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Martinez v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Orlando Division

June 6, 2017



          THOMAS B. SMITH United States Magistrate Judge

         Pending before the Court are Defendant's Motion for Reconsideration (Doc. 22), and Plaintiff response (Doc. 23). Upon review, the motion is GRANTED, in part and otherwise DENIED.


         Plaintiff Luis Martinez brings this action against his ex-employer, Julie L. Jones, in her Official Capacity as Secretary of the Florida Department of Corrections, alleging that he was subjected to gender discrimination and retaliation as a result of complaining about unfair and discriminatory treatment (Doc. 1). Attorney Samuel R. Mandelbaum filed an answer on behalf of Defendant (Doc. 8) and, on November 4, 2016, attorney Sara Sharp of Mr. Mandelbaum's firm filed her notice of appearance (Doc. 11). A Case Management and Scheduling Order was issued, and discovery commenced.

         On May 15, 2017, Plaintiff filed a Motion to Compel Production of Documents (Doc. 17), and an Amended Motion to Compel (Doc. 18). According to the amended motion, Plaintiff propounded his First Request to Produce on February 6, 2017, and Defendant lodged objections and failed to produce relevant documents relating to Requests 1, 5, 9, 10, 11, 13, 16, 20 and 27. Plaintiff sought an order compelling production and an award of attorney's fees under Rule 37(a)(5), Federal Rules of Civil Procedure. As Defendant failed to file a response to the motion, the Court treated the amended motion as unopposed (Doc. 20), granted it, and ordered:

With the exception of information protected by the attorney-client privilege or work product doctrine, Defendant shall produce all documents responsive to Plaintiff's requests for production numbered 1, 5, 9, 10, 11, 13, 20 and 27 within ten days from the rendition of this Order. Within the same ten day period, Defendant shall furnish to Plaintiff, a privilege log sufficiently describing the information Defendant contends is privileged so that Plaintiff and the Court (if necessary) can evaluate Defendant's assertion of privilege with respect to each item listed in the log.

(Doc. 20 at 2). The Court also allowed Plaintiff to recover attorney's fees incurred in connection with his motion to compel. Id.

         The next day, attorney Ashby C. Davis of Mr. Mandelbaum's firm filed a notice of appearance (Doc. 21) and Defendant filed this Motion for Reconsideration, under Fed.R.Civ.P. 60(b). In the motion, Defendant agrees to produce documents responsive to Plaintiff's Requests No. 9, 10, 13, 20 and 27, but seeks reconsideration on the merits as to Requests No. 1, 5 and 11, and a withdrawal of the finding of Plaintiff's entitlement to an award of attorney's fees.

         Legal Standards

         The applicable portion of Rule 60(b) cited by Defendant provides: “On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... or (6) any other reason justifying relief from the operation of the judgment.” Reconsideration of a court's order is an extraordinary remedy, and reconsideration is a power to be “used sparingly.” United States ex rel. Mastej v. Health Mgmt. Assocs., Inc., 869 F.Supp.2d 1336, 1348 (M.D. Fla. 2012). Motions filed under Rule 60(b)(6)'s “catch-all” provision “must demonstrate that the circumstances are sufficiently extraordinary to warrant relief.” Galbert v. W. Caribbean Airways, 715 F.3d 1290, 1294 (11th Cir. 2013) (citation omitted). The movant has the burden of showing such extraordinary circumstances. Absolute Activist Value Master Fund Ltd. v. Susan Elaine Devine, Orion Corp. & Trust Servs., Ltd., No. 2:16-CV-47-FTM-99MRM, 2017 WL 1885326, at *1 (M.D. Fla. May 8, 2017).

         “A motion for reconsideration must demonstrate why the court should reconsider its past decision and set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” Florida College of Osteopathic Medicine, Inc. v. Dean Witter Reynolds, Inc., 12 F.Supp.2d 1306, 1308 (M.D. Fla. 1998). Litigants cannot use a motion for reconsideration to ask a district court to “relitigate old matters, raise arguments, or present evidence that could have been raised prior to the entry of judgment.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (quoting Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005)). Ultimately, whether to grant the requested relief “is a matter for the district court's sound discretion.” Galbert, 715 F.3d at 1294.


         Defendant contends that reconsideration of the Order granting the amended motion to compel is warranted because: 1) there was no meaningful Local Rule 3.01(g) conference; 2) although Mr. Mandelbaum received the compel motions, “through calendaring oversight and error, the deadline to respond was not calendared;” and 3) Defendant's objections were substantially justified and an award of expenses would be unjust in this circumstance.

         Local Rule 3.01(g) provides that before filing most motions in a civil case, the moving party shall confer with the opposing party in a good faith effort to resolve the issues raised by the motion, and shall file with the motion a statement certifying that the moving party has conferred with the opposing party, and that the parties have been unable to agree on the resolution of the motion. The term “confer” in Rule 3.01(g) requires a substantive conversation in person or by telephone in a good faith effort to resolve the motion without court action and does not envision an email, fax or letter. Counsel who merely ...

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