Motion to Strike and Dismiss
COMES NOW the Respondent, by and through his undersigned counsel, and files this Motion to Strike and Dismiss the above-captioned action, and in support thereof, states as follows:
1. This is a Motion to Dismiss the Temporary Injunction for Protection, filed in the above captioned action, for failure to state a cause of action, made pursuant to the provisions of Rule 1.140(b), Fla. R. Civ. P., and a Motion to Strike, as immaterial, portions of the Petition for Injunction filed in the above-captioned action, made pursuant to the provisions of Rule 1.140(f), Fla. R. Civ. P.
2. The Petition asserts three instances of alleged violence. None of the three qualify as lawful examples of violence, in that none of the alleged incidents involve an “overt act,” and none involve an “imminent” assault.
3. To qualify as an assault, as required by the definition of an act of violence, there must be an overt act. Sorin v. Cole, 929 So. 2d 1092 (Fla. 4th DCA 2006); Gagnard v. Sticht, 886 So. 2d 321 (Fla. 4th DCA 2004).
4. To qualify as an assault, as required by the definition of an act of violence, the alleged assault must be imminent. Johnson v. Brooks, 567 So. 2d 34 (Fla. 1st DCA 1990); Delopa v. Cohen, 873 So. 2d 530 (Fla. 4th DCA 2004); Gagnard v. Sticht, 886 So. 2d 321 (Fla. 4th DCA 2004); and Clement v. Ziemer, 953 So. 2d 700 (Fla. 5th DCA 2007).
5. The first and second alleged acts of violence involve Mr. S. “yelling” at the Petitioner, allegedly telling Petitioner that he would “squash me and he has money to do it.” Petition at 3. No threat of violence is alleged at all. Moreover, if the Petitioner genuinely perceived these incidents to involved threats of violence, he would have called the police. However, Petitioner notes in his Petition that “The R left and I didn’t call the police.” Petition at 3. Indeed, he never called the police at all – until a civil dispute arose about the removal of restaurant equipment. Petition at 3.
6. The third act of violence involves Mr. S. visiting what the Petitioner falsely alleges to be his own restaurant, and removing restaurant equipment. This does not constitute a threat of violence against Petitioner at all – let alone imminent violence. Indeed, the Petitioner confirms the police were called, and, due to the lawful conduct of Respondent, the police left. Thus, even if Petitioner’s allegations of restaurant ownership were true, this incident is merely a civil dispute.
7. The other prior incidents section of the Petition notes an instance where the Respondent’s brother allegedly made threats – not the Respondent – and the “threats” are simply a reference to financial backer’s in Oklahoma – a location some 1,100 miles distant from Jacksonville, and thus the threat to “get me,” even if it were an allegation of violence (and not just a civil dispute) would not be imminent.
8. The Petition seeks an injunction for what Petitioner describes as “My restaurants @ Location” Petition at 4 (Section IV). However, Petitioner does not own nor operate a restaurant at either location, and thus has no legal standing to seek an injunction at those locations. Moreover, Petitioner’s false representation to the ownership of those locations constitutes further grounds to dismiss his petition and the Temporary Injunction.
9. The remaining allegations of the Petition are either not made on personal knowledge, or are irrelevant to the Petition.
WHEREFORE, Respondent prays this Honorable Court enter its Order Granting the Relief sought herein, striking and/or dismissing the Petition.