Case l:ll-cv-20657-JIC

Document 61 Entered on FLSD Docket 04/13/2012 Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO.: 11-20657 CIV-COHN

ENRIQUE VARONA, Plaintiff,

vs.
HAUL-O-WAY SERVICE, INC., ETAL. Defendants. /

HAUL-O-WAY TOWING'S MOTION TO DISMISS FIRST AMENDED COMPLAINT Defendant, HAUL-O-WAY SERVICE, INC. ("HAUL-O-WAY"), a Florida corporation, pursuant to Rules 8 and 12 of the Federal Rules of Civil Procedure, move to dismiss the First Amended Complaint for Money Damages, Injunctive Relief Pursuant to 42 U.S.C. 1983 and 42 U.S.C. 1985 Jury Trial Requested [DE 36] ("Amended Complaint") filed by Plaintiff, ENRIQUE VARONA ("VARONA"). In support of this Motion, HAUL-O-WAY states as follows: 1. Plaintiff has filed a Complaint against HORTA attempting to assert the following causes of action: a. b. c. Unconstitutional Forfeiture without 5th Amendment Due Process (Count I), 8th Amendment Violation - Punishment Prior to Trial (Count II), Section 1985(3)(c) Conspiracy to Deprive Citizen of Constitutional Rights (Count III),

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CASE NO.: 11-20657 CIV COHN d. e. Punishment Before Trial in Violation of 6th Amendment (Count IV), Unconstitutional Failure to Prove Elements of Crime in Criminal Case (Count
V),

f. g. h. i.

Seizure of Car that is Exempt from Levy (Count VI), Conversion after 30 day impound of auto and property inside it (Count VII), De Facto Discrimination Against Florida Drivers, Feudal Peonage (Count VIII), Systematic Denial of Constitutional Rights by State of Florida and DMV (Count

IX),
j. 2. Impairment of the Mobility Necessary to Gather Food and Survive (Count X).

The Amended Complaint rambles at length, and includes irrelevant commentaries which should be stricken. Rule 8, Fed. R. Civ. P. The Amended Complaint also fails to contain a short and plain statement of the ultimate facts as required by Fed. R. Civ. P. 8.

3.

To summarize, Plaintiff alleges that his vehicle was "improperly" impounded by a Florida Law Enforcement officer, although he concedes that he was unable to produce a valid tag or registration to the officer. Further, Plaintiff alleges that the referenced vehicle was sold at auction by HAUL-O-WAY, conceding that he (the Plaintiff) could not provide title to the said vehicle for purposes of retrieving the vehicle from HAUL-O-WAY. In fact, two years after the alleged "taking," Plaintiff has still not produced title to the vehicle.

4.

As a matter of law, Plaintiff, by conceding, that at the relevant time he could not provide title to the referenced vehicle, fails to show that he has standing to bring the constitutional claims he has attempted to assert, and fails to state a cause of action as to each of the claims raised. Until such time as the Plaintiff is able to show that he, in fact, was injured - by showing that it was his vehicle that was impounded and sold - the Plaintiffs Amended Complaint must be

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CASE NO.: 11-2065 7 CIV CORN

dismissed. 5. Plaintiff has also failed to demonstrate that HAUL-O-WAY, acting under color of state law, violated his constitutional rights. See Bennett v. Roberts, 295 F.3d 687,699 (7th Cir.2002); see also Wos v. Sheahan, 57 Fed. Appx. 694 (7th Cir.2002) (affirming district court's dismissal of complaint under 42 U.S.C. 1983 in which plaintiff, whose car was impounded after he was arrested, alleged that sheriff, deputies, and towing company conspired with the sheriff to deprive him of his property). 6. Finally, to the extent that the Amended Complaint alleges that the towing company, conspired with the State of Florida to impounded his car or otherwise take his property without just compensation, the Amended Complaint must be dismissed because before a plaintiff may bring a Takings Clause claim under 1983, he must exhaust his state remedies. Daniels v. Area Plan Com'n of Allen County, 306 F.3d 445, 453-54 (7th Cir.2002). 7. The facts, as set forth by the Plaintiff in the Amended Complaint simply do not give rise to any cause of action under any of the theories raised by the Plaintiff. Therefore, Plaintiffs Amended Complaint should be dismissed as to HAUL-O-WAY. 8. HAUL-O-WAY adopts and incorporates by reference all legal arguments made in Defendants' Trooper M.G. Rietmann, The State of Florida, and the Director of DMV, Officially and

Personally, Motion to Dismiss with Prejudice [DE 50] filed by Defendants, FLORIDA STATE TROOPER M.G. RIETMANN and FLORIDA HIGHWAY PATROL MAJOR JAMES BRIERTON. RELIEF REQUESTED WHEREFORE, Defendant, HAUL-O-WAY SERVICE, INC., respectfully requests this Court enter an Order dismissing the Amended Complaint with prejudice.

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CASE NO.: 11-20657 CIV COHN

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via United States Mail and CM/ECF on this 13th day of April, 2012, to Enrique Varona,/?ro se. _ Miami, Florida 33186. /s/ Jose M. Herrera, Esq. /si JOSE M. HERRERA, ESQ. Florida Bar No.: 612618 JOSE M. HERRERA, P.A. 2350 Coral Way, Suite 201 Miami, Florida 33145 Tel: (305) 445-1100 / Fax: (305) 221-8805

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