Barr v. One Touch Direct, LLC et al
ORDER: Pro se Plaintiff Alfred Barr's Motion for Rehearing (Doc. # 127 ), which the Court construes as a motion for reconsideration pursuant to Federal Rule of Civil Procedure 59(e), is denied. Signed by Judge Virginia M. Hernandez Covington on 10/14/2016. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 8:15-cv-2391-T-33MAP
ONE TOUCH DIRECT, et al.,
This matter comes before the Court in consideration of
pro se Plaintiff Alfred Barr’s Motion for Rehearing (Doc. #
127), which, for reasons stated more fully below, the Court
construes as a motion for reconsideration pursuant to Federal
Rule of Civil Procedure 59(e), filed on September 26, 2016.
Defendants One Touch Direct, LLC, DPG Employee Leasing, LLC,
and AT&T Services, Inc. filed a response in opposition (Doc.
# 130), on October 14, 2016. Defendant Joseph Mole has not
filed a response in opposition. The Court denies the Motion
for the reasons herein.
Barr initiated this action slightly over a year ago by
Christopher Reed, AT&T, and DGP on October 9, 2015. (Doc. #
1). At the Case Management Hearing held on January 13, 2016,
the Court granted Barr leave to file an amended complaint
(Doc. # 33). Barr filed his Amended Complaint on January 19,
2016. (Doc. # 38). One Touch Direct, AT&T, and DPG then moved
to dismiss the Amended Complaint, arguing it was a shotgun
pleading. (Doc. # 43). Barr failed to timely respond and, as
such, on February 23, 2016, the Court granted the motion as
unopposed. (Doc. # 50).
Barr subsequently moved to vacate the February 23, 2016,
dismissal Order (Doc. # 53), which the Court granted in part
(Doc. # 56). Specifically, the Court declined to vacate its
dismissal order; however, it did reopen the action and granted
Barr leave to file a second amended complaint. (Id.).
A Second Amended Complaint was filed by Barr on March
18, 2016, which brought the following counts: violations of
Whistleblower Act against AT&T and One Touch Direct (Count
II); violations of the Fair Labor Standards Act against One
Touch Direct, DPG, Mole, and Reed (Count III); violations of
Title I of the American with Disabilities Act against One
Touch Direct, DPG, Mole, and Reed (Count IV); and interference
with at-will business relationships against AT&T (Count V).
(Doc. # 64). Thereafter, One Touch Direct, AT&T, and DPG moved
to dismiss (Doc. # 69), as did Mole and Reed (Doc. # 70).
Barr filed responses in opposition. (Doc. ## 73-74).
Defendants’ respective motions in part. (Doc. # 78). In
particular, the Court ruled that service had not been properly
effected as to Mole and Reed; that Counts I and IV of the
Second Amended Complaint were dismissed insofar as they were
brought against Mole and Reed because there is no individual
liability under Title VII and the ADA, see Pouyeh v. UAB Dep’t
of Ophthalmology, 625 Fed. Appx. 495-498-99 (11th Cir. 2015)
(citation omitted); Tobar v. Fed. Defs. Middle Dist. of Ga.,
Inc., 618 Fed. Appx. 982, 985 n.2 (11th Cir 2015) (citation
Complaint constituted a shotgun pleading. (Doc. # 78). The
Court granted Barr until May 31, 2016, to effect service of
process as to Mole and Reed, file proof thereof, and file a
third amended complaint. (Doc. # 82).
Barr timely filed his Third Amended Complaint on May 31,
2016. (Doc. # 93). The Third Amended Complaint was brought
only against One Touch Direct, Mole, AT&T, and DPG; thus, by
omitting any claim against Reed, Barr abandoned those claims.
The Third Amended Complaint brought the following counts:
violations of Title VII against One Touch Direct and DPG
(Count I); Florida’s Whistleblower Act against AT&T and One
Touch Direct (Count II); violations of the FLSA against One
Touch Direct and DPG (Count III); FLSA unpaid minimum wages
against One Touch Direct and DPG (Count IV); violations of
Title I of the ADA against One Touch Direct and DPG (Count
V); violations of the Age Discrimination in Employment Act
against One Touch Direct, DPG, and Mole (Count VI); and
interference with at-will business relationships against AT&T
(Count VII). (Id.).
Discovery had been proceeding concomitantly with the
foregoing motion practice. As stated earlier, the Court had
granted Barr until May 31, 2016, to effect service of process
as to Mole and Reed. (Doc. # 82). While Barr filed a Third
Amended Complaint that no longer brought claims against Reed,
the Third Amended Complaint did seek relief against Mole.
However, Barr failed to file proof of service by the Courtimposed deadline of May 31, 2016. Rather, in a footnote
contained in a motion for extension of time related to
discovery, Barr indicated that service had not been effected
as to Mole. (Doc. # 96 at 1 n.1). The Court then, sua sponte,
granted Barr another extension of time to effect service as
to Mole, this time until June 27, 2016. (Doc. # 100).
On June 17, 2016, the Honorable Mark A. Pizzo, United
States Magistrate Judge, who is the assigned Magistrate to
discovery-related motions. (Doc. # 110). After that hearing,
Barr filed a notice of appeal (Doc. # 111), before Judge Pizzo
entered his written Order denying the motions discussed at
that day’s hearing (Doc. # 112). Barr’s notice of appeal
indicated that he sought appellate review of “several orders,
with the first material order having been issued on May 18,
2016, and the last issued June 17, 2016.” (Doc. # 111 at 1).
After filing his notice of appeal, Barr filed a motion
seeking to disqualify Judge Pizzo, which the Court referred
to Judge Pizzo (Doc. # 114), a motion for leave to appeal in
forma pauperis (Doc. # 115), and a motion to vacate Judge
Pizzo’s June 17, 2016, Order (Doc. # 116). Noting that the
filing of a notice of appeal is an event of jurisdictional
significance, the Court deferred ruling on the motion to
vacate, and the then-pending two motions to dismiss. (Doc. #
117). Thereafter, on August 12, 2016, the Eleventh Circuit
requested that the Court forward the Order on Barr’s motion
for leave to appeal in forma pauperis.
Three days later, Judge Pizzo entered a Report and
Recommendation on Barr’s motion for leave to appeal in forma
pauperis, which recommended that Barr’s motion be denied.
(Doc. # 121). And, on August 17, 2016, Judge Pizzo entered an
Order denying Barr’s motion to disqualify. (Doc. # 122). In
between the entry of Judge Pizzo’s Report and Recommendation
and September 2, 2016, the date on which the Court accepted
the Report and Recommendation, Barr made no filings. Indeed,
Recommendation indicates that Barr had filed no objections
thereto. (Doc. # 126 at 1). The Court accepted Judge Pizzo’s
Report and Recommendation in full and denied Barr’s motion
for leave to appeal in forma pauperis. (Id.). Barr now moves
for a hearing on the Court’s September 2, 2016, Order that
accepted Judge Pizzo’s Report and Recommendation, which the
Court construes as a motion for reconsideration. (Doc. # 127).
Federal Rules of Civil Procedure 59(e) and 60 govern
motions for reconsideration. Beach Terrace Condo. Ass’n, Inc.
reconsideration filed within 28 days of the Court’s judgment
reconsideration filed after the 28-day period are governed by
Rule 60(b). Here, Barr’s Motion was filed within 28 days of
the Court’s September 2, 2016, Order. Accordingly, the Court
applies Rule 59(e) in ruling on the Motion.
It is within the Court’s discretion to grant a motion
for reconsideration. Lussier v. Dugger, 904 F.2d 661, 667
(11th Cir. 1990). “[R]econsideration is an extraordinary
remedy to be employed sparingly.” Lamar Adver. of Mobile,
Inc. v. City of Lakeland, 189 F.R.D. 480, 489 (M.D. Fla.
1999). So, “a motion for reconsideration must demonstrate why
the court should reconsider its past decision and set forth
facts or law of a strongly convincing nature to induce the
Osteopathic Med., Inc. v. Dean Witter Reynolds, Inc., 12 F.
Supp. 2d 1306, 1308 (M.D. Fla. 1998).
“The 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 Fed. Appx. 679,
680 (11th Cir. 2014) (quoting Arthur v. King, 500 F.3d 1335,
omitted). “[A] district court does not abuse its discretion
when denying a Rule 59(e) motion made merely ‘to relitigate
old matters’ or ‘raise argument[s] or present evidence that
could have been raised prior to the entry of judgment.’” Id.;
see also Michael Linet, Inc. v. Village of Wellington, Fla.,
408 F.3d 757, 763 (11th Cir. 2005) (stating, “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).”
To begin, Barr’s Motion fails to comply with Middle
District of Florida Local Rule 3.01(a), which states:
[i]n a motion or other application for an order,
the movant shall include a concise statement of the
precise relief requested, a statement of the basis
of the request, and a memorandum of legal authority
in support of the request, all of which the movant
shall include in a single document not more than
twenty-five (25) pages.
accounted for, well beyond the 25-page limitation of Local
Rule 3.01(a). Accordingly, the Motion is denied for failure
to comply with the Local Rules. Further, even if the Court
considered the Motion and the supplemental memorandum as
comply with the Local Rules (this time, 3.01(g)) and the
supplemental memorandum would fail to comply with 3.01(a), as
it is longer than 25 pages. Thus, regardless of how the Court
views it, the Motion and supplemental memorandum do not comply
with the aforesaid Local Rules. As previously stated by this
Court in this action, “[a] pro se litigant ‘is subject to the
relevant law and rules of court . . . .” (Doc. # 56 at 2)
(quoting Johnson v. Rosier, 578 Fed. Appx. 928, 930 (11th
In addition, even if the Court looked past the violations
of the Local Rules, Barr’s Motion is still due to be denied
on the merits. First, the Motion rehashes arguments Barr has
put forth previously and which the Court has addressed. And,
thus, the Motion is due to be denied. See Michael Linet, 408
F.3d at 763.
Second, Barr had an opportunity to file objections to
Judge Pizzo’s August 15, 2016, Report and Recommendation.
However, Barr elected not to file any objections to the Report
and Recommendation, even though he was warned that failure to
do so would bar him from attacking the factual findings of
the Report and Recommendation (Doc. # 121 at 2).
Third, Barr’s argument that Judge Pizzo should not have
ruled on Barr’s motion for leave to appeal in forma pauerpis
while a motion seeking to have Judge Pizzo disqualified was
pending is meritless. At the time Judge Pizzo entered his
Report and Recommendation on the motion for leave to appeal
in forma pauerpis, Judge Pizzo was the assigned Magistrate
independent review by this Court.
Fourth, and finally, Barr’s argument that this Court has
selectively ruled on motions filed after his notice of appeal
is simply without merit. While the filing of a notice of
appeal does, generally speaking, divest the lower court of
jurisdiction, the rule is not absolute and a district court
may still exercise jurisdiction over aspects of the case that
are not involved in the appeal. Cf. Green Leaf Nursery v.
E.I. DuPont de Nemours & Co., 341 F.3d 1292, 1309 (11th Cir
2003) (stating, “[t]he filing of an appeal . . . divests the
district court of its control over those aspects of the case
Channel, Inc. v. Covered Bridge Condo. Ass’n, 895 F.2d 711,
713 (11th Cir. 1990) (listing three exceptions to the general
jurisdiction). In this case, the Eleventh Circuit requested
the Order disposing of Barr’s motion for leave to appeal in
forma pauperis and ruling on the motion seeking to disqualify
Judge Pizzo did not fit into the category of “those aspects
of the case involved in the appeal.” In contrast, the motion
to vacate Judge Pizzo’s discovery-related Order entered on
June 17, 2016, (Doc. # 116), and Defendants’ respective
motions to dismiss (Doc. ## 106, 107), are involved in the
appeal——a fact most notably evinced by Barr’s notice of
appeal, which itself states Barr seeks appellate review over
Judge Pizzo’s June 17, 2016, Order and several other Orders
of this Court (Doc. # 111). Therefore, this Court is, indeed,
without jurisdiction to rule on those motions during the
pendency of the appeal.
The Court also takes this opportunity to address Barr’s
request for alternative relief. Barr requests that the Court
permit him to retain counsel. However, Barr need not seek
leave of Court to retain counsel. All Barr needs to do, if he
wishes to no longer proceed pro se, is have qualified counsel
file a notice of appearance. The Court refers Barr to Chapter
2 of the Middle District of Florida Local Rules, should he be
unfamiliar with the requirements attorneys must meet in order
to appear before this Court.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Pro se Plaintiff Alfred Barr’s Motion for Rehearing
(Doc. # 127), which the Court construes as a motion for
reconsideration pursuant to Federal Rule of Civil Procedure
59(e), is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
14th day of October, 2016.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?