United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on the Report &
Recommendation (Doc. 36; Report) entered by the Honorable
Patricia D. Barksdale, United States Magistrate Judge, on
July 9, 2019. In the Report, the Magistrate Judge recommends
that Plaintiff's Renewed Motion for an Award of
Attorney's Fees and Costs (Doc. 31; Motion) be denied
based on ineligibility. See Report at 29. On July
23, 2019, Plaintiff filed objections to the Report,
see Plaintiff's Objections to Magistrate's
Report and Recommendation to Deny Plaintiff's Motion for
Fees and Costs (Doc. 37; Objections) and on August 7, 2019,
Defendants filed a response to the Objections, see
Defendants' Response to Plaintiff's Objections to
Report and Recommendation (Doc. 38; Response). Thus, this
matter is ripe for review.
Report, the Magistrate Judge recommends that the Court
conclude that Plaintiff, Friends of Etna Turpentine Camp,
Inc. (Etna), is not eligible for an award of the
attorney's fees incurred in bringing this Freedom of
Information Act (FOIA) suit against Defendants, United States
Fish and Wildlife Service (US FWS) and the United States
Department of Interior. See Report at 28. In the
Objections, Etna argues that “there are clearly
erroneous factual errors relating to the delay in the service
of the subject Complaint, the incorporation of U.S. FWS'
thirty-one (31) pages of response in opposing, and other
considerations.” Objections at 2. Etna also contends
that the Magistrate Judge's recommendation of
ineligibility is contrary to law. See id.
Court “may accept, reject, or modify, in whole or in
part, the finding or recommendations by the magistrate
judge.” 28 U.S.C. § 636(b). If no specific
objections to findings of facts are filed, the district court
is not required to conduct a de novo review of those
findings. See Garvey v. Vaughn, 993 F.2d 776, 779
n.9 (11th Cir. 1993); see also 28 U.S.C. §
636(b)(1). However, the district court must review legal
conclusions de novo. See Cooper-Houston v.
Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994);
United States v. Rice, No. 2:07-mc-8-FtM-29SPC, 2007
WL 1428615, at *1 (M.D. Fla. May 14, 2007).
the Court finds that the Objections are due to be overruled
and the Report adopted as the Court's opinion, the Court
will not repeat the factual and procedural history or the
arguments and authority addressed in the Report. Instead, the
Court writes briefly only to address Etna's specific
section of the Objections titled “Erroneous Finding of
Facts, ” Etna first notes that the Report incorrectly
states that Etna filed the Complaint initiating this action
in the Ocala Division of the Court. See Objections
at 3. Upon review, the Court finds that Etna is correct that
the Report mistakenly states that Etna filed the Complaint in
the Ocala Division. It appears that Etna actually mailed the
Complaint to and it was received in the Jacksonville Division
of the Court on December 18, 2017. See Complaint
(Doc. 1). As a result of the Complaint appearing to assert a
dispute arising out of Citrus County, a county located in the
Ocala Division of the Court, on December 19, 2017, the Clerk
of the Court assigned the case an Ocala Division case number.
See generally Court Docket. The Honorable James S.
Moody, Jr., United States District Judge, corrected the error
that same day by transferring the case to the Jacksonville
Division. See Report at 12, n.9. Thus, the
identification of the Ocala Division as the location where
Etna initially filed the Complaint is factually inaccurate.
This inaccuracy, however, is of no consequence.
misidentification of the filing location in the Report does
nothing to undermine the Magistrate Judge's factual
finding that “Before service [of process], the [US] FWS
provided the first partial response (December 22) . . .
.” Report at 23. Indeed, Etna acknowledges that it
actually served Defendants on January 8, 2018, which, of
course, is some two weeks after the first partial response.
See Proof of Service (Doc. 5). Why it
occurred after the first partial response was not a factor in
the Magistrate Judge's analysis, and the Magistrate Judge
made no suggestion that Etna was being faulted for delaying
service. Instead, the Magistrate Judge merely
identified the unremarkable and undisputed fact that service
of process was in fact accomplished on a date that followed
the first partial response to Etna's FOIA request. To
address the misstatement identified by Etna, in adopting the
Report, the Court will modify the paragraph on page 11 under
the heading “B. Filing of This Action” to reflect
the accurate record. This inconsequential error, however,
warrants no other relief.
in identifying the “Erroneous Finding of Facts, ”
Etna faults the Magistrate Judge for considering arguments
from a previous U.S. FWS filing which U.S. FWS incorporated
by reference in its response to the Motion. See
Objections at 4. Etna recognizes that the Magistrate Judge
noted that the U.S. FWS's “incorporation by
reference [was] inappropriate.” See id.;
Report at 1, n.1 (citing Rule 3.01(b), Local Rules, United
States District Court, Middle District of Florida (Local
Rule(s))). Nevertheless, Etna objects to the Magistrate
Judge's decision to consider the additional arguments in
order to avoid delay. Etna points to no authority suggesting
the Magistrate Judge's decision to do so was erroneous,
much less clearly erroneous. It was neither. Waiver of a page
limit set forth in the Court's Local Rules was well
within the Magistrate Judge's sound discretion.
See Local Rule 1.01(c) (permitting a judge to
suspend application and enforcement of the rules in whole or
in part). As such, this objection is without merit.
remainder of the arguments set forth in the section of the
Objections titled “Erroneous Finding of Facts, ”
do not present objections to any factual finding made by the
Magistrate Judge. Instead, they challenge the legal
conclusions the Magistrate Judge drew from her factual
findings. These Objections are due to be overruled
because the conclusions are fully supported by the record.
Etna argues that the determination that it is ineligible for
a fee award is contrary to law. See Objections at
7-10. Etna contends that it substantially prevailed in this
action and that the “narrow construction of the Freedom
of Information Act, i.e. that an agency must blatantly deny
disclosure yet be relieved from any liability for substantial
delays without any explanation within the statutory
timeframe” is contrary to the purposes of FOIA.
Id. at 7, 9. This argument fails for at least two
reasons. First, Etna's characterization of the Magistrate
Judge's “construction of the Freedom of Information
Act” ignores her thorough analysis of the specific
factual record in this case, a record that fully supports the
conclusion based on applicable law that Etna failed to
establish that it “substantially prevailed.”
See Report at 22-23. After considering the
“record as a whole” the Magistrate Judge
Given the absence of opposition to the FOIA request, the
pre-action communications indicating action on the FOIA
request (consideration, collection, and review), the steady
albeit arguably slow progress, and the regulatory process
(track assignments, first-in, first-out policy), prosecution
of this action cannot be reasonably regarded as
“necessary to obtain the information and that the
action had a substantive causative effect on the delivery of
the information.” See Lovell [v. Alderete],
630 F.2d  at 432 [(5th Cir. 1980)] (quoted).
at 23. The undersigned agrees with this assessment.
Etna fails to identify any error in the legal authority cited
or its application to the facts in this case. Instead, Etna
expresses its disagreement with the recommended resolution of
the Motion, but that disagreement does not support a
determination that the recommendation set forth in the Report
is contrary to law.
independent review of the file and for the reasons set forth
above, the Court will overrule the Objections, and with the
modification set forth below will accept and adopt the legal
and factual conclusions ...