Della Mura v. Thomas

WADK Fe □□ UNSEEN EAT ET DB □□□ TE ate BONA NE oom ome

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Case No. 7:19-CV-08699-NSR

tion 1S den

. Vorcar mo \S

ANTHONY DELLA MURA, Delt Forcai s

Plaintiff, us Hhevk preyvdice Se fai □□□□ +

versus Sec. 2A. i‘. Chowk of the st

pled to fermmate □□□

LAWRENCE PORCARI; THE oe (ds ur).

CITY OF MOUNT VERNON; me co Jove 209

RICHARD THOMAS; BENJAMIN pakd » Wovet □□ ot

MARABLE; and THE MOUNT oe

VERNON BOARD OF WATER SOORDERED:

Defendants. Sage

ON, NELSONS. ROMANS

□ URTED STATES DISTRIGT JUDGE

MOTION OF DEFENDANT PORCARI TO DISMISS COMPLAINT;

REQUEST FOR HEARING; REQUEST FOR FEES AND COSTS;

INCORPORATED MEMORANDUM OF LAW

Defendant Lawrence Porcari, pursuant to Rule 12 of the Federal

Rules of Civil Procedure, moves to dismiss the complaint (DE1), for

the reasons stated.

I. INTRODUCTION.

1) The Complaint should be dismissed in its entirety as to

Lawrence Porcari, who was Mount Vernon Corporation Counsel at all

times associated with the allegations presented in the Complaint

(Complaint 710).

ELECTRONICALLY FILED |

poc# .

DATE FELEDL | ratzzal

Was F,Lag-CV-YOOIPINOIN LUUUTTIOTIE Sr TUT ETE DN SAN Oe MN ow

2) Plaintiff's claims for Disability Discrimination (Second and

Third Causes of Action) should be dismissed as to Porcari because

the plaintiff received adequate due process and Porcari was not the

City official responsible for plaintiff's employment status.

Additionally, the ADA does not allow for a cause of action against an

individual defendant. As a result, the Complaint fails to state a claim

for relief on Counts 2 and 3). Dismissal with prejudice should be

ordered.

3) Plaintiffs §1983 claim against defendant Porcari (Fourth

Cause of Action) must be dismissed because Porcari is protected from

suit by the doctrine of qualified immunity and because plaintiff has

not alleged any municipal practice or custom upon which his claim

is predicated. Although it is not clear whether the §1983 claim is

asserted against Porcari in his individual or official capacity, it must

nevertheless be dismissed because the claim is redundant to the

claim against the City.

4) Plaintiffs Civil RICO claim (18 U.S.C. §1964) against

defendant Porcari must be dismissed because Porcari is protected

from suit by the doctrine of qualified immunity and because plaintiff

WADE FLIP UVTYOUDITINGTN LEAT A ete ate ETE ate I EE

has not alleged any municipal practice or custom upon which his

claim is predicated. Civil RICO is not allowed for damages arising

from personal injuries. Although it is not clear whether the §1964

claim is asserted against Porcari in his individual or official capacity,

it must nevertheless be dismissed because the claim is redundant to

the claim against the City.

II. MEMORANDUM OF LAW.

A. Standard of Review.

5) Pursuant to Fed. R. Civ. P. 8(a)(2), a pleading must contain

a “short and plain statement of the claim showing that the pleader is

entitled to relief.” Rule 12(b)(6) requires a court to “accept all

allegations in the complaint as true and draw all inferences in the

non-moving party's favor.” Miller v. Wolpoff & Abramson, L.L.P., 321

F.3d 292, 300 (2d Cir. 2003). A case should not be dismissed unless

the court is satisfied that the complaint cannot state any set of facts

that would entitle the plaintiff to relief. Id.; Patel v. Contemporary

Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001).

6) The Supreme Court has held that although a complaint

“does not need detailed factual allegations” to survive a motion to

dismiss, “a plaintiff's obligation to provide the grounds of his [or her]

entitlement to relief requires more than labels and conclusions, and

a formulaic recitation of the elements of a cause of action will not do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955 (2007)

(alteration and internal quotation marks omitted). Rule 8 “demands

more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937

(2009). “Nor does a complaint suffice if it tenders naked assertions

devoid of further factual enhancement.” Id. (alteration and internal

quotation marks omitted). Rather, a complaint's “Iflactual allegations

must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555, 127 S. Ct. 1955. Although “once a claim

has been stated adequately, it may be supported by showing any set

of facts consistent with the allegations in the complaint,” id. at 563,

127 S. Ct. 1955, and a plaintiff must allege “only enough facts to

state a claim to relief that is plausible on its face,” id. at 570, 127 S.

Ct. 1955, if a plaintiff has not “nudged [her] claims across the line

from conceivable to plausible, the[ ] complaint must be dismissed,”

id.; see also Iqbal, 556 U.S. at 679, 129 S. Ct. 1937 (“Determining

whether a complaint states a plausible claim for relief will ... be a

context-specific task that requires the reviewing court to draw on its

judicial experience and common sense. But where the well-pleaded

facts do not permit the court to infer more than the mere possibility

of misconduct, the complaint has alleged—but it has not ‘show|n]’—

“hat the pleader is entitled to relief.” (second alteration in original)

(citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678-79, 129

S. Ct. 1937 (“Rule 8 marks a notable and generous departure from

the hypertechnical, code-pleading regime of a prior era, but it does

not unlock the doors of discovery for a plaintiff armed with nothing

more than conclusions.”).

7) “[{W]hen ruling on a defendant’s motion to dismiss, a judge

must accept as true all of the factual allegations contained in the

complaint,” Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197

(2007), and “draw| | all reasonable inferences in favor of the plaintiff,”

Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y.

2014) (citing Koch v. Christie's Int’l PLC, 699 F.3d 141, 145 (2d Cir.

2012)). Additionally, “[iJn adjudicating a Rule 12(b)(6) motion, a

district court must confine its consideration to facts stated on the

No NNN I a IN A et EE NA ORD EO

face of the complaint, in documents appended to the complaint or

incorporated in the complaint by reference, and to matters of which

judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y.,

199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted);

see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317 (S.D.N.Y.

2016) (same).

B. Defendant Porcari Is Entitled to Qualified Immunity

from Suit.

1. Civil Rights Claim Pursuant to 42 U.S.C.

§1983 (Count 4).

8) To succeed on a claim for violation of civil rights under 42

U.S.C. § 1983, the plaintiff must show that municipal officials, acting

under color of state law, deprived plaintiff of a right guaranteed him

by the Constitution or laws of the United States. Rodriguez v. Phillips,

66 F.3d 470, 473 (2d Cir. 1995).

9) The defendant’s actions at that time must have been

objectively unreasonable considering clearly established federal law;

otherwise, the municipal government actors are entitled to qualified

immunity for discretionary governmental conduct. Harlow v.

Fitzgerald, 475 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982); Robison

Oe Fe PV eee ee

v. Via, 821 F.2d 913, 920 (2d Cir. 1987); Romer v. Morganthau, 119

F. Supp. 2d 346, 355 (S.D.N.Y. 2000).

10) “The doctrine of qualified immunity protects government

officials from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Stanton v. Sims, 571

U.S. 3, 5-6, 134 S. Ct. 3, 4-5 (2013) (quoting Pearson v. Callahan,

555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009)). Qualified immunity

is “an immunity from suit rather than a mere defense to liability; and

like an absolute immunity, it is effectively lost if a case is erroneously

permitted to go to trial.” Scott v. Harris, 550 U.S. 372, 376, 1275S. Ct.

1769, 1773-74 (2007). The immunity recognizes the “strong public

interest in protecting public officials from the costs associated with

the defense of damages actions.” Crawford-El v. Britton, 523 U.S. 574,

590, 118 S. Ct. 1584, 1592-93 (1998). These costs, as the Supreme

Court explained in Harlow v. Fitzgerald, 457 U.S. at 814, 102 S. Ct.

at 2736, can be insurmountable and life and career impacting:

[T]he expenses of litigation, the diversion of official energy from

pressing public issues, and the deterrence of able citizens from

acceptance of public office. Finally, there is the danger that fear

of being sued will “dampen the ardor of all but the most

resolute, or the most irresponsible [public officials], in the

unflinching discharge of their duties.” Gregoire v. Biddle, 177

F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70S.

Ct. 803 (1950).

11) The qualified immunity doctrine affords protection to a

government official only from suit in his individual capacity, that is,

only insofar as the legal action attempts to fasten personal liability

on the official for his or her conduct taken under color of state law.

See generally Kentucky v. Graham, 473 U.S. 159, 165-68, 105 S. Ct.

3099, 3104-06 (1985) (comparing personal-capacity and official-

capacity suits). In contrast, a suit brought against a public officer in

his official capacity is treated as a suit against the government,

damages are available only from the public fisc and the protection of

qualified immunity is not applicable. P.C. v. McLaughlin, 913 F.2d

1033, 1039 (2d Cir. 1990).

12) Violation of a clearly established right is grounded on

whether, based on recognized law and precedent, the right was

defined with “reasonable specificity” and whether statutory or case

law supports the existence and constructive notice of the right

plaintiff claims was violated, such that a reasonable official would

have known his actions were unlawful. See Shechter v. Comptroller of

City of New York, 79 F.3d 265, 270-72 (2d Cir. 1996) (the question is

not whether defendants should have known of an abstract federal

right but whether they should have known their acts specifically

violated plaintiffs right, since too broad a definition of specificity

would turn “qualified immunity ... [into] virtually unqualified liability

simply by [plaintiff] alleging violation of extremely abstract rights”)

quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034

(1987).

13) Even in situations in which an action is found to have

been a violation of a clearly established right, qualified immunity still

applies if it was “objectively reasonable” for defendant to believe that

his acts did not violate those rights in that “officers of reasonable

competence could disagree” on their legality. See Robison v. Via, 821

F.2d at 921 (citing Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct.

1092, 1096 (1986)). The test renders irrelevant any allegations of the

official’s wrongful intent or malice. See Harlow, 457 U.S. at 818, 102

S. Ct. 2727. Qualified immunity protects all “but the plainly

incompetent or those who knowingly violate the law.” Malley, 475

U.S. at 341, 106 S. Ct. 1092 (emphasis added). Qualified immunity

9 □

is the rule rather than the exception and is granted barring material

issues of fact; if denied on a principle of law, the decision is

immediately appealable. See 28 U.S.C. §1293; Cartier v. Lussier, 955

F.2d 841 (2d Cir. 1992).

14) The Complaint does not state any case for a violation by

Porcari of well-established law that would give rise to an actionable

civil rights claim. The claim that Porcari and the other municipal

defendants “retaliated” for the plaintiff's “lawful exercise of free

speech” is not only implausible but it is not of the type that

constitutes a known First Amendment retaliation claim.

15) To state a First Amendment retaliation cause of action

under §1983, a plaintiff must allege “(1) that the speech or conduct

at issue was protected, (2) that the defendant took adverse action

against the plaintiff, and (3) that there was a causal connection

between the protected speech and the adverse action.” Espinal v.

Goord, 558 F.3d 119, 128-29 (2d Cir. 2009); Gill v. Pidlypchak, 389

F.3d 379, 380 (2d Cir. 2004) (quoting Dawes v. Walker, 239 F.3d 489,

492 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 122 S. Ct. 992 (2002)).

10

16) Here, the Complaint does not plausibly allege any

protected activity that was the subject of retaliation that was causally

connected.

17) Porcari’s position as Corporation Counsel allowed him to

provide legitimate legal advice to Mount Vernon officials, but there is

no assertion in the Complaint that Porcari was a final decision-maker

whose advice to others resulted in any adverse, retaliatory action.

Therefore, the Complaint’s laundry list of employment grievances

arising from an admitted medical disability does not plausibly state

a First Amendment retaliation claim against Porcari.

18) Additionally, the Complaint does not even allege Porcari

knew his precise conduct in the exercise of powers authorized by

municipal law constituted an actionable violation of plaintiffs First

Amendment rights. The Complaint identifies no facts coupled with

fact-specific case law to allow a conclusion of affirmative knowledge

on Porcari’s part.

19) Because the Complaint does not show Porcari caused the

offending municipal actions, and Porcari acted in furtherance of his

discretionary duties and responsibilities, Porcari is entitled to

11

qualified immunity from suit for the §1983 claim (Count 4).

2. Civil Rico Claim (18 U.S.C. §1964) (Count 1).

20) For all the same reasons asserted as to the Civil Rights

Claim, Porcari is entitled to dismissal of Count 1 for reasons of

qualified immunity. The Complaint fails to demonstrate Porcari

caused the offending municipal actions. The Complaint pleads no

material facts identifying Porcari’s knowing violation of a clearly

established right. Because Porcari acted in furtherance of his

discretionary duties and responsibilities as Corporation Counsel,

Count 1 should be dismissed with prejudice.

3. Disability Claims (Counts 2 and 3).

21) For all the same reasons, Porcari is entitled to dismissal of

Count 2 and 3 for reasons of qualified immunity. The Complaint fails

to demonstrate Porcari caused the offending municipal actions. The

Complaint pleads no material facts identifying Porcari’s knowing

violation of a clearly established right. Because Porcari acted in

furtherance of his discretionary duties and responsibilities as

Corporation Counsel, Counts 2 and 3 should be dismissed with

prejudice.

12

C. Eleventh Amendment Immunity Protects Porcari from

Suit in his Official Capacity.

22) To the extent the Complaint attempts to assert civil

liability against Porcari in his official capacity, he is entitled to

Eleventh Amendment immunity for suits seeking money damages

when the municipality is the real, substantial party at interest. See

Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.

Ct. 347 (1945); Ying Jing Gan v. City of New York, 996 F.2d 522, 529

(2d Cir. 1993) (“[When] a state official is sued for damages in his

official capacity, such a suit is deemed to be a suit against a state ...

[allowing] Eleventh Amendment immunity’).

23) Accordingly, Porcari invokes his Eleventh Amendment

immunity from suit as to all counts that arise from a claim brought

against the City of Mount Vernon. Counts 1-4 should be dismissed

with prejudice.

D. The Civil RICO Claim (Count 1) Must Be Dismissed.

1. The Civil RICO Statute Is Not a Personal

Injury Statute Providing Recovery for Loss-

of-Employment-Based Damages Claims.

24) To establish a civil RICO claim, a plaintiff must show “(1)

a violation of the RICO statute, 18 U.S.C. § 1962; (2) an injury to

13

business or property; and (3) that the injury was caused by the

violation of Section 1962.” DeFalco v. Bernas, 244 F.3d 286, 305 (2d

Cir. 2001). The instant Complaint should be dismissed for failure to

allege element 2, a cognizable injury to business or property.

25) “Congress enacted RICO to combat organized crime, not to

provide a federal cause of action and treble damages for personal

injuries.” Major League Baseball Props., Inc. v. Price, 105 F. Supp. 2d

46, 49 (E.D.N.Y. 2000). Accordingly, as this Court has explained, “a

Plaintiff must also allege that he was injured in his business or

property by reason of’ a violation of RICO.” McLaughlin v. Chong, 13-

CV-0807 (NSR), 2018 WL 3773993, at *6 (S.D.N.Y. Aug. 9, 2018).

26) The Complaint’s general allegations assert the following

injuries: “Physical pain and suffering, [e]motional trauma and

suffering, including fear, embarrassment, humiliation, emotional

distress, frustration, extreme inconvenience, and anxiety, and

[s]pecial damages including lost wages.” (DE1, 949). The damages

allegations specific to Count I allege “financial, physical and

emotional injury.” (DE1, 758).

27) Each of these damage claims are personal injury claims

14

not recoverable under the civil RICO statute. Mackin v. Auberger, 59

F. Supp. 3d 528, 557 (W.D.N.Y. 2014) (explaining that “personal

injuries are not injuries to business or property as those terms are

used in the RICO statute”).

28) For example, the [58 claim of damages for “financial,

physical and emotional injury” is not a cognizable damage. See

Westchester County Indep. Party v. Astorino, 137 F. Supp. 3d 586,

612-13 (S.D.N.Y. 2015) (“Personal damages, emotional damages, and

physical damages, for example, are insufficient.”); Gross v. Waywell,

628 F. Supp. 2d 475, 488 (S.D.N.Y. 2009) (explaining that “personal

or emotional damages do not qualify”); Williams v. Dow Chem. Co.,

255 F. Supp. 2d 219, 225 (S.D.N.Y. 2003) (explaining that the federal

RICO statute “does not provide recovery for physical and emotional

injuries”).

29) Similarly, the alleged damages for “[e]motional trauma and

suffering, including fear, embarrassment, humiliation, emotional

distress, frustration, extreme inconvenience, and anxiety” (DE1, 749)

are similarly inadequate. See Angermeir v. Cohen, 14 F. Supp. 3d

134, 152 (S.D.N.Y. 2014) (concluding that a claim that one was

15

subjected to annoyance, embarrassment, emotional distress, and

mental anguish was not a recoverable damage under the federal

RICO statute); Davis Lee Pharmacy, Inc., v. Manhattan Cent. Capital

Corp., 327 F. Supp. 2d 159, 164 (E.D.N.Y. 2004) (explaining that the

civil RICO statute is inapplicable to claims for damages arising from

emotional distress); Pappas v. Passias, 887 F. Supp. 465, 470

(E.D.N.Y, 1995) (“emotional distress is not cognizable under RICO

because it does not constitute an injury to business or property”).

30) Likewise, physical pain and suffering are not recoverable

damages. See Canosa v. Ziff, 18 CIV 4115 (PAE), 2019 WL 498865,

at *26 (S.D.N.Y. Jan. 28, 2019) (“The [Amended Complaint]’s RICO

claims, however, fail to allege a compensable injury. T he AC alleges

that as a result of the described RICO acts, Canosa ‘sustained injury,

emotional pain and suffering, physical pain, emotional distress, pain

and suffering and loss of enjoyment of life.’ AC 535. Although these

personal injuries are undeniably consequential, none is an injury to

business or property.”).

31) Finally, regarding the alleged damages for lost wages, “The

Second Circuit has held for more than a quarter century that loss of

16

employment for reporting or refusing to participate in an enterprise

engaging in a pattern of racketeering activity is not an injury

sufficient to confer RICO standing.” Appel v. Schoeman Updike

Kaufman Stern & Ascher L.L.P., 14-CV-2065 (AJN), 2015 WL

13654007, at *10 (S.D.N.Y. Mar. 26, 2015) (quoting Hatson v. N.Y.

Archdiocese, No. 05 Civ. 10467 (PAC), 2007 WL 431098, at *7

(S.D.N.Y. Feb. 8, 2007). In Appel, alleged damages for “termination,

severe economic injury, including but not limited to lost past and

future wages” were not cognizable civil RICO injuries. 2015 WL

13654007, at *10.

32) Count I must accordingly be dismissed with prejudice.

2. The Complaint § Alleges No Causal

Connection Between His Termination-Based

Damages Claim and the Alleged RICO

Scheme.

33) In addition to establishing an injury to business or

property, “the plaintiff is [also] required to show that a RICO

predicate offense ‘not only was a ‘but for’ cause of his injury, but was

the proximate cause as well.” Zimmerman v. Poly Prep Country Day

Sch., 888 F. Supp. 2d 317, 330 (E.D.N.Y. 2012) (quoting Hemi Group,

LLC v. City of New York, 559 U.S. 1 (2010). Proximate cause requires

17

“some direct relation between the injury asserted and the injurious

conduct alleged.” Holmes v. Securities Investor Prot. Corp., 503 U.S.

258, 268 (1992). The Hemi Group court explained that “[a] link that

is ‘too remote,’ ‘purely contingent,’ or ‘indirec[t]’ is insufficient.” Hemi

Group, LLC, 559 U.S. at 9.

34) The instant Complaint does not allege a direct link

between Pocari’s alleged predicate acts and plaintiff's damages.

Under his Complaint, the target of the predicate offenses was not the

plaintiff, but the Mount Vernon Board of Water & Sewer funds (DE1,

(21-23). Plaintiff alleges “Porcari engaged in this ‘systematic

ongoing course of conduct’ to steal from and defraud the MVBWS

between March 23, 2018 and November 5, 2018,” the purpose of

which was to “pay for Defendant Mayor Thomas’ legal fees to the

Boies firm and to pay for a Public Relations firm in connection with

Thomas’ arrest.” (DE1, 921). Plaintiff accordingly has failed to allege

a causal connection between his injuries and the alleged RICO

scheme.

35) Count I must be dismissed with prejudice for this

additional reason.

18

E. The Disability Discrimination Claims Must be

Dismissed (Counts II & III).

36) The Americans with Disabilities Act (ADA) makes it

unlawful to “discriminate against a qualified individual on the basis

of disability in regard to... the hiring, advancement, or discharge of

employees, . . . and other terms, conditions, and privileges of

employment.” 42 U.S.C. §12112(a). Prevailing Second Circuit law

requires the following allegations for a plaintiff to state a prima facie

case for discrimination: “(1) the defendant is covered by the ADA; (2)

plaintiff suffers from or is regarded as suffering from a disability

within the meaning of the ADA; (3) plaintiff was qualified to perform

the essential functions of the job, with or without reasonable

accommodation; and (4) plaintiff suffered an adverse employment

action because of his disability or perceived disability.” Capobianco

v. City of N.Y., 422 F.3d 47, 56 (2d Cir. 2005); Colon v. New York State

Dep’t of Corr. & Cmty. Supervision, 15 CIV. 7432 (NSR), 2017 WL

4157372, at *6 (S.D.N.Y. Sept. 15, 2017).

37) “A plaintiff states a prima facie failure to accommodate

claim by demonstrating that (1) plaintiff is a person with a disability

under the meaning of the ADA; (2) an employer covered by the statute

19

had notice of his disability; (3) with reasonable accommodation,

plaintiff could perform the essential functions of the job at issue; and

(4) the employer has refused to make such accommodations.”

McMillan v. City of New York, 711 F.3d 120, 125-26 (2d Cir. 2013).

38) Although plaintiff sued for ADA violations in Counts 2 and

3, “there is no right of recovery against individual defendants under

the ADA.” Corr v. MTA Long Island Bus, 199 F.3d 1321 (2d Cir. 1999);

Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir. 1995) (explaining

the absence of individual liability under Title VII because of the word

“employer”). Embro v. Marsico, 12-CV-9003 NSR, 2014 WL 5038368,

at *3 (S.D.N.Y. Sept. 30, 2014) (dismissing ADA claims against

District Superintendent for the Rockland County Board of

Cooperative Educational Services, “because there is no individual

liability under Title VII or the ADA”).

39) The ADA claims in Counts 2 and 3 must accordingly be

dismissed with prejudice.

III. DEFENDANT PORCARI IS ENTITLED TO ATTORNEY’S FEES

AND COSTS.

40) As authorized by the statutes invoked by the plaintiff for

the claims presented, defendant Porcari is entitled to reasonable

20

costs and fees upon prevailing in this matter.

IV. CERTIFICATION OF CONFERRAL.

41) Defense counsel conferred with plaintiff's counsel who did

not agree to the relief requested in this motion.

V. CONCLUSION.

42) For the reasons stated, the Complaint should be dismissed

with prejudice as to Porcari.

Dated: November 14, 2019

Respectfully submitted,

(Renedct Kethve

S/ Benedict P. Kuehne

BENEDICT P. KUEHNE

Florida Bar No. 233293

KUEHNE DAVIS LAW, P.A.

100 S.E. 2nd St., Suite 3550

Miami, FL 33131-2154

Tel: 305.789.5989

Fax: 305.789.5987

ben. kuehne@kuehnelaw.com

efiling@kuehnelaw.com

Pro Hac Vice

CERTIFICATE OF SERVICE

I certify that on November 14, 2019, I electronically filed the

foregoing document with the Clerk of the Court using CM/ECF. I

certify the foregoing document is being served this day on all counsel

21

of record via transmission of Notices of Electronic Filing generated by

CM/ECF.

By: /S/ Benedict P. Kuehne

BENEDICT P. KUEHNE

22