IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT ... · University of Florida Office of the...
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IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT ALACHUA COUNTY, FLORIDA CIVIL ACTION US RIGHT TO KNOW, Plaintiff, v. CASE NO: 01-2017-CA-2426 THE UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, Defendant. and DREW KERSHEN, Intervener. ___________________________________/ PLAINTIFF’S UNOPPOSED MOTION FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT Plaintiff, US Right to Know, through undersigned counsel and pursuant to Rule 1.190(d) of the Florida Rules of Civil Procedure, respectfully requests leave of Court to file a Supplemental Complaint for Writ of Mandamus, and in support thereof states: 1. Plaintiff seeks leave of Court to file a Supplemental Complaint for Writ of Mandamus, attached hereto. The supplemental complaint alleges that after the filing of the Complaint for Writ of Mandamus, Defendant unlawfully refused to comply with another public record request by Plaintiff. 2. In its original Complaint for Writ of Mandamus, the Plaintiff gave notice of this additional outstanding public record request and its intent to incorporate it into the present action if the requested documents were not produced: Filing # 62704947 E-Filed 10/11/2017 03:24:46 PM
Transcript of IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT ... · University of Florida Office of the...
IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT
ALACHUA COUNTY, FLORIDA
CIVIL ACTION
US RIGHT TO KNOW,
Plaintiff,
v. CASE NO: 01-2017-CA-2426
THE UNIVERSITY OF FLORIDA
BOARD OF TRUSTEES,
Defendant.
and
DREW KERSHEN,
Intervener.
___________________________________/
PLAINTIFF’S UNOPPOSED MOTION
FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT
Plaintiff, US Right to Know, through undersigned counsel and pursuant to Rule 1.190(d)
of the Florida Rules of Civil Procedure, respectfully requests leave of Court to file a
Supplemental Complaint for Writ of Mandamus, and in support thereof states:
1. Plaintiff seeks leave of Court to file a Supplemental Complaint for Writ of
Mandamus, attached hereto. The supplemental complaint alleges that after the filing of the
Complaint for Writ of Mandamus, Defendant unlawfully refused to comply with another public
record request by Plaintiff.
2. In its original Complaint for Writ of Mandamus, the Plaintiff gave notice of this
additional outstanding public record request and its intent to incorporate it into the present action
if the requested documents were not produced:
Filing # 62704947 E-Filed 10/11/2017 03:24:46 PM
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On June 16, 2017, Plaintiff made a separate request to Defendant for all emails to
or from Professor Folta to the email address [email protected]
from January 1, 2011 to the present. In the event Defendant does not produce all
requested emails for the updated time period, Plaintiff will seek leave to amend
this complaint to incorporate this additional violation.
Complaint ¶ 11.
3. Rule 1.190(d) of the Florida Rules of Civil Procedure provides:
Supplemental Pleadings. Upon motion of a party the court may
permit that party, upon reasonable notice and upon such terms as
are just, to serve a supplemental pleading setting forth transactions
or occurrences or events which have happened since the date of the
pleading sought to be supplemented. If the court deems it advisable
that the adverse party plead thereto, it shall so order, specifying the
time therefor.
4. The proposed Supplemental Complaint sets forth events which have happened
since the filing of the original Complaint for Writ of Mandamus.
5. As the proposed Supplemental Complaint addresses the same subject matter as
the original Complaint for Writ of Mandamus, and Plaintiff gave Defendant notice of its intent to
incorporate the June 16, 2017 public record request into this action, Defendant will not be
prejudiced by the filing of the Supplemental Complaint for Writ of Mandamus.
6. Plaintiff’s counsel has conferred with counsel for the Defendant and the
Intervener, and is authorized to represent that neither party will oppose this motion if Plaintiff’s
counsel will agree to allow them 30 days to respond to the Supplemental Complaint.
Recognizing that it is up to the Court to set the time for responding, Plaintiff does not object to
this request.
WHEREFORE, Plaintiff respectfully requests that the Court GRANT Plaintiff’s
Unopposed Motion for Leave to File Supplemental Complaint, and order such other relief as the
Court deems appropriate.
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/s/Lynn C. Hearn
LYNN C. HEARN
Florida Bar No.: 0123633
Email: [email protected]
RONALD G. MEYER
Florida Bar No.: 0148248
Email: [email protected]
MEYER, BROOKS, DEMMA AND BLOHM, P.A.
131 North Gadsden Street (32301)
Post Office Box 1547
Tallahassee, Florida 32302-1547
(850) 878-5212
(850) 656-6750 – Facsimile
JOSEPH E. SANDLER
Email: [email protected]
District of Columbia Bar No. 255919
Pro Hac Vice No. 1001306
SANDLER, REIFF, LAMB, ROSENSTEIN &
BIRKENSTOCK PC
1025 Vermont Ave., N.W. Suite 300
Washington, D.C. 20005
(202) 479 -1111
(202) 479-1115 – Facsimile
Attorneys for Plaintiff US Right to Know
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CERTIFICATE OF SERVICE
Pursuant to Rules 2.516(b)(1) and (f) of the Florida Rules of Judicial Administration, I
certify that the foregoing document has been furnished to the following individuals by email via
the Florida Courts e-filing Portal this 11th day of October, 2017, to:
John A. DeVault, III
Primary E-mail: [email protected]
Secondary E-mail: [email protected]
Courtney A. Williams
Primary E-mail: [email protected]
Secondary E-mail: [email protected]
Bedell, Dittmar, Devault, Pillans & Coxe
Professional Association
The Bedell Building
101 East Adams Street
Jacksonville, Florida 32202
Attorneys for Defendant The University of
Florida Board of Trustees
Cindy A. Laquidara
Primary email: [email protected]
Secondary email: [email protected]
Allison M. Stocker
Primary email: [email protected]
Secondary email: [email protected]
Akerman LLP
50 North Laura Street, Suite 3100
Jacksonville, Florida 32202
and
Elizabeth M. Hernandez
Three Brickell City Centre
98 Southeast Seventh Street, Suite 1100
Miami, FL 33131
Email: [email protected]
Secondary Email: [email protected]
Attorneys for Intervener Drew Kershen
/s/Lynn C. Hearn
Lynn C. Hearn
IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT
ALACHUA COUNTY, FLORIDA
CIVIL ACTION
US RIGHT TO KNOW,
Plaintiff,
v. CASE NO: 01-2017-CA-2426
THE UNIVERSITY OF FLORIDA
BOARD OF TRUSTEES,
Defendant.
and
DREW KERSHEN,
Intervener.
___________________________________/
SUPPLEMENTAL COMPLAINT FOR WRIT OF MANDAMUS
Plaintiff, US Right to Know, through undersigned counsel and pursuant to Rules 1.190(d)
and 1.630 of the Florida Rules of Civil Procedure, files this Supplemental Complaint for Writ of
Mandamus, and in support thereof states:1
FACTS ON WHICH PLAINTIFF RELIES FOR RELIEF
The AgBioChatter Emails
33. On July 11, 2017, Plaintiff US Right to Know (“USRTK”) filed a Complaint for
Writ of Mandamus seeking, among other records, all emails between University of Florida
1 To avoid confusion, the paragraph numbers in this supplemental complaint begin with the
number following the last paragraph of the original complaint.
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Professor Kevin M. Folta and [email protected] from July 1, 2012 to September
3, 2015. Plaintiff had requested these records on September 3, 2015.
34. Defendant provided Plaintiff with a fraction of the records in its possession that
were responsive to this request, maintaining that the vast majority of the records requested were
not public records.
35. As set forth in paragraph 11 of the Complaint, Plaintiff made a separate, second
request to Defendant on June 16, 2017,2 for all emails between Professor Folta and
[email protected] for an expanded time frame: from January 1, 2011 to the
present. Defendant acknowledged receipt of this request. (Composite Exhibit F.)
36. Defendant responded to Plaintiff’s June 16, 2017 request on September 18, 2017,
informing Plaintiff’s counsel that Defendant “does not have any additional public records
responsive to this request.” (Exhibit G)
37. Pursuant to Chapter 119, Florida Statutes, Defendant is obligated to permit public
records in its custody to be inspected and copied within a reasonable time and upon payment of a
lawfully permissible fee.
38. Defendant has unlawfully refused to comply with this obligation by failing to
produce to Plaintiff all public records responsive to this request.
COUNT FOR WRIT OF MANDAMUS
39. Paragraphs 33 through 38 are realleged as if fully set forth herein.
40. Plaintiff has a clear legal right to the documents requested in Exhibit F.
41. Defendant has breached its indisputable duty to provide the requested documents
to Plaintiff.
2 The letter is erroneously dated July 16, 2017.
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42. No other effective legal remedy is available to Plaintiff.
43. Because Defendant has unlawfully refused to permit public records to be
inspected or copied, Plaintiff is entitled to recover the reasonable costs incurred in enforcement,
including reasonable attorney’s fees pursuant to Section 119.12, Florida Statutes.
ARGUMENT
44. Plaintiff incorporates by reference as if fully set forth herein the legal argument
set forth in paragraphs 24 through 32 of its Complaint for Writ of Mandamus in this action filed
July 11, 2017.
RELIEF REQUESTED
Wherefore, Plaintiff respectfully requests an immediate hearing pursuant to Section
119.11, Florida Statutes, following which Plaintiff requests the Court enter a Writ of Mandamus:
A. Directing the Defendant to produce the records requested by Plaintiff USRTK;
B. Awarding Plaintiff its reasonable attorney's fees and costs; and
C. Granting such other and further relief as the Court deems appropriate.
Respectfully submitted this 11th day of October, 2017.
[signature on following page]
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/s/Lynn C. Hearn
LYNN C. HEARN
Florida Bar No.: 0123633
Email: [email protected]
RONALD G. MEYER
Florida Bar No.: 0148248
Email: [email protected]
MEYER, BROOKS, DEMMA AND BLOHM, P.A.
131 North Gadsden Street (32301)
Post Office Box 1547
Tallahassee, Florida 32302-1547
(850) 878-5212; (850) 656-6750 – Facsimile
JOSEPH E. SANDLER
Email: [email protected]
District of Columbia Bar No. 255919
Pro Hac Vice No. 1001306
SANDLER, REIFF, LAMB, ROSENSTEIN &
BIRKENSTOCK PC
1025 Vermont Ave., N.W. Suite 300
Washington, D.C. 20005
(202) 479 -1111; (202) 479-1115 – Facsimile
Attorneys for Plaintiff US Right to Know
Exposing what the food industry doesn’t want us to know
USRTK.ORG • 4096 PIEDMONT AVE. #963 • OAKLAND, CA 94611-5221 • (415) 944-7350
July16,2017AmyHassGeneralCounselUniversityofFloridaOfficeoftheGeneralCounsel123TigertHallP.O.Box113125Gainesville,FL32611-3125
RE: FloridaSunshineLawRequestRegardingProfessorKevinM.FoltaDearMs.Hass:ThisisarequestundertheFloridaSunshineLawfortheproductionofdocuments.IrequestacompleteandthoroughsearchofallfilingsystemsandlocationsforallrecordsmaintainedbytheUniversityofFloridapertainingtoProfessorKevinM.Folta,professorofhorticultureattheUniversityofFlorida.ThisFOIArequestseeksallemailtoorfromProfessorFoltathatisto,from,CCorBCCtotheemailaddressAgBioChatter@yahoogroups.com.ThetimeperiodcoveredbythisrequestisfromJanuary1,2011tothepresent.Irequestthatyoudisclosethesedocumentsandmaterialsastheybecomeavailabletoyou,withoutwaitinguntilallthedocumentshavebeenassembled.Ifdocumentsaredeniedinwholeorinpart,pleasespecifywhichexemption(s)is(are)claimedforeachpassageorwholedocumentdenied.Givethenumberofpagesineachdocumentandthetotalnumberofpagespertainingtothisrequestandthedatesofdocumentswithheld.Irequestthatexcisedmaterialbe"blackedout"ratherthan"whitedout"orcutoutandthattheremainingnon-exemptportionsofdocumentsbereleasedasprovidedundertheFloridaSunshineLaw.Pleasesendamemo(withacopyorcopiestome)totheappropriateunit(s)inyourofficetoassurethatnorecordsrelatedtothisrequestaredestroyed.Pleaseadviseofanydestructionofrecordsandincludethedateofandauthorityforsuchdestruction.AsIexpecttoappealanydenials,pleasespecifytheofficeandaddresstowhichanappealshouldbedirected.IammakingthisrequestonbehalfofU.S.RighttoKnow,a501(c)(3)nonprofitfoodresearchorganization.Therecordsdisclosedpursuanttothisrequestwillbeusedinthepreparationofarticlesfordisseminationtothepublic.Accordingly,Irequestthatyouwaiveallfeesinthepublic
Exhibit F
interestbecausefurnishingoftheinformationsoughtbythisrequestwillprimarilybenefitthepublic.PleasesendthedocumentstomeinPDFformatatgary@usrtk.org. Icanbereachedat(415)944-7350.Pleasecallratherthanwriteifthereareanyquestionsorifyouneedadditionalinformationfromme.Thankyousomuchforyourhelpinfillingthisrequest.Sincerely,
GaryRuskinCo-Director
Exhibit G
