Lawrence v. United States of America, The Internal Revenue Service
Filing
81
ORDER denying 37 Motion to Vacate ; denying 39 Motion to review Magistrate Judge order; denying without prejudice 41 Motion for Entry of Order Deeming Matters Admitted; denying 29 APPEAL of Magistrate Judge ruling to District Court (Motion to Vacate); denying 29 APPEAL of Magistrate Judge ruling to District Court (Motion to Vacate); affirming rulings of Magistrate Judge. Signed by Judge Elizabeth A. Kovachevich on 9/24/2013. (JM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WALTER J. LAWRENCE,
Plaintiff,
v.
CASE NO. 8:11-CV-2735-T-17AEP
UNITED STATES OF
AMERICA, etc.,
Defendant.
/
ORDER
This cause is before the Court on:
Dkt. 29
Appeal of Magistrate Judge Ruling (Dkt. 28)
Dkt.
Dkt.
Dkt.
Dkt.
Response
Motion to Vacate Order (Dkt. 34)
Response
Motion to Vacate Order (Dkt. 36)
30
37
38
39
Dkt. 41
Motion for Entry of An Order That Matters in
Plaintiffs Fourth Request For Admissions Are Deemed
Admitted
Dkt. 42
Response
Plaintiff Walter J. Lawrence is proceeding p_ro se in this case. The Court
understands Plaintiffs Complaint to be based on the alleged wrongful collection of
income tax by levying on Plaintiffs pension benefits and Social Security benefits from
1999 to the present. The Court granted leave to Plaintiff Lawrence to file a Second
Amended Complaint which complies with Fed. R. Civ. P. 8(a) and 10(b), and is limited
to twenty pages. (Dkt. 45). Plaintiff filed a Second Amended Complaint (Dkt. 47).
Defendant United States of America has filed a Motion to Dismiss (Dkt. 51), which is
still pending. Defendant moved to stay discovery until the Court rules on Defendant's
Case No. 8:11-CV-2735-T-17AEP
Motion to Dismiss, which Defendant argued may resolve this entire case. (Dkt. 55).
The assigned Magistrate Judge granted Defendant's Motion to Stay Discovery for thirty
days (Dkt. 57). Plaintiff has moved to amend the Second Amended Complaint (Dkt.
56), to vacate the Order granting Stay (Dkt. 61), and to strike Defendant's opposition to
Plaintiffs Motion for Leave to Amend (Dkt. 60). The assigned Magistrate Judge has
stayed discovery until the disposition of Defendant's Motion to Dismiss. (Dkt. 77).
The Court notes that Plaintiff and Defendant held a case management
conference on April 13, 2012, and Plaintiff filed a case management report which is
signed only by Plaintiff (Dkt. 21). The Court has deferred entering a case management
order until the resolution of the potentially dispositive Motion to Dismiss.
I. Standard of Review
Pursuant to 28 U.S.C. § 636(b)(1)(A), Magistrate Judges may decide
non-dispositive motions. Upon objection by a party, the District Court may reconsider
any pretrial matter where it has been shown that the Magistrate Judge's order is "clearly
erroneous or contrary to law." See 28 U.S.C. § 636(b)(1); Massev v. United Transp.
Union. 868 F.Supp. 1385, 1388 (S.D.Ga.1994) (stating that a magistrate judge's order
will be set aside when clearly erroneous or contrary to law), affd 65 F.3d 183 (11th Cir.
1995). In reviewing a discovery order of the magistrate judge, the Court does not
consider de novo arguments of counsel raised and rejected by the magistrate, nor does
it consider additional arguments which do not demonstrate that the decision is clearly
erroneous or contrary to law. Pino v. Prudential Ins. Co. of America. 689 F.Supp. 1358
(E.D.Pa. 1988).
II. Discussion
A. Dkt. 29
Appeal of Magistrate Judge Ruling (Dkt. 28)
2
Case No. 8:11-CV-2735-T-17AEP
Dkt. 30
Response
In the Order (Dkt. 28), the assigned Magistrate Judge denied Plaintiff's Motion to
determine the sufficiency of Defendant's Response to Plaintiffs First Request for
Admissions (Dkt. 25), and denied Plaintiff's Motion for entry ofan orderthat matters are
deemed admitted on the grounds of insufficiency of objections as to Defendant's
general objections (Dkt. 27).
Plaintiff Lawrence has moved "to vacate, strike and hold for naught" the Order
(Dkt. 28) of the assigned Magistrate Judge because Plaintiff has not consented to
proceed before the assigned Magistrate Judge by executing a consent form (AO
85)(Dkt. 29-1).
Local Rule 6.01(b) provides:
The assignment of duties to United States Magistrate Judges by the
judges of the Court may be made by standing orderentered jointly by the
resident judges in any Division of the Court; or by an individual judge, in
any case or cases assigned to him, through written order or oral directive
made or given with respect to such cases.
Local Rule 6.01(c)(18) provides that the duties authorized to be performed by
United States Magistrate Judges, when assigned to them pursuant to subsection (b) of
this rule, include:
(18)
Supervision and determination of all pretrial proceedings
and motions made in civil cases including, without limitation,
rulings upon all procedural and discovery motions, and
conducting pretrial conferences; except that a magistrate
judge (absent a stipulation entered into by all affected
parties)shall not appoint a receiver, issue an injunctive order
Case No. 8:11-CV-2735-T-17AEP
pursuant to Rule 65,Fed.R.Civ.P., enter an order dismissing
or permitting maintenance of a class action pursuant to Rule
23, Fed.R.Civ.P., enter any order granting judgment on the
pleadings or summary judgment in whole or in part pursuant
to Rules 12(c) or 56, Fed.R.Civ.P., enter an order of
involuntary dismissal pursuant to Rule 41(b) or (c),
Fed.R.Civ.P., or enter any other final order or judgment that
would be appealable if entered by a judge of the Court, but
may make recommendations to the Court concerning them.
In the Middle District of Florida, discovery motions in civil cases are referred by
standing order to the assigned Magistrate Judge for disposition.
Plaintiff has not shown that the Order of the assigned Magistrate Judge is clearly
erroneous or contrary to law. The Court therefore denies Plaintiff's Motion to Vacate or
Strike, and affirms the rulings of the assigned Magistrate Judge.
B. Dkt. 37
Dkt. 38
Motion to Vacate Order (Dkt. 34)
Response
Plaintiff Lawrence moves to vacate the Order of the assigned Magistrate Judge
(Dkt. 34) which denied Plaintiffs Motion to Compel (Dkt. 32) because Plaintiff has not
consented to proceed before the assigned Magistrate Judge, as stated above.
The Court incorporates the above authority. Plaintiff has not shown that the
Order of the assigned Magistrate Judge is clearly erroneous or contrary to law. The
Court denies Plaintiff's Motion to Vacate or Strike.
C. Dkt. 39
Dkt. 40
Motion to Vacate Order (Dkt. 36)
Response
Plaintiff Lawrence moves to vacate the endorsed Order of the assigned
Magistrate Judge (Dkt. 36) which denied Plaintiffs Motion (Dkt. 39) for the same
reasons stated in the prior Order (Dkt. 28), because Plaintiff has not consented to
Case No. 8:11-CV-2735-T-17AEP
proceed before the assigned Magistrate Judge, as stated above.
The Court incorporates the above authority. Plaintiff has not shown that the
Order of the assigned Magistrate Judge is clearly erroneous or contrary to law. The
Court denies Plaintiffs Motion to Vacate or Strike.
D. Dkt. 41
Motion for Entry of An Order that Matters in Plaintiff's Fourth Request for
Admissions Are Deemed Admitted on Grounds of Insufficiency of
Dkt. 42
Defendant's Alleged Responses
Response
The assigned Magistrate Judge has previously denied Plaintiff's previous
requests for Orders deeming matters within Plaintiffs Requests for Admissions to be
admitted. At the present time, discovery is stayed. After consideration, the Court
denies Plaintiffs Motion without prejudice. In the event that the stay Order is lifted,
Plaintiff may refile this Motion, which will be referred to the assigned Magistrate Judge
for disposition. Accordingly, it is
ORDERED that Plaintiffs Motions to Vacate or Strike (Dkts. 29, 37, 39) are
denied, and Plaintiffs Motion for Entry of An Order That Matters in Plaintiffs Fourth
Request for Admissions are Deemed Admitted (Dkt. 41) is denied without prejudice.
As to Dkt. 29, the ruling of the Magistrate Judge is affirmed.
Case No. 8:11-CV-2735-T-17AEP
DONE and ORDERED in Chambers, in Tampa, Florida on this
^^cJaTof September, 2013.
Copies to:
All parties and counsel of record
6
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