Zarbo v. Tractor Supply Company
Filing
37
ORDER granting 35 Amended Motion for Relief from Order and Motion to Reopen Case. The Clerk of Court is DIRECTED to vacate 31 Court Order dismissing the case without prejudice and thereafter reopen the file. Plaintiff is cautioned that future violation(s) of the Court's Orders may result in dismissal of the case with prejudice without further notice. Plaintiff shall file a notice of mediation on or before October 30, 2024. See Order for further details. Signed by Judge Paul G. Byron on 10/23/2024. (REG)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DONNA ZARBO,
Plaintiff,
v.
Case No: 6:24-cv-1439-PGB-DCI
TRACTOR SUPPLY COMPANY,
Defendant.
/
ORDER
This cause comes before the Court upon Plaintiff Donna Zarbo’s
(“Plaintiff”) Amended Motion for Relief from Order and Motion to Reopen Case.
(Doc. 35 (the “Amended Motion”)). The Court does not require additional
briefing from Defendant Tractor Supply Company (“Defendant”) regarding the
issues raised in the Amended Motion. 1 Upon careful consideration, the Motion is
due to be granted.
1
Plaintiff filed her initial Motion for Relief from Order and Motion to Reopen Case (Doc. 33
(the “Initial Motion”)) on October 18, 2024. Defendant filed its Response in Partial Support
of the Initial Motion (Doc. 34 (the “Response”)) three days later. In the Response, Defendant
noted Plaintiff’s Initial Motion failed to contain a Local Rule 3.01(g) Certification. (Id. at pp.
11–12 n.1). Defendant asked the Court not to deny Plaintiff’s requested relief on this basis,
explaining that the parties had conferred that same morning and that Plaintiff would be filing
an amended motion with the required certification “shortly.” (Id.). The Amended Motion was
filed later the same day and appears to be identical to the Initial Motion, aside from Plaintiff’s
inclusion of the required Local Rule 3.01(g) Certification. (Compare Doc. 33 with Doc. 35).
Consequently, Defendant has already briefed its position regarding the relief requested in the
Amended Motion, and the Court thus relies upon Defendant’s Response to the Initial Motion
in ruling here.
I.
BACKGROUND
This case has now twice been dismissed for Plaintiff’s failure to comply with
Orders of this Court. Plaintiff’s claims were initially brought in state court and were
removed to this Court in 6:23-cv-678-PGB-RMN (the “2023 case”). In the 2023
case, the Court entered multiple Orders to Show Cause directed to Plaintiff for
Plaintiff’s failure to comply with the Court’s Orders. (See Doc. 34, pp. 2–3). The
2023 case was ultimately dismissed without prejudice after Plaintiff failed to
timely respond to the third Order to Show Cause, which addressed Plaintiff’s
failure to file a notice of mediation in compliance with the Case Management and
Scheduling Order (“CMSO”). (See id.).
Plaintiff re-filed Plaintiff’s lawsuit in state court and, on August 5, 2024,
Defendant again removed the case to this Court, giving rise to the instant action.
(Doc. 1). The next day, the case was reassigned to the undersigned Judge. (Doc. 8).
The Court has since issued two Orders to Show Cause regarding Plaintiff’s
violations of the Court’s Orders. (Docs. 14, 28). The instant case was dismissed
without prejudice after Plaintiff once again failed to timely respond to the Court’s
second Order to Show Cause (Doc. 28 (the “Final Order to Show Cause)),
which addressed Plaintiff’s failure to file a notice of mediation in compliance with
the CMSO. (Doc. 31 (the “Dismissal Order”)).
Now, Plaintiff asks the Court to reconsider its Dismissal Order and reopen
the case. (Doc. 35). In its Response, Defendant also requests that the Court reopen
2
the case, but additionally asks that the Court issue a “strong warning” emphasizing
that any future dismissal will be with prejudice. 2 (Doc. 34, p. 11).
II.
LEGAL STANDARD
A court’s reconsideration of a prior order is an “extraordinary remedy” that
should be used “sparingly.” Taylor Woodrow Constr. Corp. v. Sarasota/Manatee
Airport Auth., 814 F. Supp. 1072, 1072–73 (M.D. Fla. 1993); accord Griffin v.
Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984). Such a motion typically
arises under Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure.
Rule 60(b) allows a court to relieve a party from an order or judgment on
the following grounds: “(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence . . . ; (3) fraud, misrepresentation or misconduct by
an opposing party; (4) the judgment is void; [or] (5) the judgment has been
satisfied, released, or discharged.” FED. R. CIV. P. 60(b)(1)–(5). In addition, acting
as a catchall, a party may file a motion “within a reasonable time” after the
challenged judgment for “any other reason that justifies relief.” FED. R. CIV. P.
60(b)(6).
III.
DISCUSSION
In the Amended Motion, Plaintiff argues that Plaintiff’s failure to timely
respond to the Court’s final Order to Show Cause was the result of excusable
neglect. (Doc. 35, pp. 2–3). Defendant agrees. (Doc. 34, p. 1).
2
To the extent that Defendant also asks the Court to warn Plaintiff that any subsequent
dismissal of this case will involve “serious monetary sanctions issued against Plaintiff,” the
Court declines to issue such a warning at this time. (Doc. 34, p. 11).
3
While both parties raise Plaintiff’s counsel’s inexperience in federal court in
support of excusable neglect, this argument fails. (Doc. 35, p. 4; Doc. 34, pp. 1–2).
The context here is important, as the 2023 case was previously dismissed on
identical grounds as the instant case. Thus, despite Plaintiff’s counsel’s general
inexperience in federal court, Plaintiff’s counsel should be exceedingly familiar
with the Court’s expectations regarding filing notices of mediation.
Nonetheless, the Court does find excusable neglect here. See FED. R. CIV. P.
60(b)(1). Plaintiff attaches e-mails to the Amended Motion demonstrating that,
within four days of the Court’s entry of the Final Order to Show Cause, Plaintiff
had cleared a mediation date with both Defendant and the mediator. 3 (Doc. 35, pp.
9–19). Plaintiff was awaiting confirmation that the mediator had completed a
conflict check prior to Plaintiff filing a notice of mediation with the Court. (Id. at
pp. 2–3). However, Plaintiff’s counsel failed to follow up with the mediator as
required to timely respond to the Court’s Final Order to Show Cause. (Id. at p. 3).
During this time, Hurricane Milton arrived in Florida, which caused Plaintiff’s
counsel to lose power for multiple days and prevented Plaintiff’s legal team from
entering their office building. (Id.). According to Plaintiff’s counsel, Hurricane
Milton caused Plaintiff’s counsel and staff to become “behind on scheduling,
3
The Court advises Plaintiff that, in all future motions containing exhibits, such exhibits shall
be filed as separate attachments, rather than in the body of the motion. Including exhibits
within the body of a motion makes it difficult for the Court to review and cite to the motion
and its exhibits. This practice can also cause a motion to exceed the page limits set forth in
Local Rule 3.01(a).
4
particularly due to the changes in schedules throughout the weeks of the storms.” 4
(Id.).
Under the circumstances, the Court finds that Plaintiff’s failure to timely
respond to the Court’s Final Order to Show Cause was the result of excusable
neglect. See FED. R. CIV. P. 60(b)(1). Accordingly, the Amended Motion is due to
be granted. However, as set forth above, Plaintiff has demonstrated a pattern of
noncompliance with the Court’s Orders. (E.g., Docs. 14, 28, 31). Consequently, the
Court cautions Plaintiff that future violation(s) of the Court’s Orders may result in
dismissal of the case with prejudice without further notice.
IV.
CONCLUSION
As a result of the foregoing, it is ORDERED and ADJUDGED that:
1.
Plaintiff’s Amended Motion for Relief from Order and Motion to
Reopen Case (Doc. 35) is GRANTED.
2.
The Clerk of Court is DIRECTED to vacate the Court’s Order
dismissing the case without prejudice (Doc. 31) and thereafter reopen
the file.
3.
Plaintiff is cautioned that future violation(s) of the Court’s Orders may
result in dismissal of the case with prejudice without further notice.
4.
Plaintiff shall file a notice of mediation on or before October 30,
2024.
4
The Amended Motion implies the advent of additional hurricane(s) during the relevant time
period. (Doc. 35, p. 3). The Court notes that Hurricane Helene impacted central Florida in the
days preceding the issuance of the Final Order to Show Cause.
5
DONE AND ORDERED in Orlando, Florida on October 23, 2024.
Copies furnished to:
Counsel of Record
Unrepresented Parties
6
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