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Johnson v. New Destiny Christian Center Church, Inc.

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

January 2, 2018



          Roy B. Dalton, Jr., Judge

         Desperate times call for desperate measures. This phrase tolls the knell for the Court's task in the instant action: to determine whether the draconian sanction of default judgment should be imposed against Defendants New Destiny Christian Center, Inc. (“NDCC”), Paula Michelle Ministries, Inc. (“PMMI”), and Paula Michelle White (“PMW”) (collectively, “Motion Defendants”). On July 10, 2017, pro se Plaintiff Shirley Jn Johnson (“Johnson”) moved for default judgment against Motion Defendants. (Doc. 152 (“Motion”).) They opposed on July 24, 2017. (Doc. 154 (“Response”).)

         On referral, U.S. Magistrate Judge Gregory J. Kelly issued a report on August 28, 2017, recommending that the Court grant in part Johnson's motion for default judgment. (Doc. 166 (“R&R”).) Specifically, he recommended that: (1) Motion Defendants' Answer and Affirmative Defenses be stricken; (2) the Court enter a default judgment against Motion Defendants; and (3) Motion Defendants pay Johnson's costs incurred in filing the Motion. (Id.) Motion Defendants then objected to the R&R on September 13, 2017 (Doc. 171 (“Objection”)), and Johnson responded (Doc. 172.) The matter is now ripe for review. For the following reasons, the Court finds that the Objection is due to be overruled, the R&R is due to be adopted, and default judgment is due to be entered against Motion Defendants.

         I. Legal Standards

         When a party objects to a magistrate judge's findings, the district court must “make a de novo determination of those portions of the report . . . to which objection is made.” 28 U.S.C. § 636(b)(1). The district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. The district court must consider the record and factual issues based on the record independent of the magistrate judge's report. Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 513 (11th Cir. 1990).

         II. Procedural History

         The story begins in 2014. On March 27, 2014, Paula White Ministries (“PW Ministries”), a self-described “global ministry in both vision and reach, ” filed a copyright infringement action against Johnson, a devotee in her own right, because Johnson operates a website and posts videos that seek to expose PMW as a false prophet. See Paula White Ministries v. Johnson, Case No. 6:14-cv-497-Orl31DAB, Docs. 1, 16. After Johnson engaged in the dispute (see id., Doc. 32), PW Ministries ultimately retracted its claim and moved to dismiss the action with prejudice (Id., Doc. 37.) PW Ministries' dismissal wish was granted by U.S. District Judge Gregory A. Presnell (Id., Doc. 40), but Johnson did not retreat. Instead, minding Judge Presnell's advice (see id.), Johnson commenced the instant action for malicious prosecution. (Doc. 1.) She sought punitive damages and other appropriate relief. (Doc. 76, p. 15.)

         A. The First Wave of Motions to Compel Production and Subsequent Court Intervention

         Discovery commenced, and then, perhaps predictably given the litigants' history, all hell broke loose. On April 20, 2016, Johnson served requests for production of documents and interrogatories on Motion Defendants. (See Doc. 73-4.) Responses were due on May 20, 2016 (Docs. 67, p. 8; 69, p. 12; 70, p. 6; 71, p. 8; 72, p. 9). On May 20, 2016, only PMW individually submitted objections, not NDCC or PMMI. (Id.; see also Doc. 172-3, p. 8.) PMW e-mailed unverified responses to Johnson's requests and gave this response to nearly every request:

Objection. [Johnson's] request is overboard in time and scope, unduly burdensome, and potentially prejudicial. The discovery requested is not relevant or reasonably calculated to lead to the discovery of admissible evidence absent Johnson proving [PMW's] liability. [Johnson's] request is an unwarranted fishing expedition into [PMW's] confidential financial information designed solely to harass, embarrass and/or annoy PMW. Subject to the objection, PMW will request a confidentiality agreement and/or protective order limiting the scope of the discovery and preventing the dissemination of [PMW's] financial information to any person, entity, or via any medium, including [Johnson's] YouTube channel and/or the internet.

(Doc. 73-5, pp. 1-9; 83-2; 83-3). No motion for a protective order was filed. In response, Johnson sent Motion Defendants a letter on May 27, 2016, stating that Motion Defendants' responses were deficient as undated, unsigned, and unverified, and requested corrected responses by June 6, 2016. (Doc. 67, p. 8.) The letter also stated Johnson's opposition to the motion for a protective order. (Doc. 73, ¶ 10.)

         Corrected responses were not forthcoming, rather, Motion Defendants e-mailed Johnson on June 6, 2016, to set up a conference call to discuss her concerns. (Doc. 67, pp. 8-9.) They spoke later that day and Motion Defendants agreed to review the requests and send amended responses by June 20, 2016, along with a proposed protective order. (Id.; see also Doc. 73, ¶¶ 12-13; 15.) Johnson agreed during the call to not disseminate any private information received in discovery. (Id. ¶ 14.)

         On June 20, 2016, all Motion Defendants served signed responses to Johnson's requests-albeit well past the initial deadline of May 20, 2016. (Docs. 73-5, pp. 10-51.) For the most part, Motion Defendants repeated the objection previously made, verbatim, but occasionally provided other responses and produced some documents. (See, e.g., Doc. 73-5, pp. 13-15.) This time, they included a proposed motion for a protective order. (Doc. 67; 73-1.) Upon reviewing the proposed motion, on June 23, 2016, Johnson stated that she opposed the motion but affirmed that she would refrain from disseminating information obtained through discovery. (Doc. 73, ¶ 16.) No motion for a protective order was filed.

         Fed up, on July 1, 2016, Johnson filed six motions to compel Motion Defendants' responses to her requests based on their untimely, unverified, and largely non-responsive submissions. (Docs. 67-72.) She sought sanctions as well. (See id.) Five days later, Motion Defendants filed a motion for a protective order “to prevent the widespread dissemination, distortion, and misuses of [Motion] Defendants' confidential documents and financial information.” (Doc. 73, ¶ 17.) They later filed untimely responses in opposition to Johnson's six motions to compel. (Doc. 74.)

         On referral, U.S. Magistrate Judge Gregory A. Kelly granted in part and denied in part all of Johnson's motions to compel, and denied Motion Defendants' motion for a protective order. (Doc. 78 (“August 19 Order”).) First, for the motions to compel, Magistrate Judge Kelly found Motion Defendants' responses untimely. (Id. at 4.) As a consequence, Judge Kelly concluded that Motion Defendants waived their objections to Johnson's requests. (Id. at 5.) From there, he granted Johnson's motions to compel in part-directing Motion Defendants “to produce all documents responsive to the requests for production and serve complete answers to each interrogatory at issue.” (Id.) He excluded from this directive “any information protected from discovery on the basis of privilege, ” and ordered Motion Defendants “to produce a privilege log” for “any responsive privileged information.” (Id.) He denied Johnson's request for sanctions. (Id. at 6-7.)

         Second, Magistrate Judge Kelly denied Motion Defendants' request for a protective order. (Id. at 7.) He found the motion untimely because “a party seeking a protective order from responding to written discovery requests must file the motion for protective order prior to the date its responses to discovery are due.” (See Id. (citing Ayers v. Cont'l Cas. Co., 240 F.R.D. 216, 222 (N.D. W.Va. 2007).) He also determined that Motion Defendants failed to establish good cause to enter a protective order over their financial information, personnel records, and other identifying information. (Id. at 8.) And he found no support to enter Motion Defendants' proposed confidentiality agreement. (Id. at 9.) He therefore ordered Motion Defendants to “produce all documents” responsive to Johnson's documents requests and “serve full and complete answers” to her interrogatories by September 9, 2016. (Id. at 9-10.) That should have settled things.

         B. Second Wave of Motions to Prevent Producing Discovery

         Undeterred, eleven days later, Motion Defendants filed a motion seeking relief from the August 19 Order. (Doc. 83 (“Relief Motion”).) Concurrently, they filed a motion to stay discovery, which Magistrate Judge Kelly granted in part. (Docs. 84, 90.) In the Relief Motion, Motion Defendants asserted that their untimely response to Johnson's motions to compel was excusable neglect attributable to a calendaring error. (Doc. 83, pp. 7-8.) They sought consideration of their objections to Johnson's requests for discovery on the merits and reasserted their request for a protective order. (Id. at 8-22.)

         On review, Magistrate Judge Kelly found that the calendaring error constituted excusable neglect and vacated portions of the August 19 Order granting Johnson's motion to compel documents. (Doc. 103, pp. 6-7 (“Relief Motion Order”).) But he found no excusable neglect for Motion Defendants' failure to timely serve verified answers to Johnson's interrogatories and move for a protective order. (Id. at 7.) He then considered the merits of Motion Defendants' objections and determined that Johnson was entitled to discover some financial information because she demonstrated a reasonable basis for the recovery of punitive damages on her malicious prosecution claim. (Id. at 8.) He made specific rulings on each of Johnson's documents requests, which significantly winnowed down Motion Defendants' discovery obligations.[1] (Id. at 9-14.) He also noted that Motion Defendants could redact certain information, such as Social Security numbers, Taxpayer Identification Numbers, and dates of birth, from these documents. (Id. at 14 n.6.) He gave Motion Defendants until December 19, 2016, to produce the documents, as abbreviated, and until December 2, 2016, to “serve full and complete” responses to Johnson's outstanding interrogatories. (Id. at 14-15.) At this point, just about seven months had passed since Motion Defendants' initial discovery deadline of May 20, 2016. (See Docs. 67, p. 8; 69, p. 12; 70, p. 6; 71, p. 8; 72, p. 9).

         C. Appeals of Relief Motion Order 1. Motion Defendants seek district court review

         Still dissatisfied, on November 20, 2016, Motion Defendants moved to stay the Relief Motion Order and sought leave to appeal Magistrate Judge Kelly's ruling to the Undersigned. (Docs. 104, 105.) They then filed an objection to the Relief Motion Order, raising several arguments. (Doc. 106.) The Court granted the stay motion (Doc. 107), and Johnson then responded in opposition to Motion Defendants' objection (Doc. 109).

         Ultimately, the Court overruled Motion Defendants' objection and affirmed the Relief Motion Order. (Doc. 115 (“Affirmance Order”).) In this order, the Court directed Motion Defendants “to comply with the directives in the [Relief Motion Order] on or before February 8, 2017.” (Id.) Additionally, the Court ordered, “[Johnson] shall refrain from any extrajudicial publication of the discovery material to any source and shall not disclose the information to any person or entity other than any expert witness or subsequently retained counsel as necessary for the prosecution of this action.” (Id.) The Court then noted that “[v]iolation of this portion of the Court's order will result in sanctions.” (Id.) In a separate order, the Court also lifted the stay on discovery and ordered discovery to be completed by March 24, 2017. (Doc. 116.)

         2. Motion Defendants seek appellate court review

         Steadfast in their resolve to withhold this information, on February 8, 2017, Motion Defendants filed a motion seeking a “friendly contempt order” for partial non-compliance with the Affirmance Order to instigate further appellate review. (Doc. 117 (“Friendly Contempt Motion”).) In the Friendly Contempt Motion, Motion Defendants resurrected the same arguments from their objection to the Relief Motion Order (compare Doc. 117 with Doc. 106), namely that the disclosure of financial information to Johnson posed a significant threat to Motion Defendants' privacy. (Doc. 117, p. 1.) Motion Defendants acknowledged the Court's directive to Johnson concerning the publication of any documents from discovery, with its corresponding threat of sanctions, but stated “there is little doubt Johnson will violate the Court's directive in furtherance of her divine mission.” (Id. at 2.) Accordingly, they sought to appeal the Affirmance Order, stating that they would not fully comply with it and sought contempt sanctions on the belief that this would “trigger their appellate rights.” (Id. at 4.) Johnson opposed, filing a motion to hold Motion Defendants in contempt and sanction them for non-compliance by issuing a default judgment. (Doc. 119.)

         On review, the Court found that Motion Defendants: (1) had not shown good cause for their failure to comply with the Affirmance Order; and (2) were in contempt of court. (Doc. 131, pp. 17-20 (“Contempt Order”).) Sanctions were therefore warranted, so the Court imposed a coercive daily fine of $100 for each day of noncompliance with the Affirmance Order. (Id. at 21-22.) Because such sanctions are not considered immediately appealable orders under controlling precedent, the Court advised Motion Defendants that they could seek appellate review through mandamus. (Id. at 22-23.) Motion Defendants' compliance, however, could mitigate the need for sanctions. (Id.) The Court set a deadline of April 3, 2017, for Motion Defendants' compliance or notification of how they intended to proceed. (Id. at 24.)

         Importantly, in the Contempt Order, the Court declined to impose the sanction of default judgment on Motion Defendants “[a]t this time, ” as Johnson requested. (Id. at 21 n.14.) In so doing, the Court stated, “[h]owever, the Court rejects [Motion] Defendants' contention that their noncompliance was not willful. Defendants consciously decided not to fully comply with the Affirmance Order; this is the definition of willful. Willful, Black's Law Dictionary (9th ed. 2009) (defining ‘willful' as ‘[v]oluntary and intentional, but not necessarily malicious').” (Id. at 21-22, n.14.) The Court also stated, in the decretal, “[s]hould [Motion] Defendants pursue appellate relief without success, the Court will reconsider a motion for default judgment on the issue of liability.” (Id. at 24.) From this, Motion Defendants were notified about the spectrum of appropriately available sanctions for their resolute failure to comply with the Affirmance Order.

         3. Mandamus review

         Choosing the path of non-compliance, Motion Defendants notified the Court on April 3, 2017, of their intention to seek mandamus review. (Doc. 132.) The Court then stayed the case and directed Motion Defendants to provide notice once they filed the mandamus petition, along with periodic status updates and notification once the appellate proceedings concluded. (Doc. 133.) Motion Defendants then submitted notice on April 11, 2017, that they had filed their mandamus petition with the U.S. Court of Appeals for the Eleventh Circuit. (Doc. 136.)

         Three weeks later, on May 5, 2017, the Eleventh Circuit issued an order denying Motion Defendants' mandamus petition. (Doc. 137.) As explanation, the Eleventh Circuit stated that Motion Defendants “have not demonstrated that their right to the issuance of the writ is ‘clear and indisputable.'” (Id. at 3 (citing In re BellSouth Corp., 334 F.3d 941, 953 (11th Cir. 2003).)

         D. Final Order Directing Production of Contested Discovery

         Following the Eleventh Circuit's ruling, the Court issued an order on February 8, 2017, that lifted the discovery stay and directed Motion Defendants: (1) to pay the $4, 600 they incurred as a contempt fine; and (2) immediately produce discovery as required by the Relief Motion Order and the Affirmance Order. (Doc. 138 (“Immediate Production Order”).) The Immediate Production Order reiterated the Court's previous admonition to Johnson-that she was ...

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