McKee v. Montiel et al

Filing 97

ORDER denying 88 Plaintiff's Amended Motion for Leave to File Response to Defendant Mina's Motion for Protective Order and Motion for Reconsideration of Protective Order. Signed by Magistrate Judge Embry J. Kidd on 11/14/2023. (RMN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MICHELIN D. MCKEE,
Plaintiff,
v.

Case No: 6:21-cv-1085-CEM-EJK

JAMES MONTIEL and JOHN W.
MINA,
Defendants.
ORDER
This cause comes before the Court on Plaintiff’s Amended Motion for Leave to
File Response to Defendant Mina’s Motion for Protective Order and Motion for
Reconsideration of Protective Order (the “Motion for Reconsideration”) (Doc. 88),
filed October 18, 2023. Defendant Mina responded in opposition on October 31, 2023.
(Doc. 92.) Upon consideration, the Motion for Reconsideration is due to be denied.
Plaintiff, Michelin McKee, as personal representative of Salaythis Melvin’s
estate, initiated this action on June 30, 2021. (Doc. 1.) Plaintiff’s operative Amended
Complaint seeks redress against one Orange County Sheriff Deputy 1 and Orange
County Sherriff John W. Mina, for the shooting death of Mr. Melvin. (Doc. 46.) On
October 2, 2023, Defendant Mena filed a time sensitive motion for a protective order
and stay of Defendant Mina’s deposition (the “Motion”). (Doc. 80.) The undersigned
1

On November 2 2023, Plaintiff and Defendants Eddie Garcia, Robert Fisher, Eric
Wheeler, William Rambeau, Joshua Moore, and Cory Heller stipulated to the
dismissal of the individual claims against these Defendants with prejudice. (Doc. 94.)

denied the Motion without prejudice because it failed to comply with the Order on
Discovery Motions (Doc. 6). (Doc. 81.) The following day, Defendant Mina renewed
the motion for protective order (the “Renewed Motion”). (Doc. 82.) The undersigned
then took the Renewed Motion under advisement and stayed the deposition pending
resolution of the Renewed Motion. (Doc. 83.) The Court also set the Renewed Motion
for a hearing on October 17, 2023. (Doc. 84.) On October 11, 2023, the undersigned
granted the Renewed Motion as unopposed, because Plaintiff had not filed a timely
response in opposition to it.2 (Doc. 85.) Plaintiff now asks the Court to reconsider that
order and allow her to respond to the Renewed Motion, which Defendant Mina
opposes. (Docs. 88, 92.)
Reconsideration of a court order is an extraordinary remedy and power that
should be used sparingly. Taylor Woodrow Constr. Corp. v. Sarasota/Manatee Airport
Auth., 814 F. Supp. 1072, 1072 (M.D. Fla. 1993). “Court opinions are ‘not intended
as mere first drafts, subject to revision and reconsideration at a litigant’s pleasure.’”
Hope v. Sec’y, Dep’t of Corr., No. 6:16-cv-2014-Orl-28GJK, 2018 WL 10669778, at *1
(M.D. Fla. Feb. 8, 2018) (quoting Quaker Alloy Casting Co. v. Gulfco Indus. Inc., 123
F.R.D. 282, 288 (N.D. Ill. 1988)). To that end, courts have “delineated three major
grounds justifying reconsideration: (1) an intervening change in the controlling law;
(2) the availability of new evidence; (3) the need to correct clear error or prevent

2

Pursuant to the Order on Discovery Motions, which the Court specifically referenced
in its October 3, 2023 Order (Doc. 81), Plaintiff’s response to the Renewed Motion
was due October 9, 2023. (See Doc. 6.)

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manifest injustice.” Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D.
Fla. 1994).
Plaintiff spends the bulk of her Motion for Reconsideration attempting to
explain her counsel’s myriad reasons for missing the deadline to respond to the
Renewed Motion. (Doc. 88.) However, the Motion for Reconsideration does not
address any of the three available grounds for reconsideration. The Motion for
Reconsideration presents no intervening change in controlling law; cites no new
evidence; and presents no grounds to find that the Court’s order was clearly erroneous
or manifestly unjust. Excusable neglect, in itself, is an insufficient reason to reconsider
a prior order. Regardless, the undersigned does not find Plaintiff’s counsel’s neglect to
be excusable in light of the Court’s direct reference to the Order on Discovery Motions
in its order denying Defendant’s initial motion for a protective order, and in light of
the prior extensions of time that the Court has granted in this case as an
accommodation to counsel’s personal and professional problems.
The Motion for Reconsideration does make a fleeting argument that Plaintiff
will be prejudiced if she not allowed to depose Defendant Mina prior to trial. (Doc. 88
at 10.) However, there is no requirement that a witness be deposed prior to trial, so the
Court’s order, in itself, does not foreclose Plaintiff from calling Defendant Mina at
trial. 3 “For reasons of policy, courts and litigants cannot be repeatedly called upon to

3

Discovery closed on November 2, 2023 (Doc. 78), and has been extended through
November 30, 2023, only to complete the deposition of Steve Rundell (Doc. 91).
Dispositive motions are due on December 4, 2023. (Doc. 78.)

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backtrack through the paths of litigation . . . .” Sussman, 153 F.R.D. at 694. For these
reasons, the Court finds no basis to reconsider its prior Order.
Accordingly, it is ORDERED that Plaintiff’s Amended Motion for Leave to
File Response to Defendant Mina’s Motion for Protective Order and Motion for
Reconsideration of Protective Order (Doc. 88) is DENIED.
DONE and ORDERED in Orlando, Florida on November 14, 2023.

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