Macleod v. Scott et al
ORDER denying 23 Motion for Reconsideration. Signed by Magistrate Judge Monte C. Richardson on 12/09/2014. (ADM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ROBERT CRAIG MACLEOD,
CASE NO. 3:14-cv-793-J-39MCR
GOVERNOR RICK SCOTT and
ATTORNEY GENERAL PAM BONDI,
STATE OF FLORIDA CHIEF LEGAL
THIS CAUSE is before the Court on Plaintiff’s Verified Motion for
Reconsideration on Jurisdiction (“Motion for Reconsideration”) (Doc. 23). For the
reasons stated herein, the Motion for Reconsideration is due to be DENIED.
On July 7, 2014, pro se Plaintiff filed a Verified Complaint (“Complaint”) in
this Court against Governor Rick Scott and Attorney General Pam Bondi in order
to compel Defendants to enforce Plaintiff’s right to a trial by jury in the state court
proceedings to which Plaintiff was a party. (Doc. 1.) On the same day, Plaintiff
filed an Affidavit of Indigency (Doc. 2), which this Court construed as a Motion for
Leave to Proceed in District Court Without Prepaying Fees or Costs; a Motion for
Leave to File Electronically (Doc. 4); a Motion for Appointment of Counsel (Doc.
5); and a Notice Withholding Consent to a Magistrate Judge (Doc. 6).
On September 17, 2014, the undersigned entered a Report and
Recommendation recommending that Plaintiff’s case be dismissed without
prejudice for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(h)(3), and
that Plaintiff’s motions, filed on July 7, 2014, be denied. (Doc. 9.) The Report
and Recommendation, which remains pending before the Court, provides in
By filing the present federal lawsuit (and a number of similar lawsuits
against the same Defendants in this Court), Plaintiff attempts to
compel the Governor and the Attorney General of the State of
Florida to enforce his right to a trial by jury pursuant to 42 U.S.C. §
1983. However, . . . this Court has no jurisdiction to interfere with
[P]laintiff’s pending state court proceeding . . . . Plaintiff’s attempt to
create a federal cause of action by invoking the United States
Constitution’s Seventh Amendment right to trial by jury is unavailing
as the Seventh Amendment governs proceedings in federal court,
not state court, and plaintiff’s right to a trial by jury under Florida law
is a matter for him to pursue in state court, not here.
(Id. at 3.)
On October 15, 2014, Plaintiff filed his first motion to amend the Complaint.
(Doc. 12.) In that motion, Plaintiff argued he did not have an adequate
opportunity to file constitutional challenges in the state court forum both during
and after the state court proceedings in light of the state court’s May 13, 2013
order declaring him to be a vexatious litigant, which allegedly made abstention
under either Younger or Rooker-Feldman inappropriate. (Id. at 2.) On October
17, 2014, Plaintiff filed a motion for miscellaneous relief requesting that his
Motion for Leave to Proceed in District Court Without Prepaying Fees or Costs be
granted immediately, his summonses be served immediately, his Motion for
Leave to File Electronically be granted immediately, the persons identified in his
Certificate of Interested Persons be removed from the case immediately, his
Motion for Appointment of Counsel be granted immediately, and his Notice
Withholding Consent to a Magistrate Judge be complied with immediately. (Doc.
On October 27, 2014, the Court entered an Order denying the first motion
to amend and terminating the motion for miscellaneous relief. (Doc. 17.) The
Court denied leave to amend on the basis of futility because even under the
proposed amended complaint, the Court would still lack subject matter jurisdiction
over this case. (Id.) The Order provided in relevant part:
Although the state court order dismissed Plaintiff’s pending
claims and/or counterclaims, and restricted Plaintiff’s ability to file pro
se pleadings in certain state courts, it did not preclude Plaintiff from
asserting constitutional challenges in the subject state courts, as
long as he complied with the conditions set forth in the order.
Further, to the extent Plaintiff alleges that the vexatious litigant
order was entered in error, this Court has no jurisdiction to review
that order, which has already been explained to Plaintiff on several
As stated recently by the Eleventh Circuit, a pro se litigant’s
assertion that, without recourse to federal courts, he would be
deprived of a venue in which to air his constitutional grievances
misunderstands the nature of our dual system of courts.
(Id. at 5-6 (internal citations and quotation marks omitted).)
On November 3, 2014, Plaintiff filed his second motion to amend the
Complaint, and, on November 14, 2014, he filed his third motion to amend the
Complaint. (Docs. 19, 21.) Both motions remain pending. On November 17,
2014, Plaintiff filed the present Motion for Reconsideration of the Court’s October
27, 2014 Order denying leave to amend the Complaint. (Doc. 23.)
Plaintiff argues the October 27, 2014 Order is “afoul of the law and
historical and continuing precedent” because it “is not based upon case authority
of precedential value.” (Id. at 2.) Referring to his second and third proposed
amended complaint, Plaintiff asserts that he no longer seeks a federal cause of
action by invoking the United States Constitution’s Seventh Amendment right to
trial by jury, but rather by invoking the Fourteenth Amendment Equal Protection
Clause. (Id. at 8.) Plaintiff states that this Court “is required to review plaintiff’s
allegation that defendant’s vexatious litigant order violated plaintiff’s right to equal
protection under Fla. Stat. 68.093.” (Id. at 19.) Plaintiff further states:
[I]f given plaintiff’s circumstances he is guaranteed a right to a jury
trial by state statute, rules of procedure and constitution then the 14th
Amendment equal protection clause protects his right to a jury trial.
To deny a jury trial guaranteed in the state forum would be to deny
the equal protection clause of the 14th Amendment.
(Id. at 24 (footnotes omitted).)
Plaintiff asserts that his third proposed amended complaint “makes legally
sufficient changes in plaintiff’s matter deleting all counts and remedies originally
sought which the court could not comprehend and failed to construe liberally.”
(Id. at 13.) Plaintiff argues that leave to amend should be granted as a matter of
law because no responsive pleading has been filed. (Id. at 9.)
Although not specifically mentioned in the Federal Rules of Civil Procedure,
a motion seeking a reconsideration of an earlier ruling is governed either by Rule
59 or Rule 60. Bell v. Houston Cnty., Ga., 2007 WL 4146205, *2-3 (M.D. Ga.
Nov. 19, 2007). Rule 59(e) governs motions to alter or amend judgment filed no
later than twenty-eight days after the entry of the judgment. Fed.R.Civ.P. 59(e).
Rule 60(b) governs motions seeking relief from a final judgment, order, or
proceeding filed within a reasonable time, or no more than a year after the entry
of the judgment or order, or the date of the proceeding. Fed.R.Civ.P. 60(c).
Reconsideration is only proper if the movant has demonstrated that:
(1) there has been an intervening change in the law, (2) new
evidence has been discovered that was not previously available to
the parties at the time the original order was entered or (3)
reconsideration is necessary to correct a clear error of law or prevent
manifest injustice. Reconsideration of a prior order is an
extraordinary remedy, and should be employed sparingly. . . . [A]
motion for reconsideration does not provide an opportunity to simply
reargue an issue the Court has once determined. Court opinions are
not intended as mere first drafts, subject to revision and
reconsideration at a litigant’s pleasure.
Bell, 2007 WL 4146205, at *2 (internal citations and quotation marks omitted).
Although Plaintiff’s Motion for Reconsideration, filed twenty-one days after
the Court’s October 27, 2014 Order, does not specify under which rule it is
brought, the Court will treat the Motion as filed under Rule 60(b) because it seeks
reconsideration of an order. Rule 60(b) provides:
On motion and just terms, the court may relieve a party . . . from a
final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under Rule
(3) fraud . . . , misrepresentation, or misconduct by an opposing
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed.R.Civ.P. 60(b). “The purpose of a Rule 60(b) motion is to permit the district
court to reconsider matters . . . as to correct obvious errors or injustices.”
Anderson v. United States, 159 F. App’x 936, 938 (11th Cir. Dec. 19, 2005).
“Under Rule 60(b)(6), a court may grant relief for any other reason justifying relief
. . . . Relief under this clause is an extraordinary remedy which may be invoked
only upon a showing of exceptional circumstances.” Bell, 2007 WL 4146205, at
*4 (citing Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001)).
Plaintiff does not argue that there has been an intervening change in the
law, or that new evidence has been discovered that was previously unavailable.
Instead, he seems to argue that reconsideration is necessary to correct a clear
error of law or prevent manifest injustice. However, in doing so, Plaintiff is simply
rearguing issues that the Court has already decided.
Although the allegations in Plaintiff’s second and third proposed amended
complaint appear to be based on a new theory of liability, i.e., the Equal
Protection Clause of the Fourteenth Amendment, the gravamen of Plaintiff’s
proposed pleadings is the same. Essentially, Plaintiff alleges that the vexatious
litigant order was entered by the state court in error, which precluded Plaintiff
from raising his constitutional challenges in state court, and that Plaintiff was
deprived of his right to a trial by jury in the state court proceedings. However, in
the October 27, 2014 Order, the undersigned explained to Plaintiff that a federal
district court has no jurisdiction to review a state court order, and that while the
vexatious litigant order may have limited Plaintiff’s ability to file pro se pleadings
in state court, it did not preclude Plaintiff from filing meritorious claims so long as
the requirements of the vexatious litigant order have been met. Therefore, no
legal or factual matters exist to warrant reconsideration of the Court’s earlier
To the extent Plaintiff argues that the undersigned’s impartiality might
reasonably be questioned in light of the case law cited in the October 27, 2014
Order, it is well-established that a judge’s view of the law is not a proper basis for
disqualification. See In re Waczewski, 2006 WL 1594141, *2 (M.D. Fla. May 5,
2006) (“A judge’s views on legal issues may not serve as a basis for motion to
disqualify.”). Therefore, Plaintiff’s request for disqualification, to the extent it has
been properly raised, is due to be denied.
Plaintiff also argues that leave to amend should be granted as a matter of
law because no responsive pleading has been filed to date. Although Rule
15(a)(1)(A), Fed.R.Civ.P., allows amendment once as a matter of course within
21 days after a pleading is served, Plaintiff’s Complaint has not yet been served
on Defendants. In fact, Plaintiff has not even been granted leave to proceed in
forma paupris. Therefore, Plaintiff’s reliance on Rule 15(a)(1)(A) is misplaced.
Accordingly, it is ORDERED:
The Motion for Reconsideration (Doc. 23) is DENIED.
DONE AND ORDERED at Jacksonville, Florida, on December 9, 2014.
Pro Se Party
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