Two months ago, Metro Jacksonville posted a detailed (albeit one sided) account of the love-hate-love-hate-love (hate) relationship Springfielders, generally, and 9th & Main entrepreneurs, specifically, have and have had with Craig Van Horn (three guesses as to the author of this piece, and the first two don't count).
Ten days before this piece was posted, suit was filed, pro se, in Duval County Circuit Court against Van Horn, Barry Owens and 9th & Main, LLC by William Stephen Griffin (Dare) and Boomtown Theatre and Cafe, Inc., alleging Default on Lease, Conversion, and Tortious Interference. A summary reading of the MetroJax piece will provide the background (and then some) of these allegations.
Service was "perfected" on these defendants on March 12, 2008, starting the 20 day clock ticking in which to answer. On the eve of the twentieth day, the defendants filed a motion to dismiss, raising five points of law against the original Complaint.
Keep in mind as I rattle off these five points that the Complaint was drafted and filed pro se, meaning by the litigant plaintiff himself, and not an attorney.
First, a corporation cannot be represented by a non-attorney. Thus, Boomtown is an unrepresented party unable to maintain its cause of action.
Second, insufficient service of process on all defendants. Apparently the process server went to the 9th & Main offices and served an individual not statutorily allowed to accept service on behalf of the corporation and individual defendants. Thus, even though Van Horn and Owens are holding the suit papers and are obviously well aware of the litigation, they claim a due process violation for not being properly served.
Third, fourth and fifth can all be lumped together. Defendants moved to dismiss all three counts based upon plaintiffs' failure to state a cause of action. Specifically, each count either required a contract to be attached, or at least that a contractual relationship be alleged. And even though the Complaint references attachments, none were actually provided.
By now you're probably wondering what the point of this post is about. I'm getting to that.
After reading the MetroJax piece in its entirety several times, I grew steamed at the damage Van Horn (and Hionides) have inflicted, and continue to inflict, on Springfield. So I welcomed the lawsuit, if for no other reason than it would hopefully clear up the 9th & Main mess and give Springfield, once and for all, an established, unique, solid and reliable food and entertainment venue.
Now that I've read the Complaint and subsequent motion to dismiss (which will most likely be granted without prejudice, i.e., with leave to refile), I'm just as steamed at Griffin/Dare for trying to go solo on this litigation without the benefit of counsel.
Access to the courts, while a constitutional right, is not a license to air personal grievences through litigation. I do not question whether Griffin/Dare has a basis for the suit and that the litigation has merit, but he seemed to choke on ego, anger and bitterness in an attempt to save a dime (note -- raising the font size of a particular allegation in a Complaint will NOT make the allegation any more factual and certainly will NOT make the trier of fact -- judge or jury-- believe you even more). The irony here is that any further careless pleadings could find Griffin/Dare facing a motion for fees and costs (or at least costs) filed against him by Van Horn.
The practice of law is a learned skill requiring years of study, tens of thousands of dollars in student loans and hours upon hours studying for a two day exam.
I wouldn't ask my wife to cook dinner if I really wanted to eat a decent meal (crap, I'm going to get it for that) nor would she simply hand me a text book and have me go teach her class. Similarly, Griffin/Dare should not have drafted and filed his own Complaint if he really wanted civil justice against Van Horn.
I imagine there are a number of Springfielders who support what Griffin/Dare is trying to do, but if it's going to be done, it has to be done right. There are at least thirty attorneys living in Springfield alone. There are thousands more throughout the city. Pick one, strike some sort of pay arrangement, and get something filed that won't get kicked at the initial pleading stage.
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6 comments:
That was a thoughtful post. Hopefully the judge will not dismiss with prejudice. Otherwise, maybe the plaintiff will lawyer up and seek leave to amend?
Colony.
The complaint was filed with all contracts and an extensive list of exhibits.
The court had already certified a finding of default on Craig's part when 11 days after the deadline a response mysteriously made its way into the file.
The complaint lists both myself and Boomtown as Plaintiff's for the case, and the opposing counsel has filed a motion to dismiss the complaint.
I have had judges break both ways on the matter when presented to the court. The issue has come up twice and once the judge decided to proceed without counsel and hear the case and once the judge required counsel.
The court is presently presented with two motions to consider:
A motion for final judgement that was filed with the certification of default and the motion to dismiss that was filed 10 days later.
Before the hearing there is time to either ammend the original complaint or to hire counsel and file an appearance on behalf of boomtown inc.
Even so, my personal right to file isnt compromised.
But thank you for the heads up that the attachments dont seem to have made it to the file either.
Stephen Dare.
btw, thanks for the validation and the points brought up in this essay. I sincerely appreciate the care about this subject which the post reflects.
Craig avoided service for nearly a month, and apparently service was accepted on his behalf by Tory, an employee who represented to the serving agent that he was qualified to recieve on behalf of both Craig and Barry.
Its been my experience that you really have to piss off a judge for him to toss a case on technical service points, especially if the service was recieved in time for the defendant to have hired an attorney and file the motion to dismiss.
It would be a valid defense for overturning the default judgement however.....insufficient time to respond etc, but the attorney seems to have found time machine anyways so that takes away the one real advantage of the argument.
ever traded a year of fusion cuisine before?
lol
The judge will give you a do-over. Plain and simple. It will not be dismissed on a technicality.
But frankly, unless you plead the elements properly, the case will always be tossed.
A well plead complaint that can withstand a motion to dismiss is an art. Sure, all statements are presumed to be true and a judge cannot look outside the four corners of the complaint when considering a motion to dismiss, but there are still strict requirements that have to be followed to make it over the first hump.
I do all my own cooking.
The hearing hasnt been set yet.
I feel confident in my arguments and I think if you were able to see the supporting exhibits, you might agree that the case is solid.
I don't think I've ever been part of a case that didnt immediately go through the normal Dismissal foreplay.
The judge has a reputation for fairness and trying things on the merits. He was primarily a criminal judge apparently.
Obviously we are looking for Counsel--The clerk thinks she has just found our attachments.so not having a cause of action is out....if thats all the grounds she had for asking the case to be dismissed---a partial stature problem on one of the plaintiffs and minor technicalities regarding service then I don't think she has much of a motion.
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