Bloedorn v. Dr. Bruce Grube, et al
Filing
94
ORDER affirming in part, reversing in part re 88 Order on Motion to Stay, Order on Motion for Extension of Time to File Response/Reply, Order on Motion to Compel. The parties are ordered to supplement their briefing regarding defendants' motion to dismiss within thirty days of this Order. All other discovery is stayed. Signed by Judge B. Avant Edenfield on 3/6/2012. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
BENJAMIN BLOEDORN,
Plaintiff,
v.
6:09-cv-55
DR. BROOKS A. KEEL, in his
official capacity as President of
Georgia Southern University, et al.,
Defendants.
ORDER
I. INTRODUCTION
Before the Court is Plaintiff Benjamin
Bloedorn’s (“Bloedorn”) appeal of the
Magistrate Judge’s January 20, 2012 order.
See Docs. 71; 88; 89.
II. FACTS
Bloedorn sued Defendants, employees of
Georgia Southern University (the
“University”) (collectively “Defendants”),
under 42 U.S.C §§ 1983 and 1988, claiming
that the University’s speech policy deprived
him of his rights to free speech, due process,
and freedom from unreasonable seizure. See
Doc. 54.
Bloedorn, a traveling evangelist,
complains that he was denied the
opportunity to preach freely on the campus
without first obtaining permission from the
University. See id. at 10. He also contested
his arrest for criminal trespass and certain
other time, place, and manner restrictions.
See id. at 2, 11-12.
This Court denied Bloedorn’s motion for
a preliminary injunction. See Doc. 33. The
Eleventh Circuit affirmed on February 28,
2011. See Bloedorn v. Grube, 631 F.3d
1218 (11th Cir. 2011). Bloedorn then
amended his complaint, and the University
amended its speech policy. See Docs. 54;
Doc. 57-2 (University’s second speech
policy (“second Policy”)).
Defendants then moved for partial
dismissal. See Doc. 57. The Court
dismissed Bloedorn’s challenges to the
University’s complete ban on speech outside
the Free Speech Zone, a grassy area that the
University had designated as a public forum.
See Doc. 63 at 7; see also Bloedorn, 631
F.3d at 1234 (concluding that the Free
Speech Zone is a designated public forum).
The Court also dismissed the rest of
Bloedorn’s claims except for his challenges
to the second Policy’s creation of discretion
for the University in determining whether to
grant permit requests and to the second
Policy’s literature distribution identification
requirements. See id. at 8-9.
The Court did not dismiss Bloedorn’s
“objections” to the second Policy’s
requirements that a speaker request
permission to speak 48 hours in advance or
to its limits on the duration and frequency of
a particular speaker’s speech because
Defendants did not challenge those
objections. See id. at 5, 7.
The University again amended its speech
policy, and Defendants brought a motion to
dismiss all of Bloedorn’s remaining claims
and a motion for judgment on the pleadings
with regards to Bloedorn’s objection to the
48-hour notice requirement. See Docs 71;
71-1 (University’s current speech policy
(“current Policy”)).
Defendants also filed a motion to stay all
discovery in the case pending the Court’s
ruling on their dispositive motion. See Doc.
72. The Magistrate Judge granted that
motion, denying Bloedorn’s motion to
compel discovery. See Doc. 88. Bloedorn
appeals the Magistrate Judge’s order. See
Docs. 89.
discovery. See In re CP Ships Ltd.
Securities Litigation, 578 F.3d 1306, 1312
(11th Cir. 2009) (“In a factual challenge [to
subject matter jurisdiction], the district court
must give the plaintiff an opportunity for
discovery and for a hearing that is
appropriate to the nature of the motion to
dismiss.” (quotation omitted)), abrogated on
other grounds by Morrison v. Nat’l Austl.
Bank Ltd., 130 S. Ct. 2869 (2010). Thus,
the Court must look to Bloedorn’s remaining
claims and Defendants’ motion to dismiss to
determine if discovery is needed on the
claims at issue.
III. STANDARD OF REVIEW
Pursuant to Local Rule 72.2, Bloedorn
challenges the Magistrate Judge’s January
20, 2012 order granting Defendants’ motion
to stay and denying Bloedorn’s motion to
compel. See Doc. 89; see also Doc. 88.
Defendants move to dismiss Bloedorn’s
claims, except for any claim pertaining to
the 48-hour notice requirement, as being
moot under the current Policy. See Doc. 71.
The Court shall set aside a nondispositive order of the Magistrate Judge
that is “clearly erroneous or contrary to
law.” S.D. GA. L.R. 72.2.
“A case is moot when events subsequent
to the commencement of a lawsuit create a
situation in which the court can no longer
give the plaintiff meaningful relief.” Jews
for Jesus, Inc. v. Hillsborough Cnty.
Aviation Auth., 162 F.3d 627, 629 (11th Cir.
1998).
IV. ANALYSIS
Defendants moved to stay all discovery
in the case. See Doc. 72. In deciding
whether to stay discovery, some courts
“balance the harm produced by a delay in
discovery against the possibility that the
motion will be granted and entirely
eliminate the need for such discovery.”
Feldman v. Flood, 176 F.R.D. 651, 652
(M.D. Fla. 1997).
Defendants claim that the current Policy
“eliminates a number of the provisions
challenged by Plaintiff.” Doc. 71 at 4.
“It is well settled that ‘a defendant's
voluntary cessation of a challenged practice
does not deprive a federal court of its power
to determine the legality of the practice.’”
Nat’l Ass’n of Bds. of Pharmacy v. Bd. of
Regents of the Univ. Sys. of Ga., 633 F.3d
1297, 1309 (11th Cir. 2011) (quoting
Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 189
(2000)). “Accordingly, the voluntary
cessation of challenged conduct will only
The Magistrate Judge “has broad
discretion to stay discovery pending
decision on a dispositive motion.” Panola
Land Buyers Ass’n. v. Shuman, 762 F.2d
1550, 1560 (11th Cir. 1985). A stay of
discovery, however, is improper if the
discovery relates to a factual attack on
subject matter jurisdiction for which the
plaintiff has had no opportunity to engage in
2
moot a claim when there is no ‘reasonable
expectation’ that the accused litigant will
resume the conduct after the lawsuit is
dismissed.” Nat’l Ass’n of Bds. of
Pharmacy, 633 F.3d at 1309.
conduct.” Nat’l Ass’n of Bds. of Pharmacy,
633 F.3d at 1310.
The Magistrate Judge granted
Defendants’ motion to stay discovery. See
Doc. 88. The Magistrate Judge recognized
that Bloedorn’s claims had already been
“whittled away via summary disposition,
thus sparing considerable discovery
expense.” Id. at 2. The Magistrate Judge
also reasoned that the issues remaining in
the case are primarily of a legal, not factual,
nature. See id. The Magistrate Judge
implicitly determined that Defendants’
motion would be granted with regards to
mootness, stating:
“The heavy burden of persuading the
court that the challenged conduct cannot
reasonably be expected to recur lies with the
party asserting mootness.” Friends of the
Earth, Inc., 528 U.S. at 170. Yet,
“government actor[s enjoy] a rebuttable
presumption that the objectionable behavior
will not recur.” Troiano v. Supervisor of
Elections in Palm Beach Cnty., Fla., 382
F.3d 1276 (11th Cir. 2004); see also Harrell
v. The Fla. Bar, 608 F.3d 1241, 1266 (11th
Cir. 2010). Hence, “the Supreme Court has
held almost uniformly that voluntary
cessation [by a government defendant]
moots the claim.” Beta Upsilon Chi Upsilon
Chapter at the Univ. of Fla.v. Machen, 586
F.3d 908, 917 (11th Cir. 2009).
it appears that all that is left for the
Court to resolve is plaintiff’s
challenge to GSU’s “forty-eighthour” requirement (i.e., its speech
policy’s rule that “outside” speakers
like Bloedorn must submit, no later
than 48 hours prior to the date on
which they seek to reserve GSU’s
forum for speech, a request form).
The Eleventh Circuit “ha[s] consistently
held that a challenge to . . . government
[conduct] that has been unambiguously
terminated will be moot in the absence of
some reasonable basis to believe that the
[conduct] will [resume] if the suit is
terminated.” Troiano, 382 F.3d at 1285.
“Three factors are relevant in conducting
this mootness inquiry”: (1) “whether the
termination of the offending conduct was
‘unambiguous’”; (2) “whether the change in
government policy or conduct appears to be
the result of substantial deliberation, or is
simply an attempt to manipulate
jurisdiction”; and (3) “whether the
government has ‘consistently applied’ a new
policy or adhered to a new course of
Id. at 2-3.
This Court agrees with the Magistrate
Judge’s evaluation of the likely disposition
of Defendants’ motion; nevertheless, with an
abundance of caution, the Court reverses the
Magistrate Judge’s decision insofar as he
has stayed discovery related to Defendants’
factual attack on this Court’s jurisdiction.
Mootness involves, in part, a factual
inquiry. See Nat’l Assoc. of Bds. of
Pharmacy, 633 F.3d at 1309, 1311
(requiring analysis of “reasonable
expectation” that challenged activity will not
be resumed). Defendants also admit that
their motion is a factual attack on this
3
Court’s jurisdiction. See Doc. 71 at 4 n.1.
A Court acts improperly when it stays
discovery relating to a factual attack on
jurisdiction without giving the plaintiff an
opportunity for discovery. See In re CP
Ships Ltd. Securities Litigation, 578 F.3d at
1312.
This 6th day of March 2012.
)
)?f'''
R AVANT EDENFIELØ, JIJDGE
UNiTED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
Accordingly, because the Court finds
that factual discovery could support
Bloedorn’s case, the Court AFFIRMS IN
PART, REVERSES IN PART the decision
of the Magistrate Judge. The parties may
engage in discovery directly pertaining to
the mootness of Bloedorn’s remaining
claims and those factors discussed in Nat’l
Ass ’n of Bds. of Pharmacy for twenty (20
days). See 633 F.3d at 1310. The Court will
not extend this time frame. All other
discovery is STAYED.
V. CONCLUSION
The Magistrate Judge’s Order, see Doc.
88, is AFFIRMED IN PART, REVERSED
IN PART. The parties may engage in
discovery directly pertaining to the
mootness of Bloedorn’s remaining claims
and those factors discussed in Nat’l Ass’n of
Bds. of Pharmacy for twenty (20) days. See
633 F.3d at 1310. The Court will not extend
this time frame.
The parties are ORDERED to
supplement their briefing regarding
Defendants’ motion to dismiss within thirty
(30) days of this Order if necessary.
The parties are ORDERED make a good
faith effort to confer with each other in
continuing discovery in a manner consistent
with this Order. See FED. R. C IV. P.
37(a)(1). All other discovery is STAYED.
4
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?