Pinkston v. University of South Florida Board of Trustees et al
Filing
277
ORDER: Pro se Plaintiff Rachel Pinkston's "Motion to Chief District Judge Merryday for Reconsideration and to Clarify Order" (Doc. # 275 ) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 11/15/2018. (DMD)
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 in consideration of
pro se Plaintiff Rachel Pinkston’s “Motion to Chief District
Judge Merryday for Reconsideration and to Clarify Order,”
filed on November 7, 2018. (Doc. # 275). Defendants University
of
South
Florida
Board
of
Trustees
(USFBOT),
Matthew
Battistini, Randy Larsen, and David Merkler responded in
opposition on November 13, 2018. (Doc. # 276). For the reasons
that follow, the Motion is denied.
I.
Legal Standard
When, as here, a motion for reconsideration is filed
within 28 days of an order, Rule 59 applies. Beach Terrace
Condo. Ass’n, Inc. v. Goldring Inves., No. 8:15-cv-1117-T33TBM, 2015 WL 4548721, at *1 (M.D. Fla. July 28, 2015). “The
1
only
grounds
for
granting
a
Rule
59
motion
are
newly
discovered evidence or manifest errors of law or fact.”
Anderson v. Fla. Dep’t of Envtl. Prot., 567 F. App’x 679, 680
(11th Cir. 2014)(quoting Arthur v. King, 500 F.3d 1335, 1343
(11th Cir. 2007)).
Granting relief under Rule 59(e) is “an extraordinary
remedy to be employed sparingly in the interests of finality
and conservation of scarce judicial resources.” United States
v. DeRochemont, No. 8:10-cr-287-T-24MAP, 2012 WL 13510, at *2
(M.D. Fla. Jan. 4, 2012)(citation omitted). Furthermore, “a
Rule 59(e) motion [cannot be used] to relitigate old matters,
raise argument or present evidence that could have been raised
prior to the entry of judgment.” Michael Linet, Inc. v. Vill.
of Wellington, 408 F.3d 757, 763 (11th Cir. 2005).
II.
Discussion
As a preliminary matter, the Court notes that Pinkston
addressed her Motion to Chief Judge Merryday. (Doc. # 275).
Pinkston has cited no authority for her request that Judge
Merryday address the Motion, and the Court is not aware of
any such authority. Because the undersigned, rather than
Judge Merryday, is assigned to this case, the undersigned
will rule on the Motion.
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Regarding the Motion’s substance, Pinkston takes great
issue with the way in which this Court drafted its Order
opening a new case with Pinkston’s stricken Complaint (Doc.
# 255), pursuant to the Eleventh Circuit’s mandate. (Doc. #
275 at 2-3). However, Pinkston appears to take no issue with
the fact that this Court did order a new case number be
assigned to her re-filed Title IX retaliation action so that
Pinkston may litigate it. (Doc. # 274).
Indeed, a new case has been opened with the Complaint
that was stricken in this case. See Pinkston v. Univ. of S.
Fla. Bd. of Trustees, No. 8:18-cv-2651-T-33SPF (M.D. Fla.
Oct. 29, 2018). Within that new case, the Magistrate Judge
has granted Pinkston’s motion for leave to proceed in forma
pauperis. Id. at (Doc. # 5). Furthermore, in that case, the
Court has granted Pinkston access to CM/ECF so that she may
e-file her pleadings or other documents. Id. at (Doc. # 4).
As the Court has seen to it that a new case was opened
with the stricken Complaint so that Pinkston may proceed on
her Title IX retaliation claim, the Court has effectuated the
Eleventh Circuit’s mandate. Furthermore, Pinkston failed to
comply with Local Rule 3.01(g), instead asserting that she
“did not believe [conferral] to be proper as no case has been
opened nor has any notice of appearance been made.” (Doc. #
3
275 at 6). But Defendants have appeared and actively litigated
this case (8:15-cv-1724-T-33TBM), and so should have been
consulted before Pinkston filed her Motion. Therefore, for
these
reasons,
Pinkston’s
Motion
for
Reconsideration
is
denied.
Nevertheless,
the
Court
takes
this
opportunity
to
address two of the issues Pinkston raised in her Motion
regarding how this Court drafts its orders. First, Pinkston
objects
to
complaint.”
the
(Doc.
Court’s
#
275
use
at
of
3).
the
phrase
According
to
“operative
Pinkston,
“operative complaint” is “not a legal term of art” and the
word “operative” is “a ‘code’ word for someone who has a
racial or political agenda.” (Id.). Pinkston misconstrues the
meaning of “operative complaint,” which is a term frequently
used by courts. See, e.g., Berene v. Nationstar Mortg. LLC,
686 F. App’x 714 (11th Cir. 2017)(using the term “operative
complaint”); Harrigan v. Metro Dade Police Dep’t Station No.
4, 636 F. App’x 470, 473 (11th Cir. 2015)(same). An “operative
complaint” is the complaint in force in a case, meaning the
complaint that asserts the claims currently at issue in that
case.
Next, Pinkston takes issue with this Court’s practice of
referring to parties by their surnames without including an
4
honorific such as Ms. or Mr. (Id. at 5). The Court assures
Pinkston that this practice is not a sign of disrespect
towards any party. It is a writing convention that this Court
prefers, and will continue to use. Furthermore, this writing
convention does not violate Local Rule 1.05(b), as Pinkston
asserts. See Local Rule 1.05(b), M.D. Fla. (“All pleadings,
motions, briefs, applications, and orders tendered by counsel
for filing shall contain on the first page a caption as
prescribed by Rule 10(a), Fed. R. Civ. P., and in addition
thereto shall state in the title the name and designation of
the party (as Plaintiff or Defendant or the like) in whose
behalf the paper is submitted.”).
Finally, the Court will address an issue raised by
Defendants in their response. In their response, Defendants
state that Pinkston “has not met the requirements established
in the District Court’s prior Order.” (Doc. # 276 at 7 n.1).
In the prior Order to which Defendants refer, the Court
dismissed
Pinkston’s
Title
IX
retaliation
claim
without
prejudice but imposed the condition that “should Pinkston
file a future action based on or including Count II of the
Second Amended Complaint [the Title IX retaliation claim] in
any court, or seek redress thereof in any administrative
agency, she shall be obligated to pay all attorneys’ [fees]
5
and costs incurred by USF in defense of Count II of the Second
Amended Complaint.” (Doc. # 221 at 13). So, because Pinkston
has refiled her retaliation claim, “Defendants contend that
[Pinkston’s] new civil action should be stayed in accordance
with Rule 41(d)(2) of the Federal Rules of Civil Procedure
until
Plaintiff
has
paid
the
attorneys’
fees
and
costs
described in this Court’s prior Order.” (Doc. # 276 at 7 n.1).
True, Rule 41 provides: “If a plaintiff who previously
dismissed an action in any court files an action based on or
including the same claim against the same defendant, the
court: (1) may order the plaintiff to pay all or part of the
costs
of
that
previous
action;
and
(2)
may
stay
the
proceedings until the plaintiff has complied.” Fed. R. Civ.
P. 41(d). But defendants typically move for relief under Rule
41 in the newly-filed case. See Sandshaker Lounge & Package
Store LLC v. RKR Beverage Inc., No. 3:17CV686-MCR/CJK, 2018
WL 2382089 (N.D. Fla. Feb. 28, 2018)(granting a Rule 41 motion
for attorney’s fees and costs and to stay in the newly-filed
action);
Cadle
Co.
v.
Beury,
242
F.R.D.
695
(S.D.
Ga.
2007)(imposing costs on plaintiff of its previously dismissed
state
court
action
under
Rule
41).
Thus,
once
served,
Defendants may file in the new case a motion for attorney’s
fees and costs and to stay under Rule 41, in which they may
6
provide their calculation for the fees attributable to the
retaliation claim and request a stay of the new case pending
payment of those fees.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Pro se Plaintiff Rachel Pinkston’s “Motion to Chief
District Judge Merryday for Reconsideration and to Clarify
Order” (Doc. # 275) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
15th day of November, 2018.
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