Decker v. Citrus County

Filing 45

ORDER: Within twenty-one (21) days of the date of this Order, the parties shall confer and each party may file a memorandum of law addressing whether Florida Rule of Appellate Procedure 9.100, either in whole or in part, or the Federal Rules of C ivil Procedure should govern the adjudication of the petition. The Court DEFERS ruling upon Petitioner's Motion for the Entry of an Order to Show Cause as to Count VIII Petition for the on the Record Review 25 until this issue has been addressed by the parties. Signed by Judge James S. Moody, Jr on 2/2/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

GEORGE H. DECKER,
Plaintiff/Petitioner,
v.

Case No: 5:15-cv-24-Oc-30PRL

CITRUS COUNTY, a political
Subdivision of the State of Florida,
Defendant/Respondent.
________________________________/

ORDER
THIS CAUSE comes before the Court upon Petitioner George H. Decker’s Motion
for the Entry of an Order to Show Cause as to Count VIII Petition for the on the Record
Review (Doc. 25) and Respondent’s response 1 (Doc. 26). Pursuant to Florida Rule of
Appellate Procedure 9.100(h), Petitioner’s motion requests that the Court enter an order to
show cause directing Respondent to demonstrate why the relief sought in the petition
should not be granted. (Doc. 25).
Florida Rule of Appellate Procedure 9.100(h) provides in pertinent part, “If the
petition demonstrates a preliminary basis for relief, . . . the court may issue an order either
directing the respondent to show cause, within the time set by the court, why relief should
not be granted or directing the respondent to otherwise file, within the time set by the court,
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Although the response indicates that Respondent believes that no preliminary basis for relief exists and the
Court should not issue an order to show cause directing a response to the petition, the response is not directly in
opposition to Petitioner’s motion.

a response to the petition.” But neither party has addressed at any point during the
pendency of this case whether Florida Rule of Appellate Procedure 9.100, either in its
entirety or in part, governs a petition for writ of certiorari being litigated in federal court.
Generally, “federal courts are to apply state substantive law and federal procedural law.”
Hanna v. Plumer, 380 U.S. 460, 465 (1965). When no comparable procedural provision
exists in the federal rules, a federal district court “should apply the state’s rule if it is
outcome determinative.” Tiara Condo Ass’n v. Marsh USA, Inc., 697 F. Supp. 2d 1349,
1358 (S.D. Fla. 2010) (emphasis added).
CONCLUSION
Accordingly, it is therefore ORDERED AND ADJUDGED that:
1. Within twenty-one (21) days of the date of this Order, the parties shall confer
and each party may file a memorandum of law addressing whether Florida Rule of
Appellate Procedure 9.100, either in whole or in part, or the Federal Rules of Civil
Procedure should govern the adjudication of the petition.
2. The Court DEFERS ruling upon Petitioner’s Motion for the Entry of an Order to
Show Cause as to Count VIII Petition for the on the Record Review (Doc. 25) until this
issue has been addressed by the parties.
DONE and ORDERED in Tampa, Florida, this 2nd day of February, 2016.

Copies furnished to:
Counsel/Parties of Record
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