United States District Court, S.D. Florida
ORDER DENYING PLAINTIFFS' MOTIONS TO ALTER OR
AMEND JUDGMENT UNDER RULE 59(E)
WILLIAM MATTHEWMAN, UNITED STATES MAGISTRATE JUDGE
CAUSE is before the Court upon Plaintiffs Motion to Alter or
Amend Judgment under Rule 59(e) ("Motion"), which
was filed in both of the above-captioned cases. [16-cv-81612,
DEs 61, 62; 16-cv-81624, DEs 57, 58]. The Motion is fully
briefed in both cases. The Court has carefully reviewed the
Motion, response, reply, and the Court's prior orders in
the cases, as well the entire docket in each case. The matter
is now ripe for review.
Court has been required to enter several prior orders in this
case due to a flurry of discovery motions, problems and
disputes. See 16-cv-81612, DEs 45, 52, 54, and 58;
16-cv-81624, DEs 41, 48, 51, and 54. The Court assumes
familiarity with these prior orders.
Court's most recent discovery order was an Order
Supplementing the Court's Prior Discovery Orders and
Addressing Social Media Posts of Attorney Malik Leigh, Esq.,
dated June 28, 2017 [16-cv-81612, DE 58; 16-cv-81624, DE 54].
In that Order, the Court discussed the improper conduct of
Malik Leigh, Esq., an attorney who is representing himself in
case number 16-cv-81612 and is representing the plaintiff in
case number 16-cv-81624, and the Court supplemented its
reasoning for the entry of its prior orders. The Court also
required Mr. Leigh to pay the Defendants' attorney's
fees expended in the discovery litigation. [16-cv-81612, DE
58, pp. 20-21, para. 1; 16-cv-81624, DE 54, pp. 20-21, para.
1]. Further, the Court ordered Mr. Leigh to conduct himself
properly in this litigation in the future and referred Mr.
Leigh's conduct to The Florida Bar and the Grievance
Committee of this Court. Id. at pp. 21-22.
12, 2017, Mr. Leigh filed a response to Defendants'
motion for attorney's fees [16-cv-81612, DE 61;
16-cv-81624, DE 57], which also contained his motion to alter
or amend judgment which the clerk docketed as DE 62 in case
number 16-cv-81612 and as DE 58 in case number
16-CV-81624. A review of the Motion in each case
establishes that the only portion of the Court's prior
Order [16-cv-81612, DE 58; 16-cv-81624, DE 54] which
Plaintiffs are challenging is "the Court's order
awarding attorneys fees for violations of local court rules
by posting certain social media posts regarding the
Defendants while an active case was pending, for filing an
extension to effectuate the depositions of the Defendant(s),
and for the need and expense of providing extra security for
Depositions" [16-cv-81612, DE 61, pp. 1-2; 16-cv-81624,
DE 57, pp. 1-2]. The Court will now briefly summarize the
Motion, Plaintiffs in each case argue that the Court
misconstrued their reasons for wanting to depose Marcia
Andrews and also argue that they did not seek to depose her
solely to harass or inconvenience her. Plaintiffs assert that
they still believe that Ms. Andrews is a very relevant and
pivotal witness. They explain that they have attached as an
exhibit a clip from a Board meeting to demonstrate the
relevance of her testimony to their cases. Next, Plaintiffs
maintain that the notices of depositions for Ms. Andrews were
not violative of Local Rule 26.1(h) as the parties had agreed
on the date and time of the deposition, and a new notice of
deposition was only issued when Defendants asked to change
the location of the depositions. Plaintiffs argue that
Defendants should have conferred with them before filing
their motion for protective order. Plaintiffs also contend
that certain of Mr. Leigh's social media postings were
misconstrued by the Court and acknowledge that others were
response, Defendants contend that Plaintiffs have failed to
offer any new information or argument that supports their
request to alter or amend the Court's Order awarding
Defendants fees and costs. [DE 16-cv-81612, DE 68;
16-cv-81624, DE 66]. Next, Defendants argue that Ms.
Andrews' testimony is not relevant to Plaintiffs'
cases and that Plaintiffs have attached a clip from a Board
meeting to their Motion, but the clip makes no reference to
Plaintiffs. Defendants argue that there was sufficient
conferral between the parties before Defendants filed their
motion for protective order. Finally, they contend that
Plaintiffs' counsel improperly attached as an exhibit to
the Motion a copy of Defendants' confidential mediation
order to prevail on a motion for reconsideration, the moving
party "must demonstrate why the court should reconsider
its prior decision and set forth facts or law of a strongly
convincing nature to induce the court to reverse its prior
decision. A motion for reconsideration should raise new
issues, not merely address issues litigated previously."
Institute de Prevision Militar v. Lehman Bros., 485
F.Supp.2d 1340, 1343 (S.D. Fla. 2007) (quoting Socialist
Workers Party v. Leahy, 957 F.Supp. 1262, 1263 (S.D.
Fla. 1997)). The three grounds warranting reconsideration
that courts have articulated are: (1) an intervening change
in controlling law; (2) the availability of new evidence; or
(3) the need to correct clear error or manifest injustice.
careful review of the Motion, Defendants' response, the
Court's prior Orders, and the entire docket in this case,
the Court finds that the Motion is due to be denied. First,
there has been no intervening change in controlling law.
Plaintiffs do not argue to the contrary.
although Plaintiffs have presented new evidence, which is a
clip from a School Board meeting and a confidential mediation
statement, such new evidence does not affect the Court's
prior rulings. The School Board clip does not mention
Plaintiffs and is simply not relevant. And, Defendants'
confidential settlement statement is not only irrelevant, but
also, and more importantly, Plaintiffs' filing of the
document violates applicable rules. Local Rule 16.2(g)(2)
states in relevant part that "[a]ll proceedings of the
mediation shall be confidential and are privileged in all
respects as provided under federal law and Florida Statutes
§ 44.405. The proceedings may not be reported, recorded,
placed into evidence, made known to the Court or
jury...." S.D. Fla. L.R. 16.2(g)(2). In this Circuit,
courts have found that such violation of the Local Rule can
be a basis for sanctioning the party who violated the Local
Rule. See, e.g. Mocombe v. Russell Life Skills and
Reading Found., Inc., Case No. 12-60659-CIV-Williams,
2014 WL 11531914 (S.D. Fla. Oct. 30, 2014) (granting the
defendants' motion for sanctions after the plaintiff
posted a Facebook message concerning the negotiations at a
settlement conference). The Court notes that Plaintiffs
publicly filed the confidential mediation statement in
violation of this Court's Local Rules and the Florida
Statutes. That is, in filing the ...