Foley et al v. Orange County et al

Filing 256

ORDER granting in part and denying in part 244 Motion to determine sufficiency of responses to requests for admission. The County shall serve amended responses as directed in the order on or before June 13, 2013. Signed by Magistrate Judge Karla R. Spaulding on 6/10/2013. (Spaulding, Karla)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DAVID W. FOLEY, JR. and JENNIFER T.
FOLEY,
Plaintiffs,
-vs-

Case No. 6:12-cv-269-Orl-37KRS

ORANGE COUNTY,
Defendant.
______________________________________

ORDER
This cause came on for consideration without oral argument on the following motion filed
herein:
MOTION:

MOTION REGARDING SUFFICIENCY OF ANSWER &
OBJECTION (Doc. No. 244)

FILED:

May 21, 2013

Plaintiffs David and Jennifer Foley served voluminous requests for admission on
Defendant Orange County, Florida (“County”). They ask that the Court determine the sufficiency
of the County’s answers and objections and order either that the matters in dispute are admitted or
require that supplemental answers be served. Doc. No. 244. The County responded by serving
updated responses to some of the requests and further clarification in response to the Foleys’
objections. Doc. No. 253 at 4-26.
As a preliminary matter, the County objects both to the length of the motion and the timing
of the motion. The motion is 115 pages long with exhibits totaling another 157 pages. Even
though the Foleys may have believed that the length of the motion was justified in order to comply

with Local Rule 3.04, which requires that discovery requests and responses be quoted in full, they
should have sought leave to exceed the page limits established by Local Rule 3.01(d) before filing
the overlong motion. Because the discovery period has now closed, and the County has responded
to the motion on the merits, the Court will not strike the motion. Going forward, however, the
parties are again reminded that they may not ignore the limitations established by the rules of this
Court.
As to the timing of the filing, the Court permitted discovery to continue through May 31,
2013. Doc. No. 206. The Case Management and Scheduling order provides that motions related
to discovery must be filed sufficiently before the discovery deadline to permit a response to be
filed before the discovery deadline. Because the above-referenced motion was filed on May 30,
2013, it was untimely and could be denied. The Court will, nevertheless, exercise its discretion to
consider the merits of the dispute because the deadline for filing dispositive motions is less than
two weeks away.
Fed. R. Civ. P. 36(a)(1) permits a party to serve on any other party a written request to
admit the truth of any matters within the scope of Fed. R. Civ. P. 26(b)(1) relating to facts, the
application of law to fact, opinions about either and the genuineness of a described document.
Rule 36(a)(4) requires the responding party to admit, deny or state in detail why it cannot
truthfully admit or deny a request. Rule 36(a)(5) also permits a party to object to a request and
state the grounds for the objection. Rule 36(a)(6) allows the requesting party to file a motion to
determine the sufficiency of an answer or objection.

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The Foleys quote all of the requests for admission, even though there appears to be no
dispute about some of those requests.1 The following requests were admitted without
qualification: Requests 10, 11, 16, 17, 18, 20, 21, 29, 30, 31, 49, 50, 51, 55, 56, 612, 63, 66, 72,
74, 79, 80, 83, 84, 85, 87, 1063, 114, 1154, 117, 118, 119, 121, 123, 124, 125, 140, 141, 147, 149,
150, 151, 156, 174, 175, 1785, 185, 186, 187, 188, 193, 198, 201, 202, 206, 207, 208, 213, 215,
216, 217, 220, 225, 229, 230, 233, 235, 237, 238, 239, 242, 244, 247, 253. Therefore, to the
extent that the motion requests a finding from the Court regarding these admitted requests for
admissions, the motion is DENIED.
Other requests were denied without qualification: 396, 41, 54, 69, 70, 71, 767, 77, 788, 97,
122, 126, 146, 162, 163, 165, 166, 167, 168, 169, 177, 180, 228, 232, 234, 259, 267. There is no
provision in the Federal Rules of Civil Procedure for a party to litigate a denied request for
admission before trial. Point Blank Solutions, Inc. v. Toyobo Am., Inc., No. 09-61166-CIV, 2011

1

There are no requests numbered 1 through 9. Instead, the Foleys’ requests are numbered 10
through 268.
2

See Doc. No. 253 at 4.

3

See Doc. No. 254 at 3.

4

See Doc. No. 253 at 4.

5

See Doc. No. 253 at 4.

6

See Doc. No. 253 at 4.

7

See Doc. No. 253 at 4.

8

See Doc. No. 253 at 4.
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WL 742657, at *3 (S.D. Fla. Feb. 24, 2011).9 Therefore, to the extent that the motion requests a
finding from the Court regarding these denied requests for admissions, the motion is DENIED.
In its response, the County contends that the following additional requests for admission
are also not in dispute: 12, 38, 42, 43, 104, 152, 173, 181, 182, 184, 189, 190, 199, 200, 203, 205,
209, 210, 219, 221 and 241. Doc. No. 253 at 1-2. In their motion, the Foleys did not state an
objection immediately following the quotation of each of these requests, except for request 219 to
which an objection was made. Therefore, to the extent that the motion requests a finding from the
Court regarding requests 12, 38, 42, 43, 104, 152, 173, 181, 182, 184, 189, 190, 199, 200, 203,
205, 209, 210, 221 and 241, the motion is DENIED.
I will address the remaining requests for admissions in dispute by category.
Responses that Qualify Admissions or Denials.
When a party admits or denies a request for admission, no statement of reasons for the
admission or denial is required. On rare occasion, a party may qualify or explain an admission
when the request for admission, if taken out of context, could convey unfair references. See Lewis
v. Michaels Stores, Inc., No. 3:05-cv-1323-J-33HTS, 2007 WL 2021833, at *1 (M.D. Fla. July 12,
2007) (citing Fed. R. Civ. P. 36(a) and Henry v. Champlain Enters., Inc., 212 F.R.D. 73, 77-78
(N.D.N.Y. 2003)).

9

Fed. R. Civ. P. 37(c)(2) provides for sanctions under certain circumstances against a party
who failed to admit a request for admission if the requesting party later proves the matter to have
been true. The 1970 Advisory Committee Notes to this Rule state: “Rule 37(c) is intended to provide
posttrial relief in the form of a requirement that the party improperly refusing the admission pay the
expenses of the other side in making the necessary proof at trial.”
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The Foleys complain that the County’s qualification of its responses to a number of
requests that the County admitted or denied were improper. The Foleys objections are well taken
as to certain of these requests.
In request 13, the Foleys asked the County to admit that the Solandra property is the
homestead of David and Jennifer Foley. The County responded that it is without knowledge as to
whether the Solandra property has been claimed as the homestead. Doc. No. 244 at 5. Rule
36(a)(4) provides that “[t]he answering party may assert lack of knowledge or information as a
reason for failing to admit or deny only if the party states that it has made reasonable inquiry and
that the information it knows or can readily obtain in insufficient to enable it to admit or deny.”
The County has not complied with this requirement.10 Therefore, the motion is GRANTED as to
request 13. It is ORDERED that, on or before June 13, 2013, the County shall serve an amended
response to request 13, which response must fully comply with Rule 36(a)(4).
In request 14, the Foleys asked the County to admit that a certain telephone number was
the land-based number associated with the Solandra property. In request 33, the Foleys asked the
County to admit that a certain telephone number was the telephone number associated with their
Solandra residence in the February 23rd citizen complaint. The County admitted both requests
only to the extent that the telephone number was associated with the Foleys and the Solandra
property but that it was, at one point, disconnected. Doc. No. 244 at 6, 13. The County could
have properly objected to request 14 because it was not limited in time, admitted the request in

10

In a recently filed supplement, the County provided some information about the reason it
was without knowledge as to some of these requests. See Doc. No. 253 at 13. It must, nevertheless,
state those reasons in the amended responses.
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part by identifying the dates on which the telephone number was disconnected, or admitted the
request in part and denied the request in part. Instead, the County chose to rewrite the request and
respond to the rewritten request. Therefore, the motion to require the County to provide a more
specific response to requests 14 and 33 as written is GRANTED. It is ORDERED that the
County shall serve an amended response to requests 14 and 33 on or before June 13, 2013.11
In request 15, the Foleys asked the County to admit that, in 2002, they were cited for
violation of “the county code’s prohibition of pet geese at” the Solandra property. Doc. No. 244 at
6. The County did not specifically object to the request. Rather, it denied the request with the
following qualification: “The Orange County Code does not contain a prohibition referred to as
the prohibition of pet geese. The request is ambiguous and argumentative.” Id. at 7. In response
to request 16, the County admitted that the Foleys were cited with violating code provisions that
prohibited raising or keeping poultry. Id. It appears, therefore, that the County’s problem with
request 15 was the reference to the geese as pets. If so, the proper response to the request would
have been to object to the request, deny the request without qualification, or admit the request in
part and deny or qualify the admission to the extent that the code provision addressed to raising or
keeping poultry does not make an exception for poultry that are pets. Therefore, the motion is
GRANTED as to request 15. It is ORDERED that the County shall serve an amended response
to request 15 on or before June 13, 2013, either admitting or denying the request as written or

11

The time for objecting to requests has expired. Therefore, the responses shall address the
merits of the requests.
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admitting part of the request, denying part of the request or stating why it does not have sufficient
knowledge to admit or deny all or part of the request.
In request 19, the Foleys asked the County to admit that the Code Enforcement Board
(“CEB”) found that they were prohibited from keeping their geese on the Solandra property based
on the CEB finding regarding the Use Table. The County denied the request with the following
qualification: “The Code Enforcement Board does not simply review the Use Table to determine
whether there is a violation.” Doc. No. 244 at 8. This is an appropriate qualification because it
puts the denial in context. Therefore, the motion is DENIED as to request 19.
In requests 22 and 23, the Foleys asked the County to admit that they were cited for a code
violation at an address on Lehigh Avenue in Orlando. The County denied the requests, stating
that the listed address was not the address on the citation. On May 9, 2013, the Foleys amended
the requests to cite the correct address. Id. at 9.12 In requests 24, 25, 27 and 28, the Foleys asked
the County to admit information about particular case numbers. The County denied the requests
because the case numbers cited were incorrect. The Foleys served amended requests to include
the correct case number. Id. at 10-12. The County refused to respond to the amended requests
arguing that the Foleys were not allowed to amend the requests and require the County to respond
to the amendments outside the discovery period. The County’s position is inconsistent with Local
Rule 3.01(g), which requires the parties and counsel to work in good faith to resolve discovery

12

Request 22 referred to the property at which the “Lehigh poultry violation” occurred by the
incorrect address. Request 23 referred to the “Lehigh poultry violation” without restating the address.
Doc. No. 244 at 9. By amending the address for the “Lehigh poultry violation,” the Foleys effectively
amended both requests 22 and 23.
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disputes. The County has voluntarily amended some of its earlier answers, and it should
reasonably have permitted the Foleys to amend some of their requests as a part of the good faith
conference. Therefore, the motion is GRANTED to the extent that, on or before June 13, 2013,
the County shall serve responses to requests 22, 23, 24, 25, 27 and 28, as amended.
In request 26, the Foleys asked the County to admit that the CEB decision was based on an
identified provision of the Use Table. The County denied the request, stating that the CEB
considered all the evidence, not just the Use Table, to make its decision. Doc. No. 244 at 10-11.
This fairly responds to the request. Therefore, the motion is DENIED as to request 26.
In request 32, the Foleys asked the County to admit that the Solandra Drive address was
Mr. Foley’s address at the time the February 23rd citizen complaint was made. The County
admitting the request as stated. It denied a request the Foley’s did not make, which is the place of
Mr. Foley’s current abode. The motion is GRANTED to the extent that the denial is extraneous
to the request made. The denial is, therefore, STRICKEN.
In request 34, the Foleys asked the County to admit that the February 23rd citizen
complaint correctly identified the December 2006 issue of BirdTalk magazine as the location of a
classified ad offering birds to sale at www.disostede.com with a specified telephone number. The
County admitted that the citizen complaint correctly identified BirdTalk Magazine as the location
of the classified ad but indicated that it was without knowledge whether the December issue
contained such a classified ad because the Foleys’ did not produce the December 2006 edition of
BirdTalk magazine in discovery. This explanation is sufficient to comply with Rule 36(a)(4).
Accordingly, the motion is DENIED as to request 34.

-8-

In request 36, the Foleys asked the County to admit that www.diostede.com “identified the
enterprise it promoted as El Jardin Diostede,” and in request 37, the Foleys asked the County to
admit that the website claims that El Jardin Diostede raised more Collared aracari than anyone,
anywhere. The County confusingly admitted, denied and stated it was without knowledge of
matters in the requests and matters not in the requests. It also needlessly quibbled about the
definition of the word “enterprise,” which dispute should have been resolved in the Rule 3.01(g)
conference. Accordingly, the motion is GRANTED as to requests 36 and 37. It is ORDERED
that, on or before June 13, 2013, the County shall serve an amended response directed to requests
36 and 37 as written, which amended response must comply with Rule 36(a)(4).
In request 40, the Foleys asked the County to admit that the website www.diostede.com
“featured” a particular telephone number. The County denied the request, with the following
clarification: “The above-page included the listed telephone number adjacent to David Foley’s
name, not the name of El Jardin Diostede.” The qualification is nonsensical and is inconsistent
with the County’s response to the motion indicating that it denied the request because the
telephone number was not “featured” on the website. See Doc. No. 253 at 9. Accordingly, the
motion is GRANTED. It is ORDERED that, on or before June 13, 2013, the County shall serve
an amended response to request 40.
In request 52, the Foleys asked the County to admit that Inspector Smith had access to the
internet in his Code Enforcement vehicle. The County denied that Smith had such access in 2007.
The request is vague because it did not state the time frame of the request. Accordingly, the
motion is DENIED as to request 52.

-9-

In request 53, the Foleys asked the County to admit that Inspector Smith had access to the
website www.diostede.com from the offices of Orange County Code Enforcement. Doc. No. 244
at 22. In an amended response to this request, the County admitted that Inspector Smith had
internet access at the offices of Orange County Code Enforcement, denied that he could access the
specified website from his computer, and denied that he did access the specified website. Doc.
No. 253 at 10. This response fairly meets the request. Therefore, the motion is DENIED as to
request 53.
In request 57, the Foleys asked the County to admit that a February 23rd citizen complaint
establishes that the Foleys were engaged in commercial aviculture. The County denied the request
and stated, in an amended answer, that a complaint is insufficient to establish the requested
admission. Doc. No. 244 at 23; Doc. No. 253 at 11. The response fairly meets the request.
Therefore, the motion is DENIED as to request 57.
In requests 58, 59 and 60, the Foleys asked the County to admit that a classified ad in the
December 2006 issue of BirdTalk Magazine, the website www.diostede.com, and a sales
agreement on that website established that activities reported in the February 23rd complaint were
commercial aviculture. The County denied the requests with the explanation that the classified
ad, the website and the sales agreement do not establish “that activities occurring at the property
are in violation of the Orange County zoning code and constitute commercial aviculture.” Doc.
No. 244 at 24-25. In response to the Foley’s motion, the County states that it considered more
than one piece of evidence in deciding whether the Foleys’ activities were commercial aviculture.
Doc. No. 253 at 11. The County was not asked to admit what it considered; it was asked to admit

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whether individual items are sufficient to establish that the Foleys were engaged in commercial
aviculture as reported in the February 23rd complaint. As such, the County’s response does not
fairly address the requests. Therefore, the motion is GRANTED as to requests 58, 59 and 60. It
is ORDERED that, on or before June 13, 2013, the County shall serve an amended response to
requests 58, 59 and 60.
The County admitted in part and denied in part requests 64 and 73. The parts of the
requests admitted and those denied are clearly stated. Therefore, the motion is DENIED as to
requests 64 and 73.
In request 75, the Foleys asked the County to admit “that at no time during the February
28th visit did Inspector Smith show David Foley the February 23rd complaint.” The County
denied the request with a qualification that “[t]he complaint was available for viewing.” Doc. No.
244 at 32. The qualification of the denial does not fairly meet the request because is neither
admits or denies whether Smith showed David Foley the complaint on the day specified.
Therefore, the motion is GRANTED as to request 75. It is ORDERED that, on or before June
13, 2013, the County shall serve an amended response to request 75.
In requests 81, 86 and 88, the Foleys asked the County to admit that certain documents and
a sign made no mention of 6 listed subjects. The County admitted the requests with an
explanation that the County Code refers to aviculture (commercial) not non-commercial
aviculture. The County argues that the explanation was necessary because one of the listed
subjects was “a violation of any aviculture or aviary policy or ordinance.” Doc. No. 253 at 12-13.

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Because the requests refer to a policy, the explanation was appropriate. Therefore, the motion is
DENIED as to requests 81, 86 and 88.
In request 82, the Foleys asked the County to admit that a quoted portion of the March 1st
notice “described the violation . . .” with certain language. The County admitted that the request
accurately quoted a portion of the Notice of Violation but denied that the entire Notice of
Violation had been quoted. Doc. No. 244 at 82. The County’s response fairly meets the request.
Therefore, the motion is DENIED as to request 82.
In request 89, the Foleys asked the County to admit that on or about March 22, 2007,
Zoning Code Specialist Tarsha Lee met and spoke with David Foley. In an amended response, the
County admitted that Lee is a Zoning Code Specialist, that she met with David Foley on March
27, 2007 and denied that Lee met with David Foley on March 22, 2007. Doc. No. 254 at 1-2. The
response fairly meets the request. Therefore, the motion is DENIED as to request 89.
In an amended response to requests 90, the County admitted the requested information
about the subject of the March 27, 2007 meeting and denied that the meeting occurred on March
22, 2007. The amended response is sufficient. Therefore, the motion is DENIED as to request
90.
In its responses to requests 91, 92, 93, 94, 95, 96, 98, 99, 100, 101, 102, 103, 105, 107,
108, 109, 110, 111, 112, 113, and 139, the County stated that it was “without knowledge” of the
statements made at the meeting, but it did not comply with the requirements of Rule 36(a)(4)
requiring it to state that it has made reasonable inquiry and that the information it knows or can
readily obtain is insufficient to enable it to admit or deny. Therefore, the motion is GRANTED

-12-

as to these requests. It is ORDERED that, on or before June 13, 2013, the County shall serve
amended responses to requests 91, 92, 95, 96, 98, 99, 100, 101, 102, 103, 105, 107, 108, 109, 110,
111, 112, 113, and 139 provide the information required by Rule 36.
The County both admitted and objected to request 116. The admission was not limited to
a specific part of the request. Therefore, the motion is GRANTED as to request 116 and the
objections and qualifications to that request are STRICKEN.
In request 120, the Foleys asked the County to admit “that at the April 18th hearing
Inspector Smith never referred to the Foleys’ structure as an aviary.” Doc. No. 244 at 51. The
County admitted that “the transcript of the hearing before the Code Enforcement Board does not
show that Inspector Smith referred to the structures with the word ‘aviary,’ but denied that it was
unclear that the structures were for birds.” Id. at 52. The qualification of the admission is
inappropriate because it leaves open the possibility that the County will contend that Smith used
the word aviary and the transcription is incomplete. Therefore, the motion is GRANTED as to
request 120. It is ORDERED that, on or before June 13, 2013, the County shall serve an
amended response to request 120.
In request 132, the Foleys asked the County to admit that they could not challenge the
constitutionality of a County aviculture policy because the CEB did not find them to be in
violation of that policy or applicable ordinances. The County denied the request, with the
explanation that the Foleys could have filed any action they wanted to file. Doc. No. 244 at 57.
The response fairly meets the request as worded. Therefore, the motion is DENIED as to request
132.

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In response to requests 134, 135, 136, 137, 138, 148, 153, 155, 159, 160, 161, 164, 191,
192, 211, 212, 243, 246, and 256 the County responded (in whole or in part), “Without
knowledge.” Doc. No. 244 at 58-60, 64-69, 70, 83-84, 89, 101-02, 106-07. As discussed above,
these responses do not satisfy the requirements of Rule 36(a)(4).13 Therefore, the motion is
GRANTED as to requests 134, 135, 136, 137,138, 148, 153, 155, 159, 160, 161, 164, 191, 192,
211, 212, 243, 246, and 256. It is ORDERED that, on or before June 13, 2013, the County shall
serve amended responses to these requests that fully comply with Rule 36.
In requests 157 and 158, the Foleys asked the County to admit that David Foley presented
an “Orange County zoning employee” with constructions plans which were signed by an engineer.
The County objected because the requests did not identify the employee and because the events
were too remote in time. Rule 36 does not require the Foleys to identify the employee. The
events are not too remote in time because they are part of, or lead up to, the events at issue.
Therefore, the motion is GRANTED as to requests 157 and 158. It is ORDERED that, on or
before June 13, 2013, the County shall serve amended responses to requests 157 and 158.
In request 170, the Foleys asked the County to admit that during a specific time period,
Alan Plante waived certain requirement of the Orange County Code. The County denied the
request and stated that Mr. Plante did not waive the requirements. Doc. No. 244 at 75. The
response fairly meets the request. Therefore, the motion is DENIED as to request 170.

13

In its response to the motion, the County attempted to assert objections to this request. Doc.
No. 253 at 22. These objections are untimely and will not be considered.
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In request 171, the Foleys asked the County to admit that “on or about June 25, 2007,
Mitch Gordon revised the May 25th first draft of his Determination [Gordon second draft].” The
County “Admitted that there is a second draft of Mr. Gordon’s letter,” but made no response to
when the draft was prepared. Therefore, the response does not fairly meet the request. Therefore,
the motion is GRANTED as to request 171. It is ORDERED that, on or before June 13, 2013,
the County shall serve an amended response to request 171.
In request 179, the Foleys asked the County to admit that it received an administrative fee
on or about August 5, 2007. The County denied the request with an explanation that the check
was received on the day specified but a receipt was not written until on or about August 15, 2007.
Doc. No. 244 at 80. The explanation does not clarify the denial because it acknowledges a check
was received on the date specified. It is not clear why the date a receipt was issued is material.
Therefore, the motion is GRANTED as to request 179. It is ORDERED that, on or before June
13, 2013, the County shall file an amended response to request 179.
In request 195, the Foleys asked the County to admit that in a September 14 email, Mr.
Relvini told David Foley that he would cancel the Foleys’ hearing and reschedule it. The County
admitted that were was an email communication that addressed the continuance, but denied that
there was a September 14 email. Doc. No. 244 at 85. The Foleys wish to amend the request to
correct the date to September 18, 2007, which would have been a proper subject for resolution
during the Rule 3.01(g) conference. Therefore, the motion is GRANTED to the extent that, on or
before June 13, 2013, the County shall serve an amended answer to request 195 addressing the
request with the amended date of September 18, 2007.

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In requests 197 and 204, the Foleys asked the County to admit that particular documents
were sent by mail on or about particular dates to every property owner within approximately
three hundreds yards of the Foleys’ home. The County admitted the documents were sent by mail
and “otherwise Denied” the requests. Doc. No. 244 at 85, 87. The County’s response to the
motion does not clarify whether the County denies that the particular document was sent to the
described property owners, whether the County denies the date of the mailing, or whether the
County denies the request for some other reason. Doc. No. 253 at 20-21. As such, the denials do
not fairly meet the request. Therefore, the motion is GRANTED as to requests 197 and 204. It is
ORDERED that, on or before June 13, 2013, the County shall serve an amended response to
requests 197 and 204 identifying with specificity what part of the request it admits and what part it
denies.
In request 218, the Foleys asked the County to admit that the Foleys gave certain
documents to members of the BZA before the November 1 hearing. The County objected to the
request as irrelevant. Doc. No. 244 at 91. It is not clear from the Foleys’ response to the
objection why the materials that were given to the members of the BZA are relevant to the matters
in dispute in this case. Therefore, the motion is DENIED as to request 218.
In requests 222, 223 and 224, the Foleys asked the County to admit that Rocco Relvini
represented the Zoning Division and gave quoted testimony at a November 1st hearing. The
County denied that Mr. Relvini presented the Zoning Division because he was not an attorney.
An individual can be a representative of a government agency, department or division, even if
they do not act as an attorney, just as a non-attorney may be a representative of an entity during a

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trial. Therefore, the motion is GRANTED as to requests 222, 223 and 224. It is ORDERED
that, on or before June 13, 2013, the County shall serve an amended response to request 222, 223
and 224.
In request 240, the Foleys asked the County to admit “that on, or about, December 14,
2007, the Foleys, and every property owner within three hundred yards of the Foleys’ home, were
sent by US Mail the BCC’s Public Hearing Notice of the Foleys’ Appeal of the BZA’s
recommendation to approve the Zoning Manager Determination [December 14th Notice].” The
County responded, “Admitted that the notice was sent; Denied as to the distance.” Doc. No. 244
at 100. It is unclear why the County did not admit the request as written and deny only the phrase
“within three hundred yards of the Foleys’ home.” Therefore, the motion is GRANTED as to
request 240. It is ORDERED that, on or before June 13, 2013, the County shall serve an
amended response to request 240 that tracks the language of the request.
In request 258, the Foleys asked the County to admit that Tim Bolding represented the
Zoning Division at the BCC hearing. The County admitted that Mr. Bolding addressed the BCC
but denied that Mr. Bolding was an attorney representing the Zoning Division. Doc. No. 244 at
108. As discussed above, an individual who is not an attorney may represent a government
agency, department or division. If Mr. Bolding was a representative of the Zoning Division, albeit
not an attorney, the County should so state. Therefore, the motion is GRANTED as to request
258. It is ORDERED that, on or before June 13, 2013, the County shall serve an amended
response to request 258.

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In request 260, the Foleys asked that the County admit that Mr. Bolding presented a slide
which read as quoted in the request during the BCC hearing. The County objected to the request
as irrelevant because Mr. Bolding was not a party. Because the County has not indicated whether
Mr. Bolding was acting as its representative in the presentation at the BCC hearing, the reasons
presented for objecting to the request are insufficient to sustain the objection. Therefore, the
motion is GRANTED as to request 260. It is ORDERED that, on or before June 13, 2013, the
County shall serve an amended response to request 260.
In request 261, the Foleys asked the County to admit the text of a code provision. The
County objected as irrelevant because Mr. Bolding is not a party to this case. This response to
request 261 is nonsensical; the request does not mention Mr. Bolding. Therefore, the motion is
GRANTED as to request 261. It is ORDERED that, on or before June 13, 2013, the County
shall serve an amended response to request 261.
Requests to Authenticate Documents.
In request 35, the Foleys essentially ask the County to admit that an exhibit it filed is
authentic. Doc. No. 244 at 14 (“Admit that Dkt 106-5, pg. 16, is a copy of a page from the
website www.diostede.com.”). The County admitted that “the specified page was on the website
on the date that it was printed,” but it did not identify that date and the document does not bear the
date. The County further responded that it was without knowledge of the content on the website
on other dates, which was not a question it was asked. Because the County filed the document
and admitted its authenticity, the qualifications to the admissions are inappropriate. Therefore, the

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motion is GRANTED as to request 35 and the request is deemed to be ADMITTED without
qualification.
In request 44, the Foleys asked the County to admit that a sales agreement at Doc. No.
106-5, pgs 14, 15 was featured on www.diostede.com. The County responded about an
unidentified attachment (rather than referring specifically to Doc. No. 106-5, pages 14 and 15) and
again quibbled about the meaning of terms (in this case “featured”), which dispute should have
been resolved in a good faith conference. Therefore, the motion is GRANTED as to request 44.
It is ORDERED that, on or before June 13, 2013, the County shall serve an amended response to
request 44 that specifically addresses the document found at Doc. No. 106-5, pgs 14, 15
In requests 45, 46, 47 and 48, the Foleys ask the County to admit certain facts contained in
the sales agreement. In request 43, the Foleys defined the “sales agreement” as something found
on www.diostede.com, and in request 44, they identified the “sales agreement” on
www.diostede.com as a document at Dkt 106-5, pgs. 14, 15. Doc. No. 244 at 18-19. The County
admitted requests 45, 46, 47 and 48 in a manner that suggests, but does not clearly state, that the
form Sales Agreement it refers to is the document found at Dkt. No. 106-5, pgs 14, 15. Doc. No.
244 at 20-21. If the County wishes to limit the admission to the sales agreement found at Dkt
106-5, pgs 14, 15, it should explicitly so state, in which case the denial portion of the responses to
these requests is unnecessary. Therefore, the motion is GRANTED as to requests 45, 46, 47 and
48. It is ORDERED that, on or before June 13, 2013, the County shall serve amended responses
to these requests that identify the sales agreement to which the County’s admission applies by
docket number.

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In request 62, the Foleys asked the County to admit that a use table found at Dkt. 210, Ex.
1 is a true and accurate copy. The County denied the request because the document did not show
the zoning classification at the top of each page. Doc. No. 244 at 26. However, the identified
document does have zoning classifications (A-1, A-2, etc.), and the County has previously told the
Court that it could not identify any inaccuracies in Doc. No. 210-1 (Doc. No. 219 at 2).
Therefore, the motion is GRANTED as to request 62. It is ORDERED that, on or before June
13, 2013, the County shall file an amended response admitting or denying the authenticity of the
document without clarification or explanation.
In request 142, the Foleys asked the County, essentially, whether a letter attached as
Exhibit 7 to their Second Amended Complaint, exclusive of attachments, is genuine. The County
denied the request with a number of explanations that address issues not raised in the request.
Doc. No. 244 at 60. Therefore, the motion is GRANTED as to request 142. It is ORDERED
that the County shall construe request 142 as a request to admit the authenticity of the referenced
document and, on or before June 13, 2013, serve an amended response to that request.
In request 143, the Foleys asked the County to admit that their request for a zoning
determination included certain attachments. The County denied that both Jennifer and David
Foley made the request and admitted that the request referenced and attached the described
documents. The response fairly met the request. Therefore, the motion is DENIED as to request
143.
In request 144, the Foleys asked the County to admit that Tara Gould drafted a specifically
identified memorandum of law on or about May 21, 2007. The County admitted that there is a

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memorandum identified from Ms. Gould dated May 21, 2007, but denied that the memorandum
was drafted on May 21, 2007. The County’s response does not fairly meet the request because it
does not admit the specific memorandum at issue and the request asked only whether the
memorandum was drafted “on or about” May 21, 2007. Therefore, the motion is GRANTED as
to request 144. It is ORDERED that, on or before June 13, 2013, the County shall serve an
amended response to request 144.
The County admitted request 145, which asked it to authenticate the Gould memorandum,
then proceeded to complain that the identified document “has overlapping and duplicate text,
which was not present in the original memorandum.” Doc. No. 244 at 63. The document is either
authentic or it is not. Therefore, the motion is GRANTED as to request 145. It is ORDERED
that, on or before June 30, 2013, the County shall serve an amended response to request 145.
In requests 154, 183, 194, 196, 214, 231 and 236, the Foleys asked the County to
authenticate documents that they identified by exhibit number. The County denied request 154
because the document with the specified date was not found at the specified exhibit number. Doc.
No. 244 at 66. The County admitted requests 183, 194, 196, 214, 231 and 236 in part but denied
that the documents were identified by an exhibit number. Id. at 81, 84, 85, 90, 96, 99. These
disputes should have been resolved by the parties in the Rule 3.01(g) conference. The paper
copies of the documents filed with the Court, which the Foleys certified that they served on the
County, contain exhibit numbers. Further, as to request 154, the referenced exhibit clearly
discloses the typographical error in the request as pointed out by the Foleys in their amendment to
request 154. See Doc. No. 244 at 66; Doc. No. 166 at 43 (A June 4, 2007 email begins on about

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the middle of the page).14 Therefore, the motion is GRANTED as to request 154, as amended to
correct the date to June 4, and requests 183, 194, 196, 214, 231 and 236. It is ORDERED that, on
or before June 13, 2013, the County shall serve an amended response to request 154, as amended,
and to requests 183, 194, 196, 214, 231, and 236.
In requests 172 and 176, the Foleys asked the County to authenticate documents attached
as exhibits to the Second Amended Complaint. The County admitted the documents were
attached but denied that they were marked with exhibit numbers. The paper copy of the exhibits
on file with the Clerk of Court, copies of which the Foleys certify that they served on the County,
identify the exhibits by number.15 Therefore, the motion is GRANTED to the extent that the
County shall review the paper copies of the exhibits and, on or before June 13, 2013, serve an
amended response to requests 172 and 176 without qualification.
In request 219, the Foleys asked the County to admit the authenticity of a Letter of
Rebuttal attached to the request as Exhibit 2. The County responded, “Admitted that the Plaintiffs
transmitted a letter of rebuttal. Denied that the letter attached to the Second Amended complaint
was signed.” Doc. No. 244 at 92. The response does not fairly meet the request in that it does not
even refer to Exhibit 2 to the requests for admissions. Therefore, the motion is GRANTED as to
request 219. It is ORDERED that, on or before June 13, 2013, the County shall serve an
amended response to request 219.

14

The documents filed with the Clerk’s office in paper form identified each exhibit number.

15

In its filings, the County has been able to identify the exhibit numbers of attachments to the
Second Amended Complaint. See, e.g., Doc. No. 175 ¶ 1.
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Objections to Requests Seeking Admissions of Questions of Law.
In requests 65, 67 and 68, the Foleys asked the County to admit the language of certain
Florida Statutes. The County objected to these requests as beyond the scope of Rule 36 while,
curiously, denying other requests involving pure questions of law (see, e.g., request 68). Rule 36
does not provide for admissions as to pure questions of law, such as the language of a statute.
Therefore, the motion is DENIED as to requests 65, 67, and 68.
In request 268, the Foleys asked the County to admit that they could not challenge the
constitutionality of the BCC decision on certiorari review because the law does not permit such
challenges. The County denied the response with qualifications, including that the request called
for admission of a pure question of law. Doc. No. 244 at 114. In its response to the motion,
however, the County argued that the request was inaccurate but did not explain why. Doc. No.
253 ¶ 139. It is, therefore, unclear how the County wishes to qualify its denial of this request.
Therefore, the motion is GRANTED as to request 268. It is ORDERED that, on or before June
13, 2013, the County shall serve an amended response to request 268.
Relevance Objections.
Requests for admission are limited to information that is otherwise discoverable.
Therefore, objections that requests must be relevant are proper.
In request 127, 128, 129, 130, and 131, the Foleys asked the County to admit that, based
on the failure of the County to allege that they violated a policy or ordinance, the Foleys had no
recourse under the law to take various legal actions. The County generally objected to these
requests as irrelevant, argumentative, speculative and seeking a pure conclusion of law. The

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objections are valid. The requests are based, at least in part, on speculation of how the law would
have been applied if the facts present here were different. A party is not required to speculate
about questions of mixed fact and law if the underlying fact has not been admitted. Therefore, the
motion is DENIED as to requests 127, 128, 129, 130, and 131.
In request 133, the Foleys asked the County to admit that “on or about April 22, 2007, the
assistant of Commissioner Fernandez received a hand-delivered letter from the Foleys asking
Commissioner Fernandez to help the Foleys with their request for a Zoning Manager’s
Determination . . . .” The County objected to the request as irrelevant. The Foleys present several
arguments in response, but none of these arguments address how their delivery of a letter to
Commissioner Fernandez is of consequence or would make any fact in dispute in this case more
or less probable. See Fed. R. Evid. 401. Therefore, the motion is DENIED as to request 133.
In request 226, the Foleys asked the County to admit that BZA chairman Frank Detoma
made quoted statements at a November 1, hearing. The County objected to the request as
irrelevant. Because the quoted statement was allegedly made by an advisor to the County and
pertains to the matters directly in dispute, the relevance objection is not well taken. Therefore, the
motion is GRANTED. It is ORDERED that, on or before June 13, 2013, the County shall serve
an amended response to request 226.
In request 227, the Foleys asked the County to admit that, during the November 1 hearing,
neither Asima Azam nor Scott Richman attempted to correct or disagree with any statement made
by Mr. Relvini, Gould, or Detoma. The County objected to the request as irrelevant. The Foleys

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response to the objection does not explain why the requested information is relevant to an issue in
this case. Therefore, the motion is DENIED as to request 227.
In request 245, the Foleys asked the County to admit that on about January 8, 2008,
Commissioner Fernandez asked for the Foleys’ hearing to be rescheduled so that she could visit
the Foleys’ home. The County objected to the request as irrelevant. Doc. No. 244 at 101. The
Foleys’ response to the objection does not establish that the request is relevant. Therefore, the
motion is DENIED as to request 245.
In request 248, the Foleys asked the County to admit that on about February 18, 2008,
Commissioners Jacobs, Russell, and Segal met separately with David Foley to dismiss the Foleys’
upcoming appeal of the BZA’s recommendation to approve the Zoning Manager determination.
In requests 249, 250, 251, 252 and 254, the Foleys asked the County to admit statements made to
them by the Commissioners and Mr. Rocco Relvini on about February 18, 2008.

In request 257,

the Foleys asked the County to admit that David Foley and Commissioner Jacobs had discussed a
draft ordinance. The County objected to these requests as irrelevant. Doc. No. 244 at 103-05,
107.16 During a recent discovery hearing, the Court overruled the County’s arguments that
statements made by Commissioners to the Foleys about the matters in dispute were not relevant so
long as the civil right claim remains viable. Therefore, the motion is GRANTED as to requests
248, 249, 250, 251, 252, 254 and 257. It is ORDERED that, on or before June 13, 2013, the
County shall serve amended responses to these requests.

16

In an amended response, the County states that it was without knowledge as to request 251
regarding statements made by Mr. Relvini. Doc. No. 253 at 23. This amended response does not
comply with the requirements of Rule 36(a)(4).
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In request 255, the Foleys asked the County to admit that the Foleys “had their hearing”
before the BCC on about February 19, 2008. The County admitted the request with the
explanation that a hearing was held on the specified date on the appeal of the zoning
determination. This response fairly meets the request. Therefore, the motion is DENIED as to
request 255.
In requests 262, 264, and 265, the Foleys asked the County to admit the positions taken by
the Commissioners at the BCC hearing. The County objected to the requests as irrelevant. The
positions of the County Commissioners may be relevant to the civil rights claim that remains
pending as to the County. Therefore, the motion is GRANTED as to requests 262, 264 and 265.
It is ORDERED that, on or before June 13, 2013, the County shall serve amended responses to
these requests.
In request 263, the Foleys asked the County to admit that at the time of the BCC hearing
Commissioner Jacobs was the President of FAC. The County objected to the request as irrelevant.
Doc. No. 244 at 110. At a hearing before the undersigned, the Court accepted the Foleys’
argument that Commissioner Jacobs’s role with the Florida Association of Counties (“FAC”) may
be relevant to their civil rights claim. Therefore, the motion is GRANTED as to request 263. It
is ORDERED that, on or before June 13, 2013, the County shall serve an amended response to
request 263.
In request 266, the Foleys asked the County to admit that, during the BCC hearing, Mayor
Crotty left his seat to take a call on his cell phone. The County objected to the request as
irrelevant. The Foleys have argued before the undersigned that Mayor Crotty’s receipt of a call

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during the hearing will support their civil rights claim. Therefore, the motion is DENIED as to
request 266. It is ORDERED that, on or before June 13, 2013, the County shall serve an
amended response to this request.
DONE and ORDERED in Orlando, Florida on June 10, 2013.

Karla R. Spaulding
KARLA R. SPAULDING
UNITED STATES MAGISTRATE JUDGE

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