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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
| AMERICAN CHARITIES FOR REASONABLE FUNDRAISING REGULATION, INC., et. al., |
|
| v. | Case No. 97-2058 CIV-T-17 Judge Elizabeth A. Kovachevich |
| PINELLAS COUNTY, et. al., |
PLAINTIFFS’ MOTION FOR LEAVE TO FILE MEMORANDUM IN
RESPONSE TO DEFENDANTS’ SECOND NOTICE OF ADOPTION
COME NOW the Plaintiffs, by and through their undersigned counsel, and file this Motion for Leave to file a Supplemental Memorandum of Law, pursuant to Rule 15(d) of the Federal Rules of Civil Procedure, in response to Defendants’ last filing entitled “Defendants’ Response to the Plaintiffs’ Opposition to the Defendants’ Notice of Adoption.”
As the Defendants’ pointed out in their prior Motion for Leave to file a Supplemental Memorandum of Law, a Court may permit a party to serve supplemental pleadings pursuant to Rule 15(d). Although neither the Notices of Adoption nor the Oppositions to same constitute pleadings under Rule 15(d), the Plaintiffs respectfully request that this Court permit the Plaintiffs to file a Supplemental Memorandum to respond to the Defendants’ Second Notice of Adoption, just as this Court permitted the Defendants to file a similar Memorandum in Opposition to the Plaintiffs’ Notice of Adoption.
A review of the procedural posture of this case reveals that it would be in the interests of justice to grant the Plaintiffs instant request. According to this Court’s Scheduling Order, all parties filed Motions for Summary Judgment on June 10, 1998. The Defendants’ Motion included a “Notice of Adoption” of certain materials from the pending case of American Target Advertising v. Giani, Case No. 2:97-cv-610 D.Utah 1997). Although the Scheduling Order made no mention of Opposition papers, the parties filed Memoranda opposing each other’s Motions Summary Judgment on or about June 24, 1998. The Plaintiffs’ filing consisted of two documents: (1) Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment, and (2) an Opposition to the Defendants’ Notice of Adoption, which included a Notice of Adoption by the Plaintiffs of certain documents in the American Target case which rebut the Defendants’ documents from that same case. In response to the Plaintiffs’ filing, the Defendants then sought and received on July 9, 1998 further permission from this Court to make additional filings from the American Target case as well as to file a Supplemental Memorandum of Law. As a result of the Defendants’ insistence on putting before this Court all papers filed in the American Target case (which it should be noted is still pending in all respects with the District Court in Utah), the Plaintiffs respectfully request that this Court grant them permission to file the attached Supplemental Memorandum which illustrates how the Defendants’ own filings and Adoptions render moot their own Motion for Summary Judgment currently pending before this Court.
WHEREFORE, the Plaintiffs respectfully request that this Court grant them leave to file the attached Supplemental Memorandum of Law in response to the Defendants’ Second Notice of Adoption served on the Plaintiffs on or about June 30, 1998 and approved by this Court for filing on July 9, 1998.
Dated: July 22, 1998
Respectfully submitted,
| Geoffrey W. Peters, Esq. Geoffrey W. Peters, P.C. 9024 Trailridge Court Vienna, VA 22182 (703) 356-8703 |
Clifford Perlman Perlman & Perlman 220 Fifth Avenue, 7th Floor New York, New York 10001 (212) 889-0575 |
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
| AMERICAN CHARITIES FOR REASONABLE FUNDRAISING REGULATION, INC., et. al., |
|
| v. | Case No. 97-2058 CIV-T-17 Judge Elizabeth A. Kovachevich |
| PINELLAS COUNTY, et. al., |
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANTS’ SECOND NOTICE OF ADOPTION
Come now the Plaintiffs, by and through their undersigned counsel, and file this Memorandum of Law in Opposition to the Defendants’ First and Second Notices of Adoption filed with this Court on June 10, 1998 and June 30, 1998, respectively.
The Defendants’ assert in their Memorandum in Response to Plaintiffs’ Opposition to Defendants’ Notice of Adoption that
“[t]he Amicus Brief filed in American Target Advertising v. Giani, Case No. 2:97-cv-610 D.Utah 1997) was not adopted for the law which it accurately cites, but for the extensive factual examination of the charitable solicitations industry.”
Defendants’ Memorandum at page 1 (emphasis added). However, the Defendants’ have made no showing that said factual examination contains undisputed facts. Indeed, as was pointed out in the Plaintiffs’ opposition to the Defendants’ adoption of that Memorandum, the Amicus Brief adopted by the Defendants is currently subject to a Motion to Strike pending before the Utah court on the grounds that, inter alia, the factual matters presented therein are not accurate and are so deceptive as to constitute evidence that the regulators who signed that brief (including Pinellas County) should not be trusted to regulate speech. Accordingly, the Defendants’ Adoption of said Amicus Brief renders the Defendants’ Motion for Summary Judgment in the instant case moot, as the Defendants have asked this Court to consider substantive facts which are disputed by the Plaintiffs.
That factual dispute is not limited to the papers filed in the American Target Advertising case. The State of Utah has argued that American Target Advertising’s role in its clients’ mailings is a substantially active one and that American Target Advertising’s clients role is a more passive one. In contrast, the Pinellas County Ordinance attempts to enforce registration requirements against even a charity’s most passive fundraising consultants, those who “[do] not manage, conduct, or carry on any fundraising activity, or solicit contributions, or employ, procure, or engage any compensated person to solicit contributions and who [do] not at any time have custody or control over contributions.” See Paragraphs 18 and 25 of the Defendants’ Answers.
To cite just one concrete example, Plaintiff LEAHY has alleged that his expertise is merely in providing “copy” for charitable fundraising letters, but that the Defendants’ demand that he register with Pinellas County even for such a limited and passive role. See the Paragraphs 39- 43 and 101 of the Plaintiffs’ Complaint. The Defendants’ admit that they will prosecute LEAHY for violating the Ordinance if he fails to register, even though his role is completely passive. See Defendants’ Answers at Paragraph 101. This makes the issues before the Court in the American Target Advertising v. Giani case factually distinguishable from the Plaintiffs’ instant challenge. The Pinellas County Ordinance by its own terms reaches conduct which is far more passive than that which the State of Utah purports to regulate.
Whether or not there is a need factually for regulation of an industry, a factual question which the Plaintiffs dispute, is an entirely separate matter from the legal question of whether such regulation is constitutional. As has been pointed out amply by the Plaintiffs in this case, the regulatory scheme chosen by Pinellas County simply does not comport with constitutional requirements as a legal matter.
The Plaintiffs’ Motion for Summary Judgment now pending before this Court can and should be granted based on the undisputed facts contained within the materials previously filed with this Court. However, the Defendants’ Motion for Summary Judgment and its adopted materials from the American Target case relies on facts which are strenuously disputed by the Plaintiff. This Court’s reliance on any of these disputed facts regarding the factual basis for the Defendants’ regulatory scheme would unquestionably constitute reversible error, see e.g., Warrior Tombigbee Transportation Company, Inc. v. M/V Nan Fung, 695 F.2d 1294 (11th Cir. 1983). In the event that the Court considers any disputed facts relied upon by the Defendants to support their Motion for Summary Judgment, the Plaintiffs demand an immediate evidentiary hearing to resolve those disputed facts.
Accordingly, this Court can and should grant the Plaintiffs’ pending Motion for Summary Judgment which does not rely upon disputed facts, and Deny the Defendants’ pending Motion for Summary Judgment, or alternatively, if the Court chooses to consider the Defendants’ Motion for Summary Judgment then it should grant an evidentiary hearing to resolve the disputed facts submitted to this Court by the Defendants over the Plaintiffs’ objections.
Dated: July 22, 1998
Respectfully submitted,
| Geoffrey W. Peters, Esq. Geoffrey W. Peters, P.C. 9024 Trailridge Court Vienna, VA 22182 (703) 356-8703 |
Clifford Perlman Perlman & Perlman 220 Fifth Avenue, 7th Floor New York, New York 10001 (212) 889-0575 |
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Plaintiffs’ Motion for Leave to File Memorandum in Response to Defendants’ Second Notice of Adoption, and Plaintiff’s Supplemental Memorandum of Law have been furnished by U.S. Mail to Carl E. Brody, Jr., 315 Court Street, Clearwater Florida 33756 on July 23, 1998.
__________________________
PENELOPE BRYAN