United States District Court, M.D. Florida, Orlando Division
B. SMITH United States Magistrate Judge
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
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.
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
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
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).
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.
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.
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