Defendants dismas charties, inc., ana gispert, derek thomas and lashanda adam’s reply brief in support of defendants’ motion to dismiss the complaint
Case 1:11-cv-20120-PAS Document 39 Entered on FLSD Docket 06/02/2011 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CASE NO.: 11-20120-CIV-SEITZ/SIMONTON TRAIAN BUJDUVEANU, Plaintiff, vs. DISMAS CHARITIES, INC., ANA GISPERT, DEREK THOMAS and LASHANDA ADAMS Defendants. _________________________________________/ DEFENDANTS DISMAS CHARTIES, INC., ANA GISPERT, DEREK THOMAS AND LASHANDA ADAM’S REPLY BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT Defendants Dismas Charities, Inc., Ana Gispert, Derek Thomas and LaShanda Adams, incorrectly identified as Adams Leshota (collectively “Defendants”) by and through their undersigned counsel, file their Reply Brief in support of Defendants’ Motion to Dismiss the Complaint and states as follows: 1. Plaintiff Traian Bujudveanu (“Plaintiff”) filed a Complaint against the Defendants. (Docket number 14) In response to the Complaint, the Defendants timely filed a Motion to Dismiss the Complaint (Docket number 26). 2. The Complaint contained 50 paragraphs of “factual allegations” filed by a laundry list of four alleged Federal Theories of Recovery and six alleged state law theories of recovery. 3. Defendants move to dismiss the Complaint because it failed to allege the specific facts and allegations necessary for any cause of action.
Case 1:11-cv-20120-PAS Document 39 Entered on FLSD Docket 06/02/2011 Page 2 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON 4. Rather than filing a Response Brief to Defendants’ Motion the Complaint, Plaintiff initially filed an eight page Motion to Strike Defendants’ Motion to Dismiss the Plaintiff’s Complaint. (Docket Number 33) However, Plaintiff’s eight page Motion to Strike failed to contain any legal argument or explanation as to why Defendants’ Motion to Dismiss should be stricken. The Plaintiff’s Motion also failed to make any legal or factual argument in response or opposition to Defendants’ Motion to Dismiss. 5. Instead of offering any argument or evidence countering the Defendants’ Motion to Dismiss, the Plaintiff’s Motion contains seven pages (pages 2-8 of the Plaintiff’s Motion) restating the factual allegations contained in the Complaint. For example, page eight of Plaintiff’s Motion concludes with irrelevant statements regarding an alleged illegal search and seizure of Plaintiff’s property in violation of his Fourth Amendment Rights. However, the Court in its Order issued March 30, 2011 (Docket number 18) stated that “the plaintiff’s claim of an unlawful search and seizure of his vehicle lacks merit. The defendants are private parties, and therefore, their actions do not trigger the constitutional implications of the Fourth Amendment.” 6. On May 26, 2011, the Court issued an Order (Docket number 36) which stated that: ENDORSED ORDER regarding  Plaintiffs Motion to Strike Defendants Motion to Dismiss. Plaintiffs Motion to Strike shall be treated as Plaintiffs Response to  Defendants Motion to Dismiss. If Plaintiff wishes to supplement his Response in light of this Order, he shall do so on or before Monday, June 6, 2011. Any reply of Defendants shall be due on or before Thursday, June 16, 2011. Signed by Magistrate Judge Andrea M. Simonton on 5/26/2011. (mmn) 1:11-cv-20120-PAS 7. On May 26, 2011, Plaintiff filed his Supplement Response to Defendant’s Motion to Dismiss in Light of the Courts’ Endorsed Order. (Docket number 38). Plaintiff’s 2
Case 1:11-cv-20120-PAS Document 39 Entered on FLSD Docket 06/02/2011 Page 3 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON Supplemental Response also fails to properly address the legal and factual issues raised in Defendants’ Motion to Dismiss. 8. Similar to Plaintiff’s Motion to Strike, Plaintiff’s Supplemental Response simply restates the Complaint. For example, in paragraphs 5 through 11 of the Supplemental Response, Plaintiff discusses the confiscation of a cell phone found in a car the Plaintiff was driving. While Plaintiff claims the cell phone was never found in his possession, the incident report from the Federal Bureau of Prisons, attached as Exhibit 2 to the Supplemental Response, states that a cell phone registered in his name was found in his car. The Plaintiff contends that the confiscation of a cell phone found in car he was driving constitutes a “Hate Crime” which fails to rebut any argument made in Defendants’ Motion to Dismiss the Complaint. 9. In the second and third pages of Plaintiffs’ Supplemental Response, the Plaintiff included a string cite to various Federal cases and Federal Rule of Civil Procedure 12(b)(6). However, these legal citations support Defendants’ Motion to Dismiss. 10. The Plaintiff states on page 2 of his Supplemental Response that “motions to dismiss for failure to state a cause of action are appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim.” In the Motion to Dismiss the Complaint, the Defendants provide amble citations of law and fact to demonstrate Plaintiff’s Complaint fails to state any legally cognizable claim under Federal or State law. 11. For the reasons stated forth above, Defendants have carried their burden of proof and the Plaintiff has failed to properly rebut the Motion to Dismiss. Therefore, Defendants’ Motion to Dismiss must be granted. 3
Case 1:11-cv-20120-PAS Document 39 Entered on FLSD Docket 06/02/2011 Page 4 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON WHEREFORE, Defendants Dismas Charities, Inc., Ana Gispert, Derek Thomas and LaShanda Adams respectfully request that the Court grant their Motion to Dismiss the Complaint and award any further relief the Court deems just and proper. EISINGER, BROWN, LEWIS, FRANKEL, & CHAIET, P.A. Attorneys for Defendants 4000 Hollywood Boulevard Suite 265-South Hollywood, FL 33021 (954) 894-8000 (954) 894-8015 Fax BY: /S/ David S. Chaiet____________ DAVID S. CHAIET, ESQUIRE FBN: 963798 4
Case 1:11-cv-20120-PAS Document 39 Entered on FLSD Docket 06/02/2011 Page 5 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 2nd day of June, 2011, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are authorized to receive electronically Notices of Electronic Filing. __/s/ David S. Chaiet_______________ DAVID S. CHAIET, ESQUIRE Florida Bar No. 963798 5
Case 1:11-cv-20120-PAS Document 39 Entered on FLSD Docket 06/02/2011 Page 6 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON SERVICE LIST Traian Bujduveanu v. Dismas Charities, Inc., et al. Case No..: 11-20120-CIV-SEITZ/SIMONTON United States District Court, Southern District of Florida Traian Bujduveanu Pro Se Plaintiff 5601 W. Broward Blvd. Plantation, FL 33317 Tel: (954) 316-3828 Email: firstname.lastname@example.org 6