On October 23, 2023 a
Motion,Ex Parte
was filed
involving a dispute between
Murphy, Kevin J,
and
Mergendahl, Ellie C,
for Evictions Residential Non-Monetary
in the District Court of Sarasota County.
Preview
IN THE COUNTY COURT, TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
Kevin J. Murphy,
Plaintiff,
CASE NO.: 2023 CC 006478 NC
vs. DIVISION: Hon. Erika N.
Quartermaine
Ellie C. Mergendahl,
Defendant.
MOTION TO DISMISS PRO SE COMPLAINT BY VEXATIOUS LITIGANT
COMES NOW Defendant Ellie C. Mergendahl, who hereby moves this Honorable Court
to dismiss this instant action with prejudice and as grounds thereof, states as follows:
1 Plaintiff filed the instant eviction case on October 23, 2023, pro se. As of the date of
this Motion, Defendant has not been served with the Summons and Complaint.
However, since Plaintiff uses Defendant’s incorrect address on these papers,
Defendant believes Plaintiff may attempt posted service at that address without her
knowledge. Therefore, out of an abundance of caution, Defendant files this Motion to.
prevent any attempt at a default.
By Order of the Honorable Don T. Hall, Twelfth Judicial Circuit Court Judge, dated
August 22, 2017, Plaintiff was declared a vexatious litigant pursuant to Section
68.093 Fla. Stat. Per 90.202(6) Fla. Stat., Defendant requests this Court take judicial
notice of that Order (filed in Caddy Carts Inc., v. Kevin Murphy, Sarasota County
Circuit Court case number 2017 CA 002734 SC)
Plaintiff filed this action without posting any security for the benefit of Defendant.
Further, the forestated Order, and 68.093(5) Fla. Stat. requires that Plaintiff must
obtain leave from the administrative judge of this Circuit prior to commencing any
new action on a pro se basis. There is no evidence to suggest this was ever done.
According to 68.093(4) Fla. Stat. disobedience of that Order is punishable as
contempt of court.
Filed 10/30/2023 10:44 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL
5. There is no reasonable likelihood that Plaintiff will prevail in the instant eviction
case. The complaint alleges Defendant is indebted to Plaintiff for unpaid rent.
However, Defendant vacated the subject property on September 22, 2023, the date
Plaintiff requested she do so in a termination notice that he hand delivered, and over a
month before the complaint was filed. There are other defects in the case, including
inadequate posting of the requisite three-day notice prior to filing.
In fact, this very Court previously dismissed another of Plaintiffs pro se cases after
he was declared a vexatious litigant. See Kevin Murphy v. Ultimate Clip LLC,
Sarasota County case number 2019 CC 000294 SC.
Since being declared a vexatious litigant, Plaintiff has not posted security in any case
that he has initiated or been ordered to do so. The required leave to file the instant
action was not obtained. Likewise, he has not done so here.
WHEREFORE, Defendant respectfully moves this Court to dismiss this case in its
entirety and with prejudice. If the Court is not inclined to immediately dismiss this case,
alternatively, Defendant requests the Court treat this Motion according to 68.093(3)(a) Fla. Stat.
and require Plaintiff to provide security.
dk 0. Megeblh
Ellie C. Mergendahl U
Defendant
5718 Seven Oaks Drive
Sarasota, Florida 34231
941-928-5672
CERTIFICATE OF SERVICE
I HEREBY CERTIFY a true and correct copy hereof was served upon Plaintiff Kevin J.
Murphy by U.S. Mail at 1870 Mid Ocean Cir., Sarasota, FL 34239 on this
20 day of October, 2023.
Lote Upped l
Ellie C. Mergendahl
Defendant
5718 Seven Oaks Drive
Sarasota, Florida 34231
941-928-5672
2
Document Filed Date
October 30, 2023
Case Filing Date
October 23, 2023
Category
Evictions Residential Non-Monetary
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IN THE COUNTY COURT, TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA Kevin J. Murphy, Plaintiff, CASE NO.: 2023 CC 006478 NC vs. DIVISION: Hon. Erika N. Quartermaine Ellie C. Mergendahl, Defendant. MOTION TO DISMISS PRO SE COMPLAINT BY VEXATIOUS LITIGANT COMES NOW Defendant Ellie C. Mergendahl, who hereby moves this Honorable Court to dismiss this instant action with prejudice and as grounds thereof, states as follows: 1 Plaintiff filed the instant eviction case on October 23, 2023, pro se. As of the date of this Motion, Defendant has not been served with the Summons and Complaint. However, since Plaintiff uses Defendant’s incorrect address on these papers, Defendant believes Plaintiff may attempt posted service at that address without her knowledge. Therefore, out of an abundance of caution, Defendant files this Motion to. prevent any attempt at a default. By Order of the Honorable Don T. Hall, Twelfth Judicial Circuit Court Judge, dated August 22, 2017, Plaintiff was declared a vexatious litigant pursuant to Section 68.093 Fla. Stat. Per 90.202(6) Fla. Stat., Defendant requests this Court take judicial notice of that Order (filed in Caddy Carts Inc., v. Kevin Murphy, Sarasota County Circuit Court case number 2017 CA 002734 SC) Plaintiff filed this action without posting any security for the benefit of Defendant. Further, the forestated Order, and 68.093(5) Fla. Stat. requires that Plaintiff must obtain leave from the administrative judge of this Circuit prior to commencing any new action on a pro se basis. There is no evidence to suggest this was ever done. According to 68.093(4) Fla. Stat. disobedience of that Order is punishable as contempt of court. Filed 10/30/2023 10:44 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 5. There is no reasonable likelihood that Plaintiff will prevail in the instant eviction case. The complaint alleges Defendant is indebted to Plaintiff for unpaid rent. However, Defendant vacated the subject property on September 22, 2023, the date Plaintiff requested she do so in a termination notice that he hand delivered, and over a month before the complaint was filed. There are other defects in the case, including inadequate posting of the requisite three-day notice prior to filing. In fact, this very Court previously dismissed another of Plaintiffs pro se cases after he was declared a vexatious litigant. See Kevin Murphy v. Ultimate Clip LLC, Sarasota County case number 2019 CC 000294 SC. Since being declared a vexatious litigant, Plaintiff has not posted security in any case that he has initiated or been ordered to do so. The required leave to file the instant action was not obtained. Likewise, he has not done so here. WHEREFORE, Defendant respectfully moves this Court to dismiss this case in its entirety and with prejudice. If the Court is not inclined to immediately dismiss this case, alternatively, Defendant requests the Court treat this Motion according to 68.093(3)(a) Fla. Stat. and require Plaintiff to provide security. dk 0. Megeblh Ellie C. Mergendahl U Defendant 5718 Seven Oaks Drive Sarasota, Florida 34231 941-928-5672 CERTIFICATE OF SERVICE I HEREBY CERTIFY a true and correct copy hereof was served upon Plaintiff Kevin J. Murphy by U.S. Mail at 1870 Mid Ocean Cir., Sarasota, FL 34239 on this 20 day of October, 2023. Lote Upped l Ellie C. Mergendahl Defendant 5718 Seven Oaks Drive Sarasota, Florida 34231 941-928-5672 2