City of Winter Haven v. Cleveland Indians Baseball Company Limited Partnership

Filing 7

MOTION to dismiss Counts II and III of the Complaint by Cleveland Indians Baseball Company Limited Partnership. (Connor, J.)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION CITY OF WINTER HAVEN, a Florida municipal corporation, Plaintiff, vs. CLEVELAND INDIANS BASEBALL COMPANY, LP, an Ohio limited partnership, Defendant. _____________________________________/ DEFENDANT'S MOTION TO DISMISS Defendant, Cleveland Indians Baseball Company, LP, by and through its undersigned attorneys, hereby moves to dismiss Counts II and III of the Complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that: (1) the claims for open account and account stated cannot be based on liquidated damages for breach of a written contract; (2) Plaintiff has not attached to the Complaint any "account"; and (3) the exhibits which are attached show that no such "open account" or "account stated" exists between Plaintiff and Defendant. Dated: February 20, 2009 PETERSON & MYERS, P.A. By: /S/ J. Davis Connor___________________ J. Davis Connor, Esq. FBN 0713413 P. O. Box 24628 Lakeland, FL 33802-4628 Telephone: [phone] Facsimile: [phone] [e-mail] Email: Attorneys for Defendant Case No. 08:09CV-00190-T-17EAJ

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 20, 2009, I electronically filed the foregoing Motion with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to the following counsel of record: Frederick J. Murphy, Jr., Boswell & Dunlap, LLP, P. O. Drawer 30, Bartow, FL 33831 and Warren Andrew Crawford, Esq. Boswell & Dunlap, LLP, P. O. Drawer 30, Bartow, FL 33831.

/S/ J. Davis Connor______________ J. Davis Connor, Esq.

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