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Diane Derzis Motion to Dismiss Complaint by the Alabama State Board of Health to Stop Her from Operating an Abortion Clinic Closed by the State.

Diane Derzis Motion to Dismiss Complaint by the Alabama State Board of Health to Stop Her from Operating an Abortion Clinic Closed by the State.

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Published by Tom Ciesielka
STATE BOARD OF HEALTH,
Plaintiff,

ALL WOMEN’S, INC. d/b/a NEW WOMAN ALL WOMEN HEALTH CARE, DIPAT, L.L.C., DIANE W. HEARING AND DERZIS, PATRICK H. SMITH, and BRUCE E. NORMAN,
Defendants
STATE BOARD OF HEALTH,
Plaintiff,

ALL WOMEN’S, INC. d/b/a NEW WOMAN ALL WOMEN HEALTH CARE, DIPAT, L.L.C., DIANE W. HEARING AND DERZIS, PATRICK H. SMITH, and BRUCE E. NORMAN,
Defendants

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Categories:Business/Law
Published by: Tom Ciesielka on May 29, 2013
Copyright:Attribution Non-commercial

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08/08/2013

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IN THE CIRCUIT COURT OFJEFFERSON COUNTY, ALABAMASTATE BOARD OF HEALTH,Plaintiff,v. CASE NO. 01-CV-2013-901119 JB
ALL WOMEN’S
, INC. d/b/a NEWWOMAN ALL WOMEN HEALTHCARE, DIPAT, L.L.C., DIANE W. HEARING ANDDERZIS, PATRICK H. SMITH, and ORAL ARGUMENT REQUESTEDBRUCE E. NORMAN,Defendants.
MOTION TO DISMISS
Comes now Diane W. Derzis
(“
Derzis
”), having been served with the Complaint of theState Board of Health (“Board of Health”
 
or “Board”
) in this cause, and for the reasons set outherein and in accordance with Ala. R. Civ. P. 12(b), moves this Court to dismiss the Complaint.
I. SUMMARY OF CASE
A. The State Board of Health seeks an order enjoining Derzis from:1. Operating an unlicensed Abortion or Reproductive Health Center anywhere in the State of Alabama, including one located at 1001 17
th
Street South, Birmingham,Alabama 35205
(the “Premises”)
;2. Allowing the operation of an unlicensed Abortion or Reproductive HealthCenter anywhere in the State of Alabama; and3. Holding herself out as an abortion provider.B.
Contrary to the Board of Health’s unsubstantiated beliefs
, Derzis:1. I
s not operating an “Abortion or Reproductive Health Center 
,
” as defined
in Ala. Admin. Code r. 420-5-1-.01;
ELECTRONICALLY FILED4/26/2013 4:37 PM01-CV-2013-901119.00CIRCUIT COURT OFJEFFERSON COUNTY, ALABAMAANNE-MARIE ADAMS, CLERK
 
22. I
s not operating a “Hospital
,
as defined in Ala. Code §22-21-20 (1975);3. Has not established a Hospital in the State of Alabama; and4. Does not conduct or maintain any Hospital in the State of Alabama.
II. FACTS
A. Not only is Derzis not operating as an abortion or reproductive health center or asa hospital, she is not related to the activities with which the Board is concerned.1. Derzis does not own the building and real estate located at the Premises.2. Derzis has no control or right to control Dr. Norman or any of theactivities associated with or related to his practice of medicine or the conduct of his private physician offices at the Premises.3. Derzis has no ownership interest in Dr. Norman
’s practice
.B. Derzis has no control over those individuals and entities throughout the State of Alabama, if any exist, who might be operating or attempting to operate an unlicensed abortion or reproduction health center.C. Derzis is not holding herself out as an abortion provider in the State of Alabama.D. Derzis is not conducting any activity or business that would require her to obtain alicense from the State Board of Health.
III. ARGUMENT
A. FAILURE TO ALLEGE ANY FACT THAT DERZIS IS INVOLVED WITHTHE SITUATION OR CIRCUMSTANCES WITH WHICH THE BOARD ISCONCERNED1. The Complaint by the Board of Health fails to state a claim upon whichrelief can be granted. If, when the allegations of the Board of Health are viewed most strongly in
the Board’s favor,
there appears no set of circumstances that would entitle it to relief, the
 
3Complaint is due to be dismissed. Weaver v. Firestone, No. 1101403, 2013 Ala. LEXIS 6(January 11, 2013).2. The Board, in seeking an injunction, has not alleged any fact that isinconsistent with the version of facts by Derzis. The facts alleged by the Board to support theoverly broad and unnecessary injunction can be summarized as follows:a. There have been previous licensure proceedings against All
Women’s, Inc. (“All Women’s”
), another defendant in this action. b. A Consent Agreement was entered in a previous, unrelated actioninvolving
All Women’s
.c. Applications (by parties unrelated to the present action) to operatean abortion facility have been denied.d. A license for a person or entity at 1001 17
th
Street South,Birmingham, Alabama to operate an abortion or reproductive health center or hospital has not been issued.e.
All Women’s
has a website.f. Bruce Norman practices medicine at 1001 17
th
Street South,Birmingham, Alabama.3. The foregoing is everything offered by the Board in support of theinjunction sought. The allegations are insufficient to support any authority by the Board over Derzis. The allegations, further, fail to support the injunction sought, even if the Board hadauthority in these circumstances.

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