Motion to dismiss civil action

XXX  DEPARTMENT OF HOMELAND SECURITY TRANSPORTATION SECURITY ADMINISTRATION

 

_________________________________
)
)
In the Matter of ) ALJ Docket No.: XXX
)
Samuel Levitz )
)
Respondent. )
Hon. XXX
Administrative Law Judge

 

NOTICE OF MOTION TO DISMISS COMPLAINANT’S CIVIL CASE FOR VIOLATION OF DUE PROCESS.

 

NOTICE IS HEREBY GIVEN that on ______________, 20__, at ___________ __.m., or as soon thereafter as the matter may be heard, in Department _____ of this court, located at _______________ [street address of court], Respondent Samuel Levitz will move for an order that the Complainant’s case be dismissed for lack of due process.  This motion is made on the grounds that the Complainant brought this suit relying on uncompelling evidence, which was found unconvincing by the Criminal Court. The motion is made on the further ground that substantial cost saving will result, and the Respondent’s proprietary interest will be protected if this case is dismissed since it has been going for a long time now.  

 

The motion will be based on this Notice, the attached Memorandum of Points and Authorities, the Declaration of the Respondent, and such other oral and documentary evidence that may be submitted at the hearing. 

 

Dated: ___________________

 

XXX

 

XXX  DEPARTMENT OF HOMELAND SECURITY TRANSPORTATION SECURITY ADMINISTRATION

 

_________________________________
)
)
In the Matter of ) ALJ Docket No.: 19-TSA-0007
)
Samuel Levitz )
)
Respondent. )
Hon. XXX
Administrative Law Judge

 

MOTION TO DISMISS COMPLAINANT’S CIVIL CASE FOR VIOLATION OF DUE PROCESS

 

COMES NOW, the Respondent, XXX  proceeding pro se, and for the reasons and arguments set forth, respectively, moves this Court, pursuant to the 5th Amendment of the XXX Constitution to dismiss the action brought against the Respondent with prejudice for a violation of due process.

 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OT THE RESPONDENT’S MOTION TO DISMISS THE COMPLAINANT’S CIVIL CASE FOR A VIOLATION OF DUE PROCESS 

   

I

PROCEDURAL FACTS

 

  • On XXX, Respondent was arrested, and subsequently, a case was instituted against him.
  •  The Criminal case was struck off once the judge saw the surveillance video evidence.
  • Consequently, the Complainant decided to bring a civil action against the Respondent on the same subject matter.
  • On XXX Complainant issued a Notice of Proposed Civil Penalty to Samuel Levitz (Respondent).
  • An informal conference was held, and Respondent provided financial documentation, but no settlement was reached in this matter.
  • On XXX, Complainant issued a Final Notice of Proposed Civil Penalty and Order.
  • On XXX, Respondent requested a formal hearing by sending an email to the enforcement docket clerk and this attorney.
  • On XXX, Complainant electronically filed its Complaint.
  1. On XXX, the Administrative Law Judge convened a pre-hearing telephone conference, which was duly attended by both parties.
  2.  On XXX, the Administrative Law Judge convened another conference meeting, which was duly attended by both parties.
  3.  On XXX, the Administrative Law Judge convened another pre-hearing conference.
  4.  The Administrative Law Judge scheduled the hearing for XXX, continuing until Friday, XXX, if necessary.
  5.  On XXX, the Administrative Law Judge continued the hearing dates due to the COVID- 19 pandemic.
  6.  Until now, the Complainants have failed to press for the proceeding of the case at the detriment of the Respondent.
  7.  In the last Conference meeting with the two parties of this case, the Administrative Law Judge expressed concerns overdue procedure.

 

II

LEGAL STANDARD

DUE PROCESS

 

  •  All civil actions should be “construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Rule 1, Federal Rules of Civil Procedure.
  •   A broad interpretation of the 5th Amendment protects individuals from, inter alia, exposure to a violation of their rights following long trials. The 5th Amendment states, in part, no person shall: “… be deprived of life, liberty, or property, without due process of law…”.
  •  All parties involved in a case, including the courts, must adopt a process-oriented approach in efforts to improve “the just, speedy, and inexpensive determination of every action,” as called for by the Federal Rules of Civil Procedure. Notably, this principle necessitated the enactment of the Civil Justice Reform Act. 28 U.S.C. § 471-82, (1994).

III

LEGAL ARGUMENTS

DUE PROCESS

 

  •  Delays in civil litigation are the Achilles heel in the Administration of Justice. They are “ceaseless and unremitting.” And for that reason, they counterfeit the intent of the American justice system.
  1.  These delays erode public confidence in the civil justice system. Largely, the delays undermine public faith in the ability of our civil justice system to operate efficiently and, more importantly, equitably.
  2.   Due process rules are meant to protect persons, not from the deprivation, but the unjustified deprivation of life, liberty, or property. Carey v. Piphus, 435 U.S. 247, 259 (1978). The Respondent’s proprietary interest is at stake because of the Complainant’s action. The Complainant abuses this Court by relying on evidence that was found not compelling, by the criminal Court. As the Complainant does this, the Respondent’s proprietary interest is threatened, especially from the civil penalty claimed by the Complainant. 
  3.   Procedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases.” Mathews v. Eldridge, 424 U.S. 319, 344 (1976). Thereby, the purpose of the rules of due process is to protect the interests and rights of the Respondent. A violation of due process rules takes away the shield of protection guaranteed by the 5th Amendment and thus predisposes the Respondent to injustice. 
  4.  The courts have been zealous in protecting the rights of respondents and defendants from evidence that are motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. Greene v. McElroy, 360 U.S. 474, 496–97 (1959). The Complainant’s video evidence clearly shows no ill-will on the part of the Respondent. That explains why the judge at the Criminal Court struck the case off.
  5.   Besides, the Complainant overreacted to the Respondent’s innocent confusion at the airport terminal. As a result of the Complainant’s overreaction, due process has been abused because the Complainant is determined to get the Respondent liable at all costs.
  6.   The subjection of the Respondent to both the failed criminal action and the present civil suit threatens the Complainant’s proprietary interest. Indeed, the Court in Board of Regents v. Roth stated that “(we) must look not to the ‘weight’ but the nature of the interest at stake. . . We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property”. 408 U.S. 564, 569–71 (1972). By necessary implication, the provisions of the 14th Amendment are similar to those of the 5th Amendments. It follows, though the Respondent’s allegation of violation of his proprietary interest seems relatively small, it still constitutes a threat to his interest and, thus, a violation of due process by the Complainant.
     
  7.  In summary, the Court in Mathews v. Eldridge mentioned three requirements to be met to ascertain a violation of due process: the existence of private interest, the denial/ deprivation or risk thereof of that interest, and the role of the government body depriving that interest. 424 U.S. 319, 335 (1976). It follows; the Respondent’s proprietary interest is under threat from the Complainant’s action of instituting this suit after the failed criminal law action, and that made worse by their reliance on uncompelling evidence. 

 

IV

CONCLUSION

 

For the foregoing reasons, the Respondent hereby respectfully requests this Court dismiss the suit against him due to a violation of Due Process. 

 

Respectfully submitted, 

 

Dated: __________________

XXX

XXX

 

CERTIFICATE OF SERVICE

 

I hereby certify that the foregoing motion to dismiss the Complainant’s suit has been sent this day electronically to:

 

Enforcement Docket Clerk

XXX

 

XXX

 

XXX

 

XXX  DEPARTMENT OF HOMELAND SECURITY TRANSPORTATION SECURITY ADMINISTRATION

 

XXX

)
)
Respondent. )
XXXX
Administrative Law Judge

 

I, XXX, being duly sworn, depose and declare as follows.

 

  1. I am the Defendant in the above-captioned matter.
  2. I am over the age of 18 years and am a party to this action. I have personal knowledge of the facts stated in this Declaration, and if called as a witness, could and would testify competently to the truth of the facts as stated herein.
  3.  A criminal action against me following a gross misunderstanding at the airport terminal.
  4. The Criminal Court struck off the Complainant’s action against me for failure to find the video evidence compelling.
  5. Regardless of that, the Complainant proceeded to file a civil suit against me. 
  6. My proprietary interests are under threat out of the Complainant’s action

 

WHEREFORE, the Court grant my motion to quash the Plaintiff’s service with prejudice. 

 

I declare under penalty of perjury that the foregoing is true and correct and that this Declaration was executed on [ENTER DATE].

 

Person Administering the Oath: _________________________

 

Respondent: __________________________  

 

XXX

 

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