Nails v. Swisher International, Inc.

Filing 28

ORDER denying as moot 24 Motion to extend time; denying 25 Motion for Reconsideration ; denying 26 Motion to Strike ; denying 18 Motion for default; denying as moot 19 Motion to extend time. See order for details. Signed by Magistrate Judge Thomas E. Morris on 2/25/2013. (DLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JAMES LEE NAILS,
Plaintiff,
vs.

CASE NO. 3:12-cv-1147J-99MMH-TEM

SWISHER INTERNATIONAL, INC.
and its RETIREMENT PLAN COMMITTEE,
et al.
Defendant.
__________________________________
ORDER
This case is before the Court on a number of non-dispositive motions filed by
Plaintiff from February 6, 2013 through February 21, 2013 (see Docs. #18, #19, #24, #25).
Defendant Swisher International, Inc.’s Response to Plaintiff’s Request to Enter Default
and Application for Extension of Time (Doc. #22, Response) was filed on February 18,
2013. Upon consideration of the referenced motions and Defendant’s Response, the
Court enters the following rulings.
1.

Plaintiff’s Request to Enter a Default (Doc. #18) is DENIED. Defendant’s

Answer (Doc. #13) was filed on January 18, 2013. On the facts presented, the Court
deems the Answer was timely filed.
2.

Plaintiff’s Application for Time Extension (Doc. #19) is DENIED AS MOOT.

Plaintiff seeks additional time to move for default. The Court has denied Plaintiff’s Request
to Enter a Default. No default will enter as to Defendant.

3.

Motion for Time Enlargement (Doc. #24) is DENIED AS MOOT.1 Plaintiff

seeks additional time to effect service of process upon Defendant. Defendant has
affirmatively stated it “ultimately waived service after receiving Plaintiff’s amended request
following the Court’s Order of November 23, 2012 (ECF No. 6) regarding the filing fee, and
timely filed its Answer within sixty (60) days from that request.” Response at 3. The
Answer shall stand as filed. The sought relief is unnecessary.
4.

Plaintiff’s Motion for Reconsideration (Doc. #25) is DENIED. This Court has

recognized three grounds for granting reconsideration: 1) an intervening change in
controlling law; 2) the availability of new evidence; and 3) the need to correct clear error
or manifest injustice. Reyher v. Equitable Life Assurance Soc’y of the U.S., 900 F. Supp.
428, 430 (M.D. Fla. 1995); Sussman v. Salem, Saxon & Nielsen, 153 F.R.D. 689, 694
(M.D. Fla. 1994). None of these grounds applies to Plaintiff’s request that the Court
reconsider its order denying Plaintiff’s earlier request for entry of default judgment.
5.

Plaintiff’s Motion to Strike Defendant’s Answer (Doc. #26) is DENIED.

Although Rule 12(f) of the Federal Rules of Civil Procedure permits the Court to strike any
"insufficient defense," it is well settled among courts in this circuit that motions to strike are
generally disfavored and will usually be denied unless it is clear the pleading sought to be
stricken is insufficient as a matter of law. See Fabrica Italiana Lavorazione Materie
Organiche S.A.S. v. Kaiser Aluminum & Chemical Corp., 684 F.2d 776, 779 (11th Cir.

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In accord with Local Rule 1.01(c), upon review, the Court finds Plaintiff’s Motion for
Enlargement (Doc. #24), Plaintiff’s Motion for Reconsideration (Doc. #25) and Plaintiff’s
Motion to Strike Defendant’s Answer (Doc. #26) are clearly due to be denied and therefore
enters these rulings without awaiting the normal response period.
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1982); Thompson v. Kindred Nursing Centers East, LLC, 211 F. Supp. 2d 1345, 1347-48
(M.D. Fla. 2002); In re Sunbeam Securities Litigation, 89 F. Supp. 2d 1326, 1340 (S.D. Fla.
1999). Defendant’s Answer is not insufficient as a matter of law and shall stand in the
record as filed.
6.

The Court takes note that Plaintiff filed the referenced motions without

certifying Plaintiff’s conference with Defendant’s counsel in an effort to resolve these
matters before bringing them to the Court, as required by Local Rule 3.01(g). Cognizant
of the difficulties the parties may encounter with in person and telephone communications
under the circumstances of Plaintiff’s incarceration, the Court earlier provided the parties
may comply with Local Rule 3.01(g) through mail correspondence (see Doc. #16, Court
Order). The Court will excuse Plaintiff’s failure in these instances; however, Plaintiff should
not expect such leniency in the future. To be clear, both Plaintiff, as a pro se litigant with
the same responsibilities as an attorney in this litigation, and Defendant’s counsel of record
must:
Before filing any motion in a civil case, except a motion for injunctive relief,
for judgment on the pleadings, for summary judgment, to dismiss or to
permit maintenance of a class action, to dismiss for failure to state a claim
upon which relief can be granted, or to involuntarily dismiss an action, 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 counsel has conferred with
opposing counsel and (2) stating whether counsel agree on the resolution
of the motion. A certification to the effect that opposing counsel was
unavailable for a conference before filing a motion is insufficient to satisfy the
parties’ obligation to confer. 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. If the interested parties
agree to all or part of the relief sought in any motion, the caption of the
motion shall include the word “unopposed,” “agreed,” or “stipulated” or
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otherwise succinctly inform the reader that, as to all or part of the requested
relief, no opposition exists.
M.D. Fla. Loc. R. 3.01(g).
DONE AND ORDERED at Jacksonville, Florida this 25th day of February, 2013.

Copies to Pro se Plaintiff
and counsel of record, if any

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