Defendants dismas charities,inc.,ana gispert,derek thomas and adams leshota's motion to dismiss and incorporated memorandum of law in support of motion to dismiss

Case 1:11-cv-20120-PAS Document 26 Entered on FLSD Docket 05/04/2011 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 11-20120-CIV-SEITZ/SIMONTON

TRAIAN BUJDUVEANU,

Plaintiff,

vs.

DISMAS CHARITIES, INC., ANA GISPERT,
DEREK THOMAS and ADAMS LESHOTA

Defendants.
_________________________________________/

DEFENDANTS DISMAS CHARTIES, INC., ANA GISPERT, DEREK THOMAS AND
ADAMS LESHOTA’S MOTION TO DISMISS AND INCORPORATED
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

Defendants Dismas Charities, Inc., Ana Gispert, Derek Thomas and Adams Lashanda,

incorrectly identified as Adams Leshota (“Leshota”), (collectively “Defendants”) by and through

their undersigned counsel and file their Motion to Dismiss and Incorporated Memorandum of

Law in Support of her Motion to Dismiss the Complaint of Traian Bujduveanu (“Plaintiff”) and

alleges as follows:

INTRODUCTION

Plaintiff, a former Federal Inmate, has filed a vague and confusing Complaint against his

Community Correction Center/Half Way House, Dismas, and three of its employees, Gispert,

Thomas and Leshota. The Complaint contains 50 paragraphs of “factual allegations” filed by a

laundry list of four alleged Federal Theories of Recovery and six alleged state law theories of

recovery. The Complaint fails to allege the specific facts and allegations necessary for any cause

of action. Instead the Complaint simply names a cause of action (i.e. abuse of process) without



stating the legal and factual elements for the cause of action. The Complaint fails to delineate

which Defendant is being sued for which specific cause of action. The Complaint also fails to

allege any cause of action against certain Defendants. Even if the factual allegations in the

Complaint are accepted as true, the Complaint fails to properly plead causes of action.

The Complaint also fails to allege any violations of Federal or State law by any

Defendant. Without any proper and sustainable Federal or State cause of action, this lawsuit

should be dismissed.

FACTUAL ALLEGATIONS AND PROCEDURAL POSTURE

Plaintiff pled guilty to charges of conspiring to illegally export military and dual use

aircraft parts to Iran. Plaintiff was sentenced to 35 months for his crimes. Towards the end of

his sentence, Plaintiff was transferred to Dismas, a “half way house,” on July 28, 2010 until his

release date of January 31, 2011. (Complaint, p. 14) Dismas is a private non-profit corporation

known as a CCC Contractor. (Complaint, p. 36) As a result of the Plaintiff’s health issues,

Plaintiff was released to home confinement and was required to report back to Dismas every

Wednesday. (Complaint, p. 14-15) Plaintiff attended a resident orientation and acknowledged

that he had the program policies and procedures explained to him and was give the opportunity

to ask questions and receive clarification of any policies and procedures. (Complaint, p. 16 and

26)

On October 13, 2010, the Plaintiff appeared on his reporting date by driving himself to

Dismas in Plaintiff’s family vehicle. While Plaintiff may have held a valid driver’s license, he

was not authorized to drive under the terms of his release to Dismas. Specifically, the Plaintiff

was not authorized to operate a motor vehicle without approval of the Director, Gispert.

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Following the violation, the vehicle was searched for safety reasons and a cell phone allegedly

belonging to the Plaintiff’s family was discovered. The Plaintiff was not authorized to possess a

cell phone, regardless of who owned it. A phone can be hazardous to safety as it can be used to

call or communicate with other persons not confined or other half way house residents, which

could cause security issues. (Complaint, p. 17-23 and Exhibit C to the Complaint)

A Disciplinary Report was then prepared and signed by the Plaintiff on October 15, 2010.

(Complaint, Exhibit C to the Complaint) The Plaintiff was removed from Home Detention and

assigned three weeks of extra light duty at Dismas. The Plaintiff also lost his weekend pass from

Dismas for three weeks and was not allowed visitation for three weeks. (Complaint, p. 25 and

Exhibit C to the Complaint) The Plaintiff’s personal items were then held by Dismas. As the

phone was contraband, Dismas donated the phone. The remainder of the Plaintiff’s personal

items are being held by Dismas. However, the Plaintiff or his designated family member refuses

to pick the personal items up from Dismas.

On October 18, 2010, the Plaintiff was then caught having an unauthorized visit in the

parking lot. The unauthorized visitor dropped off items to the Plaintiff without advanced

permission. Another disciplinary report was written. (Complaint, p. 38) Since the Plaintiff was

not complying with the terms of his release, the United States Marshall Service (not Dismas)

removed the Plaintiff from Dismas and transported him to the Federal Detention Center in

Miami. (Complaint, p. 38) Plaintiff remained at the Federal Detention Center for 81 days.

(Complaint, 46) Plaintiff has since been released. (Complaint, page 9, signature line of

Plaintiff)

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Plaintiff originally filed a Motion for Return of Property against Dismas and Gispert on

January 12, 2011. On March 28, 2011, Plaintiff filed a Complaint against Dismas, Gispert,

Thomas and Adams seeking $3.1 million dollars in compensatory damages and $500,000 in

punitive damages for a total of $3.6 million dollars against the Defendants. However, as is

shown below, the Complaint must be dismissed for numerous procedural pleading issues and the

failure to state any cause of action against the Defendants.

ARGUMENT AND CITATION TO AUTHORITY

1. The Complaint in its entirety fails to properly plead a cause of action against any
Defendant.

The Plaintiff’s Complaint fails to state any claim upon which relief can be granted. In

order to state claim under notice pleading rule, the complaint must contain short and plain

statement of claim showing that pleader is entitled to relief. While a complaint attacked by

motion to dismiss does not need detailed factual allegations, plaintiff's obligation to provide

grounds of its entitlement to relief requires more than labels and conclusions. Formulaic

recitation of elements of cause of action will not do. Chen v. Cayman Arts, Inc., 2010 WL

4961665. (S.D. Fla. 2010); Fed. R. C. P. 8(a).

The Complaint at issue contains thirteen initial paragraphs discussing jurisdiction and

who the parties are in this matter. (Complaint, p. 1-13) Fifty paragraphs of “factual allegations”

then follow. (Complaint, p. 14-63) The last two paragraphs of the Complaint contain a laundry

list of four (4) Federal theories of recovery in paragraph 64 and six (6) State law theories of

recovery in paragraph 65. (Complaint, p. 64-65) Paragraph 64 contains conclusory allegations

of four Constitutional Violations and Paragraph 65 contains six conclusory allegations of state

law violations. In each paragraph, the alleged violation is simply stated as a conclusion without

4



reciting the necessary legal elements and factual support for the ten alleged violations. However,

conclusory allegations, such as those in paragraphs 64 and 65 of the Complaint, that fail to give

defendant notice of material elements of claim are insufficient as a matter of law to state a claim

for purposes of motion to dismiss. Abbasi v. Herzfeld & Rubin, P.C., 863 F. Supp. 144 (S.D.N.Y.

1994).

Legal conclusions without factual support in complaint are not sufficient to preclude

entry of motion to dismiss for failure to state claim. Forest County Potawatomi Community of

Wisconsin v. Doyle, W.D.Wis.1993, 828 F. Supp. 1401 (W.D.Wis.1993, affirmed 45 F.3d 1079).

Bald assertions and conclusions of law will not enable complaint to survive motion to dismiss for

failure to state claim, even though relevant pleading standard is liberal. Leeds v. Meltz, 85 F. 3d

51 (C.A.2 N.Y. 1996). Accordingly, the Complaint fails to properly allege causes of action for

the ten conclusory theories and the Complaint must be dismissed.

The Complaint fails to state legally or factually what causes of action or violations were

allegedly committed by each individual Defendant. The overall failure of the Complaint to

delineate “who is being sued for what reason” renders the Complaint as a whole deficient and

subject to dismissal. The Defendants should not have to guess as to why they are being sued and

for what reason they are being sued. Without specific factual and legal allegations and counts

against each specific Defendant, the Defendant’s cannot frame a responsive pleading to the

Complaint.

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2. The Complaint fails to state any cause of action against Defendants Gispert,
Leshota and Thomas.

The Complaint must also be dismissed because it fails to state any Federal or State law

wrong or violation committed Gispert, Adams, or Leshota. The Complaint fails to delineate how

these defendants committed any of the alleged violations set forth in paragraphs 64 and 65 of the

Complaint.

Gispert is mentioned by name solely in paragraph 53. Gispert’s only alleged wrongdoing

was failing to provide a BP-9 form. However, this contradicts the attachments to the Complaint.

The attachments to the Complaint, specifically, Exhibit E, demonstrate that the requests for BP-9

forms were made to Case Manager Price and Unit Counselor of the Federal Bureau of Prisons,

not Gispert or Dismas. The Complaint fails to include any factual allegations against Gispert to

support a cause of action for any alleged violations of the Plaintiff’s First, Fourth, Fifth, Eighth

or Fourteenth Amendment rights or any false arrest/imprisonment, assault and battery, malicious

prosecution, abuse of process or negligence. Since the Complaint fails to contain any factual

allegations against Gispert to support any tenable cause of action, Gispert must be dismissed as a

party to this lawsuit.

Leshota is mentioned by name solely in paragraphs 21, 48 and 53, where she was asked

whether she knew anything about the cellular phone, she is accused of not liking white people

and of failing to provide a BP-9 form. The fact that Leshota did not know about the search of a

vehicle or the location of a cell phone does not constitute tortious acts. With regard to her

alleged hatred of white people, the Complaint does not allege discriminatory conduct against

Plaintiff by any Defendant. Even if Leshota hates white people, which is denied, her own beliefs

do not constitute a tortious act. The attachments to the Complaint, specifically, Exhibit E,

6



demonstrate that the requests for BP-9 forms were made to Case Manager Price and Unit

Counselor of the Federal Bureau of Prisons, not Leshota or Dismas. The Complaint fails to

include any factual allegations against Leshota to support a cause of action for any alleged

violations of the Plaintiff’s First, Fourth, Fifth, Eighth or Fourteenth Amendment rights or any

false arrest/imprisonment, assault and battery, malicious prosecution, abuse of process or

negligence. Accordingly, the Complaint fails to allege any cause of action against Leshota and

she must be dismissed from this lawsuit.

While Thomas is mentioned in paragraphs 22, 25, 35, 37, 38, 39 48 and 53, the facts

alleged against Thomas fail to state or support causes of action against him. Essentially, the

Plaintiff alleges that Thomas filled out a report documenting the Plaintiff’s violations of his

conditional release from prison. The Complaint therefore, alleges that Thomas was simply

performing his job responsibilities. With regard to Thomas’s alleged hatred of white people, the

Complaint does not allege discriminatory conduct by any Defendant against the Plaintiff. Even

if Thomas hates white people, which is denied, his own beliefs do not constitute a tortious act.

The attachments to the Complaint, specifically, Exhibit E, demonstrate that the requests for BP-9

forms were made to Case Manager Price and Unit Counselor of the Federal Bureau of Prisons,

not Thomas or Dismas. The Complaint fails to include any factual allegations against Thomas to

support a cause of action for any alleged violations of the Plaintiff’s First, Fourth, Fifth, Eighth

or Fourteenth Amendment rights or any false arrest/imprisonment, assault and battery, malicious

prosecution, abuse of process or negligence. Accordingly, the Complaint fails to allege any

cause of action against Thomas and he must be dismissed from this lawsuit.

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3. The Complaint fails to allege any tortious conduct under Florida Common Law,
assuming causes of action were properly plead, which is denied by the
Defendants.

a. False Arrest and Imprisonment

The tort of false imprisonment or false arrest is defined as the unlawful restraint of person

against his will, the gist of which action is the unlawful detention of the plaintiff and the

deprivation of his liberty. A plaintiff must show that the detention was unreasonable and

unwarranted under the circumstances. In a false arrest action, the plaintiff must allege

imprisonment contrary to his will and the unlawfulness of the detention. A privilege exists as a

matter of law to engage in reckless or even outrageous conduct if there is sufficient evidence that

shows the defendant did not more than assert legal rights in a permissible way. Rivers v.

Dillards Department Store, 698 So. 2d 1328, 1331 (Fla. 1st DCA 1997); Willingham v. the City

of Orlando, 929 So. 2d 43, 47 (Fla. 5th DCA 2006). In the case at hand, the Complaint is devoid

of the necessary allegations for either false imprisonment or false arrest.

First, the Plaintiff’s Complaint is fails to set forth any allegations that the Plaintiff was

arrested. Second, and more importantly, the Plaintiff could not be imprisoned as he was already

a prisoner serving his prison sentence at the time of the incidents described in the Complaint.

Certainly, someone already imprisoned and serving a prison sentence, as in this case, whether it

be at a prison or halfway house, cannot be falsely imprisoned. Any alleged restraint or detention

of the Plaintiff therefore, was not unlawful, as he was already under the custody and supervision

of the Federal Prison System at the time of the events described in the Complaint. As all actions

described in the Complaint were under color of law by Dismas, the U.S. Marshall and the

Federal Bureau of Prisons, no unlawful activity occurred.

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Third, the Complaint does not allege that any Defendant arrested or imprisoned the

Plaintiff. The Plaintiff cannot make these allegations because none of the Defendants had the

authority to arrest and/or imprison him. As the Complaint alleges in paragraph 38, the Plaintiff

was arrested by the U.S. Marshall Service and imprisoned by the Federal Bureau of Prisons. In

other words, the Plaintiff was not, and could not, be arrested or imprisoned by any Defendant

because the Defendants do not have the authority or power to arrest or imprison the Plaintiff.

Even if any of the Defendants could arrest or imprison the Plaintiff, which is denied, a

privilege exists as a matter of law to engage in reckless or even outrageous conduct if there is

sufficient evidence that shows that the Defendant did no more than assert legal rights in a

permissible way. Rivers, 698 So. 2d at 1331; (Complaint, p. 16-26, 35-42, Exhibit C to the

Complaint.) As the Complaint alleges that the Plaintiff was violated (even if violated recklessly

or outrageously by any Defendant), the Defendants did nothing more than assert their legal rights

in a permissible way, which would make their conduct privileged as a matter of law. For these

reasons, the Plaintiff has not and cannot set forth a cause of action against any Defendant in this

case for false arrest or false imprisonment. Accordingly, this claim must be dismissed with

prejudice.

b. Assault and Battery

An assault is an intentional and unlawful offer of corporal injury to another by force of

exertion of force directed toward another under such circumstances as to create a reasonable fear

of imminent peril and assaulted premised on an affirmative act. Battery consists of the

intentional infliction of harmful or offensive contact on the person of another. Sullivan v.

Atlantic Federal, 454 So. 2d 52 (Fla. 4th DCA 1984); Paul v. Holbrook, 696 So. 2d 1311 (Fla. 5th

9



DCA 1997). The Complaint is devoid of the necessary elements to set forth a cause of action for

assault and battery. Further, the Complaint is devoid of any factual allegations describing an

assault or battery by any defendant. All actions taken were under color of law so no unlawful

offer of corporal injury occurred or could have occurred. Accordingly, this claim must be

dismissed.

c. Malicious Prosecution.

To plead a cause of action for malicious prosecution, the Plaintiff must allege 1) the

commencement of a judicial proceeding; 2) the legal causation by the Defendant against the

Plaintiff; 3) its bona fide termination in favor of the Plaintiff; 4) the absence of probable cause

for the prosecution; 5) malice and 6) damages. Hickman v. Barclay’s International Realty, Inc.,

16 So.3d 154, 155 (Fla. 4th DCA 2009). The Plaintiff has failed to allege these elements in the

Complaint and fails to state a cause of action for malicious prosecution.

The Plaintiff cannot support or sustain a cause of action for malicious prosecution for a

number of reasons. First, there was no commencement of judicial proceedings against the

Plaintiff. Second, and most importantly, there was no bona fide termination in favor of the

Plaintiff. The Plaintiff was found to have violated his release conditions and returned to the

Federal Bureau of Prisons for 81 days. (Complaint, p. 46). Third, probable cause existed as the

Plaintiff admittedly drove a vehicle and possessed a cell phone in violation of the terms of his

halfway house/home confinement. (Exhibit C, to the Complaint, p. 15-21) Since the Plaintiff

has not, and cannot establish the elements of malicious prosecution, especially the key elements

of the commencement of a judicial proceeding and termination of the proceeding in favor of the

Plaintiff, this theory of recovery must also be dismissed with prejudice.

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d. Abuse of process.

To set forth a cause of action for abuse of process, the Plaintiff must allege three

elements: 1) that the Defendant made an illegal or improper use of process; 2) that the

Defendant had ulterior motives or purposes in exercising such illegal, improper or perverted use

of process and 3) that, as a result of such action on the part of the Defendant, the Plaintiff

suffered damage. S & I Investments v. Payless Flea Market, 36 So. 3d 909, 917 (Fla. 4th DCA

2010). The usual case of abuse of process involves some form of extortion. Id. The Plaintiff

must prove that the process was used for an immediate purpose other than that for which it was

designed. Biondo v. Powers, 805 So. 2d 67, 69 (Fla. 4th DCA 2002).

In the Complaint, the Plaintiff fails to allege the use of any use of process. Even if the

use of process is alleged, which is denied, the Complaint fails to allege the use of any process for

any purpose other than for which it was designed. For example, if any Defendant used the

Disciplinary Report System, the Report was used for no other purpose than that for which it was

designed. (Complaint, Exhibit C, and p. 25) Even if any Defendant used any process for spite or

ulterior purpose, this type of alleged action does not and cannot constitute abuse of process.

Under Florida law, there is no abuse of process when the process is used to accomplish the result

for which it was created, regardless of the incidental or concurrent motive of spite or ulterior

purpose. S & I Investment, 36 So. 3d at 917. In this case, the Disciplinary Report was used for

its proper purpose-specifically to document an alleged violation by someone serving a sentence

for a criminal act. Even if any Defendant took action against the Plaintiff for any personal

reason, since the alleged process was used to accomplish the result for which is was created, the

motive of any Defendant is irrelevant. Accordingly, this theory of recovery must be dismissed

11



with prejudice because the Plaintiff has not and cannot state a cause of action for abuse of

process.

e. Negligence and Gross Negligence

The elements required to properly allege a cause of action for negligence are duty and a

breach of that duty which causes damages. Clay Electric Cooperative v. Johnson, 873 So. 2d

1182, 1185 (Fla. 2004). The Complaint is devoid of any recitation of the elements necessary for

negligence or gross negligence. Most importantly, the Complaint fails to allege any duty owed

by the Defendants to the Plaintiff that was breached. Accordingly, this theory of recovery must

be dismissed. The Plaintiff has also alleged that he is entitled to punitive damages. Section

768.72, Florida Statutes, prevents the maintenance of a claim for punitive damages unless there

is a reasonable showing by evidence in the record, or proffered by the claimant which would

provide a reasonable basis for recovery of such damages. In Simeon, Inc. v. Cox, 671 So. 2d 158,

160 (Fla. 1996), the Supreme Court held that a Complaint which is signed by the plaintiff under

oath is insufficient to fulfill the procedural requirements of Section 768.72, Florida Statutes. The

Complaint fails to allege any conduct by any Defendant which would support a claim for

punitive damages. Since the Plaintiff has not made the necessary proffer of evidence in the

record, the allegations of punitive damages must be stricken.

4. The Complaint fails to allege any tortious conduct or violations of Federal Law
or the Constitution, assuming causes of action were properly plead, which is
denied by the Defendants.

a. First Amendment

The Complaint is devoid of any allegations that the Plaintiff’s right to freedom of

expression vas violated. The Complaint fails to contain any allegations that any Defendant

12



interfered with the Plaintiff’s freedom of speech or expression. At best, the Complaint alleges

that the Plaintiff did not receive a BP-9 form. However, the exhibits to the Complaint,

specifically, Exhibit E, demonstrate that the requests for BP-9 forms were made to Case Manager

Price and Unit Counselor of the Federal Bureau of Prisons, not Dismas or its employees.

Accordingly, any theory of recovery under the First Amendment must be dismissed.

b. Fourth Amendment

The Complaint fails to set forth any violations of the Fourth Amendment right to

wrongful search and seizure. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (U.S. 1971).

The Plaintiff, at all material times, was serving out a criminal sentence under the Federal Bureau

of Prisons. The Plaintiff admittedly appeared at Dismas property operating a vehicle without

authority to drive a vehicle. (Complaint, Exhibit C and p. 25). Since the search of the vehicle

was permissible, the Complaint fails to allege a wrongful search and seizure. Since the Plaintiff

did not own the vehicle or cell phone, none of his property was searched or seized. Any property

properly held by Dismas, is available for the Plaintiff to pick up. However, the Plaintiff refuses

to pick up his property. Certainly, Dismas cannot be responsible for holding property that the

Plaintiff refuses to pick up. Accordingly, no violations of the Fourth Amendment occurred.

c. Fifth and Fourteenth Amendments

The Fifth Amendment states that “no person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the Militia, when in actual service in time of War

or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be

13



deprived of life, liberty, or property, without due process of law; nor shall private property be

taken for public use, without just compensation.” The Complaint is devoid of any allegations

that the Plaintiff was deprived of due process by the Defendants.

The Plaintiff, as is evidenced by the attachments to the Complaint, did receive proper

notice of his violation. Exhibit C, the Disciplinary Report, was even signed by the Plaintiff. The

Plaintiff even wrote a response to the Report. The Plaintiff was not subjected to

“double jeopardy” by the Defendants. As is alleged in the Complaint, the Plaintiff was allegedly

punished once for his violations by Dismas. (Complaint, p. 25) The Plaintiff alleges he was

punished a second time for his violations by the Bureau of Prisons, not the Defendants.

(Complaint, p. 43-45) If the Plaintiff was subjected to double jeopardy, which is denied, then his

lawsuit should be against the entity who punished him a second time, the Federal Bureau of

Prisons, not the Defendants.

Plaintiff also appears to be alleging that his Due Process Rights were violated because he

was not provided with BP-9 Form. (Complaint, p. 53) However, the exhibits to the Complaint,

specifically, Exhibit E, demonstrate that the requests for BP-9 forms were made to Case Manager

Price and Unit Counselor of the Federal Bureau of Prisons, not Dismas or its employees.

Accordingly, the Complaint is devoid of any allegations to support a theory of recovery for

violations of any due process rights.

d. Eighth Amendment

The Plaintiff alleges that his Eighth Amendment Rights were violated because he was

subjected to cruel and unusual punishment. The Plaintiff fails to remember that he was serving a

prison sentence and was still under the control of the Federal Bureau of Prisons when the events

14



listed in the Complaint occurred. The Complaint fails to set forth any cruel or unusual

punishment. The Plaintiff was removed from Home Detention and assigned three weeks of extra

light duty and Dismas. The Plaintiff also lost his weekend pass from Dismas for three weeks and

was not allowed visitation for three weeks. This cannot constitute cruel or unusual punishment.

The Plaintiff also was send to the Federal Detention Center in Miami. This is not cruel or

unusual punishment. Certainly, someone who served time in a correctional institution and was

still serving his sentence cannot complain that being sent to a detention center was cruel or

unusual. Once again, the Defendants did not confine the Plaintiff. The Plaintiff was held by the

Federal Bureau of Prisons.

5. The Complaint fails to allege any causes of action under Federal Law.

Again, the Defendants deny that the Complaint properly pleads any causes of action

under Federal or State law. The Plaintiff filed this action in Federal Court for purported

violations of his Constitutional Rights. As is shown above, the Complaint fails to allege any

cause of action.

The Plaintiff has failed to set forth a Bivens action. Bivens actions allow for damages

and remedies for constitutional violations committed by federal agents. Bivens v. Six Unknown

Named Agents, 403 U.S. 388 (U.S. 1971). The Plaintiff cannot maintain a cause of action under

Federal Law against Dismas or its employees because the Defendants are not Federal Agents.

The Plaintiff even admits that Dismas is a private non-profit corporation known as a CCC

Contractor and is not part of the U.S. Federal Government. (Complaint, p. 36).

15



CONCLUSION

For the reasons set forth above, the Complaint against all the Defendants must be

dismissed. The Complaint fails to set forth any actionable tort. The Complaint fails to set forth

the necessary legal or factual elements for any cause of action. The Complaint fails to delineate

what each individual Defendant is being sued for. Even if the allegations are accepted as true,

the Complaint fails to set forth a claim upon which relief can be granted. Moreover, since the

Complaint fails to set forth any cause of action under Federal Law. Accordingly, the Complaint

in its entirety must be dismissed.

Respectfully submitted,

EISINGER, BROWN, LEWIS, FRANKEL,
& CHAIET, P.A.
Attorneys for Defendants
4000 Hollywood Boulevard
Suite 265-South
Hollywood, FL 33021
(954) 894-8000
(954) 894-8015 Fax

BY: /S/ David S. Chaiet____________
DAVID S. CHAIET, ESQUIRE
FBN: 963798

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 4th day of May, 2011, I electronically filed the
foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing
document is being served this day on all counsel of record or pro se parties identified on the
attached Service List in the manner specified, either via transmission of Notices of Electronic
Filing generated by CM/ECF or in some other authorized manner for those counsel or parties
who are authorized to receive electronically Notices of Electronic Filing.

__/s/ David S. Chaiet_______________
DAVID S. CHAIET, ESQUIRE
Florida Bar No. 963798

17



SERVICE LIST

Traian Bujduveanu v. Dismas Charities, Inc., et al.
Case No..: 11-20120-CIV-SEITZ/SIMONTON
United States District Court, Southern District of Florida

Traian Bujduveanu
Pro Se Plaintiff
5601 W. Broward Blvd.
Plantation, FL 33317

Tel: (954) 316-3828
Email: orionav@msn.com

18

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