Plaintiff Heady files Motion in Opposition response to Vero Beach

Update: At about 3 p.m. Monday, Heady filed his motion with the U.S. District Court at the courthouse in Fort Pierce.VERO BEACH — Representing himself in federal court, Vero Beach Councilman Brian Heady spent the weekend getting a couple of lawyer friends to proof the pleading he’s filing Monday urging Judge Kevin Michael Moore not to dismiss his case.

“On Monday, I expect to file a Motion to Deny their Motion to Dismiss,” Heady said. In May, Heady filed a suit in U.S. District Court against the City of Vero Beach alleging that the city’s electric contract with the Orlando Utilities Commission was not legally enforceable and that members of the city council had trampled on his right to freedom of speech.

Heady also claims the city did not adequately maintain records in conjunction with the OUC contract and that public records laws have been violated due to the city’s lack of disclosure of documents and that a Boston consultant was the custodian of those documents.

The city’s attorney H. Randal Brennan filed a response asking the court to dismiss the case. Grounds for dismissal in the city’s argument center around the claim that the federal court has no jurisdiction over the case.

In his response, Heady said he re-emphasizes the parts of his complaint which, in his opinion, clearly deal with federal issues.

“In the city’s memorandum of law which they filed, they state that there are civil rights issues being alleged in this case,” Heady said. “If there are civil rights issues, then the federal court obviously has jurisdiction.”

The other part of the city’s argument that Heady negates is the assertion that he should have included OUC as a party to the contract matter.

“I am not saying that OUC did anything wrong,” Heady said. “If the city has some information that OUC officials participated in making the changes to the contract and not disclosing that to the Mayor before he signed the contract, then the city needs to join OUC to the complaint, not me.”

Heady said Brennan also wrote in a portion of the response dealing with procedure that the court is obligated to issue a ruling that is most favorable to the plaintiff.

Brennan has previously said that, in his experience, he thought Judge Moore would give Heady every “benefit of the doubt” as a pro se litigant.

Despite the conventional wisdom that the case is doomed – that it will never see the inside of a courtroom – Heady is still very optimistic.

“I don’t see how the federal court could say they don’t have jurisdiction in this case,” Heady said. “And I see very little chance of the judge dismissing it with prejudice, which would preclude me from amending and filing the case again.”

The court could basically send Heady back to the drawing board to rework his complaint for legal sufficiency.

Brennan had agreed that this might be an outcome, though he fully expects the case to be dismissed.

A ruling on the Declaratory Judgment is expected in the next few weeks. If the case ultimately goes to trial, numerous city officials and city staffers, including members of the legal staff, could be called to testify.

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