Yerk v. People for the Ethical Treatment of Animals

Filing 151

ORDER denying 147 The Plaintiff, Robert E. Tardiff, Jr. as Trustee for Jason Yerk's Motion for Leave to File a Response In Excess of Twenty Pages ; denying 149 The Plaintiff, Robert E. Tardiff, Jr. as Trustee for Jason Yerks Motion for Leave to File a Reply.. Signed by Magistrate Judge Sheri Polster Chappell on 7/13/2011. (LMH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT E. TARDIF, JR., as Trustee for Jason
Yerk,
Plaintiff,
-vs-

Case No. 2:09-cv-537-FtM-29SPC

PEOPLE for the ETHICAL TREATMENT of
ANIMALS, a Virginia not-for-profit corporation,
Defendant.
______________________________________

ORDER
This matter comes before the Court on the Plaintiff , Robert E. Tardiff, Jr. as Trustee for
Jason Yerk’s Motion for Leave to File a Response In Excess of Twenty Pages (Doc. #147 ) filed on
July 5, 2011. The Defendant filed its Response in Opposition (Doc. # 148) on July 6, 2011. The
Plaintiff also filed a Motion for Leave to File a Reply (Doc. # 149) on July 8, 2011. The Defendant
filed a Response in Opposition (Doc. # 150) on July 11, 2011. The Motions are now ripe for the
Court’s review.
The Plaintiff moves the Court to supplement his Response to the Defendant’s Motion for
Summary Judgment with an additional ten (10) pages. The Plaintiff states that the Defendant’s
Motion for Summary Judgment is complex and he needs the additional pages to fully respond. The
Defendant objects to the supplement arguing that the Plaintiff misused the pages allowed under the
Rules by filing “a largely non-responsive prolix recitation of facts encompassing about 17 to 20
pages.” The Defendant further objects arguing that the Plaintiff filed his motion for leave at
11:53pm on the day his response was due, July 5, 2011. The Plaintiff argues that he attempted to

contact the Defendant in compliance with M.D. Fla. Local Rule 3.01(g), four (4) days before the
response was due, but the Defendant did not reply until the day the response was to be filed. The
Defendant states that it replied on the next business day after the July 4, 2011 holiday weekend. The
Plaintiff attempted to confer on Friday, July 1, 2011, but was unable to reach the Defense Counsel.
The Defense Counsel replied on July 5, 2011, the next business day after the holiday and also the
day the response was due to be filed.
While the Plaintiff attempted to contact the Defendant, a mere attempt to confer does not
comply with the Local Rules. The Local Rule reads in pertinent part:

[b]efore filing any motion in a civil case, except a motion for injunctive
relief, for judgment on the pleadings, for summary judgment, to dismiss or
to permit maintenance of a class action, to dismiss for failure to state a claim
upon which relief can be granted, or to involuntarily dismiss an action, the
moving party shall confer with counsel for the opposing party in a good faith
effort to resolve the issues raised by the motion, and shall file with the motion
a statement (1) certifying that the moving counsel has conferred with
opposing counsel and (2) stating whether counsel agree on the resolution of
the motion. A certification to the effect that opposing counsel was
unavailable for a conference before filing a motion is insufficient to satisfy
the parties’ obligation to confer. The moving party retains the duty to
contact opposing counsel expeditiously after filing and to supplement the
motion promptly with a statement certifying whether or to what extent the
parties have resolved the issue(s) presented in the motion.

M.D. Fla. Local Rule 3.01(g) (emphasis added). The Court notes the Plaintiff does seem to be
struggling in his efforts to comply with the Court’s Local Rules. Although, the Plaintiff did make
an effort to file a proper Motion for Leave to Enlarge the Page Limit. However, the Plaintiff failed
to present good cause to grant the Motion on the merits. The Motion is therefore, due to be denied.
The Plaintiff also filed a Motion for Leave to File a Reply Brief. The Plaintiff moves the
Court for leave to file a fifteen (15) page reply. The Defendant objects to the Motion arguing the
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Plaintiff filed a twenty-four (24) page Motion for Partial Summary Judgment, without the proper
citation to legal authority and now seeks to supplement legal authority in that Motion with a reply
brief. Thus, the Defendant argues that the Plaintiff is attempting in reality to file a thirty-nine (39)
page Motion for Summary Judgment.
Under the Local Rules of the Middle District of Florida, “No party shall file any reply or
further memorandum directed to the motion or response . . . unless the Court grants leave.” M.D. Fla.
Local Rule 3.01(c). A motion requesting leave to file . . . a reply or further memorandum shall not
exceed three (3) pages, shall specify the length of the proposed filing, and shall not include, as an
attachment or otherwise, the proposed motion response, reply, or other paper. Torrence v. Pfizer,
Inc., 2007 WL 788368 *1 (M.D.Fla. March 14, 2007) (citing M.D. Fla. Local Rule 3.01(d)). The
purpose of a reply brief is to rebut any new law or facts contained in the oppositions response to a
request for relief before the Court.
The Plaintiff states that his reply brief would allow him to cite the appropriate portions of the
record which undisputedly rebut the putative factual disputes set forth by the Defendant in its
response to the Plaintiff’s Motion for Summary Judgment. The Plaintiff does not allege that there
is a new matter of law or fact argued in the Defendant’s Response, but merely a dispute as to what
those facts mean in this case. In essence he wants to argue his position on the facts presented by the
Defendant. As such, the Plaintiff’s Motion fails to rise to the level required by the Local Rules to
file a reply brief and the Motion is due to be denied.
Accordingly, it is now
ORDERED:

-3-

(1) The Plaintiff , Robert E. Tardiff, Jr. as Trustee for Jason Yerk’s Motion for Leave to File
a Response In Excess of Twenty Pages (Doc. #147 ) is DENIED.
(2) The Plaintiff, Robert E. Tardiff, Jr. as Trustee for Jason Yerk’s Motion for Leave to
File a Reply (Doc. # 149) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this

Copies: All Parties of Record

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13th

day of July, 2011.