Riley v. Cardozo et al

Filing 36

ORDER striking 28 Motion for Summary Judgment and 24 Defendant Jay Markowitz's Answer and Counterclaim. Defendant Markowitz shall have up to and including November 17, 2016, to file an amended response to 4 Plaintiff's Amended Complaint. Defendant Markowitz is directed to read the Local Rules of this Court prior to submitting any additional filings in this Court. See Order for details. Signed by Judge Marcia Morales Howard on 11/2/2016. (MHM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

BARBARA J. RILEY,
Plaintiff,
Case No. 3:16-cv-961-J-34MCR
vs.
MICHAEL A. CARDOZO, et al.,
Defendants.
/

ORDER

THIS CAUSE is before the Court on various filings.

On October 17, 2016,

Defendant Jay Markowitz filed his Answer and Counterclaim (Doc. 24). In addition, on
October 24, 2016, he filed a Notice of Motion: (1) For Summary Judgment Pursuant to
FRCP Rule 56 Dismissing This Case as Against Defendant Jay Markowitz; (2) Imposing
Costs, Sanctions and Fees Against Barbara Riley Pursuant to FRCP 11(c); and (3)
Granting Defendant Jay Markowitz a Permanent Injunction Against Barbara Riley From
Re-Filing Another Lawsuit Against Jay Markowitz or The Law Offices of Jay Markowitz,
P.C. (Doc. 28; Notice). Markowitz attaches to the Notice his Motion by Defendant Jay
Markowitz: (1) For Summary Judgment Pursuant to FRCP Rule 56 Dismissing This Case
as Against Defendant Jay Markowitz; (2) Imposing Costs, Sanctions and Fees Against
Barbara Riley Pursuant to FRCP 11(c); and (3) Granting Defendant Jay Markowitz a
Permanent Injunction Against Barbara Riley From Re-Filing Another Lawsuit Against Jay

Markowitz or The Law Offices of Jay Markowitz, P.C. (Doc. 28-1; Motion). Upon review,
the Court finds that the Answer, Notice and Motion are due to be stricken.1
In the Notice, Markowitz purports to set a deadline for the response to the Motion,
and indicates that the case “will be heard before the Honorable Monte C. Richardson” on
November 21, 2016, at 9:30 a.m. See Notice at 2. Markowitz’s attempt to set this matter
for a hearing is without effect and entirely improper, as is his purported deadline for
“objections.” Id. Specifically, Local Rule 3.01(j) states that:
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. All
hearings on motions shall be noticed by the Clerk, as directed by the judge
assigned to the case, either on regular motion days if practicable . . . or at
such other times as the Court shall direct.
See Local Rule 3.01(j), United States District Court, Middle District of Florida (Local
Rule(s)) (emphasis added). Likewise, Local Rule 3.01(b) provides that a party opposing
a motion has fourteen (14) days to file a response in opposition to the motion. In light of
the foregoing Local Rules, Markowitz is without authority to set response deadlines or
motion hearings, and his improper attempt to do so is due to be stricken.
In addition, upon review of the Motion, the Court observes that Markowitz fails to
comply with Local Rule 3.01(a). Pursuant to this Local Rule,
[i]n a motion or other application for an order, the movant shall include a
concise statement of the precise relief requested, a statement of the basis
for the request, and a memorandum of legal authority in support of the
1
The Court also notes that on September 16, 2016, Markowitz filed a rejected waiver of service form with a
letter to the Court attached. See Waiver of the Service of Summons (Doc. 10), Att. 1. In the letter, Markowitz
requests that the Court dismiss this action with prejudice and impose sanctions against Plaintiff. Id. However,
pursuant to Local Rule 3.01(f), requests for relief “shall not be addressed or presented to the Court in the
form of a letter or the like.” As such, the Court will take no action pursuant to this letter.

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request, all of which the movant shall include in a single document not more
than twenty-five (25) pages.
See Local Rule 3.01(a) (emphasis added). In the Motion, Markowitz does not include a
memorandum of legal authority as required by the Local Rule. Indeed, Markowitz fails to
cite to any legal authority in support of his requested relief.

See generally Motion.

Accordingly, the Court finds that the Motion is due to be stricken as well.2
With respect to the Answer and Counterclaim, the Court has reviewed the
allegations which are identified as Markowitz’s “Counterclaim” against Plaintiff, but cannot
discern what cause of action forms the basis of any purported claim against Plaintiff. See
Answer and Counterclaim at 2-8. Notably, rather than state a claim for relief, Markowitz
concludes his Counterclaim by requesting that the Court dismiss Plaintiff’s Amended
Complaint Verified for Civil Rights Violations (Doc. 4; Amended Complaint), award
sanctions and costs against Plaintiff, and impose a permanent injunction. See Answer
and Counterclaim at 8. As such, although titled as a “Counterclaim,” this portion of the
document appears to be more properly described as a Motion to Dismiss or a Motion for
Sanctions, rather than a pleading. A pleading is a type of filing used to set forth a party’s
claims or defenses, whereas a motion is a request for a court order. See Rule 8, Federal
Rules of Civil Procedure (Rule(s)); Rule 7(a) (listing types of pleadings); Rule 7(b) (setting
forth the requirements for a motion). As these are different types of filings, to which
different rules apply, it is improper to attach a motion to a pleading, see Rule 7(a)-(b), and
doing so may impede the Court’s ability to rule on the motion. Indeed, as described above,
pursuant to the Court’s Local Rules, a motion must include a memorandum of law in

2

Markowitz is also advised that he need not attach his motions to a “Notice” of filing, and should instead file
the motion itself directly.

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support of the requested relief, and in most circumstances, must include a certificate of
conferral with opposing counsel. See Local Rule 3.01(a), (g). Moreover, a motion for
sanctions pursuant to Rule 11 is also subject to certain requirements. See Rule 11(c)(2).
Accordingly, the Court will strike the Answer and Counterclaim, and direct Defendant
Markowitz to file an amended response to the Amended Complaint which complies with
the Local Rules of this Court and the Federal Rules of Civil Procedure.
In light of the foregoing, the Court will also direct Markowitz to read the Local Rules
prior to submitting any future filings.3 Markowitz is reminded that although he is proceeding
in this action pro se, he is still expected to comply with the Local Rules of this Court. See,
e.g., Order (Doc. 9) (advising pro se plaintiff of some of the procedural rules of this Court).
Failure to abide by the Local Rules wastes judicial resources unnecessarily, and as such,
the failure of Markowitz, or any party, to comply with the Local Rules in the future may risk
the imposition of sanctions. Accordingly, it is
ORDERED:
1. Defendant Jay Markowitz’s Notice of Motion: (1) For Summary Judgment
Pursuant to FRCP Rule 56 Dismissing This Case as Against Defendant Jay
Markowitz; (2) Imposing Costs, Sanctions and Fees Against Barbara Riley
Pursuant to FRCP 11(c); and (3) Granting Defendant Jay Markowitz a
Permanent Injunction Against Barbara Riley From Re-Filing Another Lawsuit
Against Jay Markowitz or The Law Offices of Jay Markowitz, P.C. (Doc. 28), as
well as the attached Motion, are STRICKEN.

3

The Local Rules are available for review on the public website for the Middle District of Florida at
www.flmd.uscourts.gov.

4 

2. Defendant Jay Markowitz’s Answer and Counterclaim (Doc. 24) is STRICKEN.
Markowitz shall have up to and including November 17, 2016, to file an
amended response to Plaintiff’s Amended Complaint Verified for Civil Rights
Violations (Doc. 4).
3. Defendant Jay Markowitz is directed to read the Local Rules of the United
States District Court, Middle District of Florida prior to submitting any additional
filings in this Court. Failure to abide by the Local Rules in the future may result
in the imposition of sanctions.
DONE AND ORDERED in Jacksonville, Florida, this 2nd day of November, 2016.

lc11
Copies to:
Counsel of Record
Pro Se Parties

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