HomeMy Public PortalAboutPRR 16-2252From: Chris O'Hare [mailto:chrisoharegulfstream@gmail.com]
Sent: Sunday, June 26, 2016 7:49 AM
To: Bill Thrasher <bthrasher@gulf-stream.org>; Rita Taylor <RTaylor@gulf-stream.org>;
JOConnor@jonesfoster.com; Randolph, John C. <jrandolph@jonesfoster.com>
Subject: Request to Inspect Public Records - RICO comm with attorneys at Jones Foster by Town staff
Dear Custodian of Records,
I request to inspect certain public records for the purpose of Informing myself of the historic and current
workings of the Town of Gulf Stream and its associated entities, vendors, consultants, advisers, contractors
and agents. The records I wish to inspect may be material to current, anticipated or presently unforeseen legal
action. In addition, inspection of these records is essential to my ability to make Informed comments in an
upcoming public hearing. The production of any and all responsive records is therefore urgent and must be
acted upon in compliance with Florida Statutes and established case law as soon as possible.
Before making this public record request, I first searched online and in the public records portion of your
agency's website hoping 1 could locate the public records I seek without having to write you directly.
Unfortunately I cannot find the records I request to Inspect.Therefore I am writing you now and requesting you
make every effort as required by law to produce these public records without delay. I believe the records I seek
to inspect may be in your custody AND/OR in the custody of an entity under contract with your agency. As a
courtesy to you and your contractor and to assist in expediting my access to records responsive to this request
I am notifying the contractor of this request by copy of this email. Do not assume my act of copying the
contractor with this request relieves you of any of your duties under Florida Statute. I ask that you contact those
entities yourself, inform them of their obligations under Florida Statute and produce any responsive records in
their custody as soon as possible.
I make this request pursuant to Article 1, Section 24 of the Florida Constitution and Chapter 119 of the Florida
Statutes. I hereby reserve all rights granted to me under the Florida Constitution and Florida Statutes.
I ask that you take the following action:
• Read this entire request carefully and respond accordingly.
• If you are not the custodian of the public records described herein please determine who that person is
and notify me immediately in order that I may make this request to the appropriate person without
delay.
• Reference Florida Statutes and appropriate case law when responding to this record request.
• Do NOT produce any records other than records responsive to this request.
• Identify by name the person or persons responding to this request.
• Respond to this public record request in a singular manner and do not combine this request with any
other public record requests when responding to this request.
• Once you have determined that you do or don't have any records in your custody responsive to this
request, immediately act to obtain any responsive records that may be in the custody of
your contractor(s).
• Provide only those records for inspection that do not require extensive use of information technologies
or extensive staff time or both in excess of 15 minutes.
As background to this request I call your attention to the dismissal of the Town's RICO complaint by
the Eleventh Circuit, fled 06121-2016 in Case:15-13433. I understand this decision concludes the
litigation of the RICO prosecution of Christopher O'Hare by the Town of Gulf Stream. Therefore records
previously exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution are no longer
exempt and must be produced for inspection. Here is that statute for your reference:
119.071 General exemptions from inspection or copying of public records.—
(1) AGENCY ADMINISTRATION.—(d)1. A public record that was prepared by an agency
attorney (including an attorney employed or retained by the agency or employed or retained by
another public officer or agency to protect or represent the interests of the agency having
custody of the record) or prepared at the attorney's express direction, that reflects a mental
impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and
that was prepared exclusively for civil or criminal litigation or for adversarial administrative
proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or
imminent adversarial administrative proceedings, is exempt from s. 119.07(1) and s. 24(a), Art. 1
of the State Constitution until the conclusion of the litigation or adversarial administrative
proceedings.
I request to inspect all records of communication between any member of the Town staff (including
Town Manager and Town Clerk) of the Town of Gulf Stream and any attorney at the firm of Jones Foster
Johnston & Stubbs P.A. (the entire firm known collectively as the Town Attorney) that is wholly or
partly concerning RICO. Please do not include any records of communication that are already available
online as part of the Town's published minutes of public meetings.
I ask you to take note of §119.07(1)(c) Florida Statues and your affirmative obligation to (1)
promptly acknowledge receipt of this public records request and (2) make a good faith effort which "includes
making reasonable efforts to determine from other officers or employees within the agency whether such a
record exists and, if so, the location at which the record can be accessed." I am, therefore, requesting that you
notify every individual and entity in possession of records that may be responsive to this public records request,
including individuals and entities under contract with your agency, to preserve and produce all responsive
records on an immediate basis.
If you contend that any of the records I am seeking, or any portion thereof, are exempt from inspection or
disclosure please cite the specific exemption as required by §119.07(1)(e) of the Florida Statutes and state in
writing and with particularity the basis for your conclusions as required by §119.07(1)(f) of the Florida Statutes.
Produce for my inspection all responsive records and ONLY redact that portion of the record that you consider
exempt. To be clear, if you consider an entire record to be exempt, produce that record in its entirety with all
portions redacted that you consider exempt. I specifically ask you to do this in order that I may inspect fully
redacted records for the purpose of challenging a particular redaction or establishing a reference for a future
request of a record that Is only temporarily exempt, as in the case of a public record that was prepared by an
agency attorney exclusively for litigation and Is only exempt from disclosure until the conclusion of the litigation.
I ask you to note that under §119.07(2)(a) of the Florida Statutes that a person who has custody of a public
record and who asserts that an exemption applies to a particular public record or part of such record shall
delete or excise from the record only that portion of the record with respect to which an exemption has been
asserted and validity applies, and such person shall produce the remainder of such record for Inspection and
examination.
If the public records being sought are maintained by your agency or contactors for your agency, In an electronic
format please produce the records In the original electronic format in which they were created or
received. See §119.01(2xf), Florida Statutes.
Again I ask that you provide only those records for inspection that do not require extensive use of information
technologies or extensive staff time or both in excess of 15 minutes. Take note of §119.07(4)(a)3.(d) Florida
Statues and if you anticipate that any records exist, the production for inspection of which will require extensive
use of information technologies or extensive staff time or both in excess of 15 minutes, then please provide
those records that can be produced within the first 15 minutes and advise me of the cost you anticipate to be
incurred by your agency for the remaining records prior to incurring this cost. Please do not incur any costs on
my behalf without first obtaining my written authorization to proceed. If you produce only a portion of all existing
responsive records, please tell me that your response includes only a portion of all existing records responsive
to this request.
If you anticipate the need to incur any costs that I would be statutorily required to pay in order to inspect these
public records which would exceed $1.00 please notify me in advance of your incurring that cost with a written
estimate of the total cost. Please be sure to itemize any estimates so as to indicate the total number of pages
and/or records, as well as to distinguish the cost of labor and materials. Again, please do not incur any costs on
my behalf without first obtaining my written authorization to proceed.
The term public records, as used herein, has the same meaning and scope as the definition of Public records
adopted by the Florida Legislature as §119.011(12)of the Florida Statutes.
A record that does not exist because of its disposition requires the creation of a disposition record. In all
instances where you determine a record does not exist please determine if the record once existed and In Its
replacement provide the disposition record for my inspection.
All responses to this public records request should be made in writing to the following email address:
chrisoharegulfstream@gmaii.com
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via a -m
August 18, 2016
Chris O'Hare [mail to: chrisohareeulfstream(agrnail.com]
Re: GS #2185 (wantman - jf), GS #2186 (wantman — GS comm), GS #2188 (wantman — BS),
GS #2249 (RICO comm with attorneys at Jones Foster), GS #2251 (RICO comm between
and/or among attorneys at Richman Greer), GS #2252 (RICO comm with attorneys at
Jones Foster by Town staff), GS #2255 (records between and/or among attorneys at Jones
Foster Johnston & Stubbs P.A: RICO), GS #2257 (earliest 3 comm. between Sweetapple
and Richman about RICO), GS #2259 (earliest 3 comm. between Jones Foster and
Richman about RICO)
This is a request for records in your custody AND in the custody of contractors. Please
immediately forward this request to them for their production of records. Any and all public
records of communication between The Wantman Group (including all partners, employees and
agents) and the law firm of Jones Foster Johnston & Stubbs P.A. (including all attorney, partner
and employee members of that firm), the subject of which is wholly or partly regarding the
Town's RICO complaint and appeal against Christopher O'Hare.
This is a request for records in your custody AND in the custody of contractors. Please
immediately forward this request to them for their production of records. Any and all public
records of communication between The Wantman Group (including all partners, employees and
agents) and the Town of Gulf Stream (including all employees, appointees, ojficials, assignees,
and consultants including Town Manager, Town Clerk, Town Police Chief, Town
Commissioners, Town Mayor, Town Departments, Town Police Officers, Town Employees, Town
Engineer) the subject of which is wholly or partly regarding the Town's RICO complaint and
appeal against Christopher O'Hare.
This is a request for records in your custody AND in the custody of contractors. Please
immediately forward this request to them for their production of records. Any and all public
records of communication between The Wantman Group (including all partners, employees and
agents) and the law firm of Sweetapple, Broeker & IVarkus (including all attorney, partner and
employee members of that firm), the subject of which is wholly or partly regarding the Town's
RICO complaint and appeal against Christopher O'Hare.
I request to inspect all records of communication between any Town Commissioner of the Town
of Gulf Stream and any attorney at the firm of Jones Foster Johnston & Stubbs P.A. (the entire
firm known collectively as the Town Attorney) that is wholly or partly concerning RICO. Please
do not include any records of communication that are already available online as part of the
Town's published minutes ofpublic meetings.
I request to inspect all records of communication created by any attorney at the firm of Richman
Greer, P.A. that is wholly or partly concerning the Town of Gulf Stream's RICO complaint. I
remind you that any communication between and/or among attorneys at this firm that was made
on behalf of the Town is a record of the public's business and therefore it is a public record and
subject to disclosure as per §119.07 of the Florida Statutes and Article 1, Section 24 of the
Florida Constitution.
I request to inspect all records of communication between any member of the Town staff
(including Town Manager and Town Clerk) of the Town of Gulf Stream and any attorney at the
firm of Jones Foster Johnston & Stubbs P.A. (the entire firm known collectively as the Town
Attorney) that is wholly or partly concerning RICO. Please do not include any records of
communication that are already available online as part of the Town's published minutes of
public meetings.
I request to inspect any internal* record created by any attorney at the firm of Jones Foster
Johnston & Stubbs P.A. the subject matter of which is wholly orpartly concerning the Town of
Gulf Stream's RICO complaint**. These records I request to inspect include but are not limited
to any record that was prepared by any attorney at the firm of Jones Foster Johnston & Stubbs
P.A. or prepared at the express direction of any so described attorney, that: • reflects a mental
impression, conclusion, litigation strategy, or • legal theory of the attorney or the agency, or
that was prepared exclusively for civil or criminal litigation or for adversarial administrative
proceedings, or • that was prepared in anticipation of imminent civil or criminal litigation or
imminent adversarial administrative proceedings, These records may include but not be limited
to electronic records such as emails, voice mail, text messages, social media, and digital files
located on cell phones, computer hard drives, flash drives, servers, cloud storage, google drive
and similar forms of hard and soft electronic devices capable of containing electronic records.
PLEASE NOTE: • FIRST PRODUCE FOR MYINSPECTIONANYRECORDS OF INTERNAL
COMMUNICATIONBETWEENAND AMONG PERSONS 17V THE FIRMINCL UDING
RECORDS THAT MAYNOT HAVE BEEN COPIED OR SHARED WITHANYPERSONS
OUTSIDE THE FIRM. • PRODUCE RECORDS THAT DO NOT REQUIRE EXTENSIVE USE
OF INFORMATION TECHNOLOGIES OR EXTENSIVE STAFF TIME OR BOTH IN EXCESS
OF 15 MINUTESAND ALONG WITH THOSE RECORDS PROVIDE THE COST FOR
PRODUCING THE BALANCE OF THE RESPONSIVE RECORDS *The word "internal" as
used above means a record of communication between and among persons in the firm; a record
created by a person in the firm for the primary purpose of recording and making available
information or knowledge to persons in the firm; a record archived in the firm which documents,
memorializes or otherwise records an event, fact, impression, opinion, strategy, plan, or
conclusion. **The phrase "RICO complaint" as used above means the entire scope of the Town
of Gulf Stream's RICO complaint process from initial inspiration through consideration,
planning, initiation, application, appeal and resolution.
I request to inspect the three earliest created records of communication between any attorney at
the firm of Sweetapple, Broeker & Varkus and any attorney at the firm of Richman Greer, P.A.
that is wholly or partly concerning RICO*. Please do not include any records of communication
that are already available online as part of the Town's published minutes of public meetings. The
records I request to inspect may include but not be limited to electronic records such as emails,
voice mail, text messages, social media, and digital files located on cell phones, computer hard
drives, flash drives, servers, cloud storage, google drive and similar forms of hard and soft
electronic devices capable of containing electronic records.
I request to inspect the three earliest created records of communication between any attorney at
the firm of Jones Foster Johnston & Stubbs, P.A. and any attorney at the firm of Richman Greer,
P.A. that is wholly or partly concerning RICO*. Please do not include any records of
communication that are already available online as part of the Town's published minutes of
public meetings. The records I request to inspect may include but not be limited to electronic
records such as emails, voice mail, text messages, social media, and digital files located on cell
phones, computer hard drives, flash drives, servers, cloud storage, google drive and similar
forms of hard and soft electronic devices capable of containing electronic records.
Dear Chris O'Hare [mail to: chrisoharegulfstream(@, mail.coml,
The Town of Gulf Stream has received your public records requests dated May 18, 2016, May
19, 2016, May 20, 2016, June 24, 2016, June 25, 2016, June 26, 2016, June 28, 2016, June 30,
2016, July 1, 2016 and July 2, 2016. The original public record requests can be found at the
following links:
http://www2.gulf-stream.org/weblink/0/doc/90746/Pa
eg l.asnx
http://www2.gulf-stream.org/weblink/O/doc/90745/Pagel.aspx
httT)://www2.gulf-stream.org/weblink/O/doc/90814/Pagel.asi)x
htW://www2.gulf-stream.org/weblink/O/doc/94484/Pagel.aspx
httv://www2.gulf-stream.org/weblink/O/doc/94678/Pagel.asvx
htW://www2.gulf-stream.org/weblink/O/doc/94684/Pagel.asl2x
htti)://www2.galf-stream.org/weblink/O/doc/94727/Pagel.asl)x
httv://www2.gulf-stream.org/weblink/O/doc/95015/Pagel.asi3x
http://www2.gulf-stream.org/weblink/O/doc/95239/Pagel.aspx
Your statement that records regarding the RICO lawsuit are no longer subject to the work
product exemption under the Public Records Act is incorrect.
Indeed, the RICO suit is not concluded for purposes of the work product exemption under the
Public Records Act because of your filing of post judgment motions. See Wagner v. Orange Cty,
960 So. 2d 785 (Fla. 5th DCA 2007). As a result, to respond to each of the foregoing requests
will require extensive clerical or supervisory assistance. Specifically, the records that you seek
will need to be reviewed by the Town's attorneys to determine if they were created by counsel
exclusively for litigation or in anticipation of imminent litigation and reflect the mental
impressions, conclusions, litigation strategies, or legal theories of the Town's attorneys or
otherwise exempt under Florida Statutes § 119.0171(1)(d)I until the conclusion of the litigation.
The Town is willing to hold this request in abeyance until such time as the RICO lawsuit is
concluded for purposes of the work product exemption under the Public Records Act. Please
advise whether you would like the Town to do so or whether you would like estimates of the cost
that will be incurred to review and redact all of the records that you seek for work product
privileged material.
Sincerely,
Town Clerk
Custodian of the Records
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
September 22, 2016
Chris O'Hare [mail to: chrisohareeulfstream(ia gmail.com
Re: GS #2185 (wantman - jt), GS #2186 (wantman — GS comm), GS #2188 (wantman — BS),
GS #2249 (RICO comm with attorneys at Jones Foster), GS #2251 (RICO comm between
and/or among attorneys at Richman Greer), GS #2252 (RICO comm with attorneys at
Jones Foster by Town staff), GS #2255 (records between and/or among attorneys at Jones
Foster Johnston & Stubbs P.A.- RICO), GS #2257 (earliest 3 comm. between Sweetapple
and Richman about RICO), GS #2259 (earliest 3 comm. between Jones Foster and
Richman about RICO)
This is a request for records in your custody AND in the custody of contractors. Please
immediately forward this request to them for their production of records. Any and all public
records of communication between The Wantman Group (including all partners, employees and
agents) and the law firm of Jones Foster Johnston & Stubbs P.A. (including all attorney, partner
and employee members of that firm), the subject of which is wholly or partly regarding the
Town's RICO complaint and appeal against Christopher O'Hare.
This is a request for records in your custody AND in the custody of contractors. Please
immediately forward this request to them for their production of records. Any and all public
records of communication between The Wantman Group (including all partners, employees and
agents) and the Town of Gulf Stream (including all employees, appointees, officials, assignees,
and consultants including Town Manager, Town Clerk, Town Police Chief, Town
Commissioners, Town Mayor, Town Departments, Town Police Officers, Town Employees, Town
Engineer) the subject of which is wholly or partly regarding the Town's RICO complaint and
appeal against Christopher O'Hare.
This is a request for records in your custody AND in the custody of contractors. Please
immediately forward this request to them far their production of records. Any and all public
records of communication between The Wantman Group (including all partners, employees and
agents) and the law firm of Sweetapple, Broeker & varkuus (including all attorney, partner and
employee members of that firm), the subject of which is wholly or partly regarding the Town's
RICO complaint and appeal against Christopher O'Hare.
I request to inspect all records of communication between any Town Commissioner of the Town
of Gulf Stream and any attorney at the firm of Jones Foster Johnston & Stubbs P.A. (the entire
firm known collectively as the Town Attorney) that is wholly or partly concerning RICO. Please
do not include any records of communication that are already available online as part of the
Town's published minutes ofpublic meetings.
I request to inspect all records of communication created by any attorney at the firm of Richman
Greer, P.A. that is wholly or partly concerning the Town of Gulf Stream's RICO complaint. I
remind you that any communication: between and/or among attorneys at this firm that was made
on behalf of the Town is a record of the public's business and therefore it is a public record and
subject to disclosure as per §119.07 of the Florida Statutes and Article 1, Section 24 of the
Florida Constitution.
1 request to inspect all records of communication between any member of the Town staff
(including Town Manager and Town Clerk) of the Town of Gulf Stream and any attorney at the
firm of Jones Foster Johnston & Stubbs P.A. (the entire firm known collectively as the Town
Attorney) that is wholly or partly concerning RICO. Please do not include any records of
communication that are already available online as part of the Town's published minutes of
public meetings.
I request to inspect any internal* record created by any attorney at the firm of Jones Foster
Johnston & Stubbs P.A. the subject matter of which is wholly or partly concerning the Town of
Gulf Stream's RICO complaint**. These records I request to inspect include but are not limited
to any record that was prepared by any attorney at the firm of Jones Foster Johnston & Stubbs
P.A. or prepared at the express direction of any so described attorney, that: • reflects a mental
impression, conclusion, litigation strategy, or • legal theory of the attorney or the agency, or
that was prepared exclusively for civil or criminal litigation or far adversarial administrative
proceedings, or • that was prepared in anticipation of imminent civil or criminal litigation or
imminent adversarial administrative proceedings, These records may include but not be limited
to electronic records such as emails, voice mail, text messages, social media, and digital files
located on cell phones, computer hard drives, flash drives, servers, cloud storage, google drive
and similar forms of hard and soft electronic devices capable of containing electronic records.
PLEASE NOTE: • FIRST PRODUCE FOR MYINSPECTIONANY RECORDS OF INTERNAL
COMMUNICATION BETWEENAND AMONG PERSONS IN THE FIRMINCLUDING
RECORDS THAT MAY NOT HAVE BEEN COPIED OR SHARED WITHANYPERSONS
OUTSIDE THE FIRM. • PRODUCE RECORDS THAT DO NOT REQUIRE EXTENSIVE USE
OF INFORMATION TECHNOLOGIES OR EXTENSIVE STAFF TIME OR BOTHINEXCESS
OF 15 MINUTES AND ALONG WITH THOSE RECORDS PROVIDE THE COST FOR
PRODUCING THE BALANCE OF THE RESPONSIVE RECORDS. *The word "internal" as
used above means a record of communication between and among persons in die firm; a record
created by a person in the firm for the primary purpose of recording and making available
information or knowledge to persons in the firm; a record archived in the firm which documents,
memorializes or otherwise records an event, fact, impression, opinion, strategy, plan, or
conclusion. **The phrase "RICO complaint" as used above means the entire scope of the Town
of Gulf Stream's RICO complaint process from initial inspiration through consideration,
planning, initiation, application, appeal and resolution.
I request to inspect the three earliest created records of communication between any attorney at
the firm of Sweetapple, Broeker & Varkus and any attorney at the firm of Richman Greer, P.A.
that is wholly or partly concerning RICO*. Please do not include any records of communication
that are already available online as part of the Town's published minutes ofpublic meetings. The
records I request to inspect may include but not be limited to electronic records such as emails,
voice mail, text messages, social media, and digital files located on cell phones, computer hard
drives, flash drives, servers, cloud storage, google drive and similar forms of hard and soft
electronic devices capable of containing electronic records.
I request to inspect the three earliest created records of communication between any attorney at
the firm of Jones Foster Johnston & Stubbs, P.A. and any attorney at the firm of Richman Greer,
P.A. that is wholly or partly concerning RICO*. Please do not include any records of
communication that are already available online as part of the Town's published minutes of
public meetings. The records I request to inspect may include but not be limited to electronic
records such as emails, voice mail, text messages, social media, and digital files located on cell
phones, computer hard drives, flash drives, servers, cloud storage, google drive and similar
forms of hard and soft electronic devices capable of containing electronic records.
Dear Chris O'Hare [mail to: chrisoharegulfstreamna,gmail.coml,
The Town of Gulf Stream has received your public records requests dated May 18, 2016, May
19, 2016, May 20, 2016, June 24, 2016, June 25, 2016, June 26, 2016, June 28, 2016, June 30,
2016, July 1, 2016 and July 2, 2016. The original public record requests can be found at the
following links:
httu://www2.gulf-stream.ore/weblink/0/doc/90746/Pagel.aspx
httn://www2.gulf-stream.org/weblink/O/doc/90745/Pagel.asvx
http://www2.gulf-stream.org/weblink/O/doc/90814/Pagel.ast)x
http://www2.gulf-stream.org/weblink/0/doc/94484/Pa eg l.asax
http://www2.gulf-stream.org/weblink/O/doc/94678/Pagel.aspx
httu://www2.gulf-stream.org/weblink/0/doc/94684/Pa eg 1_aspxx
httr)://www2.gulf-stream.org/weblink/O/doc/94727/Pagel.aspx
http://www2.gulf-stream.org/weblink/O/doc/95015/Pagel.asvx
hLtp://www2.gulf-stream.org/weblink/O/doc/95239/Pagel.asr)x
On August 18, 2016, we sent you an e-mail stating that the Town is willing to hold these requests
in abeyance until such time as the RICO lawsuit is concluded for purposes of the work product
exemption under the Public Records Act. Please advise whether you would like the Town to do
so or whether you would like estimates of the cost that will be incurred to review and redact all
of the records that you seekfor work product privileged material.
As you know, the Town's policy is if we do not hear back from you within 30 days of our
response to you, we will consider the request closed. It is now past the 30 day mark. We are
willing to give you an additional 30 days to advise whether you would like the Town to hold the
above record requests in abeyance until such time as the RICO lawsuit is concluded for purposes
of the work product exemption under the Public Records Act or whether you would like
estimates of the cost that will be incurred to review and redact all of the records that you seek for
work product privileged material. If we do not hear back from you within 30 days of this letter,
we will consider these requests closed.
Sincerely,
jz"I f oW". 9wr
As requested by Rita Taylor
Town Clerk, Custodian of the Records
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
December 1, 2016
Chris O'Hare [mail to: chrisoharegulfstream(a,email.com ]
Re: GS #2252 (RICO comm with attorneys at Jones Foster by Town staff)
1 request to inspect all records of communication between any member of the Town staff
(including Town Manager and Town Clerk) of the Town of Gulf Stream and any attorney at the
firm of Jones Foster Johnston & Stubbs P.A. (the entire firm known collectively as the Town
Attorney) that is wholly or partly concerning RICO. Please do not include any records of
communication that are already available online as part of the Town's published minutes of
public meetings.
Dear Chris O'Hare [mail to: chrisohareeulfstream(a�gmail.com],
The Town of Gulf Stream has received your public records request dated June 26, 2016. You
should be able to view your original requests at the following link:
http://www2.gulf-stream.org/weblink/O/doc/94684/Pa eg l.asnx
You have asked that the Town only provide those records that do not require extensive use of
information technologies or extensive staff time or both in excess of 15 minutes and that the
Town provide an estimate of the cost that would be required to fulfill the request as permitted by
the Public Records Act. To that end, the Town has spent at least 15 minutes on your request and
is providing with you with a partial response at the same link above.
The Town estimates that to fully respond to your request will require an additional half hour of
IT support at $95.00 per hour and a half hour of administrative support at $35.60 per hour, the
labor cost of the personnel providing the service, per Fla. Stat. § 119.07(4)(d).
(1/2 hour @ 95.00 = $47.50 + %: hour @ $35.60 = $17.80) = Deposit Due: $65.30 in cash or
check.
If the costs of producing these documents will exceed your deposit, the Town will provide you
with an initial production of responsive records and an estimate for the production of any
additional responsive records. If the costs of production are less than the deposit, the Town will
provide you with the responsive records and a refund.
Upon receipt of your deposit, the Town will use its very best efforts to further respond to your
public records request in a reasonable amount of time. If we do not hear back from you within
30 days of this letter, we will consider this closed.
Sincerely,
Rpt ROW" $"
As requested by Rita Taylor
Town Clerk, Custodian of the Records
Renee Basel
From: OConnor, Joanne M. <JOConnor@jonesfoster.com>
Sent: Friday, October 9, 2015 9:31 AM
To: scottmorgan75@gmail.com; Bill Thrasher
Cc: Randolph, John C.; 'rsweetapple@sweetapplelaw.com'
Subject: Gulf Stream- RICO Appeal
Attachments: 1NE6632-brief initial final.PDF; 1NE8104-brief wantman group.pdf
Attached please find a copy of the Initial Brief of Gulf Stream that was filed with the Eleventh Circuit Court of Appeals
yesterday in the RICO Appeal, along with the brief filed by Wantman Group, which adopts and incorporates our filing.
JONESFOSTER
Joanne M. O'Connor Attorney
Direct Dial: 561.650.0498 1 Pas: 561.650.5300 1 ioconnor(a ionesfoster.com
Jones, Poster, Johnston & Stubbs, P.A.
Flagler Center Tower, 505 South Plagler Drive, Suite 1100, \Fest Palm Beach, Florida 33401
561-659-3000 1 www.ionesfoster.com
Incoming emails are filtered which may delay receipt 'Phis email is personal to the named recipient(g) 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 notify- us by email and delete the original message
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
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: joconnoraionesfoster.com
Attorney for Appellant, Town of Gulf Stream
RICHMAN GREER, P.A.
Gerald F. Richman, Esquire
Florida Bar No: 066457
grichman(i4richmangreencom
Leora B. Freire, Esquire
Florida Bar No: 013488
lfreire(ZOichmanereer.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(a ichmangreer.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 ', Cir. R. 26.1-1, 11 `h
Cir. R. 26.1-2 and II" 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.
DEMARTINII, 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 F.3d 1086 (11"' Cir. 2004),
and United States v. Pendergraft, 297 F.3d 1198 (11th Cir. 2002), as clarified in
United States v. Lee, 427 F.3d 881 (11`x' 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).
1
TABLE OF CONTENTS
Page
AMENDED CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT...........................................0-1
STATEMENT REGARDING ORAL ARGUMENT................................................i
.
TABLEOF 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...........................................................................................................11
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..........................................................................11
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
AI-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' 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. Syng�enta 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`h 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. 1$' 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 7 Legal Servs., Inc. v. Fla. Dep't Corrections,
579 So. 2d 267 (Fla. I" DCA 199 1) .............................................................27
Friedlander v. Nims,
755 F.2d 810 (11`h Cir. 1985)..........................................................................9
Huff v. United States,
301 F.2d 760 (5`h 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. AstraZeneca 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 (8a' 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 (1 Vh Cir. 2000)..........................................................24, 25, 26
*United States v. Lee,
427 F.3d 881 (11" Cir. 2005)...............................................................i, 13, 14
*United States v. Penderiraft,
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......................................................................................................1 1
18 U.S.C. § 1353......................................................................................................1 1
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, G10VANI 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."
ix
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 "[t]he 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 `h Cir. 2004) and United States v.
Pendergraft, 297 F.3d 1198 (111h Cir. 2002) bar the Plaintiff s 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 seq. ("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.
1
Defendants corrupt the process by, among other things, making 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 %53-61). 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 ¶¶ 63-64), the
retention of an experienced public records advocate to lend it legitimacy (see id. at ¶¶
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 1175-88) 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 11103-108 & Ex. B).'
The Florida RICO Enterprise originated in early 2014. (Compl. at ¶ 61). 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 of public 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.
LI
of less than 1,000 residents and just 17 municipal employees. (See id. at ¶¶ 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 Finn. 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 1162).
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 ¶¶ 65-74). A self-employed civil rights and public
information activist, Joel Chandler, was hired as Executive Director of CAFI to lend
legitimacy to Defendants' scheme and the RICO Enterprise. (See id.). He would later
5
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 T¶ 75-76, 79)), joined the RICO Enterprise
at its inception. (See id. at ¶¶ 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 ¶T 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 ¶T 82-83). To avoid the
R
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 IT 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 %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 ¶1127-33).
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
7
Florida. (Compl. Ex. C). Z 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 ¶ 18, 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. 193 7, 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
z 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.
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. See MurrPlumbing, Inc. v. Scherer Bros. Fin. Servs. Co., 48 F.3d
1066, 1069 n.6 (8" Cir. 1995); Angermeir v. Cohen, 14 F.Supp.3d 134,145 (S.D.N.Y.
2014) (citing Lundy v. Catholic Health 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 (11'hCir. 1997); see also Friedlander v.
Nims, 755 F.2d 810, 813 n.3 (11`x' 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).
9
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 17.3d 1086 (11`h 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`x' 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. 1991) ("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 ¶J 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"'
DCA 2014).'
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. I" 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 (5h
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 of requests 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.6
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 (1O' 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 or property 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
furtherance 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. Engineered Laminates, 349 F.3d 1253, 1258 (10`' Cir. 2003). See also La Suisse,
Societe D'Assurances 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 determine 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
M
(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-I1). 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 **34,15,26-27. 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 CAPD 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.
1. 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`' 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
23
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.
IT 123-25). These allegations are more than sufficient. See, e.g., AI -Bayes v.
Willingham, 2007 WL 78 840 1, *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 (11' Cir. 2000)
(collecting cases) (emphasis added); accord Allstate bis. 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
24
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, hic. 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 firm profited from their
activities).
The Complaint here does not define as the enterprise a singular person 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
F
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 Sufficiently Alleged 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`h 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 Cty. Comm'rs of Highlands Cty 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 '1 Legal Servs., Inc.
v. Fla. Dept Corrections, 579 So. 2d 267, 267-69 (Fla. 151 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 attomeys' 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. ofRevenue v. Phillips, 771 F.2d 312, 314-16 (7' 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).
W
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 Band
& I ndem. 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." An_a 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 (11t' 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. (Comp]. at ¶¶ 39, 136-40 & Exs. E, F). Moreover, any
NN
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
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 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(u) j onesfoster.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
ioconnor(o)i onesfoster.com
JONES, FOSTER, JOHNSTON & STums, 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
grichman(a,richmanereer.com
Leora B. Freire, Esquire
Florida Bar No.: 013488
lfreirena,richmangreer.com
250 Australian Ave., South, Suite 1504
West Palm Beach, FL 33401
Telephone: (561) 803-3500
32
Eric M. Sodhi, Esquire
esodhi(iDrichman greer.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
grichmana,richmanereer.com
Leora B. Freire, Esquire
Florida Bar No: 013488
lfreire(@,richmangreer.com
RICHMAN GREER, P.A.
250 Australian Ave., South, Suite 1504
West Palm Beach, FL 33401
Telephone: (561) 803-3500
Attorneys for Plaintif, lAppellant, Town of Gulf Stream
Eric M. Sodhi, Esquire
Florida Bar No.: 0583871
esodhi(a)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
ioconnorAionesfoster.com
JONES FOSTER JOHNSTON & STUBBS, P.A.
505 South Flagler Drive, Suite 1100
West Palm Beach, FL 33401
Telephone: (561) 659-3000
Attorneyfor Appellant, Town ofGWStream
M
Adam T. Rabin, Esquire
Florida Bar No.: 985635
arabin(dmccaberabin.com
Robert C. Glass, Esquire
Florida Bar No.: 052133
r lg assCa,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
ddesouza6Wesouzalaw.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(@ber eg rsingerman.com
Steven D. Weber, Esquire
Florida Bar No.: 47543
sweberna,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
emark(a),ber zersingerman.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
smichelsone,smichelsonlaw.com
LAW OFFICE OF STUART R. MICHELSON
800 S.E. Third Avenue, 4th Floor
Fort Lauderdale, FL 33316
Telephone: (954) 463-6100
Attorneyfor GiovaniMesa,
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
mhannana,g3mlaw.com
service(@g3nilaw.com
GMMIMADISON P.A.
401 South County Road #3272
Palm Beach, FL 33480
Telephone: (561) 223-9990
Attorney for Christopher O'Hare
p Mms\I 3147 \00086\pld\ I na9251. dm x
36
Case: 15-13433 Date Filed: 10/08/2015 Page: 1 of 12
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Appeal No: 15 -'13433 -DD
On Appeal from the U.S. District Court for the Southern District of Florida,
The Honorable Kenneth A. Marra, No..9:15-ev-80182-KAM
TOWN OF GULF STREAM, a municipality organized
and existing under the laws of Florida on its own CLASS ACTION
behalf and on behalf of those municipalities similarly
situated, and WANTMAN GROUP, INC., a domestic
company on its own behalf and on behalf of those
companies similarly situated,
I'lainti f1s-Appellants,
VS.
MARTIN E. O'BOYLE, an individual, CHRISTOPHER
O'HARE, an individual, WILLIAM RING, an
individual, JONATHAN R. O'BOYLE, an individual, DENISE
DEMARTINI, an individual, GIOVANI MESA, an individual,
NICKLAUS TAYLOR, an individual, RYAN WITMER, an
individual, AIRLINE IIIGHWAY, LLC, COMMERCE GP, INC.,
CG ACQUISITION CO., INC., CRO AVIATION, INC., ASSET
ENHANCEMENT, INC., COMMERCE REALTY GROUP, INC.,
PUI3LIC AWARE -;NESS INSTITUTE:, INC., CITIZENS
AWARENESS FOUNDATION, INC., OUR PUBLIC RECORDS,
LLC, STOPDIRTYGOVERNMENT, LLC, COMMERCE
GROUP, INC., and THE O'BOYLE LAW FIRM, P.C., INC.,
Defendants -Appel lees.
13111EF OF APPELLANT WANTMAN GROUP, INC
Gerald F. Richman
RICIIMAN GREIER, P.A.
250 Australian Ave. South, Ste. 1504
West Palm Beach, Florida 33401
Telephone: (561) 803-3500
facsimile: (561) 820-1608
Counsel for Plaintiff -Appellant
ff"antman Group, Inc.
Case: 15-13433 Date Filedc)10104120I1 s STMage:v2ndlIft E. o'aoYLE et al.
Appeal No: 15 -13433 -DD
Page 2 of 12
CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26. 1, 11`h Cir. R. 26.1-1,
11th Cir. R. 26.1-2 and 11" Cir. R. 26.1-3, Plaintiff/Appellant, WANTMAN
GROUP, INC. ("Wantman") certifies that the following persons and entities have,
or may have, an interest in the outcome of this case.
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.
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/Appellants)
Case: 15-13433 Date FiletbQQ/01>:/Z$ Sl'lPaP v%QtltQN E. O'BOYLE et al,
Appeal No: 15 -13433 -DD
Page 3 of 12
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
Gulfstream)
O'HARE, CHRISTOPHER
OUR PUBLIC RECORDS, LLC
PUBLIC AWARENESS INSTITUTE, INC,
RABIN, Esq., ADAM T. (Counsel for Defendants)
RICHMAN GREER, P.A.
RICHMAN, Esq., GERALD F. (Counsel for Plaintiffs/Appellants)
Case: 15-13433 Date FI lei oiWQ21204$ s I Pa91Q:v4WA1%2IN E. O'BOYLE at al.
Appeal No: 15 -13433 -DD
Page 4 of 12
RING, WILLIAM
SODHI, Esq., ERIC (Counsel for Plaintiffs/Appellants)
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
Case: 15-13433 Date FilecbWQ$-/ZQJ5 STff sEtW'-v5CMliQ' N E. O'BOYLE et al.
Appeal No: 15 -13433 -DD
Page 5 of 12
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Fed. R. App. P. 28(i) and Eleventh Circuit Rule 28-1(f),
Wantman hereby joins in and adopts, in its entirety, the Statement Regarding Oral
Argument contained in the brief filed by co -appellant, TOWN OF GULF
STREAM, in this case.
Case: 15-13433 Date Fi1edbAQ/@ftM5 STf1490:v aft E. O'BOYLE et al.
Appeal No: 15 -13433 -DD
Page 6 of 12
TABLE OF CONTENTS
PAGE
STATEMENT REGARDING ADOPTION OF BRIEF OF OTHER
PARTY.............................................................................................................. 7
PRELIMINARY STATEMENT....................................................................... 7
STATEMENT OF JURISDICTION................................................................ 7
STATEMENT OF THE ISSUES..................................................................... 7
STATEMENT OF THE CASE........................................................................ 8
ARGUMENT................................................................................................... 8
CONCLUSION................................................................................................ 8
Case: 15-13433 Date FilefkAWS/2015 s 1-18age:v.7MAINN E. o'BOYLE et al.
Appeal No: 15 -13433 -DD
Page 7 of 12
STATEMENT REGARDING ADOPTION
OF BRIEF OF OTHER PARTY
Pursuant to Fed. R. App. P. 28(i) and Eleventh Circuit Rule 28-1(f),
Wantman hereby joins, adopts and incorporates herein by reference the Appellant's
Brief filed in this case by co -appellant, TOWN OF GULF STREAM.
PRELIMINARY STATEMENT
Pursuant to Fed. R. App. P. 28(i) and Eleventh Circuit Rule 28-1(f),
Wantman hereby joins in and adopts, in its entirety, the Preliminary Statement
contained in the Appellant's Brief filed by co -appellant, TOWN OF GULF
STREAM.
STATEMENT OF JURISDICTION
Pursuant to Fed. R. App. P. 28(i) and Eleventh Circuit Rule 28-1(f),
Wantman hereby joins in and adopts, in its entirety, the Statement of Jurisdiction
contained in the Appellant's Brief filed by co -appellant, TOWN OF GULF
STREAM.
STATEMENT OF THE ISSUES
Pursuant to Fed. R. App. P. 28(i) and Eleventh Circuit Rule 28-1(f),
Wantman hereby joins in and adopts, in its entirety, the Statement of the Issues
contained in Appellant's Brief filed by co -appellant, TOWN OF GULF STREAM.
Case: 15-13433 Date FilealoA( N/bga s'ri1WWe:vMlL''2N E. o'BOYLE et al.
Appeal No: 15 -13433 -DD
Page 8 or 12
STATEMENT OF THE CASE
Pursuant to Fed. R. App. P. 28(i) and Eleventh Circuit Rule 28-1(f),
Wantman hereby joins in and adopts, in its entirety, the Statement of the Case
contained in Appellant's Brief filed by co -appellant, TOWN OF GULF STREAM.
ARGUMENT
Pursuant to Fed. R. App. P. 28(i) and Eleventh Circuit Rule 28-1(f),
Wantman hereby joins in and adopts, in its entirety, the Argument contained in
Appellant's Brief filed by co -appellant, TOWN OF GULF STREAM.
CONCLUSION
Appellant Wantman respectfully asks this Court to reverse the District
Court's order granting Defendants'/Appellees' Motions to Dismiss, entered on
June 30, 2015 [D.E. # 47], and the resulting Final Judgment entered on July 1,
2015 [D.E. # 481.
Case: 15-13433 Date Fi1erb*WW/Z0i,5 sTifis' W0v(fFWN E. o'BOYLE et al.
Appeal No: 15 -13433 -DD
Page 9of12
Dated: 10/8/15 Respectfully submitted,
By/s/: Gerald F. Richman
GERALD F. RICHMAN
Florida Bar No.: 066457
grichman(@richmangreer.com
dcostonisOwrichmangreer.com
ERIC M. SODI-1I
Florida Bar No.: 0583871
esodhi a,richmangreer.com
mramirez(Dxic h mangreer. com
Ickadlac a,richmanareer.com
LEORA B. FREIRE
Florida Bar No.: 0013488
1 freire(@riciiinangreer.com
dcostoni sOrichmangreer.com
RICHMAN GREER, P.A.
250 Australian Ave. South, Ste. 1504
West Palm Beach, Florida 33401
Telephone: (561) 803-3500
Facsimile: (561) 820-1608
Counsel for PlaintiffslAppellants
Case: 15-13433 Date Filed:c9t4"i.2,�x.,sTRa@es ,16 wQ '& E. O'BOYLE et al.
Appeal No: 15 -13433 -DD
Page 10 of 12
RULE 32(a) CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(5), (6) and (7), I hereby certify that this
brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5), the type
style requirements of Fed. R. App. P. 32(a)(6), and the type volume limitation of
Fed. R. App. P. 32(a)(7) because this brief has been prepared in a proportionally
spaced typeface using Time New Roman 14 -point font and contains 156 words.
/s/: Gerald F. Richman
GERALD F. RICHMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 8th day of October, 2015, I electronically
filed the foregoing document with the Clerk of the Court using CM/ECF. I also
certify that the foregoing document is being served this day on all counsel of record
or pro se parties identified on the attached Service List in the manner specified,
either via transmission of a Notice of Electronic Filing generated by CM/ECF or in
some other authorized manner for those counsel or parties who are not authorized
to receive electronically Notices of Electronic Filing.
/s/: Gerald F. Richman
GERALD F. RICHMAN
Case: 15-13433 Date Fi1edoUWW/7.U5 s ritigget:vld4.mftil;3t E. o'BOYLE et al.
Appeal No: 15 -13433 -DD
Page 11 or 12
SERVICE LIST
Steven D. Weber
sweber a ber eg rsingerinan.com
drt(@bergersinp,erman.com
ltorresa ber eg rsingerman.com
Etan Mark
emark(c)ber ersingerman.com
drt(@berp,ersinp,erman.com
ltorres@bersersingerman.com
Mitchell W. Berger
mberger(a)bersersinperman.com
BERGER SINGERMAN
Las Olas Centre II
350 E. Las Olas Blvd. Suite
1000
Fort Lauderdale, FL 33301
Tel: 954.525.9900
Attorneys for Martin E. O'Boyle, Airline
Highway LLC,
Commerce Gp Inc., GC Acquisition Co. Inc.,
CRO Aviation Inc., Asset Enhancement Inc.,
Commerce Realty Group Inc., and Commerce
Group Inc.
Stuart R. Michelson
smichel sonasmichelson law.coln
LAW OFFICES OF STUART MICHELSON
800 SE P Avenue, 4h Floor
Fort Lauderdale, FL 33316
Tel: 954.463.6100
Attorneys for Giovanni Mesa, Nicklaus
Taylor and Ryan Witmer
Daniel DeSouza
ddesouza(@desouzalaw.com
DESOUZA LAW, P.A.
101 N. Third Avenue
Suite 1500
Ft. Lauderdale, FL
33301
Tel: 954.551.5320
Attorneys for Denise DeMartini,
Citizens Awareness Foundation Inc.,
Our Public Records LLC, Stop Dirty
Government LLC, and Public
Awareness Institute, Inc.
Adam T. Rabin
arabin a.mccaberabin.com
Robert C. Glass
r lg ass(@mccaberabin.com
MCCABE RABIN, P.A.
1600 Forum Place, Suite 505
Palm Beach, FL 33401
Tel: 561.659.7878
Attorneys for William Ring, Jonathan
O'Boyle
And The O'Boyle Law Firm, P.C., Inc.
Case: 15-13433 Date Fi1e(icWt0a120Gi5r sift gel 134)M2N E. O'BOYLE et al.
Appeal No: 15 -13433 -DD
Page 12 of 12
Mark J. Hanna
mhanna a g3mlaw.com
service(@g3mlaw.com
GMM MADISON, P.A.
401 South County Road
#3272
Palm Beach, Florida 33480
Tel: 561.223.9990
Attorney for Christopher O'Hare
Renee Basel
From:
Bill Thrasher
Sent:
Tuesday, September 22, 2015 9:59 AM
To:
OConnor, Joanne M.
Subject:
RE: RICO Appeal - 11th Circuit Mediation
Joanne,
It seems to me that it would be better if I went to your office. However, your call. I am in for a penny, and in for a
pound.
Thanks,
Bill
From: OConnor, Joanne M.(mailto:JOConnor@jonesfoster.com]
Sent: Tuesday, September 22, 2015 9:50 AM
To: Bill Thrasher <bthrasher@gulf-stream.org>
Cc: Macfarlane, Mary <MMacfarlane@jonesfoster.com>
Subject: RICO Appeal - 11th Circuit Mediation
Dile
Please calendar Monday, October 19th at 9:30 a.m. for telephonic mediation of the RICO appeal case. I believe you have
attended a similar mediation with Jeff Hochman in another O'Boyle matter. It is required by the 11 N circuit. I have
attached the original Notice of Mediation but, please note, the change in date to October 191 since that Notice was issued.
It probably makes most sense for me to come to your office and we can call in from there.
Thanks,
Joanne
JONESFOSTER
_.. toucas tav m sJ t aas. It -t
Joanne M. O'Connor Attome}
Direct Dial: 561.650.0498 1 Fax: 561.650.5300 1 ioconnor0ionesfoster.cotn
Jones, Foster, Johnston & Stubbs, P.A.
Flagler Center Tower, 505 South Hagler Drive, Suite 1100, West Palm teach, Florida 33101
561-659-3000 1 www.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 review, dissemination, or copying
of this email is prohibited. Please immediately notify us by email and delete the original message.
Renee Basel
From: Bill Thrasher
Sent: Tuesday, September 22, 2015 9:53 AM
To: OConnor, Joanne M.
Subject: RE: RICO Appeal - 11th Circuit Mediation
Joanne,
Got it.
Yes I did.
I will follow your lead and direction.
Thanks,
From: OConnor, Joanne M.[mailto:JOConnor@jonesfoster.com]
Sent: Tuesday, September 22, 2015 9:50 AM
To: Bill Thrasher <bthrasher@gulf-stream.org>
Cc: Macfarlane, Mary <MMacfarlane@jonesfoster.com>
Subject: RICO Appeal - 11th Circuit Mediation
Bill —
Please calendar Monday, October 19" at 9:30 a.m. for telephonic mediation of the RICO appeal case. I believe you have
attended a similar mediation with Jeff Hochman in another O'Boyle matter. It is required by the 1111 circuit. I have
attached the original Notice of Mediation but, please note, the change in date to October 19" since that Notice was issued.
It probably makes most sense for me to come to your office and we can call in from there.
Thanks,
Joanne
JONES FOSTER
Joanne M. O'Connor Attorney
Direct Dial: 561.650.0498 1 Fax: 561.650.5300 1 joconnor(@,jonesfoster.com
Jones, Foster, Johnston & Stubbs, P.A.
Flagler Center'fower, 505 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33401
561-659-3000 1 www.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. I£ 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- notify us by email and delete the original message.
Renee Basel
From:
OConnor, Joanne M. <JOConnor@jonesfoster.com>
Sent:
Tuesday, September 22, 2015 9:50 AM
To:
Bill Thrasher
Cc:
Macfarlane, Mary
Subject:
RICO Appeal - 11th Circuit Mediation
Attachments:
1N14807 -notice telephone mediation.PDF
Bill —
Please calendar Monday, October 19th at 9:30 a.m. for telephonic mediation of the RICO appeal case. I believe you have
attended a similar mediation with Jeff Hochman in another O'Boyle matter. It is required by the 111 circuit. I have
attached the original Notice of Mediation but, please note, the change in date to October 191 since that Notice was issued.
It probably makes most sense for me to come to your office and we can call in from there.
Thanks,
Joanne
JONESFOSTER
JU,--.1 .. x stuau,. ra.
Joanne M. O'Connor Attorney
Direct Dial: 561.650.0498 1 Fax: 561.650.5300 ioconnor , 'onesfoster.com
Jones, Foster, Johnston & Stubbs, P.A.
Flagler Center Tower, 505 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33401
561-659-3000 1 www.jonesfoster.com
Incoming cmails 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 review, dissemination, or copving
of this email is prohibited. Please immediately notify us by email and delete the original message.
KINNARD MEDIATION CENTER
UNITED STATES COURT OF APPEALS
ELEVENTH JUDICIAL CIRCUIT
PLEASE REPLY TO THE MIAMI OFFICE
WRITER'S DIRECT DIAL 305.714.1804
CALEB DAVIES WRITER'S EMAIL Andma.Doneff@cail.uncurts.gov
CHIEF CIRCUIT MEDIATOR
Leora B. Freire, Esq.
Gerald F. Richman, Esq.
Eric M. Sodhi, Esq.
Richman Greer, PA
250 S Australian Avenue, #1504
West Palm Beach, FL 33401
Jeffrey L. Hockman, Esq.
Hudson C. Gill, Esq.
Johnson Anselmo Murdoch Burke Piper &
Hochman, PA
2455 E Sunrise Blvd, #1000
Fort Lauderdale, FL 33304
Robert C. Glass, Esq.
McCabe Rabin, PA
1601 Forum Place, #505
West Palm Beach, FL 33401
Mark J. Hanna, Esq.
GMM Madison, PA
401 S County Road, #3272
Boynton Beach, FL 33435
August 26, 2015
BETH GREENFIELD-MANDLER
CLIFFALTEKRUSE
ANDREA OONEFF
CIRCUIT MEDIATORS
Daniel DeSouza, Esq.
DeSouza Law, PA
101 NE 3rd Avenue, #1500
Fort Lauderdale, FL 33301
Stuart R. Michelson, Esq.
Law Office of Stuart R. Michelson
600 SE 3rd Avenue, Fourth Floor
Fort Lauderdale, FL 33316
Mitchell W. Berger, Esq.
Berger Singerman, LLP
350 E Las Olas Blvd, #1000
Fort Lauderdale, FL 33301
Steven D. Weber, Esq.
Etan Mark, Esq.
Berger Singerman, LLP
1450 Brickell Avenue SE, #1900
Miami, FL 33131
APPEAL 15-13433, Town of Gulf Stream v. O'Boyle
Notice of Telephone Mediation
Pursuant to Fed. R. App. P. 33 and 11th Cir. R. 33-1, this appeal Is scheduled for mediation to be
held by telephone on Wednesday, September 30, 2015, at 1:30 p.m. Eastern Time.
Call In Number: 844.663.5972
ID and Password #: 1513433
You should allow three hours for this telephone mediation. The purpose of the mediation is to explore
possibilities for settlement of the parties' dispute in its entirety, including any related claims that may not
yet be ripe for Eleventh Circuit review. I require that you immediately provide a Copy of this 3 -page notice
to your client, to any parties below who are required to participate, and to counsel for any other parties
actively involved who are not listed as addressees on this notice. Please immediately identify these
nonlisted parties to me and to opposing counsel.
Participants. Except as waived by me in advance of the mediation date, each of the following must
participate in the entire mediation, including any follow-up sessions, until either a settlement Is reached or
I declare an impasse.
MIAMI OFFICE ATLANTA OFFICE
KINNARD MEDIATION CENTER KINNARD MEDIATION CENTER
99 NE Ah STREET, #533 56 FORSYTH STREET, NW, #535
MIAMI, FL 33132 ATLANTA, GA 30303
TEL 305.714-1900 TEL 4044354280
FAX 305-714.1910 FAX 404.335.627
Notice of Telephone Mediation
Page 2
August 26, 2015
Participants. Except as waived by me in advance of the mediation date, each of the following must
participate in the entire mediation, including any follow-up sessions, until either a settlement Is reached or
I declare an impasse.
(a) You, your client, and a representative of any person or entity directly affected financially by the
outcome of this litigation (indemnitors, etc.) must personally participate.
(b) Insurers: A representative of any Insurance company, either as a party or nonparty, that has not.
offered policy limits must personally participate with authority and discretion to settle up to policy limits or
the amount of the claimant's last settlement demand, whichever is less. If an insured party has any
exposure outside of policy limits or has control or Influence on the amount paid within policy limits, then
both the insured party and the representative must personally participate.
(c) Governmental entities: When a party is a governmental entity that approves settlements by a
deliberative session, then a member of that deliberating body or the entity's executive director or a person
expressly designated by the director must personally participate.
Authority. Representatives of parties must have authority to dismiss any affirmative claim
unconditionally, or to pay a claim (or most recent settlement demand) in full, if in the client -
representative's sole discretion resolution on that basis is appropriate. Representatives for
governmental entities that make decisions collectively must have authority to negotiate on behalf of
and make recommendations to such entity concerning settlement. All parties and counsel are
required to participate in the mediation in good faith and with the intention of attempting to settle on a
basis all parties can accept
Confidential Mediation Statement. 11th Cir. R.33 -1(d) requires that counsel send me a Confidential
Mediation Statement assessing the prospects of the appeal. In the statement counsel should
address the topics raised on page 3 of this notice. Counsel should fax, mail, or email the statement
so that I receive it at least a week before the mediation date. It should be in letter format and
preferably not more than five pages. I will not share the statement with the other side, and it will not
become part of the court file.
Mediation Guidelines. Information participants need to prepare for this mediation, including
information on the court's mediation process, the availability/presence/participation requirement,
extensions of time to file briefs, post -settlement dismissal procedures, confidentiality, noncompliance
sanctions for failing to comply with the rule or this notice of mediation, and preparing for effective
mediation, Is in the document "Mediation in the Eleventh Circuit Court of Appeals." All participants
are required to read this document. 11th Cir. R. 33-1(g) permits the substitution of a private
mediator, employed by the parties at their expense, to mediate this appeal under the procedures set
forth by the Kinnard Mediation Center is in the document "Private Mediator Procedures for Mediation
of Appeals." Both documents are available on the Internet at www.cal l.uscourts.gov or by calling
this office to request either by fax or mail.
Briefs. MEDIATION DOES NOT AUTOMATICALLY STAY APPELLATE PROCEEDINGS,
Including the briefing schedule. If you have a brief due and would like to request an extension of
time from me, you must follow the "Extensions of Time to File Briefs" procedures in Part 9 of the
above mediation guidelines, which procedures are also available as a separate document at
www.call.uscourts.gov.
ANDREA DONEFF. CIRCUIT MEDIATOR
Notice of Telephone Mediation
Page 3
August 26, 2015
Confidential Mediation Statement
11th Cir. R. 33-1(d) requires that counsel in appeals selected for mediation send the circuit mediator
a Confidential Mediation Statement assessing the prospects of the appeal. Counsel should fax,
mail, or email the statement so that I receive it at least a week before the mediation date. It should
be in letter format and preferably not more than five pages. I will not share the statement with the
other side, and it will not become part of the court file. In the statement counsel should:
1. Recite the circumstances that gave rise to the litigation, including facts underlying any
procedural issues in the appeal.
2. Describe any matters pending in the lower court or in any related litigation.
3. Describe any recent developments that may affect the resolution of the appeal.
4. Describe the important factors (factual, legal, practical) you believe affect the terms and
conditions upon which the appeal may reasonably be settled.
5. Describe any efforts to settle the issues, including offers or demands before and since the
judgment or order appealed from.
6. Provide a candid assessment of the strengths and weaknesses of the major points of error of
the appeal.
7. Describe the necessary terms in any settlement (i.e., confidentiality, date by which
settlement must close, scope of release, disposition of related litigation, etc.).
8. Describe any additional information your client or the other party needs to settle the appebi
and whether it is needed before the mediation.
9. State whether you and your parties will participate in the mediation in good faith with the
intention of using your best efforts to settle the appeal, and explain if "no" as to any party.
10. State whether you and your parties will maintain confidentiality with respect to settlement
communications made and received during and subsequent to the mediation, and explain if
"no" as to any party.
11. If the appeal were remanded, describe the realistic range of outcomes upon further trial or
disposition by the lower court, including monetary remedies, attorney's fees, court costs,
further appellate costs, and similar awards the lower court might have opportunity to consider
awarding.
12. Provide the name, title, address, telephone number, and email address of each person who
will be participating in the mediation with you and designate which persons will have
settlement or negotiating authority. (As required in the Notice of Mediation, also provide this
participant information to opposing counsel in a communication separate from this
Confidential Mediation Statement, with a copy to me.)
Do not send your Confidential Mediation Statement to opposing counselor any party or the Circuit Clerk's Office.
Renee Basel
From: OConnor, Joanne M. <JOConnor@jonesfoster.com>
Sent: Tuesday, June 30, 2015 5:18 PM
To: Bill Thrasher; Kelly Avery; Rita Taylor; scottmorgan75@gmail.com
Cc: Eric M. Sochi; Matias, Sally; Randolph, John C.
Subject: Gulf Stream v. O'Boyle
Attachments: 1 MH5339-order opinion 47.PDF
Please see attached order from Judge Marra issued today dismissing the RICO lawsuit brought by the Town
against O'Boyle et al.
JONES FOSTER
Joanne M. O'Connor Attorney
Direct Dial: 561.650.0496 1 Fax: 561.650.5300 1 joconnor_,jonesfoster.com
Jones, Foster, Johnston & Stubbs, P.A.
Ilagler Center Tower, 505 South Flagler Drive, Suite 1100, \\ cst Palm Beach, Florida 33401
561-659-3000 1 www.jonesfoster.com
Incoming emails arc 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 review, dissemination, or copying
of this email is prohibited. Please immediately notify us by email and delete the original message.
Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 1 of 9
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 15-80182-CIV-MARRA
TOWN OF GULF STREAM, a municipality organized
and existing under the laws of Florida on its own
behalf and on behalf of those municipalities similarly
situated, and WANTMAN GROUP, INC., a domestic
company on its own behalf and on behalf of those
companies similarly situated,
Plaintiffs,
VS.
MARTIN E. O'BOYLE, an individual, CHRISTOPHER
O'HARE, an individual, WILLIAM RING, an
individual, JONATHAN R. O'BOYLE, an individual, DENISE
DEMARTINI, an individual, GIOVANI MESA, an individual,
NICKLAUS TAYLOR, an individual, RYAN WITMER, an
individual, AIRLINE HIGHWAY, LLC, COMMERCE GP, INC.,
CG ACQUISITION CO., INC., CRO AVIATION, INC., ASSET
ENHANCEMENT, INC., COMMERCE REALTY GROUP, INC.,
PUBLIC AWARENESS INSTITUTE, INC., CITIZENS
AWARENESS FOUNDATION, INC., OUR PUBLIC RECORDS,
LLC, STOPDIRTYGOVERNMENT, LLC, COMMERCE
GROUP, INC., and THE O'BOYLE LAW FIRM, P.C., INC.,
Defendants.
OPIMON AND ORDER
This cause is before the Court upon Defendants 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.'s Motion to Dismiss Class
Action Complaint [DE 10]; Defendants Giovanni Mesa, Nicklaus Taylor, and Ryan Witmer's
Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 2 of 9
Motion to Dismiss Plaintiff's Class Action Complaint [DE 9]; Defendants Denise DeMartini,
Citizens Awareness Foundation, Inc., Our Public Records, LLC, Stop Dirty Government, LLC,
and Public Awareness Institute's Notice of Joinder in Motions to Dismiss Class Action
Complaint [DE 121; Defendants William Ring, Jonathan O'Boyle, and The O'Boyle Law Firm,
P.C., Inc.'s Notice of Joinder and Motion to Dismiss Class Action Complaint [DE 13];
Defendant Christopher O'Hare's Notice of Joinder to Motions to Dismiss and Supplemental
Motion to Dismiss Class Action Complaint [DE 17]. All motions are ripe for the Court's
consideration. The Court has reviewed all papers filed in connection with these motions; the
entire file; and is otherwise duly advised in the premises.
A. Legal Standard
With respect to a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6),
the Court observes first that Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain a "short and plain statement of the claim showing that the pleader is entitled to
relief." The Supreme Court has held that "[w]hile a complaint attacked by a 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the
'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must be enough to
raise a right to relief above a speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal citations omitted).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face."'. Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quotations and citations omitted). "A claim has facial plausibility when
Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 3 of 9
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. Thus, "only a complaint that states a plausible
claim for relief survives a motion to dismiss." Id. at 1950.
B. Background Facts
When considering a motion to dismiss, the Court must accept all of the plaintiff's
allegations as true in determining whether a plaintiff has stated a claim for which relief could be
granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). The Complaint alleges violations by
Defendants of the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. §
1964(a) and (c) [DE 1 at 31]. The basis for Plaintiffs' claim is the alleged filing of large numbers
of frivolous public records requests, which are often intentionally inconspicuous, followed by the
commencement of lawsuits when the requests are not addressed. Plaintiffs allege that
Defendants then use the mails and wires to extort their victims by demanding settlements,
including attorneys' fees and costs as provided by the public records statute, or face protracted
litigation and a flurry of additional frivolous public records requests and lawsuits. [DE 1 at 2].
Specifically, Plaintiffs assert that:
[T]his bogus public records request was an essential
first -step of the RICO Enterprises' scheme to defraud
and extort money from the class members ---it was
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.
After the bogus records request was sent and hopefully
overlooked, the RICO Enterprise would then use the
mail and the wires to: (i) demand a settlement of the
records request in excess of the actual attorneys' fees
Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 4 of 9
and costs incurred by the Defendants; or (ii) file a frivolous
lawsuit against the recipient of the bogus records request
followed by the demand for settlement.
It is this threat of prevailing party attorneys' fees that is the
nucleus around which the Defendants created their scheme to
defraud and extort, and organized their RICO Enterprise to
cant' out that scheme.
[DE 1 at ¶¶ 37, 38, 52].
C. Discussion
Accepting the allegations in the Complaint as true for purposes of the motions pending
before the Court, Plaintiffs certainly find themselves in a very difficult situation. In particular,
the Town of Gulf Stream, a small town of 974 residents and 17 full time employees, has been
inundated with public records requests by Defendants. The issue before the Court, however, is
limited to whether Defendants' acts, as alleged by Plaintiffs, violate RICO. For the reasons set
forth below, the Court finds that they do not.
1. Threatening to Sue or Actually Suing Someone Does Not Constitute a Predicate Act
Under RICO.
In order for a Plaintiff to survive a motion to dismiss a civil RICO case,
a plaintiff must show a "pattern of racketeering activity" by
alleging that the defendants committed two qualifying predicate
acts. Republic of Panama v. BCCI Holdings, 119 F.3d 935, 948-49
(11ih Cir. 1997). This requires that a plaintiff allege facts that
support each statutory element of a violation of one of the state or
federal laws described in 18 U.S. C. § 1961(1).
Raney v. Allstate Ins. Co., 370 F.3d 1086,1087 (11" Cir. 2004).
The Court finds the Eleventh Circuit decision in Raney to be dispositive of the issue
Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 5 of 9
before the Court. In Raney, the Court held that the filing of a lawsuit, even if done maliciously,
cannot form a predicate act under RICO.
In Raney, the RICO claim depended upon the Plaintiffs ability to show a violation of the
Hobbs Act, which bars interference in interstate commerce by means of extortion. See 18 U.S.C.
§ 1951. The Eleventh Circuit noted that all of Raney's allegations of mail fraud and extortion
related to "the alleged conspiracy to extort money through the filing of malicious lawsuits." 370
F.3d at 1088. The Raney Court noted that this argument was foreclosed by the Eleventh Circuit's
decision in United States v. Pendergraft, 297 F.3d 1198 (11" Cir. 2002), where the Court "held
that neither the threat to litigate nor the fabrication of evidence behind the lawsuit made the
action `wrongful' within the meaning of 18 U.S.C. § 1951 and therefore could not be a predicate
act under RICO." Id.
The Raney Court made it clear that Pendergraft did not only apply to threats of litigation,
but applied with equal force to actual litigation.
We noted [in Pendergraft] that courts possess adequate procedures
to distinguish valid claims from invalid claims and held that
Congress did not intend to punish citizens merely for accessing the
legal system... We found ourselves "troubled by any use of this
federal criminal statute to punish civil litigants." ... We noted that
"allowing litigants to be charged with extortion would open yet
another collateral way for litigants to attack one another." ... We
also expressed concern about transforming every state -law
malicious prosecution action into a federal crime .... All of these
concerns apply to actual litigation with added force.
370 F.3d at 1088 (citations omitted).
The instant case is indistinguishable from Raney. Plaintiffs' allegations that Defendants
committed the "predicate crimes" of mail fraud under 18 U.S.C. § 1341, wire fraud under 18
Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 6 of 9
U.S.C. § 1343, and extortion under 18 U.S.C. § 1951, are ultimately dependent upon the threat of
filing lawsuits or the actual filing of lawsuits in order to extort prevailing party costs and
attorneys' fees. While the filing of allegedly fraudulent public records requests "was an essential
first -step of the RICO Enterprises' scheme," "[i]t is the threat of prevailing party attorney's fees
that is the nucleus around which the Defendants created their scheme to defraud and extort, and
organized their RICO Enterprise to carry out that scheme." [DE I at 1137, 52].
Plaintiffs' attempts to distinguish Raney are unavailing. They argue that courts have
determined that when a RICO defendant sues or threatens to sue as
part of an overriding scheme or plan 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), such a threat does constitute the predicate act
of extortion for purposes of RICO.
DE 34 at 8. The cases cited by Plaintiffs, however, are all factually inapposite and from other
districts. This Court is bound to follow Raney. In their analysis, Plaintiffs ignore that Raney
specifically addressed malicious lawsuits, finding that they do not constitute predicate acts.
2. The Filing of Public Record Requests Does Not Constitute a Predicate Act under RICO.
To the extent Plaintiffs may assert that they are relying on the filing of public record
requests, in and of themselves, as predicate acts to support their claims, the Court rejects the
legal viability of that claim. This assertion would be completely inconsistent with Plaintiffs'
allegation that the public records requests were merely "an essential first -step" in the scheme to
defraud and extort money by threats of and the actual filing of lawsuits. [DE 1 at 1137, 38, 52].
Nevertheless, Plaintiffs allege that Defendants:
used the mail and the wires to send out what is usually an
Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 7 of 9
inconspicuous and frivolous public records request to the Class
Members, often times under the guise of a false non-profit
organization, and with a stated or implied purpose of advancing the
public's interest in government transparency.
[DE 1 at ¶37].
Plaintiffs further allege that they were damaged due to "additional expenditures by the
class members (i.e. hiring additional staff, paying overtime, etc.) to review and respond to the
massive volume of bogus records requests". Id. at ¶39.
Section 1961requires that a RICO plaintiff establish that a
defendant could be convicted for violating any of its predicate
statutes.... 18 U.S.C. § 1961 (defining racketeering activity to
include conduct that is "chargeable" or "indictable" and "offenses"
that are "punishable" under various criminal statutes). Therefore,
in order to survive a motion to dismiss, a plaintiff must allege facts
sufficient to support each of the statutory elements for at least two
of the pleaded predicate acts.
Republic of Panama v. BCCI Holdings, 119 F.3d 935, 948-49 (11" Cir. 1997).
Defendants could not be convicted for filing the public record requests. Under Chapter
119 of the Florida Statutes, Defendants had the absolute right under current Florida law to file
public record requests and then file lawsuits if the requests went unanswered. The motive for
making a public record request is irrelevant under Florida law. See e.g., Microdecisions, Inc. v.
Skinner, 889 So.2d 871, 875 (Fla. 2d DCA 2004). Furthermore, someone requesting access to or
copies of public records may not be required to disclose background information such as a name
or address unless the custodian is required by law to obtain the information. Chandler v. City of
Greenacres, 140 So.3d 1080, 1084-85 (Fla. 4" DCA 2014). The request can come from
someone anonymously. Id. at 1085.
The validity of the lawsuits Defendants brought is for the Florida state courts to
Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 8 of 9
determine. Essentially, Plaintiffs are complaining that Defendants are abusing the rights set forth
in the Florida statutes. To the extent Defendants are abusing the rights afforded them by the
Florida public records laws, those abuses must be addressed in the individual lawsuits filed, or
through a change in the laws by the Florida Legislature. Defendants' legal use of these statutes
does not constitute a predicate act under RICO.
D. Conclusion
Plaintiffs' failure to plead a predicate act requires the dismissal of their Complaint.
Because this is a fundamental prerequisite to a viable RICO claim, the Court does not need to
address the other arguments raised by Defendants in support of their motions to dismiss.
Accepting all of the facts set forth in the Complaint as true, the Court finds that it would
be futile for Plaintiffs to try to amend their Complaint. The Complaint fails not due to a lack of
finesse in pleading; rather, it fails because on the most fundamental level, the entire factual
underpinning of Plaintiffs' case cannot, under any circumstances, constitute a RICO violation.
Accordingly, it is hereby ORDERED AND ADJUDGED:
Defendants 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.'s Motion to Dismiss Class Action
Complaint [DE 10] is GRANTED;
2. Defendants Giovanni Mesa, Nicklaus Taylor, and Ryan Witmer's Motion to
Dismiss Plaintiffs Class Action Complaint [DE 9] is GRANTED;
3. Defendants Denise DeMartini, Citizens Awareness Foundation, Inc., Our Public
Records, LLC, Stop Dirty Government, LLC, and Public Awareness Institute's
Case 9:15-cv-80182-KAM Document 47 Entered on FLSD Docket 06/30/2015 Page 9 of 9
Notice of Joinder in Motions to Dismiss Class Action Complaint [DE 12] is
GRANTED;
4. Defendants William Ring, Jonathan O'Boyle, and The O'Boyle Law Firm, P.C.,
Inc.'s Notice of Joinder and Motion to Dismiss Class Action Complaint [DE 13]
is GRANTED;
5. Defendant Christopher O'Hare's Notice of Joinder to Motions to Dismiss and
Supplemental Motion to Dismiss Class Action Complaint [DE 17] is
GRANTED.
6. This case is DISMISSED. Each party shall bear its own fees and costs. The
Clerk of this Court shall CLOSE this Case. All pending motions are DENIED
AS MOOT with each party to bear its own fees and costs.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 30"' day of June, 2015.
0
Z
KENNETH A. MARRA
United States District Judge