Opinion
Case No. 4:05cv426-RH/WCS.
June 6, 2006
ORDER
As was recently addressed in an order dated May 22, 2006, Plaintiff's motion (doc. 64) seeking an enlargement of the deadlines in this case was granted. Doc. 83. That order set the discovery deadline for July 24th and all dispositive motions to be filed by August 14, 2006. Id. It has been noticed, however, that the times adjusted were based on the final scheduling order, doc. 31, which only concerned the parties who had entered an appearance in the case by that time (Plaintiff and Defendants Heinemann, Foley, and Doogs). See also doc. 14. As was noted in that order, doc. 83, it is not clear that Defendant Hoffpauir has been served with process. Furthermore, the docket does not reflect that Defendant Sharpe-Geisler has been served with process. Id. Moreover, additional Defendants are now in this case but a scheduling order has not yet been entered to guide discovery between those parties.
As a matter of clarification, Plaintiff amended the complaint in early February, 2006, and added several additional Defendants. Docs. 20, 21, and 26. Two of the newly added Defendants have been served and have filed Answers to the Amended Complaint: Defendants Downing (doc. 76) and Richardson (doc. 75). Additionally, Defendant O'Hara has now filed a belated Answer to Plaintiff's Amended Complaint. Doc. 94. Thus, a separate scheduling order will be entered this day to guide discovery between these Defendants and Plaintiff. For the ease of all parties, the times which were previously set in the May 22nd order will be adjusted to create uniform deadlines in this case for all parties. Accordingly, the relevant times now are as follows: the discovery deadline is August 1, 2006, and the deadline for filing dispositive motions is August 28, 2006.
The Answer was to have been filed by May 16th, see doc. 74, but was not filed until May 26th. Doc. 94.
Defendant O'Hara has filed a document entitled, "response to order denying motion to dismiss," doc. 78. Although not titled as a motion, Defendant O'Hara requests that the Court rule on outstanding motions and dismiss this action. A report and recommendation, doc. 84, has recently been entered on Defendant O'Hara's motion to dismiss, doc. 53, and thus, to the degree this document, doc. 78, should be construed as a motion for a ruling, it is denied as moot.
The document is not, however, construed as a motion to dismiss.
Defendant Martin has filed a response to a request to produce. Doc. 104. The parties are advised to review the rules concerning discovery and the local rules. Answers to interrogatories and responses to requests for production are not to be filed with the Court. N.D. Fla. Loc. R. 26.2. In the future, any such documents sent to the Court may be returned without filing.
Defendant Martin has filed two motions to compel. Docs. 100-101. Defendant Martin also filed a motion to dismiss, doc. 99, asserting that Plaintiff lacks standing to bring this case. Plaintiff shall have until June 16, 2006, in which to respond to the motion to dismiss, and ruling on the motion will be deferred until that time. Plaintiff need not, however, file responses to the motions to compel as they are insufficient on their face and not in compliance with N.D. Fla. Loc. R. 26.2(B).
Rule 26.2 directs that motions to compel discovery must "(1) quote verbatim each . . . request for production to which objection is taken, (2) quote in full the opponent's specific objection, and (3) state the reasons such objection should be overruled and the motion granted." N.D. Fla. Loc. R. 26.2(B). Defendant Martin has not submitted a copy of his original discovery request and does not "quote in full the opponent's specific objection" to the requests. On it's face, the motions to compel are deficient and are denied without prejudice. Should Defendant Martin desire to file an amended motion to compel, it must comply with N.D. Fla. Loc. R. 26.2(B).
On March 14, 2006, Rodney Martin filed a motion to intervene in this case. Doc. 50. This motion is based, in part, on the fact that Martin sent a letter to the Court on March 2, 2006, advising that he had learned this case had been filed by the Reform Party, but stating that the persons bringing this case (Plaintiff) were "not authorized to bring this action in the Party's names." Doc. 43. Martin indicated the letter was sent on behalf of the Reform Party. Id. After review of the letter, an order was entered on March 7th noting that because the "author of [that] document [was] admittedly not a party in this litigation, the document should not be filed." Doc. 46, p. 2. The order also noted that the Plaintiff Reform Party in this case was represented by counsel and pursuant to the rules of this Court, only counsel for Plaintiff could file pleadings. Id. Secondly, the author of the letter, Martin, was not a party yet in this case.
Transpiring during this period of time, however, was the fact that Plaintiff (the Reform Party) filed a motion to amend the complaint, doc. 20, and an amended motion to amend the complaint, doc. 40. The motion to amend was granted on March 1, 2006. Doc. 42. Thus, at the time of Martin's original letter, doc. 43, he was not yet a party in this case because he had not yet been served with process nor had he waived service of process on the record. Notably, Martin had been named as a Defendant in the amended complaint, doc. 21, but leave to amend the complaint was only granted the day before Martin's letter was submitted.
Thus, still pending at this time is Martin's motion to intervene in this case, doc. 50, filed on March 14, 2006. Plaintiff has responded to Martin's motion to intervene and asserts that Martin's motion fails to comply with N.D. Fla. Loc. R. 7.1 and is insufficient under FED. R. CIV. P. 24. Doc. 106. In particular, Martin does not present a pleading setting forth the claim or defense for which intervention is sought. Id. Additionally, Plaintiff notes that Martin appears to seek to intervene in this case based on his assertion in the letter, doc. 43, that a federal court order in another case (1:04cv079-MP/AK) has been violated. Id.
At this point in these proceedings, Plaintiff and Martin have been engaging in discovery, see docs. 56, 57, and 60. Martin has filed various motions, docs. 55, 59, 62, 66, 91, 92, 99, 100, 101, and has filed numerous documents in this case. See, e.g., docs. 71, 72, 73, 89, 90, 93, 102, 103, and 104. Martin has essentially already entered an appearance in this case as a party, he is named as a Defendant in the amended complaint, and his defenses may be adequately presented as a Defendant. Thus, Martin's motion to intervene should be denied as moot in light of his status as a named Defendant in the amended complaint.
Defendant Heinemann has filed a motion to correct the record, doc. 98. There is nothing with this document to indicate the docket is incorrect. Thus, the motion is denied. The prior order, doc. 88, is also correct in that a joint motion to dismiss was not previously filed. To the degree, Defendant Heinemann's motion, doc. 98, requests that his prior motion for default judgment be considered to have been timely filed, the motion is frivolous. A joint motion to dismiss had not been filed and, moreover, a motion for default is not appropriate in the situation where a party has entered an appearance in the case and has been actively involved in the case.
Defendants Doogs, Foley, and Heinemann have now filed a joint motion to dismiss, doc. 96, and the previously submitted memorandum of law, doc. 70, should be considered along with the motion to dismiss. However, attached to the memorandum are numerous exhibits. The memorandum references these exhibits and relies on them. Accordingly, it is not appropriate to rely on these documents and exhibits in ruling on a motion to dismiss. In such a situation, a motion to dismiss must necessarily be construed as a motion for summary judgment. See Bost v. Federal Express Corp., 372 F.3d 1233, 1237 (11th Cir.), cert. denied 543 U.S. 1020 (2004); S.E.C. v. Mutual Benefits Corp., 408 F.3d 737, 742 (11th Cir. 2005). At this point, however, the motion cannot be so construed because the Defendants have not filed a separate statement of material fact. Further complicating this matter is the fact that it is unlikely Defendants can submit such a statement because there is a primary dispute between the parties on who represents the Reform Party. Nevertheless, Defendants shall have an opportunity to clarify how they would like the motion considered. Defendants may either rely on the motion to dismiss as titled and considered along with the memorandum of law, but without consideration of the attached exhibits (thus, only the amended complaint and the motion to dismiss and memorandum of law would be reviewed), or Defendants may submit a proper statement of material facts as is required by FED. R. CIV. P. 56 and N.D. Fla. Loc. R. 56.1. Defendants shall have until June 23, 2006, to respond to this order with their clarification. Plaintiff should not reply until directed to do so.
Should Defendants desire the document be considered a summary judgment motion, Defendants must simultaneously submit the separate statement of material facts.
Defendants Doogs, Foley, and Heinemann have also filed a joint motion for consideration. Doc. 97. This motion requests that the memorandum of law be accepted even though is exceeds the 25-page limit set by N.D. Fla. Loc. R. 7.1(A). The motion is granted.
Defendant Martin has filed a motion to recuse the undersigned. Doc. 92. The motion lacks sufficient reason for recusal pursuant to § 455. 28 U.S.C. § 455(b). Recusal is only required when an alleged bias is personal in nature. Phillips v. Joint Legislative Comm., 637 F.2d 1014, 1020 (5th Cir. 1981), cert. denied, 456 U.S. 960 (1982). There are no contentions of a personal bias stemming "from an extra-judicial source." United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 1710, 16 L. Ed. 2d 778 (1966). The basis for the motion is case management and rulings on motions. A judge's rulings are not valid grounds for recusal. Berger v. United States, 255 U.S. 22, 31, 41 S. Ct. 230, 232, 65 L. Ed. 481 (1921). Thus, the motion for recusal will be denied.
It is noted that Defendant Foley has filed his objection to the motion to recuse. Doc. 107. That document notes that Defendant Martin has not yet filed an Answer to the amended complaint. Doc. 107, p. 2.
Defendant Martin has also filed a motion requesting reconsideration of the order, doc. 87, which denied his prior motion in opposition to discovery, doc. 60. Defendant Martin complains of a short time-frame given to him to respond to a discovery request from Plaintiff. Should a party need additional time to respond, he or she may file a motion requesting an enlargement of time. Additionally, the order, doc. 87, was entered on May 23rd, but Defendant Martin's opposition to discovery, doc. 60 was filed on March 31st. Furthermore, Defendant Martin's opposition was in response to a request for discovery sent in early March. Considering the length of time the discovery request was outstanding, there is no obvious prejudice in directing the response be provided by June 6, 2006, which was two weeks later. Defendant Martin already had over two months notice for the request. Moreover, considering the fact that Defendant Martin has already responded to the request (responses provided on May 31st, doc. 104), the motion for reconsideration, doc. 91, filed on May 25th should be denied as moot.
Finally, as noted in Defendant Foley's opposition to the motion to recuse, doc. 107, Defendant Martin has not yet filed an Answer to the amended complaint. As noted above, Defendant Martin has been engaging in this litigation. It is time for him to file an Answer, and he shall do so on or before June 23, 2006.
Accordingly, it is
ORDERED:
1. As provided in the third scheduling order entered this day, the discovery deadline is August 1, 2006, and the deadline for filing dispositive motions is August 28, 2006.
2. Defendant O'Hara's "response to order denying motion to dismiss," doc. 78, construed as a motion for a ruling, is DENIED as moot.
3. Defendant Martin's motion to compel, doc. 100, is DENIED.
4. Defendant Martin's motion to compel, doc. 101, is DENIED.
5. Ruling is DEFERRED on Defendant Martin's motion to dismiss, doc. 99.
6. Plaintiff shall have until June 16, 2006, in which to respond to the motion to dismiss, doc. 99.
7. The motion to intervene submitted by Rodney Martin, doc. 50, is DENIED as moot. Defendant is already a party as a defendant. Doc. 110.
8. Defendant Heinemann's motion to correct the record, doc. 98, is DENIED.
9. Ruling is DEFERRED on the joint motion to dismiss, doc. 96, filed by Defendants Doogs, Foley, and Heinemann.
10. Defendants Doogs, Foley, and Heinemann shall have until June 23, 2006, to respond to this order and clarify whether the joint motion to dismiss should be considered without the attached exhibits, or whether they wish to have the motion construed as one seeking summary judgment.
If so, Defendants are reminded that they must simultaneously file a separate statement of material fact.
11. The joint motion for consideration, doc. 97, is GRANTED and the memorandum may exceed the 25-page limit.
12. Defendant Martin's motion to recuse, doc. 92, is DENIED.
13. The motion for reconsideration, doc. 91, is DENIED as moot.
14. Defendant Martin shall have until June 23, 2006, in which to file an Answer to the amended complaint, doc. 21.
DONE AND ORDERED.