United States District Court, M.D. Florida, Tampa Division
CIELO JEAN GIBSON, DESSIE MITCHESON, IRINA VORONINA, JOHN COULTER and MAYSA QUY, Plaintiffs,
RESORT AT PARADISE LAKES, LLC d/b/a PARADISE LAKES RESORT d/b/a PARADISE LAKES and JERRY BUCHANAN, Defendants.
ARNOLD SANS ONE United States Magistrate Judge.
the Court is Plaintiffs' Motion for Relief from Order
Pursuant to FRCP 60(b)(6) and Request for Oral Argument (Doc.
110), and Defendants' response thereto (Doc. 115).
Cielo Jean Gibson, Dessie Mitcheson, Irina Voronina, John
Coulter, and Maysa Quy, (collectively,
“Plaintiffs”) brought this action against
Defendants Paradise Lakes, LLC d/b/a Paradise Lakes Resort
d/b/a Paradise Lakes and Jerry L. Buchanan (collectively,
“Defendants”) for violations of the Lanham Act,
15 U.S.C. § 1125(a), negligence, fraudulent
misrepresentation, unfair competition, unlawful conversion,
unjust enrichment, civil theft, violations of Florida's
Deceptive and Unfair Trade Practices Act, common law right of
publicity and violations of Section 540.08, Florida Statutes.
(Doc. 31). Essentially, Plaintiffs allege that Defendants
unlawfully used Plaintiffs' images, likeness and identity
in promoting themed parties at Defendants' clothing
optional resort (the “subject images”).
October 19, 2016, Plaintiffs propounded Interrogatories and
Requests for Production of Documents on Defendants, and
Defendants responded. On January 3, 2017, Plaintiffs filed a
Motion to Compel Better Responses to Interrogatories and
Request for Production of Documents (Doc. 50). The Court
entered an Order on February 24, 2017, granting in part and
denying in part Plaintiffs' Motion to Compel Better
Responses. (Doc. 74). Specifically, and at issue here, the
Court denied Plaintiff's Motion to Compel Better
Responses to Request for Production No. 15, which sought the
names and contact information of Defendants' members
(“member lists”).(Doc. 74). The undersigned
concluded that Plaintiffs' Request for Production No. 15
sought protected documents, was overbroad, was irrelevant to
Plaintiffs' claim and was not proportionate to the needs
of the case. (Doc. 74).
now seek relief from the February 24, 2017 Order denying
their request for production of Defendants' member lists.
(Doc. 110). Defendants filed a response in opposition to
Plaintiff's Motion. (Doc. 115). Accordingly, this matter
is ripe for judicial review.
Motion for Reconsideration of February 24, 2017 Order (Doc.
seek relief pursuant to Rule 60(b), Fed. R. Civ. P., which
permits the Court to “relieve a party or its legal
representative from a final judgment, order, or
proceeding” on several stated grounds. An order
granting in part and denying in part a motion to compel is
not a final order. Because such an order is not a final
order, Rule 60 is not the proper vehicle by which Plaintiffs
may seek relief. See Steel Works Rebar Fabricators, LLC
v. Alterra America Ins. Co., No. 11-24032-CIV, 2012 WL
1414142, at *1 (S.D. Fla. Apr. 20, 2012) (“Relief
pursuant to Rule 60(b), however, is only available in regard
to final judgments or orders.”). The February 24, 2017
Order was not a final order, therefore, the Court will
proceed with analysis pursuant to Rule 54(b), Fed. R. Civ. P.
limited circumstances prompt reconsideration of a court
order. These include (1) an intervening change in the
controlling law; (2) new evidence which has become available;
or (3) a need to correct clear error or prevent manifest
injustice. Branch Banking & Trust Co. v. Shirley Inv.
Properties, LLC, No. 8:13-CV-528-T-23MAP, 2014 WL
12623802, at *1 (M.D. Fla. Jan. 16, 2014) (citation omitted).
Reconsideration is not appropriate when the proponent merely
reargues matters already addressed. See Arthur v.
King, 500 F.3d 1335, 1343 (11th Cir. 2007).
Plaintiffs do not advance the argument that there has been an
intervening change of controlling law or that there is new
evidence available. Thus, the undersigned will consider
whether the Court must correct clear error or manifest
injustice. In the February 24, 2017 Order, the Court noted
that “customer or member lists can, in situations such
as these, be protected.” (Doc. 74, p. 7); see e.g.
Vas Aero Services, LLC v. Arroya, 860 F.Supp.2d 1349,
1359 (S.D. Fla. 2012); Marine Turbo Eng'g, Ltd. v.
Turbocharger Servs. Worldwide, LLC, No. 11-60621-CIV,
2011 WL 6754058, at *9 (S.D. Fla. 2011); Merrill Lynch,
Pierce, Fenner & Smith Inc. v. Dunn, 191 F.Supp.2d
1346, 1351 (M.D. Fla. 2002). Plaintiffs unpersuasively
attempt to distinguish Defendants' member lists from the
protected member lists at issue in the listed cases. In each
of the decisions listed, the court extended protection for
member lists, just as the Court appropriately did here.
addition, the member lists sought would not necessarily
identify the individuals Plaintiffs claim they seek to
identify. In fact, according to Defendants, the members must
opt-in to receive advertising. Thus, the undersigned need not
correct clear error or manifest injustice in denying
Plaintiffs' request to compel production of
Defendants' member lists.
Request for Oral Argument
these issues have been the subject of numerous memoranda, the
undersigned finds it unnecessary to conduct a ...