Delta Sigma Theta Sorority, Inc. v. Bivins et al

Filing 132

ORDER denying without prejudice 120 Defendants Letisha D. Bivins, Alphonso D. Goins, and Frathouse Clothing, LLC's Joint Motion to Strike Plaintiff's First Amended Complaint and Exhibits; denying as moot 125 Defendants Letisha D. Bivin s, Alphonso D. Goins, and Frathouse Clothing, LLC's Joint Motion for Leave to File Reply to Plaintiff's Response in Opposition to Defendants' Joint Motion to Strike Plaintiff's First Amended Complaint and Exhibits. Signed by Judge Sheri Polster Chappell on 3/18/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

DELTA SIGMA THETA SORORITY,
INC.,
Plaintiff,
v.

Case No.: 2:14-cv-147-FtM-38CM

LETISHA D. BIVINS, ALPHONSO D.
GOINS, FRATHOUSE CLOTHING,
LLC,
Defendants.
___________________________________/
ORDER1
This matter is before the Court on Defendants Letisha D. Bivins, Alphonso D.
Goins, and Frathouse Clothing, LLC's Joint Motion to Strike Plaintiff's First Amended
Complaint and Exhibits (Doc. #120) filed on February 9, 2015. Plaintiff Delta Sigma Theta
Sorority, Inc. filed a Response in Opposition to Defendants' Joint Motion to Strike on
February 23, 2015.

(Doc. #124).

For the following reasons, the Court will deny

Defendants' Motion.
Middle District of Florida Local Rule 3.01(g) states, in pertinent part, that
[b]efore filing any motion in a civil case, . . . 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
1

Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or Web sites. These
hyperlinks are provided only for users' convenience. Users are cautioned that hyperlinked documents in
CM/ECF are subject to PACER fees. By allowing hyperlinks to other Web sites, this Court does not
endorse, recommend, approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the Court has no agreements with any of these third parties or their Web sites.
The Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that
a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court.

counsel has conferred with opposing counsel and (2) state
whether counsel agree on the resolution of the motion. 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). This rule is designed to foster communication between the
parties and help resolve certain disputes without court intervention. See Desai v. Tire
Kingdom, Inc., 944 F. Supp. 876, 878 (M.D. Fla. 1996). The importance of Local Rule
3.01(g) in helping avoid needless litigation cannot be overstated. See Esrick v. Mitchell,
No. 5:08-cv-50, 2008 WL 5111246, at *1 (M.D. Fla. Dec. 3, 2008) (stating a violation of
"Local Rule 3.01(g) constitutes sufficient grounds to deny the relief sought by the
noncompliant moving party").
Here, Defendants did not file a Local Rule 3.01(g) certification with the Joint Motion
to Strike Plaintiff's First Amended Complaint. (Doc. #120). Instead, Defendants filed a
Notice of Conference Pursuant to Local Rule 3.01(g) two weeks after their Motion and on
the same day that Plaintiff filed its opposition to the Joint Motion. (Doc. #123; Doc. #124).
In the notice, Defendants reference an "oversight" for why they failed to confer with
Plaintiff prior to filing the Motion. (Doc. #123). This was insufficient under any reading of
Local Rule 3.01(g). Since Defendants' certificate is defective, the Court is not required to
hear their motion. See Kaplan v. Kaplan, No. 2:10-CV-237-FTM-36, 2011 WL 4061250,
at *1 (M.D. Fla. Sept. 13, 2011). Although some oversight can be expected in any
contentious litigious, this is not the first time the parties have ignored the Local Rules, and
the Court has warned about the consequences of non-compliance. (Doc. #102, Doc.
#106, Doc. #112).

2

Defendants' actions in this instance are also disappointing because it appears at
least part of their Motion was capable of resolution independent of the Court. Plaintiff
avers "the parties could have come to agreement regarding some, if not all, of the issues
presented in the joint motion to strike had counsel for Defendants complied with her duty
to confer as required by the rule." (Doc. #124 at 1 n.1). To this end, the Court directs the
parties to meet in person to discuss and attempt in good faith to resolve the issues raised
in Defendants' Motion. If the parties cannot reach an agreement, they must jointly notify
the Court, in detail, why such issues cannot be resolved.
In conclusion, the Court denies without prejudice Defendants' motion. The Court
expects this case to move smoothly from this point forward and that the parties will
conduct themselves with a spirit of civility and cooperation.
Accordingly, it is now ORDERED:
(1) Defendants Letisha D. Bivins, Alphonso D. Goins, and Frathouse Clothing,
LLC's Joint Motion to Strike Plaintiff's First Amended Complaint and Exhibits
(Doc. #120) is DENIED without prejudice.
(2) Defendants Letisha D. Bivins, Alphonso D. Goins, and Frathouse Clothing,
LLC's Joint Motion for Leave to File Reply to Plaintiff's Response in Opposition
to Defendants' Joint Motion to Strike Plaintiff's First Amended Complaint and
Exhibits (Doc. #125) is DENIED as moot.
DONE and ORDERED in Fort Myers, Florida on this 18th day of March, 2015.

Copies: All Parties of Record

3