MOTION FOR CHANGE OF VENUE TO FEDERAL COURT
COMES NOW Plaintiffs, WILLIE R. WIMS, JR., and REGINA R. WIMS, IND, Pro-se hereby file this Motion for Change of Venue pursuant to Fla. Stat.; § 47.101.
FACTUAL BACKGROUND
March 2017
Chancellor was bullied by an African American student at St. Patrick’s school. The situation became so serious that Mrs. Wims decided to speak to the child’s parents about his behavior. The child’s name is Jared Comer. In this situation, Mrs. Wims addressed the issue with Laura Jarosiewicz, the teacher assistant who witnessed the exchange between Chancellor and Jarrell Comer. However, the story was entirely different from the explanation. Mrs. Wims received from Krista Whitehill. After Mrs. Wims contacted the administration, Krista Whitehill stated in an email that she wanted to address the issue immediately, but she did not witness the incident. Chancellor’s punishment was silent lunch even though Mrs. Wims stated that she disagreed with the decision. Jarrell Comer provoked Chancellor, this resulted in silent lunch. Mrs. Wims immediately thought about the incident with Alexis, a white student, in February.
Alexis, a white student, cursed at Chancellor and was permitted to have Safety Patrol privileges still. Chancellor and Jarrell Comer are African American students, and both had silent lunch as punishment. This situation is indicative of the racial discrimination present at Saint Patrick Interparish School.
March 2017.
The third nine weeks of the school year, Chancellor’s teacher, Kristie Whitehill, informed the students that they had an opportunity to increase their grade by bringing items for Catholic Charities. Mrs. Wims emailed Krista Whitehill that evening and requested that she apply the extra credit to Chancellor’s course with the lowest grade. Chancellor’s grades in Religion and Social Studies were in the high 70s (77-79). Chancellor’s grades in his other courses were As and Bs, and he desired to make the A B honor roll as he had previously and throughout the year in 4th grade. Chancellor took a test in religion and earned 100%, which increased his final grade to 81.
Mrs. Wims later received an email from Mrs. Whitehill stating that she reevaluated Chancellor’s status and his final grade was 79. Shocked and disappointed, Mrs. Wims indicated that it would be accepted if Chancellor had earned that grade. However, she requested Ms. Whitehill provide review of Chancellor’s grades/tests/assignments. Mrs. Wims was told by Krista Whitehill that she returned a portion of the grades to Chancellor and that the cleaning staff disposed of the remaining grades- Ms. Whitehill emphatically stated that she had no record of the remaining grades that the cleaning staff discarded. Chancellor was devastated; he was so distraught that he did not want to go to school on Friday because the honor roll ceremony would occur, and he would not be able to participate. Mr. and Mrs. Wims allowed him to remain home for the school day. Chancellor states upon return to school, Ms. Whitehill asked that he return the third quarter grading sheet for the parents to sign. Mrs. Whitehill expressed to Chancellor, “If you do not have your parents sign the report card sheet, you will be placed in silent lunch.”
Mrs. Wims wrote a letter stating that she nor Mr. Wims will agree to sign Chancellor’s report card, and Chancellor should not be penalized for their refusal.
March 2017
Mrs. Wims contacted the Diocese of Saint Augustine to address the challenges their children experience at Saint Patrick Interparish School with Deacon Scott Conway. In March 2017, Mrs. Wims spoke with Deacon Scott Conway to discuss those challenges. He listened as Mrs. Wims informed him of the incidents that she believed warranted further evaluation by the school Diocese of Saint Augustine. He stated he would contact the school and return a phone call to the Wims family for an update. Mr and Mrs. Wims state they never received a return call from Deacon Scott Conway.
March 2017
Mr. Wims entered the office at Saint Patrick’s Interparish School to submit registration fee payment for their sons, Chancellor and Christian Wims, to return to Saint Patrick for the 2017-2018 school year. The principal, Frank Mackritis, met Mr. Wims in the office and stated: “If your family is so unhappy with the school, you could leave.”
The conversation took place in front of the school’s administrative staff. Mr. Wims asked the principal to step outside so others would not be privy to their conversation. Mr. Wims explained to Frank Mackritis that he and Mrs. Wims are aware they could select another school for their children. Frank Mackritis reiterated to Mr. Wims again that they should remove their children if they are not happy. Frank Mackritis later requested a meeting with Mr. and Mrs. Wims. Mrs. Wims informed Frank Mackritis that she began a new job, and the hours that Frank Mackritis selected were not conducive for her.
Additionally, based on their experience with Saint Patrick Interparish School’s administration and Deacon Scott Conway, Mr. and Mrs. Wims did not believe they would receive fair representation. They contacted the Diocese of St. Augustine and expressed their concerns to Deacon Scott Conway, and he did not investigate their problems, nor did he provide a return call as promised to Wims. The Wims family informed Evelyn Foxx of the Gainesville Chapter of the NAACP as an advocate for support; this was not successful either.
March 2017
Ms. Whitehill met Mr. Wims in the parking lot of Saint Patrick Interparish School and stated, “Chancellor, explain to your father what happened today.”
Chancellor Wims proceeded to explain to his father what happened at school. Chancellor Wims stated as he walked back to class after recess, Michael, a white, male student came BEHIND him and fiercely stepped on the heel of his shoes with the intent to trip him (students call this a “flat tire”). Chancellor became angry and hit the student. Eli, another white, male student immediately came behind the previous student and performed the same offense. Chancellor hit the second student too. Ms. Whitehill informed Mr. Wims that Chancellor would receive a demerit for hitting both students. Mr. Wims asked Ms. Whitehill what punishment the other two students will receive. She responded:
Chancellor will receive a demerit, the first student that had performed the “flat tire” will receive a demerit too, but the third student did not intentionally step on Chancellor’s heel. He statedto me that he did not mean to do it, and he is an honest child. He would not kie. Additionally, your wife has stated that your children have a right to defend themselves, and self-defense is not our school policy.
When Mr. Wims questioned the decision about the third child not receiving a demerit, Ms. Whitehill’s response was “You will need to speak with Frank Mackritis if you have questions about Chancellor’s punishment. Mr. Mackritis makes those decisions.”
April 2017
Mr. and Mrs. Wims’ second child, Christian Wims, was a student in Christina Hasko’s second grade class. Ms. Hasko called Mrs. Wims to state that Christian had received 5 DEMERITS because he pulled his pants down at St. Patrick Interparish School’s water fountain. “I did not witness the incident, but two other children informed me that Christian pulled his clothes down at the water fountain. Mrs. Wims, I am a fair person, and I would not give him a demerit unless I felt that he did this.”
Mrs. Wims stated to Ms. Hasko, “I am frustrated because the incidents that our children are experiencing are outright discriminatory in nature and exacerbated as tools to remove the children from Saint Patrick’s Interparish School as well as tarnish our children’s character.”
Mrs. Wims states that Christian was so afraid of Ms. Hasko after the incident that he missed two weeks of school during the last nine weeks of the term due to stomach aches, headaches, and anxiety. Christian Wims had never had any disciplinary or misbehavior issues before the incident.
May 2017
Chancellor Wims read a book titled “Terrors of the Deep” and requested to take an AR (Accelerated Reader) assessment after completing the book. Krista Whitehill had previously stated to Chancellor that if he desired to read books outside his reading range, he would need to ask her permission before selecting the text. Ms. Whitehilll became so infuriated with Chancellor that she took the opportunity to intimidate him by slamming a book down on his desk in front of the entire class. After embarrassing him, she then proceeded to state to him: “You did not ask me to take this reading text! I need to think about allowing you to take the test!”
The incident took place in front of the other students in the class. Chancellor informed his mother, Mrs. Wims, how he was embarrassed and humiliated in class by Ms. Whitehill. Mrs. Wims contacted Ms. Whitehill in an email and told her that she did not have the right to intimidate and bully him by slamming a book down and refusing to take the AR test because it was out of Chancellor’s reading range. Mrs. Wims spoke with Ms. Whitehill the following day and stated: “Your treatment of Chancellor is unacceptable and would not be tolerated. I do not expect this to happen again.”
Chancellor took the Accelerated Reader exam and failed.
May 2017
Ms. Guajardo, a 4th grade teacher that Chancellor had for advanced Math at Saint Patrick’s Interparish School, requested Chancellor’s assignment. When Chancellor submitted the project to her, she stated to him: “Is this your assignment? Are you telling the truth, Chance? Is he telling the truth, Angelina and Nicholas?”
Chancellor was again subjected to embarrassment and humiliation by an instructor at Saint Patrick’s Interparish School. In this situation, Chancellor had submitted the assignment promptly; however, Ms. Guajardo proceeded to ask two white students if Chancellor was telling the truth.
Nicholas responded, “I do not know,” and Angelina responded, “Yes, Chancellor completed and turned in the assignment.”
Again, the administration at Saint Patrick Interparish School violated Chancellor’s right to due process by insinuating that he is a liar and that Chancellor’s word was insufficient, and Ms. Guajardo felt the need to validate Chancellor’s statement and assignments through his peers. Mrs. Wims also stated that his treatment was demeaning and did not warrant Chancellor’s interrogation by Ms. Guajardo.
Mrs. Wims states that she contacted the Dioceses of Saint Augustine to follow the chain of command for school complaints. The secretary informed her that she could “receive a return phone call if the organization deemed it appropriate to do so.”
Mrs. Wims states that she and Mr. Wims paid Saint Patrick Interparish School registration fees for the 2017-2018 school year for Chancellor and Christian. Frank Mackritis returned their registration fees without explanation. When Mrs. Wims emailed Frank Mackritis about returning the payments, he stated he requested a meeting, but he did not explain the purpose of their returned check. The fee return indicated the administration did not want the children to return to Saint Patrick Interparish School for the 2017-2018 school year.
There are additional incidents that Mr. and Mrs. Wims experienced at Saint Patrick Interparish School that they believe warrant further investigation. There are documented incidents that display a long-term history of racial discrimination, mainly since Chancellor and Christian Wims have attended the school. After their dismissal, they were treated for anxiety and stress during the summer of 2017.
They will return to counselling due to an evaluation by their pediatrician of recurring anxiety and stress.
- December 2016- Four African American families were forced to leave Saint Patrick Interparish School during the 2016 Christmas break. Their circumstances were identical to the Wims children; racial discrimination and intimidation accompanied by unsubstantiated accounts of behavior issues.
- Mrs. Wims notes that no African American teachers at SAINT Patrick Interparish School represent diversity and inclusivity even though they receive Title 1 funds. A significant number of African American children participate in the remedial program.
- Mrs. Wims visited the Director of Title 1 in Alachua County, Pam Diaz. When Mrs. Wims initially met Pam Diaz, she confirmed that Saint Parish Interparish School was a recipient of Title 1 funds form Alachua County and the Florida Department of Education. After the school’s administration became aware of Mrs. Wim’s intentions to file a complaint, Mrs. Wims states she attempted to visit with Pam Diaz again. Pam Diaz refused to see or speak with Mrs. Wims a second time.
- Mrs. Wims states that she requested the children’s academic records and was sent a handwritten, incomplete academic record for Chancellor. The Family Educational Rights and Privacy Act states schools that receive federal funding from the Department of Education must abide by the requirement to honor the families requst of their child’s academic record. Mrs. Wims also requested for electronic communication and St. Patrick Interparish failed to comply.
PROCEDURAL BACKGROUND
On or about April 13, 2021, Defendants filed a Motion to Dismiss Plaintiffs’ Complaint making various allegations. Notably, Defendants allege inter alia, that Plaintiffs’ Complaint: fails to state a cause of action against the Defendants; falls short of sufficient material facts; fails to state the legal state of the named Defendants, fails to set forth a claim for relief, failed to provide a statement of the Court’s jurisdiction, and failed to state a demand for judgment. Plaintiff filed a Reply thereof in form of a Motion to Amend the Complaint.
STANDARD FOR GRANTING OF LEAVE TO CHANGE VENUE
Fla. Stat.; § 47.122 allows for Change of venue in the interest of justice. It provides in that regard that: “For … the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.”
Denying a motion for change of venue and the common law venue privilege may be unconstitutional as a denial of due process under the Fourteenth Amendment to the United States Constitution and Article 1 Section 21, of the Florida Constitution.
Denial of a motion to change venue may also amount to an abuse of discretion by the Court. Manning v. State, 378 So. 2d. 274.
ARGUMENTS
IT IS IN THE INTEREST OF JUSTICE TO CHANGE VENUE
In statutory construction, it has been held that statutes must be given their plain and obvious meaning. Maryland Casualty Company v. Sutherland, 125 Fla. 282, 169 So. 679 (1936).
The venue may be statutorily proper, but it may not be an appropriate or best forum. The Florida Supreme Court in Kinney System, Inc. v. Continental Ins. Co., 674 So. 2d 86 (Fla. 1996) set forth four factors for use in deciding where a case is most fairly and conveniently litigated. A trial court is to consider these four factors:
- the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties;
- the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice;
- if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and
- the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.
In the instant action, Plaintiffs aver that this Court has jurisdiction over this case. However, public interest in this case favors the change to the Federal Court. Notably, this case involves a violation of not only State, law, but also Federal law under the U.S. Constitution. For instance, Plaintiffs have a claim of racial discrimination and violation of due process rights, which are protected under the Fifth and Fourteenth Amendments of the U.S. Constitution.
WHEREFORE, Plaintiffs pray that the honorable Court grant:
An Order granting Plaintiffs’ Motion for a Change in Venue;
An Order moving this matter to the Federal Court of this State.
DATED: ______________
CERTIFICATE OF MAILING
I, [ENTER NAME], certified on this day of [ENTER DATE] 2021, I deposited a true copy of the above to the defendant by placing the documents with prepaid postage in the United States mailbox address to each person.
Respectfully submitted,
DATED: _____________
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