Appendix — Kaimowitz v. City of Orlando

TABLE OF CONTENTS

SURE gs Soe Ciba eS ears i-a

RE: KAIMOWITZ v. ORLANDO-Appeal, __ #96-2307

yume coger, Gest. $5. 1997 3. oc i. l-a

Pe, WG. TS SOP ios Sickes een 5-a

RE: KAIMOWITZ v. ORLANDO--Trial Court, #95-204

Denial of Preliminary Injunction, Jan. 29,1996 ........ 7-a

RE: KAIMOWITZ v. ORLANDO--Appeal, _ #96 -2307

Denial of Rehearing, Nov. 20, 1997 ............... 12-a

RE: KAIMOWITZ, qui tam, ex rel U.S. Appeal #97-2777

Docketing of Appeal, Aug. 13, 1997 ............... 14-a

RE: NOYES v. ORLANDO--Appeal_#97-2600

Court Mandate of Dismissal, Feb. 6,1998 .......... 15-a

Court Entry of Dismissal, Feb. 6, 1998 ............. 16-a

Order of Denial of Enlargement of Time, Feb. 6, 1998 . 17-a

RE: NOYES v. ORLANDO--Trial Court, #97-254

Noyes Voluntary Notice of Dismissal, with ......... 18-a

Final Order of Dismissal with Prejudice, May 5, 1997 . 19-a

Order Denial of Intervention, Apr. 14,1997 ......... 20-a

-N v. --A etition #97-245

Court Dismissal of Petition as Moot, Oct. 7,1997 .... 2l-a

RE: v. -- #97-2600

Denials of Rehearing/Motion to File, Mar. 2, 1998 ... 22-a

Docketing of Appeal, Oct. 10,1997 ............... 23-a

Denial of Motion to Notify Adversaries, Dec. 2, 1997 . 24-a

i-a

-K W Vv. --Trj #94-284-

Order Granting Change of Venue, Feb. 27,1995 ..... 25-a

W Vv --Tri #95-

Denial of Recwnnl. Mor. £5, 1998 cco osc cos iesweasn 29-a

Denial of Reconsideration of Venue, March 16,1995 . 33-a

Denial of Sanctions, June 15,1995 ................ 35-a

| v. --Tri #95-2

Excerpts from an Orlando Arrest Report, Oct. 31,1995 40-a

DOCKET BIER EAL UEE DE <6 = se krieceswesve 4l-a

RE: NOYES v. ORLANDO--Trial Court, #97-254

DOCKET RES Cee Ee 6 6 bes vdawsiwvaxtien 48-a

: NOY J #88-

Ouiles of Dee8. £7, See idscscnasdn dctbesr ~e e 52-a

Letter Re: Petition, Mam. 25, 1996 2. ood ccccccccscs 53-a

Extension of Time, to Mar. 17, 1998 ............... 54-a

Further Extension of Time, to Apr. 10,1998 ......... 55-a

APPENDIX

Gabe KAIMOWITZ, Esquire, Qui Tam, Plaintiff-Appellant,

USA ex rel., Plaintiff,

v.

ORLANDO, FL, Rick Bernhardt, Orlando Neighborhood

Improvement Corporation ("ONIC"), Defendants-Appellees,

No. 96-2307

Non-Argument Calendar

United States Court of Appeals, Eleventh Circuit.

Sept. 15, 1997.

Appeal from the United States District Court for the Middle

District of Florida.

Before ANDERSON and BLACK, Circuit Judges, and

CLARK, Senior Circuit Judge.

PER CURIAM:

This is an interlocutory appeal from the district court's

denial of a motion for a preliminary injunction. Appellant

Kaimowitz brought the underlying action, a qui tam claim

against the City of Orlando, Florida, inter alia, alleging that the

defendants knowingly and improperly obtained funds from

several federal agencies for the development or improvement

of properties in minority-concentrated areas of Orlando,

Florida. While the action was pending, Kaimowitz moved for

a preliminary injunction, stating that a city ordinance allowed

members of the public to speak for five minutes each at the

conclusion of city council meetings on any subject, and gave

the city counsel and the mayor the authority to enlarge the five-

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the city counsel and the mayor the authority to enlarge the five-

minute time-limit. He alleged that the mayor and the city

council refused to let him speak beyond the five-minute limit

and, on one occasion when he did not stop speaking after the

time limit, had the police forcibly remove and restrain him

until the city council meeting concluded. Kaimowitz asked the

district court to grant an injunction denying the mayor's nght

to enforce the five-minute time limit, stating that the time limit

chilled his First Amendment nght to free speech. He also

asked the district court to declare the ordinance

unconstitutional, because the authority to extend the five-

minute limit could be used arbitrarily to permit those in

agreement with the city leaders to continue speaking while the

denial of an extension would silence opposition.

The distnct court denied the motion for a preliminary

injunction, finding that the injunction was not related to the gui

tam action, and that it would be unnecessarily confusing to

allow Kaimowitz to bring a personal action along with an

action on behalf of the government. The district court directed

Kaimowitz to file his individual claims in a separate action.

On appeal, Kaimowitz raises three issues: (1) the

district court erred in denying his motion to amend his

complaint; (2 the district court erred in denying his motion for

a preliminary injunction because restraint is necessary to keep

the defendants from intimidating him; and (3) the district court

erred in failing to hold a hearing on his motion for an

injunction.

Any review of the district court's denial of Kaimowitz’

motion to amend the complaint is premature. This case is

before the court as an interlocutory appeal from the district

court's order denying Kaimowitz’ request for a preliminary

injunction. The order is immediately appealable under 28

2-a

U.S.C. §1292(a)(1), but the scope of the court's jurisdiction is

limited to matters directly related to the denial of injunctive

relief.' The issues underlying the motion for a preliminary

injunction differ from the issues raised in the gui tam action:

in addition, there is nothing for the court to review because the

district court has not ruled on the gui tam claim.

Consequently, this court lacks jurisdiction under §1292(a) 1)

to review the district court's denial of Kaimowitz' motion to

amend his complaint.

This Court reviews the district court's denial of a preliminary

injunction under an abuse of discretion standard? A

preliminary injunction is always appropriate to grant

immediate relief of the same character as that which may be

granted finally.* A district court should not issue an injunction

when the injunction in question is not of the same character,

and deals with a matter lying wholly outside the issues in the

suit." Here the suit is one for damages on a claim of fraud. In

his injunction Kaimowitz sought equitable relief regarding a

First Amendment issue, but that relief was not of the same

character that could be granted finally, and dealt with a matter

1--See Callaway v. Block, 763 F.2d 1283. 1287. n. 6 (11th Cir. 1985) ("As a

general rule, when an appeal is taken from the grant or denial of a preliminary

injunction, the reviewing court will go no further into the merits than is

necessary to decide the interlocutory appeal").

2--Mitsubishi Int'l Corp. v. Cardinal Textile Sales, Inc., 14 F.3d 1507. 1517

(11th Cir. 1994), cert. denied, 513 U.S. 1146, 115 S.Ct. 1092, 130 L_Ed.2d

1061 (1995); see also Cafe 207, Inc. v. St. Johns County, 989 F.2d 1136,

1137 (11th Cir. 1993), noting that preliminary injunction is a "drastic

remedy”).

3--De Beers Consol. Mines v. U.S., 325 US. 212, 220, 65 S.Ct. 1130, 1134,

89 L.Ed. 1566 (1945)(emphasis added).

4--Id.

that was wholly outside of the issues in the suit. The district

court did not err in denying the motion for an injunction.

As to Kaimowitz’ contention that district court was

required to hold an evidentiary hearing, the Federal Rules of

Civil Procedure state only that "[n]o preliminary injunction

shall be issued without notice to the adverse party," ° and do not

expressly require a hearing on every motion for injunctive

relief.° Generally, evidentiary hearings are required prior to the

issuance or denial of a motion for preliminary injunction only

where there is a presumption of irreparable harm, as in a Title

VII employment discrimination case.’ Because there is no

presumption of irreparable harm in this case, the district court

did not err in not holding a hearing.

AFFIRMED.

THIS PER CURIAM RULING HAS BEEN PUBLISHED:

KAIMOWITZ v. ORLANDO, 122 F.3d 41 (11th Cir. 1997).

5—Fed R.Civ.P. 65(a).

6—See Baker v. Buckeye Cellulose Corp. 856 F.2d 167, 169 (i lth Cir.

1988).

7—See id.

t-a

UNPUBLISHED

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

No. 96-2307 U.S. COURT OF APPEALS

SEP 15 1997

District Court No. 95-204-Civ MIGUEL J CORTEZ

CLERK

GABE KAIMOWITZ, Esquire, Qui Tam.

Plaintiff-Appellant,

USA, EX REL,,

Plaintiff,

versus

ORLANDO, FLORIDA, RICK BERNHARDT.

ORLANDO NEIGHBORHOOD IMPROVEMENT

CORPORATION ("ONIC"),

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Florida

Before ANDERSON and BLACK, Circuit Judges, and

CLARK, Senior Circuit Judge.

JUDGMENT

This cause came to be heard on the transcript of the

record from the United States District Court for the Middle

District of Florida, and was taken under submission by the

Court, upon the record and briefs on file, pursuant to Eleventh

5-a

Circuit Rule 34-3;

UPON CONSIDERATION WHEREOF, it is now hereby

ordered and adjudged by this Court that the order of the said

District Court appealed from in this cause be and the same is

hereby AFFIRMED,

It is further ordered that plaintiff-appellant pay to

defendants-appellees, the costs on appeal to be taxed by the

Clerk of this Court.

Entered September 15, 1997

For the Court, Miguel J. Cortez, Clerk

By Matt Davidson |

Deputy Clerk

ISSUED AS MANDATE: 12/19/97

UNPUBLISHED

UNITED STATES DISTRICT COURT FILED

MIDDLE DISTRICT OF FLORIDA96 JAN 30 A 10:36

ORLANDO DIVISION CLERK,

U.S. DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO, FLORIDA

UNITED STATES OF AMERICA.

ex rel. GABE KAIMOWITZ, Esq.,

Qui Tam,

Plaintiffs,

-VS- CASE NO. 95-204-Civ-ORL-19

ORLANDO, FLORIDA;. RICK BERNHARDT.

its planning and development director,

and the ORLANDO NEIGHBORHOOD

IMPROVEMENT CORPORATION,

Defendants.

ORDER

This cause before the Court on the following...

(5) Motion by Qui Tam Plaintiff Pursuant to Rule 12(f),

Fed. R. Civ. P. to Strike a Memorandum in Opposition to

Qui Tam Plaintiffs Motion for Preliminary and Permanent

Injunction Barring Removal from City Council Meeting (Doc.

No. 228, filed January 10, 1996), Legal Authority in Support

of (1) Motion by Qui Tam Plaintiff Pursuant to Rule 12 (f),

Fed. R. Civ. P. to Strike a Memorandum in Opposition to Qui

Tam Plaintiffs Motion for Preliminary and Permanent

Injunction Barring Removal from City Council Meeting and

(2) Motion to Compel by Plaintiff (Doc. No. 230, filed January

10, 1996), Defendant's Memorandum of Law in Opposition to

Qui Tam Plaintiffs Motion to Strike Memorandum in

Opposition to Motion for Preliminary and Permanent

Injunction (Doc. No. 233, filed January 16, 1996), Defendants’

7-a

Notice of Filing Videotape of October 30, 1995 City Council

Meeting (Doc. No. 234, filed January 16, 1996), Defendants’

Notice of Filing Videotape of October 30, 1995 City Council

Meeting (Doc. No. 234, filed January 16, 1996), and the

videotape of the October 30, 1995 City Council Meeting.

Under Rule 12(f) of the Federal Rules of Civil

Procedure, a motion to strike will be granted if a pleading

contains any insufficient defense or any redundant,

immaterial, impertinent, or scandalous matter. Fnedman v. So.

Car, Ins. Co., 855 F. Supp. 348 (M.D. Fla. 1994). Motions to

Strike are —, wens with mae and are bearer

Inc., 833 an 882, 884 (MD. Fla. 1993) The a aiananion

of whether a motion to strike should be granted is within this

Court's discretion. Quality Inns Int'l Inc. v. Tampa Motel

Assoc. Ltd., 157 F.R.D. 528, 531 (M.D. Fla. 1994).

After viewing the videotape of the October 30, 1995

Orlando City Council meeting, this Court finds that the

statement of facts set out by the City of Orlando's attorney in

the Memorandum in Opposition to qui tam Plaintiff's Motion

for Preliminary and Permanent Injunction Barring Removal

from City Council Meeting (Doc. No. 227) is not scandalous,

impertinent, immaterial, or irrelevant with regard to qui tam

Plaintiff's actions or statements made at the meeting. The fact

that Defendant Orlando mis-cited one of qui tam Plaintiff's

previous cases before this Court does not constitute sufficient

reason to strike Orlando's response. Thus, qui tam Plaintiff's

Motion to Strike (Doc. No. 228) is DENIED.

(6) Motion with Cited Legal Authorities to File a First

Amended Complaint for Equitable Relief as Well as Such

Other Recourse as is Permitted by the Federal False Claims

Act: and Against Orlando, Fla., Also for Damages and

Injunctive Relief Pursuant to 42 U.S.C. § 1983; and for

Redress of Wrongs Done in Violation of Federal Freedom of

Information Act and Florida Sunshine-in-Government

8-a

Provisions (Doc. No. 226) filed January 2, 1996, Defendants’

Memorandum of Law in Opposition to Plaintiffs Motion for

Leave to File First Amended Complaint (Doc. No. 231, filed

January 12, 1996), and Amicus Curiae Brief in Limited

Opposition to Relators Motion for Leave to File Amended

Complaint (Doc. No. 235, filed January 17, 1996).

..--Qui tam Plaintiff also seeks to assert personal claims

for alleged civil rights violations under 42 U.S.C. §§ 1983 and

wrongful and improper withholding of public information. In

this case, since a responsive pleading has already been served,

qui tam Piaintiff may amend his Complaint "only by leave of

court or by written consent of the adverse party; and leave shall

be freely given when justice so requires." Rule 15(a), Fed. R.

Civ. P. The decision whether to grant a motion to amend is

entrusted to the discretion of the trial court. Barrett v. Ind.

Order of Foresters, 625 F.2d 73, 75 (Sth Cir. 1980).*....

(Q)ui tam Plaintiff seeks to add personal claims of civil

nghts violations against Orlando under 42 U.S.C. §§ 1983 and

1985 and violations of the Freedom of Information Act and

Florida Government in Sunshine Laws. It is not appropriate to

join Plaintiffs personal actions against Defendants in the same

qui tam action which is brought in the name of the United

States. In this qui tam action, the United States is the real party

in interest. United States ex rel. Milan, 961 F.2d 46 (sic). To

allow qui tam Plaintiff to now sue Defendants in his personal

capacity would only confuse and complicate the issues. If qui

tam Plaintiff wants to pursue these personal actions, he must

do so in a separately filed suit. Accordingly, Plaintiff's Motion

to File a First Amended Qui Tam Complaint (Doc. No. 226) is

DENIED. However, in accordance with Rule 15(d), Federal

Rules of Civil Procedure, qui tam Plaintiff may supplement the

2--Pursuant to Bonner _v. Prichard, 661 F.2d 1206, 1207 (llth Cir.

1981), Fifth Circuit decisions before October 1, 1981 bind Eleventh Circuit

Courts.

9-a

onginal Complaint with transactions or occurrences or events

which have occurred since the date of the original Complaint

and which have a bearing on the instant claim.

(7) Motion by Qui Tam Plaintiff For Preliminary and

Permanent Injunction to Bar Defendant City from Having Him

Removed During City Council Meetings or Subjected to Arrest

on the Basis of an Unconstitutional Ordinance (Doc. No. 223,

filed December 27, 1995), Memorandum of Law in Support of

Motion by Qui Tam Plaintiff for Preliminary and Permanent

Injunction (Doc. No. 224, filed December 27, 1995), Affidavit

by Qui Tam Plaintiff's Motion for Preliminary and Permanent

Injunction Barring Removal form City Council Meeting (Doc.

No. 227, filed January 2, 1996).

Plaintiff has filed a Motion for Preliminary Injunction

which is not at all related to his Qui Tam Complaint.’

Therefore, qui tam Plaintiff's Motion/Legal Authority for Court

Pursuant to Local Rule 3.01(b) to Permit the Filing of this

Restatement of Facts (Doc. No. 236) is DENIED.

CONCLUSION

Based on the foregoing...... Motion by Qui Tam Plaintiff

Pursuant to Rule 12(f) to Strike a Memorandum in Opposition

to Qui Tam Plaintiff's Motion for Preliminary and Permanent

Injunction Barring Removal from City Council Meeting (Doc.

No. 228) is DENIED; Plaintiffs Motion with Cited Legal

Authorities to File a First Amended Qui Tam Complaint (Doc.

No. 226) is DENIED; Qui tam Plaintiff may supplement the

onginal Complaint with transactions or occurrences or events

which have occurred since the date of the original Complaint

and which have a bearing on the instant claim; Motion by Qui

Tam Plaintiff for Preliminary and Permanent Injunction to Bar

Defendant City from Having Him Removed During City

3--Plaintff filed the Motion for Preliminary Injunction before he filed the

Monon for Leave to File a First Amended Qui Tam Complaint.

10-a

Council Meetings or Subjected to Arrest on the Basis of an

unconstitutional Ordinance (Doc. No. 223) is DENIED: and

Motion/Legal Authority for Court Pursuant to Local Rule

3.01(b) to Permit the Filing of this Restatement of Facts (Doc.

No. 236) is DENIED.

DONE AND ORDERED at Orlando, Florida, this 29th

day of January, 1996.

{Tl ta sett

PATRICIA C. FAWSETT

UNITED STATES DISTRICT JUDGE

Copies to:

All Counsel of Record

Gabe Kaimowitz

ll-a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

No. 96-2307 U.S. COURT OF APPEALS

NOV 20 1997

THOMAS K. KAHN

CLERK

GABE KAIMOWITZ, Esquire, Qui Tam,

Plaintiff-Appellant,

USA, ex rel.,

Plaintiff,

versus

ORLANDO, FLORIDA, RICK BERNHARDT,

ORLANDO NEIGHBORHOOD IMPROVEMENT

CORPORATION ("ONIC"),

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Florida

ON PETITION FOR REHEARING AND SUGGESTION OF

REHEARING EN BANC

(Opinion mh: Le Re, Se oe ee |

Before ANDERSON and BLACK, Circuit Judges, and

CLARK, Senior Circuit Judge.

PER CURIAM:

12-a

No member of this panel nor other judge in regular active

service on the Court having requested that the court be polled

on Rehearing En Banc (Rule 35, Fed.R.App.P.; Eleventh

Circuit Rule 35-5), the Suggestion of Rehearing En Banc is

DENIED.

On panel rehearing, the last two sentences (including

footnote 7) of the opinion are hereby deleted, and the following

sentence is substituted in lieu thereof:

For the reason discussed above, the record conclusively

established that Kaimowitz was not entitled in this suit

to the unrelated preliminary injunction he sought, and

thus it was clear that an evidentiary hearing was

not necessary.

The petition. for panel rehearing is DENIED in all

respects except for the foregoing amendment of the opinion.

THIS AMENDMENT HAS BEEN PUBLISHED:

KAIMOWITZ v. ORLANDO, 131 F.3d 950 (11th Cir. 1997).

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

50 Forsyth Street, N.W.

Atlanta, Georgia 30303

August 13, 1997

Miguel J. Cortez In Replying Give Number

Clerk Of Case and Names of Parties

MEMORANDUM TO COUNSEL OR PARTIES:

RE: 97-2777 Kaimowitz v. Orlando, FL

DC. DKT NO.: 95-204-CV-ORL-19

The referenced case has been docketed in this court. Please

use the appellate docket number noted above when making

inquiries...

Counsel participating in this appeal should complete and return

the enclosed appearance form within fourteen (14) days. [11th

Cir. R. 46-1]. Only counsel who enter an appearance will be

noted on the docket. Persons appearing pro se need not file an

appearance form.

Sincerely,

Miguel J. Cortez

MIGUEL J. CORTEZ, Clerk

Reply to: Deborah Owens (404) 331-3843

c: District Court Clerk

14-a

UNITED STATES CIRCUIT JUDGE

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

56 Forsythe Street, N.W.

Atlanta, Georgia 30303

Thomas K. Kahn In Replying Give Number

Clerk Of Case And Names of Parties

February 6, 1998

Richard D. Sletten

Clerk, U.S. District Court,

80 N. Hughey Ave., Floor 2, Suite 218

Orlando, FL 32801

Re: 97-2600 Noyes v. City of Orlando

DC DET NO.: 97-00254 CIV-ORL-22

The enclosed certified copy of the Clerk's Entry of Dismissal

for failure to prosecute in the above referenced appeal is issued

as the mandate of this court.

Please acknowledge receipt by returning the enclosed copy of

this letter.

Sincerely,

Thomas K. Kahn

THOMAS K. KAHN, Clerk

Reply To: Ola Solomon (404) 335-6178

THE ENCLOSED ORDER HAS BEEN ENTERED.

15-a

UNPUBLISHED

IN THE UNITED STATES COURT OF APPEALS

FILED

U.S. COURT OF APPEALS

FOR THE ELEVENTH CIRCUITFEB. 6 1998

THOMAS K. KAHN

CLERK

NO, 97-2600

HAL NOYES, Plaintiff-Appellant,

versus

CITY OF ORLANDO, a State of Florida

municipality, DANIEL NESSIM, individually,

Defendants-Appellees,

GABE KAIMOWITZ,

Movant-Appellant.

On Appeal from the United States District Court

for the Middle District of Florida

ENTRY OF DISMISSAL

Pursuant to 11th Cir. R. 42-1 (b), this appeal is hereby

dismissed for want of prosecution because appellant has failed

to file an appellant's brief and record excerpts, within the time

fixed by the rules, effective this 6th day of February 1998.

THOMAS K. KAHN

Clerk of the United States Court

of Appeals for the Eleventh Circuit

By: Ola Solomon

Deputy Clerk Ola Solomon

FOR THE COURT - BY DIRECTION

16-a

UNPUBLISHED

IN THE UNITED STATES COURT OF APPEALS

FILED

U.S. COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FEB 6 1998

THOMAS K. KAHN

CLERK

NO. 97-2600

HAL NOYES, Plaintiff-Appellant,

versus

CITY OF ORLANDO, a State of Florida

municipality; DANIEL NESSIM, individually,

Defendants-Appellees,

GABE KAIMOWITZ,

Movant-Appellant.

On Appeal from the United States District Court for the

Middle District of Florida

ORDER:

Motion for Enlargement of Time to File Appellant's

Bnef and Record Excerpts to and including March 26, 1998

is DENIED.

Ed Carnes

United States Circuit Court

UNITED STATES CIRCUIT JUDGE

17-a

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA FILED whp?

97- MAY -2 PM 3:56

HAL NOYES, CLERK, UNITED STATES

Plaintiff, DISTRICT COURT

ORLANDO, FLORIDA

Vv CASE NO. 97-254-CIV-ORL-22

CITY OF ORLANDO, a state of

Florida Municipality; and

DANIEL NESSIM, individually,

Defendants.

MR. NOYES' VOLUNTARY NOTICE OF DISMISSAL

WITH PREJUDICE

The Plaintiff, HAL NOYES, hereby files this his

voluntary notice of dismissal with prejudice of all claims

presented by him against the defendants, CITY OF ORLANDO

and DANIEL NESSIM, in the above-captioned action. This

dismissal is with prejudice and shall include the dismissal of

Noyes’ claims against the defendants for compensatory

damages, punitive damages, costs and attorney's fees. Each

party will bear its own costs and attorney's fees incurred in the

handling of this legal matter. In filing this notice of dismissal

with prejudice, Mr. Noyes reports to the court that the legal

dispute between him and the defendants has been resolved.

Dated this 2nd day of May, 1997.

LAW OFFICES OF

WILLIAM J. SHEAFFER STEVEN G. MASON

609 EAST CENTRAL BOULEVARD

ORLANDO, FLORIDA 32801

TELEPHONE (407) 423-1066 TELEPHONE (407) 649-1063

ATTORNEY FOR PLAINTIFF ATTORNEY FOR PLAINTIFF

_ By: William J. Sheaffer By: Steven G. Mason

Flonda Bar #0257311 Florida Bar #842508

18-a

UNPUBLISHED

This cause coming before the court upon the above and

foregoing voluntary notice of dismissal with prejudice and the

court being duly advised in the premises, it is therefore

ORDERED AND ADJUDGED that this cause is

dismissed with prejudice. All claims of Hal Noyes against the

City of Orlando and Daniel Nessim for compensatory damages,

punitive damages, attorneys' fees and costs are hereby

dismissed. It is further ordered that each party shall bear its

own Costs and attorneys’ fees incurred in connection with this

matter.

DONE AND ORDERED in Chambers at Orlando,

Orange County, Florida this Sth day of May, 1997.

Anne C. Conway

Federal Judge

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing has been furnished by United States Mail this 6th

day of May 1997 to: STEVEN G. MASON and WILLIAM J.

SHEAFFER. Attomeys for the Plaintiff, 609 E. Central Blvd.,

Orlando, FL 32801; and to MARK MUNSEY, City of

Orlando, 400 S. Orange Ave., Orlando, FL 32801.

WHPlaines (sp?)

19-a

UNPUBLISHED

IN THE UNITED STATES DISTRICT COURT ~

MIDDLE DISTRICT OF FLORIDA FILED

97- APR 14 PM 2:58

CLERK, UNITED STATES

DISTRICT COURT

ORLANDO, FLORIDA

HAL NOYES,

Plaintiff CASE NO. 97-254-CIV-ORL-22

V.

CITY OF ORLANDO, a state of

Flonda Municipality; and

DANIEL NESSIM, individually,

Defendants.

ORDER

This cause comes before the Court on Gabe

Kaimowitz's Motion to Intervene as a Plaintiff and Seek

Certification of a Class Action (Dkt. 3) filed March 28, 1997.

The Court notes the present Plaintiff objects to the Motion.

Based on the foregoing, it is ordered as follows:

1. The Motion to Intervene as a Plaintiff and Seek

Certification of a Class Action (Dkt. 3) is DENIED.

2. The Claim filed by Mr. Kaimowitz (Dkt. 4) is hereby

STRICKEN and the Clerk is directed to return the document to

Mr. Kaimowitz.

DONE AND ORDERED in Chambers, Orlando,

Flonda, this 14th day of April, 1997.

nne C. Conw

ANNE C. CONWAY

United States District Judge

Copies to: Counsel of Record

Unrepresented Party, Gabe Kaimowitz

20-a

UNPUBLISHED

IN THE UNITED STATES COURT OF APPEALS

FILED

U.S. COURT OF APPEALS

FOR THE ELEVENTH CIRCUITOCT 10 1997

MIGUEL J. CORTEZ

CLERK

NO. 97-2458

IN RE:

GABE KAIMOWITZ

Petitioner,

On Petition for Writ of Mandamus to the United States

District Court for the Middle District of Florida!

Before: Anderson and Carnes, Circuit J udges.

BY THE COURT:

Petitioner's application for writ of mandamus is

DISMISSED because the petition for writ of mandamus is

moot.

1--Petitioner’s note. This petition was filed on Apr. 21, 1997, Re: 97-2600

Noyes v. City of Orlando DC DKT NO.: 97-00254 CIV-ORL-22

2i-a

UNPUBLISHED

IN THE UNITED STATES COURT OF APPEALS

FILED

U.S. COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT MAR2 1998

THOMAS K. KAHN

CLERK

NO. 97-2600

HAL NOYES,

Plaintiff-Appellant,

versus

CITY OF ORLANDO, a State of Florida

municipality, DANIEL NESSIM, individually,

Defendants-Appellees,

GABE KAIMOWITZ,

Movant-Appellant.

On Appeal from the United States District Court for the

‘ddle District of Florid

ORDER:

Motion for Rehearing for Appellant (construed as

Motion to Reinstate the Appeal) is DENIED.

Motion to File Appellant's Brief and Record Excerpts

Out of Time is DENIED. '

Ed Carnes

UNITED STATES CIRCUIT JUDGE

]--Petitioner's Note: All seven copies of the Initial Brief and five of the

Record Excerpts submitted with the motion filed on Feb. 13 were returned

without explanation

22-a

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

56 Forsythe Street, N.W.

Atlanta, Georgia 30303

Miguel J. Cortez In Reply Give Number

Clerk Of Case And Names of Parties

October 7, 1997

MEMORANDUM TO COUNSEL OR PARTIES:

Re: 97-2600 Noyes v. City of Orlando

DC DET NO.: 97-00254 CIV-ORL-22

The referenced case has been docketed in this court. Please

use the appellate docket number noted above when making

inquiries...

Counsel participating in this appeal should complete and return

the enclosed appearance form within fourteen (14) days. [llth

Cir. R. 46-1]. Only counsel who enter an appearance will be

noted on the docket. Persons appearing pro se need not file an

appearance form. Sincerely,

Miguel J. Cortez

MIGUEL J. CORTEZ, Clerk

Reply To: Vicki Berrong (404) 331-3833

c: District Court Clerk

UNPUBLISHED

IN THE UNITED STATES COURT OF APPEALS

FILED

U.S. COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT DEC 02 1997

THOMAS K. KAHN

CLERK

NO. 97-2600

HAL NOYES, Plaintiff-Appellant,

versus

CITY OF ORLANDO, a State of Florida

municipality, DANIEL NESSIM, individually,

Defendants-Appellees,

GABE KAIMOWITZ,

Movant-Appellant.

On Appeal from the United States

Dietrict C ‘or the Middle District of Florid

ORDER:

Appellant's "motion for written notification..."” is

DENIED.

s/ Joel F. Dubina

UNITED STATES CIRCUIT JUDGE

1--Petitioner's note: Petinoner sought to have someone notified for the other

parties to the controversy below. When this motion was demed, Petitoner

on Dec. 5, 1997, sent a Motion for Summary Reversal and Remand to an

Unbiased Judge for Consideration of Claims for Injunctive and

Declaratory Relief on Behalf of a Class, because no one would be appearing

in Opposition to his appeal. To Petitioner's knowledge, that Monon was

never resolved, although he premised a timely later request for an

enlargement of time for the filing of the mitial brief and record excerpts for

up to 60 days or a reasonable time after that motion was resolved.

24-a

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

56 Forsythe Street, N.W.

Atlanta, Georgia 30303

Thomas K. Kahn In Replying Give Number

Clerk Of Case And Names of Parties

December 18, 1997

MEMORANDUM TO COUNSEL OR PARTIES:

Re: 97-2600 Noyes v. City of Orlando

DC DET NO.: 97-00254 CIV-ORL-2?

Pursuant to Fed.R.App.P. 12(c), be advised that the record is

complete for purposes of appeal. APPELLANT'S BRIEF AND

RECORD EXCERPTS ARE DUE WITHIN FORTY (40)

DAYS FROM THIS DATE. This is the Only notice you will

receive concerning the due date for filing briefs...

Sincerely,

Thomas K. Kahn

THOMAS K. KAHN. Clerk

Reply To: Ola Solomon (404) 335-6178

Encl. BR-2 (10/97)

UNPUBLISHED

UNITED STATES DISTRICT COURT FILED

MIDDLE DISTRICT OF FLORIDA 95 FEB 27 PM

JACKSONVILLE DIVISION CLERK,

U.S. DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE, FLORIDA

UNITED STATES OF AMERICA,

ex rel. GABE KAIMOWITZ, esq..,

Qui Tam,

Plaintiffs,

-VS- CASE NO. 94-284-Civ-J-10

ORLANDO, Fla., RICK BERNHARDT,

its planning and development director,

and the ORLANDO NEIGHBORHOOD

IMPROVEMENT CORPORATION,

Defendants.

ORDER

Defendants City of Orlando and Richard Bernhardt

filed a motion for change of venue (Doc. 26) and the remaining

Defendant, Orlando Neighborhood Improvement Corporation,

filed its own separate motion for change of venue (Doc. 28).

Plaintiff responded to both motions (Docs. 29, 30, & 31), and

filed a notice of filing (Doc. 34) and an affidavit (Doc. 33)

related to the venue issue. Defendants have moved (Docs. 35

& 37) to strike the Plaintiff's notice of filing and affidavit.

Plaintiff's qui tam complaint seeks equitable relief and

damages allowed by the False Claims Act. The complaint

alleges that the Defendants "have made claims violative of

federal law to induce Community Development Bloc Grant

("CDBG") funds and other grants and loans from the US.

26-a

Department of Housing and Urban Development ("HUD"), and

the complaint also seeks "injunctive relief to bar use of such

funds for maintenance and expansion of a commercial district,

low-income public housing, and alleged rehabilitation of multi-

family low-income rental units in virtually all black

neighborhoods of Orlando."

Defendants seek a change of venue under 28 U.S.C. §

1404 arguing that Orlando is the better venue because

Defendants are located in Orlando and transact the majority of

their business there, and because all of the recipients of the

allegedly falsely claimed funds are also located in Orlando.

Plaintiff opposes a change of venue in this case for three

principal reasons. First, Plaintiff contends that all of the

documents related to the alleged false claims are located in

Jacksonville because the Defendants made all of these claims

to the Jacksonville office of the United Stats Department of

Housing and Urban Development ( "HUD") which processed

the claims in and dispersed the funds from Jacksonville.

Second, Plaintiff contends that the J udges and jurors residing

in Orlando will be biased because this case includes claims

against the City of Orlando. Third, Plaintiff argues that in

Orlando "an all or assuredly predominantly white jury.. .would

resolve to keep the local black population in its place."

Under 31 U.S.C. § 3732, venue in a case under the false

Claims act is proper:

in any judicial district in which the defendant or, in the

case of multiple defendants. any one defendant can be

found, resides, transacts business, or in which any act

proscribed by section 3729 occurred.

Under this section, venue is proper in either Jacksonville or

Orlando.

Under 28 U.S.C. § 1404, the Court can transfer venue

to any other district or division where the action might have

been brought if a transfer would serve the convenience of the

parties and witnesses and the interests of justice. Ordinarily,

27-a

a plaintiff's choice of forum is entitled to considerable weight

when a Court (sic) whether to order a change of venue.

However, in a false claims act case, a gui tam plaintiff's choice

of forum, it is apparent that venue is more appropriate in the

Orlando division. All of the Defendants, as well as the officers

and employees of the Defendants, reside in Orlando.

Moreover, the recipients of the funds acquired through the

allegedly false claims, who can be expected to be witnesses in

this action, all reside and conduct business in Orlando.

Although some documentary evidence is located in

Jacksonville's HUD office, all of the Defendants’ documents

and all of the documents of the recipients of the HUD funds are

located in Orlando. Finally, Plaintiff is a Gainesville resident,

and therefore, will not be significantly inconvenienced if

forced to litigate this matter in Orlando rather than

Jacksonville. For all of these reasons, the Court finds that a

transfer to the Orlando division would serve the convenience

of the parties and witnesses and the interest of justice.

Accordingly, upon due consideration:

(1) The Defendants’ motion to transfer venue (Docs. 26

& 28) are GRANTED and the clerk is directed to transfer this

case to the Orlando division; and

(2) Defendants’ motions to strike (Docs. 35 & 37) are

DENIED.

IT IS SO ORDERED.

DONE AND ORDERED at Jacksonville, Florida this

27th day of February, 1995.

W Terrell Hodges

UNITED STATES DISTRICT JUDGE

Copy to counsel of record

UNPUBLISHED

UNITED STATES DISTRICT COURT FILED

MIDDLE DISTRICT OF FLORIDA 95 MAR 16

ORLANDO DIVISION CLERK,

U.S. DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE, FLORIDA

UNITED STATES OF AMERICA,

ex rel. GABE KAIMOWITZ, esq.,

Qui Tam,

Plaintiffs,

-VS- CASE NO. 95-204-Civ-ORL-19

ORLANDO, Fla., RICK BERNHARDT,

its planning and development director,

and the ORLANDO NEIGHBORHOOD

IMPROVEMENT CORPORATION, ("ONIC")

Defendants.

ORDER

This case comes before the Court upon Plaintiff

UNITED STATES OF AMERICA, ex rel GABE

KAIMOWITZ'S Motion for Recusal of Judges and Senior

Magistrate in Orlando Should Venue Change be Ordered (Doc.

No. 51, filed March 6, 1995).

BACKGROUND

On March 25, 1994, Plaintiff filed a Qui Tam action

arising under the False Claims Act, 31 U.S.C.§ 3729-3733.

Plaintiff alleges that the City of Orlando, its planning and

development director, and the Orlando Neighborhood

Improvement Corporation have made false claims in order to

procure Community Bloc Grant Development (sic) funds and

other grants and loans from the U.S. Department of Housing

and Urban Development ( "HUD").

29-a

The instant action was originally filed in the

Jacksonville Division of the U.S. District Court, Middle

District of Florida. It was transferred to the Orlando Division

on February 27, 1995, and was assigned to the undersigned

judge. Plaintiff now seeks recusal of all the Orlando judges

pursuant to 28 U.S.C. § 144.

CONCLUSIONS OF LAW

Section 144 of 28 U.S.C. states:

Whenever a party to any proceeding in a district court

makes and files a timely and sufficient affidavit that

the judge before whom the matter is pending has a

personal bias or prejudice either against him or in favor

of an adverse party, such judge shall proceed no further

therein, but another judge shall be assigned to hear such

proceeding.

The affidavit shall state the facts and the reasons for the

belief that bias or prejudice exists, and shall be filed not

less than ten days before the beginning of the term at

which the proceeding is to be heard, or good cause shall

be shown for failure to file it within such time. A party

may file only one such affidavit in any case. It shall be

accompanied by a certificate of counsel of record

stating that it is made in good faith.

In the instant case, Plaintiff has filed a fifteen page

affidavit accompanied by numerous exhibits. The affidavit

presents the facts upon which Plaintiff bases his belief that all

of the judges in the Orlando Division are biased against him

and against racial minorities; however, the Court will deal only

with those facts that relate to the undersigned judge.

Plaintiffs complaints against the undersigned are

presented on pages 7-9 of his affidavit. Although the affidavit

is less than a model of clarity, Plaintiff appears to base his

30-a

belief that the undersigned judge is biased against him

primarily on her rulings in previous cases. Plaintiff objects to

the undersigned's refusal to recuse herself in three previous

Cases, a f 89-327-CIV-ORL-19:

Vv 89-424-CIV-ORL-19: and Webster v.

Frank, 90-624-CIV-ORL-19. The undersigned did not try any

of those cases. Macon and Harmon were assigned to visiting

judges and Webster settled. However, the undersigned did

grant a post-trial motion for sanctions in the amount of $568

against Plaintiff in the Harmon case. Plaintiff also points to

the fact that the undersigned awarded costs against Plaintiff in

Walker v. Frito-Lay, Inc., 89-522-CIV-ORL-19 as evidence of

bias.

The Court finds that Plaintiffs affidavit is legally

insufficient to support a motion for recusal based on the

undersigned's previous rulings. To be legally sufficient under

§. 144, a motion for recusal "must allege personal bias or

Prejudice caused by an extrajudicial source other than what the

Judge has learned or experienced from his participation in the

case." Sine v. Local No. 992 Int'l Broth -thood of Teamsters

882 F.2d 913, 915 (4th Cir. 1989). The Courts have repeatedly

held that a motion for recusal may not normally be based on a

judge's ruling in the same or another case. Li v. Uni

States, 114 S.Ct. 1147, 1157 (1994)Judicial rulings alone

almost never constitute valid basis for a bias motion): United

States v. MMR Corp., 954 F.2d 1040 (Sth Cir. 1992)(Adverse

rulings in a case are not adequate basis for demanding recusal):

McWhorter v. Ci irmi 904 F.2d 674 (11th Cir.

1990)(Ordinarily, judge's ruling in same or related case may

not serve as a basis for recusal). Therefore, Plaintiffs

allegations relating to the undersigned rulings in prior cases are

legally insufficient to Support a claim under § 144.

In addition to complaints about the undersigned's

rulings in prior cases, Plaintiff alleges that the undersigned is

racially biased. Plaintiff made virtually the same allegations

3l-a

in a motion to disqualify the undersigned in the Webster case.

In its opinion denying Plaintiff's motion, the Court stated:

Plaintiff's allegations that this Judge is biased against

blakcs (sic) as a group are speculative and inconclusive.

The allegations are based on statements of others which

imply discriminatory practices on the part of the

OrangCounty Bar Association, the Florida Bar, and

judges on the federal bench.’ Although this judge has

been associated with each of these groups or

organizations, the allegations do not specify any

discriminatory conduct on her part. Disqualification is

not warranted by rumors or opinions, nor by speculative

assertions that require a series of inferential leaps in

order to arrive at a conclusion that a judge is biased.

See United States v. Haldeman, 559 F.2d 31, 134 (sic)

(D.C. Cir. 1976).

Since Plaintiff has still not specified any discriminatory

conduct on the undersigned's part, but has simply

recycled stale speculation, the Court finds that

Plaintiff's allegations are not legally sufficient to

support a motion for recusal under § 144. Accordingly,

Plaintiffs Motion for Recusal (Doc. No.51) is

DENIED.

DONE AND ORDERED at Orlando, Florida, this /5th

day of March 1995.

Patricia C_E

PATRICIA C. FAWSETT

Copies to: UNITED STATES DISTRICT JUDGE

All Counsel of Record.

ON 3-15 1995

By DJD

Deputy Clerk

32-a

UNPUBLISHED

UNITED STATES DISTRICT COURT FILED

MIDDLE DISTRICT OF FLORIDA 95 MAR 17AM 11:0]

ORLANDO DIVISION CLERK,

U.S. DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO, FLORIDA

UNITED STATES OF AMERICA,

ex rel. GABE KAIMOWITZ, esq.,

Qui Tam,

Plaintiffs,

-VS- CASE NO. 95-204-Civ-ORL-19

ORLANDO, Fla., RICK BERNHARDT,

its planning and development director,

and the ORLANDO NEIGHBORHOOD

IMPROVEMENT CORPORATION, ( "ONIC")

Defendants

ORDER

This case comes before the Court upon the following

matters: (1) Plaintiff UNITED STATES OF AMERICA, ex

rel GABE KAIMOWITZ' Motion for Reconsideration of an

Order of February 27, 1995, Granting Change of Venue (Doc.

No. 50, filed March 6, 1995)...

(4) Plaintiffs Motion for Preliminary Injunction (Doc.

No. 57, filed March 13, 1995); Defendants' Memorandum of

Law in Opposition to Qui Tam Plaintiffs Motion for

Preliminary Injunction (Doc. No. 70, filed March 16, 1995).

The instant action was Originally filed in the

Jacksonville Division of the U.S. District Court, Middle

District of Florida. Defendants sought a change of venue

pursuant to 29 U.S.C. § 1404 arguing that Orlando was the

better venue because Defendants are located in Orlando and

transact the majority of their business there and because all of

33-a

the recipients of the allegedly falsely acquired government

funds are also located there. Plaintiff objected to the change of

venue on the grounds that all of the documents related to the

allegedly falsely acquired funds are located in Jacksonville,

that the judges and jurors living in Orlando would be biased

because the action is against the city, and that "an all or

assuredly predominantly white jury would resolve...to keep the

local black population in its place."

The district court in Jacksonville considered Plaintiff's

arguments but nevertheless determined that Orlando was the

appropriate venue.’ After reviewing the original pleadings

submitted by both parties as well as the pleadings and materials

submitted by Plaintiff in his motion for reconsideration, this

Court finds that Orlando is the better venue for the instant

action.

Accordingly, Plaintiffs Motion for Reconsideration of

an Order of February 27, 1995, Granting Change of Venue

(Doc. No. 50) is DENTED....

Plaintiff seeks to enjoin Defendants from filing any

papers with the Orlando Court until rulings have been entered

on Plaintiffs Motions for Reconsideration of the Transfer of

Venue and for Recusal of the Orlando judges. The Court has

denied both those motions.

Accordingly, Plaintiffs Motion for Preliminary

Injunction (Doc. No. 57) is DENIED AS MOOT.

DONE AND ORDERED at Orlando, Florida, this 16th

day March, 1995. tricia C. it

PATRICIA C. FAWSETT

UNITED STATES DISTRICT JUDGE

1--Although the Order transferring this case to Orlando was entered by Judge

Terrell Hodges of the Jacksonville Division, since the case has been assigned

to the undersigned judge for all purposes, she will rule on the Motion for

Reconsideration.

34-a

UNPUBLISHED

UNITED STATES DISTRICT COURT FILED

MIDDLE DISTRICT OF FLORIDA 95 JUNE 15 PM 4:06

ORLANDO DIVISION CLERK,

U.S. DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO, FLORIDA

UNITED STATES OF AMERICA,

ex rel. GABE KAIMOWITZ, esq.,

Qui Tam,

Plaintiffs,

-VS- CASE NO. 95-204-Civ-ORL-19

ORLANDO, Fla., RICK BERNHARDT,

its planning and development director,

and the ORLANDO NEIGHBORHOOD

IMPROVEMENT CORPORATION, ("ONIC")

Defendants

ORDER

This case comes before the Court on the following

matters: ....(5) Qui Tam Plaintiffs Motion for Rule 1]

Sanctions Against Defendants' counsel (Doc. No. 115, filed

April 13, 1995); Defendant ORLANDO, FLORIDA'S

Response to Qui Tam Plaintiffs Motion for Sanctions Against

Defendants’ Counsel {Doc. No. 128, filed April 19, 1995): and

Defendant ORLANDO NEIGHOBRHOOD'S Response to

Motion for Rule 11 Sanctions Against Defendants’ Counsel

(Doc. No. 129, filed April 24, 1995),

Qui Tam Plaintiff seeks sanctions against counsel for

Defendants for actions Plaintiff alleges that they took to

prevent further consideration of any matters in the instant case

by the Jacksonville Division of this Court prior to its

reassignment to the Orlando Division.

35-a

It appears that to the Court that there was some genuine

confusion attendant to the instant csae's transfer to the Orlando

Division, and that there wsa some delay in filing required

papers due to the uncertainty as to when the case was actually

transferred. However, the Court finds that any delays were

inadvertent and thus sanctions are not appropriate.

Accordingly, Qui Tam Plaintiffs Motion for Rule 11

Sanctions (Doc. No. 115) is DENIED.

DONE AND ORDERED at Orlando, Florida this /5th

day June, 1995.

Patricia C_F,

PATRICIA C. FAWSETT

UNITED STATES DISTRICT JUDGE

Copies to:

All Counsel of Record.

36-a

UNPUBLISHED

UNITED STATES DISTRICT COURT FILED

MIDDLE DISTRICT OF FLORIDA 96 AUG 23 AM 10:36

ORLANDO DIVISION CLERK. US. DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

UNITED STATES OF AMERICA,

ex rel. GABE KAIMOWITZ, Esq.,

Qui Tam,

Plaintiff

V. CASE NO. 95-204-CIV-ORL-19

ORLANDO, FLORIDA; RICK

BERNHARDT, its planning

and development director,

and ORLANDO NEIGHBORHOOD

IMPROVEMENT CORPORATION,

Defendants.

ORDER

Patricia C. Fawsett in Light of Materials Which Have Surfaced

During Discovery (Doc. No. 242, filed February 5, 1996), and

Legal Authority in Support of Renewed Motion for Recusal.

(Doc. No. 243, filed February 5, 1996). Defendants did not

respond.

Qui tam Plaintiff has continually asserted that the

undersigned is racially biased and biased against qui tam

Plaintiff personally. For the second time in this case qui tam

Plaintiff seeks to have the undersigned recuse herself from this

action. Title 28 U.S.C. § 144 states:

Whenever a party to any proceeding in a district court

37-a

makes and files a timely and sufficient affidavit that the

judge before whom the matter 1s pending has persona!

bias or prejudice either against him or in favor of an

adverse party, such judge shall proceed no further

therein, but another judge shall be assigned to hear such

proceeding.

The affidavit shall state the facts and the reaesons for

the belief that bias or prejudice exists, and shall be filed

not less than ten days before the beginning of the term

at which the proceeding is to be heard, or good cause

shall be shown for failure to file it within such time. A

party may file only one such affidavit in any case. It

shall be accompanied by a certificate of counsel of

record stating that it is made in good faith.

Qui tam Plaintiff failed to file an affidavit in support of

his motion as required by the statute. Further, as stated above,

qui tam Plaintiff has already filed a motion for recusal in this

_ case and an affidavit in support thereof, which was denied by

this Court as insufficient. (Doc. No. 71). Under the statute,

qui tam Plaintiff is not permitted to file another affidavit.

Therefore, qui tam Plaintiff's motion for recusal under 28

U.S.C. § 144 is legally insufficient.’

Qui tam Plaintiff also argues that the undersigned must

be recused under 28 U.S.C. §455(b)(1) and claims the

undersigned has knowledge of the following evidentiary facts

which allegedly concern the instant proceedings: (a)

transactions between Cross Roads Mission and the City; (b)

the credibility of her colleague A.Henry Hoche, white

property owner in black Parramore; and(c) the interaction

l--Petitioner’s note: This attorney did not seek relief under this provision

because he was aware that he could only file one affidavit for recusal in this

action.

38-a

between Orlando and the OHA? which has its own related

history of racial discrimination documented by HUD to 1993.

(Doc. No. 243, pg. 7).

Qui tam Plaintiff argues that Henry Hoche, with whom

the undersigned served on the OHA Board, and Mavis Starke,

who was previously a party to an action before the

undersigned, will be witnesses in this case. The fact that the

undersigned has had previous interaction with two of the

expected witnesses in this case does not mandate the

undersigned's recusal. Further, it is questionable what

relevance the OHA has to the instant matter. Thus, the Court

does not find that qui tam Plaintiff has produced sufficient

evidence to require a change in result form qui tam Plaintiff's

previous motion for recusal or that recusal is necessary under

28 U.S.C. § 455. Thus, qui tam Plaintiffs Motion for

Recusal...(Doc. No. 242) is DENIED....

CONCLUSION

Based on the foregoing...Qui Tam Plaintiffs Renewed

Motion for Disqualification....(Doc. No. 241) is DENIED. Qui

tam Plaintiffs Motion for Recusal (Doc. No. 242) is DENIED.

...-DONE AND ORDERED at Orlando, Florida this 21st day

August, 1996.

cael

PATRICIA C. FAWSETT

Copies to: UNITED STATES DISTRICT JUDGE

All counsel of Record, Gabe Kaimowitz

2--Petitioner's Note: The Orlando Housing Authority. Judge Fawsett served

with Mr. Hoche on the OHA five-member board during and immediately

before the U.S. Department of Housing and Urban Development ("HUD")

neighborhood in which the housing was located Judge Fawsett continued

to list her service upon appointment by the Orlando Mayor in her

biographical sketch in Who's Who in America.

39-a

EXCERPTS FROM AN ORLANDO POLICE DEPARTMENT

ARREST REPORT SUBMITTED BY PLAINTIFF WITH HIS

AFFIDAVIT IN SUPPORT OF PRELIMINARY RELIEF

ORLANDO POLICE DEPARTMENT

Information Report Case No. 95-334136

Primary Victim: NONE Dispatch Incident Type:

SUSPCS PER

Unit No. : C83

Date/Time Reported: 10/30/95 15:28 Hrs.

Date: Time Occurred: 10/30/95 15:15 Hrs....

Case Narrative

On 10/30/95 at 1400 hours, L Officer Bradley, was assigned as

Sergeant at Arms for the Orlando City Council meeting. Mr.

Gabe Kaimowitz was called upon by Mayor Hood to speak on

a matter which he filed with the City Clerk. Mr. Kaimowitz

told Mayor Hood that he preferred to speak last. Mayor Hood

insisted he speak immediately and a short verbal exchange

took place between them....

MR. Kaimowitz was placed under arrest at 1518 hours. At

1530 hours, Joe Mittiga came out to the parking lot and

informed me that Mayor Hood would prefer that Mr.

Kaimowitz not be arrested and taken to jail.

I contacted the Watch Commander, Lieutenant Johnny

Redgrave, who responded and authorized the release of Mr.

Kaimowitz. This is an information report. No arrest charges

have been filed at this time.

JR/7727/103 1195/0945 hours/n

PRINCIPALS

Informatni: KAIMOWITZ, GABE, H.Phone: 904-375-2670

No. 1 POBOX 140119

GAINESVILLE, FL 32614

Race; White Sex: Male D.O.B. 5/05/35 Age: 60

40-a

DOCKET ENTRY EXCERPTS FROM THE DISTRICT

COURT IN THE QUI TAM ACTION STARTED IN

JACKSONVILLE TO INDICATE THAT THE LOWER

COURT HAD RULED IN PERTINENT PART ON THE

MERITS WHEN THE APPEALS COURT OPINED ON

SEPT. 15, 1997, THAT THE LOWER COURT HAD NOT

ACTED ON THE QUI TAM CLAIM, AND FURTHER THAT

THE ACTION WAS STARTED UNDER A DIFFERENT

NUMBER IN THE JACKSONVILLE DIVISION OF THE

U.S. DISTRICT COURT FOR THE MIDDLE DISTRICT OF

FLORIDA. OTHER NOTED ENTRIES ALSO PROVIDE

TIME SEQUENCE AND CONTEXT FOR THIS PETITION.

MOTREF APPEAL

DAB

U.S. District Court

Middle District of Florida (Orlando)

CIVIL DOCKET FOR CASE #: 95-CV-204

Kaimowitz et al. v. Orlando, Fla., et al. Filed: 03/25/94

Assigned to Judge Patricia C. Fawsett Nature of Suit:

890

Lead Docket: None

Dkt. # in other court: None

Cause: 32:3729 False Claims Act.

GABE KAIMOWITZ, Esquire, Gabe H. Kaimowitz

Qui Tam {COR LD NTC]

plaintiff Law Office of Gabe

Kaimowitz,

P.O. Box 140119

Gainesville, FL 32614

904/334-4718

4l-a

USA, ex rel _Karen L. Gable

[COR LD NTC]

U.S. Attorney's Office

Middle District of Florida 201 U.S. Courthouse

80 N. Hughey Ave.

Orlando, FL 32801

USA

407/648-7500

Michael F. Hertz

[COR LD NTC}

Stephen J. Gripkey

[COR LD NTC]

U.S. Dept. of Justice

Civil Division

P.O. Box 261

Ben Franklin Station

Washington, DC 20044

USA

202/307-0497

Vv.

ORLANDO, FL Scott A. Glass

{COR LD NTC}

Docket as of August 26, 1997 4:08 pm

I certify the foregoing to be a true and correct copy of

the original, RICHARD D. SLETTEN, Clerk

United States District Court

Middle District of Flonda Page 1

by _RA.

Deputy Clerk

42-a

Proceedings include all events MOTREF

6:95cv204 Kaimowitz, et al. v. Orlando, Fla. et al.

3/24/94 1

3/25/94 —

1/17/95 21

1/17/95 22

1/17/95 23

APPEAL

DAB

QUI TAM COMPLAINT for equitable relief

as well as damages, costs, etc., allowed by the

False Claims Act filed (jef)

MAGISTRATE JUDGE CASE ASSIGNMENT

to Magis. Judge John E. Steele ....

RETURN OF SERVICE executed as to

Orlando Neighborhood 1/9/95 Answer due on

1/30/95 for Orlando Neighborhood (mfk)

74: Page 4

RETURN OF SERVICE executed as to Rick

Bernhardt 1/9/95 Answer due on 1/30/95 for

Rick Bernhardt (mfk)

RETURN OF SERVICE exécuted as to

Orlando, FL 1/9/95 Answer due on 1/30/95 for

Orlando, FL (mfk)....

Docket as of August 26, 1997.4:08pm § Page 5

2/22/95 46

2/27/95 47

2/27/95 —

3/6/95 50

MOTION by Gabe Kaimowitz with

memorandum in support to resolve two

discovery matters requiring immediate attention

referred to Magis. Judge John E. Steele (mfk)....

ORDER granting [26-1] motion to change

venue; granting [28-1] motion to change venue;

transferring case to the Orlando Division:

denying [35-1] motion to strike [34-1] notice:

denying [37-1] to strike [33-1] affidavit (Signed

by Judge Wm. T. Hodges) ctc (slc)

Intradistrict transfer to Orlando to Division

Their Case No.: 95-204-Civ-ORL-19 (slc)....

OTION by Gabe Kaimowitz for

reconsideration of [47-1] order transferring case

43a

3/6/95 51

3/9/95 -

to the Orlando Division (mfk) [Entry date

03/08/95]

MOTION by Gabe Kaimowitz for recusal of

judges and senior magistrate in Orlando should

venue be changed as ordered (mfk) [Entry date

03/08/95]...

Onginal file and docket sheet received from

Jacksonville Division . (Case No. 94-284-CIV

-J-10 (djd) Entry date 03/10/95]

Docket as of August 26, 1997 4:08 p.m. Page 7

3/10/95 —

3/10/95 —

3/16/95 71

Motion(s) referred: [51-1] motion for recusal of

judges and senior magistrate in Orlando should

venue be changed, as ordered referred to Judge

Patricia C. Fawsett, [48-1]...

Motion(s) no longer referred: [51-1] motion for

recusal of judges and senior magistrate in

Orlando should venue be changed as ordered...

ORDER denying plaintiff's [51-1] motion for

recusal of judges and senior magistrate in

Orlando should venue be changed as ordered

(Signed by Judge Patricia C. Fawsett)....

Docket as of August 26, 1997 4:08 pm Page 9

12/27/95 223 MOTION by qui tam plaintiff Gabe Kaimowitz

for preliminary injunction, and for permanent

injunction to bar defendant City from having

him removed during City Council meetings or

subjected to arrest on the basis of

an unconstitutional ordinance. Appendix

attached. (djd) [Entry date 12/28/95]

Docket as of August 26, 1997 4:08 pm Page 26

1/2/96 226 MOTION by qui tam plaintiff Gabe Kaimowitz

to file a first amended [1-1] qui tam complaint

for equitable relief as well as such other

recourse as is permitted by the Federal False

Claims Act....

44-a

1/4/96 227

1/10/96 228

1/16/96 234

1/30/96 238

MEMORANDUM by defendants Orlando, FL,

Rick Bernhardt in opposition to [223-1] motion

for preliminary and permanent injunction

barring removal from City Council meeting...

MOTION by qui tam plaintiff Gabe Kaimowitz

to strike [227-1] opposition memorandum to

motion for preliminary and permanent

injunction barring removal from City Council

meeting...

NOTICE of filing videotape of October 30,

1995 City Council meeting in support of their

memorandum in opposition to motion for

preliminary and permanent injunction and

motion to strike defendants’ memorandum in

opposition by defendants Orlando, FL, Rick

Bemhardt. Videotape filed separately. [djd]....

Page 28

ORDER...Denying plaintiff's [228-1] motion to

strike [227-1] opposition memorandum to

motion for preliminary and permanent

injunction barring removal from City Council

meeting. Denying plaintiff's [226-1] motion to

file a first amended [1-1] qui (sic) complaint for

equitable recourse as well as such other

recourse as is permitted by the Federal False

Claims Act....Denying plaintiffs [223-1] motion

for preliminary injunction, denying [223-2]

motion for permanent injunction to bar

defendant City from having him removed during”

City Council meetings or subjected to arrest on

the basis of an unconstitutional ordinance....

(Signed by Judge Patricia C. Fawsett ) ctc (djd)....

45-a

2/5/96 242 RENEWED MOTION by qui tam plaintiff for

recusal of the Hon. Patricia C. Fawsett in light

of materials which have surfaced during

discovery (djd)....

Docket as of August 26, 1997 4:08 pm Page 29

2/27/96 259 NOTICE OF INTERLOCUTORY APPEAL of

[238-1] order by qui tam plaintiff Gabe

Kaimowitz....

Docket as of August 26, 1997 4:08 pm Page 31

3/15/96 -- NOTICE assigning 11th Circuit case number

43: [260-1] USCA NUMBER: 96-2307 (djd)

Docket as of August 26, 1997_4:08 pm Page 32

8/23/96 342 ORDER...Denying plaintiff's [242-1] motion

for recusal of the Hon. Patricia C. Fawsett in

light of materials which have surfaced during

discovery....(Signed by Judge Patricia C.

Fawsett on 8/21/96 0 ctc (djd)

8/23/96 343 CASE MANAGEMENT AND SCHEDULING

ORDER.....Jury trial set for 12/2/96 Scheduled

for Judge Patricia C. Fawsett (signed by Judge

Patricia C. Fawsett ) ctc (djd)

Docket as of August 26, 1997 4:08 pm Page 40

10/28/96 -— Transmitted record on appeal to USCA [260-1]

appeal (Transmittal includes: 12 Vol.

Pleadings; ) (rdo)

Docket as of August 26, 1997 4:08 pm Page 43

11/20/96 -- **SETINTERLOCUTORY APPEAL flag. (djd)

11/21/96 - Record on appeal returned from USCA: (13 Vol.

Pleadings, 1 Vol. Exhibits)(rdo)

Docket as of August 26, 1997 4:08 pm Page 48

11/26/96 442 ORDER denying [390-1] motion for a Judge

outside the Orlando Division to hear this

proceeding; granting [367-1] motion for

summary judgment in its favor; and, granting

[356-1] motion for summary judgment; based

46-a

on this Order, it is unnecessary for this Court to

consider qui tam Plaintiffs six Motions for

Pretrial Summary Judgment or any other

motions pending in this case; the Clerk is

ordered to enter judgment in favor of

Defendants on all claims and to close this case

(Signed by Judge Patricia C. Fawsett 11/25/96)

ctc MFR Number 92/04 (gjs).

11/26/96 443 JUDGMENT for Orlando, FL, Rick Bernhardt

and Orlando Neighborhood against Gabe

Kaimowitz, USA; it is ordered and adjudged

that the Qui Tam Plaintiff take nothing, that the

action be dismissed on the merits, and that the

Defendants, Orlando, FL, Rick Bernhardt and

the Orlando Neighborhood Improvement

Corporation, recover of the Plaintiff their costs

of action; Civil Appeals Checklist Mailed

(entered by G. Schafer) MFR Number 92/0460

(gjs)

11/26/96 -- CASE CLOSED. (gjs)

12/6/96 444 MOTION by qui tam plaintiff Gabe Kaimowitz

of [443-1] judgment order...

t 74: Page 49

2/14/97 478 ORDER denying [444-1] motion for

reconsideration of [443-1] judgment

order....(Signed by Judge Patricia C. Fawsett)

(rdo) Entry date 02/18/97

3/13/97 493 NOTICE OF APPEAL of [478-1] order by Gabe

Kaimowitz.....

Docket as of August 26, 1997 4:08 pm Page 54

47-a

DOCKET ENTRY EXCERPTS FROM THE DISTRICT

COURT IN THE ACTION BY PETITIONER TO

INTERVENE IN NOYES v. CITY OF ORLANDO, ET AL.,

TO SHOW ESPECIALLY LACK OF PARTICIPATION BY

DEFENDANTS AND STRIKING OF DOCUMENTS

APPEAL JGG

U.S. District Court

Middle District of Florida (Orlando)

CIVIL DOCKET FOR CASE #: 97-CV-254

Kaimowitz et al. v. Orlando, Fla., et al. Filed: 03/17/97

Assigned to Judge Patricia C. Fawsett Jury Demand: Plaintiff

Lead Docket: None Jurisdiction: Federal Question

Dkt. # in other court: None

Cause: 42:1983 Civil Rights Act

HAL NOYES, William J. Sheaffer

plaintiff [COR LD NTC]

William J. Sheaffer, P.A.

609 E. Central Blvd.

Orlando, FL 32801

USA

407/423-1066

Steven Gerald Mason

[COR LD NTC]

Law Office of Steven Mason

609 E. Central Blvd.

Orlando, FL 32801

V. 407/649-1063

CITY OF ORLANDO, a State of

Florida municipality,

defendant

DANIEL NESSIM, individually,

defendant

48-a

GABE KAIMOWITZ Gabe Kaimowitz

movant [COR LD NTC] [PRO SE]

Law Office of Gabe Kaimowitz

P.O. Box 140119

Gainesville, FL 32614

(904) 334-4718

I certify the foregoing to be a true and correct copy of the original.

RICHARD D. SLETTEN, Clerk United States District Court.

Middle District of Florida Docket as of October 10, 1997 3:33 pm

By: RCL

Deputy Clerk Page |

Proceedings include all events

6:97CV254 Noves v. City of Orlando, et al APPEAL

JGG Beg Vol 1

3/17/97 ] COMPLAINT filed. Action alleging

violation of civil rights. (Jury Demand)

(nbl).

3/17/97 -- FILING FEE PAID. Filing Fee $ 150.00

Receipt #64699 (nbl)

3/17/97 _- MAGISTRATE JUDGE CASE

ASSIGNMENT. Magistrate assigned:

James G. Glazebrook (nbl)

3/17/97 2 CERTIFICATE OF COMPLIANCE by

Hal Noyes with Local Rule 1.04(c). No

related cases. (nbl)

3/17/97 -- SUMMONCES) issued for City Orlando,

Daniel Nessim. Consent(s) issued. (nbl)

3/28/97 3 MOTION to intervene as a plaintiff by

Gabe Kaimowitz re: [3-1] and seek

certification of a class action. (maa)

3/28/97 3 ...and REQUEST for oral argument by

Gabe Kaimowitz re: [3-1] motion to

intervene as a plaintiff by Gabe

Kaimowitz [3-2]....

49-a

3/28/97

3/31/97

3/31/97

4/3/97

4/ 1 0/97

4/14/97

4/17/97

10

CLAIM of party seeking to intervene as

a plaintiff and pursue certification of

class action by Gabe Kaimowitz (in

support of [3-1] motion to intervene as

a plaintiff by Gabe Kaimowitz, [3-2]

motion seek certification of a class

action]. (STRICKEN BY ORDER #9)

(maa) (Edit date 04/15/97])

RETURN OF SERVICE executed as to

Daniel Nessim 3/18/97. Answer due on

4/7/97 for Daniel Nessim. (nrs)

RETURN OF SERVICE executed as

to City of Orlando 3/17/97. Answer

due on 4/7/97 for City of Orlando (nrs).

NOTICE of designation under Local

Rule 3.05-TRACK 2 (ctc) (nrs) [Entry

date 04/04/97]

RESPONSE by Hal Noyes to [3-1]

motion to intervene as a plaintiff by

Gabe Kaimowitz, [3-2] motion seek

certification of a class action. (nrs)

[Entry date 04/11/97]

ORDER denying [3-1] oral argument

requested; [3-1] motion to intervene as

a plaintiff by Gabe Kaimowitz; [3-2]

motion seek certification of a class

action; striking [4-1] support memo....

(Signed by Judge Anne C. Conway.) ctc

(nrs) [Entry date 04/15/97]

MOTION by Gabe Kaimowitz for

disqualification of attorney William J.

Sheaffer. STRICKEN by Order #13....

Docket as of October 10, 1997_3:33 p.m. Page 2

Proceedings include all events.

{Entry date 04/18/97] [Edit date 04/21/97]

6:97cv254

50-a

4/17/97

4/17/97

4/21/97

5/2/97

5/6/97

5/6/97

5/6/97

6/2/97

ket

14

15

MOTION by Gabe Kaimowitz for

disqualification of Jude Anne Conway

(STRICKEN BY ORDER #13) (nrs?

[Entry date 04/18/97] {Edit date

04/21/97]

MEMORANDUM by Gabe Kaimowitz

in support of [11-1] motion for

disqualification of Judge Anne Conway

[10-1] motion for disqualification of

attorney William J. Sheaffer.

(STRICKEN [Edit date 04/21/97}

ORDER - striking [12-1] support

memorandum, [11-1] motion for

disqualification of Judge Anne Conway

and [10-1] motion for disqualification of

attorney William J.Sheaffer. The Clerk

Shall return the documents to Mr.

Kaimowitz . (Signed by Judge Anne C.

Conway.) ctc (nrs)

NOTICE of voluntary dismissal

with prejudice by Hal Noyes. (maa)

ENDORSED ORDER grantng [14-1]

dismissal with prejudice. (Signed by

Judge Anne C Conway) ctc (maa)

CASE CLOSED. (maa)

NOTICE OF APPEAL of [0-0] endorsed

order by Gabe Kaimowitz Appeal

Information Sheet Sent to Appellant.

Fee Status: pd. End Vol. ] (red) [Entry

date 05/07/97

NOTICE assigning 11th Circuit case

number re: [15-1] appeal. USCA

NUMBER: 97-2600 (rdo)

f October 10, 1997 3:33 P.M. Page 3

Sl-a

UNDPUBLISHED--IN ReCORD EXCERPTS BELOW

UNITED STATES DISTRICT COURT

FILED

MIDDLE DISTRICT OF FLORIDA 93 SEP 27:AM1 1:46

ORLANDO DIVISION CLERK, U.S. DISTRICT

COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

GREATER WASHINGTON SHORES

HOMEOWNERS ASSOCIATION,

et al.,

Plaintiffs.

VS. CASE NO. 88-962-CIV-ORL-22

CITY OF ORLANDO,

Defendants.

ORDER

As a result of Plaintiffs’ counsel's comments and the

position asserted by him at the hearing before this Court on

September 27, 1993, I have determined that my impartiality

toward Plaintiffs’ counsel might reasonably be questioned if I

were to continue presiding over this case. Accordingly, |

hereby recuse myself pursuant to 28 U.S.C. § 455.

DONE AND ORDERED in Chambers in Orlando,

Florida, this 27th day of September, 1993.

Anne C. Conway

ANNE C. CONWAY

United States District Judge

Copies to: Counsel of Record

Magistrate Judge Donald P. Dietrich

52-a

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543-0001

William K. SuterAREA CODE 202

Clerk of the Court479-3011

March 25, 1998

Johnie A. McLeod

McLeod, McLeod & McLeod

P.O.Box (950), 48 E. Main Street

Apopka, FL 32704

RE: Gabe Kaimowitz v. Orlando, Flonda

Dear Mr. McLeod:

The motion "for consolidation of actions in petition for

certiorari" received March 24, 1998 is herewith returned.

Pursuant to Rule 12.4 of the Rules of this Court, a single

petition for a writ of certiorari covering all judgments may be

filed when the judgments sought to be reviewed are from the

same court and involve identical or closely related questions.

Sincerely,

William K. Suter, Clerk

By: Christopher W. Vasil

Christopher W. Vasil

(202) 479-3027

Enclosures

cc: Jeffrey G. Slater

Bill Goodman

Paul Donnelly

53-a

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543

February 13, 1998

Re: Gabe Kaimowitz

v. Orlando, Florida, et al.,

Application No. A-590

Dear Mr. Kaimowitz:

The application for an extension of time within which

to file a petition for a writ of certioran in the above-entitled

case has been presented to Justice Kennedy, who on Feb. 13,

1998, extended the time to and including March 17, 1998.

This letter has been sent to those designated on the

attached notification list.

Sincerely,

WILLIAM K. SUTER, Clerk

By Gail B. Johnson

Gail B. Johnson

Assistant Clerk

54-a

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543

March 10, 1998

Re: Gabe Kaimowitz

v. Orlando, Florida, et al.,

Application No. A-590

Dear Mr. Kaimowlitz:

The application for a further extension of time within

which to file a petition for a writ of certiorari in the above-

entitled case has been presented to Justice Kennedy, who on

March 10, 1998, extended the time to and including Apnl

10, 1998.

This letter has been sent to those designated on the

attached notification list

Sincerely,

WILLIAM K. SUTER, Clerk

By Gail B. Johnson

Gail B. Johnson

Assistant Clerk