ELECTRONICALLY FILED 4/26/2013 4:37 PM 01-CV-2013-901119.

00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA STATE BOARD OF HEALTH, Plaintiff, v. ALL WOMENS, INC. d/b/a NEW WOMAN ALL WOMEN HEALTH CARE, DIPAT, L.L.C., DIANE W. DERZIS, PATRICK H. SMITH, and BRUCE E. NORMAN, Defendants. MOTION TO DISMISS Comes now Diane W. Derzis (Derzis), having been served with the Complaint of the State Board of Health (Board of Health or Board) in this cause, and for the reasons set out herein and in accordance with Ala. R. Civ. P. 12(b), moves this Court to dismiss the Complaint. I. SUMMARY OF CASE A. The State Board of Health seeks an order enjoining Derzis from: 1. Operating an unlicensed Abortion or Reproductive Health Center CASE NO. 01-CV-2013-901119 JB

HEARING AND ORAL ARGUMENT REQUESTED

anywhere in the State of Alabama, including one located at 1001 17th Street South, Birmingham, Alabama 35205 (the Premises); 2. Allowing the operation of an unlicensed Abortion or Reproductive Health

Center anywhere in the State of Alabama; and 3. B. Holding herself out as an abortion provider.

Contrary to the Board of Healths unsubstantiated beliefs, Derzis: 1. Is not operating an Abortion or Reproductive Health Center, as defined

in Ala. Admin. Code r. 420-5-1-.01;

2. 3. 4. II. FACTS A.

Is not operating a Hospital, as defined in Ala. Code 22-21-20 (1975); Has not established a Hospital in the State of Alabama; and Does not conduct or maintain any Hospital in the State of Alabama.

Not only is Derzis not operating as an abortion or reproductive health center or as

a hospital, she is not related to the activities with which the Board is concerned. 1. 2. Derzis does not own the building and real estate located at the Premises. Derzis has no control or right to control Dr. Norman or any of the

activities associated with or related to his practice of medicine or the conduct of his private physician offices at the Premises. 3. B. Derzis has no ownership interest in Dr. Normans practice.

Derzis has no control over those individuals and entities throughout the State of

Alabama, if any exist, who might be operating or attempting to operate an unlicensed abortion or reproduction health center. C. D. Derzis is not holding herself out as an abortion provider in the State of Alabama. Derzis is not conducting any activity or business that would require her to obtain a

license from the State Board of Health. III. ARGUMENT A. FAILURE TO ALLEGE ANY FACT THAT DERZIS IS INVOLVED WITH THE SITUATION OR CIRCUMSTANCES WITH WHICH THE BOARD IS CONCERNED 1. The Complaint by the Board of Health fails to state a claim upon which

relief can be granted. If, when the allegations of the Board of Health are viewed most strongly in the Boards favor, there appears no set of circumstances that would entitle it to relief, the

Complaint is due to be dismissed. Weaver v. Firestone, No. 1101403, 2013 Ala. LEXIS 6 (January 11, 2013). 2. The Board, in seeking an injunction, has not alleged any fact that is

inconsistent with the version of facts by Derzis. The facts alleged by the Board to support the overly broad and unnecessary injunction can be summarized as follows: a. There have been previous licensure proceedings against All

Womens, Inc. (All Womens), another defendant in this action. b. A Consent Agreement was entered in a previous, unrelated action

involving All Womens. c. Applications (by parties unrelated to the present action) to operate

an abortion facility have been denied. d. A license for a person or entity at 1001 17th Street South,

Birmingham, Alabama to operate an abortion or reproductive health center or hospital has not been issued. e. f. All Womens has a website. Bruce Norman practices medicine at 1001 17th Street South,

Birmingham, Alabama. 3. The foregoing is everything offered by the Board in support of the

injunction sought. The allegations are insufficient to support any authority by the Board over Derzis. The allegations, further, fail to support the injunction sought, even if the Board had authority in these circumstances.

B.

FAILURE TO ALLEGE ANY FACT GIVING THE BOARD ANY AUTHORITY OR JURISDICTION OVER DERZIS 1. The Board alleges at paragraph 15 of the complaint: Abortion procedures are being performed at the 1001 17th Street South facility by Bruce E. Norman, M.D., doing business as the Womens Center. 2. The allegation at paragraph 15 is insufficient to support a claim. On its

face, the Complaint is directed against Bruce E. Norman, M.D., doing business as the Womens Center. There is no allegation that Derzis is related in any way to Dr. Norman, the Womens Center, or the activities being conducted at the 17th Street South facility. 3. Even if there were a relationship between Derzis and Dr. Norman, which

there is not, the jurisdiction and authority of the Board hinges on the Court accepting the proposition that the entity or persons conducting activity at the Premises is either: (i) an abortion or reproductive health center, under Rule 420-5-.01(2)(b), Ala. Admin. Code, or (ii) a hospital, as defined at Ala. Code 22-21-20 (1975). 4. Derzis is not an abortion or reproductive health center. a. She does not perform any abortions in the state of Alabama, and, to

state the obvious, does not perform thirty or more abortion procedures per month during any two months of a calendar year. b. She does not hold herself out to the public as an abortion provider

by advertising by some public means, such as a newspaper, telephone directory, magazine or electronic media that she performs abortions. c. She has not applied to the State Board of Health for licensure as an

abortion or reproductive health center.

5.

Similarly, Derzis is not a hospital as defined by Ala. Code 22-21-20, nor,

for that matter, is she a private office of physicians. 6. Board has advanced. C. EXCLUSIVE AUTHORITY AGAINST MEDICAL LICENSURE COMMISSION 1. NORMAN LIES WITH THE As such, the Board has no authority over Derzis under either theory the

Even if Derzis were responsible for the activities of Norman under some

theory, she would be accountable to the Medical Licensure Commission, as opposed to the Board of Health. It is the Alabama Medical Licensure Commission that has the exclusive power and authority to issue, revoke and reinstate all licenses authorizing licensees to practice medicine. The present action of the Board of Health improperly invades and encroaches upon the lawful authority of the Medical Licensure Commission, as advised by the State Board of Medical Examiners. Ala. Code 34-24-310 to 311 (1975). D. INJUNCTION IS INAPPROPRIATE RELIEF 1. For a party to obtain an injunction, it must show, among other things, that

it would suffer immediate and irreparable injury without the injunction. 2. Injunctions are not granted merely to allay the apprehension of an

injury. Teleprompter of Mobile, Inc. v. Bayou Cable TV, 428 So. 2d 20 (Ala. 1983). Macon County Racing Comm'n v. Macon County Greyhound Park, 574 So. 2d 819, 1990 Ala. Civ. App. LEXIS 398 (Ala. Civ. App. 1990). 3. The injunction sought by the Board is overly broad. For example, the

Board seeks to enjoin Derzis from allowing unlicensed abortion centers anywhere in the State of Alabama. The Boards request is defective: it is overly broad and fails to offer how Derzis would have any control or ability to comply with such an injunction. Stated differently, if said

injunction were issued, Derzis would be required to privately police the entire State of Alabama for activity offensive to the Board. 4. As Derzis is unrelated to the situation and activities with which the Board

is concerned and because Derzis is not subject to the authority of the Board, the Board is incapable of proving it will be imminently and irreparably harmed by the actions of Derzis. 5. Derzis is not violating the law. Derzis has not threatened to violate the

law. Derzis has no intention of violating the law. The Boards paranoiac and unsubstantiated fear Derzis will do so does not justify the injunction sought. IV. CONCLUSION 1. 2. 3. Board has no authority or jurisdiction over Derzis in this matter. The injunction sought is unnecessary and unwarranted. The injunction sought is overly broad.

WHEREFORE, upon a hearing, Derzis requests that this Court: 1. Enter an order declaring that Derzis is not operating an unlicensed or illegal

abortion or reproductive health center; 2. 3. 4. Deny the Boards request for an injunction; Assess costs against the Board; and Grant such other relief to Derzis as may be appropriate.

Respectfully Submitted, this date: April 26, 2013.

/s/ Howard M. Miles Howard M. Miles Whatley Kallas, LLC 2001 Park Place North, Suite 1000 Birmingham, Alabama 35203 Telephone: 205-488-1223 Email: hmiles@whatleykallas.com Attorney Code: MIL007

Notice of Hearing This Motion is set for hearing in front of The Honorable Joseph Boohaker, Room 360 of the Jefferson Coutny Courthouse, at 9:00 a.m., on May 31, 2013.

CERTIFICATE OF SERVICE I hereby certify I have had filed the foregoing electronically with the Clerk, which will cause it to be served on all counsel of record in the case. I, further, have forwarded a copy of this motion to counsel by electronic transmission this date: April 26, 2013.

/s/ Howard M. Miles Howard M. Miles