Pinkston v. University of South Florida Board of Trustees et al

Filing 221

ORDER: Pinkston's Motion for Reconsideration (Doc. # 210 ), which the Court construes as an objection pursuant to Rule 72(a), is overruled. Pinkston's Notice of Voluntary Dismissal (Doc. # 216 ), which the Court construes as a Rule 41 (a)(2) motion for voluntary dismissal, is granted. Count II of the Second Amended Complaint, which is the sole remaining Count in this action, is dismissed without prejudice subject to the condition set forth in the Order. Defendants' pending motions to dismiss (Doc. ## 144 , 206 ) are denied as moot. See Order for details. The Clerk is directed to CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 7/19/2016. (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 review of pro se
Plaintiff Rachel Pinkston’s “Motion for Reconsideration to
the Federal District Judge of Order (Doc. # [210]) Entered by
the Federal District Magistrate Judge,” filed on July 17,
2016. (Doc. # 215). 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 July 19, 2016. (Doc. # 219).
In addition, the Court has pending before it Pinkston’s
“Notice of Plaintiff’s Voluntary Dismissal of Count II of the
Second Amended Complaint” (Doc. # 216), filed on July 18,
2016, which the Court construes as a motion to voluntarily

dismiss under Rule 41(a)(2). At the Court’s direction (Doc.
# 217), USF, along with the Defendants who have had the claims
against them previously dismissed, filed a response on July
18, 2016. (Doc. # 218).
Furthermore,
Involuntary

Defendants

Dismissal

of

have

pending

Plaintiff’s

a

“Motion

for

Civil

Action

for

Intentionally Providing False Statements to the Court, Under
Penalty of Perjury” (Doc. # 144), which was referred to Judge
McCoun for a Report and Recommendation (Doc. # 146). Pinkston
filed a response in opposition. (Doc. # 169). And, Judge
McCoun has entered a Report and Recommendation. (Doc. # 209).
Defendants
Involuntary

also

have

Dismissal

pending
of

a

“Dispositive

Plaintiff’s

Civil

Motion

for

Action

for

Noncompliance with this Court’s Order Dated May 16, 2016.”
(Doc. # 206). That motion was also referred to Judge McCoun
for a Report and Recommendation. Pinkston has not filed a
response as of this Order. Nor has a Report and Recommendation
been entered on the motion.
For the reasons that follow, the Court (1) overrules
Pinkston’s objection to Judge McCoun’s July 5, 2016, Order
awarding attorneys’ fees; (2) grants Pinkston’s construed
Rule 41(a)(2) motion and dismisses Count II without prejudice

2 

subject to the condition set forth more fully below; and (3)
denies Defendants’ two pending motions to dismiss as moot.
I.

Background
In the interests of judicial economy, and given that the

Court has thoroughly traced the facts of this case before
(Doc. ## 198, 200, 202), the Court provides only a brief
overview

of

the

action.

Pinkston

instituted

this

action

almost a year ago on July 24, 2015, by filing her Complaint
against USF, Larsen, Merkler, and Battistini (Doc. # 1), which
was subsequently amended. (Doc. # 18). Upon the motions of
Larsen,

Merkler,

and

Battistini,

and

USF,

the

Amended

Complaint was dismissed. (Doc. ## 24, 26, 133-34). With leave
of Court, Pinkston filed a Second Amended Complaint, which
brought the following counts:
Count I—Discrimination under Title IX against USF;
Count II—Retaliation under Title IX against USF;
Count III—Discrimination under 42 U.S.C. § 1981
against all Defendants;
Count IV—Retaliation under 42 U.S.C. § 1981 against
all Defendants;
Count V(a)—Discrimination under 42 U.S.C. § 1983
against all Defendants; and
Count V(b)—Retaliation under 42 U.S.C. § 1983
against all Defendants.
(Doc. # 159 at 8, 10, 12, 13, 15, 16).
Larsen, Merkler, and Battistini, as well as USF, moved
to dismiss the Second Amended Complaint. (Doc. ## 166-67).

3 

After considering the Defendants’ motions and Pinkston’s
response, the Court, by an Order dated June 9, 2016, dismissed
all Counts of the Second Amended Complaint save for Count II.
(Doc. # 198); see also (Doc. # 207 at 2-3) (explaining the
Court’s June 9, 2016, ruling). The Court afforded Pinkston an
opportunity to file a third amended complaint in order to
provide her another chance to state a claim with respect to
the Counts that were dismissed without prejudice. (Doc. #
198). Pinkston, however, affirmatively elected not to replead
those Counts. (Doc. # 204 at ¶ 9).
Before the Court entered its Order dismissing most of
the Second Amended Complaint, the assigned Magistrate Judge,
the

Honorable

Thomas

B.

McCoun

III,

imposed

monetary

sanctions against Pinkston, which the undersigned upheld
against an objection filed by Pinkston. (Doc. ## 173, 200).
Pursuant to Judge McCoun’s May 16, 2016, Order imposing
sanctions

(Doc.

#

173),

the

Defendants

filed

affidavits

relating to their attorneys’ fees incurred in bringing their
two motions to compel (Doc. # 181). Thereafter, Judge McCoun
entered an Order awarding $3,695 in attorneys’ fees. (Doc. #
210). Pinkston currently has pending before the undersigned
a motion for reconsideration of Judge McCoun’s Order awarding
fees (Doc. # 215), which the Court construes as an objection

4 

pursuant to Rule 72(a). Defendants have filed a response in
opposition. (Doc. # 219).
After filing her motion for reconsideration of Judge
McCoun’s Order awarding fees, Pinkston filed the instant
Notice by which she seeks a Court Order dismissing Count II
of the Second Amended Complaint without prejudice. (Doc. #
216). The Court construed the Notice as a motion for voluntary
dismissal without prejudice under Rule 41(a)(2), Fed. R. Civ.
P., and directed USF to file a response. (Doc. # 217). USF,
along with the Defendants who have had the claims against
them dismissed, filed a response on July 18, 2016. (Doc. #
218).
II.

Standard
A.

Rule 72(a)

“[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 July 5, 2016, Order did not dispose of
any claim or defense, see Malibu Media, LLC v. Doe, 923 F.
Supp. 2d 1339, 1346 (M.D. Fla. 2013) (citing Smith v. Sch.

5 

Bd. of Orange Cty., 487 F.3d 1361, 1365 (11th Cir. 2007)),
Rule 72(a) governs.
“A

district

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).
B.

Rule 41(a)(2)

6 

“Except as provided in Rule 41(a)(1), an action may be
dismissed at the plaintiff’s request only by court order, on
terms that the court considers proper.” Fed. R. Civ. P.
41(a)(2). “The purpose of Rule 41(a)(2) ‘is primarily to
prevent voluntary dismissals which unfairly affect the other
side, and to permit the imposition of curative conditions.’”
Arias v. Cameron,

776 F.3d 1262, 1268 (11th Cir. 2015)

(quoting McCants v. Ford Motor Co., Inc., 781 F.2d 855, 856
(11th Cir. 1986)).
“A district court enjoys broad discretion in determining
whether to allow a voluntary dismissal under Rule 41(a)(2) .
. . .” Id. “Generally speaking, a motion for voluntary
dismissal should be granted unless the defendant will suffer
clear legal prejudice other than the mere prospect of a second
lawsuit.” Id. In determining whether a defendant will suffer
clear

legal

prejudice,

“‘the

Court

should

consider

such

factors as the defendant’s effort and expense of preparation
for trial, excessive delay and lack of diligence . . . in
prosecuting the action, insufficient explanation for . . . a
dismissal, and whether a motion for summary judgment has been
filed by the defendant.’” Peterson v. Comenity Capital Bank,
No. 6:14-cv-614-Orl-41TBS, 2016 WL 3675457, at *1 (M.D. Fla.
May 3, 2016) (quoting Pezold Air Charters v. Phx. Corp., 192

7 

F.R.D. 721, 728 (M.D. Fla. 2000)). Ultimately, “[t]he court’s
task is to ‘weigh the relevant equities and do justice between
the parties.’” Goodwin v. Reynolds, 757 F.3d 1216, 1219 (11th
Cir. 2014) (quoting McCants v. Ford Motor Co., Inc., 781 F.2d
855, 857 (11th Cir. 1986)).
Furthermore,
[i]t is no bar to a voluntary dismissal that the
plaintiff may obtain some tactical advantage over
the defendant in future litigation. Dismissal may
be inappropriate, however, if it would cause the
defendant to lose a substantial right. Another
relevant consideration is whether the plaintiff’s
counsel has acted in bad faith.
Id. (internal citations and quotation marks omitted). The
default under Rule 41(a)(2) is that a dismissal thereunder is
without prejudice. Arias, 776 F.3d at 1268.
III. Analysis
A.

Objection Overruled

Judge McCoun’s July 5, 2016, Order awarding attorneys’
fees (Doc. # 210) is not some singularity unrelated to any
other Order in this case. Rather, Judge McCoun’s July 5, 2016,
Order was the culmination of his May 16, 2016, Order (Doc. #
173) imposing sanctions against Pinkston.
The

May

16,

2016,

sanctions——in

the

form

bringing

motions

two

to

Order
of

attorneys’

compel

8 

found

and

the
fees

imposition

of

incurred

in

$3,090.20

in

costs

associated with Pinkston’s failure to attend a Court-ordered
psychological

evaluation——appropriate.

(Id.

at

10).

That

Order also directed defense counsel to file an affidavit of
fees within 14 days. (Id.). Pinkston filed a motion for
reconsideration (Doc. # 182), which the Court construed as an
objection under Rule 72(a), and the Court overruled her
objection (Doc. # 200).
Thereafter, as directed by Judge McCoun’s May 16, 2016,
Order,

Defendants

filed

their

affidavits

of

fees,

the

reasonableness of which were supported by the affidavit of
Cathleen Bell Bremmer, Esq. (Doc. ## 181-1, 181-2, 181-3). As
noted by Judge McCoun’s July 5, 2016, Order (Doc. # 210 at
1), Pinkston did not timely contest the reasonableness of the
fees sought by Defendants. After reviewing the affidavits,
Judge McCoun found an award of attorneys’ fees in the amount
of $3,695 reasonable. (Id. at 2).
Pinkston’s current motion for reconsideration, which the
Court

construes

as

an

objection

under

Rule

72(a),

predominately rehashes arguments the Court already considered
when it overruled her objection to Judge McCoun’s May 16,
2016, Order. Furthermore, Pinkston’s argument related to the
reasonableness of the amount awarded as attorneys’ fees is
unsupported by, for example, an affidavit of an attorney who

9 

practices in this District. And, as for Pinkston’s argument
that

Judge

McCoun’s

Order

should

be

set

aside

because

Defendants’ counsel did not “prove up” their fees, such an
argument is deeply undercut by the affidavits submitted in
support

of

defense

counsel’s

fees.

Finally,

Pinkston’s

argument that Judge McCoun’s July 5, 2016, Order is contrary
to

the

American

37(b)(2)(C),

which

Rule

is

states:

meritless
“the

in

court

light
must

of
order

Rule
the

disobedient party . . . to pay the reasonable expenses,
including attorney’s fees, caused by the failure . . . .”
In short, the Court is unpersuaded it should reconsider
its prior Order overruling Pinkston’s objection to Judge
McCoun’s May 16, 2016, Order, nor is the Court persuaded that
Judge McCoun’s July 5, 2016, Order is clearly erroneous or a
manifest

error

of

law.

Therefore,

Pinkston’s

motion

for

reconsideration, which the Court construes as an objection
under Rule 72(a), is overruled.
B.
By

Count II Dismissed
her

construed

motion

for

voluntary

dismissal,

Pinkston requests the Court to dismiss Count II of the Second
Amended Complaint without prejudice. (Doc. # 216 at 1). As
indicated in its response, USF does not oppose Pinkston’s
construed motion. (Doc. # 218 at 3, ¶ I). However, USF

10 

requests the Court either (1) “dismiss Plaintiff’s civil
action with prejudice” or (2), should the Court dismiss the
action without prejudice, condition the dismissal on (a)
requiring Pinkston to pay all fees and costs incurred by
Defendants that have been, or may reasonably be, awarded to
Defendants and (b) barring Pinkston from refiling the claims
brought in this action until she pays all fees and costs
incurred by Defendants that have been, or may reasonably be,
awarded to Defendants. (Id. at 3-4, ¶¶ I-J).
As a preliminary matter, the Court finds it necessary to
emphasize that the only Count remaining in this action is
Count II of the Second Amended Complaint. The Court’s June 9,
2016,

Order

dismissed

all

Counts

in

the

Second

Amended

Complaint save for Count II. (Doc. # 198). That Order also
provided Pinkston the opportunity to replead certain claims;
however, Pinkston affirmatively elected not to replead those
Counts. (Doc. # 204 at ¶ 9). Therefore, this action is a onecount action wherein the only claim to be adjudicated is Count
II of the Second Amended Complaint.
And, before weighing the relevant factors, the Court
finds

it

worthwhile

to

briefly

summarize

the

varied

conditions imposed by other courts. As thoroughly canvassed
by the court in Brooks v. State Board of Elections, those

11 

conditions

include:

(1)

the

imposition

of

few

or

no

conditions; (2) denial of a motion to voluntarily dismiss
when the motion was made in the face of a defendant’s summary
judgment

motion;

(3)

dismissal

with

prejudice

where

the

defendant “is on the verge of triumph”; and (4) dismissal
with prejudice where “the plaintiff has not been diligent and
a defense victory is imminent.” 173 F.R.D. 547, 549-50 (S.D.
Ga. 1997). The Court notes that “a dismissal with prejudice
‘is an extreme sanction that may be properly imposed only
when “(1) a party engages in a clear pattern of delay or
willful contempt (contumacious conduct); and (2) the district
court specifically finds that lesser sanctions would not
suffice.”’” Dinardo v. Palm Beach Cty. Cir. Ct. Judge, 199
Fed. Appx. 731, 735 (11th Cir. 2006) (citation omitted).
In

this

case,

the

record

reflects

USF

assiduously

defended the action and incurred a substantial expense in so
doing. See, e.g., (Doc. ## 12-13, 24, 26, 34-35, 39, 49, 6061, 65, 101, 111, 120, 140, 163, 166-67, 193, 206, 210). The
record

also

demonstrates

that

Pinkston

frustrated

the

discovery process, in spite of several warnings from the
Court. (Doc. ## 78, 97, 173). In addition, Pinkston does not
provide an explanation for why she now seeks a dismissal of
the sole remaining Count. (Doc. # 216). Although many factors

12 

tilt in the direction of prejudice to USF, there is, as of
this Order, no pending motion for summary judgment.
Nevertheless, the Court finds that Count II should be
dismissed without prejudice. However, the dismissal of Count
II without prejudice carries with it the following condition:
namely, should Pinkston file a future action based on or
including Count II of the Second Amended Complaint in any
court, or seek redress thereof in any administrative agency,
she shall be obligated to pay all attorneys’ and costs
incurred by USF in defense of Count II of the Second Amended
Complaint. The Court appreciates that Defendants request the
Court condition a dismissal without prejudice on an award of
all fees and costs the Court has awarded, or may award, in
this case and on the requirement that Pinkston not file a
subsequent action based on any claim raised during the course
of this action against any of the Defendants unless she
prepays any and all fees and costs awarded, or that may be
awarded, by this Court. But, as the action currently stands,
it encompasses only one claim against USF for an alleged
violation of Title IX. Accordingly, the Court believes equity
dictates the condition be limited as described above.
Although

USF

undoubtedly

incurred

a

“‘practical

prejudice’ of expenses incurred in defending the action,”

13 

Pontenberg v. Boston Scientific Corp., 252 F.3d 1253, 1260
(11th Cir. 2001), such practical prejudice is adequately
addressed by the aforesaid condition. See Id. (affirming
district court’s Rule 41(a)(2) dismissal without prejudice
even though defendant incurred costs because district court
imposed the condition that should plaintiff refile, then
plaintiff would be required to pay defendant’s costs); see
also Watson v. Ala. Bd. of Pardons & Paroles, No. 2:07-cv794-MHT, 2008 WL 2939520, at *5 (M.D. Ala. July 25, 2008)
(dismissing action under Rule 41(a)(2) without prejudice upon
condition that plaintiff pay all costs of the dismissed action
should plaintiff file a future action based on or including
the same claim).
Moreover, nothing in this Order shall be construed as
relieving Pinkston of her requirement to pay the sanction
previously imposed by Judge McCoun in the amount of $6,785.20.
(Doc. ## 173 at 10; 210 at 2).
C.
As

Pending Motions to Dismiss Mooted
the

Court

has

determined

dismissal

under

Rule

41(a)(2) is appropriate, Defendants’ Motion for Involuntary
Dismissal

of

Plaintiff’s

Civil

Action

for

Intentionally

Providing False Statements to the Court, Under Penalty of
Perjury (Doc. # 144), and Defendants’ Dispositive Motion for

14 

Involuntary

Dismissal

of

Plaintiff’s

Civil

Action

for

Noncompliance with this Court’s Order Dated May 16, 2016,
(Doc. # 206), are denied as moot.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Pro

se

Plaintiff

Rachel

Pinkston’s

“Motion

for

Reconsideration to the Federal District Judge of Order
(Doc.

#

[210])

Entered

by

the

Federal

District

Magistrate Judge,” filed on July 17, 2016, (Doc. # 215),
which the Court construes as an objection filed pursuant
to Federal Rule of Civil Procedure 72(a), is OVERRULED.
(2)

Pro se Plaintiff Rachel Pinkston’s Notice of Plaintiff’s
Voluntary Dismissal of Count II of the Second Amended
Complaint (Doc. # 216), which the Court construes as a
motion for voluntary dismissal without prejudice under
Rule 41(a)(2), is GRANTED.

(3)

Count II of the Second Amended Complaint, which is the
sole

remaining

Count

in

this

action,

is

DISMISSED

WITHOUT PREJUDICE subject to the condition that, should
Pinkston file a future action based on or including Count
II of the Second Amended Complaint in any court, or seek
redress thereof in any administrative agency, she shall
be

obligated

to

pay

all

15 

attorneys’

fees

and

costs

incurred by USF in defense of Count II of the Second
Amended Complaint.
(4)

Defendants
Trustees,

University
Randy

Battistini’s

of

Larsen,

Motion

for

South

David

Florida

Merkler,

Involuntary

Board

and

of

Matthew

Dismissal

of

Plaintiff’s Civil Action for Intentionally Providing
False Statements to the Court, Under Penalty of Perjury
(Doc. # 144), and Dispositive Motion for Involuntary
Dismissal of Plaintiff’s Civil Action for Noncompliance
with this Court’s Order Dated May 16, 2016, (Doc. # 206),
are DENIED AS MOOT.
(5)

The Clerk is directed CLOSE this case.
DONE and ORDERED in Chambers in Tampa, Florida, this

19th day of July, 2016.

16