# Appendix — Kaimowitz v. City of Orlando

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1373%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1138

## Text

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.

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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

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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’

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1373%3A2. Public record. Not legal advice.