Attorney Jaeger made the following response to MI5's motion to dismiss the lawsuit.
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
BOLESLAW TADEUSZ SZOCIK,
Case No. 6:07-cv-495-Orl-10KRS
Plaintiff,
vs.
THE SECURITY SERVICE OF THE UNITED
KINGDOM, SEVEN UNKNOWN MEN,
Defendants.
________________________________________/
RESPONSE FROM PLAINTIFF, BOLESLAW TADEUSZ SCOZIK,
PLAINTIFF, TO THE SECURITY SERVICE OF THE UNITED
KINGDOM'S MOTION TO DISMISS PLAINTIFF'S FIRST
AMENDED COMPLAINT AND MEMORANDUM
OF LAW IN SUPPORT THEREOF
The Plaintiff, Boleslaw Tadeusz Szocik (hereinafter called "Szocik"), by and through
his undersigned counsel, hereby files this reply to the Defendant's Motion to Dismiss his
First Amended Complaint, and says:
1. BACKGROUND AND INTRODUCTION
Szocik agrees with the Background and Introduction as set forth in the Defendant's
Motion. Szocik would also be in a position to outline a number of incidents and threats on
the part of the Defendant, of which the acts specifically complained of herein were the most
recent.
II. ARGUMENT
A. Legal Standing for Dismissal Pursuant to Rule 12(b)(1).
Szocik does not contest the fact that, as a matter of law, this Honorable Court
has the legal right to review his First Amended Complaint and, in the Court's discretion,
enter a ruling as to whether the Federal Immunities Act would or would not apply to bar this
matter.
B. Federal Sovereign Immunities Act
Szocik does not contest the fact that the FSIA applies to his First Amended
Complaint nor does he contest that the FSIA constitutes the sole basis for the Court's
jurisdiction in this matter over the Defendant. Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428, 434, 109 S. Ct. 683. 102 L. Ed. 2d 818(1989). That having
been said, there are exceptions to the immunity of sovereign countries and their agents,
including the tortious act exception set out in 28 U.S.C. § 1605(a)(5) which would clearly
apply in this case. Szocik would further point out that the argument of the Defendant that
this conduct should be classified as an example of an intentional infliction of emotional
distress cause of action is misleading. What the Defendants did in this case was to commit
a civil assault upon the Plaintiff, which resulted in psychological injury to him. Under the
laws of the State of Florida, an assault is defined as an intentional, unlawful threat by word
or act to do violence to the person of another coupled with the apparent ability to do so, by
doing some act which creates a well founded fear of such violence being done. State v.
Wilson, 276 So. 2d 45(Fla.1973). Therefore, Szocik's First Amended Complaint does state
a cause of action against the Defendant for such conduct as an exception to the FSIA.
C. Scozik's Claim is not Barred by the Statute of Limitations.
The Defendant is correct in pointing out that many tortious acts, including the
tort of intentional infliction of severe mental distress, are barred by a four year statute.
However, in this case what we have is governed by Florida Statute 772.17, which provides
that, notwithstanding any other provision of law, an act which could have been pursued as
a criminal act, including an assault, is governed by a five (5) year statute of limitations.
Therefore, Szocik's claim is timely and is not barred by the statute of limitations under these
circumstances.
D. A Dismissal of this Case is Not Appropriate on the Basis of Forum Non Conveniens.
The Defendant argues that where there is an adequate forum available then the
case should be relocated to that alternative and more convenient forum. Gulf Oil Corp. vs.
Gilbert, 330 U.S. 501, 506-507 (1947). Szocik does not deny that this is true in some cases,
but it is his understanding that there is no remedy for this type of action under the laws of
the United Kingdom. Therefore, it is obvious that Szocik can not reinstate his suit in any
alternative forum whatsoever and to dismiss this matter would completely bar Szocik from
any sort of relief. It is also clear that the only two political entities which have any interest
in this litigation are the United Kingdom and Florida, where the event occurred, and the
Defendant has not proved or demonstrated that suit could be filed and a trial conducted
anywhere other than here. Finally, any independent witnesses to this event which could or
might come forward would, in all likelihood, be found in Florida (United States). Thus,
Szocik would urge this Honorable Court not to use its discretion to dismiss this matter under
these circumstances.
CONCLUSION
WHEREFORE, based upon all of the foregoing facts and authorities, the Plaintiff,
BOLESLAW TADEUSZ SZOCIK, would respectfully request that this Honorable Court
not dismiss his First Amended Complaint with prejudice and would grant any other
additional relief as this Court deems just and appropriate.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that this document has been (or will be) filed electronically
with the Clerk of the Court by using CMF/ECF system which will send a notice of electronic
filing to the following: Christa C. Werder, Esquire, BAKER & HOSTETLER, LLP, P.O.
Box 112, 200 S. Orange Ave, Suite 2300, Orlando, Florida 32802-0112, on this 16th day
of April, 2007.
/s Frederick S. Jaeger, Jr., Esquire
FREDERICK S. JAEGER, JR, ESQUIRE
Florida Bar No.: 0219282
GREG KIMBALL, ATTORNEY, P.A.
4475 U.S.I. South, Suite 100
St. Augustine, Florida 32086
Telephone: (904) 797-7770
Telefax: (904) 797-7454
Email: fjaegerjr@bellsouth.net
Attorney for:
Boleslaw Tadeusz Szocik
The Court dismissed the complaint without prejudice and with leave to file a second amended complaint on the basis that we did not show a sufficient basis for subject matter jurisdiction, as shown in the following PDF.
Specifically, under Florida law acts are only sufficient to constitute assault if the defendant has "apparent present ability" to carry out the threat. The Court considered that "apparent present ability" was lacking because the Seven Unknown Men did not show their arms if any, and there was no sign of any weapons on their part, only the verbal and written claims. However it is noteworthy that the Court sees that MI5 only presented a "facial challenge" to my complaint, so the Court must assume that all of Plaintiff's allegations are true.
The Court gave plaintiff ten days to file a Second Amended Complaint, which was written as follows.
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
BOLESLAW TADEUSZ SZOCIK,
Case No. 6:07-cv-495-Orl-10KRS
Plaintiff,
vs.
THE SECURITY SERVICE OF THE UNITED
KINGDOM, SEVEN UNKNOWN MEN,
Defendants.
________________________________________/
SECOND AMENDED COMPLAINT
Plaintiff, BOLESLAW TADEUSZ SZOCIK, sues Defendant, THE SECURITY
SERVICE OF THE UNITED KINGDOM, and SEVEN UNKNOWN MEN, and says:
1. Plaintiff, BOLESLAW TADEUSZ SZOCIK, is an individual who, at the time
of the incident complained of herein, was residing in Orange County, Florida.
2. Defendant, THE SECURITY SERVICE OF THE UNITED KINGDOM,
hereinafter called "M15", is an agency of the United Kingdom.
3. Defendants, SEVEN UNKNOWN MEN, hereafter called,
"CONSPIRATORS", are believed by the Plaintiff to be residents of Orange County, Florida.
4. This action is properly in this Court because of the fact that the acts
complained of took place in Orange County, Florida.
5. This is an action seeking damages in excess of $15,000.00, and is within the
jurisdiction of this Court.
6. In the fall of 2001, the Plaintiff was being harassed by M15, and bought two
handguns for his protection.
7. After Plaintiff bought the second of the two handguns, M15 sent a message
to an internet newsgroup frequented by the Plaintiff, as follows: "They say that when a man
with a 45 meets a man with a rifle, the man with a pistol is a dead man. Let's see if that is
true." This message was posted on November 11, 2001, one day before Plaintiff took
possession of a Colt 45 handgun.
8. On or about November 17, 2001, CONSPIRATORS, at the behest of and
under the employ and/or control of M15 did assemble in Orange County, Florida at Lake
Eola Park outside the Post Parkside apartment building where the Plaintiff was residing.
These Defendants then commenced to shout out "I don't wanna shoot people" and other
threats, such as "you're crazy" and "he's watching".
9. These odd shouts and clandestine behavior on the part of the
CONSPIRATORS, coupled with the internet threat, immediately caused Plaintiff extreme
anxiety, and Plaintiff was afraid that the CONSPIRATORS, were enticing Plaintiff to go
into the park where they would shoot or otherwise injure him. Their shouting was so loud
that Plaintiff could clearly hear and record them on the 9th floor of the building where he
resided. These action were part of an ongoing pattern of conduct by M15 toward the
Plaintiff, which began in June of 1990.
10. The Plaintiff had reason to believe, and does believe, that the
CONSPIRATORS, or some of them, were armed and were intending to try and draw him
out of his apartment and engage him in some form of armed confrontation. This belief was
further substantiated by one or more of said CONSPIRATORS shouting out something
about "shooting somebody", which further indicated that the CONSPIRATORS were armed
and were an imminent threat to the Plaintiff. The CONSPIRATORS, could have shot or
shot at the Plaintiff, thereby constituting a clear and present danger and an imminent threat
to the Plaintiff.
WHEREFORE, Plaintiff demands judgment as follows:
A. For general Damages.
B. For costs of suit incurred in this action.
C. For other and further relief as the Court may deem proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that this document has been (or will be) filed electronically
with the Clerk of the Court by using CMF/ECF system which will send a notice of electronic
filing to the following: Christa C. Werder, Esquire, BAKER & HOSTETLER, LLP, P.O.
Box 112, 200 S. Orange Ave, Suite 2300, Orlando, Florida 32802-0112, on this 10th day
of May, 2007.
/s Frederick S. Jaeger, Jr., Esquire
FREDERICK S. JAEGER, JR, ESQUIRE
Florida Bar No.: 0219282
GREG KIMBALL, ATTORNEY, P.A.
4475 U.S.I. South, Suite 100
St. Augustine, Florida 32086
Telephone: (904) 797-7770
Telefax: (904) 797-7454
Email: fjaegerjr@bellsouth.net
Attorney for: Boleslaw Tadeusz Szocik
Essentially this was the original complaint with greater emphasis placed on the possibility of the Seven Unknown Men being armed, and that they would have shot at me had I approached them.
For further communications, please see the next file in this series.