Usry v. Equityexperts.org, LLC
Filing
134
ORDER denying 123 Motion to Seal Document without prejudice. Defendant shall file a motion to seal in accordance with this Court's Local Rules within 14 days; granting 129 Motion for Extension of Time to File Response/Reply. Defendants shall have 14 days from the date of the ruling on 122 Motion for Reconsideration within which to respond to Plaintiffs' Motion for Approval of Class Notice. Signed by Chief Judge J. Randal Hall on 4/13/2020. (pts)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
SARAH USRY and DANIEL DARNELL,
*
on behalf of themselves and
*
all others similarly situated,
*
*
Plaintiffs,
*
5
V.
*
CV 116-010
*
EQU1TYEXPERTS.ORG, LLC d/b/a
EQUITY EXPERTS; MICHAEL NOVAK;
JACQUELINE GALOFARO; and MARK
BREDOW,
Defendants.
ORDER
Before
the
Court
are
Defendant
EquityExperts.org,
LLC's
(^^Equity Experts") motion to file under seal (Doc. 123); Defendant
Equity Experts's motion for extension
of time to respond to
Plaintiffs' motion for approval of class notice and questionnaire
(Doc. 129); and -Plaintiffs' notice to substitute a page in the
record (Doc. 132).
For the following reasons. Defendant Equity
Experts's motion to file under seal is DENIED WITHOUT PREJUDICE
and Defendant Equity Experts's motion for extension of time is
GRANTED.
I. BACKGROUND
The
Court
certification.
recently
granted
Plaintiffs'
(Order, Doc. 121, at 36.)
motion
for
class
Shortly thereafter.
Defendants filed a motion for reconsideration of the Order granting
Plaintiffs' motion for class certification.
Doc. 122.)
(Mot. for Recons.,
As part of Defendants' motion for reconsideration.
Defendants seek to introduce financial records establishing that
there is no possible recovery because Defendant Equity Experts has
a negative net worth.
(Mot. for Recons., at 12-15.)
Defendants
filed the present motion seeking to file under seal portions of
those documents evidencing Defendant Equity Experts's net worth.
(Mot. to File Under Seal, Doc. 123, at 2-3.)
According
statements
it
to
Defendant
intends
to
Equity
file
Experts,
contain
the
sensitive
financial
information
regarding the entity's finances, including personal and medical
information.
(Id. at 2.)
Defendant Equity Experts explains that
it intends to file redacted versions of the financial statements,
email unredacted versions to Plaintiffs' counsel, and provide the
Court with unredacted copies of the complete filing.
(Id. at 3.)
Plaintiffs do not oppose Defendant Equity Experts's motion to file
under seal.
(Resp.. to Mot. to File Under Seal, Doc. 125.)
II. MOTION TO FILE UNDER SEAL
The
Eleventh
Circuit
has
long
recognized
a ''presumptive
common law right to inspect and copy judicial records."
United
States V. Rosenthal, 763 F.2d 1291, 1293 (llth Cir. 1985) (citing
Nixon V. Warner Commc^ns, Inc., 435 U.S. 589, 597 (1978)).
"The
operations of the courts and the judicial conduct of judges are
matters of utmost public concern."
Romero v. Drummond Co., Inc.,
480 F.3d 1234, 1245 (llth Cir. 2007) (quoting Landmark Commc'ns,
Inc. V. Virginia, 435 U.S. 829, 839 (1978)).
Therefore, "the
common-law right of access to judicial proceedings, an essential
component of our system of justice, is instrumental in securing
the integrity of the process."
Id. (quoting Chicago Tribune Co.
V. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (llth Cir.
2001)).
A party can justify a document being sealed by showing good
cause.
Id. at 1246 (citing Chicago Tribune, 263 F.3d at 1309).
Good cause is determined by balancing the historical presumption
of right to access against the movant's privacy interests. Chicago
Tribune, 263 F.3d at 1311; Newman v. Graddick, 696 F.2d 796, 803
(llth Cir. 1983).
Courts evaluate, among other considerations:
(a) "whether allowing access would impair court functions or harm
legitimate privacy interests"; (b) "the degree of and likelihood
of
injury
if"
the
documents
were
"made
public";
(c)
"the
reliability of the information"; (d) "whether there will be an
opportunity to respond to the information"; (e) ^Vhether the
information concerns public officials or public concerns"; and (f)
''the availability of a less onerous alternative."
Romero, 480
F.3d at 1246.
Additionally, the Court's Local Rules establish the procedure
for sealing documents, LR 79.7(b), SDGa, and contemplate three
layers of information to which a motion to seal may extend: ^Ml)
the name of the movant; (2) the title of the filing sought to be
sealed; and (3) the contents of the filing itself."
Id. 79.7(d).
Furthermore,
A party who moves to seal any matter submitted to the
Court shall indicate whether the matter should be sealed
permanently or until: (1) the conclusion of the trial,
(2) the entry of final judgment, (3) the conclusion of
the direct appeal, or (4) some other specified time.
The permanent sealing of a Court record is not preferred
and should be sought only where temporary sealing is not
adequate to protect the interest at stake.
Upon the
expiration of any temporary sealing period, the matter
shall be unsealed and made a part of the public record.
Id. 79.7(e).
Even if the motion to file under seal meets no opposition,
the parties to a lawsuit lack the authority to determine which
documents outweigh the public's common law right of access.
See
Wilson V. Am. Motors Corp., 759 F.2d 1568, 1571 (11th Cir. 1985).
Therefore, "district court[s] must keep in mind the rights of a
third party - the public, 'if the public is to appreciate fully
the often significant events at issue in public litigation and the
workings of the legal system.'"
Id. {quoting Newman, 696 F.2d at
803).
Here,
certain
motion
Defendant Equity Experts seeks
information
contains
contained
little
in
within
terms
permission to redact
financial
of
statements.
justifying
The
sealing
such
information and fails to request a duration of the sealing.
Most
importantly. Defendant Equity Experts failed to follow the Local
Rules' specific instructions to obtain permission to file sealed
documents.
Any person desiring to have any matter placed under seal
shall present a motion setting forth the grounds why the
matter presented should not be available for public
inspection. The Clerk shall: (i) docket the motion as
a Motion to Seal; (ii) refrain from labeling the filing
as ^^sealed" or identifying the person seeking the
sealing order
unless the
person consents; (iii)
designate any accompanying materials as ^'sealed matter";
and (iv) maintain the motion and accompanying materials
in a secure file pending a ruling on the Motion to Seal.
LR 79.7(b), SDGa.
The reason for Local Rule 79.7(b) is obvious.
As stated, the Parties cannot make the determination as to what
the Court shields from the public; the Court is tasked with making
that determination.
The Court, however, cannot perform its duty
without evaluating the materials, and
Defendant Equity Experts
failed to file the documents it seeks to partially seal.
Because
the Court ''does not rubber-stamp motions to seal, nor find 'good
cause'
pro
forma," the
Court
cannot
grant
Defendant
Equity
Experts's requested relief without first evaluating the documents.
MSP Recovery Claims, Series LLC v. S.-Owners Ins. Co.^ No. 17-cv24068-UU, 2017 WL 6622806, at *1 (S.D. Fla. Dec. 15, 2017); accord
McNatt V. Bush, No. CV 119-139, 2020 WL 1649911, at *1 (S.D. Ga.
Apr. 2, 2020); Advice Interactive Grp., LLC v. Web.com Grp., Inc.,
No. 3:17-cv-801-J-39iyiCR, 2017 WL 9935023, at *1 (M.D. Fla. Sept.
6, 2017); Estate of Martin Luther King, Jr. v. CBS, Inc., 184 F.
Supp. 2d 1353, 1363 (N.D. Ga. 2002).
Should.Defendant Equity Experts possess concerns regarding
the publicity of the document if the Court were to deny the motion,
the Local Rules also contemplate that situation: ^^If the Motion to
Seal is denied, any materials which the person sought to have
sealed, and which were submitted to the Clerk with the motion,
shall be returned to the person, who shall then have the option of
filing the materials in the normal course."
LR 79.7(c), SDGa.
III. MOTION FOR EXTENSION OF TIME
Defendants
request
an
extension
of
time
to
respond
to
Plaintiffs' motion for approval of class notice and questionnaire.
(Mot. for Extension of Time, Doc. 129.)
Specifically, Defendants
ask the Court to postpone the deadline for their response until
fourteen
days after the Court decides
reconsideration.
(Id. SISI 11/
13.)
Defendants' motion for
In support. Defendants cite
the cost associated with the class notice and the possibility that
their motion for reconsideration could moot the need for the class
notice and questionnaire.
(Id. 1 11.)
Further, Defendants point
to communication issues between the Parties as to the notice and
questionnaire.
(Id. SI 8.)
Plaintiffs' response seemingly opposes Defendants' motion for
extension of time.
133.)
{Resp. to Mot. for Extension of Time, Doc.
Plaintiffs contend they contacted Defendants for comment
concerning the class notice and questionnaire.
Mot. for
assert
Extension of Time Ex., Doc. 133-1.)
the
costs
responsibility.
of
notifying
the
class
(Id. SI 1; Resp. to
Plaintiffs also
are
Plaintiffs'
(Resp. to Mot. for Extension of Time, SI 3.)
Upon due consideration, the Court reluctantly finds extending
Defendants' deadline to respond to Plaintiffs' motion for approval
of class notice and questionnaire is in the interest of judicial
economy. The Parties are encouraged to address their communication
issues in the interim to avoid further delay in circulating the
class notice and questionnaire should the Court deny Defendants'
motion for reconsideration.
IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant
Equity Experts's motion to file under seal (Doc. 123) is DENIED
WITHOUT PREJUDICE.
To the extent Defendant Equity Experts wishes
to file information under seal, it shall FILE a motion and attached
documents in
accordance
with
the
procedures set forth in the
Court's Local Rules within FOURTEEN (14) DAYS of the date of this
Order.
If Defendant Equity Experts wishes to block from public
view certain contents of documents through redaction, it shall
FILE an unredacted version under seal and the redacted version as
a separate attachment within the aforementioned timeframe.^
IT IS FURTHER ORDERED that Defendants' motion for extension
of time
(Doc.
129)
is
GRANTED.
Defendants
shall FILE
their
response to Plaintiffs' motion for approval of class notice and
questionnaire
within FOURTEEN (14) DAYS of the
deciding Defendants' motion for reconsideration.
Court's Order
All subsequent
reply briefs are governed by the Court's Local Rules.
Finally, the Court recognizes the need to redact personal
information in the record as highlighted in Plaintiffs' notice to
substitute a page in the record.
(Doc. 132.)
Accordingly, the
Clerk is DIRECTED to SUBSTITUTE Doc. 132-1 in the place of Doc.
77-4, at 158, and Doc. 79-4, at 158.
ORDER ENTERED at Augusta, Georgia, this
iay of April,
2020.
J.
DM/HALL, CHIEF JUDGE
UNITgS^TATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
1 Defendant Equity Experts is further encouraged to expand on its asserted good
cause reason to redact the financial statements and set forth the requested
duration of the sealing of the document.
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