ROY B. DALTON, Jr., District Judge.
This cause is before the Court on the following:
On November 11, 2011, Michelle Skinner ("Plaintiff") filed a Complaint in this Court against Legal Advocacy Center of Central Florida, Inc. ("Legal Advocacy Center") and Community Legal Services of Mid-Florida, Inc. ("Community Legal Services") (together, "Defendants") for violations of the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. ("FMLA") (Doc. No. 1.) On April 5, 2012, the Court issued an Order requiring Plaintiff to show cause why the case should not be dismissed for her failure to file a joint Case Management Report and otherwise prosecute the action. (Doc. No. 19.) On April 20, 2012, Earnest A. DeLoach, Jr. filed a "limited appearance" of record "for the purpose of early mediation" on behalf of Plaintiff. (Doc. No. 20, p. 1.) Mr. DeLoach also filed "Plaintiff's Response to Court's Order to Show Cause," in which he requested the Court allow Plaintiff ten (10) days to file her Case Management Report. (Doc. No. 21, p. 2.) The Court granted Plaintiff's request and ordered her to file a Case Management Report on or before May 11, 2012. (Doc. No. 22.)
On May 2, 2012, Defendant Community Legal Services filed a Motion to Strike Plaintiff's counsel's Limited Notice of Appearance because Local Rule 2.03(d) provides that a party who previously elected to appear "in proper person" is not permitted to "obtain special or intermittent appearances of counsel except upon such conditions as the Court may specify." (See Doc. No. 24.) Plaintiff did not respond to the Motion to Strike. On May 22, 2012, Magistrate Judge Spaulding granted the Motion, finding that Mr. DeLoach's Notice of Limited Appearance was improper. (Doc. No. 24.) Judge Spaulding directed the Clerk to strike the Notice, and to remove Mr. DeLoach from the docket "as he is not counsel of record." (Id. at p. 2.)
Judge Spaulding ordered Plaintiff to "provide the Court in writing with her physical mailing address, telephone number and email address, for the purposes of contacting her regarding matters in this case" on or before May 31, 2012. (Id.) Additionally, Judge Spaulding informed Plaintiff that she would be "responsible for representing herself in this case, including abiding by all rules and orders of the Court unless and until counsel enters a general appearance on her behalf," and reminded her that
On May 23, 2012, upon review of the record, the undersigned dismissed the action for Plaintiff's failure to file a Case Management Report, and directed the Clerk to close this case file. (Doc. No. 25.) On June 14, 2012, Mr. DeLoach filed the Verified Motion to Vacate Order of Dismissal (Doc. No. 26) ("Motion to Vacate"). Defendants filed separate responses in opposition. (See Doc. Nos. 27, 29.)
In the Motion to Vacate, Plaintiff states that she first consulted with Mr. DeLoach on February 8, 2012, "regarding possible engagement to represent her in the pending matter." (Doc. No. 26, ¶ 2.) On February 22, 2012, Mr. DeLoach contacted Defendants' counsel regarding early mediation. (Id. at ¶ 3.) Plaintiff "engaged" Mr. DeLoach as counsel "on April 14, 2012," and he electronically filed the Notice of Limited Appearance (previously at Doc. No. 20) on April 20, 2012. On April 19, 2012, Plaintiff's counsel "learned that counsel for [Defendant Legal Advocacy Services] . . . would be unavailable due to maternity leave . . . and began to attempt to determine" who would serve as substitute counsel. (Id. at ¶ 6.) According to Defendant Legal Advocacy Services, on April 26, 2012, he contacted them to determine "who was handling the matter," in light of lead counsel's maternity leave. (Doc. No. 29, ¶ 4.) "After that call, [however,] . . . Attorney DeLoach never attempted to schedule a meeting to discuss the Case Management Report." (Id.)
On May 10, 2012, the day before the Case Management Report was due,
Plaintiff's counsel maintains that in the May 10, 2012 e-mail, he "requested that defense counsel respond with any objections" to the proposed Case Management Report. (Doc. No. 26, ¶ 8.) "Having not received any response, . . . on May 21, 2012, [Plaintiff's counsel] contacted [Defendants'] counsel to offer a final opportunity to comment on the draft," but again received no response. (Id. at ¶ 9.) Contrary to this assertion, Defendant Community Legal Services maintains that it provided comments regarding the Case Management Report "on May 22, 2012" at 7:26 a.m. (Doc. No. 27, p. 8.)
Plaintiff represents to the Court that on "May 22 and 23, 2012" (when Judge Spaulding entered the Order striking Mr. DeLoach's Notice of Limited Appearance (Doc. No. 24), and the undersigned entered the Order of Dismissal (Doc. No. 25)), her counsel was unavailable because he "conducted three depositions outside of [his] office." (Id. at ¶ 12.) The next day, on May 24, 2012, he "argued a hearing in Orange County, Florida Circuit Court and then departed with his family to Palm Beach, Florida for the Memorial Day Holiday." (Id. at ¶ 13.) Plaintiff contends that her counsel "did not learn of the Order striking [his] Limited Notice of Appearance" until May 29, 2012—after the Memorial Day holiday, when he returned to the office." (Id. at ¶ 14.) Meanwhile, Plaintiff was also out of town, and did not retrieve the Order of Dismissal from her post office box until June 1, 2012. (Id. at ¶ 15.)
Based on the foregoing facts, Plaintiff maintains that this Court should exercise its discretion under Federal Rule of Civil Procedure ("Rule") 60(b)(1), and vacate its Order dismissing this case. In short, she contends that at the time of the dismissal, she was in the process of both preparing her Case Management Report and attempting to schedule an early mediation of the matter. "But for delays associated with the designation of temporary replacement counsel for [Defendant Legal Advocacy Services] and awaiting contributions from defense counsel regarding the Case Management Report—circumstance[s] amounting to excusable mistake, inadvertence, or excusable neglect—the Report would have been filed." (Doc. No. 26, ¶ 23.) Finally, Plaintiff adds that her counsel's "unavailability during the week the Court rendered its Orders striking his Limited Notice of Appearance and dismissing Plaintiff's Complaint certainly contributed to [her] failure to properly respond to the Court." (Id. at ¶ 25.)
Rule 60(b)(1) provides in relevant part: "On motion and just terms, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect. . . ." "Rule 60(b) motions are directed to the sound discretion of the district court." Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 849 n.2 (11th Cir. 1996). "Rule 60(b) is a remedial rule that `should be liberally construed in order to do substantial justice.' . . . This concern is most compelling when the court has not reached the merits of the case." U.S. v. Real Prop. and Residence Located at Route 1, Box 111, Firetower Rd., 920 F.2d 788, 792 (11th Cir. 1991) (citing Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 401 (5th Cir. Unit A 1981); Solaroll Shade and Shutter Corp. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1132 (11th Cir. 1986)).
In Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 382-83, 398-99 (1993), the Supreme Court of the United States set forth a four-factor test courts must employ to determine whether a party's neglect of a deadline is excusable. These factors include: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith. See id. (quotation and alteration omitted).
Recently, the Eleventh Circuit explained:
U.S. v. Davenport, 668 F.3d 1316, 1324-25 (11th Cir. 2012). District courts in this Circuit have generally determined that "an attorney's negligence alone" does not qualify for relief under Rule 60(b)(1). See Lender v. Unum Life Ins. Co. of Am., Inc., 519 F.Supp.2d 1217, 1223 (M.D. Fla. 2007) (collecting cases). However, there is recent Eleventh Circuit precedent finding that "untimely filing caused by inadvertence, mistake, or carelessness may still constitute `excusable neglect.'" Yang v. Bullock Fin. Grp., Inc., 435 F. App'x 842, 843-44 (11th Cir. July 22, 2011) (citing Adv. Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 1324 (11th Cir. 1996) (Riney I)).
In Yang, for example, the Eleventh Circuit relied in part on its Cheney, 71 F.3d 848, opinion, in which it "suggested that untimely filing was excusable because the movant's two attorneys failed to communicate with each other about who was responsible for filing." Id. Based on the circumstances in Yang, it remanded to the district court, instructing, "Rather than focusing on the merits of the underlying action, the district court should have made specific findings regarding the legitimacy of the reason for the delay and the risk of adverse consequences resulting from the delay itself." Id.
In Conn. State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1355-56 (11th Cir. 2009), the Eleventh Circuit reviewed a district court decision denying a motion to vacate judgment because a plaintiff failed to comply with four court orders and failed to respond to the defendant's motion to dismiss, even though it was undisputed that "[p]laintiff's counsel received three of the orders electronically and received a paper copy of the motion by mail." Although the district court found that "these circumstances did not constitute excusable neglect," it did "not even consider the Pioneer factors." Id. (citing Cheney, 71 F.3d at 850). Upon its own consideration of the Pioneer factors,
Id. (citations omitted); see Davenport, 668 F.3d at 1324 ("While an attorney error based on a misunderstanding or misinterpretation of the law generally cannot constitute excusable neglect, a mistake of fact, such as miscommunication or a clerical error, may do so under the pertinent factors.") (citations omitted).
On the other hand, the Eleventh Circuit found that the district court did not abuse its discretion in dismissing a complaint with prejudice for lack of prosecution and failure to comply with court orders where the plaintiff "submitted his original complaint in December 2003, but by July 2005, had still not contacted the defendants about filing the case management report, even after being told repeatedly to do so." McIntosh v. Gauthier, 182 F. App'x 884, 887 (11th Cir. 2006). The McIntosh court concluded, "The length of this litigation, the cooperation by defendants, and lack of cooperation by [the plaintiff] show a clear record of delay and contempt on the part of [the plaintiff] warranting dismissal." Id. at 887.
In short, an examination of current Eleventh Circuit case law exemplifies just how "elastic" the concept of "excusable neglect" truly is. See Pioneer, 507 U.S. at 392 (" `excusable neglect' . . . is a somewhat `elastic concept'"). Although some district courts in this circuit continue to deny Rule 60(b)(1) motions in which the movant relies on "attorney negligence" to show "excusable neglect," the Eleventh Circuit's post-Pioneer precedent emphasizes that when deciding a Rule 60(b)(1) motion "[p]rimary importance should be accorded to the absence of prejudice to the nonmoving party and to the interest of efficient judicial administration." Riney I, 77 F.3d at 1325 (citing Cheney, 71 F.3d at 850). Moreover, some of the district court cases finding that excusable neglect cannot be premised on "attorney error, or general negligence" rely on pre-Pioneer precedent.
The Court first considers the potential prejudice to Defendants and the interests of efficient judicial administration. See id. Defendants do not offer any evidence that Plaintiff's delay in filing the Case Management Report has prejudiced them. Instead, Defendant Legal Advocacy Services argues, "Justice is not accomplished by giving Skinner, [a lawyer-plaintiff, admitted to practice in this very forum since 2003,] yet a third chance to live up to her obligations, and we are all prejudiced when those who know better choose not to do so." (Doc. No. 27.) While it is true that Plaintiff is an attorney licensed to practice in the State of Florida, and that "we all" suffer some consequences from other's actions or inactions, those facts are not relevant to the Court's consideration of whether there is "discernable prejudice" to Defendants based on Plaintiff's failure to file a Case Management Report.
Defendant Legal Advocacy Center also contends that Defendants should not be "subjected to endless litigation and motion practice on account of Plaintiff's disrespect for the rules and the Court's Order." (Doc. No. 29, p. 5.) It relies on Dunn v. Prudential Ins. Co. of Am., No. 8:10-cv-1626, 2011 WL 1298156 (M.D. Fla. Apr. 4, 2011), to support this contention. In Dunn, the court found that there "would be at least some prejudice" to the plaintiff if the Court set aside the default judgment it entered when the defendant failed to respond to the complaint because she "would be required to begin prosecuting claims against [the defendant] seven months after she properly served [it], and after she obtained a final judgment." Id. at *3. The same cannot be said in this case, where there has been no final judgment.
There are essentially two courses of action that could follow from the Court's decision on Plaintiff's Motion to Vacate. Either way, the outcome to Defendants will be substantially the same: they may have to continue to litigate this suit.
Next, the Court finds Defendant Legal Advocacy Center's suggestion that they will be prejudiced if the Court grants the Motion because they will be "subjected to endless litigation and motion practice" unavailing. (Doc. No. 29, p. 5.) For one, this argument does not speak to "the risk of adverse consequences resulting from the delay itself." Yang, 435 F. App'x at 844. The focus of this inquiry must be on the prejudice caused by Plaintiff's failure to file a Case Management Report by the May 11, 2012 deadline imposed in the Court's April 5, 2012 Order. (Doc. No. 19.) As stated above, regardless of the Court's resolution, Plaintiff will have the opportunity to continue this litigation, should she so choose.
Moreover, Defendants have not engaged in
Turning next to whether Plaintiff acted in good faith, the Court finds this factor to be neutral as between the parties. The record does not contain any evidence that Plaintiff's failure to meet with Defendants and file the Case Management Report was in bad faith or for an improper strategic purpose. Accordingly, the record is silent on the issue of good faith.
Lastly, Court finds the reasons espoused by Plaintiff and her counsel for failure to file a Case Management Report rather paltry and would be hard-pressed to vacate its May 23, 2012 Order if Defendants had suffered any "discernable prejudice" from her delay. On balance, however, the Court finds that any prejudice to Defendants resulting from Plaintiff's delay in filing the Case Management Report is minimal, that there has been no showing that either she or her counsel acted in bad faith, as contrasted with negligence, and that the interests of efficient judicial administration weigh strongly in favor of granting the Motion to Vacate. Plaintiff will be given a final opportunity to have this action resolved on the merits.
The Court finds that Mr. DeLoach's filing of the Motion to Vacate (Doc. No. 26) constitutes a "general appearance" on Plaintiff's behalf. Local Rule 2.03(a) (emphasis added) instructs:
As Plaintiff's counsel, Mr. DeLoach shall not "abandon [this] case . . . or withdraw as counsel . . ., except by written leave of Court obtained after giving ten (10) days' notice to the party or client affected thereby, and to opposing counsel." M.D. Fla. R. 2.03(b). Each and every paper that Mr. DeLoach files with this Court shall conform to the requirements of Rule 11, all other applicable Federal Rules of Procedure, the Local Rules, and this Court's Orders.
In light of the foregoing, it is hereby
3) The parties' counsel
4) Plaintiff's counsel shall file the Case Management Report, signed by respective counsel for all parties, on or before July 25, 2012. Failure to comply with these directives, any future Court Order, the Middle District of Florida's Local Rules, or the Federal Rules of Civil Procedure will likely result in
The parties have agreed on the following dates and discovery plan pursuant to Fed.R.Civ.P. 26(f) and Local Rule 3.05(c):
Lead counsel must meet in person and not by telephone absent an order permitting otherwise. Counsel will meet in the Middle District of Florida, unless counsel agree on a different location. Pursuant to Local Rule 3.05(c)(2)(B) or (c)(3)(A),
Fed.R.Civ.P. 26, as amended effective December 1, 2010, provides that these disclosures are mandatory in Track Two and Track Three cases, except as stipulated by the parties or otherwise ordered by the Court (the amendment to Rule 26 supersedes Middle District of Florida Local Rule 3.05, to the extent that Rule 3.05 opts out of the mandatory discovery requirements):
Below is a description of information disclosed or scheduled for disclosure.
The parties have discussed issues relating to disclosure or discovery of electronically stored information ("ESI"), including Pre-Discovery Initial Disclosures of Core Information in Section II above, and agree that (check one):
If disclosure or discovery of ESI is sought by any party from another party, then the following issues shall be discussed:
A. The form or forms in which ESI should be produced.
B. Nature and extent of the contemplated ESI disclosure and discovery, including specification of the topics for such discovery and the time period for which discovery will be sought.
C. Whether the production of metadata is sought for any type of ESI, and if so, what types of metadata.
D. The various sources of ESI within a party's control that should be searched for ESI, and whether either party has relevant ESI that it contends is not reasonably accessible under Rule 26(b)(2)(B), and if so, the estimated burden or costs of retrieving and reviewing that information.
E. The characteristics of the party's information systems that may contain relevant ESI, including, where appropriate, the identity of individuals with special knowledge of a party's computer systems.
F. Any issues relating to preservation of discoverable ESI.
G. Assertions of privilege or of protection as trial-preparation materials, including whether the parties can facilitate discovery by agreeing on procedures and, if appropriate, an Order under Federal Rules of Evidence Rule 502. If the parties agree that a protective order is needed, they shall attach a copy of the proposed order to the Case Management Report. The parties should attempt to agree on protocols that minimize the risk of waiver. Any protective order shall comply with Local Rule 1.09 and Section IV.F. below on Confidentiality Agreements.
H. Whether the discovery of ESI should be conducted in phases, limited, or focused upon particular issues.
Please state if there are any areas of disagreement on these issues and, if so, summarize the parties' positions on each: _____________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________
If there are disputed issues specified above, or elsewhere in this report, then (check one):
___ one or more of the parties requests that a preliminary pre-trial conference under Rule 16 be scheduled to discuss these issues and explore possible resolutions. Although this will be a non-evidentiary hearing, if technical ESI issues are to be addressed, the parties are encouraged to have their information technology experts with them at the hearing.
If a preliminary pre-trial conference is requested, a motion shall also be filed pursuant to Rule 16(a), Fed.R.Civ.P.
___ all parties agree that a hearing is not needed at this time because they expect to be able to promptly resolve these disputes without assistance of the Court.
This Court has previously ordered each party, governmental party, intervenor, non-party movant, and Rule 69 garnishee to file and serve a Certificate of Interested Persons and Corporate Disclosure Statement using a mandatory form. No party may seek discovery from any source before filing and serving a Certificate of Interested Persons and Corporate Disclosure Statement. A motion, memorandum, response, or other paper — including emergency motion — is subject to being denied or stricken unless the filing party has previously filed and served its Certificate of Interested Persons and Corporate Disclosure Statement. Any party who has not already filed and served the required certificate is required to do so immediately.
Every party that has appeared in this action to date has filed and served a Certificate of Interested Persons and Corporate Disclosure Statement, which remains current:
Amended Certificate will be filed by ____________________ (party) on or before __________________ (date).
The parties shall not file discovery materials with the Clerk except as provided in Local Rule 3.03. The Court encourages the exchange of discovery requests on diskette. See Local Rule 3.03 (f). The parties further agree as follows:
Absent leave of Court, the parties may take no more than ten depositions per side (not per party). Fed.R.Civ.P. 30(a)(2)(A); Fed.R.Civ.P. 31(a)(2)(A); Local Rule 3.02(b). Absent leave of Court, the parties may serve no more than twenty-five interrogatories, including sub-parts. Fed.R.Civ.P. 33(a); Local Rule 3.03(a). Absent leave of Court or stipulation of the parties each deposition is limited to one day of seven hours. Fed.R.Civ.P. 30(d)(2). The parties may agree by stipulation on other limits on discovery. The Court will consider the parties' agreed dates, deadlines, and other limits in entering the scheduling order. Fed.R.Civ.P. 29. In addition to the deadlines in the above table, the parties have agreed to further limit discovery as follows:
Each party shall timely serve discovery requests so that the rules allow for a response prior to the discovery deadline. The Court may deny as untimely all motions to compel filed after the discovery deadline. In addition, the parties agree as follows:
On or before the dates set forth in the above table for the disclosure of expert reports, the parties agree to fully comply with Fed.R.Civ.P. 26(a)(2) and 26(e). Expert testimony on direct examination at trial will be limited to the opinions, basis, reasons, data, and other information disclosed in the written expert report disclosed pursuant to this order. Failure to disclose such information may result in the exclusion of all or part of the testimony of the expert witness. The parties agree on the following additional matters pertaining to the disclosure of expert testimony
Whether documents filed in a case may be filed under seal is a separate issue from whether the parties may agree that produced documents are confidential. The Court is a public forum, and disfavors motions to file under seal. The Court will permit the parties to file documents under seal only upon a finding of extraordinary circumstances and particularized need. See Brown v. Advantage Engineering, Inc., 960 F.2d 1013 (11th Cir. 1992); Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985). A party seeking to file a document under seal must file a motion to file under seal requesting such Court action, together with a memorandum of law in support. The motion, whether granted or denied, will remain in the public record.
The parties may reach their own agreement regarding the designation of materials as "confidential." There is no need for the Court to endorse the confidentiality agreement. The Court discourages unnecessary stipulated motions for a protective order. The Court will enforce appropriate stipulated and signed confidentiality agreements. See Local Rule 4.15. Each confidentiality agreement or order shall provide, or shall be deemed to provide, that "no party shall file a document under seal without first having obtained an order granting leave to file under seal on a showing of particularized need." With respect to confidentiality agreements, the parties agree as follows:
The parties agree that settlement is _____ likely ______ unlikely (check one)
The parties request a settlement conference before a United States Magistrate Judge. ___ yes ___ no ___ likely to request in future
The Local Rules no longer designate cases for automatic arbitration, but the parties may elect arbitration in any case. Do the parties agree to arbitrate?
Absent arbitration or a Court order to the contrary, the parties in every case will participate in Court-annexed mediation as detailed in Chapter Nine of the Court's Local Rules. The parties have agreed on a mediator from the Court's approved list of mediators as set forth in the table above, and have agreed to the date stated in the table above as the last date for mediation. The list of mediators is available from the Clerk, and is posted on the Court's web site at http://www.flmd.uscourts.gov.
The parties intend to pursue the following other methods of alternative dispute resolution:
Date: _____________________
Signature of Counsel (with information required by Local Rule 1.05(d)) and Signature of Unrepresented Parties.
