Fiddler's Creek, LLC v. Naples Lending Group LC
OPINION AND ORDER overruling in part and sustaining in part 422 Objection but leave to file the replies remains denied because there was no abuse of discretion by the Magistrate Judge. Signed by Judge John E. Steele on 10/12/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FIDDLER’S CREEK, LLC
FIDDLER’S CREEK, LLC,
Case No: 2:14-cv-379-FtM-29CM
NAPLES LENDING GROUP LC and
DINARDO and WILLIAM REAGAN,
Third Party Defendants.
OPINION AND ORDER
This matter comes before the Court on defendants' 13-page
Objection to Order Denying Daubert Motion Replies (Doc. #422) filed
on September 19, 2016.
Plaintiff filed a 9-page Response in
Opposition to Defendants’ Objection (Doc. #427) on September 26,
Pursuant to 28 U.S.C. § 636(b)(1)(A), the Court may reconsider
or review the Magistrate Judge’s Order on a pretrial matter if
shown that it was clearly erroneous or contrary to law.
may also designate a magistrate judge to submit proposed findings
of fact and recommendations for the disposition of a motion for
28 U.S.C. § 636(b)(1)(B).
“A judge of the
court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made.
A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations made
evidence or recommit the matter to the magistrate judge with
28 U.S.C.A. § 636(b)(1).
See also Fed. R. Civ.
On August 31, 2016, the Magistrate Judge issued a 3-page Order
(Doc. #406) denying defendants’ Motion for Leave to File Reply to
Plaintiff’s Response to Daubert Motion as to Paul Singerman, Esq.
(Doc. #398)and Motion for Leave to File Reply to Plaintiff’s
Response to Daubert Motion as to Lew Killian, Esq. (Doc. #399).
filing replies, including defendants’ desire to point out changes
in plaintiff’s position, to respond to new arguments, and to
counter characterizations by plaintiff of defendants’ arguments.
The magistrate judge found defendants failed to show good cause
“because they identify neither new law nor facts within Plaintiff’s
responses that need to be addressed by a reply.
Nor does the
Court find that reply briefs will aid the Court’s resolution of
the underlying motions.”
(Doc. #406, p. 3.)
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It was also noted
that the certification of conference with opposing counsel, M.D.
Fla. R. 3.01(g), was deficient.
(Id., p. 2 n.1.)
In the lengthy objection seeking to have the Magistrate
“Plaintiff has been granted a reply every time one was sought”.
(Doc. #422, p. 3.)
This is inaccurate.
Plaintiff was granted
leave to reply 5 times (Docs. ## 134, 227, 281, 304, 361), and
denied 3 times (Docs. ## 96, 145, 251).
Defendant was granted
leave to file a reply or surreply 6 times (Docs. ## 50, 130, 227,
291, 304, 361), and denied twice (Docs. ## 158, 406).
any objection based on unfairness or bias is overruled.
heightened standard by requiring new facts or law in support of
the request, and requiring good cause for a reply.
Middle District of Florida Local Rules, parties are not permitted
to file a reply without leave of court, and in seeking such leave,
a party must do so within 3 pages, state the length of the proposed
filing, and not include the proposed document.
M.D. Fla. R.
Defendants state that the requirement of new facts
or law, and good cause are based on non-binding cases from other
The undersigned however agrees with the consistent line
of cases in the Middle District of Florida finding that the broad
discretion necessarily requires a showing of good cause for leave
See, e.g., Jackson v. Astrue, No. 3:08-CV-461-J-34TEM,
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2009 WL 3756321, at *18 (M.D. Fla. Nov. 6, 2009) (leave denied
because the reply “merely restates matters already raised in other
documents and would not be of benefit to the Court in resolution
Animals, No. 2:09-CV-537-FTM-29, 2011 WL 2729145, at *2 (M.D. Fla.
July 13, 2011) (“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.”); McDonald v. United States, No.
3:13-CV-168-J-37MCR, 2013 WL 3901871, at *1 n.3 (M.D. Fla. July
29, 2013) (“While parties may ask for leave to file a reply, they
must show good cause.”).
See also Farrell v. Florida Republicans,
No. 2:13-CV-140-FTM-29, 2013 WL 5498277, at *8 (M.D. Fla. Oct. 1,
documents, including replies, that failed “to advance any aspect
of litigation in this case”).
heightened standard was applied.
The Court does not find that a
The objection is overruled.
In the Motion as to Paul Singerman, defendants sought to
submit a 7-page reply to address claims of misrepresentations by
defendants, and to address inconsistent positions by plaintiff.
In the Motion as to Lew Killian, defendants sought
to file a short, 6-page reply in order to provide record citations
of inconsistencies in plaintiff’s position regarding their own
proposed expert, and to address new arguments raised in opposition
of defendants’ proposed expert.
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Based on what was
presented in the motions, there was nothing clearly erroneous or
contrary to law with denying leave to file the replies.
had the opportunity to succinctly state a basis to reply, or to
seek reconsideration to clarify their purpose for the replies.
Defendants did not exercise either of these options, and the Court
is not inclined to construe the objection as a motion to reconsider
and provide a second bite of the apple for the lengthy reasons set
forth in the Objection.
(Doc. #422, pp. 6-12.)
The Court is
capable of considering the arguments, with a grain of salt, in
light of the contentious nature of the litigation.
The issue of
replies is completely discretionary, and defendants acknowledge
the discretionary nature of granting leave to reply.
The objections addressed above are overruled.
Defendants also argue that the Order incorrectly referenced
the number of pages sought, and suggested that defendants failed
to complete a conferral process.
(Doc. #422, p. 12.)
defendants were seeking leave for a reply not to exceed 10 pages.
(Doc. #406, p. 1.)
This is factually inaccurate, but fails to
impact the ultimate result to deny leave to rely.
Defendants’ [sic] counsel.”
(Doc. #406, pp. 1-2 & n.1) (emphasis
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plaintiff “refused” to agree to the relief.
(Doc. #398, p. 2;
Doc. #399, p. 2.)
Accordingly, it is now
Replies (Doc. #422) are OVERRULED IN PART AND SUSTAINED IN PART as
set forth above.
Leave to file the replies (Docs. ## 398, 399)
remains denied because there was no abuse of discretion by the
DONE and ORDERED at Fort Myers, Florida, this
of October, 2016.
Hon. Carol Mirando
Counsel of Record
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