Dodd v. Matthews

Filing 38

ORDER: Defendants are directed to serve a copy of their answer and affirmative defenses 25 upon Plaintiff on or before March 15, 2013, in accordance with Rule 5(b), Fed. R. Civ. P. The parties, including all unrepresented parties, are directed t o confer on or before March 22, 2013, for the purpose of preparing and filing a joint Case Management Report as prescribed by Local Rule 3.05, and shall file their joint Case Management Report within 14 days after the meeting. For the convenience of the parties, the Court will allow the parties to conduct the conference telephonically. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 3/8/2013. (MEB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BRIAN DODD,
Plaintiff,
v.

Case No.

8:12-cv-2054-T-33TGW

KELLY MATTHEWS, ET AL.,
Defendants.
___________________________/
ORDER
This matter comes before the Court upon consideration of
pro se Plaintiff Brian Dodd’s response to the Court’s February
21, 2013, Order to Show Cause why this case should not be
dismissed for lack of prosecution due to the parties’ failure
to file a Case Management Report within the time prescribed in
Local Rule 3.05.

(Doc. # 36).

In his response, Plaintiff states that his failure to
timely submit a Case Management Report “was not the result of
delay or failure to prosecute by the Plaintiff.” (Doc. # 37 at
¶ 1). Instead, Plaintiff appears to argue that his failure to
file a Case Management Report was caused by Defendants’
failure and refusal to serve him with a copy of their answer
and

affirmative

defenses

(Doc.

#

25),

which

were

filed

electronically via the Court’s CM/ECF system on December 11,

2012.1

Plaintiff contends that he requested Defendants’

counsel to provide him with a copy of Defendants’ answer, but
Defendants’ counsel refused, stating that the Court sent
Plaintiff a copy of the answer via email.

(Doc. # 37 at ¶ 6).

Plaintiff has attached to his response an email exchange with
Defendants’ counsel that corroborates his assertion. (Doc. #
37-1 at 2).

Specifically, counsel’s email states that “my

office is not responsible to be (sic) sending you faxes or
emails with our answer.

The court sent you our answer on the

CMECF system and if you lost it we should not have to pay for
your negligence.” Id.
Before discussing the Case Management Report requirement,
the Court takes this opportunity to advise the parties, and
Defendants’
issue.

counsel

in

particular,

regarding

the

service

As Plaintiff is proceeding in this action pro se, he

is not authorized to file electronically via the Court’s
CM/ECF

system.

Indeed,

the

Middle

District’s

CM/ECF

Administrative Procedures provide that “[u]nless authorized to

1

Defendants Kelly Matthews, Alex Layne, Webdiva
Technologies, LLC, Christopher Oroza, Andrew Penczner, and
Human Element Productions, LLC, who filed a joint answer to
the complaint and who are all represented by the same counsel,
are herein referred to collectively as “Defendants.”
Unrepresented Defendants Thomas Dodd and Mary Anne Ford are
referred to by name.
2

file electronically, a pro se filer shall file any pleading
and other paper in paper format.” CM/ECF Admin. P. Sect.
III(C), M.D. Fla. (Mar. 15, 2007).

Copies of the Court’s

orders and notices are provided via mail to pro se parties by
the Clerk of Court.

However, the Clerk does not mail copies

of any papers filed by the parties.

Rather, the CM/ECF

Administrative Procedures instruct that all electronic filers
“must serve in accordance with the Federal Rules of Civil and
Criminal Procedure a paper copy of any electronically filed
document on a party not registered to file electronically.”
Id. at Sect. II(B)(3).
Thus, despite Defendants’ assertion to the contrary,
Defendants are in fact required to serve upon Plaintiff a copy
of all documents they file electronically in CM/ECF, including
their answer and affirmative defenses filed on December 11,
2012.2

Accordingly, Defendants are directed to serve a copy

of their answer and affirmative defenses upon Plaintiff on or
before March 15, 2013, in accordance with Rule 5(b), Fed. R.
Civ. P.
Regarding

the

Case

Management

2

Report,

Local

Rule

Federal Rule of Civil Procedure 5(b) prescribes the
methods by which service may be effected.
3

3.05(c)(2)(B) provides that:
Counsel and any unrepresented party shall meet
within 60 days after service of the complaint upon
any defendant, or the first appearance of any
defendant, regardless of the pendency of any
undecided motions, for the purpose of preparing and
filing a Case Management Report. . . . The Case
Management Report must be filed within 14 days
after the meeting.
Thus, pursuant to this rule, the requirement to file a
Case Management Report and the deadline for doing so are not
dependent on whether or not the Defendants have filed or
served

an

answer,

but,

rather,

are

triggered

when

any

Defendant is served with the complaint or first appears in the
case.

Therefore, Defendants’ failure to serve Plaintiff with

a copy of their answer in this case does not excuse or obviate
the requirement for the parties to file a Case Management
Report.
Accordingly, the parties are directed to confer on or
before March 22, 2013, for the purpose of preparing and filing
a joint Case Management Report as prescribed by Local Rule
3.05, and shall file their joint Case Management Report within
14 days after the meeting.

For the convenience of the

parties, the Court will allow the parties to conduct the
conference telephonically.
Additionally, the Court notes that two unrepresented

4

Defendants, Thomas Dodd and Mary Anne Ford, have made an
appearance in this case by filing answers to the complaint.
(Doc. ## 15, 35).

Plaintiff’s response to the Court’s Order

to Show Cause requests the Court to “compel Dodd to convene
with

Plaintiff

to

complete

the

CMR”

(Doc.

#

37

at

3).

Plaintiff attaches email correspondence from Plaintiff to Dodd
referencing Plaintiff’s attempts to contact Dodd by “mail,
email, and by phone to complete the CMR.” (Doc. # 37-1 at 31).
As

stated

above,

Local

Rule

3.05

requires

all

unrepresented parties to participate in the Case Management
Conference.

Thus,

if

Thomas

Dodd

intends

to

continue

defending this action, he is directed to participate in the
Case Management Conference. Pursuant to Federal Rule of Civil
Procedure 16(f), failure to do so may result in the imposition
of sanctions, including the striking of Dodd’s answer from the
record, after which Dodd would be poised for the entry of
default against him.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendants are directed to serve a copy of their answer
and affirmative defenses (Doc. # 25) upon Plaintiff on or
before March 15, 2013, in accordance with Rule 5(b), Fed.
R. Civ. P.
5

(2)

The parties, including all unrepresented parties, are
directed to confer on or before March 22, 2013, for the
purpose of preparing and filing a joint Case Management
Report as prescribed by Local Rule 3.05, and shall file
their joint Case Management Report within 14 days after
the meeting.

For the convenience of the parties, the

Court will allow the parties to conduct the conference
telephonically.
DONE and ORDERED in Chambers in Tampa, Florida, this 8th
day of March, 2013.

Copies:
All Counsel and Parties of Record

6