Category: Memorandum of law in support of motion to dismiss florida

Memorandum of law in support of motion to dismiss florida

This docket was last retrieved on January 6, These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia. Why Is My Information Online? Subscribe to Justia's Free Newsletters featuring summaries of federal and state court opinions. Adler et al. RSS Track this Docket. Subscribe Now.

Justia Legal Resources. Find a Lawyer. Law Students. US Federal Law. US State Law. Other Databases. Legal Marketing. Perry, Daniel. Attachments: 1 Exhibit A Barlow, Mahlon. Upshaw, Anthony. Ryan to appear pro hac vice. Attorneys Stephen M.

Memorandum in Support of Motion For Default Final Judgment

Upshaw designated as local counsel pursuant to Local Rule 2. Within twenty-one 21 days of the date of this Order, counsel shall comply with the fee and electronic filing requirements and file a notice of compliance with said requirements. Signed by Magistrate Judge Anthony E. Barlow, Mahlon. Related case s : No Perry, Daniel. New case number: cvTAEP.Federal government websites often end in.

The site is secure. The United States currently is conducting a civil investigation into possible illegal activity, including a group boycott, with respect to the sale and distribution of scuba diving equipment to consumers. As a consequence of that investigation, the United States determined that defendant, Scuba Retailers Association, Inc.

memorandum of law in support of motion to dismiss florida

The Complaint alleges, in two counts, certain anticompetitive practices by defendant in violation of Section 1 of the Sherman Act. On the same day the United States filed its Complaint, the Court issued a Summons in a Civil Action which, in part, notified defendant that it must, within twenty days after service of the Summons, file with the Clerk of Court, and serve upon the attorney for the United States, an Answer to the Complaint.

Defendant, through its Executive Director, James R. Estabrook, received service of the Complaint and Summons on February 13, Estabrook at his place of business in Somerville, Massachusetts. Following the filing of the Complaint by the United States, Mr. Estabrook made statements in the press to the effect that defendant might not defend the action because it could not afford to do so.

By the expiration of the twenty-day period specified on the Summons, the defendant had not filed an Answer to the Complaint with the Clerk of this Court, nor had it served a copy of the Answer upon the United States. To date, the defendant has not responded to the Complaint, nor otherwise appeared in this action.

On March 8,the United States notified Mr. Estabrook by certified mail that it intended to petition the court for a judgment by default. The United States received no response from Mr. Estabrook, nor any other agent or representative of defendant, to this letter.

Rule 12 a 1 A of the Federal Rules of Civil Procedure provides that a defendant shall serve its answer to a complaint within twenty days of service of the latter. As noted above, the Complaint in this case was filed on January 30,and personally served upon the defendant, through its Executive Director, on February 13, The Summons, issued by the Court on January 30 and served upon the defendant together with the Complaint, notified the defendant of its obligation to file an answer with the Clerk of Court, and to serve a copy of the Answer upon the United States, within twenty days from the date of service.

As of March 5, defendant had not filed an answer with the Clerk, had not served an answer upon the United States, had made no entry of appearance in this matter, and had not otherwise responded to the civil action instituted against it by the United States. To this date, defendant has undertaken no defense in this matter. The United States recognizes that entry of a default judgment against a defendant is a severe remedy. Seee. MoffattF. Where, as here, however, a party does not respond to a properly served Complaint and ignores a duly issued and properly served Summons of a Court, a default judgment, though drastic, is the appropriate and, indeed, only recourse.

See In re KnightF. CookF. The United States would prefer that this case be decided upon its merits and has every confidence it would prevail at a trial. Since the defendant does not appear disposed to defend this action, however, this Court has as the only avenue available to conclude this matter, the entry of a default judgment against defendant.

When the Court determines that a defendant is in default, the factual allegations of the complaint are taken as true, and this rule applies whether the complaint seeks legal or, as in this case, equitable relief. Trade Comm'n v. Kitco of Nevada, Inc. For the benefit of this Court in determining the remedy to apply in this case, should the Court agree to enter a judgment by default against defendant, the United States offers the following summary of what it expects its evidence would have shown at a trial of this matter.

An estimated three million Americans participate in the recreational sport of scuba diving. The scuba diving industry essentially is unregulated in the United States, with the exception of United States Department of Transportation regulations regarding scuba tanks or cylinders.Facebook Google Twitter. Password Hide. Remember me. I agree to the Terms. Lost your password? Please enter your email address. You will receive a link to create a new password.

memorandum of law in support of motion to dismiss florida

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memorandum of law in support of motion to dismiss florida

This is an action for foreclosure of residential real property owned by the Defendants. The Plaintiff initiated this action when it filed its complaint on or about July 13, The facts surrounding each defect are explained in detail below.

Dismissal of of its Complaint Complaint is therefore therefore warranted. See SunTrust Mortgage v. Fullerton, 16 Fla. Weekly Supp. Due to the claim for relief, the Plaintiff must be both the owner and holder of the subject mortgage. See e. Verizzo v. Bank of N. Here, Plaintiff has specifically pled that someone other than itself is the owner of the note and mortgage. As an addition to, or in the alternative of, Defect II, the Complaint should be dismissed because the subject note is non-negotiable and therefore Plaintiff cannot seek recourse pursuant to Fla.

The instruction that the borrower pay a late charge if the lender has not received payment by the end of fifteen calendar days after the date payment is due in clause 7 A ; b. The instruction that the lender will deliver or mail to the borrower any changes in the interest rate and monthly payments in clause 4 H ; c. The obligation that the borrower to tell the lender, in writing, if borrower opts to may prepay in clause 5; d.

The instruction that the lender send any notices that must be given to the borrower pursuant to the terms of the subject note by either delivering it or mailing it by first class mail in clause 8; and f. The instruction that the borrower send any notices that must be given to the lender pursuant to the terms of the subject note by either delivering it or mailing it by first class mail in clause 8.Pursuant to Rules 3.

Writing a Legal Memorandum for the CP:CLA with Leanne the Lawyer

On September 25, the client was cited for an alleged violation of right of way to pedestrian, after a bicyclist, W. Attached are photographs of the area in which the accident occurred.

Nine photographs are contained in Composite Exhibit D, and depict the following views: a. The client was driving east on K. At the end of K. The client was attempting to turn right east on the side road. As can be seen from the photographs, where the stop sign is located, and where the white lines are located which are also used as a crosswalkare substantially set back from the intersection, such that any driver cannot see who is coming along the sidewalk from the south heading north on the side roadbecause there is a fence causing substantial obstruction.

The client stopped at the stop sign at the crosswalklooked left, right and then left again. However, in order to see any oncoming traffic coming on the side road, he had to let off the brake, and move closer toward the side road. It was at that time the client felt an impact on his vehicle. The client was not accelerating at the time, as he had just let off of his brake to coast up to the intersection.

The bicyclist had a scratch on his hand, but his bicycle was damaged. First responders were called, and the Mr. As a precaution, Mr. No property damage; b. No injury to another; c. No seriously bodily injury to another; d. The crash was not fatal. This was an accident that occurred due to an obstructed view of vehicles, bicycles or pedestrians coming from the right, on the side road or the adjacent sidewalkcombined with a bicyclist improperly riding on a sidewalk, on the wrong side of the street, who failed to travel in the marked bicycle lane, and who did not stop at a crosswalk to cross the street.

More to the point, the citation here is invalid, regardless of the correct view of the cause of this accident, as will be demonstrated below, in the Memorandum of Law. By his attestation to this motion below, the client confirms that the Officer A. It is undisputed this is not a properly designed intersection, and certainly not for bicyclists who are on the sidewalk, and who fail to stop at that intersection. As can be seen from the portions of the statute underlined in paragraph 13 above, the statute contains the following six 6 elements: a.

As can be seen by the photographs, the intersection here had only a stop sign. That is not a traffic control signal. Traffic control signal signals are defined in F. Stop The driver shall stop before entering the crosswalk. As demonstrated herein, and as confirmed by the attached Affidavit, the client properly stopped before entering the crosswalk, and thus proof of this element must fail.

Indeed, the citing officer actually invited the client to challenge the citation, since the way the stop sign, crosswalk and fence are set up, the driver on K. Pedestrian is in crosswalk As noted, not only was Mr.

R not a pedestrian, but he was not in the crosswalk. Instead, he drove his bicycle from the sidewalk, into the crosswalk, after the client was already positioned, in the roadway, prepared to make a turn.Section Officer T.

Whren v. Terry v. OhioU. To justify a warrantless stop an officer must have an articulable, reasonable suspicion that a violation of the law has occurred.

Brown v. StateSo.

Memo Of Law In Support Of Motion To Dismiss Or In The Alternative For A Bill Of Particulars

In the instant case, the stop of the Client was not justified, and the evidence obtained as a result of the stop should be suppressed. The odor of alcohol alone does not provide reasonable cause that a person is driving under the influence. Kliphouse v. The odor of alcohol does not provide reasonable suspicion for the officer to initiate a DUI investigation.

Buttner v. State2 Fla. Weekly Supp. Palm Beach Cty. Therefore, the detention of the Client for a DUI investigation was illegal, and the results of that detention should be suppressed. Furthermore, because the officer did not have a reasonable suspicion of criminal activity, the Client should not have been detained for longer than was necessary for the officers to issue the traffic citations.

A traffic stop must last no longer than the time it takes to write the traffic citation.

Support Dismiss

See Cresswell v. In order to justify a longer detention, an officer must have a reasonable suspicion of criminal activity. Because the officer did not have a reasonable suspicion of criminal activity, the continued detention of the Client for a DUI investigation was unlawful. Based on the cases cited above, the officer should not have detained the defendant longer than was necessary to write a traffic citation, because he did not have a reasonable suspicion of criminal activity.

All warrantless seizures are presumptively unreasonable, and invalid. See Katz v. United States, U. Thus, where a subject is seized without a warrant, the burden rests upon the state to produce evidence that the detaining officer had probable cause to arrest.

A law enforcement officer may arrest a person without a warrant, either immediately or in fresh pursuit, when there is probable cause to believe that a violation of chapter has been committed. In the absence of probable cause, the arrest was unlawful, and any evidence recovered thereafter must be suppressed. Furthermore, her behavior on the video, including her actions of walking, talking, and speaking all appeared normal, and without signs of impairment.All forms provided by U.

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memorandum of law in support of motion to dismiss florida

Instant Download. Buy now. Description A motion is a written request to the court to take a certain action. The court will either grant or deny the motion in accordance with law and court rules.

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