (561) 659-3000
Attorney for Appellant, Town of Gulf Stream
w
Case: 15-13433 Date Filed: 12/07/2015 Page: 27 of 35
Adam T. Rabin, Esquire
Florida Bar No.: 985635
arabinaa,mccaberabin.com
Robert C. Glass, Esquire
Florida Bar No.: 052133
rglass(&mccaberabin.com
MCCABE RABIN, P.A.
1601 Forum Place, Suite 505
West Palm Beach, FL 33401
Telephone: (561) 659-7878
Attorneys for William Ring, Jonathan O'Boyle
and The O'Boyle Law Firm, P. C., Inc.
Daniel DeSouza, Esquire
Florida Bar No.: 19291
ddesouza(iMesouzalaw. com
DESOUZA LAW, P.A.
101 NE Third Avenue, Suite 1500
Fort Lauderdale, FL 33301
Telephone: (954) 603-1340
Attorney for Denise DeMartini, Citizens
Awareness Foundation, Inc., Our
Public Records, LLC, StopDirtyGovernment,
LLC and Public Awareness Institute, Inc.
Mitchell W. Berger, Esquire
Florida Bar No.: 311340
mberger(a,ber eQ rsingerman.com
Steven D. Weber, Esquire
Florida Bar No.: 47543
sweber(a)bergersingerman. com
BERGER SINGERMAN, LLP
350 East Las Olas Blvd., Suite 1000
Fort Lauderdale, FL 33301
Telephone: (954) 525-9900
Attorneys for Martin E. O'Boyle, Airline Highway, LLC,
Commerce GP, Inc., CGAcguisition Co., Inc., CRO
Aviation, Inc., Asset Enhancement, Inc., Commerce
Realty Group, Inc., and Commerce Group, Inc.
20
Case: 15-13433 Date Filed: 12/07/2015 Page: 28 of 35
Etan Mark, Esquire
Florida Bar No.: 720852
emarkAbergersingennan.com
BERGER SINGERMAN, LLP
1450 Brickell Avenue, Suite 1900
Miami, FL 33131
Telephone: (305) 755-9500
Attorney for Martin E. O'Boyle, Airline Highway, LLC,
Commerce GP, Inc., CG Acquisition Co., Inc., CRO
Aviation, Inc., Asset Enhancement, Inc., Commerce
Realty Group, Inc., and Commerce Group, Inc.
Stuart R. Michelson, Esquire
Florida Bar No.: 286982
smichelsonna,smichelsonlaw.com
LAW OFFICE OF STUART R. MICHELSON
800 S.E. Third Avenue, 4th Floor
Fort Lauderdale, FL 33316
Telephone: (954)463-6100
Attorney for Giovani Mesa,
Nicklaus Taylor, Ryan Witmer, Jonathan R.
O'Boyle, William Ring and The O'Boyle Law
Firm, P.C., Inc.
Louis Roeder, Esquire
Florida Bar No.: 0004316
lou(a)louroeder.com
7414 Sparkling Lake Road
Orlando, FL 32819
407-758-4194
Attorney for Christopher O'Hare
p:\dms\13147\00086\pld\I o06567.docx
21
Case: 15-13433 Date Filed: 12/07/2015 Page: 29 of 35
EXHIBIT "A"
Case: 15-13433 Date Filed: 12/07/2015 Page: 30 of 35
TOWN OF GULF STREAM PENDING LITIGATION
PUBLIC RECORD SUITS
1. Christopher F. O'Hare vs Town of Gulf Stream
(150' Jud. Cir, in and for Palm Beach Cty., Fla.)
Case No. 502013CA015012 AJ
2. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502013CA015380 AF
3. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502013CA016864 AD
4. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502013CA017717 AA
5. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502013CAO 17793 AA
6. Christopher F. O'Hare vs Town of Gulf Stream
(15hh Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502013CAO18093 AA
7. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502013CAOI8095 AA
8. Christopher F. O'Hare vs Town of Gulf Stream
(15"' Jud. Cir, in and for Palm Beach Cty., Fla.)
Case No. 502013CAOI8098 AA
9. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502013CA01 8 100 AA
10. Christopher F. O'IIare vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502013CA018101 AA
Case: 15-13433 Date Filed: 12/07/2015 Page: 31 of 35
11. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir, in and for Palm Beach Cty., Fla)
Case No. 502013CA018102 AA
4/28/14 Plaintiffs Notice of Voluntary Dismissal Without Prejudice
12. Christopher F. O'Hare vs Town of Gulf Stream
(15t' Jud. Cir, in and for Palm Beach Cty., Fla)
Case No. 502014CA000818 AG
5/9/14 Plaintiffs Notice of Voluntary Dismissal Without Prejudice
13. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502014CA000824 AA
14. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502014CA000835 AG
15. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502014CA000894 AA
16. Martin E. O'Boyle vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502014CA000834 AH
17. Martin E. O'Boyle vs Town of Gulf Stream
(15th Jud. Cir, in and for Palm Beach Cty., Fla.)
Case No. 502014CA001572 AJ
18. Christopher F. O'Hare vs Town of Gulf Stream
(15'h Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502014CA001776 AA
19. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502014CA01833 AA
20. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502014CA002311 AA
2
Case: 15-13433 Date Filed: 12/07/2015 Page: 32 of 35
21. Martin E. O'Boyle vs Town of Gulf Stream
(15`h Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502014CA002728 AO
I 22• Citizens Awareness Foundation, Inc. vs Town of Gulf Stream
(15a Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502014CA003396 AB
4/25/14 Notice of Voluntary Dismissal Without Prejudice.
23. StoOrtygovernment, LLC vs Town of Gulf Stream
(15` Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502014CA003721 AH
24. Martin E. O'Boyle vs Town of Gulf Stream/
Town of Gulf Stream vs Martin E. O'Boyle, Ryan Witmer, Christopher O'Hare, William
Ring, Jonathan R. O'Boyle, Denise DeMartini, Public Awareness Institute, Inc., Citizens
Awareness Foundation, Inc., Our Public Records, LLA, Stopdirtygovemment, LLC,
Commerce Group, Inc. and the O'Boyle Law Firm, P.C., Inc.
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502014CA004474 AA
25. Martin E. O'Boyle vs Town of Gulf Stream
(15s' Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502014 CA 005189 AE
26. Martin E. O'Boyle and Christopher F. O'Hare vs Town of Gulf Stream
(15`h Jud. Cir, in and for Palm Beach Cty., Fla.)
Case No. 502014CA005628 AA
27. Citizens Awareness Foundation, Inc. vs Town of Gulf Stream and Brannon Gillespie,
LLC
(15" Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502014CA006112 AG
28. Citizens Awareness Foundation, Inc. vs Town of Gulf Stream
(15 h Jud. Cir, in and for Palm Beach Cty., Fla.)
Case No. 502014CA006360 AA
29. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502014CA006848 AA
30. CG Acquisition Company, Inc. vs Town of Gulf Stream
(15 h Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No: 502014CA007123 AA
Case: 15-13433 Date Filed: 12/07/2015 Page: 33 of 35
31. Martin E. O'Boyle vs Town of Gulf Stream
(15t' Jud. Cir, in and for Palm Beach Cty., Fla.)
i
Case No: 502014CA008076 AD
32. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No: 502014CA008142 AB
33. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No: 502014CA008327 AF
34. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No: 502014CA007516 AA
35. Stopdirtygovernment, LLC and Martin E. O'Boyle vs Town of Gulf Stream
(Cty. Ct, in and for Palm Beach Cty., Fla.)
Case No: 502014CC008529 RL
36. Asset Enhancement, Inc. vs Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No: 502014CA010216 AF
37. Martin E. O'Boyle, Airline Highway, LLC, Commercial Group, Inc., Commercial Realty
Group, Inc., CRO Aviation, Inc., Our Public Records, LLC, CG Acquisition Company,
Inc. vs Town of Gulf Stream
(15th Jud. Cir, in and for Palm Beach Cty., Fla.)
Case No. 2014CA011940 AO
I
38. Christopher F. O'Hare vs Town of Gulf Stream
(Cty. Ct. in and for Palm Beach Cty., Fla.)
I Case No. 2014CC010685 RE
39. Christopher F. O'Hare vs Town of Gulf Stream
(Cty. Ct. in and for Palm Beach Cty., Fla.)
Case No. 2014CC010712 RB
40. Martin O'Boyle vs Jones Foster Service, LLC and Town of Gulf Stream
Case No. 14-14780
(17'h Jud. Cir, in and for Broward Cty., Fla.)
M
Case: 15-13433 Date Filed: 12/07/2015 Page: 34 of 35
41. Martin O'Boyle and Asset Enhancement, Inc, vs Town of Gulf Stream/
Town of Gulf Stream vs Martin E. O'Boyle, Ryan Witmer, Christopher O'Hare, William
Ring, Jonathan R. O'Boyle, Denis DeMartini, Asset Enhancement, Inc. and The O'Boyle
Law Firm, P.C., Inc.
I (15`h Jud. Cir, in and for Palm Beach Cty., Fla.)
Case No. 2015CA004564 AA
42. Christopher O'Hare vs Town of Gulf Stream/
Town of Gulf Stream vs Christopher O'Hare, Ryan Witmer, Martin E. O'Boyle, William
Ring, Jonathan R. O'Boyle, Denis DeMartini, Public Awareness Institute, Inc. Citizens
Awareness Foundation, Inc., Our Public Records, LLC, Stopdirtygovemment, LLC,
Commerce Group, Inc. and The O'Boyle Law Firm, P.C., Inc.
(15a" Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 2015CA006710 AA
43, Christopher F. O'Hare vs Town of Gulf Steam
(15`h Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 2015CA006067 AA
OTHER CASES
1. Chris O'Hare vs Town of Gulf Stream, Town of Gulf Stream Commission; Town
Manager, William Thrasher; Town Special Magistrate Lara Donlon; Officer David
Ginsberg; Sergeant Adam Gorel; Steven Tobias and Marty Minor
USDC Case No. 13-cv-81053 KLR (S.D. Fla.)
USCA Case No, 15-14528
2. Christopher F. O'Hare vs Town of Gulf Stream and William H. Thrasher, Jr.
(15 h Jud. Cir. in and for Palm Beach Cry., Fla.)
Case No. 2014CA000720 Al
3. Martin E. O'Boyle vs Town of Gulf Stream
Case No. 502014CA02607 AJ
(15`h Jud. Cir. in and for Palm Beach Cty., Fla.)
3/5/14 Notice of Voluntary Dismissal Without Prejudice
4. Martin E. O'Boyle vs Town of Gulf Stream
USDC Case No, 14-80317 CIV Middlebrooks (S.D. Fla.)
USCA Case No. 15-13964
5. Town of Gulf Stream vs Christopher F. O'Hare
(I 5h Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502014CA004631 AE
i
Case: 15-13433 Date Filed: 12/07/2015 Page: 35 of 35
6. Christopher F. O'Hare vs Town of Gulf Stream
(15th Jud. Cir, in and for Palm Beach Cty., Fla.)
Case No: 502014CA007327 AY (concluded)
j 7. Martin E. O'Boyle vs Robert A. Sweetapple and Mayor Scott Morgan
(15 1h Jud. Cir. in and for Palm Beach Cty., Fla.)
USDC Case No. 14-cv-81250 KA2A
I,
8. Martin O'Boyle vs William Thrasher, Garret Ward and Town of Gulf Stream
USDC Case No. 14-cv-81247 DTKH (S.D. Fla.)
USCA Case No. 15-10997
9. Martin E. O'Boyle v Town of Gulf Stream
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No. 502015Ca001498XX3CXMB AI
10. Martin E. O'Boyle and Asset Enhancement, Inc. vs. The Town of Gulf Stream, Scott
Morgan, John C. Randolph, Robert Sweetapple, Joanne O'Connor
(15th Jud. Cir. in and for Palm Beach Cty., Fla.)
Case No: 2015CA001737 AJ
pAdow%l3147100086Ndmki nu9731.dm
( i
9
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
February 4, 2016
Cercatore della Verita [mail to: archiverecordbuilder@gmail.com]
Re: GS # 2096 (I.D. Number 0011)
Please provide for my inspection all public records which are each of the twelve emails described
as follows:
(1) Two most recent email communications between smorgan@gulf-stream.org
or scottmorgan75@gmail.com and any email account ending in @mydelraybeach.com
(2) Two most recent email communications between smorgan@gttlf-stream.org
or scottmorgan75@gmail.com and any email account ending in @jonesfoster.com
(3) Two most recent email communications between smorgan@golf-stream.org
or scottmorgan75@gmail.com and any email account ending in @sweetapplelaw.com
(4) Two most recent email communications between smorgan@gutlf-stream.org
orscottmorgan75@gmail.com and any email account ending in @gutfstream.org
(5) Two most recent email communications between smorgan@gufstream.org
or scottmorgan75@gmail.com and any email account ending in @richmangreer.com
(6) Two most recent email communications between smorgan@gutlf-stream.org
orscottmorgan75@gmail.com and beaudelatield( ,email.com
Dear Cercatore della Verita [mail to: archiverecordbuilderaa email.coml,
The Town of Gulf Stream has received your original record request dated January 18, 2016.
Your original public records request can be found at the following link httv://www2.gulf-
stream.ore/weblink/O/doc/75924/Pagel.asnx. Please refer to the referenced number above with
any future correspondence.
For part 1, no responsive documents exist. For parts 2-6, the responsive documents can be found
at the same above link. The attachment to the 12/29/15 email is being withheld as confidential
pursuant to Rule 3-7.1 of the Rules Regulating the Florida Bar. Specifically, the attachment is a
confidential record related to a pending investigation by the Florida Bar. Neither Mayor Morgan
nor the respondents in that proceeding have waived that confidentiality.
Respectfully,
Town Clerk, Custodian of the Records
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
September 13, 2016
Cercatore della Verita [mail to: archiverecordbuilder@gmail.coml
Re: GS #2096 (I.D. Number 0011)
Please provide for my inspection all public records which are each of the twelve emails
described as follows: (1) Two most recent email communications between smorgan@gulf-
stream.org or scottmorgan75@gmail.com and any email account ending in
@mydelraybeach.com (2) Two most recent email communications between smorgan@gulf-
stream.org orscottmorgan75@gmail.com and any email account ending in @jonesfoster.com
(3) Two most recent email communications between smorgan@gulf-stream.org
or scottmorgan75@gmail.com and any email account ending in @sweetapplelaw.com (4) Two
most recent email communications between smorgan@gulf-stream.org
or scottmorgan75@gmail.com and any email account ending in @gulf-stream.org (5) Two most
recent email communications between smorgan@,gutf-stream.org
or scottmorgan75@gmail.com and any email account ending in @richmangreer.com (6) Two
most recent email communications between smorgan@gulf-stream.org
or scottmorgan75@gmail.com and beaudelatieldAynail.com
Dear Cercatore della Verita [mail to: archiverecordbuilder(a)gmail.coml,
The Town of Gulf Stream has received your original record requests dated January 18, 2016.
Your original public records request can be found at the following link:
htt-p://www2.gulf-stream.org/weblink/O/doc/75924/Pagel.mx
Please refer to the referenced number above with any future correspondence. The responsive
records can be found at the same link above.
We consider this request closed.
Sincerely,
Renee Rowan Basel
As requested by Rita Taylor
Town Clerk, Custodian of the Records
Kelly Avery
From:
scottmorgan75@gmail.com
Sent:
Tuesday, December 29, 2015 11:42 AM
To:
Kelly Avery
Subject:
Letter to Bar
Attachments:
Florida Bar-Mendezie.12-29-1S.docx
Hi Kelly,
Would you please print out the attached letter on stationary for my signature?
I will be in after 2:30 to sign it.
Thanks.
Scott W. Morgan
1315 Neptune Dr.
Boynton Beach, FL 33426
(561) 752-1936
December 29, 2015
Roberto Mendez, Esq.
The Florida Bar
Lake Shore Plaza Il, Su. 130
1300 Concord Terrace
Sunrise, FL 33323
Re: Nickalaus Taylor, The Florida Bar File No. 2015-50,426(17A)
Giovani Mesa, The Florida Bar File No. 2015-50,427(17A)
Ryan Witmer, The Florida Bar File No. 2015-00,227(17A)
William F, Ring, The Florida Bar File No. 2015-50,283(17A)
Dear Mr. Mendez:
Thank you for your letter of December 21, 2015. It references Mr. Tozian's letter of
November 9, 2015, on which apparently l was not carbon copied, as I did not receive it.
Regarding Judge Marra's order in the RICO matter, 15 -CV -8082, that matter is currently
on appeal. Please find copies of Appellant Town of Gulf Stream's Brief and Reply Brief.
Regarding the Summary Judgment order of Judge Oftedal, 502014 -CA -4474, that
decision is not yet ripe for appeal, as it was interlocutory.
By way of further response, I have directed our attorney, Robert Sweetapple, Esq., to
forward you some additional information that has recently been filed or received, and which
relates to the allegations of these complaints.
Sincerely,
Scott W. Morgan, Mayor
Town of Gulf Stream
C.C. Scott K. Tozian, Esq.
Robert Sweetapple, Esq.