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Collette v. Obama, et al. Case Number: 512012CA 2041WS
Motion to Reconsider and Set Aside Transfer of Venue Ruling I, Jerry Collette, plaintiff, move for reconsideration and setting aside of the court’s recent ruling, transferring venue to Leon County, as follows:
Summary Overview This motion for reconsideration and setting aside the court’s transfer of venue ruling is being brought to correct a clear error of law caused by a gross misstatement, by defense counsel, of the basis of the holding of a case which states the controlling Florida law for venue in tort claims. More specifically, at the last hearing, Mr. Mark Herron, counsel for defendants, in replying to my citing of the venue holding in Tucker v. Fianson, 484 So. 2d 1370, 1372 (Fla. 3rd DCA 1986), a leading Florida case on the subject of venue in tort claims and a commanding precedent to my case, misstated to the court that the venue holding in Tucker was based upon the location of property which, according to Mr. Herron, was the underlying subject of the litigation. It turns out that property had no bearing, whatsoever, on the venue holding in Tucker. There was not even any property in the entire litigation! Nonetheless, the court, upon hearing Mr. Herron’s blatant misstatement of the basis of the Tucker court’s venue holding, then: 1. Failed to properly apply controlling venue law to my case; and, 2. Thereby, made a clear error of law in ruling to transfer my case to Leon County.
Introduction This is a case of national importance. Not only are many eyes following it now, it could become future history. There is already a huge public perception that, although courts are supposed to
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treat all litigants equally, in similar cases, defendant Obama has been given preferential treatment. Other issues commonly litigated in similar cases, such as standing or the definition of natural born citizenship, may be rather esoteric for the average person to understand. Venue, on the other hand, is quite simple, particularly in the way that the Tucker court explained it.1 For the sake of public trust in the integrity of the justice system, it is imperative that the court correct the clear error made in the last hearing.
I have ground for reconsideration because: Clear Error Is A Valid Basis for Reconsideration Many courts have stated the established rule for reconsideration, as recited in, e.g., Underwriters at Lloyd's London v. Osting-Schwinn, 545 F. Supp. 2d 1261 (M.D. Fla. 2008): There are three identifiable bases for reconsidering an order: (1) …, 2 (2) …,3 and (3) the need to correct clear error or manifest injustice. As set forth below, the court has made a clear error of controlling Florida law for venue in tort claims.
The three venue options of: Venue Statute § 47.011 Florida Statutes § 47.011 (2012) states:4 Actions shall be brought only in the county  where the defendant resides,  where the cause of action accrued, or  where the property in litigation is located.
1 The arrow analogy that the Tucker court used could be understood by a child. 2 An intervening change in controlling law. 3 The availability of new evidence. 4 In relevant part.
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With multiple options: Plaintiff May Choose Any Proper Venue Option As stated in, e.g., Houchins v. Florida East Coast Ry. Co., 388 So. 2d 1287, 1289 (Fla. 3rd DCA 1980), the well established rule is: When venue is proper in more than one county, as is the case here, the choice of where to file suit rests with the plaintiff. More recently, the Government Employees Ins. Co. v. Burns, 672 So. 2d 834, 835 (Fla. 3rd DCA 1996), court stated: It is well established that where venue is proper in more than one county, the choice of forum rests with a plaintiff and will not lightly be set aside.
With respect to my case: The Residence of Defendants Has No Bearing on Venue Defendants have submitted facts showing that no defendant resides in Pasco County and have challenged venue based upon that sole ground. I hereby stipulate that no defendant resides in Pasco County. However, I have chosen venue based upon where I suffered my alleged injury, not based upon the residence of any defendants. Therefore, any facts or challenges relating to defendants’ residences are irrelevant to determining venue for this case and must be disregarded.
Accrual based venue is determined by: The Controlling Law As Stated in Tucker The Tucker case is very short,5 simple, and devoted exclusively to one issue — venue based upon accrual in a tort cause of action. The holding is a commanding precedent to my case, setting forth the rule that it is county where the plaintiff first suffers the claimed injury where the cause of action accrues for venue purposes. Tucker is a leading case which states the controlling law on this subject.
5 Three pages in length.
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With respect to venue: Property Was Not a Factor in Tucker The Tucker court mentions property only once, in the very first sentence, simply to describe the history of the parties’ transactions together, i.e., that previous dealings between them were related to a piece of property. Other than that, property had absolutely nothing whatsoever to do with the Tucker case, or its venue holding.
At the last hearing: Defendants Mischaracterized the Basis of the Tucker Holding Mr. Herron stated, to the court, that the venue holding in Tucker was based upon the location of a piece of property. However, Tucker was strictly a tort case,6 not a property case. The Tucker court would have come to the exact same result if the case had actually been about the defendant negligently shooting an arrow into the air from one county and injuring the plaintiff in another, as the court so simply and clearly analogized. Accordingly, Mr. Herron’s analysis of the Tucker ruling was clearly erroneous. Moments after Mr. Herron made his erroneous statement to the court, the court announced its transfer of venue ruling. Being that there was no other reason why this court would ignore controlling law, as stated in such a commanding precedent case as Tucker, it is logical, therefore, to conclude that the court’s error was a result of, and directly caused by, Mr. Herron’s blatant misstatement of the basis of the Tucker venue holding.
I am making: No Direct Accusation of Intentional Wrongdoing In my opposition to defendants' motions to dismiss, I certainly did accuse defendants’ attorneys of trying to flimflam the court. I even raised the possibility that they may have gone so far as to have committed fraud upon the court. In this motion, I am not directly accusing Mr. Herron of intentionally misrepresenting the basis of the Tucker venue holding at the last hearing. While,
6 Specifically, attorney malpractice, brought on a negligence theory.
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admittedly, it is possible that Mr. Herron may have done exactly that, perhaps even to the extent of committing, yet again, fraud upon the court, there is also another possibility. Consider that: ● The Tucker case is: ○ One of two venue cases cited in my brief; ○ Devoted exclusively to one issue — venue based upon accrual in a tort cause of action; and ○ Three pages long. ● My brief was served on defendants two weeks before the last hearing; and ● In those two weeks, defendants’ team of attorneys7 may have been unable to properly analyze the Tucker case. Therefore, the possibility does exist that Mr. Herron’s misstatement to the court as to the basis of Tucker holding could simply be an honest mistake. While I have presented some possibilities as to how Mr. Herron may have come to make such a misstatement, I take no position as to how it happened.8 I simply want the effect of that misstatement rectified, forthwith.
With respect to venue in this case: Properly Applying the Tucker Venue Rule The Tucker case clearly and simply states the controlling law on the subject of venue in a tort action. In Tucker, as in my case: ● It was a tort action; ● No property was involved; ● The alleged tort was committed in one county; but
7 Which may be no larger than the four attorneys who appeared at the last hearing, two in person and two via
telephone. 8 Nor have a speculated as to the likelihood of either possibility.
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● The alleged injury to the plaintiff occurred in a different county; and ● The plaintiff did not claim venue based upon the residence of any defendants; but, ● Instead, the plaintiff claimed venue based upon where the alleged injury was suffered. Hence, the Tucker case is a commanding precedent to my case. The injury for which I am seeking redress was first suffered by me in Pasco County. I have properly pled facts sufficient to establish venue in Pasco County. Accordingly, Pasco County is a proper venue for this case.
For determining venue: The Allegations of My Complaint Are Presumed To Be True The established rule for determining venue on motions to dismiss was recited in Wai v. Rainbow Holdings, 315 F. Supp. 2d 1261, 1268 (S.D. Fla 2004), which said:9 On a motion to dismiss based on improper venue, the ... court must accept all allegations of the complaint as true, unless contradicted by the defendants' affidavits ....
With my venue allegations deemed true: Defendants Have Not Properly Contradicted My Venue Choice In Barry Cook Ford, Inc. v. Ford Motor Co., 571 So. 2d 61 (Fla. 1st DCA 1990), the court stated: The plaintiff's decision regarding venue is presumptively correct, and the party challenging venue has the burden to demonstrate any impropriety in the plaintiff's choice. As the court stated in Government Employees Ins. Co. v. Burns, 672 So. 2d 834, 835 (Fla. 3rd DCA 1996):
9 In relevant part.
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In the absence of a showing by the defendant to overcome the presumption of correctness as to the plaintiff's venue choice, there "is no legal basis for upsetting this venue choice." Defendants have submitted no affidavits contradicting any of the facts related to my venue allegations. Accordingly, for the purpose of determining venue, the court must assume that all of the facts that I have pled in my complaint are true.
Justice demands that: The Venue Ruling Must Be Reconsidered As shown above, the court has made a clear error in the application of controlling Florida venue law to my case. Accordingly, the court’s ruling, transferring venue to Leon County, must be reconsidered. Accordingly, my motion to reconsider should be GRANTED.
Justice further demands that: The Previous Venue Ruling Must Be Set Aside Upon recognizing the clear error of the court’s ruling, transferring venue to Leon County, said ruling must be set aside. Accordingly, my motion to set aside should be GRANTED.
A new venue order must now be issued, stating that: Pasco County is the Correct Venue With the previous clear error corrected, the court now has a chance to make the correct ruling, properly applying the controlling venue law and allowing this case to proceed in Pasco County. Accordingly, defendants’ motions to dismiss or transfer venue based upon improper venue should be reheard and DENIED.
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With respect to other motions to dismiss: Defendants’ Pending Motions to Dismiss Should Be Denied After correcting the venue error, defendants’ outstanding motions to dismiss on other grounds should then be heard, here in Pasco County, then, as set forth in my opposition to dismissal10 and my supplemental brief,11 DENIED.12
After the motions to dismiss are denied: A TRO Will Need To Be Issued In order to prevent the defendants from circumventing, in advance and in anticipation of, a possible final order from this court, against them, a temporary restraining order will need to be issued preventing them from submitting their list of electors to the governor early. Concurrent with this motion, I am submitting notice of a motion for such an order. That motion should be GRANTED.
Furthermore: Discovery Will Need To Be Expedited The election code calls for the defendants to submit papers to the Governor by September 1st. In order to resolve this case before that, discovery times will need to be shortened. Concurrent with this motion, I am submitting notice of a motion to expedite discovery. That motion should be GRANTED.
Conclusion In the last hearing in this case, there was a gross travesty of justice — gross, not in the sense of some grim result, such as an innocent person being executed — but gross in the sense of there being no valid legal justification, whatsoever, to support the ruling. Fortunately, unlike the execution of an innocent person, the travesty in this case is easily reversible.
10 Dated and filed June 18, 2012. 11 Dated and filed June 26, 2012. 12 After reviewing my opposition to dismissal, the court may also concur with me that, in their motions to dismiss,
defendants attempted to flimflam the court.
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I fully accept the risk that I am taking by asking the court to reverse its previous venue ruling and take up defendants’ outstanding motions to dismiss on other grounds. With respect to the remaining issues in defendants’ pending motions to dismiss, I believe that the facts and the law in support of my positions, while, admittedly, not as simple, are just as strong as those in support of my venue position. I pray that the court administer the proper justice this that case so needs, and the voters of Florida so deserve.
Respectfully Submitted, July 18, 2012 Jerry Collette Plaintiff Pro Se PO Box 3664 Holiday FL 34692 727-457-0300
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IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PASCO COUNTY, STATE OF FLORIDA Civil Division Collette v. Obama, et al. (Proposed) ORDER Plaintiff’s motion for reconsideration of the court’s ruling, transferring venue to Leon County, is hereby GRANTED. Plaintiff’s motion to set aside the court’s ruling, transferring venue to Leon County, is hereby GRANTED. Defendants’ motions to dismiss or transfer venue based upon improper venue, having been reheard, are hereby DENIED. Defendants’ remaining pending motions to dismiss on other grounds are hereby DENIED. Plaintiff’s motion for a temporary restraining order is hereby GRANTED. Plaintiff’s motion to expedite discovery is hereby GRANTED. Case Number: 512012CA 2041WS
Dated: _____________________, 2012
________________________________ Stanley Mills Circuit Judge
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