Robinson v. Section 23 Property Owner's Association, Inc. et al

Filing 14

ORDER denying without prejudice 9 Plaintiff's Motion for Default Judgment Against Defendant Section 23 Property Owner's Association, Inc.; granting 10 Request for Clarification on the requirement of filing a Notice of Pendency of Other Actions; denying 10 Request to Use Electronic Devices in the Courtroom; denying 13 Plaintiff's Request for Hearing. Signed by Magistrate Judge Carol Mirando on 5/10/2017. (LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ALBERT ROBINSON,
Plaintiff,
v.

Case No: 2:16-cv-888-FtM-38CM

SECTION 23 PROPERTY
OWNER’S ASSOCIATION, INC.,
SECTION 23, PROPERTY
OWNER’S ASSOCIATION, INC.,
JUDGE LISE MARIE SPADER
PORTER, JUDGE JOHN LEO
BURNS, DAVID KEITH OAKS,
DAVID K. OAKS P.A. and DAVID
K. OAKS TRUST,
Defendants.
ORDER
This matter comes before the Court upon review of: (1) Plaintiff’s Motion for
Default Judgment Against Defendant Section 23 Property Owner’s Association, Inc.
(Doc. 9, “Motion for Default Judgment,”) filed on January 11, 2017; (2) Plaintiff’s
Request for Clarification on the requirement of filing a Notice of Pendency of Other
Actions and Request to Use Electronic Devices in the Courtroom (Doc. 10, “Motion for
Clarification”) filed on January 11, 2017; and (3) Plaintiff’s Request for Hearing (Doc.
13) filed on May 1, 2017.
Plaintiff filed a complaint on December 14, 2016. Doc. 1. Simultaneous with
his complaint, Plaintiff filed an Affidavit of Indigency, which the Court will construe
as a motion to proceed in forma pauperis. Doc. 2. Subsequently, Plaintiff filed a

Motion for the Court to Direct the Clerk of Court to Issue Summons Pursuant to [Fed.
R. Civ. P.] 4(b) (Doc. 7). Plaintiff’s motion to proceed in forma pauperis and motion
to direct the Clerk to issue summons remain pending. The Court will consider the
remaining motions in turn.

1. Plaintiff’s Motion for Default Judgment (Doc. 9)
Plaintiff seeks a default judgment against Section 23 Property Owner’s
Association, Inc. Doc. 9. At the outset, the Court notes that, pursuant to Rule 55,
Federal Rules of Civil Procedure, a plaintiff must obtain a Clerk’s default pursuant
to Rule 55(a), Federal Rules of Civil Procedure, before the Court may grant relief
under Rule 55(b).

Accordingly, because Plaintiff has neither sought nor obtained a

Clerk’s default in this case, the Court will construe Plaintiff’s motion as a motion for
Clerk’s default under Rule 55(a).

For the reasons stated herein, the motion is due

to be denied.
Pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, “[w]hen a party
against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must
enter the party’s default.” Similarly, Middle District of Florida Local Rule 1.07(b)
provides:
When service of process has been effected but no appearance or response
is made within the time and manner provided by Rule 12, Fed. R. Civ.
P., the party effecting service shall promptly apply to the Clerk for entry
of default pursuant to Rule 55(a), Fed. R. Civ. P.

-2-

M.D. Fla. R. 1.07(b). Prior to directing the Clerk to enter a default, the Court must
first determine whether Plaintiff properly effected service of process. United States

v. Donald, No. 3:09-cv-147-J-32HTS, 2009 WL 1810357, at *1 (M.D. Fla. June 24,
2009). Here, nothing in the record suggests that Plaintiff served Section 23 Property
Owner’s Association, Inc. Indeed, as noted, Plaintiff’s motion to proceed in forma

pauperis remains pending.

Accordingly, Plaintiff’s motion is due to be denied

without prejudice.

2. Plaintiff’s Motion for Clarification (Doc. 10)
Plaintiff seeks clarification of a Related Case Order and Track Two Notice
(“Case Order”) that United States District Judge Sheri Polster Chappell entered on
December 29, 2016, and reads as follows:
[N]o later than FOURTEEN (14) DAYS from the date of this Related
Case Order and Track Two Notice, counsel and any pro se party shall
comply with Local Rule 1.04(d), and shall file and serve a certification
as to whether the instant action should be designated as a similar or
successive case pursuant to Local Rule 1.04(a) or (b). The parties shall
complete the attached form titled, “Notice of Pendency of Other Actions.”
Doc. 5 at 1. Plaintiff points to Middle District of Florida Local Rule 1.04(d) which
states that “[a]ll counsel of record” must file a Notice of Pendency of Related Actions,
and seeks clarification whether he, a pro se Plaintiff, must comply with Judge
Chappell’s Case Order and Local Rule 1.04(d). M.D. Fla. R. 1.04(d); Doc. 10 at 1.
Because Judge Chappell’s Case Order clearly applies to “counsel and any pro se
party,” Plaintiff must comply with the Order in its entirety. Accordingly, Plaintiff’s

-3-

Motion for Clarification is granted to the extent that the Court clarifies Plaintiff must
comply with the Court’s Orders and the Middle District of Florida Local Rules. 1
Plaintiff next requests electronic notification of filings via the Court’s Case
Management and Electronic Case Filing (CM/ECF) system, as well as the ability to
file documents electronically. Plaintiff makes the request because he believes he has
been “denied the basic privilege of electronic filing and has to expend money that he
does not have on postage and copying.” Doc. 10 at 1.
This Court’s Administrative Procedures for Electronic Filing state that pro se
litigants are not allowed to utilize CM/ECF without authorization from the Court.
The Court, having reviewed the Motion and considered the circumstances, does not
find good cause exists to allow Plaintiff access to electronic notification and/or filing.
Plaintiff may prosecute this lawsuit via the U.S. Mail and by accessing the computer
terminals at the Clerk’s Office in Fort Myers. Plaintiff is cautioned that she must
stay apprised of this matter and participate fully, complying with both the Local
Rules and the Federal Rules of Civil Procedure.
Next, Plaintiff requests an Order permitting him to bring his personal
electronic devices in the courthouse and the courtroom.

The Court finds this

sweeping request to be premature. Should the Court Order Plaintiff’s attendance at
a hearing or in the courtroom for any reason, the Court will also address Plaintiff’s

For Plaintiff’s benefit, although he is proceeding pro se in this matter, “the right of selfrepresentation does not exempt a party from compliance with relevant rules of procedural
and substantive law.” Sanders v. Fluor Daniel, Inc., 151 F.R.D. 138, 139 (M.D. Fla. 1993),
aff’d sub nom. Sanders v. Fluor Daniels, Inc., 36 F.3d 93 (11th Cir. 1994) (citing Kersh v.
Derozier, 851 F.2d 1509, 1511 (5th Cir. 1988)).
1

-4-

ability to bring electronic equipment in the courtroom.

Accordingly, Plaintiff’s

Motion for Clarification is denied to the extent he requests an Order permitting him
to bring his personal electronic devices in the courthouse and to utilize the CM/ECF
for electronic filing.

3. Plaintiff’s Request for Hearing (Doc. 13)
Plaintiff requests a hearing “within the next thirty (30) days” on the pending
motions. Middle District of Florida Local Rules provide:
Motions and other applications will ordinarily be determined by the
Court on the basis of the motion papers and briefs or legal memoranda;
provided, however, the Court may allow oral argument upon the written
request of any interested party or upon the Court’s own motion.
Requests for oral argument shall accompany the motion, or the opposing
brief or legal memorandum, and shall estimate the time required for
argument.
M.D. Fla. R. 3.01(j).

Upon review of Plaintiff’s pending motions and the

supplemental evidence he has submitted, the Court finds that the written
submissions are sufficient and a hearing is unnecessary at this time. See Docs. 2; 7;
11; 12.
ACCORDINGLY, it is hereby
ORDERED:
1. Plaintiff’s Motion for Default Judgment Against Defendant Section 23
Property Owner’s Association, Inc. (Doc. 13) is DENIED without prejudice.
2. Plaintiff’s Request for Clarification on the requirement of filing a Notice of
Pendency of Other Actions and Request to Use Electronic Devices in the
Courtroom (Doc. 10) is GRANTED in part and DENIED in part. Plaintiff

-5-

shall have up to and including May 24, 2017 to comply with the Court’s
Related Case Order and Track Two Notice (Doc. 5).
3. Plaintiff’s Request for Hearing (Doc. 13) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 9th day of May, 2017.

Copies:
Counsel of record

-6-