Rudnikas v. Nova Southeastern University, Inc.

Filing 146

ORDER ADOPTING MAGISTRATE JUDGES OMNIBUS REPORT AND RECOMMENDATION (revised) Signed by Judge Jose E. Martinez on 7/15/2021. See attached document for full details. (lbc)

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case Number: 19-25148-CIV-MARTINEZ/OTAZO-REYES
BENZO RUDNIKAS,
Plaintiff,
vs.
NOVA SOUTHEASTERN UNIVERSITY,
INC.,
Defendant.
_____________________________________/
ORDER ADOPTING MAGISTRATE JUDGE’S
OMNIBUS REPORT AND RECOMMENDATION
THE MATTER was referred to the Honorable Alicia M. Otazo-Reyes, United States
Magistrate Judge, for a Report and Recommendation on the following motions:
1. “Emergency Motion for Temporary Restraining Order & Expedited Motion for
Preliminary Injunction” (“Motion for TRO and Preliminary Injunction”), (ECF No.
54);
2. “(1) Emergency Motion to Amend Scheduling Order (2) Motion for Default
Judgment & Sanctions for Fraud on the Court (3) Motion to Disqualify Defendant’s
Counsel, Richard Arthur Beauchamp, Esq. & Benjamin Bean, Esq. & Motion for
Referral to the Florida Bar (4) Emergency Motion for Stay of Discovery” (“Motion
to Amend”), (ECF No. 55);
3. “Emergency Motion to Admit Testimony in Support of Plaintiff’s [Motion to
Amend]” (“Motion to Admit Testimony”), (ECF No. 56);
4. “Request for Judicial Notice in Support of DE # 54 and DE # 55 (“Request for
Judicial Notice”), (ECF No. 109); and
5. “Motion to Invoke Judicial Estoppel & Deem Plaintiff the Prevailing Party as to
All Claims in DE # 54” (“Motion to Invoke Judicial Estoppel”), (ECF No. 110).
(collectively, the “Motions”). Magistrate Judge Otazo-Reyes filed an Omnibus Report and
Recommendation (“R&R”) recommending that all motions be denied. (ECF No. 131). Plaintiff

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timely filed objections to the R&R. (Objections, ECF No. 137). The Court has conducted a de
novo review of the record and is fully advised in the premises. After careful consideration, the
Court finds that Plaintiff’s Objections are OVERRULED and the R&R is AFFIRMED and
ADOPTED in its entirety.
While the Court finds that Judge Otazo-Reyes’s report and recommendation is wellreasoned and already addresses most of Defendant’s objections, it will nevertheless reiterate and
expand on its reasons for denying Plaintiff’s Motions.
A.

Motion to Amend and Motion to Admit Testimony

The Court first turns to Plaintiff’s Motion to Amend the operative Amended Complaint.
(ECF No. 55). Plaintiff seeks to amend the Scheduling order to allow him to file a second amended
complaint. The deadline to amend the complaint set forth in the Scheduling Order was July 3,
2020. (See ECF No. 44). On September 2, 2020, Plaintiff moved to amend the complaint. (ECF
No. 55). In support, Plaintiff argues that “he uncovered an unconscionable scheme that is
dispositive of the entire case and basically shows Defendant is not even entitled to discovery.”
(ECF No. 55, at 26–27).
Pursuant to Federal Rule of Civil Procedure 16(b)(4), 1 a court’s scheduling order may only
be modified upon a showing of good cause. The good cause standard precludes modification
unless the moving party can show that the schedule could not “be met despite [his] diligence[.]”
Fed. R. Civ. P. 16(b) advisory committee note; see also Sosa v. Airprint Sys., Inc., 133 F.3d 1417,
1418 (11th Cir. 1998). Where “the facts necessary to formulate the claim were known prior to the
deadline or the moving party failed to seek the information it needed to determine whether an

The Court agrees with Judge Otazo-Reyes that Rule 16 applies in determining whether leave to amend
should be granted where the deadline to amend the complaint set forth in the court’s scheduling order has
passed. See Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 n.2 (11th Cir. 1998).

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amendment was required before the deadline passed, the moving party cannot establish the Rule
16(b) diligence necessary to show good cause.” Beyel Bros., Inc. v. EMH, Inc., No. 19-CV—
14392, 2020 WL 6143633, at *3 (S.D. Fla. Oct. 20, 2020).
Plaintiff asserts that he uncovered the alleged “unconscionable scheme” when he reviewed
the six depositions cited in his Motion to Admit Testimony (the “Depositions”). The Depositions
were taken in two other cases against Defendant, one filed in 2004 and the other in 2014. See
Hirsch v. NSU, 04-CV—60068-JEM (S.D. Fla. 2004); Redding v. NSU, 14-CV-60545-KAM (S.D.
Fla. 2015).

When reviewing those, he “connected the dots and realized there was an

unconscionable scheme between Defendant, its Officer of the Court, and the Law Firm of Panza
Maurer Maynard to defraud the public, the judicial system, and the Department of Education.”
(ECF No. 55 ¶ 50). As Judge Otazo-Reyes aptly points out, the Depositions have been publicly
available prior to the filing of this case, on May 20, 2015 and July 6, 2015. Plaintiff further alleges
that he was aware of the Hirsch and Redding cases a couple of days after April 28, 2020, well
before the July 3, 2020 deadline to amend the complaint. In the two months that followed, Plaintiff
had the opportunity to review the depositions filed in those cases and failed to do so. “Mere
‘carelessness is not compatible with a finding of diligence.’” Beyel Bros., 2020 WL 6143633, at
*3. The Court is cognizant of Plaintiff’s pro se status at the time the Motion to Amend was filed
and prior to that. However, Plaintiff has failed to show that he acted diligently.
Plaintiff asserts that he was diligent “in attempting to meet this Court’s deadline” because
he filed a motion for extension of time on July 3, 2020 to extend the deadline to July 6, 2020. This
argument is a non sequitur. The record shows that the Court denied Plaintiff’s motion for extension
of time as moot because July 3, 2020 was a Court holiday and thus “the deadline to amend
pleadings [was] already July 6, 2020. See Fed. R. Civ. P. 6.” (ECF No. 46). Plaintiff further

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argues that his emails to FedEx (See ECF No. 55-2, at 200), show that his “pleadings were nearly
ready on 7/6/20 minus the hundreds of pages of exhibits he stated he would need a little more time
to compile.” (ECF No. 137, at 13 (emphasis added)). This argument fares no better. The fact that
the documents were “nearly” ready on July 6, 2020 does not explain why Plaintiff filed his Motion
to Amend two months later on September 2, 2020. Finally, Plaintiff argues that Defendant was
deliberately avoiding the Scheduling Order’s deadlines because they knew that Plaintiff intended
to file an amended complaint prior to the July 6, 2020 and they scheduled Cory Jacobs’s
disciplinary hearing for July 1, 2020. According to Plaintiff, “[t]he only logical explanation was
that Nova was deliberately avoiding this Court’s scheduling deadline in bad faith.” Plaintiff,
however, provides no legal or factual support for these assumptions. Accordingly, Plaintiff’s
Motion to Amend is denied.
Plaintiff also sought permission to admit the Depositions in support of the Motion to
Amend. Given the Court’s denial of the Motion to Amend, the Motion to Admit Testimony is
similarly denied.
B.

Motion for TRO and Preliminary Injunction 2

Plaintiff concedes that should his Motion to Amend be denied, the Motion for TRO and
Preliminary Injunction must likely be denied. (ECF No. 137, at 2). Indeed, the Court’s denial of
the Motion to Amend, the Motion for TRO and Preliminary Injunction cannot be granted because
the relief it seeks is not of the same character as the operative complaint in this matter. Kaimowitz
v. Orlando, Fla., 122 F.3d 41, 43 (11th Cir. 1997) (a preliminary injunction is only appropriate
where the “immediate relief [is] of the same character as that which may granted finally.”). On
this reason alone, the Court denies the Motion for TRO and Preliminary Injunction. The Court
The Court also denies Plaintiff’s Request for Judicial Notice, (ECF No. 109), for the reasons stated in
Judge Otazo-Reyes’s R&R.

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further agrees with Judge Otazo-Reyes’s findings that, even assuming that Plaintiff could prove a
prima facia case of retaliation—as he must do for the Court to grant a TRO or preliminary
injunction—he cannot prove that the reasons for his suspension were pretextual.
C.

Motion to Invoke Judicial Estoppel

Plaintiff’s only objection to Judge’ Otazo-Reyes’s recommendation that the Court deny the
Motion to Invoke Judicial Estoppel is that the recommendation was not “meaningful.” (ECF No.
137, at 15). Plaintiff cites to Chudasama v. Mazda Motor Corp., 123 F.3d 1353 (11th Cir. 1997)
in support of his argument. To begin with, the issues in Chudasama are different than those
involved in this case. In Chudasama, the district court failed to rule on a pending motion to dismiss
before imposing harsh discovery sanctions, including the entry of default judgment. The Eleventh
Circuit noted in passing that a ruling must be “meaningful” and that “[it] is not enough simply to
deny a motion to dismiss with little or no comment and then revisit the defendant’s legal
contentions when the defendant files a motion for summary judgment after discovery has
concluded.” Id. at 1368 n.28. Certainly, the procedural posture in this case is different than
Chudasama.
Yet, even assuming that this requirement of “meaningfulness” was applied to the case at
hand, Judge Otazo-Reyes’s twenty-three-page R&R would pass the “meaningful” muster. The
R&R provides the reasons for the recommendation to deny the motion. “Judicial estoppel applies
when ‘a party assumes a certain position in a legal proceeding, and then succeeds in maintaining
that position, he may not thereafter, simply because his interests have changed, assume a contrary
position, especially if it be to the prejudice of the party who has acquiesced in the position formerly
taken by him.” Matter of Brizo, LLC, 437 F. Supp. 3d 1212, 1220 (S.D. Fla. 2020). The R&R
explains—and the Court agrees—that Plaintiff does not contend that Defendant assumed a certain

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position in a legal proceeding and now assumes a contrary position because his interests have
changed. Instead, Plaintiff invokes judicial estoppel because he argues that “to permit Defendant
to continue litigating would require Defendant to change its current position and to knowingly
submit false and/or inaccurate testimony that would allege facts that occurred prior to litigation,
but which Defendant, Plaintiff, and this Court would know are false . . .” (ECF No. 110, at 1).
This reason does not give grounds to invoke judicial estoppel. Therefore, the Motion to Invoke
Judicial Estoppel is denied.
Accordingly, it is
ADJUDGED that United States Magistrate Judge Otazo-Reyes’s Report and
Recommendation, (ECF No. 131), is AFFIRMED and ADOPTED. It is further ADJUDGED
that the Motions, (ECF Nos. 54, 55, 56, 109, 110), are DENIED.
DONE and ORDERED in Chambers at Miami, Florida this 15th day of July, 2021.

________________________________
JOSE E. MARTINEZ
UNITED STATES DISTRICT JUDGE

Copies provided to:
Magistrate Judge Otazo-Reyes
All counsel of record

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