Kassem v. Martin et al

Filing 98

ORDER granting 85 motion for preliminary injunction to the extent that a preservation order is entered consistent with the language of the temporary restraining order; granting 94 motion to stay and directing the parties to file joint discovery plan by April 21, 2017; denying 95 Motion for assurances of no suggestion of bankruptcy; and terminating 96 Motion for Protective Order. Signed by Magistrate Judge Philip R. Lammens on 3/22/2017. (AR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
LYNN KASSEM,
Plaintiff,
v.

Case No: 5:15-cv-623-Oc-30PRL

MATT MARTIN, DEBI CONNOR, DC
SALES & ENTERTAINMENT, LLC and
DC SALES AND MARKETING, LTD
Defendants.

ORDER
On March 10, 2017, the District Judge granted Defendants’ motion for an ex parte
temporary restraining order (“TRO”) and referred the motion for preliminary injunction to me.
(Doc. 87). On March 21, 2017, I conducted a hearing on the matter.
While initially requesting a preliminary injunction (both in their motion and at the hearing),
Defendants concede that they have not yet filed a claim against Plaintiff related to the accessing
of Debi Connor’s email account, and thus, there is no basis (at this time) for a preliminary
injunction.1 See Alabama v. U.S. Army Corps of Engineers, 424 F.3d 1117, 1127 (11th Cir. 2005)
(“any motion for either a preliminary or permanent injunction must be based upon a cause of
action”); Vigna v. New York Life Insurance, Inc., No. 8:16-cv-1607-T-23JSS, 2016 WL 3748717
(M.D. Fla. June 21, 2016) (holding that petition for injunction failed because in absence of a

1

Whether Defendant Connor or others have or should pursue a federal or state claim (either in a
separate suit or as a counterclaim) against Plaintiff or her daughter (or others) is not itself before the Court
and nothing here should be construed as an opinion as to the viability of such a claim, nor should these
proceedings be interpreted as a stay of their obligations under the statute of limitations to file a claim.

complaint, Plaintiff could not establish a substantial likelihood of success on the merits); Spearman
v. Wyndham Vacation Resorts, Inc., 69 F.Supp.3d 1273, 1291-92 (N.D. Ala. 2014) (explaining
that “any motion or suit for an injunction must be based upon a cause of action; and injunction is
a type of relief rather than an independent cause of action”). However, the same result – i.e., the
preservation of evidence and the opportunity to examine it – can be obtained through the issuance
of a preservation order. See Martinick v. Media Visions, Inc., No. 13-61148-CIV, 2013 WL
12049083, *1 (S.D. Fla. November 21, 2013) (“Plaintiffs’ counsel conceded at the evidentiary
hearing that she was really seeking a preservation order to prevent the further destruction of
evidence, rather than a preliminary injunction related to the merits of the underlying claims in this
case”). Accordingly, and in the absence of objection at the hearing, I will enter this preservation
order consistent with the language of the TRO.2
Even though Defendants have not filed a claim against Plaintiff, this Court, nonetheless,
has the inherent authority to control the proceedings before it and investigate whether an abuse of
process or fraud on the Court has occurred. Martin v. Automobili Lamborghini Exclusive, Inc.,
307 F.3d 1332, 1335 (11th Cir. 2002). Here, the evidence is sufficient to make a plausible
showing that bad faith, on the part of Plaintiff at a minimum, has occurred. Plaintiff concedes
that her daughter, Alliah Kassem, accessed Ms. Connor’s personal email account and that Plaintiff
sent screenshots of emails obtained by her daughter to her lawyer’s office. (Doc. 92-1 at ¶¶19,

2

While Mr. Chapman did not object to entry of a preservation order (and indeed began the
hearing by proposing this course of action), he argued that he (and his firm) should not be included in the
preservation order because he is otherwise obligated to preserve evidence as an officer of the Court.
Given the concession that his law firm received screenshots of Ms. Connor’s email, I find that the Order
should also apply to him. (Doc. 93 at ¶¶17, 18, 19). In addition, there is no basis for his request that the
preservation order also apply to Defendants and their counsel.
-2-

20; Doc. 93 at ¶¶17, 18, 19).3 Indeed, the evidence, including what was submitted to the Court at
the hearing, shows that email messages dating back to 2012 were apparently accessed, retrieved,
and shared with Plaintiff’s counsel’s office on at least three occasions – November 24, 2015,
December 5, 2015, and January 22, 2015. And all of this despite representations that paralegal,
Taryn Hartnett, repeatedly advised Plaintiff not to access the email and that she never conferred
with Mr. Chapman – her husband and the attorney of Plaintiff – regarding Plaintiff’s conduct.
Moreover, Nicole Imbriglio’s testimony suggests that Plaintiff obtained access to Ms. Connor’s
email account before and during this litigation to harm Defendants and for litigation gain.
(Statement of Nicole Imbriglio, Doc. 85 at 32-55). Under these circumstances, it is appropriate
and necessary for the Court to consider the scope of Plaintiff’s access of Ms. Connor’s email
account and the extent to which that access has affected this litigation.
To that end, Defendants seek a five month stay of the underlying case and all deadlines and
request the opportunity to conduct specific discovery on the issue. (Doc. 94). At the hearing,
defense counsel acknowledged that he was unsure as to what discovery is necessary and requested
leave to develop a discovery plan with the assistance of an expert.
Accordingly, it is ORDERED:
1. Defendants’ motion (Doc. 85) is GRANTED to the extent that a preservation order,
consistent with the language of the TRO is hereby entered:

3

Plaintiff argues that she was entitled to access Ms. Connor’s personal email account by virtue of
an employment relationship. According to Plaintiff, Ms. Connor borrowed Alliah Kassem’s mobile
phone to access her email account on June 3, 2015 while providing riding instruction to Alliah and again,
one week later while acting as an agent for Plaintiff at a horse show. (Doc. 92-1 at ¶¶17, 18). Even if
the purported work relationship allowed some degree of access, the evidence suggests that Plaintiff’s
access to Ms. Connor’s email account was broad in scope (both substantively and temporally).
-3-

Plaintiff, Lynn Kassem; her husband, Mohammed Kassem; her daughter, Alliah Kassem;
her counsel, Avery Chapman; and her counsel’s paralegal/spouse, Taryn Hartnett are
prohibited from the following acts:
a. The distributing, altering, erasing, disposing of or modification of any electronic date
contained within cloud-based storage and/or on a SD card or SIM card, and/or any other
form of internal/external storage, as used by the above individuals’ respective cell
phones as it relates to any communication between each other, or the witness, Ms.
Imbriglio; and
b. The distributing, altering, erasing, disposing of or modification of any email
communication stored electronically within owned and/or controlled computers,
electronic devices, and/or on any internal/external electronic e-mail server; and
c. The distributing, altering, erasing, disposing of or modification of any of the devices or
information/data contained thereon, as well as , to preserve all cell phones, SD cards,
SIM cards, laptops, computers, internal/external servers or other electronic devices
which in any way contain information, communications of any form, including but not
limited to text messages, e-mails, instant messages or messages or data reflecting
access to any electronic service or other communication media; and
d. The distributing, altering, erasing, disposing of or modification of all electronic
communication media related to each named individual on any service to which they
participate, subscribe, or have access to, such as Instagram, Facebook, Twitter, etc.;
and

-4-

e. Taking any other action or permitting any other person to take any action with respect
to the aforementioned data and devices which is reasonably likely to alter or modify
the devices, any component parts or the contents contained therein.
2.

Defendant’s motion for stay (Doc. 94) is GRANTED as follows. All discovery is

STAYED at this time. On or before April 4, 2017, Defendants shall consult with an expert and
present to Plaintiff a proposed discovery plan. On or before April 21, 2017, the parties shall
confer and file a joint discovery plan, following which the Court will issue an Order regarding the
scope and timeframe for discovery.
3.

All other case deadlines remain in full force and effect pending further order of the

4.

Plaintiff’s motion for protective order (Doc. 96) is TERMINATED since Mr.

Court.

Chapman and Ms. Hartnett were not called as witnesses at the hearing on March 21, 2017. To
the extent the motion also refers to the possibility of future depositions, such motion is premature
since the parties have not yet developed and submitted their discovery plan.
5.

Plaintiff’s motion for assurances of no suggestion of bankruptcy, certification of no

bankruptcy and for bond and shifting of fees and costs for ESI discovery (Doc. 95) is likewise due
to be DENIED. As an initial matter, Plaintiff cites no legal authority to support her demand that
the Connor Defendants provide assurances that they are not contemplating a bankruptcy filing.
Moreover, Plaintiff’s concerns regarding the cost of ESI discovery is premature since the parties
have not yet developed and submitted their discovery plan.

-5-

DONE and ORDERED in Ocala, Florida on March 21, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

-6-