Petition for Writ of Certiorari — Donnahue George, Petitioner v. William Snyder, et al.
Supreme Court briefApr 28, 2021
Ask Donna
What actually matters in this document.
Text
No.
IN THE
SUPREME COURT OF THE UNITED STATES
Donnahue George -Petitioner
vs.
Westway Towing
William Snyder
Fort Lauderdale Code Enforcement
John Doe
ON PETITION FOR A WRIT OF CERTIORARI TO
United States Court Of Appeals 11th Circuit
APPENDIX
Donnahue George
1012 NW 2nd Street
Fort Lauderdale FI 33311
(347)216-5257
Email: DonnahueGeorge@gmail.com
APPENDIX A
USCA11 Case: 20-11648
Date Filed: 02/12/2021
Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 20-11648
Non-Argument Calendar
D.C. Docket No. 0:19-cv-61827-RAR
DONNAHUE GEORGE,
Plaintiff-Appellant,
versus
WILLIAM SNYDER,
WESTWAY TOWING,
FORT LAUDERDALE CODE ENFORCEMENT,
JOHN DOE,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Florida
(February 12, 2021)
USCA11 Case: 20-11648
Date Filed: 02/12/2021
Page: 2 of 9
Before WILSON, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Federal pleading rules serve a dual purpose. First, they ensure that the
defendants have fair notice of the claims against them so that they can frame an
appropriate defense. And, second, they guarantee that the district court will have
“a clear and definitive response before it,” so it can “recognize the parties’ claims
and defenses, identify the issues of fact to be litigated, and proceed to a just result.”
Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 (11th Cir. 2008). The
district court found that Donnahue George, a pro se plaintiff, violated those
pleading rules when he submitted a threadbare and conclusory complaint, leaving
the court and the defendants unable to discern and analyze his claims. So it
dismissed his complaint.
George believes that this dismissal was in error. He also contends that the
court erred in other ways, including incorrectly setting aside the clerk’s entry of
default against the defendants and striking the defendants’ separate motions to
dismiss and ordering them to file a joint motion. Because we find that the district
court did not abuse its discretion in any of these decisions, we will affirm.
I.
Donnahue George alleges that on March 18, 2019, William Snyder entered
his property and, with the help of West Way Towing Co., stole his vehicle from his
covered driveway. George’s neighbors called to alert him that his vehicle was
being towed. When they put Snyder on the phone, George informed him that the
vehicle was his and that it was parked legally on his own property. But rather than
2
USCA11 Case: 20-11648
Date Filed: 02/12/2021
Page: 3 of 9
return the vehicle, Snyder hung up and “proceeded to tow the vehicle and submit
the false report to his department that stated he did not know who the owner of the
vehicle was and that it was derelict.”
George spent the next several months trying to recover his vehicle. He went
to the Fort Lauderdale Police Department and to “code enforcement,” but was told
only that his vehicle was towed because it was derelict. So he called West Way
Towing. They put him on hold three times and never returned his call. He wrote
to “code enforcement” and to the City of Fort Lauderdale. Again, no reply.
As a last resort, he filed this lawsuit. In his first attempt at drafting his
complaint, he completed a handwritten five-page form, alleging generally that
“William Snyder conspired with [West Way] Towing to deprive Plaintiff of his
constitutional rights by illegally stealing his property from his premises without
legal authority and fabricating information to cover up the theft.” The district
court promptly sua sponte dismissed the case without prejudice because the
“Plaintiff s Complaint fail[ed] to state a claim upon which relief may be granted.”
Specifically, the court noted that Rule 8(a)(2) of the Federal Rules of Civil
Procedure requires a complaint to contain a “short and plain statement of the
claim” showing that the plaintiff is entitled to relief. In that first complaint,
George had not included “sufficient factual matter, that if accepted as true, allows
the Court to reasonably infer that Defendants are liable for any misconduct or
wrongdoing, or what the claim or claims against each of them may be.”
A few months later, George moved to reopen his case and to file an amended
complaint. The district court granted that motion. The case then sat; no
3
USCA11 Case: 20-11648
Date Filed: 02/12/2021
Page: 4 of 9
defendants appeared. George eventually filed affidavits showing that he had
served the defendants and asked the clerk to enter default. After the clerk’s entry
of default was noted on the docket, George moved for a default judgment against
all the defendants.
Within days of that motion being filed, counsel for West Way Towing,
Snyder, and Fort Lauderdale Code Enforcement entered their appearances and
moved to set aside the clerk’s entry of default. George, they explained, had only
served his original complaint on them—not the amended complaint. Once they
discovered that the case had been dismissed sua sponte by the court, they assumed
the matter was closed. But when they were notified of the clerk’s entry of default
against them, they quickly entered their appearances and moved to set aside the
default. The district court found that the defendants had established good cause for
failing to appear, so it set aside the entry of default and allowed the case to
proceed.
The defendants then filed separate motions to dismiss the amended
complaint. But the district court struck those motions because the court’s policies
and procedures prohibited “filing of separate motions, unless there are clear
conflicts of positions.” It instructed the defendants to refile with a joint motion.
After briefing on the motion to dismiss was completed, the court dismissed
George’s amended complaint. Again repeating the Rule 8(a) requirements, the
court noted that George had “failed to remedy the deficiencies noted by this Court
in its prior Order Dismissing Case.”
4
USCA11 Case: 20-11648
Date Filed: 02/12/2021
Page: 5 of 9
II.
The district court dismissed George’s complaint as a shotgun pleading,
violating the Federal Rules of Civil Procedure’s pleading requirements. A district
court possesses “inherent authority to control its docket and ensure the prompt
resolution of lawsuits, which in some circumstances includes the power to dismiss
a complaint for failure to comply with Rule 8(a)(2) and Rule 10(b)” of the Federal
Rules of Civil Procedure. Weiland v. Palm Beach Cnty. Sheriff’s Off, 792 F.3d
1313, 1320 (11th Cir. 2015). We review those dismissals for abuse of discretion.
Id.
Though pro se parties’ pleadings are liberally construed by courts, the
litigants are not relieved from following procedural rules. Albra v. Advan, Inc.,
490 F.3d 826, 829 (11th Cir. 2007). Rule 8(a) sets standards for the content of
pleadings, requiring complaints to provide a “short and plain statement of the
grounds for the court’s jurisdiction,” a “short and plain statement of the claim
showing that the pleader is entitled to relief,” and a “demand for the relief sought.”
Fed. R. Civ. P. 8(a)(l)-(3). Rule 10(b) regulates the form of those pleadings,
stating that a “party must state its claims or defenses in numbered paragraphs” and
must assert “each claim founded on a separate transaction or occurrence” in a
“separate count.” Fed. R. Civ. P. 10(b). Pleadings that violate these rules are
known as “shotgun pleadings.”
Shotgun pleadings take many different forms, but their “unifying
characteristic” is that they fail to give the defendants “adequate notice of the claims
against them and the grounds upon which each claim rests.” Weiland, 792 F.3d at
5
USCA11 Case: 20-11648
Date Filed: 02/12/2021
Page: 6 of 9
1323. The most common type is a complaint that contains “multiple counts where
each count adopts the allegations of all preceding counts, causing each successive
count to carry all that came before and the last count to be a combination of the
entire complaint.” Id. at 1321. But a complaint that commits the “sin of not
separating into a different count each cause of action or claim for relief’ or the “sin
of asserting multiple claims against multiple defendants without specifying which
of the defendants are responsible for which acts or omissions, or which of the
defendants the claim is brought against,” is equally prohibited. Id. at 1323.
The district court determined George’s amended complaint fell into this
latter category. The complaint did not “include sufficient factual matter that would
allow the Court to reasonably infer that Defendants are liable for any misconduct
or wrongdoing, or what the claim or claims against each of them may be.” It
recited facts but did “not contain any counts,” nor did it make any attempt to tether
the factual allegations to the various claims. It did not contain enough factual
allegations for the court to determine the “basis of its subject matter jurisdiction.”
And it set forth only “vague and conclusory allegations.” The district court
dismissed the complaint because, in sum, it failed to “comply with the Federal
Rules of Civil Procedure and federal pleading standards, and does not provide a
sufficient basis for this Court to find subject matter jurisdiction.”
We find no abuse of discretion in this decision. Though George’s
amended complaint is an improvement upon his first, it still did not provide the
defendants adequate notice of the claims against them, for the reasons the district
court outlined. George’s brief on appeal now does a better job tethering his factual
6
USCA11 Case: 20-11648
Date Filed: 02/12/2021
Page: 7 of 9
allegations to his particular causes of action, but that information is lacking in his
pleading. He cannot amend his complaint now through his appellate briefing.
We emphasize, though, that the district court dismissed this case on
procedural grounds and, it appears, without prejudice.1 George may have real and
valid claims against West Way Towing, Snyder, or the Fort Lauderdale Code
Enforcement. He remains free to try again with a new complaint that contains
clear factual allegations tethered to specific counts against particular defendants, as
required by Rules 8(a) and 10(b).
III.
George also claims two other errors by the district court. First, he suggests
that the district court incorrectly set aside the clerk’s entry of default, and second,
he argues that the court impermissibly struck the defendants’ separate motions to
dismiss. We review both orders for abuse of discretion. Compania
Interamericana Exp.-Imp., S.A. v. Compania Dominicana de Aviacion, 88 F.3d
948, 951 (11th Cir. 1996); Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1320
(11th Cir. 2013). Under this standard, we must “affirm unless we find that the
district court has made a clear error of judgment, or has applied the wrong legal
The district court never stated whether the dismissal was with or without prejudice. A district
court may dismiss a case for failure to comply with court rules “under the authority of either
Rule 41(b) or the court’s inherent power to manage its docket.” Weiland, 792 F.3d at 1321 n.10.
To dismiss with prejudice under Rule 41(b), the court must find that “(1) a party engages in a
clear pattern of delay or willful contempt (contumacious conduct); and (2) the district court
specifically finds that lesser sanctions would not suffice.” Betty K Agencies, LTD. v. M/V
Monada, 432 F.3d 1333, 1337-38 (11th Cir. 2005) (quotation omitted). Because the “order does
not cite Rule 41(b)” or “make the findings necessary to justify a dismissal under that provision,”
we will assume it dismissed under its inherent power to manage its docket and that it was done
without prejudice. See Weiland, 792 F.3d at 1319-20.
7
USCA11 Case: 20-11648
Date Filed: 02/12/2021
Page: 8 of 9
standard.” Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010)
(quotation omitted).
Under Federal Rule of Civil Procedure 55(c), the district court “may set
aside an entry of default for good cause.” Good cause is not precisely defined and
often depends upon the court’s consideration of whether “the default was culpable
or willful, whether setting it aside would prejudice the adversary, and whether the
defaulting party presents a meritorious defense.” Compania, 88 F.3d at 951.
The district court correctly applied that standard here, finding good cause for
vacating the entry of default. The defendants, it said, were not “properly served
with the Amended Complaint; as such their default was not culpable or willful.”
More, the court noted that the defendants “acted promptly to vacate the Clerk’s
Entry of Default” and that “vacating the Clerk’s Default will not unduly prejudice
Plaintiff.” Because George has not identified any clear error in the district court’s
judgment, we will affirm.
Finally, the district court did not err in striking the defendants’ separate
motions to dismiss and ordering that they file a joint motion. District courts have
“broad discretion” in managing their cases. Chrysler Int’l Corp. v. Chemaly, 280
F.3d 1358, 1360 (11th Cir. 2002). Because of the “caseload of most district courts
and the fact that cases can sometimes stretch out over years,” district courts may
use this discretion to ensure that their cases “move to a reasonably timely and
orderly conclusion.” Id. That is all that the district court’s order did here. By
striking the separate motions and requiring a joint motion to be filed in compliance
with the court’s rules, it tried to streamline the case. Contrary to George’s
8
USCA11 Case: 20-11648
Date Filed: 02/12/2021
Page: 9 of 9
contentions, nothing in this order gave “defense strategies to the defendants,”
evidenced any sort of bias toward the defendants, or suggested in any way that the
court abused its discretion.
* * *
Because we find no abuse of discretion in any of the district court’s orders
challenged by George, we AFFIRM.
9
USCA11 Case: 20-11648
Date Filed: 02/12/2021
Page: 1 of 1
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING
56 Forsyth Street. N.W.
Atlanta. Georgia 30303
David J. Smith
Clerk of Court
For rules and forms visit
www.cal 1 .uscourts.gov
February 12, 2021
MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 20-11648-JJ
Case Style: Donnahue George v. William Snyder, et al
District Court Docket No: 0:19-cv-61827-RAR
This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless
exempted for good cause. Non-incarcerated pro se parties are permitted to use the ECF system by registering for an
account at www.pacer.gov. Information and training materials related to electronic filing, are available at
www.call.uscourts.gov. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been
entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).
The time for filing a petition for rehearing is governed by 11 th Cir. R. 40-3, and the time for filing a petition for rehearing en
banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing
or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed
by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is
governed by 11th Cir. R. 39-2 and 39-3.
Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all
persons and entities listed on all certificates previously filed by any party in the appeal. See 11 th Cir. R. 26.1 -1. In addition, a
copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See
Uth Cir. R.35-5(k) and 40-1 .
Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on the
appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for writ of
certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or
cja_evoucher@cal 1 .uscourts.gov for questions regarding CJA vouchers or the eVoucher system.
Pursuant to Fed.R.App.P. 39, costs taxed against appellant.
Please use the most recent version of the Bill of Costs form available on the court's website at www.cal 1 .uscourts.gov.
For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block
below. For all other questions, please call Tiffany A, Tucker. JJ at (404)335-6193.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Jeff R. Patch
Phone#: 404-335-6151
OPIN-1A Issuance of Opinion With Costs
APPENDIX B
Case 0:19-cv-61827-RAR Document 42 Entered on FLSD Docket 04/27/2020 Page 1 of 6
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 19-CIV-61827-RAR
DONNAHUE GEORGE,
Plaintiff,
v.
WILLIAM SNYDER, WESTWAY
TOWING, FORT LAUDERDALE
CODE ENFORCEMENT, and JOHN
DOE,
Defendants.
ORDER GRANTING JOINT MOTION TO DISMISS
THIS CAUSE comes before the Court on Defendants Fort Lauderdale Code Enforcement,
William Snyder, and West Way Towing’s Motion to Dismiss (“Motion”) [ECF No. 39], filed on
December 19, 2020. Defendants ask the Court to dismiss Plaintiffs Amended Complaint [ECF
No. 11] pursuant to Federal Rule of Civil Procedure 12(b)(6). Having reviewed the parties’
submissions, the record, and being otherwise fully advised in the premises, it is
ORDERED AND ADJUDGED that Defendants’ Motion is hereby GRANTED, as
explained herein.
BACKGROUND
On July 22, 2019, pro se Plaintiff Donnahue George filed a Complaint alleging that
Defendants violated his constitutional rights when they improperly towed his vehicle without his
permission. See Comp. [ECF No. 1]. The Court dismissed Plaintiffs Complaint sua sponte for
failure to state a claim. See Order Dismissing Case [ECF No. 7]. In doing so, the Court noted that
Plaintiff s Complaint lacked any detail regarding the purported theft and was entirely conclusory
in nature. Id. Plaintiff then filed a Request to Reopen Case and to File an Amended Complaint
Case 0:19-cv-61827-RAR Document 42 Entered on FLSD Docket 04/27/2020 Page 2 of 6
[ECF No. 9], alleging that he could remedy the pleading deficiencies identified by the Court. The
Court granted Plaintiffs request, afforded Plaintiff an opportunity to file an amended complaint,
and noted that “failure to file an amended complaint that comports with the Federal Rules of Civil
Procedure ... will result in an order of dismissal without further notice.” Order Granting Plaintiffs
Request to Reopen Case [ECF No. 10].
On October 21, 2019, Plaintiff filed an Amended Complaint.
See Am. Comp.
On
November 6, 2019, Plaintiff filed a Motion for Clerk’s Entry of Default [ECF No. 13], which the
Clerk denied for failure to file executed summons [ECF No. 14], Plaintiff then filed executed
summons [ECF Nos. 15-17] and renewed his request for a Clerk’s Entry of Default [ECF No. 18],
which was granted [ECF No. 19]. Plaintiff then filed a Motion for Default Final Judgment [ECF
No. 22], Days later, Defendants filed Motions to Set Aside or Vacate the Clerk’s Default [ECF
No. 23, 25] on grounds that Plaintiff had never served the Amended Complaint. Because this case
had been closed, Defendants had not received notice of the Amended Complaint or the Order
Granting Plaintiffs Motion to Reopen.
Accordingly, the Court granted Defendants’ Motions to Set Aside or Vacate the Clerk’s
Default, denied Plaintiff s Motion for Default Final Judgment, and ordered Defendants to file a
response to Plaintiff s Amended Complaint. See Order Vacating Clerk’s Default [ECF No. 27].
Defendants subsequently filed the instant Motion to Dismiss, which is ripe for disposition.
LEGAL STANDARD
A motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint;
it does not adjudicate the merits of the case. Milburn v. United States, 734 F.2d 762, 765 (11th
Cir. 1984). At the pleading stage, a complaint must contain “a short and plain statement of the
claim showing the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). Although Rule 8(a) does
Page 2 of 6
Case 0:19-cv-61827-RAR Document 42 Entered on FLSD Docket 04/27/2020 Page 3 of 6
not require “detailed factual allegations,” it does require “more than labels and conclusions;” a
“formulaic recitation of the cause of action will not do.” Bell Atl. Corp v. Twombly, 550 U.S. 544,
555 (2007). To survive a motion to dismiss, “factual allegations must be enough to raise a right
to relief above the speculative level” and must be sufficient “to state a claim for relief that is
plausible on its face.” Id. at 555, 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In considering a 12(b)(6) motion to dismiss, a court must review the complaint in the light
most favorable to the plaintiff, and it must generally accept the plaintiffs well-pleaded facts as
true. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Am. United Life Ins. Co. v. Martinez,
480 F.3d 1043, 1057 (11th Cir. 2007). Although generally, pro se complaints are held to a less
stringent pleading standard than pleadings drafted by lawyers, seeAbele v. Tolbert, 130 F. App’x
342, 343 (11th Cir. 2005), “liberal construction of pro se pleadings does not give a court license
to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to
sustain an action,” Smitherman v. Decatur Plastics Prod. Inc., 735 F. App’x 692, 692-93 (11th
Cir. 2018) (quoting Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014))
(internal quotations omitted).
ANALYSIS
Plaintiff s Amended Complaint alleges that Defendants unlawfully towed his vehicle and
falsified paperwork to justify their illicit behavior. See generally Am. Comp. However, even
under the relaxed pleading standard afforded to pro se litigants, Plaintiffs Amended Complaint
fails to meet the foregoing standards. The Amended Complaint does not include sufficient factual
matter that would allow the Court to reasonably infer that Defendants are liable for any misconduct
Page 3 of 6
Case 0:19-cv-61827-RAR Document 42 Entered on FLSD Docket 04/27/2020 Page 4 of 6
or wrongdoing, or what the claim or claims against each of them may be. To begin, Plaintiffs
Amended Complaint is a recitation of facts that does not contain any counts, and therefore does
not permit Defendants—or the Court—to properly analyze the same.
Moreover, while Plaintiff alleges certain constitutional violations, his factual allegations
are untethered to his constitutional claims. The Court cannot discern which Defendants are alleged
to have violated the Constitution and what the basis for these allegations may be. Indeed, it appears
that Plaintiff does not appreciate that private individuals and corporations cannot generally be
found liable for constitutional violations absent certain circumstances, see Smartt v. First Union
Nat 7 Bank, 245 F. Supp. 2d 1229,1233 (M.D. Fla. 2003), and that departments of city government
are normally not considered legal entities capable of being sued, Dean v. Barber, 951 F.2d 1210,
1214(11th Cir. 1992).
While it is clear from Plaintiffs Amended Complaint that he believes his vehicle was
unlawfully towed, what remains decidedly unclear is how such actions translate into the legal
claims Plaintiff alleges. Plaintiff s conclusory allegations that “Defendants committed trespass by
entering my property to steal my vehicle” or that “Defendants caused me intentional infliction of
emotional distress by stealing my vehicle” simply do not suffice to state a plausible claim. Because
Plaintiff does not specify which Defendant is liable for each barebone allegation, the Court cannot
discern the basis of Plaintiff s claims. See Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d
1313, 1323 (11th Cir. 2015) (“The unifying characteristic of all types of shotgun pleadings is that
they fail to one degree or another, and in one way or another, to give the defendants adequate
notice of the claims against them and the grounds upon which each claim rests.”); see also Fed. R.
Civ. P. 8(a) (“A pleading that states a claim for relief must contain ... a short and plain statement
of the claim showing that the pleader is entitled to relief.”) (emphasis added).
Page 4 of 6
Case 0:19-cv-61827-RAR Document 42 Entered on FLSD Docket 04/27/2020 Page 5 of 6
Further, the Court cannot determine the basis of its subject matter jurisdiction from
Plaintiff s allegations. Federal courts are ‘“empowered to hear only those cases within the judicial
power of the United States as defined by Article III of the Constitution,’ and which have been
entrusted to them by a jurisdictional grant authorized by Congress.” Univ. of S. Ala. v. Am.
Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367
(11th Cir. 1994)). Accordingly, once a federal court determines that it is without subject matter
jurisdiction, the court is powerless to continue. Id. at 410. Here, Plaintiff alleges that the Court
has federal question jurisdiction pursuant to his constitutional claims and his claim under 42 U.S.C.
section 1983. But both of these jurisdictional bases present challenges for Plaintiff.
With respect to his constitutional claims, Plaintiff concedes that he cannot proceed against
Defendant Westway Towing, a private corporation. Similarly, and perhaps in recognition of his
inability to pursue claims against Defendant Fort Lauderdale Code Enforcement, Plaintiff offers
to substitute the same for the City of Fort Lauderdale.1 Additionally, to the extent Plaintiff is
raising constitutional claims against the last remaining Defendant—William Snyder—said claims
lack any indicia to suggest Snyder was acting as an agent of the City such that a viable
constitutional claim against him may exist.
Plaintiffs alleged section 1983 claim is similarly problematic. While Plaintiff sets forth
section 1983 as a basis for the Court’s subject matter jurisdiction, even under the most liberal
construction of the Amended Complaint, Plaintiff has not alleged an action under section 1983.
Beyond his jurisdictional allegation, Plaintiff s Amended Complaint never mentions section 1983,
contains no allegations against the City of Fort Lauderdale, and does not allege a custom or policy
The Court notes that even if Plaintiff were permitted to substitute the City of Fort Lauderdale as a
defendant in this case, such substitution would not cure the pleading deficiencies identified herein.
Page 5 of 6
Case 0:19-cv-61827-RAR Document 42 Entered on FLSD Docket 04/27/2020 Page 6 of 6
that caused Plaintiffs injury.
In sum, Plaintiff has failed to remedy the deficiencies noted by this Court in its prior Order
Dismissing Case [ECF No. 7]. Plaintiffs Amended Complaint continues to set forth vague and
conclusory allegations, fails to comply with the Federal Rules of Civil Procedure and federal
pleading standards, and does not provide a sufficient basis for this Court to find subject matter
jurisdiction.
CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED that Defendants’ Motion
to Dismiss [ECF No. 39] is GRANTED. Plaintiffs Amended Complaint [ECF No. 11] is
DISMISSED. The Clerk is directed to CLOSE this case.
DONE AND ORDERED in Fort Lauderdale, Florida, this 27th day of April, 2020.
RODOLFO A. RUIZ II
UNITED STATES DISTRICT JUDGE
Page 6 of 6
APPENDIX C
REC’D BY.
D.C.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 19-CV-61827-RUIZ/SELTZER
DONNAHUEGEORGE
DEC 20 2019 '
ANGELA E. NOBLE
CLERK U.S. DIST. CT.
S. D. OF.FLA, - FT, LAUD.
MOTION IN OPPOSITION
Plaintiff
v.
WILLIAM SNYDER
WESTWAY TOWING
FORT LAUDERDALE CODE ENFORCEMENT
Defendant
PLAINTIFF OPPOSITION MOTION TO DEFENDANT FORT LAUDERDALE CODE
ENFORCEMENT. DEFENDANT WILLIAM SNYDER AND DEFENDANT WESTWAY
TOWING JOINT MOTION TO DISMISS PLAINTIFFS AMENDED COMPLAINT
(ECF#39)
Come now the Plaintiff Donnahue George who requests that this honorable court
deny the Defendant Fort Lauderdale Code Enforcement, Defendant William
Snyder and Defendant Westway Towing motion to dismiss Plaintiffs Amended
Complaint(ECF No. 39) and in support therefore states as follows
Procedural History
1. July 22, 2018 Plaintiff Donnahue George filed his complaint against, City of
Fort Lauderdale code enforcement, Westway Towing, William Snyder and
John Doe (See ECF1.)
2. Defendants Westway Towing was served with the summons on July 23,
2019 and Plaintiff Donnahue George filed a motion to reopen the case on
September 23. 2019 and served Westway Towing representative by US mail
(ECF 16)
3. Plaintiff Donnahue George filed a Motion to Re-Open the case on
September 23, 2019 (ECF 9)
4. Donnahue George filed his Amended Complaint on October 21, 2019 (ECF
11) Plaintiff Donnahue George served a copy of the Amended Complaint to
Westways registered agent as required by Florida Statute
5. A Clerks Default was entered based on the Amended Complaint not the
original complaint. (ECF 19)
6. The allegations in the pleadings essentially accuse Westway towing of
stealing plaintiffs vehicle in cahoots with Defendant William Snyder,
violating Florida state towing laws and Penal laws and then fabricating
evidence to coverup the theft.
Memorandum of Law
I.
Standard on a motion to dismiss.
To defeat a motion to dismiss under Rule 12(b) (6), a plaintiff bears the
burden of providing grounds of his entitlement to relief. In Bell Atlantic
Corp v. Twombly 550 U.S. 544 (2007) the courts held that there must be
sufficient facts in a complaint to state a claim to relief that is plausible on its
face for it to avoid dismissal for failure to state a claim. Plaintiffs Donnahue
George facts are plausible on its face to state a claim for relief. Defendant
Westway Towing in Cahoots with Defendant William Snyder entered my
property illegally on March 18, 2019 at approximately 0930 and stole my
perfectly running limo that was clean and covered and legally parked in my
paved driveway. Defendant has failed to give a legal reason why they
entered my property and stole my vehicle. Florida Statute 715.07 (2)(a)(2)
states that if you tow a vehicle in the state of florida without the owners
permission you have to notify the local police department within 30
minutes. West way towing has years in the business and is familiar with the
statute yet no one notified the Fort Lauderdale police department in 30
minutes so at that point, the tow truck driver committed a misdemeanor by
violating Florida statute 715.07 (2)(a)(2). What someone did do was report
to the fort Lauderdale police department that my vehicle was found
abandoned in the street in fort Lauderdale a few hours after it was stolen
from my property. There are sufficient facts concerning the actions and
inactions of the defendants on March 18, 2019 to state a claim by which
relief can be granted.
A court considering a Rule 12(b) Motion is generally limited to the facts
contained in the complaint and attached exhibits, (see Wilchcombe v
Teevee Toons Inc, 555 F.3d 949, 959 (11th Cir 2009) The facts contained in
the complaint are very precise as to the illegal actions which was entering
my property and stealing my vehicle and the illegal inactions not nitifying
the fort lauderdale police department as required by statute. Westway
Towing entered my property stole my vehicle violated florida statutes in
order to cover up the theft and they still have not presented any evidence
to the contrary.
II.
Plaintiff Donnahue George Amended Complaint sets forth multiple
factual allegations upon which relief must be granted.
Plaintiff Donnahue George original complaint was vague because he knew
that the Defendants Westway Towing and Defendant William Snyder had
no moral problem with fabricating evidence, ignoring florida statutes and
penal code in order to cover up their felonious actions and inactions.
While the defendant Westway towing is correct that the constitutional
rights violations cant be attributed to them, They still entered my property
illegally on March 18, 2019 which was a trespass, stole my perfectly running
vehicle out my driveway which made it tresspass to chattel and Conversion.
They committed fraud by totally ignoring Florida Statute 715.07 (2)(a)(2)
which required them to notify the local police department in 30 minutes
which they did not do. Violation of this statute is a misdeamenor. Then
someone a few hours later notified Fort Lauderdale police department that
they found by vehicle abandoned in the street. The illegal actions and
illegal inactions of Defendant Westway towing was the proximate cause of
my intentional emotional distress. They knew what they were doing was
illegal, by their own evidence they submitted (see exhibit B) they knew that
I was the owner of the vehicle and it was registered at the address that
they towed it from. It appears they then dropped it in the street then
someone called Fort Lauderdale Police department reported my vehicle
abandoned and then it was towed again. These are issues that will be
answered during the discovery process. I am very confident that Fort
Lauderdale police department has very accurate records.
In alleging Fraud or Mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice , intent knowledge and
other conditions of a persons mind may be alleged generally (see State
Farm Mut. Auto Ins. Co. v. Performance Orthopedics & Neurosurgery, LLC,
278 F. Supp. 3d 1307,1317 (S.D. Fla. 2017)
Westway Towing entered the property illegally without plaintiff Donnahue
George expressed authority which created the trespass. The facts are very
clear on its face. Westway Towing knew plaintiff Donnahue George was the
owner of the vehicle by their own evidence they presented to the courts
(see Exhibit B) Westway Towing even armed with that information still
removed Plaintiffs Donnahue George vehicle from his premises in direct
violation of Florida State Statutes. Westway towing knew that they were
required to notify the local police department within 30 minutes of towing
my vehicle and they did not which is a misdemeanor and further evidence
of their fraud.
In Dagerath v. State , 100 So. 3d 1260,1263 (Fla. 4th DCA 2012) the courts
held that the defendant had to meet the following elements for trespass (1)
the defendant willfully entered the structure conveyance or other property.
Westway towing willfully entered the property and stole my vehicle. (2)
the structure, conveyance or other property was owned by or in Ithe lawful
possession of another. Plaintiff Donnahue George is the legal owner of
1012 NW 2nd st Fort Lauderdale FI and he is the legal registered owner of
the perfectly good clean running vehicle that defendants stole out of his
property.
In order for co-conspirators to commit a crime together they do not have to
have a legal relationship. Defendant William Snyder and Defendant
Westway Towing committed the trespass together. Committed the trespass
of Chattel together along with the conversion. Employer employee
relationship not required to commit a crime. Defendant William Snyder
committed part of the fraud alone by submitting a report to his department
that he did not know who the owner of the vehicle was and that it was
derelict. Westway towing committed part of the fraud on their own by not
notifying the local police department in 30 minutes as required by Florida
state statutes. Someone later notified Fort Lauderdale Police Department
that they found my vehicle abandoned in the street.
Conversion may be demonstrated by a Plaintiffs demand and a Defendants
Refusal (See Goodrich v Malowney, 157 So. 2d 829, 832 (Fla. 2d DCA1963)
The generally accepted rule is that demand and refusal are unnecessary
where the act complained of amounts to conversion regardless whether a
demand was made". While Defendant William Snyder And his
Coconspirator Westway towing was in the process of stealing plaintiff
vehicle, plaintiff neighbor called plaintiff Donnahue George and told him
about the theft in progress. Plaintiff Donnahue George spoke to defendant
William Snyder and told him he did not have permission to remove my
vehicle from my property and defendant William Snyder simply ignored my
request and hung up the phone.
In order for Plaintiff Donnahue George to state an action for intentional
infliction of emotional distress a complaint must allege four elements.
These elements do not have to be proven in the complaint. Plaintiff
Donnahue George must allege (1) reckless or deliberate infliction of Mental
suffering (2) outrageous conduct (3) the conduct caused the emotional
distress (4) the distress was severe
In regards to (1) Defendant William Snyder in conspiracy with Westway
towing reckless and deliberately trespassed on my property and stole my
vehicle under the color of law. When I asked Defendant William Snyder to
stop stealing my vehicle he just hung up the phone on me leaving me
helpless without any recourse . Defendant William Snyder and Westway
Towing actions intentionally caused me mental suffering.
In regards to (2) The fact that Defendant West way Towing trespassed on
my property and stole my vehicle and then lied to cover up the theft, a
reasonable person would find that conduct to be outrageous.
In regards to (3) The actions of Defendant Westway Towing entering my
premises illegally with the intent to steal my vehicle was the actual cause of
my mental distress
In regards to (4) the distress was very severe because I did not know what
to do I was not in a position to do anything at the time and when I went to
the police station and they told me my car was found abandoned in the
street I was distressed. I attempted to call Westway Towing and after I gave
them the vin # for my vehicle they just put me on hold and never came
back on the phone putting me in further distress. Hart v. United States, 894
F.2d 1539,1548 (11* Cir. 1990)
The Defendant Westway Towing own intentional disregard of Florida state
Statutes is further evidence that their actions were willful and intentional.
INTRODUCTION AND SUMMARY OF THE ARGUMENT
7. Plaintiff Donnahue George alleges that on March 18, 2019 at approximately
0930. Defendant William Snyder without any legal authority and with the
assistance of Westway towing stole my perfectly running covered limo out
of my paved driveway. Plaintiff Donnahue George has presented proof that
Defendant William Snyder then submitted a erroneous report to Fort
Lauderdale Code enforcement stating that the vehicle was derelict and that
he did not know who the owner was (See Exhibit A) Yet Defendant
Westway Towing submitted a title search that the ran on plaintiffs car that
same day and time that lists the plaintiff as the owner and the car was
registered at the address from where it was towed, (see exhibit B). Plaintiff
Donnahue George does not allege that he filed a police report. Plaintiff
Donnahue George states that he went to the Fort Lauderdale Police
department to file a report and that police officer Rivera Shield # 1625
informed Plaintiff Donnahue George that his car was found abandoned on
NE 5th street and NE 2nd ave. Plaintiff Donnahue George has no idea who
reported his vehicle abandoned in the street but after a discovery period
plaintiff is confident that the Fort Lauderdale Police department has
accurate records. Defendant William Snyder and Defendant Westway
entered my property illegally with the intent to trespass of chattel and
violated Plaintiff Donnahue George constitutional rights arising under the
4th, 5th and 14th amendments plus 42 USC 1983, by committing grand theft
auto, fraud , trespass, trespass of chattel, intentional infliction of emotional
distress and conversion.
As Demonstrated below, Plaintiff Donnahue George claims should be
granted in its entirety because:
First, Fort Lauderdale Code Enforcement is an entity that is capable of being
sued because the process server informed me that the statute required her
to serve the director of Code enforcement, and even if the courts even
wanted to entertain that allegation, the City of Fort Lauderdale is on notice
and has had ample time to provide an answer and defense. Plaintiff
Donnahue George added John Doe to his Complaint because he knew after
discovery there would be more defendants. It is a very simple issue to add
City of Fort Lauderdale as a defendant if that will make the Defendant
happy.
Second, to the extent that Plaintiff Donnahue George does state a claim
against defendant William Snyder who was supposed to be acting in his
official capacity as a City of Fort Lauderdale employee. Plaintiff Donnahue
George notified Fort Lauderdale Police Department, Fort Lauderdale Code
enforcement, Fort Lauderdale City hall and Broward county commission on
June 24. 2019 (See exhibit C) in complete compliance of pre-suit
requirements 768.28(6)(a), Fla. Stat. (2017) warranting this court granting
all of plaintiff Donnahue George claims.
Third, Plaintiff Donnahue George claims are very specific and the facts are
overwhelming. Defendant William Snyder entered my property and with
the assistance of Westway Towing stole my perfectly good running limo
that was clean and covered and legally parked on my paved driveway.
While Defendant William Snyder was in the process of stealing my vehicle
in violation of Florida towing statutes 715.07 (2)(a)(3) which is a felony, my
neighbors saw him and immediately called me. I had my neighbor put
Defendant William Snyder on the phone and I explained to him that he did
not have my permission to remove my legally parked covered car from my
paved driveway. Westway towing and William Snyder then stole my
vehicle. Defendant William Snyder then submitted an erroneous report
with his department (see Exhibit A) which he signed stating that a covered
vehicle on private property was derelict and that he did not know who the
owner was. He knew it wasn't derelict he knew who the owner was and he
still removed the vehicle from my private property and lied about it.
Westway towing have provided me with documentation(See Exhibit B) that
proves that they knew who the owner of the vehicle was, they knew it was
registered at that address and they still towed the vehicle in violation of
Florida Towing Statutes. They were in possession of the correct information
and Defendant William Snyder still submitted that report to his department
alleging that the vehicle was derelict and he did not know who the owner
was. This is further evidence that the fraud perpetrated by Defendant
William Snyder and Defendant Westway Towing was deliberate, intentional
and willful. Florida Statute 715.07 (2)(a)(2) states that if you tow a vehicle in
the state of Florida without the owners permission you have to notify the
local police department in 30 minutes. Violation of this statute is a
misdeameanor. Nobody notified Fort Lauderdale police department in 30
minutes in violation of Florida state statute, instead someone notified Fort
Lauderdale police department dispatcher that they found my vehicle
abandoned in the street blocks from my house.
Fourth, Plaintiff specifically states a cause of action against Defendant
William Snyder and the City. Defendant William Snyder had no legal reason
to enter my property and steal my vehicle. The City of Fort Lauderdale as
the employer of Defendant William Snyder is responsible for training him
and supervising his actions. Its obvious to a reasonable person that either
they failed in training him properly, supervising him properly or both. By
entering my property to commit a felony by stealing my vehicle and then
fabricating evidence to cover up the felony, Defendant William Snyder
committed Grand theft auto, trespass, trespass of chattel, fraud and
conversion. Only through a court ordered discovery period will we beable
to determine if this was a one-time incident, or a pattern of behavior that
has been going on unsupervised and unchecked for years.
Fifth, Plaintiff Donnahue George spoke to Defendant William Snyder while
he was in the process of towing my car and explained to defendant William
Snyder that he did not have my authority to remove my perfectly running
covered vehicle from my paved driveway. Defendant William Snyder hung
up on plaintiff Donnahue George and proceeded to steal the plaintiffs
vehicle. The plaintiff Donnahue George felt weak and helpless at that point
because there was nothing he could do to stop Defendant William Snyder
from violating his Constitutional rights. The emotional helplessness that he
felt at that point can not be overstated and then to return home and see
that his vehicle is missing, and then to add insult to injury to be informed by
Officer Rivera shield#1625 that his vehicle was found abandoned in the
road sent Plaintiff Donnahue George in a sense of panic and he
immediately went to Fort Lauderdale code enforcement to find out what
was going on. Defendant William Snyder handed Plaintiff Donnahue George
a paper stating that he did not know who the owner of the vehicle was and
that it was derelict. Plaintiff Donnahue George told defendant William
Snyder that he knows who owned it because you spoke to me while you
were towing it and you hung up on me. Defendant William Snyder just
walked away.
ARGUMENT AND MEMORANDUM OF LAW
I.
Fort Lauderdale Code Enforcement is an entity capable of being
sued and the case must not be dismissed. The City of Fort
Lauderdale should be added as a defendant in the case
Amended Complaint Fort Lauderdale Code Enforcement was the employer
of Defendant William Snyder and was responsible or supervising and
training him. n Monell v. Dept. of Social Services, 436 U.S. 658, 98 S. Ct.
2018, 56 L. Ed. 2d 611 (1978), the Supreme Court held that "municipalities
and other local government *1132 units" are "persons" subject to liability
for violating 42 U.S.C. § 1983. Defendant Fort Lauderdale Code
enforcement violated my rights under 42 U.S.C 1983 through the actions of
their employee William Snyder so they are units and persons subject to
liability under the law.
In Post v. City of Fort Lauderdale 750 F. Supp. 1131,1132-33 (S.D. Fla. 1990)
The Courts held that until the court is apprised of the factual involvement
of the defendants they will remain parties in the case. There has not been
enough evidence presented for the court to know the factual involvement
of Fort Lauderdale Code enforcement and therefore Fort Lauderdale Code
enforcement should not be removed from the lawsuit. They were
specifically the ones required to train and supervise defendant William
Snyder. There should be a discovery period to determine how complicit
Fort Lauderdale Code enforcement was in illegal felony actions of
Defendant William Snyder. Plaintiff Donnahue George agrees with
Defendant that The City of Fort Lauderdale should be added as a defendant
in this lawsuit.
II.
Plaintiff Donnahue George has Compiled with Pre-suit
Requirements and Thus all his AlleRations in his Amended
Complaint Must be Granted
Plaintiff Donnahue George is asserting state law tort claims and Federal
Constitutional Rights violation claims and has met the pre-suit
requirements in 768.28(6)(a), Fla. Stat. (2017). Plaintiff Donnahue George
on June 24, 2019 notified Fort Lauderdale code enforcement, The Fort
Lauderdale Police department, Fort Lauderdale City Hall and the Broward
County Commission (See exhibit C) No one responded. Plaintiff Donnahue
George notice to the appropriate agency was within the 3 years as required
by statute. In section 768.28, the Florida legislature has waived the
sovereign immunity of the state and its subdivisions from tort action
provided, among other things, that the claimant present a written claim to
the appropriate agency within 3 years after the accrual of the claim.
The Actions of Defendant William Snyder goes outside the norms of
Qualified Immunity and as to his actions he there is no pre-suit
prerequisite. In Hutton v. Strickland, 919 F.2d 1531,1536 (11 Cir. 1990) the
courts state that Qualified immunity protects government officials
performing discretionary functions from civil liability if their conduct
violates no "clearly established statutory or constitutional rights of which a
reasonable person would have know". A reasonable person would know
that they should not enter a persons property to steal someone elses
property. A reasonable person would know that entering a property with
the intent to commit a crime is trespass and would violate a persons
constitutional rights. A reasonable person would know that if you fabricate
evidence to cover up a crime that would be fraud. Defendant William
Snyders actions were clearly outside the Norms of Qualified Immunity.
A Plaintiff facing Qualified Immunity must produce evidence that would
allow a fact finder to find that no reasonable person in the defendants
position could have thought the facts were such that the justified the
defendants actions. (See Sims v Metropolitan Dade County,972 F.2d 1230,
1234-35 (11th Cir. 1992) Defendant William Snyders actions were clearly
outside the norms of qualified immunity and a fact finder would that no
reasonable person would find the fact that he fabricated evidence to cover
up his crime justified.
III.
Plaintiff Donnahue George has Stated a Claim Upon Which R elief
can be Granted and all the Allegations in his Amended Complaint
should be Granted
The facts that Plaintiff Donnahue George has asserted state very specific
facts about the actions of Defendant William Snyder and the theft of
Plaintiffs vehicle from his paved driveway in front his house. Florida state
statute 715.07 (2)(a)(3) states that if a person is removing a vehicle or
vessel from the premises or parking lot in which the vehicle is not lawfuly
parked must stop when a person seeks return of the vehicle. Violation of
this statute is a Felony. First Defendant William Snyder had no authority to
remove the vehicle from the premises and while he was unlawfully
removing the vehicle from my property I told him to stop and he did not.
He hung up the phone on me and continued to commit 2 felonies first
grand theft auto second violation of Florida statute 715.07(2)(a)(3) which is
also a felony. Defendant Fort Lauderdale Code enforcement was
responsible for the supervision and training of Defendant William Snyder so
they are culpable in his actions.
Defendant William Snyder in his own fraudulent paperwork establishes the
date and time that he trespassed on my property and stole my vehicle.(see
Exhibit A) Florida statute 18-3 definitions establishes that derelict means
any motor vehicle or vessel which is in a state of evident disuse , neglect or
abandonment is wrecked or partially dismantled having no motor. My
vehicle was working running and cleaned and covered in my paved
driveway it was clearly not a derelict vehicle according to the definition
established by the State of Florida. Defendant William Snyder stole
plaintiffs perfectly running vehicle with the assistant of West way towing
and then fabricated evidence to cover up the theft. A reasonable person
would know that Defendant Williams Snyders action were illegal and
outrageous and the fact that he lied in his paperwork to his department is
further proof that he knew that his actions were illegal and outside
accepted norms.
IV.
Plaintiff Donnahue George States Multiple Causes of Actions
Against Defendant William Snyder and All his Allegations are
supported by Facts.
Plaintiff Donnahue George Fourth, Fifth and Fourteenth Amendment rights
were violated by Defendant William Snyder. Defendant West way towing
own submitted evidence proves that I was the owner of the vehicle (see
Exhibit B) and the trespass of my property with the intent to steal my
vehicle under the color of law violated my Fourth, Fifth and Fourteenth
Amendment rights
The 4th Amendment provides: The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable search and
seizure. Defendant William Snyder entered my property unlawfully stole
my vehicle under the color of law and then fabricated evidence to cover up
the theft
The Fifth Amendment provides: that no person shall be deprived of life,
liberty or property without due process of law. Defendant William Snyder
entered my property stole my vehicle gave me no advance warning of the
theft or no do process but most thieves do not tell you in advance that they
are coming to steal your property. He stole my vehicle under the color of
law with no due process and without just compensation
The 14th Amendment provides : All persons born or naturalized in the
United States , and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. Nor shall any state
deprive any person of life liberty or property without due process of law:
Defendant William Snyder denied me the due process of the law by stealing
my vehicle under the color of law and when caught in the act of stealing my
vehicle by my neighbors simply hung up the phone on me and continued
with the theft. There was no due process of law as required by the
Constitution but as stated before a thief is not going to give you advance
notice that they are going to steal. There is no ordinance that allows a Code
enforcement Officer to enter a property to steal a vehicle with or without
prior notice. The defendant can cite all the cases that they want regarding
neutrality of ordinances but in this particular case there was no ordinance
that was followed. Defendant William Snyder entered my property by
trespass stole my vehicle and then lied to cover up the theft. There is no
ordinance or statute that allows him to steal my property.
V.
Plaintiff Donnahue George States a Cause of Action For His
Emotional Distress.
In order for Plaintiff Donnahue George to state an action for intentional
infliction of emotional distress a complaint must allege four elements.
These elements do not have to be proven in the complaint. Plaintiff
Donnahue George must allege (1) reckless or deliberate infliction of Mental
suffering (2) outrageous conduct (3) the conduct caused the emotional
distress (4) the distress was severe
In regards to (1) Defendant William Snyder in conspiracy with Westway
towing reckless and deliberately trespassed on my property and stole my
vehicle under the color of law. When I asked Defendant William Snyder to
stop stealing my vehicle he just hung up the phone on me leaving me
helpless without any recourse . Defendant William Snyder intentionally
caused me mental suffering.
In regards to (2) The fact that Defendant William Snyder trespassed on my
property and stole my vehicle and then lied to cover up the theft, a
reasonable person would find that conduct to be outrageous.
In regards to (3) The actions of Defendant William Snyder entering my
premises illegally with the intent to steal my vehicle was the actual cause of
my mental distress
In regards to (4) the distress was very severe because I did not know what
to do I was not in a position to do anything at the time and when I went to
the police station and they told me my car was found abandoned in the
street I was distressed. I attempted to call Westway Towing and after I gave
them the vin # for my vehicle they just put me on hold and never came
back on the phone putting me in further distress. Hart v. United States, 894
F.2d 1539,1548 (11th Cir. 1990)
The Defendant William Snyders own fraudulent papers state that the
vehicle was stolen from my house plus he also has pictures of my vehicle
before he stole it under the color of law.
VI.
Plaintiff Donnahue George States a Cause of Action Under 42 U.S.C.
1983
To state a cause of action under section 1983 a plaintiff must allege two
elements (1) Challenged conduct by a person acting under the color of law
(2) challenged conduct that deprived the plaintiff of federal rights.
In regards to(l) Defendant William Snyder trespassed on my property
under the color of law as a Code enforcement officer and stole my perfectly
good running vehicle that was clean and covered and parked on my paved
driveway.
In regards to (2) By stealing my vehicle Defendant William Snyder deprived
of my 4th, 5th and 14th Amendment rights.
A Municipality may not be held liable under 1983 Solely because it employs
a tortfeasor (see Monell v New York City Dept of Social Services 436 U.S.
658, 692 instead the plaintiff must identify municipal policy or custom that
caused the injury (See Pembaur v Cincinnati 475 U.S. 469,480-481. Until
plaintiff is given an opportunity to submit interrogatories and depose other
City employees plaintiff will not be able to establish if this was a one time
incident or if the Fort Lauderdale Code Enforcement has established
customs and or policys that allow code enforcement officers think they can
just trespass and steal citizens personal property
CONCLUSION
Based on the authority cited and the arguments presented herein. Plaintiff
Donnahue George respectfully requests that this deny defendant Florida
Code Enforcement, Defendant William Snyder and Defendant Westway
Towing motion to dismiss and this honorable court grant everything that
Plaintiff Donnahue George requests in his Amended complaint or order a
schedule so that we can start discovery proceedings.
Respectfully Requested
Date December 19, 2019
1
Donnahue George
Conclusion
Based on the authority cited and the arguments presented herein. Plaintiff
Donnahue George respectfully requests that this honorable court deny
defendant Fort Lauderdale Code Enforcement, defendant William Snyder
and Defendant Westway Towing motion to dismiss Plaintiffs Amended
Complaint and this honorable court grant everything that Plaintiff
Donnahue George requests in his Amended complaint or order Defendants
to file an Answer to Plaintiffs Complaint.
Date December 19, 2019
Donnahue George
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 20th day of Dec, 2019.1 mailed this foregoing
document to the Clerk of the court and this Document is being served this day by
US Mail to Defendant Attorney: Robert Oldershaw at City Attorney 100 North
Andrews av Fort Lauderdale Florida 33301 and Harrison T Bergman 2001
Hollywood Blvd, Suite 200 Hollywood Florida 3302Q,
December 20, 2019
Donnahue George
Case 0:19-cv-61827-RAR Document 38 Entered on FLSD Docket 12/18/2019 Page 8 of 12
Exhibit A
a
r 'i
FORT LAUDERDALE POLICE TOWED VEHSCLE/VEHICLE PROCESSING
Tt£V^Acy
YR/MAKE/MODEL
^
I .1 tAz-^Ux
Vdf^VJ/^V
UNUSUAL ACCESSORIES
l'
TIME OP OCCURRENCE
CB m-z&TfV
ZONE
HA
TIME DISP
ARRIVE
CLR
FCIC CHECK
□Y
l^gRajuiLl l O'-
VEHICLE
nr
STATS
<gf*<s>
YEAR
□n
0>
c/j
CD
M
to
tfRrtTF/U.5??
\l7L
4
3
o
o
VtN
■A
2
1
OTHER PROPERTY
OR#
UNIT
<012 AJLl^ 2 1ST
\\\r \g_
??/ \*K 1 7X)V\
%
On.gLAAH
LOCATION
TTe^cA Me
«
«
I
o
<
O)
M
00
l\3
-vJ
~)\\2
X)
j
!
(JaMba?
’ 72 icj^f l
TGWEDE-V
□ ’ 7£b
. _lJ „
v)^w;r\p
-j
HOLD
QlVlCi
Q DfSi- av
□ patrol
3
CD
D
j REASON POR ARREST
CO
00
m
Z3
NAME, R/S, DOB
NAME.RfS.DOu
CD
NARRATIVE
'{"adetEss
rgRSOi'J AaPCKr.?.‘j w'.L.v;
. Pmsasalns Raqulmd
| PHONE '
i ! hSsne
i
?
riLatents
f~l Photos
CD
Q.
o
D
Tl
r~
CO
/
-
O
D
o
riMi, FRii-: c?*'„7J. Vfcl'i^T'-paity, ole. Item* Ratainad by Poice)
- *a. . -
| , ni«<WitaP*«idt>lwia.
m
Air ~
XI
D
o
O
c
REASON FOR HOLD
ADDRESS
WL-.L OF PERSON ARRESTED (IP AiiY)
p"
>
w
Doj.
“RSoTsTiRED OWeRCT VEHICLE
'KTYriELEASE ON PRoOF
IcHjpP OWNERSHIP
■
7 OfHC'R AU ,>! HcSji
OJORNtr,
HCL0
I
.*Yiv^ VEHICLE
OF VEHtt2L£
■ - .v— —»■—*■
- •
• ■- v*-
. ■
...... ... .. .
' ... •
.* .
.......................................
%r~r:l--------------------------
AoJL’^AtrAiu,?.. .
.*>>»>» ?xrT^x»>vter-%l>ic.l5uCjeJSnVchI
t
'
—
""" "■ “
1"
11
m
.................. ...
hi i.
___ ,
,, ,
-
-
TUckfiV: Ut/LcxULr io <fr.'hzJru,dLK
,lr«*
&C\ r kexffib
__
O
7C
CD
DO
O
VEHICLE DISPOiP.lON UPON COMPLETION OF PROCESSING:
OFFICER MAKING INVENTOKV
bMU <vtL/dr.r
TTMfDRNpC
1 V "
OWNER REQUEST PVT TOW
FORM Z-1013 Rev. 4IS9
CCN
l£2^
. ctrs
o
|~~i TOT ConflacaHo,
□ TDTOwnar
□ Continue Id Hold for
WITNESS
DATE A TIME
HOLD RELEASED BY
DATE & TIME
CCN
INVESTIGATOR
CO
W
O
h-1
CD
TJ
DATE i TIME
PHONE
ADDRESS
SIGN RELEASE OF RESPONSIBILITY
CD
CD
0
CD
O
I-1
ro
WHITE - Racofda
Canaiy - Tawing Copy
Graan - Faranaicfa
Case 0:19cv-61327-RAR Document 38 Entered or F! SD Docket 12/18/2019 Page 10 of 12
Exhibit B
d
Case 0:19-cv-61827-RAR Document 38 Entered on FL.SD Docket 12/18/2019 Page 11 of 12
Case 0:19-cv-6l827-RAR Document 25-2 Entered on FLSD Docket 11/14/2019 Page 2 of 3
Page 9
Invoice # 623027
ADD
Scan or visit verifv.afiO&com to veiify
^§) AutoDataDirect, Inc.
f Minium »iiiD!iiii!i
Verification Code: VP98SS9
! Florida Vehicle Record
Retrieved On: Mon March 18, 2019 11:12:09 AM EOT
msssmmmm-; -stem
jmm
Tag:
VIN: 1L1FM88W66Y626679
Year; 2006
Make: l!NC
Model: town Car*
Ul;n: Executive*
Body: 4D Sedan*
Weight: 4271
•:=nk*r
Vehicle Type: .VJTC
Kin
Tide: 0096421127
issue r*!e: 06/16/2017
Ode F.*«d: 09533
ffr'tr's a'vn: .tern 'A'_
3i.« jits.c:ra: 1/
Rcc. Sjjsti 3V«-: 1-2.500.00
Sales bale: 06/07/2017
Prev. Stale: ft
Prev. issue Date: 10/13/2016
**p,r* *.»«•-: 0
■ fc'5«*
jW>sj
* »&* Tltfe Transaction Type' TRANiiFcri
[i i mniiiHiiKHiii-riii i:: vvv^i 2
* nnmn^irinudqii;s
nii
Owner 1 DONNAHJE GAR'/ GlIORGF.
:
1012NW2.MC^:.?E£.'
fc-rtuoaJESC/u,*, R. au
■ St::
T Ctr/E?
'aiii'. eaieiaissaieo
SCtX; &
. 0 obiiiosaiioso
i :
I
MC~ •
(urrK ~i\ uwinn imuc*s icy«iwmt <M t»**yvunuevi
hi; intorniadon ■s.onwfded fav the Fk-r^a Di.'jiansnern of HigVay Srifefy ant *i«So 1 Wfcter (DHT'MV). Auto Data
! I .:
r'r '< ' *■ , ■ •’' ' ■ . ' Y
"j
* .1
AY . OM?.O.i::ct 'nc.
ii . Ki
t,: :
ln 1 ... .'
I,
'
1 ' l, :.Y f;
.
':U- This Motor VeHcb ficjjritj eacactuc
bonSw 3«’-e.or iurisdlcttorfa sCKjk i.ij.vr
Records :
diabase, in real wne. The {njlwreiv.v ::f tHirs-. -:tj «sn% ne aadwntiatetl in nw4 «n» ui ing the ADD on-line
authorizalion system.
pr?nan?j ir.w.T"*r"Xi
5, but i.? iimi.r:
1- ■
-s; 'V..r h
01*' che , 1 appearing on drtuer and
vehicle records i$iKaestedty the iik.varPPAa-y r^j-—lit..
Mc...t«tion(af
reasons no* ofe*ed bv ihe D**PA wW result t*» Its* *f Mflnreiion access pmrfaqes and may resuh In legal action.
kr.-fj
...
j.j.
u. (snv.. at.
- Y-icJC.t -1 Li. ■Jrh.-t.!
Ptl .jetion Act
ituftr h,» raiSJ'jdfin ofialra! -.lawiionu and cMi fiiidflity specified .n taw i..» un&Jthcrfied use of the
ti. •«.
I
•
*
\
A
•'I
APPENDIX D
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT
No. 20-11648
Donnahue George, Plaintiff-Appellant
v.
|WestWay Towing
j William Snyder
Fort Lauderdale Code Enforcement
John Doe
Defendant- Appellee
On Appeal from
the United States District Court
for the Southern District of Florida
Case No. 19-CV- 61827
INITIAL BRIEF OF PLAINTIFF- APPELLANT
Donnahue George
1012 NW 2nd Street
Fort Lauderdale FI 3 3311
(347)216-5257
Emml; DonnahueGeorge@.gmail .com
l
STATEMENT OF INTERESTED PARTIES AND CORPORATE
DISCLOSURE STATEMENT
Plaintiff- Appellant does not have a parent corporation and is not a publicly held
corporation.
Interested parties are as follows:
Fort Lauderdale Code Enforcement, Defendant- Appellee
Westway Towing, Defendant-Appellee
William Snyder, Defendant-Appellee
John Doe, Defendant-Appellee
Donnahue George, Plaintiff- Appellant
Richard Bergman, Attorney for Defendant-Appellee
Micheal Bostick, Attorney for Defendant-Appellee
Robert Oldershaw, Attorney for Defendant Appellee
Honorable Judge Rodolfo A. Ruiz II U.S. District Court Judge
2
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not warranted because the case law is very clear on its face. The
Plaintiff-Appellant was very specific in his descripti on of the fraudulent actions by
the Defendants in his Complaint and he has met the legal threshold required by
statute and case law for the case to move forward. Defendants Westway Towing
and William Snyder entered by residential property under the color of law stole my
property and denied me my constitutional rights to due process and the unjust
seizure of my property. Florida statute 713.78 is very clear that the only person that
can tow vehicles from private property are the Owner the owners representative or
a law enforcement officer. The statutes are very clear that a code enforcement
officer is not a law enforcement officer and therefore is not authorized to tow
vehicles from private property.
any
TABLE OF CONTENTS
STATEMENT OF INTERESTED PERSONS...........................
2
STATEMENT REGARDING ORAL ARGUMENT..... .
3
TABLE OF CONTENTS................................................
4
TABLE OF AUTHORITIES.....................................................
5
JURISDICTIONAL STATEMENT...........................................
6
STATEMENT OF ISSUES ON APPEAL...................................
7
STATEMENT OF THE CASE.......................................
8
COURSE OF PROCEEDINGS AND DISPOSITION BELOW.
8
STATEMENT OF FACTS............................................
STANDARD OF REVIEW.....................................
SUMMARY OF ARGUMENT...........................................
ARGUMENT..........................................................
CONCLUSION........................................
CERTIFICATE OF COMPLIANCE WITH FED.R. APP.P.32(a)
CERTIFICATE OF SERVICE.............
4
9
15
17
19
33
35
36
TABLE OF AUTHORTTTFS
Cases
Bell Atlantic Corp v. Twombly,
550 U.S 408, 544 (2007)................................................
16
Monell v. Dept ofSocial Services,
436 U.S 658, 98 S. Ct. 2018, 56L.Ed.2d611 (1978)..............
20
Post v. City ofFort Lauderdale,
750 F. Supp. 1131, 1132-33 (S.D. Fla 1990)..........................
20
Hutton v. Strickland, 919 F,2d 1531, 1536(11th Cir.1990)......
22
Simms v. Metropolitan Dade County
972 F.2d 1230, 1234-35 (11th Cir. 1992)................................
22
Hartv. United States, 894 F.2d 1539. 1548 (11th Cir. 1990)...
27
Monell v. New York City Dept ofSocial Services.
436 U.S. 658 692...............................................
28
Pembaurv, Cincinnati 475 U.S. 469, 480-481
28
Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)
29
Griffin IT inc. Media v. Intelligente Corp,
No. 07-80535-CIV, 2009 WL162754 (S.DFla. Jan 16, 2008)..
30
Compama Interamericana Export-import S.A. v Compania Dominicana de
Aviacion, 88F.3d 948, 951-952 (11th Cir. 1996)..........................
30
Longhini v. Haydau. Inc.
No. 17-230330- CV, 2017 WL 1401316, at *1 (S.D. Fla. Apr, 19, 2017
Locasiov. U.S. 473 F.3d493, 495-96 (2nd Cir. 2007)....................
31
32
In re Holocaust Victim Assets Litigation, 2010 WL 4038794
(quoting Grinnell Corp, 384 U.S. at 583)...............................
Rabkin v. Oregon Health Sciences Univ.
5
32
350 F.3d 967. 977 (9th Cir 2003)........................................
16
F, T v, Cantil- Sakauye,
No. 10-15248, F.3d2012 WL 76351
Cir. March 12 2012)
U.S. v. Laurienti, 611 F.3d 530, 551 (9h Cir 2010)
16
16
Federal Statutes
42 USC 1983,.......................................................
..11,20
United States Constitution 4th 5th and 14th amend.
11,24,25,28
Canon 2 ofJudicial Code of Conduct..................
33
Florida Statutes
Fla. Statute 715.07(2)(a)(3).................................
6
18
Fla. Statute 713.78 .......................................
.12,19
Fla Statute 768.28(6)(a)...........................
12,21
Fla Statute 715.07(2)(a)(3)..................................
..13,23
JURISDICTIONAL STATEMENT
Jurisdiction is proper in this case under 28 U.S.C. 1331, as this appeal arises from a
judgment dismissing Plaintiff Donnahue George case for failure to state a claim in
United States District Court for the Southern District of Florida. When Defendants
illegally entered Plaintiff Donnahue George premises under the color of law and
stole his vehicle. The court has appellate jurisdiction pursuant to 28 U.S.C 1291.
The District Court entered a final judgment dismissing Plaintiffs case on April 27,
2020. A notice of appeal was timely filed on April 30, 2020.
STATEMENT OF ISSUES ON APPF AT
(1) Whether the District Court erred by dismissing Plaintiff- Appellant
Donnahue George case for failure to state a claim when defendants were
P*"PP®rly served, and Plaintiff- Appellant Donnahue George was very
specific in his Amended complaint about Defendants unconstitutional
actions. The Defendants entered Plaintiff Donnahue George premises
illegally under the color of law and stole his personal property, thereby
denying him his constitutional rights to do process and violating his
constitutional rights against unjust seizure of his property.
(2) Whether the District Court erred by setting aside the Clerks entry of Default
and not issuing the Default Judgment, when it was filed before defendants
filed motion to set aside Clerks entry of Default. Defendants were properly
served and (1) the defaulting party didn’t have a meritorious defense (2)
the default was culpable and willful; and (3) and setting it aside prejudice the
Plaintiff-Appellant
(3) Whether the District Court erred by striking the Defendants separate motions
to dismiss and ordering that they file a joint motion to dismiss, unless they
had conflicting interests, and issuing orders before plaintiff has time to
respond, which gives the impression that the District court is acting like co
counsel for the defense and becoming the architect of the defendants defense
strategy and denying Plaintiff Donnahue George Constitutional rights to a
fair and impartial trial.
STATEMENT OF THE C ASF
1. COURSE OF PROCEEDINGS AND DISPOSITION BELOW
Plaintiff Donnahue George filed a complaint against Defendants William Snyder,
Westway Towing and Fort Lauderdale code enforcement on July 22, 2019. It was
dismissed for failure to state a claim 2 days later July 24, 2019. Plaintiff Donnahue
George filed an amended complaint on October 21, 2019. All defendants were
properly served and never answered the amended complaint. On November 6,
2019 plaintiff Donnahue George filed a motion for Clerks entry of Default. On
November 8, 2019 plaintiff Donnahue George filed a motion for Default Judgment
in person, but for some reason it wasn’t entered for 4 days On November 12, 2019
During the 4 days when Plaintiff Donnahue George Motion for Default Judgment
was lost even though he personally walked it into the Clerk of the Court. The
Default Judgment was never entered. The defendants who never answered the
Amended Complaint became aware of the Clerks entry of Default and the Motion
for Default Judgement and filed Attorney appearances. Defendants filed motions to
set aside the Clerks entry of Default and the District Court granted the motion and
set aside the clerks entry of default without giving Plaintiff Donnahue George time
to file his opposition motion, This denied plaintiff Donnahue George his due
process rights to a fair hearing on the motion and eroded the Plaintiffs confidence
in the impartiality of the Judiciary.
2. STATEMENT OF FACTS
Plaintiff Donnahue George states that on March 18, 2019 at approximately
0930. Defendant William Snyder a city employee without any legal
authority to enter private property and with the assistance of Westway
towing who was a state actor stole my perfectly running covered limo out of
my paved driveway. Plaintiff Donnahue George has presented proof that
Defendant William Snyder then submitted an erroneous report to Fort
Lauderdale Code enforcement stating that the vehicle was derelict and that
he did not know who the owner was (See ECF/Tab#l 1 Exhibit B) Yet
Defendant and state actor Westway Towing submitted a title search that they
ran on plaintiffs car that same day and time that lists the plaintiff as the
owner and the car was registered at the address from where it was towed.
(see ECF/Tab #25 exhibit 2). Plaintiff Donnahue George does not allege that
he filed a police report. Plaintiff Donnahue George states that he went to the
Fort Lauderdale Police department to file a report and that police officer
Rivera Shield # 1625 informed Plaintiff Donnahue George that his car was
found abandoned on NE 5th street and NE 2nd ave. Plaintiff Donnahue
George has no idea who reported his vehicle abandoned in the street but
10
after a discovery period plaintiff is confident that the Fort Lauderdale Police
department has accurate records. Defendant William Snyder and Defendant
and state actor Westway entered my property illegally with the intent to
trespass of chattel, violated Plaintiff Donnahue George constitutional rights
arising under the 4th, 5th and 14th amendments plus 42 USC 1983, by
committing grand theft auto, fraud, trespass, trespass of chattel, intentional
infliction of emotional distress and conversion.
As demonstrated below, Plaintiff Donnahue George claims should be
granted in its entirety because:
Firsf, Fort Lauderdale Code Enforcement is an entity that is capable of being
sued because the process server informed me that the statute required her to
serve the director of Code enforcement, and even if the courts even wanted
to entertain that allegation, the City of Fort Lauderdale is on notice and has
had ample time to provide an answer and defense. Plaintiff Donnahue
George added John Doe to his Complaint because he knew after discovery
there would be more defendants. It is a veiy simple issue to add City of Fort
Lauderdale as a defendant if that will make the Defendant happy.
Second, to the extent that Plaintiff Donnahue George does state a claim
against defendant William Snyder who was supposed to be acting in his
official capacity as a City of Fort Lauderdale employee, Westway Towing
li
who was acting as an agent for the state. Plaintiff Donnahue George notified
Fort Lauderdale Police Department, Fort Lauderdale Code enforcement, Fort
Lauderdale City hall and Broward county commission on June 24. 2019 (See
exhibit C) in complete compliance of pre-suit requirements 768.28(6) (a),
Fla. Stat. (2017) warranting this court granting all of plaintiff Donnahue
George claims.
Third, Plaintiff Donnahue George claims are very specific and the facts are
overwhelming. Defendant William Snyder and state actor Westway Towing
entered my property illegally and with the assistance of state actor Westway
Towing stole my perfectly good running limo that was clean and covered
and legally parked on my paved driveway. While Defendant William Snyder
and state actor WestWay Towing were in the process of stealing my vehicle
in violation of Florida towing statutes 715.07 (2) (a) (3) which is a felony,
and Florida statute 713.78 which is very clear that the only person that can
tow vehicles from private property are the Owner the owners representative
or a law enforcement officer. The statutes are very clear that a code
enforcement officer is not a law enforcement officer and therefore is not
authorized to tow any vehicles from private property. Plaintiff Donnahue
George neighbors saw Defendant William Snyder and immediately called
Plaintiff. I had my neighbor put Defendant William Snyder on the phone and
12
I explained to him that he did not have my permission to remove my legally
parked covered car from my paved driveway. State actor Westway towing
and William Snyder then stole my vehicle. Defendant William Snyder then
submitted an erroneous report with his department (see ECF/Tab #11 exhibit
B) which he signed stating that a vehicle on private property was derelict
and that he did not know who the owner was. He knew it wasn’t derelict he
knew who the owner was and he still removed the vehicle from my private
property and lied about it. Westway towing have provided me with
documentation(See ECF/Tab #25 exhibit 2) that proves that they knew who
the owner of the vehicle was, they knew it was registered at that address and
they still towed the vehicle in violation of Florida Towing Statutes. They
were in possession of the correct information and Defendant William Snyder
still submitted that report to his department alleging that the vehicle was
derelict and he did not know who the owner was. This is further evidence
that the fraud perpetrated by Defendant William Snyder and Defendant
Westway Towing was deliberate, intentional and willful. Florida Statute
715.07 (2)(a)(2) states that if you tow a vehicle in the state of Florida
without the owners permission you haveTo notify the local police
department in 30 minutes. Violation of this statute is a misdemeanor.
Nobody notified Fort Lauderdale police department in 30 minutes in
13
violation of Florida state statutes, instead someone notified Fort Lauderdale
police department dispatcher that they found my vehicle abandoned in the
street blocks from my house.
Fourth, Plaintiff specifically states a cause of action against Defendant
William Snyder, state actor Westway Towing and Fort Lauderdale Code
enforcement. Defendant William Snyder and state actor Westway Towing
had no legal reason to enter my property and steal my vehicle. The City of
Fort Lauderdale as the employer of Defendant William Snyder is responsible
for training him and supervising his actions. Its obvious to a reasonable
person that either they failed in training him properly, supervising him
properly or both. By entering my property to commit a felony by stealing my
vehicle and then fabricating evidence to cover up the felony, Defendant
William Snyder and state actor Westway Towing committed Grand theft
auto, trespass, trespass of chattel, fraud and conversion. Only through a court
ordered discovery period will we be able to determine if this was a one-time
incident, or a pattern of behavior that has been going on unsupervised and
unchecked for years.
Fifth, Plaintiff Donnahue George spoke to Defendant William Snyder while
he was in the process of towing my car and explained to defendant William
Snyder that he did not have my authority to remove my perfectly running
14
covered vehicle from my paved driveway. Defendant William Snyder hung
up on plaintiff Donnahue George and proceeded to steal the plaintiffs
vehicle. The plaintiff Donnahue George felt weak and helpless at that point
because there was nothing he could do to stop Defendant William Snyder
from violating his Constitutional rights. The emotional helplessness that
Donnahue George felt at that point cannot be overstated, and then to return
home and see that his vehicle is missing, and then to add insult to injury to
be informed by Officer Rivera shield# 1625 that his vehicle was found
abandoned in the road sent Plaintiff Donnahue George in a sense of panic
and he immediately went to Fort Lauderdale code enforcement to find out
what was going on. Defendant William Snyder handed Plaintiff Donnahue
George a paper stating that he did not know who the owner of the vehicle
was and that it was derelict. Plaintiff Donnahue George told defendant
William Snyder that he knows who owned it because you spoke to me while
you were towing it and you hung up on me. Defendant William Snyder just
walked away.
3. STANDARD OF REVIEW
The Standard of Review is Abuse of Discretion. “ An abuse of
discretion is a plain error, discretion exercised to an end not justified by the
evidence, a judgement that is clearly against the logic and effect of the facts
15
as are found (seeRabkin v. Oregon Health Sciences Univ. 350 F.3d 967. 977
(9th Cir 2003)
In some cases the court has elected not to decide which standard of review is
applicable on the ground that the outcome would not be changed by
applying different standards of review (See E, T v, Cantil- Sakauye, No. 1015248, F.3d2012 WL 76351 (9th Cir. March 12 2012) U.S. v. Laurienti, 611
F.3d 530, 551 (9th Cir 2010)
The Law states to defeat a motion to dismiss under Rule 12(b) (6), a
plamtiff bears the burden of providing grounds of his entitlement to relief. In
Bell Atlantic Corp v. Twombly 550 U.S. 544 (2007) the courts held that
there must be sufficient facts in a complaint to state a claim to relief that is
plausible on its face for it to avoid dismissal for failure to state a claim.
Plaintiffs Donnahue George facts are plausible on its face to state a claim for
relief.
For all these reasons, this honorable Court should reverse the District Courts
dismissal of the case reverse the District court order setting aside the Clerks
entry of default enter the default Judgment and setting the line that Judges
cannot cross so it does not give the appearance that the Court is acting as
Co-counsel for the defense.
16
SUMMARY OF THF ARGUMENT
The District Court’s decision should be reversed because its legal conclusion is
contrary to the facts and the law. Plaintiff Donnahue George filed an initial
complaint on July 22, 2019, the complaint that was not specific enough because
Plaintiff Donnahue George did not want to give the defendants all the evidence that
he had. Just 2 days later on July 24, 2019(See ECF/Tab# 7) The District Court
Judge said it was not specific enough and Dismissed it for failure to state a claim
for which relief can be granted. Plaintiff Donnahue George filed an Amended
complaint(See ECF/Tab #11) and was veiy specific and detailed about the actions
of the defendants. The District Court Judge obviously accepted it as legally
sufficient to state a claim for which relief could be granted, because District Court
did not dismiss the Amended Complaint in 2 days as they did the prior complaint.
The District Court Judge is now reversing his own decision. After the Defendants
Attorneys got involved all of a sudden the Amended Complaint failed to state a
claim for which relief can be granted.
Plaintiff Donnahue George served the defendants with the amended complaints
and when they did not answer, Plaintiff Donnahue George filed for a clerks entry
of Default (See ECF/Tab # 13). On November 18, 2018 Plaintiff Donnahue George
presented himself to the clerk of the court and filed his Motion for default
Judgment.(see ECF/Tab # 22) Somehow it took 4 days for the Plaintiffs Motion for
17
Default judgment to be entered in the system, but during those 4 days while
Plaintiffs Default Judgment motion was sitting somewhere, the defendants
Attorneys were notified about the Notice of Default and the Default Judgment and
entered Notice of Attorney Appearance.(See ECF #20 and #21) The Defendants
never answered the Amended Complaint but after the Clerks entry of Default was
entered and the Motion for Default Judgment was filed, somehow miraculously
Defendants became aware of the Lawsuit. Defendants filed a motion to set aside
the Clerks entry of Default (See ECF/Tab # 25). Before Plaintiff Donnahue George
had an opportunity to file his opposition to the motion for setting aside the default.
The District court judge set aside the Clerks entry of default on both parties,
denying Plaintiff Donnahue George his constitutional rights to a fair an impartial
hearing on the motion.(See ECF/Tab #27)
Defendants filed separate motions to dismiss but the District Court Judge striked
the motions and ordered Defendants to file a joint motion to dismiss.(see ECF/Tab
#36) Telling them they should only file separate complaints only if they have
conflicting interests. The Judge actions were more like a co-counsel for the
Defense not an impartial advocate for justice. If no papers were filed about who
did what and why, How could an impartial court determine whether or not the
Defendants had conflicting interest. The District court Judge was being the
Architect of the Defendants Defense. I believe that the purpose of the joint motion
18
was to try to cloud the constitutional violations by Defendant William Snyder who
entered my property illegally under the color of law and stole my vehicle and then
submitted fraudulent paperwork to his department to cover up the theft. Westway
towing as a state actor can violate my constitutional rights while acting as an agent
for the City.
Defendants then filed a Joint motion for Dismissal with prejudice (See ECF/Tab #
39). Plaintiff Donnahue George filed a motion in opposition (See ECF/Tab # 40)
There was absolutely no evidence to support the dismissal of my case for failure to
state a claim, The District Court Judge granted the Motion to Dismiss with
prejudice making it a final disposition See ECF/Tab #42) Plaintiff Donnahue
George filed a timely Notice of Appeal on April 30, 2020.
ARGUMENT
I.
The District Court erred by Dismissing Plaintiffs Amended
Complaint for Failing to state a claim for which relief can hp
granted.
Fort Lauderdale Code Enforcement is an entity capable of being SUed and
the case should not have been dismissed.
Fort Lauderdale Code Enforcement was the employer of Defendant William
Snyder and was responsible or supervising and training him. Monell v.
Dept ofSocial Services, 436 U.S. 658. 98 S. Ct. 2018, 56 L. Ed. 2d 611
19
(1978), the Supreme Court held that "municipalities and other local
government *1132 units" are "persons" subject to liability for violating 42
U.S.C. § 1983. Defendant Fort Lauderdale Code enforcement violated my
rights under 42 U.S.C 1983 through the actions of their employee William
Snyder so they are units and persons subject to liability under the law.
In Post v. City ofFort Lauderdale 750 F. Supp. 1131, 1132-33 (S.D. Fla.
1990) The Courts held that until the court is apprised of the factual
involvement of the defendants they will remain parties in the case. There has
not been enough evidence presented for the court to know the factual
involvement of Fort Lauderdale Code enforcement and therefore Fort
Lauderdale Code enforcement should not be removed from the lawsuit. They
were specifically the ones required to train and supervise defendant William
Snyder. There should be a discovery period to determine how complicit Fort
Lauderdale Code enforcement was in illegal felony actions of Defendant
William Snyder. Plaintiff Donnahue George agrees with Defendant that The
City of Fort Lauderdale should be added as a defendant in this lawsuit.
1 Plaintiff Donnahue George has Comniled with Pre-suit Requirement*
and Thus all his Allegations in his Amended Comnlaint Must he
Granted
20
Plaintiff Donnahue George is asserting state law tort claims and Federal
Constitutional Rights violation claims and has met the pre-suit requirements
in 768.28(6)(a), Fla. Stat. (2017). Plaintiff Donnahue George on June 24,
2019 notified Fort Lauderdale code enforcement, The Fort Lauderdale
Police department, Fort Lauderdale City Hall and the Broward County
Commission (See ECF/Tab #40) No one responded. Plaintiff Donnahue
George notice to the appropriate agency was within the 3 years as required
by statute. In section 768.28, the Florida legislature has waived the
sovereign immunity of the state and its subdivisions from tort action
provided, among other things, that the claimant present a written claim to the
appropriate agency within 3 years after the accrual of the claim.
The Actions of Defendant William Snyder goes outside the norms of
Qualified Immunity and as to his actions so there is no pre-suit prerequisite.
In Hutton v. Strickland, 919 F.2d 1531,1536 (11 Cir. 1990) the courts state
that Qualified immunity protects government officials performing
discretionary functions from civil liability if their conduct violates no
“clearly established statutory or constitutional rights of which a reasonable
person would have know”. A reasonable person would know that they
should not enter a persons property to steal someone elses property .A
reasonable person would know that entering a property with the intent to
21
commit a crime is trespass and would violate a persons constitutional rights.
A reasonable person would know that if you fabricate evidence to cover up a
crime that would be fraud. Defendant William Snyders actions were clearly
outside the Norms of Qualified Immunity.
A Plaintiff facing Qualified Immunity must produce evidence that would
allow a fact finder to find that no reasonable person in the defendants
position could have thought the facts were such that the justified the
defendants actions. (See Sims vMetropolitan Dade County,972 F.2d 1230,
1234-35 (11th Cir. 1992) Defendant William Snyders actions were clearly
outside the norms of qualified immunity and a fact finder would that no
reasonable person would find the fact that he fabricated evidence to cover
up his crime justified.
2 gk»Ptiff Donnahue George has Stated a Claim Upon Which Relief can
be Granted and all the Allegations in his Amended Complaint should be
Granted
The facts that Plaintiff Donnahue George has asserted state veiy specific
facts about the actions of Defendant William Snyder and the theft of
Plaintiffs vehicle from his paved driveway in front his house. Florida state
statute 715.07 (2)(a)(3) states that if a person is removing a vehicle or vessel
22
from the premises or parking lot in which the vehicle is not lawfully parked
must stop when a person seeks return of the vehicle. Violation of this statute
is a Felony. First Defendant William Snyder had no legal authority to enter
my premises and remove the vehicle from the premises, and while he was
unlawfully removing the vehicle from my property I told him to stop and he
did not. He hung up the phone on me and continued to commit 2 felonies
first grand theft auto second violation of Florida statute 715.07(2)(a)(3)
which is also a felony. Defendant Fort Lauderdale Code enforcement was
responsible for the supervision and training of Defendant William Snyder so
they are culpable for his actions.
Defendant William Snyder in his own fraudulent paperwork establishes the
date and time that he trespassed on my property and stole my vehicle.(see
ECF/ Tab #11 Exhibit B) Florida statute 18-3 definitions establishes that
derelict means any motor vehicle or vessel which is in a state of evident
disuse , neglect or abandonment is wrecked or partially dismantled having
no motor. My vehicle was working running and cleaned and covered in my
paved driveway it was clearly not a derelict vehicle according to the
definition established by the State of Florida. Defendant William Snyder
stole plaintiffs perfectly running vehicle with the assistant of state actor
Westway towing and then fabricated evidence to cover up the theft. A
23
reasonable person would know that Defendant Williams Snyders action were
illegal and outrageous and the fact that he lied in his paperwork to his
department is further proof that he knew that his actions were illegal and
outside accepted norms.
3. Plaintiff Donnahue George States Multiple Causes of Actions Against
Defendant William Snyder and Westwav Towing and All his Allegations
are supported bv Facts.
Plaintiff Donnahue George Fourth, Fifth and Fourteenth Amendment rights
were violated by Defendant William Snyder and Westway Towing acting as
employee and agent of the state. Defendant Westway towing own submitted
evidence proves that I was the owner of the vehicle (see ECF/Tab #25
Exhibit 2) and the trespass of my property with the intent to steal my vehicle
under the color of law violated my Fourth, Fifth and Fourteenth Amendment
rights
The 4th Amendment provides: The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable search and seizure.
Defendant William Snyder along with Westway Towing entered my
property unlawfully stole my vehicle under the color of law and then
fabricated evidence to cover up the theft
24
The Fifth Amendment provides: that no person shall be deprived of life ,
liberty or property without due process of law. Defendant William Snyder
along with Westway towing entered my property stole my vehicle gave me
no advance warning of the theft and due process but most thieves do not tell
you in advance that they are coming to steal your property. He stole my
vehicle under the color of law.
The 14th Amendment provides : All persons bom or naturalized in the
United States , and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. Nor shall any state
deprive any person of life liberty or property without due process of law:
Defendant William Snyder along with Westway towing as agents of Fort
Lauderdale Code Enforcement denied me the due process of the law by
stealing my vehicle under the color of law and when caught in the act of
stealing my vehicle by my neighbors simply hung up the phone on me and
continued with the theft. There was no due process of law as required by the
Constitution but as stated before a thief is not going to give you advance
notice that they are going to steal. There is no ordinance that allows a Code
enforcement Officer to enter private property to steal a vehicle with or
without prior notice. The defendant can cite all the cases that they want
regarding neutrality of ordinances but in this particular case there was no
25
ordinance that was followed. Defendant William Snyder entered my
property by trespass stole my vehicle and then lied to cover up the theft.
There is no ordinance or statute that allows him to steal my property.
4 gfelintiff Donnahue George States a Cause of Action For His Emotional
Distress.
In order for Plaintiff Donnahue George to state an action for intentional
infliction of emotional distress a complaint must allege four elements. These
elements do not have to be proven in the complaint. Plaintiff Donnahue
George must allege (1) reckless or deliberate infliction of Mental suffering
(2) outrageous conduct (3) the conduct caused the emotional distress (4) the
distress was severe
In regards to (1) Defendant William Snyder in conspiracy with Westway
towing reckless and deliberately trespassed on my property and stole my
vehicle under the color of law. When I asked Defendant William Snyder to
stop stealing my vehicle he just hung up the phone on me leaving me
helpless without any recourse . Defendant William Snyder intentionally
caused me mental suffering.
In regards to (2) The fact that Defendant Williiam Snyder and Westway
Towing trespassed on my property and stole my vehicle and then lied to
26
cover up the theft, a reasonable person would find that conduct to be
outrageous.
In regards to (3) The actions of Defendant William Snyder and Westway
towing entering my premises illegally with the intent to steal my vehicle was
the actual cause of my mental distress
In regards to (4) the distress was very severe because I did not know what to
do I was not in a position to do anything at the time and when I went to the
police station and they told me my car was found abandoned in the street I
was distressed. I attempted to call Westway Towing and after I gave them
the vin # for my vehicle they just put me on hold and never came back on
the phone putting me in further distress. Hart v. United States, 894 F.2d
1539,1548 (11th Cir. 1990)
The Defendant William Snyders own fraudulent papers state that the vehicle
was stolen from my house plus he also has pictures of my vehicle before he
stole it under the color of law.
5. Plaintiff Donnahue Genri ■c States a Cause of Action Under 42 ILS.r
1983
27
To state a cause of action under section 1983 a plaintiff must allege two
elements (1) Challenged conduct by a person acting under the color of law
(2) challenged conduct that deprived the plaintiff of federal rights.
In regards to(l) Defendant William Snyder trespassed on my property under
the color of law as a Code enforcement officer and stole my perfectly good
running vehicle that was clean and covered and parked on my paved
driveway.
In regards to (2) By stealing my vehicle Defendant William Snyder and
Westway Towing deprived Plaintiff Donnahue George of his 4th , 5th and 14th
Amendment rights.
A Municipality may not be held liable under 1983 Solely because it
employs a tortfeasor (see Monell v New York City Dept ofSocial Services
436 U.S. 658, 692 instead the plaintiff must identify municipal policy or
custom that caused the injury (See Pembaur v Cincinnati 475 U.S. 469,
480-481. Until plaintiff is given an opportunity to submit interrogatories and
depose other City employees plaintiff will not be able to establish if this
a one time incident or if the Fort Lauderdale Code Enforcement has
established customs and or policys that allow code enforcement officers
think they can just trespass and steal citizens personal property.
28
was
In Burton v. Wilmington Parking Authority, 365 US. 715 (1961) The
courts said that “Constitutional standards are invoked when it can be said
that the State is responsible for the specific conduct to which the Plaintiff
Complains The Court also said a challenged action may be state action
when it results from the states exercise of coercive power, when the state
provide significant encouragement, either covert or overt or when a private
actor operates as a willful participant in joint activity with the state. Fort
Lauderdale code enforcement hired William Snyder as Code enforcement
officer and therefore was responsible for his actions. Westway towing
entered my property and stole my vehicle under the supervision of William
Snyder therefore Westway towing was a state actor and violated my
constitutional rights to due process under the law Violating my 4th 5th and
14th amendment rights along with William Snyder.
Florida statute 713.78 is very clear that the only person that can tow vehicles
from private property are the Owner the owners representative or a law
enforcement officer. The statutes are very clear that a code enforcement
officer is not a law enforcement officer and therefore is not authorized to
tow any vehicles from private property.
IL
The District Court erred by setting aside the clerks entry of default
and not entering the default judgment
29
Federal Rule of Civil procedure 55 (c) allows the court to set aside the clerks
entry of default “ for good cause shown” The court is vested with
considerable discretion to set aside an entry of default. (See Griffin IT, Inc
Media v. intelligente Corp., No. 07-80535-CIV, 2009 WL162754, at *2
(S.D. Fla. Jan 16, 2008) The Eleventh Circuit reasoned: that if a party
willfully defaults by displaying either an intentional or reckless disregard for
the judicial proceedings, the courts need make no findings in denying relief.
(See Compania Interamericana Export-import, S.A. Compania
Dominicana deAviacion, 88 F.3d 948, 951-952 (11th Cir. 1996)
1. The Defendants Fort Lauderdale Code enforcement and William Snyder
showed a willfull and intentional disregard for the judicial proceedings
by being properly served and never answering any of plaintiffs motions.
They were legally served with the motion to reopen the case and did
nothing. They were also legally served with the Amended Complaint and
did nothing. Only after Plaintiff got the entry of Default on November 7,
2019 and filed his motion for Default Judgment on November 8, 2019
did the Defendants respond to this lawsuit. They did not do anything until
7 days after the entry ofjudgment was signed by the clerk.
2. To determine whether good cause exists , the Court may consider (1)
whether the defaulting party presents a meritorious defense (2) whether
30
the default was culpable or willful; and (3) whether setting it aside would
prejudice the adversay. (See Longhini v. Hayday. Inc., No. 17-230330CIV, 2017 WL 1401316,. at *1 (S.D. Fla. Apr. 19, 2017)
3. In regards to (1) the defendants do not have a meritorious defense to their
actions they violated Florida civil Statutes and Penal Statutes by entering
my property and stealing my vehicle. They then fabricated evidence to
cover up the theft. William Snyder submitted a report that he did not
know who the owner of the vehicle was and that it was a derelict vehicle,
(see ECF/Tab #11 exhibit B) when he knew exactly who the owner was
and knew it was not a derelict vehicle. Someone also committed fraud by
notifying Fort Lauderdale police department that they found my vehicle
abandoned in the street far away from my house. If they had a
meritorious defense for their actions they would not have to fabricate
evidence to justify their actions
4. In regards to (2) The default on the part of the defendants was culpable
and willful. They were served with the motion to reopen the case and
then refused to respond. After the courts reopened the case they were
again served with the amended motion and they still refused to respond.
They willfully and intentionally refused to respond to the motions filed
by the plaintiff when they were properly served.
31
5. In regards to (3) The plaintiff would be unduly prejudice because the
defendants had more than enough time to respond to the plaintiffs
motions and refused to do so in a timely manner.
In-
The District Court erred by striking Defendants Separate Motions
to Dismiss and ordering them to file a joint motion.
The Defendants William Snyder and Fort Lauderdale Code filed a motion
to dismiss( See ECF#34) and Westway Towing filed a separate motion to
dismiss see (ECF#35). The District Court Judge ordered that the separate
motions for dismissal are to be striked. The Judge ordered the Defendants
to file a joint motion to dismiss unless they had conflicting interests.
The Defendants had not filed an Answer to the Complaint how could the
judge determine if they had or didn’t have conflicting interests. In
Locasio v U.S. 473 F.3d 493, 495-96 (2nd Cir. 2007) “The courts should
not display a deep seated favoritism or antagonism that would make fair
judgment impossible The courts held in In re Holocaust Victim A.ssets
litigation,2010 WL 4038794 (quoting Grinnell Corp, 384 U.S. at 583)
personal bias is an attitude arising from extrajudicial sources that results
“ in an opinion on the merits on some basis other than what the judge
learned from his participation in the case” The District had learned
nothing from the case because no answers were filed but the District
32
Court was giving defense strategies to the defendants ( See ECF/Tab#27)
and issuing orders before Plaintiff had an opportunity to respond ( see
ECF/ #28 and #29) Canon 2 of the Judicial Code of Conduct requires
federal Judges to” respect and comply with the law” and to “ act at all
times in a manner that promotes public confidence in the integrity and
impartiality of the judiciary. If the District Court is giving Defendants
defense strategies and making decisions without giving plaintiff time to
respond, How can these actions promote public confidence in the
integrity and impartiality of the judiciary.
The District Court stepped out of the shoes of impartial pursuer of justice
and became a part of both defense teams. The District Court was
coaching the Defendants on how to prepare their Defense therefore
denying Plaintiff Donnahue George an opportunity to have a fair and
impartial trial.
CONCLUSION
Wherefore Plaintiff Donnahue George respectfully submits that his
Amended Complaint was legally sufficient and stated a claim by which
relief could be granted. The defendants were properly served and the Clerks
entry of default should not have been set aside, and the default judgment
should have been entered. The District court should not be giving defense
33
strategies to the defendants or making decisions before Plaintiff has an
opportunity to respond, giving the appearance the court is co-counsel for the
defense. For all the reasons presented Plaintiff requests that this Honorable
Court reinstate the Clerks entry of Default order the lower court to enter the
Default Judgment, reverse the District Courts Dismissal of Plaintiffs case
and grant plaintiff Donnahue George all he asked for in his amended
complaint, require Fort Lauderdale Code enforcement to release their code
enforcement training manual and whatever else the courts find fair and
equitable.
Respectfully Submitted
Date May'S, 20x0
Donnahue George
1012 NW 2nd Street
Fort Lauderdale FI
33311
(347)216-5257
Email: DonnahueGeorge@gmail.com
34
CERTFICATE OF COMPLIANCE WITH FED .R.APP.P.32(a)
1. This brief complies with the type-volume limitations of Fed. R. App.P.
32 and Fed. R. P. 29 because it is less than 30 pages.
2. This brief complies with the typeface requirements of Fed.R. App. P.
32(a)(6) because it has been prepared in a proportionally- spaced
typeface using Microsoft Word in 14- point Ti:
ewiRoVnan
Dated May 5, 2020
DonnahuVoeorge
35
CERTIFICATE OF SFRVTCF
I Donnahue George certify that I mailed a copy of this Appellants Brief and
Appendix to the Clerk of the Court on May 5, 2020 and I also mailed a copy
to Richard Bergman 2001 Hollywood Blvd suite 200 Hollywood Florida '
3 3 02 0^
Micheal Bostick 100 N Andrews Ave Fort Lauderdale Florida 33301 and
Robert Oldershaw 100 N Andrews Ave Fort Lauderdale Florida 33301 on
May 5, 2020
Dated May 5, 2020
Donnahue/Gdorge
36
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.