The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KIMBERLY REGENESIS, LLC
and DAMASCUS TRADING
COMPANY, LLC,
Plaintiffs,
v. Case No: 2:19-cv-538-SPC-NPM
LEE COUNTY,
Defendant.
/
OPINION AND ORDER1
Before the Court is Defendant Lee County’s Objections to Order on
Motion for Protective Order (Doc. 103), along with Plaintiffs Kimberly
Regenesis, LLC and Damascus Trading Company, LLC’s response in
opposition (Doc. 104). Defendant objects to United States Magistrate Judge
Nicholas P. Mizell denying its request to preclude depositions of three
members of the Board of County Commissioners and to quash a subpoena
duces tecum served on another Commissioner. After considering the papers,
record, and applicable law, the Court overrules the Objections in part.
1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using
hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties
or the services or products they provide, nor does it have any agreements with them. The
Court is also not responsible for a hyperlink’s availability and functionality, and a failed
hyperlink does not affect this Order.
The factual and procedural history have been detailed in prior orders
and need not be rehashed here. The Court will summarize, however, relevant
facts for context.
This case arises from a protracted zoning dispute between Plaintiffs and
Defendant. Over seven years ago, Plaintiffs applied to rezone property to build
a residential treatment center for people recovering from substance abuse
disorders. Defendant’s Board of County Commissioners denied the
application. Plaintiffs first tried to overturn their decision in state court.
When that did not work, Plaintiffs sued Defendant here for intentional
discrimination and failure to provide a reasonable accommodation under Title
II of the Americans with Disabilities Act. (Doc. 1 at 23). Plaintiffs argue
Defendant unlawfully denied their rezoning request because of political
pressure from neighbors who harbor discriminatory animus against recovering
addicts.
This case has been contentious from the start. And Defendant’s Motion
for Protective Order is no exception. Defendant wants to stop Plaintiff from
deposing certain Commissioners for three reasons. First, the Commissioners
enjoy quasi-judicial immunity. Second, the apex doctrine applies because the
Commissioners are high-ranking government officials without unique,
personal knowledge on the discrimination claim. Third, deposing the
Commissioners is not proportional to the needs of the case. (Doc. 66). Judge
Mizell disagreed. In denying the motion, he allowed Plaintiffs to depose three
Commissioners on limited topics:
(1) any communications or other interactions with
persons or entities other than county staff concerning
the Plaintiffs, 6401 Winkler Road, or the Protect Our
Community PAC, since January 1, 2014; and (2) any
monetary or in-kind contributions to any campaign
committee or interest group by any opponent to the
rezoning at issue.
(Doc. 101 at 18). Defendant now objects through Rule 72 of the Federal Rules
of Civil Procedure.
Rule 72 governs pretrial matters referred to a magistrate judge. Under
it, a district judge reviewing a magistrate judge’s decision on a non-dispositive
issue “must consider timely objections and modify or set aside any part of the
order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a).
Clear error is a highly deferential standard. See Holton v. City of Thomasville
Sch. Dist., 425 F.3d 1325, 1351-52 (11th Cir. 2005). “A finding is clearly
erroneous ‘when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.’” Id. (citation omitted). An order “is contrary to
the law when it fails to apply or misapplies relevant statutes, case law, or rules
of procedure.” Malibu Media, LLC v. Doe, 923 F. Supp. 2d 1339, 1347 (M.D.
Fla. 2013). Neither standard provides grounds to set aside or modify Judge
Mizell’s order. And here’s why.
Defendant offers three objections: (1) the apex doctrine precludes the
Commissioners’ depositions; (2) the Commissioners have absolute immunity
from discovery because they acted in quasi-judicial fashion; and (3) the
documents sought from the former Commissioner are irrelevant. Each
objection mirrors Defendant’s original arguments. But Rule 72 does not exist
for a party to rehash failed arguments hoping to secure a different result. The
rule demands clear error and a finding contrary to the law.
Judge Mizell correctly considered Defendant’s motion under Federal
Rule of Civil Procedure 26, which provides broad discretion to issue a protective
order. Fed. R. Civ. P. 26(c) (“The court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense[.]” (emphasis added)). His decision is thoughtful,
well-reasoned, and reached after two hearings and supplemental briefs.
Defendant also cites no binding precedent that Judge Mizell missed or
misapplied in his order. And nothing Defendant has argued leaves the
undersigned convinced that Judge Mizell committed a mistake, let alone
clearly erred.
Although Judge Mizell’s order is neither contrary to law nor clearly
erroneous, the undersigned will modify it to allow a different Commissioner to
be deposed. Plaintiff first wanted to depose former-Commissioner
Pendergrass. At a hearing two months ago, Plaintiffs switched gears and
requested to depose Commissioner Brian Hamman instead. Judge Mizell
allowed the substitution. In a footnote, Defendant argues Judge Mizell should
not have allowed the switch post-discovery.? In their response, Plaintiffs say
they “have no objection to deposing Commissioner Pendergrass as originally
proposed and not Commissioner Hamman.” (Doc. 106 at 8). Because of this
agreement, the Court will modify Judge Mizell’s order only so far as Plaintiffs
may depose Pendergrass, and not Hamman.
Accordingly, it is now ORDERED:
1. Defendant Lee County’s Objections to Order on Motion for Protective
Order (Doc. 103) are OVERRULED in part. The Court modifies the
order only so far as Plaintiffs may depose Commissioner Pendergrass,
and not Commissioner Hamman, on the limited topics permitted.
2. Defendant’s Motion to Stay Depositions Pending Ruling on Written
Objections (Doc. 104) is DENIED as moot.
DONE and ORDERED in Fort Myers, Florida on October 29, 2021.
, Lh platrathe 7
UNITED STATES DISTRICT JUDGE
Copies: All Parties of Record
2 Defendant’s 25-page brief contains 14 footnotes filled with substantive arguments and other
citations. Some footnotes span nearly half a page at 11-point font. The Court cannot help
wondering if this practice was designed to circumvent the page limit under Local Rule 3.01(a).
It will, however, give Defendant the benefit of the doubt and think otherwise. In the future,
Defendant need only ask if it needs more pages.