Bowen v. Office of General Counsel et al

Filing 44

ORDER denying 23 Motion to Change Venue; denying 23 motion for recusal ; granting in part and denying as moot in part 26 Motion to stay discovery; finding as moot 33 Motion to Compel attendance at case management conference; finding as moot 33 Motion for Default Judgment; finding as moot 38 Motion for Order to Show Cause. Discovery is stayed through 6/11/2013. See order for details. Signed by Magistrate Judge Thomas E. Morris on 3/14/2013. (DLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
EVA BOWEN,
Plaintiff,
vs.

CASE NO. 3:12-cv-1375-J-99MMH-TEM

OFFICE OF GENERAL COUNSEL,
et al.,
Defendants.
_____________________________
ORDER
This case is before the Court on a number of non-dispositive motions filed from
January 23, 2013 through February 20, 2013 (see Docs. #23, #26, #33, #38). Responses
have been filed to all but “Plaintiff’s Verifiable Petition to Recuse United States District
Judge Marcia Morales Howard and Magistrate Judge Thomas E. Morris and Order to
Change Venue and Transfer Case to Miami, Florida (Doc. #23, “Motion to Recuse and to
Change Venue”), which was filed on January 23, 2013. The time for response to the
Motion to Recuse and to Change Venue has expired; thus, these motions are ripe for the
Court’s consideration. Upon consideration of the referenced motions, the responses (Docs.
#29, #39) and arguments made therein, the Court enters the following rulings.
1.

Plaintiff’s Motion to Recuse and to Change Venue ( Doc. #23) is DENIED. In the

instant motion Plaintiff complains, “Given the proven past history of the General Counsel’s
Office regarding ex-parte communications to influence and corrupt the judicial process,
and the confidence with which the Defendant’s Counsel [sic] declared dismissal on the 16th
of January when Plaintiff was under orders to submit an amended complaint by 31st of

January, ‘AND STATING AS A FACT’ that future amended complaints will be dismissed,
then the conclusion must be drawn that the fairness of these proceedings has been
tainted.” Motion to Recuse and to Change Venue at 2-3 (emphasis in original).
Under 28 U.S.C. § 455(a), "[a]ny justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in which his impartiality might reasonably
be questioned." However, a judge has as strong a duty to sit when there is no legitimate
reason to recuse as he does to recuse when the law and facts require. United States vs.
Malmsberry, 222 F. Supp. 2d 1345 (M.D. Fla. 2002) (citing United States vs. Greenspan,
26 F.3d 1001 (10th Cir. 1994)). An unsubstantiated suggestion of personal bias or
prejudice is insufficient to warrant recusal or disqualification. Id. at 1349 (internal citations
omitted). Here, Plaintiff’s concern that the fairness of these proceedings has been tainted
is without foundation.
2.

Defendants’ Motion to Stay Discovery and Case Management Requirements and

Relieve Defendants of Necessity of Holding Case Management Conference With Plaintiff
(Doc. #26) is GRANTED IN PART AND DENIED AS MOOT IN PART. To the extent the
motion requests Defendants be relieved of case management conference duties, the
motion is DENIED AS MOOT. Judge Howard has ordered all parties to participate in the
case management conference and to file a proper Case Management Report not later than
March 25, 2013 (see Doc. #40, Court Order). To the extent the motion request discovery
be stayed, the motion is GRANTED IN PART.
Noting that it is impermissible for discovery to begin until after completion of the
case management conference, the Court nonetheless has taken a preliminary peek at the

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pending motions to dismiss and has weighed the potential harm in the delay of discovery
against the possibility the motions to dismiss will be granted. See Fed. R. Civ. P. 26(d)(1);
Feldman v. Flood, 176 F.R.D. 651, 652-653 (M.D. Fla. 1997). As noted in Feldman,
motions to stay discovery are disfavored, but discovery may be stayed to determine certain
dispositive issues, such as the immunity of government officials being sued. Id. at 652
(citing Harlow v. Fitzgerald, 457 U.S. 800 (1982)). In this case, Defendants seek dismissal
on a number of grounds, one of which claims most individual Defendants are entitled to
qualified immunity from the suit (see Doc. #30, Defendants’ Motion to Dismiss Amended
Complaint With Prejudice, or Alternatively to Abstain, at 14-15). However, it is rarely
appropriate to stay discovery when resolution of the pending motion will not dispose of the
entire case. Id. (citation omitted). Yet, qualified immunity does seek to protect government
officials from the burdens of litigation, which includes the discovery process. See Harlow,
457 U.S. at 817-18; Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Here, the Court finds
the burdens of litigation on Defendants outweigh Plaintiff’s need for the immediate
commencement of the discovery process.
Although this Court expresses no opinion whether qualified immunity will stand as
a defense in this case or will ultimately succeed in the above-referenced motion to dismiss,
the undersigned recognizes case precedent exists to protect government officials named
as defendants from the discovery process until the issue of immunity is ruled upon once
it has been raised. See, e.g., Caraballo-Sandoval v. Honsted, 35 F. 3d 521, 524 (11th Cir.
1994) (noting that the district court properly stayed discovery in that civil rights case until
the issue of qualified immunity of prison officials was decided); see also Williams v.

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Consolidated City of Jacksonville, 341 F.3d 1261, 1271-73 (11th Cir. 2003) (finding
qualified immunity applied to the Jacksonville Fire Chief). Even though Defendant W.O.
Birchfield has not raised an issue as to immunity, but has moved to dismiss this action for
lack of jurisdiction, the Court finds it appropriate to postpone all discovery pursuits in this
case for a brief period of time. Thus, upon due consideration, discovery will be stayed for
a period of ninety days (90) as to all Defendants. Absent further order of the Court, this
stay shall expire on June 11, 2013. If necessary, any party may seek enlargement of
the stay with the filing of a proper motion.
3.

Plaintiff’s Motion for Order to Compel Defendants to Conduct Court Ordered Case

Management Conference or Motion for Default Judgment (Doc. #33) is DEEMED MOOT
in light of Judge Howard’s Order directing all parties to participate in the case management
conference.
4.

Plaintiff’s Motion for Rule to Show Cause (Doc. #38) is DEEMED MOOT in light of

Judge Howard’s Order directing all parties to participate in the case management
conference.
5.

The Court takes note that Plaintiff filed Plaintiff’s referenced motions (Docs. #23,

#33, #38) without certifying Plaintiff’s conference with Defendants’ counsel in an effort to
resolve these matters before bringing them to the Court, as required by Local Rule 3.01(g).
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 Defendants’ counsel of record
must:

4

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
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 14th

Copies to pro se parties
and counsel of record

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day of March, 2013.