[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 07, 2002
No. 01-12352 THOMAS K. KAHN
CLERK
D.C. Docket No. 00-14222-CV-FJL
ANNE C. LOTIERZO,
THOMAS J. EUTENEUER,
Plaintiffs-Appellants,
versus
A WOMAN’S WORLD MEDICAL CENTER, INC.,
CANDACE DYE, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Florida
(January 7, 2002)
Before ANDERSON, Chief Judge, BLACK, Circuit Judge, and NANGLE*, District
Judge.
____________________
*Honorable John F. Nangle, U.S. District Judge for the Eastern District of Missouri, sitting by
designation.
NANGLE, District Judge:
Appellants Anne C. Lotierzo and Thomas J. Euteneuer appeal from the final
judgment1 entered in the District Court for the Southern District of Florida, granting
Appellees’ motions to dismiss. In its order granting the motions to dismiss, the
district court concluded that Appellants failed to state a claim under the Freedom of
Access to Clinic Entrances Act (“FACE Act”), 18 U.S.C. § 248. For the reasons
stated below, we affirm in part and reverse in part.
I. Background
Appellants volunteer at the Pregnancy Care Center of Fort Pierce (“the
Pregnancy Care Center”), a reproductive health services facility, and are opponents
of abortion who counsel women regarding abortion alternatives. In addition to the
services they provide at the Pregnancy Care Center, Appellants offer such counseling
services on the sidewalks and the access way leading up to the entrance of A
Woman’s World Medical Center. Appellees are escorts, employees, and patients of
A Woman’s World Medical Center. Over the past several years, numerous
altercations have ensued between the parties. On July 17, 2000, Appellants filed an
action under the FACE Act seeking to enjoin Appellees from interfering with
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On July 23, 2001, Appellees filed a Motion to Dismiss the Appeal asserting that
Appellants failed to file a timely Notice of Appeal. We find that this position is without merit.
Appellants filed a Notice of Appeal within thirty days after the District Court’s Order dismissing
Appellants’ Complaint became final. Appellees’ Motion to Dismiss the Appeal is denied.
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Appellants’ counseling services. On February 26, 2001, the district court granted
Appellees’ motions to dismiss concluding, inter alia, that Appellants failed to allege
that Appellees actually interfered with Appellants’ ability to provide counseling
services. Appellants appeal from the final judgment of the district court.
II. Standard of Review
We review the dismissal of a complaint under Rule 12(b)(6) of the Federal
Rules of Civil Procedure de novo, applying the same standard as the district court. See
Harris v. Ivax Corp., 182 F.3d 799, 802 (11th Cir. 1999). We must accept the
allegations set forth in the complaint as true for purposes of a motion to dismiss. See
United States v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1236 (11th Cir. 1999) (en
banc).
III. Analysis
Appellants assert that their Complaint stated a claim upon which relief can be
granted because the FACE Act protects them while they provide reproductive health
referral services counseling outside of A Woman’s World Medical Center. We have
reviewed the Amended Complaint, and we agree with the district court that Appellants
failed to properly allege a FACE Act violation.
The FACE Act provides criminal and civil penalties against anyone who:
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by force or threat of force or by physical obstruction,
intentionally injures, intimidates or interferes with or
attempts to injure, intimidate or interfere with any person
because that person is or has been, or in order to intimidate
such person or any other person or any class of persons
from, obtaining or providing reproductive health services.
18 U.S.C. § 248(a)(1). Further, the FACE Act defines “reproductive health services”
as covering “reproductive health services provided in a hospital, clinic, physician’s
office, or other facility, and includes medical, surgical, counseling or referral services
relating to the human reproductive system, including services relating to pregnancy
or the termination of pregnancy.” 18 U.S.C. § 248(e). To state a claim for relief under
the FACE Act, a plaintiff must allege: (1) force, threat of force, or physical
obstruction; (2) done with the intent to; (3) injure, intimidate, or interfere with a
person or attempt to do so; (4) because that person has sought or provided, or is
seeking or providing, or will seek or provide, reproductive health services. See United
States v. White, 893 F. Supp 1423, 1427 (C.D. Cal. 1995) (quoting United States v.
Lindgren, 883 F. Supp. 1321, 1324-25 (D.N.D. 1995)).
We conclude that appellants failed to state a FACE Act violation for two
reasons. First, although Appellants’ facility, the Pregnancy Care Center, is located
across the street from A Woman’s World Medical Center, Appellants failed to allege
that Appellees’ actions were taken because Appellants are or have been providing
reproductive health services at the Pregnancy Care Center. The FACE Act protects
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individuals who provide reproductive health services in a facility. With only one
exception,2 all of Appellants’ allegations arose because Appellants were providing
referral counseling outside of A Woman’s World Medical Center. Because the
Amended Complaint does not allege that Appellees targeted Appellants because of the
reproductive health services counseling provided in the Pregnancy Care Center, the
Complaint does not survive a motion to dismiss.
Second, Appellants failed to allege that Appellees’ actions were taken in order
to intimidate a person from obtaining or providing reproductive health services at the
Pregnancy Care Center. Instead, Appellants merely were concerned with their ability
to provide reproductive health referral counseling outside of the Pregnancy Care
Center and on the sidewalks in front of A Woman’s World Medical Center. Because
Appellants failed to allege that Appellees’ actions prevented anyone from seeking or
providing reproductive health services at the Pregnancy Care Center, we affirm the
district court’s conclusion that Appellants’ Amended Complaint failed to state a claim
under the FACE Act.
Our affirmation of the district court’s order granting the motion to dismiss does
not apply to Appellant Euteneuer’s claim against Appellee Hazel Harding which
2
As we will discuss infra, one of Appellant Euteneuer’s claim against Hazel Harding
does withstand a motion to dismiss. However, the claim against Hazel Harding is the only claim
remanded to the district court for further consideration.
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alleged that she visited the Lifeline of Martin County facility (“the Lifeline facility”)
and threatened Appellant Euteneuer. In the Amended Complaint, Appellant Euteneuer
alleged that he also provides reproductive health services at the Lifeline facility.
Specifically, Appellants’ Amended Complaint alleged that in January 1998, Appellee
Harding visited the Lifeline facility, approached a volunteer, and threatened to kill
Appellant Euteneuer (“the Lifeline claim”). We find that the Lifeline claim withstands
a motion to dismiss because it satisfies all of the elements of a FACE Act claim.
Unlike Appellants’ other claims, the Lifeline claim alleges that Ms. Harding
visited the Lifeline facility to threaten Appellant Euteneuer because he provides
reproductive health services and in order to intimidate him from providing such
services. The Lifeline allegation is the only claim in which Appellants alleged a direct
connection between the unlawful conduct and the reproductive health services offered
by the person seeking protection under the FACE Act. Accordingly, we conclude that
the district court erred by dismissing the Lifeline claim.
The district court also noted that the Lifeline claim would withstand a motion
to dismiss, but ultimately dismissed the claim because Appellants failed to allege a
precise date. We find that the district court erred by dismissing the claim against
Hazel Harding for failing to plead a precise date. Under the notice pleading standard
of Rule 8(a) of the Federal Rules of Civil Procedure, complaints should be short and
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simple and should give the adversary notice of the claim. We conclude that
Appellants’ Amended Complaint sufficiently notified Appellee Harding of the claim
against her such that she could respond accordingly; therefore, we reverse the district
court’s order dismissing the Lifeline claim.3
IV. Conclusion
Because the district court properly concluded that Appellants’ Amended
Complaint failed to state a FACE Act claim, we affirm the district court’s order
granting appellees’ motions to dismiss. However, because the district court
incorrectly concluded that Appellants had to plead a precise date to sustain a FACE
Act claim, we reverse the district court’s dismissal of the Lifeline claim against Hazel
Harding and remand the case for further proceedings consistent with this opinion.
Finally, Appellees’ Motion for Attorneys’ Fees is denied.
AFFIRMED in part, REVERSED in part, and REMANDED.
3
Although we conclude that the Lifeline claim survives a motion to dismiss, we find that
the district court correctly dismissed the other claim against Hazel Harding. The second claim
against Hazel Harding arose outside of A Woman’s World Medical Center and is dismissed for
the reasons previously discussed by this Court.
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