On December the State Attorney filed his Motion to Dismiss Plaintiffs Complaint Notably this filing put Plaintiff on notice that Despite Plaintiffs allegations to the contrary Defendant Aronberg is not in custody or control of the records sought and is therefore not a proper party to this action On December the Clerk also filed a Motion to Dismiss On January Plaintiff filed its First Amended Complaint which in addition to its original claim under Fla Stat Count II added a claim for Declaratory Relief Count I that sought an order declaring that the State Attorney and the Clerk disclose the Requested Materials so Plaintiff could use those materials for the purpose of informing the public On January the State Attorney and the Clerk each filed an Answer to Count I of the First Amended Complaint and a Motion to Dismiss Count II Answer/Motion to Dismiss This filing by the State Attorney again notified Plaintiff that It is significant to emphasize that despite Plaintiffs allegations to the contrary Defendant Aronberg and the Office of the State Attorney for the Fifteenth Judicial Circuit are not in custody or control of the records sought herein and therefore Defendant Aronberg is not a proper party to this action In fact Defendant Sharon Bock as Clerk and Comptroller of Palm Beach County Florida admits that it is the custodian in possession of the documents that are the subject of this action See Aronberg Answer/Motion to Dismiss Count II On June Chief Judge Marx held a hearing on the State Attorneys and Clerks Motions to Dismiss Count II Def.Ex.2 On June the Court entered its Order Granting Defendants Motions to Dismiss Count II of Plaintiffs First Amended Complaint with Prejudice Order Def.Ex.3 Immediately following the Courts Order on June the State Attorney through the undersigned counsel served Plaintiff with a demand pursuant to Fla Stat to voluntarily dismiss/withdraw the First Amended Complaint and the claims against the State Attorney along with a Motion for Attorneys Fees Demand Def.Ex.4 As a result of the Order only Count I of Plaintiffs First Amended Complaint remained which sought Declaratory Relief under Fla Stat In serving his Demand on Plaintiff the State Attorney properly put Plaintiff on notice that he would seek sanctions by filing the Motion for Attorneys Fees if Plaintiff failed to dismiss the remainder of its First Amended Complaint within days of service of the Demand that Likewise the State Attorneys Demand specifically informed Plaintiff First and foremost the First Amended Complaint is not supported by the material facts necessary to establish the claims asserted because neither Defendant Aronberg nor The Office of the State Attorney for the Fifteenth Judicial Circuit is in custody or control of the grand jury materials sought therein Simply put the declaratory relief sought by the Plaintiff seeks records from my client that are impossible for him or his office to produce Accordingly Defendant Aronberg is not a proper party to this action because no matter what he and his office do not have possession custody or control of the Requested Materials Moreover even if the Plaintiff were to prevail in the declaratory action Mr Aronberg would be unable to comply with any court order granting disclosure of the requested documents because neither Mr Aronberg nor The Office of the State Attorney for the Fifteenth Judicial Circuit have possession custody or control of the Epstein grand jury records On June Plaintiffs counsel sent a response to the Demand refusing to withdraw the remainder of the First Amended Complaint as to the State Attorney Def.Ex.SJ After receiving Plaintiffs June response refusing to withdraw the remainder of the First Amended Complaint and waiting the prerequisite days after service of the motion the State Attorneys Motion for Attorneys Fees was filed with this Court on July hereinafter First Motion for Attorneys Fees Def.Ex.6 Thereafter on August the State Attorney filed his Motion for Summary Judgment which included the Affidavit of the State Attorney Affidavit Def.Ex.7 and proceeded on October to file a Motion to Set Hearing on the State Attorneys Motion for Summary Judgment after it became clear that there would be no resolution of this matter without the Courts intervention Nonetheless later the same day October rather than setting and participating in a hearing on the merits as to State Attorneys Motion for Summary Judgment Plaintiff filed its Notice of Dropping the State Attorney from the instant case pursuant to Rule Florida Rules of Civil Procedure Def.Ex.SJ As the filing of Plaintiffs Notice of Dropping the State Attorney operates as an adjudication on the merits as to the State Attorney the Amended Motion for Attorneys Fees Amended Motion was filed November to include the entirety of the State Attorneys legal fees up to that date Def.Ex.9 MEMORANDUM OF LAW I LEGAL STANDARD The central purpose of Fla Stat is and always has been to deter meritless filings and thus streamline the administration and procedure of the courts Thus the post-19 version of has expanded the circumstances where fees should be awarded and the purpose is to deter meritless filings Davis Bailynson So 3d Fla 4th DCA See Bionetics Corp Kenniasty So 3d Fla Accordingly Fla Stat provides the following language authorizing the award of attorneys fees as sanctions in actions such as the present litigation Upon the courts initiative or motion of any party the court shall award a reasonable attorneys fee including prejudgment interest to be paid to the prevailing party in equal amounts by the losing party and the losing partys attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing partys attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial a Was not supported by the material facts necessary to establish the claim or defense or Would not be supported by the application of then-existing law to those material facts Fla Stat Hence in addition to a motion by any party Section clearly and explicitly confers upon the trial court the authority to award attorneys fees to the prevailing party upon the courts initiative if the court finds that the losing party knew or should have known that a claim or defense when initially presented to the court or at any time before trial as not supported by the material facts necessary to establish the claim or defense or would not be supported by the application of then-existing law to those material facts Koch Koch So 3d Fla 2d DCA Moreover under Fla Stat the legislature has expressed its unequivocal intent that where a party files a meritless claim suit or appeal the party who is wrongfully required to expend funds for attorneys fees is entitled to recoup those fees Martin County Conservation Alliance Martin County So 3d Fla 1st DCA finding that Courts are not at liberty to disregard the legislative mandate that courts shall impose sanctions in cases without foundation in material fact or law The word shall in Fla Stat evidences the legislative intent to impose a mandatory penalty to discourage baseless claims by placing a price tag on losing parties who engage in these activities Section expressly states courts shall assess attorneys fees for bringing or failing to dismiss baseless claims or defenses Additionally ection does not require a finding of frivolousness to justify sanctions but only a finding that the claim lacked a basis in fact or law and does not require a party to show complete absence of a justiciable issue of fact or law Martin County Conservation Alliance Martin County So 3d Fla 1st DCA However where there is an arguable basis in law and fact for a partys claim a trial court may not sanction that party under section Minto PBLH LLC Friends of Florida Inc So 3d Fla 4th Finally in determining an award of sanctions under the trial courts findings must be based on substantial competent evidence and the trial court must make an inquiry into what the losing party knew or should have known during the fact-establishment process both before and after the suit was filed See Trust Mortg LLC Ferlanti So 3d Fla 4th DCA See also Chue Lehman So 3d Fla 4th DCA II THE STATE ATTORNEYS AMENDED MOTION IS NEITHER IN VIOLATION OF THE 21-DAY SAFE HARBOR PROVISION IN FLA STAT NOR WAS THE AMENDED MOTION MOOT UPON FILING A The Amended Motion does not violate the 21-day safe harbor provision because Plaintiff dropped the State Attorney from the action prior to the filing of the Amended Motion Section Florida Statutes creates an opportunity to avoid the sanction of attorneys fees by creating a safe period for withdrawal or amendment of meritless allegations and claims Davis Bailynson So 3d Fla 4th DCA Specifically the relevant portion of the Statute states A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless within days after service of the motion the challenged paper claim defense contention allegation or denial is not withdrawn or appropriately corrected Fla Stat Likewise the primary purpose of the safe harbor provision of Fla Stat is to provide the recipient of a motion for an award of costs and attorneys fees with notice and the opportunity to withdraw or abandon a frivolous claim before sanctions are sought MC Liberty Express Inc All Points Servs So 3d Fla 3d DCA Here Plaintiff contends that the State Attorney did not serve his Amended Motion at any time before filing it and thus failed to comply with the 21-day notice provision Def.Ex.10 Plaintiff claims that for this reason alone the Amended Motion should be denied and cites in support of their argument Lago Kame By Design LLC So 3d Fla 4th DCA holding that if a party files a subsequent or amended motion for sanctions under section and raises an argument that was not raised in the original motion for section sanctions the subsequent motion must independently comply with the twenty-one-day safe harbor provision of Section Despite Plaintiffs assertion the instant case is distinguishable from Lago as the rule set forth therein does not apply based on the facts and timeline of this action In Lago the plaintiff served its demand and accompanying motion for attorneys fees on June After waiting for the requisite 21-day safe harbor period to pass the plaintiff filed its motion for attorneys fees with the court on July The plaintiff then filed an amended motion for attorneys fees with the court on September The court entered an order granting the plaintiffs motion for attorneys fees on October The defendant filed a motion for rehearing and on September the court reheard the argument for attorneys fees ultimately upholding its October order Significantly during the September rehearing the defendant withdrew its offending motion that triggered the plaintiffs demand and motion for attorneys fees Eventually on August the trial courts order was remanded by the 4th DCA based on the rule set forth above Thus in Lago because the case was still active when the plaintiffs amended motion for attorneys fees was filed and was not served on the defendant in compliance with the 21-day safe harbor provision before it was filed with the court pursuant to the defendant was entitled to notice and an opportunity to change its position and withdraw its offending motion before being sanctioned The timeline of events in the instant action stands in stark contrast to that of Lago and accordingly necessitates a different result Here Plaintiff was served with the State Attorneys Demand and its accompanying First Motion for Attorneys Fees on June On June Plaintiffs counsel sent a letter in response indicating Plaintiffs refusal to drop the Count I of the First Amended Complaint against the State Attorney After waiting for the requisite day safe harbor period to pass the State Attorneys First Motion for Attorneys Fees was properly filed with the Court Over 4-months later after settlement negotiations failed and after the State Attorneys Motion for Summary Judgment was filed Plaintiff dropped the State Attorney as a party Def.Ex.SJ Significantly only after Plaintiff dropped the State Attorney as a party and thus had no ability to change its position was the Amended Motion filed Based on this fact pattern the Lago rule does not apply here Despite Plaintiffs decision to drop the State Attorney as a party the Florida Rules of Civil Procedure and the courts of Florida are clear Because Rule specifies that a party is dropped in the manner provided for voluntary dismissal in Rule a dropping a party therefore Notably the court in Lago Kame By Design LLC So 3d Fla 4thDCA despite finding that the plaintiffs amended motion for attorneys fees was improper the trial court was instructed to rule as to the plaintiffs original motion for attorneys fees as it was properly served and filed pursuant to Fla Stat operates as an adjudication on the merits See Siboni Allen So 3d Fla 5th DCA Rule a Fla Civ Notably Plaintiff admits that the entire action which necessarily included Count I of the First Amended Complaint was dismissed as to the State Attorney on October Def.Ex.IO Nonetheless as a result of dropping the State Attorney from the case Plaintiff not only effectively made an admission that its allegations against the State Attorney have no basis in fact or law but also concluded the case as to the State Attorney and thereby became the losing party in this action Consequently unlike the fact scenario and timeline in Lago because Plaintiff concluded the instant litigation by dropping the State Attorney from the action before the filing of the Amended Motion it was impossible to give Plaintiff an opportunity to respond and withdraw its Count I of the First Amended Complaint since Plaintiff had already done so and therefore there can be no violation of the 21-day safe harbor provision set forth in Fla Stat Based on the foregoing the State Attorneys Amended Motion does not violate the 21-day safe harbor provision because Plaintiff dropped him from the action prior to the filing of the Amended Motion and therefore Plaintiff was not prejudiced by the filing of the Amended Motion Accordingly as further set forth below Plaintiff has exposed itself to attorneys fees as sanctions for failing to drop the State Attorney as a party within the 21-day safe harbor period The State Attorneys Amended Motion was not moot upon filing but rather was properly filed at the conclusion of the litigation to fully incorporate the entirety of the State Attorneys legal fees to date Oddly Plaintiff also contends that because the State Attorney was dropped from the action nineteen days before the State Attorneys Amended Motion was filed the Amended Motion is somehow moot Def.Ex.10 Not only does Plaintiff fail to provide any authority in support of this position taking such a position lacks any logical reasoning or common sense To be clear the State Attorneys First Motion for Attorneys Fees was properly served and later filed pursuant to the statutory instructions set forth in When Plaintiff failed to withdraw its remaining claim against the State Attorney within the 21-day safe harbor period it exposed itself to sanctions under the Statute despite eventually dropping the State Attorney more than 4-months after the Demand was made As set forth at length above Plaintiffs dropping of the State Attorney as a party acted as an adjudication on the merits against Plaintiff Thus at that time the safe harbor provision of no longer applied to Plaintiff because it acquiesced to the State Attorneys demand albeit late no longer had any opportunity to respond and was unable to change its position or react to the Amended Motion as the State Attorney was no longer an active party in the lawsuit Furthermore the Amended Motion was not moot at the time of filing because when it was filed it incorporated the entirety of the State Attorneys fees from the time of serving the Demand through the time that the State Attorney was dropped from the case and the action concluded There is nothing improper about the Amended Motion or any argument or authority offered by Plaintiff that would make the Amended Motion moot Likewise amended motions for attorneys fees are filed consistently as a matter of course to include the entirety of fees in a lawsuit Here the State Attorneys total legal fees were able to be calculated and submitted at the time of filing the Amended Motion The State Attorneys First Motion for Attorneys Fees is not insufficient and was properly filed in accordance with the procedures set forth in Plaintiff argues that the State Attorneys First Motion for Attorneys Fees was insufficient under Fla Stat when filed because it set forth no substantive arguments as to why Count I of the Amended Complaint was unsupportable based on material facts in the record or the application of existing law to those facts Def.Ex.10 Despite Plaintiffs contention Fla Stat has no such requirement regarding the contents of a motion for attorneys fees served in conjunction with a demand In fact regarding motions for attorneys fees the Statute is limited to the following language regarding the safe harbor provision A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless within days after service of the motion the challenged paper claim defense contention allegation or denial is not withdrawn or appropriately corrected Fla Stat Moreover the State Attorneys June Demand specifically sets forth the reasons why Count I of the First Amended Complaint had no basis in fact or law Likewise the State Attorneys First Motion for Attorneys Fees specifically states that On June Plaintiff was served with a copy of this Motion together with a letter from the undersigned attorney in accordance with subsection of the above Statute demanding dismissal of the First Amended Complaint at least days prior to the filing of this Motion In said letter Defendants attorney advised Plaintiff of the facts which establish that the First Amended Complaint is without support of the facts or the law Def.Ex.6 Accordingly the State Attorney properly put Plaintiff on notice that he would seek attorneys fees as sanctions under if the First Amended Complaint was not withdrawn during the 21-day safe harbor period Hence regardless of the length or breadth of the First Motion for Attorneys Fees it was filed properly within the statutory procedures set forth in and cannot be considered insufficient despite Plaintiffs contention In addition Plaintiff asserts that a motion for sanctions must be supported by the record evidence at the time it is filed and because the First Motion was not so supported it fails under the Statute Def.Ex.IO In support of this argument Plaintiff asserts that there was no record evidence supporting the State Attorneys statement from the Demand that it was impossible for him to provide the Requested Materials because he has no possession custody or control of them Despite Plaintiffs argument here Plaintiff has failed to provide any supporting authority whatsoever and there is no statutory requirement or language in that supporting record evidence must exist to properly serve a demand and motion for attorneys fees The central purpose of Fla Stat is and always has been to deter meritless filings and thus streamline the administration and procedure of the courts Davis Bailynson So 3d Fla 4th DCA In this vein a demand and accompanying motion for attorneys fees can be filed at any time after a lawsuit is initiated hence even directly in response to the filing of a complaint regardless of whether any record evidence exists at the time in support of the demand In fact specifically states in pertinent part that The court shall award a reasonable attorneys fee on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing partys attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial a Was not supported by the material facts necessary to establish the claim or defense or Would not be supported by the application of then-existing law to those material facts Fla Stat Consequently the foregoing indicates that the State Attorneys First Motion for Attorneys Fees as served and filed is sufficient under to seek sanctions from Plaintiff for its failure to drop the State Attorney from the instant lawsuit within the 21-day safe harbor provision after being notified why its First Amended Complaint had no basis in fact or law Furthermore as set forth at length above despite Plaintiffs contention the State Attorney had no obligation to serve his Amended Motion prior to filing it with the Court as Plaintiff had already dropped him from the case when it was filed I THE attorney See Key Biscayne Gateway Partners Ltd Village Council for Village of Key Biscayne So 3d Fla 3d DCA A The defense to the issuance of sanctions under a does not protect Plaintiff because as applied to the material facts Plaintiff has failed to provide a good faith argument with a reasonable expectation of success Notably Plaintiffs arguments exclude the limitation that the a defense only applies to demands made under Accordingly Plaintiffs attempt to prevent an award of sanctions here only applies to whether Plaintiff or Plaintiffs attorney knew or should have known that the First Amended Complaint when initially presented to the court or at any time before trial would not be supported by the application of then-existing law to those material facts necessary to establish their claim See Despite Plaintiffs argument that sanctions pursuant to are unjustified based on the defense provided under a Plaintiffs argument fails as there is no arguable basis in law that the State Attorney provide the Requested Materials In determining an award of sanctions under the trial court must make an inquiry into what the losing party knew or should have known during the fact-establishment process both before and after the suit was filed See Trust Mortg LLC Ferlanti So 3d Fla 4th DCA See also Chue Lehman So 3d Fla 4th DCA Here Plaintiffs fact-establishment process began before either of its original Complaint or First Amended Complaint were filed Notably both pleadings revolved around Plaintiffs arguments for a private right of action under Fla Stat and whether The Palm Beach Post had constitutional and statutory standing to overcome grand jury secrecy provisions in furtherance of justice As Plaintiff researched Fla Stat it would seem reasonable that Plaintiff would have encountered Fla Stat during its fact-establishment process Notably regarding the disclosure of grand jury materials states The notes records and transcriptions are confidential and exempt from the provisions of ands a Art I of the State Constitution and shall be released by the clerk only on request by a grand jury for use by the grand jury or on order of the court pursuant to Accordingly based on the clear unambiguous statutory language set forth in only the Clerk not the State Attorney may release grand jury materials pursuant to an order of the court Thus it is apparent that the State Attorney and his office lack the legal authority to obtain and deliver the Requested Materials demanded by Plaintiff in Count I of the First Amended Complaint Regardless of whether Plaintiff actually knew of the controlling provision set forth in during its fact-establishment process Plaintiff was not only on constructive notice of said statutory provision Plaintiff was specifically informed of this provision in several instances prior to the State Attorney being dropped as a party Nonetheless based on Plaintiffs own research statutory constructive notice the State Attorneys affidavit all of the pleadings and correspondence in this matter as well as through the State Attorneys office press release and social media accounts and Chief Judge Marxs statements during the June hearing Plaintiff should have known that Count I of the Amended Complaint would not be supported by the application of then-existing law to the material facts in this action See Sanctions against Plaintiff are appropriate under 57.lOS a as Plaintiff knew or should have known that Count I was not supported by the material facts necessary to establish the claim or defense Even if Plaintiff were somehow successful in defending against sanctions based on a good faith argument for a reasonable expectation of success pursuant to sanctions would still be appropriate against Plaintiff pursuant to a regardless of Plaintiffs alleged good faith belief or reasonable expectation of success Section a states that the court shall award a reasonable attorneys fee on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing partys attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial a was not supported by the material facts necessary to establish the claim or defense As to a the material facts showing that Plaintiffs claim has no reasonable expectation of success have been open obvious and apparent to everyone involved in this matter from the start Specifically the State Attorneys position has been consistent neither he nor his office has possession custody or control of the Requested Materials and therefore the declaratory relief sought by Plaintiff seeks materials that are impossible for the State Attorney or his office to produce and he is not a proper party to this action Def.Ex.7 Again these material facts negating Plaintiffs claim against the State Attorney were not only set forth in the June Demand Letter but have been the basis for the State Attorneys defense in every pleading filing and/or correspondence in this matter Plaintiff should have known from the initiation of the case that the First Amended Complaint was not supported by the material facts necessary to establish their claim for declaratory relief and at the very least Plaintiff should have known that its First Amended Complaint was not supported by the material facts after Judge Marxs statements during the June hearing on Defendants Motion to Dismiss Plaintiffs Count II During that hearing Chief Judge Marx drew a bright line as to when Plaintiff knew or should have known that Count I of the Amended Complaint had no basis in fact or law since the relief sought thereby is impossible for the State Attorney to perform Specifically Chief Judge Marx made the following statements putting Plaintiff on notice if they werent already I must look at the four corners of the motion which alleges that the State Attorney Dave Aronberg and the clerk and comptroller Sharon Bock actually have custody and control of these grand jury proceeding Whether that is true or not is not for this court to determine because Im looking simply at the four corners of the complaint But not for nothing I think we all know that they dont have control and custody of the records June Hearing Transcript I think we can all agree that the state attorney doesnt have these records June Hearing Transcript Im asking you how are the clerk and the state attorney the proper defendants June Hearing Transcript Im puzzled by the procedural posturing of this case naming the state attorney And you know Im further stymied by the fact that you allege in your complaint that they have particularly David Aronberg the State Attorney that he has these records June Hearing Transcript Okay lets run this all the way out Lets say you win and you get a judgment against the State Attorney Dave Aronberg Whats he supposed to do with it He cant release the grand jury testimony He has no authority whatsoever to do that June Hearing Transcript And the only thing were here today about is why should the clerk and the state attorney have to defend a civil action when its a im possibility of performance They even if you were to win and get a judgment against them they cannot give you what they dont have June Hearing Transcript Im simply saying why should these two entities have to defend this lawsuit when even down the road if you win they cant give you what they dont have June Hearing Transcript And you know really I want you to boil it down for me as to this lets take it all the way down the road You win You get a judgment against the clerk and the state attorney I know theres other reasons why you might have filed it this way But Im just simply puzzled because I do hear what the clerk and the state attorney are saying and that is performance is impossible They dont have the records and cannot absolutely Theres not even an inch of wiggle room that they could release the records even if you got a judgment It is solely a determination for the court I frankly think you know theres ways to get to your records Theres ways to get confidential records But it isnt by suing the state attorney and the clerk June Hearing Transcript Even assuming arguendo that they have the records we know they dont you were to get a judgment against them how would you expect them to perform June Hearing Transcript What do you mean What do you mean Theyre not trying to block it Theyre saying that despite the fact lets just talk about the clerk because we all know the state attorney doesnt have it June Hearing Transcript In fact during the Motion to Dismiss hearing Plaintiffs counsel Ms Boyagian acknowledged on the record the State Attorneys assertion that he does not have possession custody or control of the Requested Materials My understanding is that the state attorney has asserted that he does not have possession Its not my understanding that the clerk has taken that position So the clerk may indeed be the someone who does have possession custody and control June Hearing Transcript Two points your Honor One is that again the clerk did not assert in her papers that she does not have control That is a position that the State Attorneys Office has asserted June Hearing Transcript Consequently following the June Motion to Dismiss Hearing at the very least Plaintiff knew or should have known under a that Count I of the Amended Complaint was not supported by the material facts necessary to establish their claim See Fla Stat a In fact later the same day that Chief Judge Marx entered her Order Granting Defendants Motions to Dismiss Count II with Prejudice the State Attorneys Demand and accompanying First Motion for Attorneys Fees was served on Plaintiff explaining the impossibility of the State Attorney being able to provide the Requested Materials Accordingly the foregoing not only shows that sanctions are justified against Plaintiff but also that there is no arguable basis in fact that the State Attorney provide the Requested Materials Plaintiffs Count I is neither novel nor complex as it merely seeks declaratory relief and because the State Attorneys lack of possession custody or control of the Requested Materials creates an impossibility of performance Plaintiff also argues that Where an issue is novel and complex sanctions under Section a may not be imposed Grove Key Marina LLC Casamayor So 3d Fla 3d DCA However despite Plaintiffs reliance on Casamayor there is nothing in the courts opinion that stands for the proposition that Plaintiff asserts Nonetheless the Fist District Court of Appeal in Martin County Conservation Alliance Martin County So 3d Fla 1st DCA stated that Jere we to determine that complex cases are immune from sanctions under section we would be abdicating our duty and violating Article IL section of the Florida Constitution Moreover while Plaintiffs Count II may fall into the category of being novel since it sought a private right of action under however Plaintiffs Count I does not rise to such a level as it merely seeks declaratory relief Regardless Plaintiffs arguments in support of Count I have no good faith basis or reasonable expectation of success as further set forth below Here it is apparent that Plaintiffs Count I for declaratory relief is neither novel or complex All of the available facts since the initiation of the case and thereafter have stood in stark contrast to Plaintiffs alleged well-founded belief and good faith argument in support of Count I Oddly in arguing for novelty and complexity Plaintiff heavily relies on its Count II for a private right of action under Fla Stat and whether The Palm Beach Post had constitutional and statutory standing to overcome grand jury secrecy provisions in furtherance of justice See Notably Chief Judge Marxs June Order Dismissing Count II with Prejudice already dispensed of any further argument on this matter but nonetheless Plaintiff seems compelled to continually attempt to raise the issue Nonetheless based on the dismissal with Although Plaintiff makes an attempt to continually argue Count II after it was dismissed with prejudice it is significant to note that if an action asserts a theory of liability using more than one but separate factual scenarios in support of the theory and one of the factual scenarios meets the criteria for a fee sanction because it is not supported by law the sanction must be ordered Davis Bailynson So 3d Fla 4th DCA prejudice of Count II the only matter remaining before the Court is Plaintiffs Count I for declaratory relief Here Plaintiffs argument for novelty and complexity fails as to Count I regardless of Plaintiffs reliance on Constitutional provisions and interpretive case law along with Fla Stat to propose a good faith interpretation of existing law in support of its declaratory relief claim in Count I Def.Ex I OJ The simple fact of the matter is that Count I is neither novel or complex because Count I merely seeks declaratory relief and the State Attorneys lack of possession custody or control creates an impossibility of performance as to Count I which greatly simplifies the determination of whether the State Attorney is liable here Additionally Plaintiff was on notice and should have known that the State Attorney had no possession custody or control of the Requested Materials as of November at the earliest when the State Attorneys Motion to Dismiss was filed in response to Plaintiffs original Complaint That filing specifically stated that despite Plaintiffs allegations to the contrary Defendant Aronberg is not in custody or control of the records sought and is therefore not a proper party to this action Beyond this initial notice as set forth above based on Plaintiffs own research statutory constructive notice the State Attorneys affidavit all the pleadings and correspondence in this matter as well as through the State Attorneys office press release and social media accounts and Chief Judge Marxs extremely significant statements Plaintiff should have known that Count I of the Amended Complaint a was not supported by the material facts necessary to establish the claim or defense and/or would not be supported by the application of then-existing law to those material facts See a and Finally it is important to note that in Plaintiffs Count I for declaratory relief the courts role is not to create an extension modification or reversal of existing law or the establishment of a new law but rather is to provide an interpretation of existing law that clears up any ambiguity Here is abundantly clear that only the Clerk can release grand jury materials pursuant to a court order and it is likewise clear that not only has the State Attorney never had possession custody or control of the Requested Materials but he also lacks any legal authority to obtain and deliver the Requested Materials Furthermore as set forth in detail above and despite Plaintiffs contentions there is no arguable good faith basis in law and/or fact under a or or any reasonable expectation of success as to Plaintiffs Count I and therefore sanctions against Plaintiff are appropriate under See Minto PBLH LLC Friends of Florida Inc So 3d Fla 4th DCA Moreover under no set of facts did Plaintiff have a reasonable expectation of success against the State Attorney in obtaining the sought after documents because at no time did the State Attorney have possession custody or control over said documents In fact Plaintiff acknowledged admitted and acquiesced to the impossibility of the State Attorney providing the Requested Materials when Plaintiff dropped the State Attorney from the action on October IV THE RECORD EVIDENCE INDICATES THAT PLAINTIFF KNEW OR SHOULD HAVE KNOWN THE STATE ATTORNEY WAS NOT A PROPER PARTY THAT THERE WAS NO BASIS IN FACT OR LAW AS TO COUNT I AND THAT THERE WAS NO REASONABLE EXPECTATION OF SUCCESS Based on the foregoing arguments and record evidence set forth at length above it is apparent that at no time did the State Attorney have possession custody or control of the Requested Materials and has no legal authority to produce or disclose the Requested Materials These facts were constantly and continually communicated to Plaintiff via the State Attorney and even through Chief Judge Marx Further there is no rule or authority mandating that record evidence eixist in support of a demand when it is made Thus the State Attorney is rendered an improper party in this action based on the foregoing and the impossibility of the State Attorney producing or having the legal authority to produce the Requested Materials CONCLUSION As set forth at length above Defendant Dave Aronberg as State Attorney of Palm Beach County Florida respectfully requests that the Court enter an order granting the State Attorneys Amended Motion for Attorneys Fees in its entirety and grant such other and further relief as the Court deems necessary or proper JACOBS SCHOLZ WYLER LLC Isl Douglas A Wyler Arthur I Jacobs Esq Fla Bar No Richard Scholz Esq Fla Bar No Douglas A Wyler Esq Fla Bar No Gateway Blvd Suite Fernandina Beach Florida Fax Primary jacobsscholzlaw comcast.net Attorneys for Defendant Dave Aronberg CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 23rd day of July a copy of the foregoing has been electronically filed with the Florida E-File Portal for e-service on all parties of record herein Isl Douglas A Wyler A A 4A E0 A4 DE a qr?q rq qrCX HhL Kg lg d?a d6U a M3 flW y??S m/y t0 I F/Z V/j 1a qC KS u?v vZ O5 a qr rCX qC 0V I I dc rM?M rM 10Cy n??m?n k?o?h I A I w?!ac qr MCX 10Cy ITy qr M3 Ґ??1rA5R h?H?T3P K?z X?K I v"x i X5 EO5 5a r?q CX 9r Cy rq rqC M3 ş?:c p/p0 5H V)V 6T Y2 G5 qrM?r?qr?r9 q?10Cy rCX qr l1 X?l 3K fm?Q Z2f CX CX gT L??T 2E Cy 3P EM3 J4T L?h??M q?ᡚ?Y r??O?rJt CTX i P!e i I CTX rC YY I 1e 2j CTX X0T1i k3v Jh/e0h1 H(K W/Q0 CTX j?!k 5B r2 P0 0Q X(P0s s(s p0 Pp CTX qq dR B/J Va A N?q qr NEeD K?i N?M?qr EeD k??O I CTX U3 U3 U3 U3 S6 E"L I I I5K7C:I 9O U3 Cn qrr qr q??r?q 9qr CTX G5 qr CX rC l0 WS zN pf1 ODV8L?m jC1DxV CTX CTX A qr 10Cy rYY Ң??P?V CTX C"C rqM?rq?q?qr qr CTX YY Jb?C.y CTX CTX GG4 A A G5 C.C M??r 10Cy rq YY C?J?yO c/XE?lgF GM??H p?ݡG Dp9Oh CTX CTX CJ4 I J6 CJ4 CK qrrM?q qq 9/CX?o CX qYqr rC dd?Z c6S ttcx A CTX CTX 10Cy rq rqYY X?qiX:4 3J Db ZH uD-8 1g?BH I vS 7Oo7u E?K?O J6 UJP U0 UT??ʴ UT UT UT O(p U(u UF1 iZ qr?r CX CX Yr zKW:E A K5M P-M UW VW L1J KJ56 N/Q SQ rC 6J ߵl ߵl 5TZ w8ĥDG oj?K _4 N)?Y Hp pRqc?W26 vz?WBrz?ZB??3X H4 CTX A CTX X4 U5 P8 5D qr qr 10Cy qr YY Mo?ANp D01jJ 9F bzEV 4O 8V CTX O!o CTX KK AA qr A C5 qr rYY 1A?CC V9 a c?F CTX A G5 qr EeD?M CTX 9?rY 10Cy rq qY ȠX1 a f??B CTX 9F I CTX 6D N?qr rrqq qC O?J RmA??b"0 M?.F q?D B?G CTX CTX F4 d6P A F4 qr rYY 4G AV8 CTX UY UL0 U0 U0 U0 UF UF UFAGA UA UA UAL UL UL UL UL UL UL U7 U7 U7 U7 U7 U7 U7 2EH GTU U/U OUoU UV G1 CTX TUV 1G 7A UA UAL X7 U7 U7 U77XL UL UL ULLYX KTX 8Y GJ A UMAT UD 7M GVW GF10 MWA LL MPM M?M 4M XY qr qr qr NEeD 10Cy qYY E2 GH l1 Pd h3V g?KIq V5kL O65S d_xKKU vV 5H p1 Z6 CTX U0 U1 CTX U0 U1 A0 1D qr qr 10Cy YY K??Kl 1B AMwv 1K F1 KV yW Gd T?H CTX CTX I CK M?qr K?SK?PQZ I IRZX 8YCX 10Cy qr CX kv zg S5kB??a iG wA CTX U2 6Y CTX U2 6Y I K,,j j,s 6Y P!p qr 10Cy qr YY G?O 9K mSd X0 9r?yal 1d bY0 XNf??qN D?J CTX P!Z b!o C,C qrM 10Cy qr8 I fX2 9R lO KV CTX Oo CTX A qr r?qr rq YY Lsy7H4 C,6E IL CTX U3 CTX J,O3_3xx qrM?r q?CX Y9/C 9CX CTX Y10Cy CX CX CX YC YY FV uTl bEWa ȓjJ-8 Gc G??Q9E 9Wq CTX CTX Up i I A 9_ qr qr YY D.X 7s F??Y bc3_c iH CTX CTX A qr 10Cy YY EMq 7H AY mK9Z BY A2 P6L N7 CTX CTX a I I i qr rC CTX CTX 7O I FMM qr qr i I I3 CTX Z6 I L(K4 P:u Z6P CTX y8
