Response to Motion to Dismiss Action

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

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