Barr v. One Touch Direct, LLC et al
Filing
162
ORDER: Pro se Plaintiff Alfred Barr's "Request for District Judge to Review Order's [sic] Issued by Magistrate Judge" (Doc. # 116 ), which the Court construes as a Rule 72(a) objection to the June 17, 2016, Order entered by Judge Pizzo (Doc. # 112 ), is denied. Signed by Judge Virginia M. Hernandez Covington on 2/27/2017. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ALFRED BARR,
Plaintiff,
v.
Case No. 8:15-cv-2391-T-33MAP
ONE TOUCH DIRECT, LLC, et al.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court pursuant to pro se
Plaintiff Alfred Barr’s “Request for District Judge to Review
Order’s [sic] Issued by Magistrate Judge” (Doc. # 116), which
the Court construes as a Rule 72(a) objection to the June 17,
2016, Order entered by the Honorable Mark A. Pizzo, United
States Magistrate Judge, (Doc. # 112), filed on June 26, 2016.
Prior to filing the instant Motion, Barr appealed a litany of
interlocutory orders. (Doc. # 111). The Court deferred ruling
on the instant Motion during the pendency of that appeal.
(Doc. # 117). Barr also appealed, among other orders, Judge
Pizzo’s June 17, 2016, Order. (Doc. # 132).
The Eleventh Circuit sua sponte dismissed Barr’s firstfiled appeal on November 16, 2016, and sua sponte dismissed
Barr’s second-filed appeal on February 3, 2017. (Doc. ## 136,
140).
After
jurisdiction
reinvested
with
this
Court,
Defendants AT&T Services, Inc., DPG Employee Leasing, LLC,
and One Touch Direct, LLC were directed to file a response to
Barr’s instant Motion by February 20, 2017. (Doc. # 142).
AT&T, DPG, and One Touch Direct timely filed their respective
responses in opposition. (Doc. ## 153, 154, 155). The Motion
is ripe for review and, for the reasons below, the Motion is
denied.
I.
Background
Only a brief history of this action is recounted for
purposes of ruling on the instant Motion. Barr filed his Third
Amended Complaint on May 31, 2016. (Doc. # 93). The Third
Amended Complaint asserts claims under Title VII against One
Touch Direct and DPG (Count I); Florida’s Whistleblower Act,
Fla. Stat. § 448.101, et seq., against AT&T and One Touch
Direct (Count II); the Fair Labor Standards Act, 29 U.S.C. §
201, et seq., against One Touch Direct and DPG (Counts III
and IV); the Americans with Disabilities Act, 42 U.S.C. §
12101, et seq., against One Touch Direct and DPG (Count V);
the Age Discrimination in Employment Act, 29 U.S.C. § 621, et
seq., against One Touch Direct, DPG, and Defendant Joseph
Mole (Count VI); and a claim for interference with at-will
business relationships against AT&T (Count VII). On June 13,
2
2016, AT&T, DPG, and One Touch Direct moved to dismiss the
Third Amended Complaint (Doc. # 106), as did Mole (Doc. #
107).
Before the Defendants filed their motions to dismiss the
Third Amended Complaint, Barr filed three motions to compel
and a motion to quash. (Doc. ## 87, 91, 92, 95). Judge Pizzo
held a hearing on those four motions on June 17, 2016, and
denied all four. (Doc. ## 110, 112). Barr now seeks review of
Judge Pizzo’s discovery-related order.
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
Pizzo’s
June
17,
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:
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[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
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
4
and internal quotation marks omitted). Despite Barr’s request
for de novo review, the standards set forth above apply. See
Kaiser Aluminum & Chem. Corp. v. Phosphate Eng’g & Constr.
Co., Inc., 153 F.R.D. 686, 687 (M.D. Fla. 1994).
III. Analysis
The Court finds no occasion to disturb Judge Pizzo’s
June 17, 2016, Order. Insofar as Barr’s Motion is premised on
his argument that Judge Pizzo’s June 17, 2016, Order should
be
set
aside
because
of
a
reliance
upon
extrajudicial
research, the Court notes that the Order makes no reference
to any such extrajudicial material. (Doc. # 112). Moreover,
it is worth noting that Barr has previously filed a motion
seeking to have Judge Pizzo recused from this action on the
same grounds (Doc. # 114), which was denied (Doc. # 122). A
Rule 72(a) objection is not the proper vehicle for reasserting
a recusal argument.
Second, Judge Pizzo’s June 17, 2016, Order was not
contrary to the law. One of Barr’s claims is that One Touch
Direct and DPG violated the ADA. (Doc. # 93). Although Barr
sought to quash the subpoena served upon one of his medical
providers
on
the
basis
of
Florida’s
physician-client
privilege, federal common law recognizes no such privilege.
Whalen v. Roe, 429 U.S. 589, 602 n.28 (1977) (“The physician-
5
patient
evidentiary
privilege
is
unknown
to
the
common
law.”).
Furthermore,
while
“state
law
governs
privilege
regarding a claim or defense” that is only when “state law
supplies the rule of decision.” Fed. R. Evid. 501. Because
the ADA is a federal statute and provides the rule of decision
with respect to the ADA claim, federal common law applies.
And this remains so even though state law supplies the rule
of decision for two claims also asserted by Barr. For example,
in Hancock v. Hobbs, 967 F.2d 462, 466 (11th Cir. 1992), the
court stated: “[c]ourts that have confronted this issue in
the context of the discoverability of evidence have uniformly
held that the federal law of privilege governs even where the
evidence sought might be relevant to a pendent state claim.”
It therefore follows that federal common law applies, at least
with respect to the ADA claim and Barr’s motion to quash.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Pro se Plaintiff Alfred Barr’s “Request for District
Judge to Review Order’s [sic] Issued by Magistrate Judge”
(Doc. # 116), which the Court construes as a Rule 72(a)
objection to the June 17, 2016, Order entered by Judge Pizzo
(Doc. # 112), is DENIED.
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DONE and ORDERED in Chambers in Tampa, Florida, this
27th day of February, 2017.
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