Sapp v. Marcum

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

BOBBIE FISCHER SAPP,

Plaintiff,

v. Case No: 6:21-cv-1515-PGB-DCI

JEFFREY MARCUM, JOHN

BOLOGNA, JESSICA ELLER,

DANIEL PUSHOR, DEAN

RICHARD JOHNSON and CITY

OF WINTER PARK,

Defendants.

/

ORDER

This cause comes before the Court on Plaintiff’s First Motion for

Reconsideration (Doc. 58 (the “Motion”)) of the Court’s Order granting

Defendants’1 Motion for Summary Judgment and denying as moot Defendants’

Motion to Exclude Testimony (Doc. 57 (the “Order”)).2 Upon consideration,

1 Defendants John Bologna, City of Winter Park, Jessica Eller, Jeffrey Marcum, and Daniel

Pushor (collectively, the “Defendants”) filed the Motion for Summary Judgment (Doc. 51

(the “Motion for Summary Judgment”)) and the Motion to Exclude Testimony and

Opinions of Darrin Porcher (Doc. 52 (the “Motion to Exclude”)). Defendant Dean Richard

Johnson, however, did not join in the filing of either of the aforementioned Motions.

2 Defendants have not yet responded to this Motion as it was only filed a few days ago, on

January 13, 2023. (Doc. 58). In any event, considering Plaintiff’s failure to comply with Local

Rule 3.01(g), the Court is unaware as to both Defendants’ position on the Motion and the

status of the parties’ conferral regarding this issue. Nonetheless, considering the Court’s

review of this matter, Defendants need not respond to the Motion at this point in time. See

Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (stating that a district court has the inherent

power “to control the disposition of the causes on its docket with economy of time and effort

for itself, for counsel, and for litigants”).

ruling on the Motion is due to be deferred pending Plaintiff’s compliance with the

Court’s directives herein.3

Essentially, Defendants filed a Motion for Summary Judgment (Doc. 51) and

a Motion to Exclude (Doc. 52) (collectively, the “Motions”) that were not

adequately, or timely, responded to. While there was no response to the Motion to

Exclude, Plaintiff filed a Notice of Filing Documents in Opposition to Defendants’

Motion for Summary Judgment. (Doc. 56 (“Notice in Opposition”)). Since the

Notice in Opposition was the only relevant document filed on or before January

12, 2023—the deadline to respond to both of the aforementioned Motions4—the

Court naturally construed it as Plaintiff’s “response” to the Motion for Summary

3 The Court notes that the Federal Rules of Civil Procedure do not provide for generic “motions

for reconsideration.” See Williams v. Paulson, No. 06-CV-0876, 2008 WL 11336483, at *1

(N.D. Ga. Apr. 16, 2008); Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993

F.2d 800, 806 n.5 (11th Cir. 1993); see also Bass v. U.S. Dep’t of Agric., 211 F.3d 959, 962 (5th

Cir. 2000) (“There is no motion for ‘reconsideration’ in the Federal Rules of Civil Procedure.”).

However, courts routinely construe such motions pursuant to Rule 59(e) or Rule 60(b). See,

e.g., Region 8, 993 F.2d at 806 n.5; see also FED. R. CIV. P. 59(e); FED. R. CIV. P. 60.

Considering Plaintiff failed to address any governing authority in support of this Motion, the

Court has no indication as to what Plaintiff believes is the legal basis supporting the request.

Regardless, “[n]omenclature does not control the legal status” of such motions. Livernois v.

Med. Disposables, Inc., 837 F.2d 1018, 1020 (11th Cir. 1988). Instead, courts can “conduct an

independent determination of what type of motion” is before them. Id. Thus, the Court will

most likely be reviewing this Motion pursuant to Rule 60(b), considering the prior Order did

not implicate the merits of the underlying dispute. See, e.g., Brown v. Synovus Fin. Corp., 783

F. App’x 923, 931 (11th Cir. 2019); see also Bonilla v. Baker Concrete Const., Inc., 487 F.3d

1340, 1345 (11th Cir. 2007) (“Unpublished opinions are not controlling authority and are

persuasive only insofar as their legal analysis warrants.”). Moreover, an analysis involving the

failure to comply with filing deadlines sometimes can fall under the ambit of “excusable

neglect.” FED. R. CIV. P. 60(b)(1).

4 The deadline of January 12, 2023 was an extension three weeks beyond the initial twenty-one

days a party has to respond to a motion for summary judgment. (See Doc. 55).

Judgment.5 (Id.). However, considering the Court’s Local Rules, the Court found

Plaintiff’s Notice in Opposition did not qualify as an adequate “response” and thus,

granted Defendants’ Motion for Summary Judgment and denied as moot the

Motion to Exclude by close of business the day after the deadline passed. (See Doc.

57).6

Now, Plaintiff requests this Court reconsider its prior Order for various

convoluted reasons. (Doc. 58). None of these reasons, however, are supported with

legal authority or statements of law to bolster Plaintiff’s position.7 Essentially,

Plaintiff claims her failure to file a response that included a legal memorandum

was attributable to technological issues. (Id.). Somehow, Plaintiff was able to file

the Notice of Opposition, but nothing else. (Id.).

Admittedly, the Court is skeptical. For one, Plaintiff had the entire day of

January 13, 2023 to notify this Court of the alleged technology issues and her intent

to supplement the Notice in Opposition with a legal memorandum. In addition,

Plaintiff’s Motion suggests that her response to the Motion for Summary Judgment

5 In the alternative, had the Court merely disregarded the Notice in Opposition, the same

outcome would have resulted—the Court would have considered the Motions as unopposed,

granting the Motion for Summary Judgment and denying as moot the Motion to Exclude.

6 The Court is not without compassion or sympathy. Having checked the docket multiple times

on January 13, 2023—the day after the extended deadline—for correspondence from Plaintiff

indicating an additional response was forthcoming, the Court eventually entered its Order at

5:09 p.m. on January 13, 2023. (Doc. 57).

7 Again, this equates to Plaintiff failing to comply with Local Rule 3.01(b). (See id.). Simply put,

this Motion is not a legal memorandum. Plaintiff neither cites legal authority nor advances

any statements of law to support the requested form of relief. See Local Rule 1.01(d)(10).

Although it seems commonsensical, the Court finds it necessary to remind Plaintiff that rules

are not merely suggestive.

had been found at some point on January 13, 2023,8 and yet, this Court has yet to

see it. (See id. at p. 3).9 Finally, the affidavit attached to the Motion demonstrates

the implementation of an application change at Plaintiff’s firm on January 13,

2023, the day after the response deadline for both Motions. (See Doc. 58-1, p. 3).10

Thus, it not fully clear to the Court how such an update the day after would impact

Plaintiff’s filing the day prior.

Most notably, though, considering the vast array of modern forms of

communication, the Court remains perplexed as to why Plaintiff waited eighteen

hours—and for the entry of an unfavorable Order—to inform the Court of the

allegedly unfortunate situation. At the very least, a phone call or email would have

sufficed for the Court to stay its hand.

Accordingly, it is ORDERED AND ADJUDGED that:

1. Plaintiff’s First Motion for Reconsideration (Doc. 58) is DEFERRED

for later ruling.

2. Plaintiff is DIRECTED to file each of the following on or before

January 23, 2023: an affidavit from the respective Paralegal attesting

8 The Court highlights that Plaintiff states December 13, 2023 as the date the original document

was recovered; however, this would be over a month ago. (Doc. 58, p. 2). Further, Plaintiff

suggests the only work that was lost stems from December 12, 2023. (Id.). Alas, the Court

assumes Plaintiff merely misstated the month in question.

9 The Court finds it odd that Plaintiff’s response to the Motion for Summary Judgment was

found and not, at the very least, attached to this Motion as proof if its existence.

10 The update merely involves web applications timing out “after one hour of inactivity causing

the session to become idle.” (Doc. 58-1, p. 3). The Court is unsure how such a change would

result in the complete loss of computer filings.

to the alleged sequence of events; a copy of the email sent to opposing

counsel immediately after the technological issue occurred; the

metadata of the original document containing Plaintiff's response to

the Motion for Summary Judgment showing when the document was

prepared; and an adequate legal memorandum supporting a motion

for reconsideration of no more than ten (10) pages.

DONE AND ORDERED in Orlando, Florida on January 20, 2023.

/ / s a——

PAUL G.

UNITED STATESMDISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties