PEOPLE'S LEGAL FRONT

IN THE 31^ST JUDICIAL CIRCUIT FOR

THE STATE OF MISSOURI, COUNTY OF GREENE

Lee Allen Martin, plaintiff - Pro Se Plaintiff, Vs Brenda Cirtin Custodian of Records - City of Springfield

) ) ) ) ) ) ) )

Case No.: 198CC4528

Plaintiff's suggestions in Opposition to Motion to Dismiss

Comes now the plaintiff, Lee Allen Martin, and does present the following points against the Defendant's Motion to Dismiss. Defendant in his motion filed on the 9^th day of March 1999, Motion to Dismiss, does state that the Plaintiff's Petition for Declaratory Judgement to Open Public Records does fail to state a claim for which relief can be granted.

Plaintiff notes that the defendant's motion to dismiss cites no legal authority and leaves it up to the honorable court to agree or disagree. Plaintiff asks the Honorable Court to note this is an action arising out of the Sunshine Laws, Chapter 610 RSMo, specifically 610.023 as stated in the Plaintiff's petition. Plaintiff asks the Honorable Court to take notice of the prayer for relief in the conclusion of petition requesting an order from the Honorable Court to make public records available. Further, plaintiff cites Mulligan v. Truman Medical Center 950 S.W. 2^nd 576 paragraph 14:

On review of a trial court's dismissal of a petition for failure to state a claim upon which relief can be granted, "the facts averred in the pleading are assumed to be true and are construed liberally in favor of appellant." Johnson v. Kraft General Foods, Inc., 885 S.W.2d 334, 335 (Mo. banc 1994). "A petition is sufficient to withstand a motion to dismiss for failure to state a claim if it invokes substantive principles of law entitling plaintiff to relief and alleges ultimate facts informing defendant of that which the plaintiff will attempt to establish at trial." Ritterbusch v. Holt, 789 S.W.2d 491, 493 (Mo. banc 1990). A pleading states a claim if there is any basis for relief within the facts pleaded. Yoest v. Farm Credit Bank of St. Louis, 832 S.W.2d 325, 328 (Mo. App. 1992).

Under the guidelines established by the Western District Court of Appeals for the State of Missouri in Mulligan v. Truman Medical Center 950 S.W. 2^nd 576 Plaintiff feels his petition does meet the sufficiency to withstand the defendants motion to dismiss for failure to state a claim. The defendant has failed to file an answer to the complaint within the time allowed by the Missouri Supreme Court Rules, and thereby does relinquish all right to provide one to the Honorable Court at this late date. Further, Defendants Motion to Dismiss requests that plaintiff's petition be dismissed with prejudice. Plaintiff cites Missouri Supreme Court Rule 67.03: "Any involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify." For the Honorable Court to dismiss with prejudice is to say that the policies of the City of Springfield are not subject to Chapter 610 of the RSMo. Which would tend to deny this plaintiff any access to public records that the defendant would tend to keep out of public view.

Therefore, the plaintiff must ask that the court overrule the defendant's motion to dismiss and set a court date in the near future to hear the merits of plaintiff's petition.

Respectfully Submitted,

Lee Allan Martin * Plaintiff * 15^th day of March 1999

309 N Jefferson Ave., suite 220

Springfield, Mo. 65806-1108

Phone #2

e-mail lee@ctyme.com

 

 

 

CERTIFICATE OF SERVICE

I, Lee Allen Martin, do hereby swear and affirm that one true and accurate copy of the foregoing has been mailed, via prepaid first class mail, to Brenda Cirtin Busch Municipal Building 840 Boonville Springfield Missouri 65802 on this date 15th day of March 1999.

So certified: _____________________________

Lee Allen Martin

 

 

 

NOTICE OF HEARING

All pending motions will be called before the Court for hearing on March 23, 1998 at 9:00 a.m. or as soon thereafter as Petitioner may be heard.

______________________________

Lee Allen Martin

 

[Forum] [EMail] [Index] [Home]

Self Help Law Library

Case Law $7/Month 50 States + Fed
I use this service.

We push the limits on discount hosting!