Bernath v. Seavey

Filing 242

ORDER denying 238 Plaintiff's Motion to Strike Cross-Complaint and Answer of Mark Seavey for Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Fraud Upon the Court; denying 239 Plaintiff's Motion to Take Depositions of Treating Medical Health Providers of Mark Seavey and Others with Knowledge, construed as a Motion to Reopen Discovery. Signed by Magistrate Judge Carol Mirando on 6/14/2017. (LS)

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

Case No: 2:15-cv-358-FtM-38CM

MARK CAMERON SEAVEY,
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiff’s Motion to Take
Depositions of Treating Medical Health Providers of Mark Seavey and Others with
Knowledge, construed as a Motion to Reopen Discovery (Doc. 239) filed on June 12,
2017 and Motion to Strike Cross-Complaint and Answer of Mark Seavey for Second,
Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Fraud Upon the Court (Doc.
238, “Motion to Strike”) filed on June 12, 2017. 1
On May 18, 2017, the Honorable Sheri Polster Chappell entered summary
judgment in favor of Defendants, Mark Cameron Seavey and The American Legion.
Doc. 227. Judge Chappell, however, withheld entry of final judgment pending a
determination of damages.

Id. at 28. Judge Chappell requested Defendants to

provide additional briefing on the appropriate type and amount of damages sought,
and offered Plaintiff the opportunity to respond. Id. Defendants have filed their

1

The motions were filed under seal pursuant to Court Order. Doc. 237.

briefs on damages (Docs. 231-235); Plaintiff now seeks to reopen discovery for the
purpose of deposing Defendant Seavey and Seavey’s medical providers in an effort to
refute Seavey’s claimed damages. Doc. 239 at 1.
A motion to reopen discovery “on an issue that is pending before the Court at
the summary judgment stage is evaluated under Federal Rule of Civil Procedure
56([d]).” Davken, Inc., v. City of Daytona Beach Shores, No. 6:04-cv-207-Orl-19DAB,
2006 WL 1232819, at *4 (M.D. Fla. May 5, 2006). 2 Pertinent here, under Rule 56(d),
the Court may permit Plaintiff to take additional discovery if he “shows by affidavit
or declaration that, for specified reasons, [he] cannot present facts essential to justify
[his] opposition.”

Fed. R. Civ. P. 56(d).

Rule 56(d), however, contemplates a

situation when the nonmovant is faced with a motion for summary judgment before
discovery is completed. See Wallace v. Brownell Pontiac-GMC Co., 703 F.2d 525,
527 (11th Cir. 1983).

In that circumstance, the nonmovant’s affidavit “may not

simply rely on vague assertions that additional discovery will produce needed, but
unspecified, facts, but rather he must specifically demonstrate how postponement of
a ruling on the motion will enable him, by discovery or other means, to rebut the
movant’s showing of the absence of a genuine issue of fact.” Id. (citing Sec. & Exch.

Comm’n v. Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980) (quotation

The Dayken decision cites Rule 56(f); however, since the date of the decision, Rule 56 has
been amended in that “[s]ubdivision (d) carries forward without substantial change the
provisions of former subdivision (f).” Fed. R. Civ. P. 56(d), Advisory Committee Note to the
2010 Amendments.
2

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marks omitted). The court then has discretion to permit additional discovery. See

id.
Here, Plaintiff has not provided an affidavit specifically stating why he cannot
present essential facts to support his opposition. See Doc. 239. Additionally, this
is not a case where discovery has not been completed. Indeed, this case has been
pending for two years; the discovery deadline, that already was once extended by the
Court, expired nearly six months ago on January 31, 2017.

Docs. 112, 113.

Accordingly, Plaintiff’s Motion to Reopen Discovery is due to be denied.
In his Motion to Strike, Plaintiff seeks to strike Defendant Seavey’s Answer to
First Amended Complaint and First Amended Counterclaims (Doc. 31) for alleged
fraud upon the Court. Doc. 241. Because the Court has repeatedly considered and
denied similar requests by Plaintiff in the past, and because the Court already has
granted summary judgment in favor of Defendants, this motion is due to be denied.

See Docs. 23; 24; 25; 35; 38; 48; 116; 142; 159; 184; 186, 211.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff’s Motion to Take Depositions of Treating Medical Health

Providers of Mark Seavey and Others with Knowledge, construed as a Motion to
Reopen Discovery (Doc. 239) is DENIED.
2.

Motion to Strike Cross-Complaint and Answer of Mark Seavey for

Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Fraud Upon the
Court (Doc. 238) is DENIED.

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DONE and ORDERED in Fort Myers, Florida on this 14th day of June, 2017.

Copies:
Counsel of record

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