Pinkston v. University of South Florida Board of Trustees et al
Filing
200
ORDER: Plaintiff Rachel Pinkston's "Motion for Reconsideration and De Novo Review by the Presiding Federal District Court Judge of Order (Doc. No. 173 ) entered by the Presiding Federal District Magistrate Judge" (Doc. # 182 ), filed on May 31, 2016, which the Court construes as an objection filed pursuant to Federal Rule of Civil Procedure 72(a), is overruled. Signed by Judge Virginia M. Hernandez Covington on 6/13/2016. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RACHEL PINKSTON,
Plaintiff,
v.
Case No. 8:15-cv-1724-T-33TBM
UNIVERSITY OF SOUTH FLORIDA
BOARD OF TRUSTEES, et al.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court on Plaintiff Rachel
Pinkston’s “Motion for Reconsideration and De Novo Review by
the Presiding Federal District Court Judge of Order (Doc. No.
[173]) entered by the Presiding Federal District Magistrate
Judge”
(Doc.
#
182),
filed
on
May
31,
2016.
The
Court
construes the Motion as an objection filed pursuant to Federal
Rule of Civil Procedure 72(a). Defendants University of South
Florida Board of Trustees, Randy Larsen, David Merkler, and
Matthew Battistini filed a response in opposition on June 6,
2016. (Doc. # 189). The Court overrules the objection.
I.
Background
Pinkston instituted the pending action on July 24, 2015.
(Doc. # 1). Within approximately two months of discovery
1
formally beginning, the first motions to compel were filed
against Pinkston on December 7, 2015: USF moved to compel
Pinkston to answer its first set of interrogatories and
respond to its first request for production, whereas Larsen,
Merkler, and Battistini moved to compel complete Rule 26
disclosures. (Doc. ## 34-35).
The Honorable Thomas B. McCoun
III, United States Magistrate Judge, granted USF’s motion and
granted Larsen, Merkler, and Battistini’s motion in part on
January 5, 2016. (Doc. # 43).
Before Judge McCoun entered his Order on the aforesaid
motions to compel, counsel for Pinkston filed a motion to
withdraw, which was denied without prejudice. (Doc. ## 40,
42). Counsel for Pinkston renewed its motion to withdraw,
which was granted. (Doc. ## 52-53). Judge McCoun’s Order
granting the motion to withdraw directed Pinkston’s former
counsel to provide Pinkston a copy of the Order and explicitly
noted that Pinkston “shall be responsible for the continued
prosecution of her case” in the absence of a notice of
appearance by new counsel. (Doc. # 53 at 1 n.1, 2).
Since Pinkston assumed responsibility for prosecuting
her case pro se, a passel of discovery-related motions and
filings have been filed and Orders thereon entered. To be
sure, over the last approximately four months, 128 entries
2
have been entered on the docket sheet. The Court focuses on
a mere handful of those entries for purposes of this Order,
which brings the Court full-circle to when Judge McCoun
granted
USF’s
and
Larsen,
Merkler,
and
Battistini’s
respective motions to compel on January 5, 2016. (Doc. # 43).
Judge McCoun granted USF’s and Larsen, Merkler, and
Battistini’s respective motions to compel when Pinkston was
still represented by counsel. The January 5, 2016, Order
directed Pinkston to comply within 21 days. (Id.). Three weeks
later, on January 27, 2016, USF, as well as Larsen, Merkler,
and Battistini, moved for sanctions against Pinkston, arguing
she failed to comply with Judge McCoun’s January 5, 2016,
Order. (Doc. ## 60-61). Shortly thereafter, USF, Larsen,
Merkler, and Battistini moved to compel Pinkston to undergo
a psychological examination pursuant to Federal Rules of
Civil Procedure 35 and 37(a), as well as Local Rule 3.01(a).
(Doc. # 65).
A telephonic hearing was held on February 8, 2016, during
which Judge McCoun took up several pending motions, including
USF’s
and
Larsen,
Merkler,
and
Battistini’s
respective
motions for sanctions. (Doc. # 74). At the February 8, 2016,
hearing, Pinkston represented she had not received her files
from her former counsel; however, Judge McCoun noted that
3
Pinkston equivocated on this point. (Doc. # 77 at 1). Judge
McCoun entered an Order directing Pinkston’s former counsel
to provide directly to Pinkston the papers, documents, and
electronic files in his possession necessary for her to
respond to discovery requests. (Id.).
By separate Order, on February 9, 2016, Judge McCoun
again
ordered
Pinkston
interrogatories,
to
to
respond
respond
to
to
the
the
first
first
set
request
of
for
production, and to provide a calculation of economic damages.
(Doc. # 78 at 6-7). Pinkston was explicitly warned that the
duty to prosecute this case was hers and that, should she
fail to comply, “counsel for Defendant may file a notice . .
. with the Court.” (Id. at 7). The Order continued by stating,
“[f]ailure by Plaintiff to provide the discovery responses
and information outlined [in the Order] within the time
allotted . . . will likely result in the imposition of
monetary sanctions . . . .” (Id.) (emphasis omitted). Pinkston
did not object to that Order.
On
February
25,
2016,
USF,
Larsen,
Merkler,
and
Battistii filed a notice advising the Court of Pinkston’s
noncompliance. (Doc. # 88). A hearing was held on March 3,
2016,
to
address
the
previously
filed
motion
to
compel
Pinkston to undergo a psychological evaluation, during which
4
Judge
McCoun
also
addressed
Pinkston’s
noncompliance
regarding discovery. (Doc. ## 95, 97). By an Order dated March
3, 2016, Judge McCoun ordered Pinkston “to appear for a
psychological examination by Dr. Christopher T. Kalkines on
March 10, 2016, at 11 A.M. at 1900 NW Corporate Blvd., Suite
200-East,
Boca
Raton,
Florida
33431
(telephone
561-835-
0220).” (Doc. # 97 at 4). Judge McCoun also found Pinkston’s
noncompliance
regarding
outstanding
discovery
requests
sufficiently egregious to merit dismissal; indeed, Judge
McCoun found her “conduct related to discovery . . . willful
and highly obstructive . . . .” (Id. at 7). But, proceeding
in an abundance of caution, Judge McCoun provided Pinkston
with yet again another opportunity to comply with the Court’s
Order. (Id.). Furthermore, Pinkston was warned that continued
noncompliance
or
unjustified
refusal
to
respond
or
participate in discovery would result in a recommendation of
dismissal of the action. (Id.).
The pattern continued and on March 10, 2016, USF, Larsen,
Merkler,
and
Battistini
filed
a
notice
of
noncompliance
indicating Pinkston failed to appear for the Court-ordered
psychological examination. (Doc. # 101). Pinkston then, after
missing the Court-order examination, filed a motion seeking
relief from the March 3, 2016, Order. (Doc. # 104). USF,
5
Larsen,
Merkler,
and
Battistini
filed
another
notice
of
noncompliance on March 15, 2016, indicating Pinkston failed
to comply with the Court’s instructions regarding discovery
requests. (Doc. # 111). Judge McCoun subsequently entered a
Show Cause Order and directed Pinkston to appear in person
for a hearing. (Doc. # 112).
At the March 23, 2016, hearing held before Judge McCoun,
Pinkston represented to the Court that she missed her Courtordered
psychological
examination
because
of
a
medical
emergency experienced by her father. (Doc. # 131). Judge
McCoun ordered Pinkston to submit supporting documentation as
to her claim of a medical emergency. (Id.). In addition,
Pinkston’s motion for relief from the March 3, 2016, Order
was denied as moot. (Doc. # 132). Pinkston’s first submission
in
response
to
the
Court’s
request
for
supporting
documentation was found unsatisfactory, and she was ordered
to file the medical records in camera no later than April 7,
2016. (Doc. ## 145, 147). Pinkston moved for reconsideration,
and the Court denied her motion. (Doc. ## 150, 153). The Court
again ordered Pinkston to produce documents supporting her
claim of a medical emergency for in camera review, which she
did. (Doc. ## 155, 156-58).
6
Then
on
April
Battistini
filed
indicating
26,
an
Pinkston
2016,
USF,
additional
still
Larsen,
notice
had
not
Merkler,
of
and
noncompliance
complied
with
Judge
McCoun’s February 9, 2016, Order. (Doc. # 163). A telephonic
hearing was thereafter scheduled and held on May 12, 2016.
(Doc. ## 164, 172). On May 16, 2016, Judge McCoun entered an
Order establishing various deadlines for Pinkston to comply
with
the
Court’s
previous
Order
regarding
discovery
and
imposing sanctions. (Doc. # 173).
Specifically
monetary
sanctions
as
to
sanctions,
appropriate
and
Judge
awarded
McCoun
USF,
found
Larsen,
Merkler, and Battistini reasonable fees and costs incurred in
bringing the two motions to compel filed on December 7, 2015,
as well as $3,090.20 in costs associated with Pinkston’s
failure to attend the Court-ordered psychological evaluation
on March 10, 2016. (Id. at 10). Counsel for USF and counsel
for Larsen, Merkler, and Battistini filed affidavits relating
to fees incurred in bringing the December 7, 2015, motions to
compel at the direction of Judge McCoun. (Doc. ## 173, 181).
In total, counsel for USF, Larsen, Merkler, and Battistini
seek $3,695 in fees and costs incurred in bringing those
motions to compel. (Doc. # 181 at 1). Pinkston has now filed
the instant objection, which is ripe for review.
7
II.
Standard
“[A] judge may designate a magistrate judge to hear and
determine any pretrial matter before the court,” subject to
exceptions
not
relevant
to
this
case.
28
U.S.C.
§
636(b)(1)(A). Federal Rule of Civil Procedure 72 further
addresses pretrial matters referred to magistrate judges.
Because
Judge
McCoun’s
May
16,
2016,
Order
related
to
discovery and did not dispose of any claim or defense, see
Malibu Media, LLC v. Doe, 923 F. Supp. 2d 1339, 1346 (M.D.
Fla. 2013) (noting order that did not dispose of any claim or
defense was nondispositive order (citing Smith v. Sch. Bd. of
Orange Cty., 487 F.3d 1361, 1365 (11th Cir. 2007))), Rule
72(a) governs.
Rule 72(a) provides:
[w]hen a pretrial matter not dispositive of a
party’s claim or defense is referred to a
magistrate judge to hear and decide, the magistrate
judge
must
promptly
conduct
the
required
proceedings and, when appropriate, issue a written
order stating the decision. A party may serve and
file objections to the order within 14 days after
being served with a copy. A party may not assign as
error a defect in the order not timely objected to.
The district judge in the case must consider timely
objections and modify or set aside any part of the
order that is clearly erroneous or is contrary to
law.
Fed. R. Civ. P. 72(a). Thus, as evidenced by the plain
language
of
the
Rule,
“[a]
district
8
court
reviewing
a
magistrate judge’s decision on a nondispositive issue ‘must
consider . . . objections and modify or set aside any part of
the order that is clearly erroneous or is contrary to law.’”
Williams v. Wright, No. CV 309-055, 2009 WL 4891825, at *1
(S.D. Ga. Dec. 16, 2009) (citation omitted).
“Clear error is a highly deferential standard of review.
. . . [A] ‘finding is “clearly erroneous” when although there
is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that
a mistake has been committed.’” Holton v. City of Thomasville
Sch. Dist., 425 F.3d 1325, 1351-52 (11th Cir. 2005) (citation
omitted). And, an order “is contrary to the law when it fails
to apply or misapplies relevant statutes, case law, or rules
of procedure.” Malibu Media, 923 F. Supp. 2d at 1347 (citation
and internal quotation marks omitted). Despite Pinkston’s
request for de novo review, the clearly erroneous standard
applies. See Kaiser Aluminum & Chem. Corp. v. Phosphate Eng’g
& Constr. Co., Inc., 153 F.R.D. 686, 687 (M.D. Fla. 1994).
III. Analysis
Pinkston asserts she only assumed responsibility for
prosecuting her case in mid-January of 2016. However, as of
February 9, 2016, Pinkston was explicitly warned that the
duty to prosecute this case was hers. (Doc. # 78 at 6)
9
(stating, “it is Plaintiff’s obligation to prosecute this
case, and this is the last time Plaintiff may use her former
counsel as an excuse for her noncompliance”).
Pinkston also argues Judge McCoun misread the medical
records submitted in support of her representation that a
medical emergency prevented her from attending the Courtordered psychological examination. A review of the documents
submitted demonstrates rather conspicuously that Pinkston’s
father was admitted at 3:21 p.m. on March 10, 2016, which is
the time Judge McCoun’s May 16, 2016, Order states as the
time of admission. (Doc. # 173 at 10) (citing (Doc. # 156-1
at 41)). While Pinkston argues her father was brought the
emergency room at 8:00 a.m. that day but was not admitted to
the hospital proper until 3:21 p.m., she has submitted no
documentation in support of such a claim despite being given
multiple opportunities to submit documentation relating to
the medical emergency.1
1
The Court notes that one page of the documents Pinkston
submitted contains a handwritten comment indicating the time
of admission printed on that page is incorrect. (Doc. # 1561 at 41). However, there is no indication this handwritten
note was added by a hospital employee rather than Pinkston
herself. And, even assuming the time of arrival at the
hospital was 8:00 a.m., Pinkston still has not explained why
she could not have even attempted to contact opposing counsel.
10
Furthermore, Pinkston’s argument that the duty rested
with opposing counsel to ensure she complied with the Court’s
Order to appear for a psychological examination is meritless.
It was Pinkston who was under a Court Order to appear. And,
as such, the duty was Pinkston’s, and hers alone, to either
comply with or seek relief from that Order. Although Pinkston
belatedly sought relief from the March 3, 2016, Order, there
is no indication she attempted to notify opposing counsel or
the examining doctor of the medical emergency so as to avoid
the incurrence of costs for the Court-ordered examination.
Thus, upon review of the record, the Court cannot say
Judge McCoun’s May 16, 2016, Order is clearly erroneous or
contrary to the law. Rather, it is apparent to the Court that
Judge McCoun repeatedly provided Pinkston with an opportunity
to comply, as well as warned her that continued noncompliance
would
likely
result
in
the
imposition
of
sanctions.
Therefore, Pinkston’s objection to Judge McCoun’s May 16,
2016, Order is overruled.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff Rachel Pinkston’s “Motion for Reconsideration
and De Novo Review by the Presiding Federal District Court
Judge of Order (Doc. No. [173]) entered by the Presiding
11
Federal District Magistrate Judge” (Doc. # 182), filed on May
31, 2016, which the Court construes as an objection filed
pursuant
to
Federal
Rule
of
Civil
Procedure
72(a),
is
OVERRULED.
DONE and ORDERED in Chambers in Tampa, Florida, this
13th day of June, 2016.
12
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