montgomery v risen # 138 montgomery supp to opp to supp

8/20/2019 Montgomery v Risen # 138 Montgomery Supp to Opp to Supp

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IN UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 15-cv-20782-Martinez-Goodman

DENNIS MONTGOMERY,

Plaintiff,

v.

RISEN, ET AL.

Defendants.

_____________________________/

SUPPLEMENT TO PLAINTIFF’S OPPOSITION TO NOTICE OF SUPPLEMENTAL

AUTHORITY CONCERNING DEFENDANTS’ MOTION TO DISMISS OR TRANSFER

Plaintiff Dennis Montgomery hereby supplements his Opposition to Notice of

Supplemental Authority Concerning Defendants’ Motion to Dismiss or Transfer (Plaintiff’s

Opposition).

On September 10, 2015, Plaintiff filed his Opposition to Notice of Supplemental

Authority Concerning Defendants’ Motion to Dismiss or Transfer and outlined his legal and

factual arguments why Defendants’ motion to supplement the record should stricken and/or be

denied. As noted in Plaintiff’s Opposition, attached as Exhibit 2 to this pleading is the complete

and undistorted testimony of Dennis Montgomery, confirming that he indeed is a citizen of and

is a domiciliary of Florida, as he is registered to vote in Florida, has Florida telephone numbers,

and, for the time being, cannot fully physically move to Florida because of his failing health.

In their Notice of Supplemental Authority, Defendants use disingenuous, “ bullet-points”

attempting to convince this Court that Plaintiff Montgomery resides in Washington, improperly

withhold testimony, and fail to provide a complete account of Plaintiff Montgomery’s testimony

throughout his deposition held on August 20, 2015. Under the Florida Rules of Professional

Case 1:15-cv-20782-JEM Document 138 Entered on FLSD Docket 09/15/2015 Page 1 of 5


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Conduct, Rules 4-3.3 and 4-3.4, pro hac vice out-of-state counsel, who are now laboring under

Florida law and professional standards, have a duty of candor toward the tribunal.

As set forth in attached Exhibit 2, which in his Opposition Plaintiff said would be

supplemented once the full transcript was obtained from the court reporter, Plaintiff Montgomery

testifies that he lives in Miami and when questioned, provides an address. He also testifies that

he was delayed in physically moving to Florida “with furniture and everything because I had

fallen and injured myself in Seattle.” See Exhibit 2. Additionally, Plaintiff Montgomery testifies

that his doctors have been in contact with neurosurgeons and “neuro people” in Miami in order

for him to be placed in the correct facility in Miami. Id.

As he has in previous sworn affidavits, both attached as Exhibit 3 of his Opposition,

Plaintiff Montgomery even outlines the steps he has taken at all material times in furtherance of

and which show his Florida citizenship and domicile in Florida. Id. For instance he testifies

further:

Q: Mr. Montgomery, where do you live?

A: In Miami.

Q: What’s your address in Miami?

A: 675 85th Northwest, Number 103. (The street number is not being put on the record

for security reasons). See Exhibit 2, all highlighted portions of transcript. In addition, Plaintiff

Montgomery testifies regarding his phone numbers.

Q: Do you have a Florida telephone number?

A: Yes.

Q: When did you obtain that?

A: I think in March of 2000 – this year.



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Q: ’15?

A: This year, ’15, yes.

Q: Is that for a cell phone or hardline phone?

A: Both. I believe I had a fax phone and cell phone.

See Exhibit 2.

To determine a person's domicile, the courts consider a number of factors including:

current residence, voting registration and other indicia of citizenship and domicile. Lew v. Moss,

797 F.2d 747, 749-750 (9th Cir. 1986). Where a good-faith intention is coupled with removal

evidenced by positive overt acts, then the change of residence and domicile is accomplished and

becomes effective. See Fla. Jur. 10, § 11; Bloomfield v. St. Petersburg Beach, 82 So.2d 365, 368

(Fla. 1955).

Thus, in their Notice Defendants attempted to distort the record, as they did when they

first submitted an affidavit in their initial motion to dismiss which stated falsely under oath that

Plaintiff Montgomery had not registered to vote. As a result, as Plaintiff Montgomery promised

in his Opposition the full transcript portions are now being provided, to eliminate any prejudice

to him and his rights, and so this Court will have a complete, undistorted record of the relevant

deposition testimony, which supplements the Plaintiff’s affidavits.

For these and other compelling reasons, Defendants’ Notice should be stricken and their

motion to dismiss should respectfully be denied

Dated: September 15, 2015

Respectfully Submitted,

/s/ Larry KlaymanLarry Klayman, Esq.



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FL Bar No. 246220

7050 W Palmetto Park Rd.

Suite 15-287Boca Raton, FL 33433



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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 15th day of September 2015, a true and correct copyof the foregoing was served via CM/ECF upon the following:

Sanford Lewis Bohrer

Brian Toth

Holland & Knight, LLP

Suite 3000

701 Brickell AveMiami, FL 33131

Email: [email protected]


Laura R. Handman

Micah Ratner

Davis Wright Tremaine LLP1919 Pennsylvania Ave., N.W., Suite 800

Washington D.C. 20006-3401



Attorneys for Defendants

/s/ Larry Klayman

Larry Klayman, Esq.



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Exhibit 2

Case 1:15-cv-20782-JEM Document 138-1 Entered on FLSD Docket 09/15/2015 Page 1 of 20


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montgomery v risen # 138 montgomery supp to opp to supp

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