Pepke v. Florida Department of Families
Filing
167
ORDER denying 160 Motion for Reconsideration. Signed by Judge Beth Bloom on 10/29/2018. See attached document for full details. (kpe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 18-cv-60432-BLOOM/Valle
RANDOLPH SCOTT PEPKE, JR.,
Individually and as natural parent
and guardian of L.S.P; L.S.P and L.R.P.,
Plaintiff,
v.
FLORIDA DEPARTMENT OF FAMILIES, et. al.,
Defendants.
_______________________________________/
ORDER DENYING MOTION FOR RECONSIDERATION
THIS CAUSE is before the Court upon Plaintiff’s Motion for Rehearing and/or
Reconsideration of the Court’s Omnibus Order Granting Motions to Dismiss (the “Motion for
Reconsideration”), ECF No. [160]. The Court has reviewed the Motion for Reconsideration, all
supporting and opposing submissions, the record in this case, and is otherwise fully advised as to
the premises. For the reasons set forth below, Plaintiff’s Motion for Reconsideration is denied.
I. BACKGROUND
Plaintiff, Randolph Scott Pepke Jr. (“Plaintiff”), filed this lawsuit individually and as the
natural parent and guardian of Lila Snow Pepke, Layla Sky Pepke, and Lily Rain Pepke
(collectively “the children”) against Defendants arising out of dependency proceedings filed
against Plaintiff in state court. See ECF No. [60]. According to the Amended Complaint, on
November 6, 2015, DCF allegedly removed the children from Plaintiff’s care and custody,
placing them in foster care after receiving frivolous reports of abuse. Id. at ¶ 16. As fully set
1
Case No. 18-cv-60432-BLOOM/Valle
forth in this Court’s Omnibus Order on Motions to Dismiss, Plaintiff alleges that Defendants
engaged in wrongful conduct while the children were in foster care and during the course of the
dependency proceedings. ECF No. [159] at 2-5.
All Defendants with the exception of Terilee Wunderman, who Plaintiff voluntarily
dismissed from this lawsuit, see ECF No. [116], moved to dismiss the Amended Complaint on
numerous grounds. See ECF Nos. [73], [74], [83], [84], [85], [113], [114], [147], and [148].
This Court granted the motions to dismiss for lack of subject-matter jurisdiction under the
Rooker-Feldman Doctrine. See generally ECF No. [159]. In finding that Plaintiff’s claims were
inextricably intertwined with the dependency court’s orders, this Court reasoned that
If Plaintiff is to succeed on his § 1983 claims, it would require a finding that he
was unlawfully deprived of his children during the course of the dependency
proceedings without due process, which would in turn require a finding that the
state dependency court wrongly removed the children from his custody.
Id. at 12. The Court then found that Plaintiff had a reasonable opportunity to present his
constitutional claims in dependency court, given that Plaintiff alleged that he participated in the
dependency proceedings. Id. After reaching the conclusion that the Court lacked jurisdiction to
grant the relief requested as to Plaintiff’s § 1983 claims, the court declined to exercise
supplemental jurisdiction over Plaintiff’s remaining state law claims. Id. at 14.
Plaintiff timely filed his Motion for Reconsideration on August 30, 2018. Defendants
filed Responses to the Motion, to which Plaintiff filed Replies. ECF Nos. [161], [162], [163],
[164], [165], [166]. The Motion for Reconsideration is now ripe for consideration.
II. STANDARD
Plaintiff requests that the Court reconsider its Omnibus Order of Dismissal, ECF No.
[159], pursuant to Rule 59(e) of the Federal Rules. “While Rule 59(e) does not set forth any
2
specific criteria, the courts have delineated three major grounds justifying reconsideration: (1) an
intervening change in controlling law; (2) the availability of new evidence; and (3) the need to
correct clear error or prevent manifest injustice.” Williams v. Cruise Ships Catering & Serv.
Int'l, N.V., 320 F. Supp. 2d 1347, 1357–58 (S.D. Fla. 2004) (citing Sussman v. Salem, Saxon &
Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994)); see also Burger King Corp. v. Ashland
Equities, Inc., 181 F. Supp. 2d 1366, 1369 (S.D. Fla. 2002) (“[T]here are three major grounds
which justify reconsideration: (1) an intervening change in controlling law; (2) the availability of
new evidence; and (3) the need to correct clear error or prevent manifest injustice”).
“[R]econsideration of a previous order is an extraordinary remedy to be employed sparingly in
the interests of finality and conservation of scarce judicial resources.” Wendy's Int'l, Inc. v. Nu–
Cape Const., Inc., 169 F.R.D. 680, 685 (M.D. Fla. 1996); see also Campero USA Corp. v. ADS
Foodservice, LLC, 916 F. Supp. 2d 1284, 1290 (S.D. Fla. 2012) (“A motion for reconsideration
is an extraordinary remedy to be employed sparingly.”) (citation omitted).
“Motions for reconsideration are appropriate where, for example, the Court has patently
misunderstood a party.” Compania de Elaborados de Cafe v. Cardinal Capital Mgmt., Inc., 401
F. Supp. 2d 1270, 1283 (S.D. Fla. 2003). But “[a] motion for reconsideration should not be used
as a vehicle to present authorities available at the time of the first decision or to reiterate
arguments previously made.” Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D.
Fla. 1992). “[T]he movant must do more than simply restate his or her previous arguments, and
any arguments the movant failed to raise in the earlier motion will be deemed waived.”
Compania, 401 F. Supp. 2d at 1283. Simply put, a party “cannot use a Rule 59(e) motion to
relitigate old matters, raise argument or present evidence that could have been raised prior to the
3
Case No. 18-cv-60432-BLOOM/Valle
entry of judgment.” Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir.
2005).
III. DISCUSSION
Plaintiff argues that reconsideration is warranted to prevent manifest injustice. “Manifest
injustice ‘refers to injustice that is apparent to the point of almost being indisputable.’” MSPA
Claims 1, LLC v. First Acceptance Ins. Co., No. 16-20314-CIV, 2017 WL 3671033, at *5 (S.D.
Fla. Aug. 24, 2017). “[M]anifest injustice occurs where the Court ‘has patently misunderstood a
party, or has made a decision outside the adversarial issues presented to the Court by the parties,
or has made an error not of reasoning but of apprehension . . . . Such problems rarely arise and
the motion to reconsider should be equally rare.’” Campero USA Corp. v. ADS Foodservice,
LLC, 916 F. Supp. 2d 1284, 1292–93 (S.D. Fla. 2012) (quoting Compania de Elaborados de
Cafe v. Cardinal Capital Mgmt., Inc., 401 F. Supp. 2d 1270, 1283 (S.D. Fla. 2003)).
Plaintiff contends that “this Court failed to consider the fact that the Plaintiff did not have
the opportunity to allege this constitutional issue on [sic] the dependency case and that the
Rooker-Feldman Doctrine does not apply to this case …” ECF No. [164] at ¶ 9; ECF No. [165]
at ¶ 9; ECF No. [166] at ¶ 10. Presumably to show that Plaintiff did not have an opportunity to
raise his constitutional claims in the dependency case, Plaintiff attaches to the Motion for
Reconsideration 512 pages of transcripts from the dependency case. ECF No. [160] at 8-519.
The Court is unpersuaded by Plaintiff’s argument. First, Plaintiff’s argument is improper
as it reiterates arguments previously made in response to Defendants’ Motions to Dismiss, and
attaches transcripts from the dependency case that could have been presented to the Court before
it ruled on the Motions to Dismiss. The Court has already addressed the arguments and
determined that Plaintiff, as a participant in the dependency proceedings, had a reasonable
4
opportunity to present his constitutional claims in the dependency court. See ECF No. [159] at
12. Second, Plaintiff’s Motion for Reconsideration does not attempt to explain how the 512
pages of transcripts from the dependency case show that Plaintiff did not have an opportunity to
present the constitutional claims in state court. The Motion for Reconsideration does not even
provide the Court with a single citation to any portion of the transcript for the court to consider.
“Judges are not like pigs, hunting for truffles buried in briefs.” See United States v. Dunkel, 927
F.2d 955, 956 (7th Cir. 1991) (Posner, J.). “Likewise, district court judges are not required to
ferret out delectable facts buried in a massive record.” Chavez v. Sec’y Florida Dep’t of Corr.,
647 F.3d 1057, 1061 (11th Cir. 2011). The Court will not search through the 512 pages of
transcripts without any direction from Plaintiff as to what might indicate that Plaintiff did not
have an opportunity to present his constitutional claims or where that may be located or
supported in the record.
In the Motion for Reconsideration, Plaintiff also raises a new argument that even if the
Rooker-Feldman Doctrine bars Plaintiff’s claims, the Court has jurisdiction over Defendants’
violations of the children’s rights. Id. at 4-6. The Court rejects this argument because no federal
(or state) claims have been asserted in this case on behalf of the children. Rather, all ten § 1983
counts purport to state violations of Plaintiff’s First Amendment right to associate with his
children, Fourth Amendment right against the unlawful seizure of his children, and Fifth
Amendment right against the unlawful taking of his children and right to due process. See ECF
No. [60] at Counts I –X.1
1
Plaintiff’s request for an evidentiary hearing, raised for the first time in his Motion for
Reconsideration, is also denied. Plaintiff has not demonstrated that an evidentiary hearing would
be necessary to resolve the issue before this Court.
5
Case No. 18-cv-60432-BLOOM/Valle
It is therefore ORDERED AND ADJUDGED that Plaintiff’s Motion for
Reconsideration, ECF No. [160], is DENIED.
DONE AND ORDERED in Miami, Florida, this 29th day of October, 2018.
______________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies furnished to:
Counsel of record
6
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?