Friends of Etna Turpentine Camp, Inc. v. United States Fish and Wildlife Service et al

Filing 39

ORDER overruling 37 Plaintiff's Objections; adopting 36 Report and Recommendation, as modified in this Order; denying 31 Plaintiff's Renewed Motion for an Award of Attorney's Fees and Costs. Signed by Judge Marcia Morales Howard on 8/16/2019. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
FRIENDS OF ETNA TURPENTINE
CAMP, INC.,
Plaintiff,
v.

Case No. 3:17-cv-1409-J-34PDB

UNITED STATES FISH AND WILDLIFE
SERVICE, et al.,
Defendants.
ORDER
THIS CAUSE is before the Court on the Report & Recommendation (Doc. 36;
Report) entered by the Honorable Patricia D. Barksdale, United States Magistrate Judge,
on July 9, 2019.

In the Report, the Magistrate Judge recommends that Plaintiff’s

Renewed Motion for an Award of Attorney’s Fees and Costs (Doc. 31; Motion) be denied
based on ineligibility. See Report at 29. On July 23, 2019, Plaintiff filed objections to the
Report, see Plaintiff’s Objections to Magistrate’s Report and Recommendation to Deny
Plaintiff’s Motion for Fees and Costs (Doc. 37; Objections) and on August 7, 2019,
Defendants filed a response to the Objections, see Defendants’ Response to Plaintiff’s
Objections to Report and Recommendation (Doc. 38; Response). Thus, this matter is
ripe for review.
In the Report, the Magistrate Judge recommends that the Court conclude that
Plaintiff, Friends of Etna Turpentine Camp, Inc. (Etna), is not eligible for an award of the
attorney’s fees incurred in bringing this Freedom of Information Act (FOIA) suit against

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Defendants, United States Fish and Wildlife Service (US FWS) and the United States
Department of Interior. See Report at 28. In the Objections, Etna argues that “there are
clearly erroneous factual errors relating to the delay in the service of the subject
Complaint, the incorporation of US FWS’ thirty-one (31) pages of response in opposing,
and other considerations.” Objections at 2. Etna also contends that the Magistrate
Judge’s recommendation of ineligibility is contrary to law. See id.
The Court “may accept, reject, or modify, in whole or in part, the finding or
recommendations by the magistrate judge.” 28 U.S.C. § 636(b). If no specific objections
to findings of facts are filed, the district court is not required to conduct a de novo review
of those findings. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see
also 28 U.S.C. § 636(b)(1). However, the district court must review legal conclusions de
novo. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994);
United States v. Rice, No. 2:07-mc-8-FtM-29SPC, 2007 WL 1428615, at *1 (M.D. Fla.
May 14, 2007).
Because the Court finds that the Objections are due to be overruled and the Report
adopted as the Court’s opinion, the Court will not repeat the factual and procedural history
or the arguments and authority addressed in the Report. Instead, the Court writes briefly
only to address Etna’s specific objections.
In the section of the Objections titled “Erroneous Finding of Facts,” Etna first notes
that the Report incorrectly states that Etna filed the Complaint initiating this action in the
Ocala Division of the Court. See Objections at 3. Upon review, the Court finds that Etna
is correct that the Report mistakenly states that Etna filed the Complaint in the Ocala
Division. It appears that Etna actually mailed the Complaint to and it was received in the

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Jacksonville Division of the Court on December 18, 2017. See Complaint (Doc. 1). As a
result of the Complaint appearing to assert a dispute arising out of Citrus County, a county
located in the Ocala Division of the Court, on December 19, 2017, the Clerk of the Court
assigned the case an Ocala Division case number. See generally Court Docket. The
Honorable James S. Moody, Jr., United States District Judge, corrected the error that
same day by transferring the case to the Jacksonville Division. See Report at 12, n.9.
Thus, the identification of the Ocala Division as the location where Etna initially filed the
Complaint is factually inaccurate. This inaccuracy, however, is of no consequence.
The misidentification of the filing location in the Report does nothing to undermine
the Magistrate Judge’s factual finding that “Before service [of process], the [US] FWS
provided the first partial response (December 22) . . . .” Report at 23. Indeed, Etna
acknowledges that it actually served Defendants on January 8, 2018, which, of course, is
some two weeks after the first partial response. See Proof of Service (Doc. 5). Why it
occurred after the first partial response was not a factor in the Magistrate Judge’s
analysis, and the Magistrate Judge made no suggestion that Etna was being faulted for
delaying service.1 Instead, the Magistrate Judge merely identified the unremarkable and
undisputed fact that service of process was in fact accomplished on a date that followed
the first partial response to Etna’s FOIA request. To address the misstatement identified

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Although the reason for the delay in service has no bearing on the resolution of the Motion, the Court
observes that Etna’s suggestion that but for the docketing error it might have served the Complaint before
the December 22, 2017 first partial response is not supported by the record. Etna mailed the Complaint to
the Court on December 14, 2017 (it did not file it on that date). It was received in the Jacksonville Division
on the afternoon of December 18, 2017, and processed for docketing the next day on December 19, 2017.
The Clerk of the Court issued the summonses that same day. Although Etna argues that it was prepared
to serve the summonses, it ignores the fact that the summonses still had to be mailed to counsel for Etna
and then had to be served on US FWS, a process that after the January 2, 2018 re-issuance of the
summonses took six days without any intervening holidays. See Summons (Doc. 4); Proof of Service (Doc.
5). Thus, the earliest Etna likely would have been able to accomplish service of process would have been
December 26, 2017, still after the first partial response.
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by Etna, in adopting the Report, the Court will modify the paragraph on page 11 under
the heading “B. Filing of This Action” to reflect the accurate record. This inconsequential
error, however, warrants no other relief.
Next, in identifying the “Erroneous Finding of Facts,” Etna faults the Magistrate
Judge for considering arguments from a previous US FWS filing which US FWS
incorporated by reference in its response to the Motion. See Objections at 4. Etna
recognizes that the Magistrate Judge noted that the US FWS’s “incorporation by
reference [was] inappropriate.” See id.; Report at 1, n.1 (citing Rule 3.01(b), Local Rules,
United States District Court, Middle District of Florida (Local Rule(s))). Nevertheless, Etna
objects to the Magistrate Judge’s decision to consider the additional arguments in order
to avoid delay. Etna points to no authority suggesting the Magistrate Judge’s decision to
do so was erroneous, much less clearly erroneous. It was neither. Waiver of a page limit
set forth in the Court’s Local Rules was well within the Magistrate Judge’s sound
discretion.

See Local Rule 1.01(c) (permitting a judge to suspend application and

enforcement of the rules in whole or in part). As such, this objection is without merit.
The remainder of the arguments set forth in the section of the Objections titled
“Erroneous Finding of Facts,” do not present objections to any factual finding made by
the Magistrate Judge. Instead, they challenge the legal conclusions the Magistrate Judge
drew from her factual findings.2 These Objections are due to be overruled because the
conclusions are fully supported by the record.

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Etna suggests that the Magistrate Judge “forgives” the fact that despite its delay in producing documents,
in the related litigation regarding the construction of the Suncoast Parkway US FWS argued that Etna
delayed in filing suit in that action. See Objection at 6. This suggestion is misplaced and warrants no relief.
The Magistrate Judge specifically noted that US FWS’s argument, in the face of its own delay, was
inappropriate. Nevertheless, in considering whether US FWS’s delay in producing documents effected
Etna’s claim in that litigation, the Magistrate Judge noted that Etna’s request for preliminary injunctive relief

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Finally, Etna argues that the determination that it is ineligible for a fee award is
contrary to law. See Objections at 7-10. Etna contends that it substantially prevailed in
this action and that the “narrow construction of the Freedom of Information Act, i.e. that
an agency must blatantly deny disclosure yet be relieved from any liability for substantial
delays without any explanation within the statutory timeframe” is contrary to the purposes
of FOIA.

Id. at 7, 9.

This argument fails for at least two reasons.

First, Etna’s

characterization of the Magistrate Judge’s “construction of the Freedom of Information
Act” ignores her thorough analysis of the specific factual record in this case, a record that
fully supports the conclusion based on applicable law that Etna failed to establish that it
“substantially prevailed.” See Report at 22-23. After considering the “record as a whole”
the Magistrate Judge concluded:
Given the absence of opposition to the FOIA request, the pre-action
communications indicating action on the FOIA request (consideration,
collection, and review), the steady albeit arguably slow progress, and
the regulatory process (track assignments, first-in, first-out policy),
prosecution of this action cannot be reasonably regarded as “necessary
to obtain the information and that the action had a substantive causative
effect on the delivery of the information.” See Lovell [v. Alderete], 630
F.2d [428] at 432 [(5th Cir. 1980)] (quoted).
Report at 23. The undersigned agrees with this assessment.
Second, Etna fails to identify any error in the legal authority cited or its application
to the facts in this case. Instead, Etna expresses its disagreement with the recommended
resolution of the Motion, but that disagreement does not support a determination that the
recommendation set forth in the Report is contrary to law.

failed not because of any delay in filing the action but because Etna failed to establish a likelihood of
success on the merits of its claim. See Report at 28. This statement is entirely accurate.
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Upon independent review of the file and for the reasons set forth above, the Court
will overrule the Objections, and with the modification set forth below will accept and adopt
the legal and factual conclusions recommended by the Magistrate Judge. Accordingly, it
is hereby
ORDERED:
1. Plaintiff’s Objections to Magistrate’s Report and Recommendation to Deny
Plaintiff’s Motion for Fees and Costs (Doc. 37) are OVERRULED.
2. In the Report, the paragraph on page 11 under the heading “B. Filing of This
Action” now reads:
On December 18, 2017, having received no documents
responsive to the FOIA request, the plaintiff filed this action in the
Jacksonville Division, but it was mistakenly opened as an Ocala
Division case. Etna asked the Court to: (1) “Order Defendants to
comply with the [FOIA]”; (2) “Order Defendants to provide access to
the requested documents”; (3) “Expedite this proceeding as
provided for in 28 U.S.C. § 1657”; (4) “Award Plaintiff costs and
reasonable attorney[‘]s fees in this action, as provided in 5 U.S.C. §
552(a)(4)(E)”; and (5) “Grant such other and further relief as may
deem just and proper.” Doc. 1 at 7.3
3. The Magistrate Judge’s Report & Recommendation (Doc. 36), as modified in
this Order, is ADOPTED as the opinion of the Court.
4. Plaintiff’s Renewed Motion for an Award of Attorney’s Fees and Costs (Doc.
31) is DENIED.
DONE AND ORDERED in Jacksonville, Florida, this 16th day of August, 2019.

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For the sake of brevity, the Court has not replicated the footnotes included in this paragraph of the Report.
These footnotes, although not replicated here, are specifically adopted as part of the Court’s opinion.
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Copies to:
Counsel of Record

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