9/23/2020 Gmail - Fw: Status of McDonough Cases - Attorney-Client Privileged Eric McDonough Fw: Status of McDonough Cases - Attorney-Client Privileged To: Eric McDonough Speaks for itself. There is no way I should have been sent this. The intent was to damage my belief that you were being wronged. This is what they do. I highlighted their perception of how they view the cases. Not a defense of the City. From: Jon Burgess Sent: Tuesday, June 5, 2018 9:50 AM To: Subject: Fwd: Status of McDonough Cases - A orney-Client Privileged Jon Burgess Councilman City of Homestead Begin forwarded message: From: "Matthew H. Mandel" To: "Jeff Porter" , "Larry Roth" , "Patricia Fairclough" , "Elvis Maldonado" , "Jon Burgess" , "Jenifer Bailey" , "Stephen Shelley" Cc: "George Gretsas" , "Matthew Pearl" Subject: Status of McDonough Cases - Attorney-Client Privileged Dear Mayor and Council: Over the past couple of weeks, there have been a series of emails and Internet posts regarding the alleged status of the City’s ongoing li ga on against James Eric McDonough. For the purpose of clearing up any confusion about the status of these various ma ers, below is a brief synopsis of the ma ers. 1. McDonough v. City of Homestead, Appellate Court: Florida Third District Court of Appeal Case No. 3D16-2462; Lower Court: Miami-Dade Circuit Court Case No. 16-12412 This is the only case that has been disposed of and was a complete loss by McDonough. Here, McDonough sued the City claiming that the City failed to properly respond to a public records request in October 2015. The City claimed that there were a total of 5 records responsive to McDonough’s request and all of them were confiden al and exempt. The trial court, a er conduc ng a private inspec on of the documents, agreed that most of the exemp ons claimed by the City were proper but found that City was not en tled to claim the risk management claims file exemp on for two of the records requested. The City appealed the denial of its exemp ons, and McDonough cross-appealed the documents that the https://mail.google.com/mail/u/0?ik=0e34f33ef3&view=pt&search=all&permmsgid=msg-f%3A1669402720469770412&simpl=msg-f%3A166940272046… 1/4 9/23/2020 Gmail - Fw: Status of McDonough Cases - Attorney-Client Privileged trial court properly withheld from produc on. The appellate court ruled completely in favor of the City (disagreeing with all of McDonough’s meritless asser ons) and held that not only were the claimed exemp ons proper, the trial court should have upheld ALL of the City’s claimed exemp ons. A copy of the appellate court’s ruling agreeing with all of our arguments is a ached. The City then sought and received its appellate costs from McDonough, despite his numerous challenges – all of which were rejected by the courts, and ul mately, he was required to, and did in fact, write a check to the City for $939 for the costs the City incurred in this ma er. A copy of the order awarding the City its costs against McDonough and the check wri en by McDonough are also a ached. 2. McDonough v. City of Homestead, et al., United States District Court, Southern District of Florida Case No. 17-23227 A er having this case previously dismissed, McDonough and his wife again brought dozens of claims against the City, 15 City employees, Miami-Dade County, 14 Miami Dade County employees, Monroe County, 3 Monroe County employees and Campbell Urgent Case and its resident physician, stemming from separate and dis nct incidents occurring from October 2012 all the way through March 2015. This ma er was originally filed before U.S. District Court Judge Kathleen Williams, who dismissed the lawsuit as McDonough’s complaint was procedurally and substan vely deficient. McDonough re-filed the lawsuit (now before U.S. District Court Judge Robert Scola), containing many of the same infirmi es of the original complaint. As such, we have filed an omnibus mo on to dismiss on behalf of all the City defendants, which is now fully briefed and awai ng a ruling from the Court. The mo on, which is a ached, seeks dismissal based on qualified immunity, failure to state a claim, and the statute of limita ons. All other defendants have also filed mo ons to dismiss raising similar issues. The Court sua sponte (on its own) dismissed former City police officer Antonio Aquino, as McDonough failed to mely serve him with process. 3. McDonough v. City of Homestead et al., Miami-Dade Circuit Court Case No. 17-17515 In this case, McDonough asserts that the City’s specific responses to nine of his, at least hundred, records requests purportedly violated Chapter 119, the Public Records Law and that various City employees (including City Manager Gretsas, Police Chief Rolle And City Clerk Sewell) and Weiss Serota (including two of its a orneys, Sam Zeskind and Eric Ste n) violated the Miami-Dade County Charter by allegedly making misrepresenta ons. On May 21, 2018, we had a hearing on various mo ons to dismiss filed by the Defendants. Overall (and despite McDonough’s claims to the contrary), we obtained a favorable result. McDonough’s amended complaint, in its en rety, was dismissed (though it was without prejudice). This means that the judge agreed that McDonough had not properly alleged his claims against the City, City employees, and a orneys. As a result, McDonough will have 10 days to try to clean up his allega ons and file a new amended complaint. In addi on, several claims were dismissed with prejudice (which means they are barred as a ma er of law, and McDonough cannot include them in his second amended complaint). Specifically, all public records claims against City employees or a orneys in their personal capaci es are dismissed and may not be reasserted. Similarly, McDonough may not reassert his public records claims based on the County Charter against any of the Defendants. In addi on, any asser on that our firm took any ac on that was detrimental to the City for our own benefit is absolutely false. While there was a nonmonetary claim against Sam Zeskind (and not the City) for viola on of the County Charter for alleged misrepresenta ons made during various li ga on proceedings, the Court dismissed such claim based upon the li ga on privilege. Once McDonough files his Second Amended Complaint, we will aggressively respond with new mo ons to dismiss directed at each of his new claims and proceed to set the mo ons for hearing on the earliest date the Court has available. https://mail.google.com/mail/u/0?ik=0e34f33ef3&view=pt&search=all&permmsgid=msg-f%3A1669402720469770412&simpl=msg-f%3A166940272046… 2/4 9/23/2020 Gmail - Fw: Status of McDonough Cases - Attorney-Client Privileged 4. McDonough v. Murguido et al., Court: Miami-Dade Circuit Court Case No. 15-08342 CA 08 In this case, McDonough sued City police officer Alejandro Murguido in his personal capacity for common law defama on and inten onal inflic on of emo onal distress arising from Murguido repor ng McDonough’s alleged criminal acts to the Miami Dade County Police Department. Though the case was not brought against the City (despite the City being put on no ce by McDonough of a poten al claim), it was recommended by the City’s insurance company, Travelers, that our firm provide a defense to Murguido under a reserva on of rights. A er inves ga ng Murguido’s complaints, the Miami-Dade Police Department arrested McDonough and charged him with aggravated stalking and corrup on by threat against the public servant. McDonough elected to par cipate in the Miami-Dade County pretrial diversion program, and a er successful comple on of said program, the Miami-Dade County State A orney’s Office dismissed all charges against him. We are currently undertaking discovery efforts and have sought McDonough’s medical and mental health records based upon his claims for emo onal distress and will be seeking summary judgment on behalf of Murguido based upon, among other theories, that McDonough’s voluntary decision to enter the pretrial diversion program admi ed the legality of his arrest as a ma er of law. A ached is a copy of McDonough’s pretrial diversion order from December 19, 2013. If you have any ques ons, as always, please feel free to call Ma Pearl or me. Respec ully submi ed, Matthew H. Mandel Member / Chair, Litigation Division 200 East Broward Blvd., Suite 1900 Fort Lauderdale, FL 33301 P: (954) 763-4242 F: (954) 764-7770 wsh-law.com vCard THINK BEFORE YOU PRINT This message, together with any attachments, is intended only for the addressee. It may contain information which is legally privileged, confidential and exempt from disclosure. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, use, or any action or reliance on this communication is strictly prohibited. If you have received this e-mail in error, please notify the sender immediately by telephone (954) 7634242 or by return e-mail and delete the message, along with any attachments. Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein. https://mail.google.com/mail/u/0?ik=0e34f33ef3&view=pt&search=all&permmsgid=msg-f%3A1669402720469770412&simpl=msg-f%3A166940272046… 3/4 9/23/2020 Gmail - Fw: Status of McDonough Cases - Attorney-Client Privileged 10 attachments 3CM1463-Opinion Affirmed in Part Reversed in part.PDF 32K ATT00001.htm 1K 3CY9916-Order Granting City's Motion to Tax Appellate Costs (conformed).PDF 379K ATT00002.htm 1K 3D04026-Letter from OC Greenstein enc check for $939.28 for apellate costs.PDF 539K ATT00003.htm 1K 3CW0380-2017 058. Homestead Defendants' Motion to Dismiss Complaint.PDF 237K ATT00004.htm 1K PTI Documents (00075330xCA02A).pdf 110K ATT00005.htm 1K https://mail.google.com/mail/u/0?ik=0e34f33ef3&view=pt&search=all&permmsgid=msg-f%3A1669402720469770412&simpl=msg-f%3A166940272046… 4/4