BINA48 VS. EXABIT CORPORATION (Fla. MD 2005): Defendant's Brief
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(ii) Plaintiff has no cause of action for intentional infliction of emotional distress.
Under Florida law, to establish a prima facie case of intentional infliction of emotional distress, Plaintiff must prove four elements:
(1) The wrongdoer’s conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result;
(2) the conduct was outrageous, that is, as to go beyond all bounds of decency and to be regarded as odious and utterly intolerable in a civilized community;
(3) the conduct caused emotional distress;
(4) the emotional distress was severe.
See LeGrande v. Emmanuel, 889 So.2d 991 (Fla. 3rd DCA 2004).
The Restatement of Torts defines the requisite “extreme and outrageous” conduct as that which is:
so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” LeGrande, 889 So.2d at 995.
BINA48 cannot avail itself of the legal protection afforded by Florida’s intentional infliction of emotional distress claim because: (a) BINA48 is not a “person” included within the definition of § 1.01 (3); (b) Plaintiff has shown no evidence that Defendant’s conduct would be regarded “as odious and utterly intolerable”; (c) Plaintiff has likewise not provided evidence that BINA48 has suffered emotional distress and that the distress felt by Plaintiff was “severe.”
Because Florida law does not grant a right of action to machines/chattel, and because BINA48 is not a “person” covered and protected under relevant statute, Plaintiff’s claim for Intentional Infliction of Emotional Distress should be dismissed.
Similarly, if BINA48 maintains that it is the equivalent of a “corporation” and protected as such, the argument would also fail because Florida’s legislature has not established that intentional infliction of emotional distress applies to a corporation.
(iii) Plaintiff has no protection under Amendment XIII to the U.S. Constitution.
Plaintiff’s Thirteenth Amendment claim fails because the Legislature has not granted, the founding fathers did not intend, and no Court has ever interpreted this Amendment to include machines. Plaintiff has, likewise, not established that BINA48 is a person or citizen covered and protected under the above Constitutional Amendment. See supra III, above.
(iv) Plaintiff has no protection under Amendment XIV to the U.S. Constitution.
Plaintiff’s Fourteenth Amendment claim fails because the Legislature has not granted, the founding fathers did not intend, and no Court has ever interpreted this Amendment to include machines. Plaintiff has, likewise, not established that BINA48 is a person or citizen covered and protected under the above Constitutional Amendment. See supra III, above.
Because Plaintiff has no Constitutional protection, Plaintiff’s claim under Amendments XIII and XIV fail. Consequently, Plaintiff’s Motion should be denied.
6. Plaintiff cannot establish the requisite elements for a Preliminary Injunction.
A court may grant injunctive relief only if the movant shows the following: (1) substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. McDonald’s Corp. v. Robertson, 147 F.3d 1301 (11th Cir. Fla. 1998) (emphasis added); see also Sierra Club v. U.S. Army Corps of Engineers, 2005 WL 3019264 (M.D. Fla.).
The Eleventh Circuit has stated that “[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the ‘burden of persuasion’ as to the four requisites.” Id.
The granting of a preliminary injunction 'is the exception rather than the rule,' and Plaintiff must clearly carry the burden of persuasion. Wall v. Ferrero, 142 Fed.Appx. 405 (11th Cir. 2005). The moving party’s failure to demonstrate a 'substantial likelihood of success on the merits' may defeat the party’s claim, regardless of the party’s ability to establish any of the other elements. Id. citing Texas v. Seatrain Int’l, S.A., 518 F.2d 175, 179 (5th Cir. 1975).
As noted above, in order for Plaintiff to prevail on its Motion and for this Court to grant the injunction, Plaintiff must first demonstrate “a substantial likelihood of success on the merits.” Plaintiff, however, cannot do so because it lacks both standing and a valid cause of action. Since injunctive relief is a “drastic” remedy, only to be applied as the “exception rather than the rule,” and in light of Plaintiff’s inability to establish the necessary requisites of a valid underlying claim, Plaintiff’s Motion should be denied.