IN THE CICUIT COURT OF THE 11™ JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA
LTA LOGISTICS, INC. A Florida Corporation, and LESTER TRIMINO Plaintiff,
GENERAL JURISDICTION DIVISION CASE NO 11-205227 CA 21
ENRIQUE JOSE VARONA Defendant,
IN THE OFFICE OF CIRCUIT COURT DADE CO., FL DEFENDANT. ENRIQUE JOSE VARONA JUDICIAL NOTICE. MOTION TO DISMISS COMES NOW the Defendant, ENRIQUE JOSE VARONA, Through the undersigned secured party Enrique Varona (pro se), a human being a living soul, not a
STATUTORY PERSON nor a corporate fiction, a son of YAHWEH the God of Abraham, and the holy father of Jesus, who is not an employee of the UNITED STATES OF AMERICA (the corporation) The State of Florida (the corporation) who inhabits on the land of the Republic of Florida, who retains in FEE SIMPLE ABSOLUT all his rights given to him by God at birth, as they are enumerated on the BILL OF RIGHTS of the UNITED STATES CONSTITUTION, who will never voluntarily waive any of his rights (SEE AFFIDAVIT) and pursuant to Civil Procedure rules 8 and 12, hereby, moves this
Court for Dismissal of the Plaintiff's complaint, and in support thereof, states the following: JUDICIAL NOTICE 1) To all officers of the court for the CIRCUIT COURT OF THE 11™ JUDICIAL CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA, To this honorable court and all other parties in this action, are hereby placed on notice under authority of the supremacy and equal protection clauses of the United States Constitution and the common law authorities of Haines v Kerner, 404 U.S. 519, Platsky v. C.I.A. 953 F.2d. 25, and Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000) relying on Willy v. Coastal Corp., 503 U.S. 131, 135 (1992), "United States v. International Business Machines
Corp., 517 U.S. 843, 856 (1996), quoting Payne v. Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., concurring). Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647, American Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Cir) 2) In re Haines: pro se litigants (Defendant, is a pro se litigant) are held to less stringent pleading standards than BAR registered attorneys. Regardless of the deficiencies in their pleadings, pro se litigants are entitled to the opportunity to submit evidence in support of their claims. In re Platsky: court errs if court dismisses the pro se litigant (Defendant, is a pro se litigant) without instruction of how pleadings are deficient and how to repair pleadings. In re Anastasoff: litigants' constitutional rights are violated when courts depart from precedent where parties are similarly situated. All litigants have a constitutional right to have their claims adjudicated according the rule of precedent. See Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000). Statements of counsel, in their briefs or their arguments are not sufficient for a complaint for damages or for summary judgment, Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647.
MOTION TO DISMISS
1) On July 9, 2011, VARONA.
Plaintiff served Complaint on the Defendant, ENRIQUE JOSE
2) Plaintiff's Complaint should be dismissed on the following grounds: (1) Plaintiff fails to state a claim for which relief can be granted; (2) Plaintiff lacks standing; (3) Defendant, ENRIQUE JOSE VARONA is entittled to qualified immunity.
DEFENDANTS STATEMENT OF THE CASE
3) In his Complaint, The Plaintiff alleges that Defendant was employed by him and that Defendant was terminated and then employed by a competitor of his, then terminated by this alleged competitor of his and that this is in violation of a "NON DISCLOSURE and NON SOLICITATION" agreement (not in evidence to the court).
4) Plaintiff, alleges that Defendant has been making false and misleading statements concerning LTA Logistics and its president, (not in evidence to the court) by posting false and misleading statements on the web (not in evidence to the court). 5) Plaintiff, alleges that these "false and misleading statements" posted by Defendant are the direct cause of him suffering loss sales, future sales, future customers, revenues and reputation (not in evidence to the court). 6) Further Plaintiff, states on point 25 of his complaint that "LTA Logistics, Inc is without remedy at law" and in point 13 and 14 lists and names the alleged "false and misleading statements" then on point 16 proceeds to state that he has deleted said blogs in an effort to preserve the Plaintiff's reputation.
MEMORANDUM OF LAW AND ANALYSIS PLAINTIFF FAILS TO STATE A CLAIM
7) The purpose of a motion to dismiss for failure to state a claim upon which relief can be granted is "to allow the court to eliminate actions that are fatally flawed in their legal premises and destined to fail, and thus spare litigants burdens of unnecessary pretrial and trial activity." Advanced Cardiovascular Systems, Inc v Scimed Life Systems, Inc., 988 F.2d 1157 (8th Cir. 1993). With this in mind, the Supreme Court recently explained the working principles of a Court's review of a complaint pursuant to a Defendant's motion to dismiss in Ashcroft v. Iqbal, 129 S.CT.1937, 1949 (2009). First, the court held that "the tenent that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. Second, restating the plausability standard articulated in Bell Atlantic Corp. v. twombly, 550 U.S. 544, (2007), the Court held that "where the well pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show(n)' - "that the pleader is entitled to relief." Id at 1950 (quoting Fed.R.Civ.P. 8(a)(2). The Court further stated that courts considering motions to dismiss adopt a "two pronged approach" in applying these principles: 1) eliminate any allegations that are merely legal conclusions; and (2) where there are well-pleaded factual allegations, "assume their veracity and then determine wether they plausibly give rise to an entitlement of
relief." Id. The court held in Iqbal, as it had in Twombly, the courts may infer from the factual allegations in the complaint "obvious alternative explanation(s)," which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer. Id at 1951-52 (quoting Twombly, 550 U.S. at 567). 8) The Plaintiff's Complaint in this case simply contains no short and plain statement of claims showing that the Plaintiff is entitled to relief, and Defendant is unable to determine exactly what theory of recovery the Plaintiff is attempting to allege. The series of statement which form the majority of the Plaintiff's Complaint are nothing more than conclusory allegations of law which do not fit within any specified theory of recovery, and therefore, they should be eliminated from this Court's consideration. Once those conclusory allegations are eliminated, there are no well pleaded factual allegations which give rise to any cause of action. Plaintiff states in his complaint that this court's jurisdiction is proper, but fails to allege any facts, Statutes, codes, rules, acts or laws to support any claims. 9) There are no facts in the Plaintiff's Complaint which support any allegation of Loss of sales, future busisness, profits, reputation, new customers and there are certainly no facts which establish an affirmative causal connection between the Defendant's conduct and a loss of future business, revenue, sales ect. The Defendant is completely unable to identify exactly what right the Plaintiff is actually attempting to invoke. The Plaintiff has simply named several "events" and "allegations" in a conclusory fashion, with no facts to support even an inference of a violation of law. As a result the Plaintiff's Complaint should be dismissed.
PLAINTIFF LACKS STANDING
10) In order for the Plaintiff to bring a con rtractua I/constitutional question before this court, he must satisfy the three constitutionally required elements of standing pursuant to the U.S. Supreme Court opinion in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992): (1) "The plaintiff must have suffered an "injury in fact"-an invasion of a legally protected interest which is (a) concrete and particularized and (b) "actual or imminent, not "conjectural or hypotetical," (2) "there must be a casual connection between the injury and the conduct complained of-the injury has to be
fairly....trace(able) to the challenged action of the defendant, and not...the result of the independent action of some third party not before the court," and (3) "it must be likely as oppose to merely 'speculative', that the injury will be 'redressed by a favorable decision." (citations omitted). 11) In his Complaint the Plaintiff alleges that sales, customers, revenue, reputation and future sales, future customers, future revenue will be lost and seems to blame this loss on the Defendant, ENRIQUE JOSE VARONA. 12) However, regardless of the fact that these "allegations" cannot state a claim against Defendant ENRIQUE JOSE VARONA, Plaintiff has failed to satisfy the first element of standing by showing that the Plaintiff himself suffered a concrete injury or an invasion of a legally protected interest. The Plaintiff alleges in his complaint that he "does not have an adequate remedy at law." Therefore, the very face of the Plaintiff's Complaint indicates a lack of an actual and concrete legal interest or right. Consequently, because the Plaintiff has failed to demonstrate a particularized injury in fact - i.e. that a legal right has been violated- the Plaintiff's complaint should be dismissed for lack of standing..
DEFENDANT STATEMENT OF THE CASE. CLAIM OF IMMUNITY
Fiction cedit verati, fictio juris non est ubi veritas
Fiction yields to truth; where the truth appears, there can be no fiction of law.
11 Col. 51
13) Plaintiff, LTA Logistics, Inc c/o Lester Trimino (owner), a surface cargo
transportation broker operating under a Department Of Transportation (a Federal Agency) broker license,, hired Defendant as an agent/sales associate on June 2009, Defendant was employed by LTA Logistics, Inc through March 2010 when he was terminated for failure to obey the owners instructions to commit fraud against the shipping public. 14) The Plaintiff, Mr. Lester Trimino, owner and president of LTA Logistics instructed his agents to inform customers that their (LTA) operations were those of a carrier not a broker. Carriers have a different license, own their truck and trailers and carry a $1,000,000.00 liability & $150,000.00 cargo insurance policy. A broker does not have trailers or trucks or cargo or liability insurance. Brokers operate as a
3rd party logistics company, they match shippers loads to carriers and make a profit in the margin between the buy rate and sale rate. 15) Some shippers avoid brokers and have a policy of working with carriers only.
Mostly shippers and distributors of perishable goods (foods, flowers, live plants etc...).These shippers have several reasons for this policy and it is a well known and accepted practice in the industry. Brokers cater to different customers. 16) On November 2010, Defendant came across and advertisement of LTA Logistcs, Inc on the internet, were LTA Logistics was claiming to operate and own over 225 blue trucks. The ad proceeded to show pictures of these trucks and states that they monitor all of their trucks. The 40 second long ad runs in Google, You Tube, and Yellowpages.com and several other web sites. The video can be viewed at : http://www.yellowpages.com/info-101217/LTA-Logistics?from=youtb 17) Plaintiff, by making and dissiminating such deceitful and fraudulent advertising to the general public at large specifically targeting the surface cargo transportation industry is in violation of several Federal & State laws. 18) Plaintiffs, claims in his complaint that defendant is making false and
misleading statements by posting false and misleading statements on the web Id 12(1) , that he launched verbal and internet attack campaign against Plaintiff Id 12 that this is a blatant effort ot tarnish the reputation of LTA Logistics and its president Id 12, that Defendant has continued to post these blogs on the web Id 15, That this constitute harassing and threatening behavior Id 17 and that this are unjustified actions Id 18, that these are reckless, dangerous and inexcusable behavior Id 19. 19) Defendant, counter claims that his actions are in accordance with the law and further states that he is aware of a conspiracy, plan, policy by the Plaintiff to systematically defraud the shipping public and that this information came to him as while an employee of the Plaintiff. 20) Plaintiff, is in violation of federal law and Deaprtment of Transportation by
asserting to be a carrier in his advertising 32 FR 20034, DEC 20, 1967 AMENDED 62 FR 15421, APRIL 1, 1997 (317.1) Applicability, this part applies , to the extent
provided therein, to all brokers of transportation by motor vehicle (317.7) Misrepresentations. (B) A broker shall not, directly or indirectly, represent its operations to be that of a carrier. (317.7) any advertising shall show the broker
status of the operation 45 FR68942 OCT 17, 1980 Redesignated at 61 FR54707 OCT 21,1996 Amended 62 FR15421 21) Plaintiff, is in violation of the Lanham Act, Public law 79-489, Chapter 540-60 Stat 427 (B) In commercial advertising or promotion, misrepresents the nature, characteristics, quality of his or hers goods or services, or commercial activities shall be liable in a civil action... 22) Plaintiff, is in violation of Florida Law 501.204 UNLAWFUL ACTS AND PRACTICES (1) Unfair methods of competition, unconscionable acts or practices in the conduct of any trade or commerce are hereby declared unlawful 23) Plaintiff, is in violation of Florida Law TITLE XLVI Crimes Section 817.02 & 817.41 (1) it shall be unlawful for any person to make or disseminate or caused to be made or disseminated before the general public of the state, or any portion therof, any misleading advertising. Such making or dissemination of misleading advertising shall constitute and is hereby declared to be fraudulent and unlawful, designed for obtaining money or property under false pretenses. 24) Defendant, has immunity under the Whistleblower Act, due to the fact that he is is a person who tells the public or someone in authority about alleged dishonest or illegal activities occurring in a government department, a public or private
organization, or a company. The Plaintiff, misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations, and corruption. Whistleblowers may make their allegations internally (for example, to other people within the accused organization) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues). The Act provides in part:112.3187 Adverse
action against employee for disclosing information of specified nature prohibited; employee remedy and relief.-....(4) Actions prohibited.-(a) An agency or independent contractor shall not dismiss, discipline, or take any other adverse personnel action against an employee for disclosing information pursuant to the provisions of this section (5) NATURE OF INFORMATION DISCLOSED.-The information disclosed
under this section must include:(a) Any violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and
specific danger to the public's health, safety, or welfare.(b) Any act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, or gross neglect of duty committed by an employee or agent of an agency or independent contractor.§ 112.3187, Fla.Stat. (1993). 25) Defendant, under this Statute ia allowed to post in the internet (media) in his YOUTUBE channel that Plaintiff, LTA Logistics, Inc is commiting fraud by claiming to be a mortor carrier, to have 225 blue trucks that they own and operate. Defendantis entitled to qualified immunity under the law.
DEFENDANT'S PETITION TO DENY PLAINTIFF'S REQUEST FOR A TEMPORARY INJUNCTION AND PERMANENT INJUCTION
26) The Plaintiffs, Complaint alleges wrongdoing regarding defendant making false and misleading statements about the president of LTA Logistics, Inc , that such statements have been made orally and by posting false and misleading statements on the web (Compl. at 12-12)
The Motion alleges that Defendant had executed a Non-compete and Non-
solicitation Agreement which prohibited the defendant from soliciting any of the Plaintiff's customers for a period of two years after being terminated from Plaintiff's employment., Defendant has not signed such an agreement with the Plaintiff and if such an agreement exists it is only due to constructive fraud and forgery. Hence, null and void. 28) Plaintiffs' Motion for an injunction is deficient for several reasons. First, to the extent Plaintiffs seek a an "enjoining order" a court may issue such order without written or oral notice to the adverse party only if the party requesting the relief provides an affidavit or verified complaint providing specific facts that "clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed. R. Civ. P. 65(b)(l)(A). In addition, the movant or his attorney must certify in writing "any efforts made to give notice and the reasons why it should not be required." Fed. R. Civ. P. 65(b)(l)(B). As to the first requirement, although Plaintiffs have submitted a verified Complaint, it does not "clearly show that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party can be heard in opposition." Rather, the Motion appears to be attempting to enjoin some matters that have already occurred and, as explained below, Plaintiffs have not otherwise met the necessary standard for granting the Motion. 29) As to the second requirement, Plaintiffs have not certified in writing any efforts made to put Defendant on notice of the Motion, nor have they offered any reason as to why notice should not be required. Further, to the extent Plaintiffs seek a preliminary injunction, a court may "issue a preliminary injunction only on notice to the adverse party." Fed. R. Civ. P. 65(a)(l). Absent such notice, the court cannot consider a motion for preliminary injunction. Further, Plaintiffs' Motion fails to establish why Plaintiffs are entitled to relief. "The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction." Brown Jordan Int'l, Inc. v. Mind's Eye Interiors, Inc., 236 F. Supp. 2d 1152, 1154 (D. Haw. 2002); see a/so Burgess v. Forbes, 2009 WL 416843, at *2 (N.D. Cal. Feb. 19, 2009); Magnuson v. Akhter, 2009 WL 185577, at *1 (D. Ariz. Jan. 27, 2009). In Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008), the Supreme Court explained that "[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." So long as all four parts of the Winter test are applied, "a preliminary injunction [may] issue where the likelihood of success is such that 'serious questions going to the merits were raised and the balance of hardships tips sharply in [plaintiff's] favor.'" Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1049 (9th Cir. 2010) (quoting Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003)). 30) Plaintiffs' Motion states in wholly conclusory fashion that "Plaintiff has reason to believe and does believe that Defendant's actions against Plaintiff in furtherance of a carefully crafted scheme intended to harm the reputation, sales, future sales, customers, future customers and long term relationships of LTA Logistics, Inc " however fails to provide any specific reason or describe any specific acts by Defendant to support such claim.
Plaintiffs fail to explain why they are likely to succeed on the merits, why they
will likely suffer irreparable harm in the absence of preliminary relief, why the balance of equities tips in their favor, and why an injunction is in the public interest. When in reality it would be against the public interest to allow Plaintiff to continue his fraud against his customers. Plaintiff cites a number of statements and web postings and events that already occurred, and that the court cannot enjoin. 32) Plaintiffs contend that the public interest will be served by granting an of Plaintiff .
injunction because it safeguards the "future sales and reputation"
Neither of these reasons meets the standard necessary to enjoin the Defendant; all these reasons cited sales, revenue, customers, future business are consequences of the market . Moreover, even a cursory review of the allegations in the Complaint indicates that it is not likely Plaintiffs will succeed on the merits, especially of a claim of future business or customers The Complaint alleges that these actions occurred many months ago. Therefore, an order for enjoinment or an injunction temporary or permanent should be denied to Plaintiff. And if the court decides to consider issuing such order it is the Defendants position that he be allowed to address the court at the hearing to counter claim the Plaintiff's arguments. Defendant, prays to Providence, that this honorable court dismisses with prejudice this complaint for the reasons well articulated and stated above. That Count 1 and 2 be dismissed with prejudice That this honorable court involves the State attorneys
office for further investigation and that if this court grant Defendant a hearing to prove his case and submit evidence to the court in the above stated matter and his claims.
Enrique Varona as agent for ENRIQUE JOSE VARONA Defendant, 14823 SW 125 Ct Miami, Florida 33186