Bernath v. Seavey

Filing 202

ORDER denying 160 Plaintiff's Motion Recuse [sic] Magistrate And Article III Judge Chappell For bias against Plaintiff Which a reasonable person would perceive as bias against Plaintiff And for defendants Seavey and Legion And The appearanc e of impropriety by the judicial officers; denying 185 Plaintiff's Motion to continue and postpone trial date and re-open discovery As attorney at law Eric Leckie has been retained and requires time to Consult with me, review the facts of the case and review the 3 years of evidence of torts against me; denying as moot 194 Plaintiff Bernath and Cross-Defendant Bernath's Motion Enlarge [sic] Time to Respond to anticipated (third) refilling [sic] of Summary Judgment Motions by Seavey and Legion. Signed by Magistrate Judge Carol Mirando on 4/3/2017. (LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DANIEL A. BERNATH,
Plaintiff,
v.

Case No: 2:15-cv-358-FtM-99CM

MARK CAMERON SEAVEY,
Defendant.
ORDER
This matter comes before the Court upon review of: (1) Plaintiff’s Motion to
continue and postpone trial date and re-open discovery As attorney at law Eric Leckie
has been retained and requires time to Consult with me, review the facts of the case
and review the 3 years of evidence of torts against me (Doc. 185, “Motion to Reopen
Discovery”) filed on March 14, 2017; (2) Plaintiff Bernath and Cross-Defendant
Bernath’s Motion Enlarge [sic] Time to Respond to anticipated (third) refilling [sic] of
Summary Judgment Motions by Seavey and Legion (Doc. 194, “Motion to Enlarge
Time to Respond”) filed on March 17, 2017; (3) Plaintiff’s Motion Recuse [sic]
Magistrate And Article III Judge Chappell For bias against Plaintiff Which a
reasonable person would perceive as bias against Plaintiff And for defendants Seavey
and Legion And The appearance of impropriety by the judicial officers (Doc. 160,
“Motion for Recusal”) filed on February 21, 2017.

Defendants have filed a joint

response to Plaintiff’s Motion to Reopen Discovery and Motion to Enlarge Time. Doc.
200.

This case has been pending since June 16, 2015.

Doc. 1.

The discovery

deadline has expired (Doc. 112, 113), motions for summary judgment have been fully
briefed (Docs. 188, 195, 197, 198), and the case is currently set for a trial term
beginning on June 5, 2017 (Doc. 113). The parties’ initial discovery deadline was
December 5, 2016 (Doc. 62 at 1), which the Court subsequently extended to January
31, 2017 due to Plaintiff’s non-compliance with discovery requests. Doc. 112. Now,
six weeks after the expiration of the final discovery deadline and less than three
months before the trial term, Plaintiff seeks to reopen discovery because he claims he
has retained an attorney, although no notice of appearance has been filed. Doc. 185
at 1.
Rule 16 requires a showing of good cause for modification of a court’s
scheduling order. Fed. R. Civ. P. 16(b)(4).

“This good cause standard precludes

modification unless the schedule cannot be met despite the diligence of the party
seeking the extension.” Sosa v. Airprint Sys., Inc., 133 F. 3d 1417, 1418 (11th Cir.
1998) (internal quotations and citations omitted). The Court finds no good cause to
reopen discovery at this late stage of the proceedings. Plaintiff bears the burden to
show that he diligently pursued discovery and litigation of this case, and he fails to
do so here. As the case has been pending for nearly two years, Plaintiff had ample
time and opportunity to retain counsel and prosecute this case, but chose not to do so
until after the expiration of the discovery deadline and less than three months before
the trial term. 1 See Turner v. Neptune Towing & Recovery, Inc., No. 8:09-CV-1071Plaintiff claims that he began interviewing attorneys before he filed his complaint nearly
two years ago but “[f]or one reason or the other I did not retain them.” Id. He claims that
1

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T-27AEP, 2010 WL 3154082, at *2 (M.D. Fla. Aug. 9, 2010) (rejecting the plaintiff’s
argument that reopening discovery and continuing the trial would assist her in
obtaining counsel because she “had ample time to retain new counsel but has not
done so.”).

Although the Court declines to reopen discovery, the Court will sua

sponte extend the trial and remaining pre-trial deadlines by thirty days by separate
order.
In his Motion to Enlarge Time to Respond, Plaintiff requests an extension of
time to respond to Defendants’ motions for summary judgment because he will be
traveling to Europe and will not return until the third week of April, 2017. Doc. 194
at 1-2.

The Court notes that Plaintiff has filed responses in opposition to

Defendants’ motions for summary judgments.

Docs. 197, 198. Accordingly, this

request is due to be denied as moot.
As for Plaintiff’s Motion for Recusal (Doc. 160), the motion is denied for the
same reasons explained in the Court’s most recent Order denying the same relief.

See Doc. 146 at 9-11.
ACCORDINGLY, it is hereby
ORDERED:
1. Plaintiff’s Motion to continue and postpone trial date and re-open discovery
As attorney at law Eric Leckie has been retained and requires time to

his newly retained counsel “would likely wish to take the deposition of Mark Seavey” and
that he “may wish to propound Requests for Admissions to lay the foundation to hundreds of
documents from Mark Seavey and Legion to me.” Id. at 2.

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Consult with me, review the facts of the case and review the 3 years of
evidence of torts against me (Doc. 185) is DENIED;
2. Plaintiff Bernath and Cross-Defendant Bernath’s Motion Enlarge [sic]
Time to Respond to anticipated (third) refilling [sic] of Summary Judgment
Motions by Seavey and Legion (Doc. 194) is DENIED as moot;
3. Plaintiff’s Motion Recuse [sic] Magistrate And Article III Judge Chappell
For bias against Plaintiff Which a reasonable person would perceive as bias
against Plaintiff And for defendants Seavey and Legion And The
appearance of impropriety by the judicial officers (Doc. 160) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 3rd day of April, 2017.

Copies: Counsel of record

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