Adelman et al v. Boy Scouts of America et al

Filing 265

Plaintiff's MOTION Motion for Entry of Order on Plaintiff's Motion for Judicial Review of Denial of Touhy Request by Howard Adelman, Judith Sclawy-Adelman. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 2, # 3 Exhibit 3)(Peltz, Robert)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 10-CV-22236-ASG/GOODMAN HOWARD ADELMAN AND JUDITH SCLAWY as Co-Personal Representatives of the ESTATE OF MICHAEL SCLAWY-ADELMAN, Plaintiffs, v. BOY SCOUTS OF AMERICA; THE SOUTH FLORIDA COUNCIL INC., BOY SCOUTS OF AMERICA; PLANTATION UNITED METHODIST CHURCH; HOWARD K. CROMPTON, Individually, and ANDREW L. SCHMIDT, Individually, Defendants. / PLAINTIFFS’ MOTION FOR ENTRY OF ORDER ON PLAINTIFFS’ MOTION FOR JUDICIAL REVIEW OF DENIAL TOUHY REQUEST COME NOW the PLAINTIFFS, HOWARD ADELMAN AND JUDITH SCLAWY as CoPersonal Representatives of the ESTATE OF MICHAEL SCLAWY-ADELMAN, by and through their undersigned counsel and hereby move this Honorable Court for the entry of the Order attached as Exhibit “1" on Plaintiffs’ Motion for Judicial Review of Denial of Touhy request and would respectfully show the Court as follows: Pursuant to the provisions of 43 C.F.R. §2.80 et seq, the Plaintiffs’ made an initial formal “Touhy request” on February 7, 2011 upon the Department of Interior [hereinafter “DOI] and National Park Service [hereinafter “NPS”] to depose various Park Rangers, who were involved in the investigation into Michael Adelman’s death. [D.E. 217-8]. This formal request identified specific Park Rangers and the testimony sought from them. Subsequently, the DOI denied the Plaintiffs’ Touhy request [D.E. 217-9]. Thereafter, the Plaintiffs’ engaged in numerous discussions with counsel for the DOI in an effort to reach an Adelman v. BSA et al. Case No.: 10-CV-22236-ASG/Goodman Page 2 agreement concerning the scope of depositions of their employees. As part of this ongoing process, which extended over many months, the Plaintiffs also filed a series of supplemental formal Touhy requests specifically defining the scope of the proposed inquiry. [D.E. 217-10, D.E. 217-11 and D.E. 217-16]. After these discussions broke down, the Plaintiff filed their Motion for Judicial Review of the Denial of Their Touhy Requests on June 2, 2011. [D.E. 217]. In response, this Honorable Court issued its order on the same date [D.E. 218], providing in part: Although the motion and exhibits demonstrate that Plaintiffs’’ counsel and the DOI have had numerous communications about the so-called Touhy regulations, and their application to this case, the Court is requiring counsel for Plaintiffs and DOI to again confer in an attempt to avoid significant additional motion practice. Although the motion seeks relief against the DOI, the Defendants may also submit a response (either in support of or in opposition to) the motion. As a result of the continuing negotiations between Plaintiffs’ counsel and the U.S. Attorneys Office, which had appeared on behalf of the DOI, a tentative agreement was reached to produce 4 witnesses for deposition regarding the areas covered by Plaintiffs’ Touhy requests. Counsel for the Defendants were advised of this tentative agreement by correspondence attached hereto as Exhibit “2.” At that time, counsel for the Plaintiffs further requested that defense counsel provide dates that they were available for these depositions. Subsequently, counsel for the Plaintiff and the DOI reached an agreement on the final wording for the order on August 1, 2011, which was thereafter sent to counsel for the Defendants on that date. See Exhibit “3.” It was further indicated that pursuant to this Court’s prior order, that the Plaintiffs and DOI intended to submit the order on the following day, however, wanted to provide counsel for the parties with the opportunity to assert any comments. Subsequently, undersigned counsel received an objection from counsel representing two of the Defendants regarding the concern that the order might impact upon recent pending requests made by said Defendants for information, documents and testimony directed to the National Park Service and DOI. Following discussions with defense counsel, these concerns were addressed by the Adelman v. BSA et al. Case No.: 10-CV-22236-ASG/Goodman Page 3 addition of paragraph 5 to the proposed order with the agreement of counsel for the DOI. No other objections have been transmitted to Plaintiffs’ counsel. The proposed order submitted by the Plaintiffs does not prejudice any of the Defendants from pursuing their own requests and merely acts to resolve the Touhy request filed by the Plaintiffs. There is also nothing in the order which prevents the Defendants from attending the depositions and participating fully within the scope of the testimony reached to by the DOI. WHEREFORE, the Plaintiffs’ move this Honorable Court for the entry of the order attached hereto. Dated: August 2, 2011. Respectfully submitted, /s/ Robert D. Peltz ROBERT D. PELTZ (Fla. Bar No. 220418) E-mail: LEESFIELD & PARTNERS, P.A. 2350 S. Dixie Highway Miami, Florida 33133 Telephone: (305) 854-4900 Facsimile: (305) 854-8266 Counsel for Plaintiffs CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 2, 2011, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. /s/ Robert D. Peltz ROBERT D. PELTZ Adelman v. BSA et al. Case No.: 10-CV-22236-ASG/Goodman Page 4 SERVICE LIST IRA H. LEESFIELD ROBERT D. PELTZ E-mail: LEESFIELD & PARTNERS, P.A. 2350 S. Dixie Highway Miami, Florida 33133 Telephone: 305-854-4900 Facsimile: 305-854-8266 Attorneys for the Plaintiffs FREDERICK E. HASTY, III Email: WICKER, SMITH , O’HARA , MCCOY , GRAHAM & FORD , P.A. 2800 Ponce de Leon Blvd. Suite 800 Coral Gables, Florida 33134 Telephone: 305-448-3939 Facsimile: 305-441-1745 Attorneys for Howard K. Crompton and Andrew L. Schmidt UBALDO J. PEREZ, JR., ESQ. Email: Law Office of Ubaldo J. Perez, Jr., P.A. 8181 NW 154th Street, Suite 210 Miami Lakes, FL 33016 Telephone: (305) 722-8954 Facsimile: (305) 722-8956 Co-Counsel for Howard K. Crompton WILLIAM S. REESE WILLIAM SUMMERS KEVIN D. FRANZ Email: LANE , REESE , SUMMERS, ENNIS & PERDOMO , P.A. 2600 Douglas Road Douglas Centre, Suite 304 Coral Gables, Florida 33134 Telephone: 305-444-4418 Facsimile: 305-444-5504 Attorneys for Boys Scouts of America and The South Florida Council, Inc.; Boy Scouts of America GREG M. GAEBE Email: GAEBE , MULLEN , ANTONELLI & DIMATTEO 420 South Dixie Highway, 3rd Floor Coral Gables, FL 33146 305-667-0223 305-284-9844 – Fax Attorneys for Plantation United Methodist Church AMANDA A. KESSLER Email: Assistant United States Attorney Court Assigned No: A5501293 99 N.E. 4th Street, Suite 326 Miami, Florida 33132 Tel: (305) 961-9128 Fax: (305) 530-7139 Counsel for United States of America

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