Burke v. Hillsborough County School Board

Middle District of Florida, flmd-8:2017-cv-00993

ORDER: Plaintiff shall review and comply with the provisions of this Order, as well as the Federal Rules of Civil Procedure, the Local Rules of the Middle District of Florida, and any applicable statutes and regulations. Signed by Judge Virginia M. Hernandez Covington on 5/2/2017. (DRW)

Interested in this case?

Current View

Full Text

1 PageID 19 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION CHAD BURKE, Plaintiff, v. Case No. 8:17-cv-993-T-33JSS HILLSBOROUGH COUNTY SCHOOL BOARD, Defendant. ______________________________/ ORDER This cause is before the Court sua sponte. A review of the file indicates that Plaintiff is proceeding pro se. Because Plaintiff is proceeding pro se, the Court takes the opportunity to inform Plaintiff of some of the procedural rules with which Plaintiff must comply. The Court does so because pro se litigants are subject to the same law and rules as litigants who are represented by counsel, including the Federal Rules of Civil Procedure and the Local Rules. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). While the Court will set forth some of the more prominent procedural obligations and requirements, this Order does not set forth all of the requirements and should not be relied upon as limiting Plaintiff's duties and obligations. 1 PageID 20 For more information, Plaintiff should review the "Proceeding Without a Lawyer" section of the court's website. Of particular note is the Handbook designed to help guide pro se litigants. Also, there is a legal assistance program on Tuesdays from 11:00 a.m. to 1:00 p.m. on the second floor of the Sam A. Gibbons United States Courthouse where pro se litigants may consult with a lawyer on a limited basis for free. A description of this program may be found on the court's website under the "Proceeding Without a Lawyer" section. I. Frequent Terms Action A "civil or criminal judicial proceeding." Action, Black's Law Dictionary (10th ed. 2014). An action is often used as a synonym for suit or lawsuit. Id. Answer A type of pleading. An answer is how a defendant responds to a complaint. Fed. R. Civ. P. 8(b). Cause of Action A "factual situation that entitles one person to obtain a remedy in court from another person." Cause of action, Black's Law Dictionary (10th ed. 2014). Complaint A type of pleading. A complaint is how a plaintiff initiates a civil lawsuit and it is the document that contains the plaintiff's allegations forming the basis of the suit. Fed. R. Civ. P. 8(a). In Forma Pauperis Latin for "in the manner of a pauper" and used by courts to indicate when a litigant is excused from paying filing fees. In forma pauperis, Black's Law Dictionary (10th ed. 2014). 2 1 PageID 21 Motion How relief is requested from the court. A motion must (1) be in writing unless made during a hearing or at trial, (2) state with particularity the grounds for seeking the order, and (3) state the relief sought. Fed. R. Civ. P. 7(b). Movant The party that files a motion and is seeking relief from the court. Pleading There are only 7 types of filings that are considered pleadings under the Rules. Fed. R. Civ. P. 7(a). Two common types of pleadings are a complaint and an answer. Process "A summons or writ, [especially] to appear or respond in court." Process, Black's Law Dictionary. Pro Se "One who represents oneself in a court proceeding without the assistance of a lawyer." Pro se, Black's Law Dictionary (10th ed. 2014). Service of Process Refers to the procedure for notifying a defendant that a lawsuit has been filed against him or her. Federal Rule of Civil Procedure 4 lists the requirements for effecting service of process. Sua Sponte Latin for "of one's own accord; voluntarily" and used by the court to indicate when an order was entered on the court's own initiative. Sua Sponte, Black's Law Dictionary (10th ed. 2014). Summons "A writ or process commencing the plaintiff's action and requiring the defendant to appear and answer." Summons, Black's Law Dictionary (10th ed. 2014). Federal Rule of Civil Procedure 4(a) lists the required contents of a summons. II. Local Rules The Local Rules are available for review on the public website for the Middle District Court of Florida and a copy may be obtained by visiting the Clerk's Office. 3 1 PageID 22 III. Federal Rules of Civil Procedure The Federal Rules of Civil Procedure are available for review online or in the law libraries of the state and federal courthouses. IV. Filing Fee In order to maintain an action in this Court, Plaintiff must either pay the filing fee to the Clerk's Office or file a motion to proceed in forma pauperis. If the filing fee has not already been paid, Plaintiff is directed to either pay the filing fee or file a motion to proceed in forma pauperis. V. Service of Process Plaintiff is required to perfect service of process on all defendants within 90 days of filing the complaint. Fed. R. Civ. P. 4(m). It is Plaintiff's responsibility to ensure service of process occurs within the 90-day window. Fed. R. Civ. P. 4(c)(1). Failure to timely or otherwise properly perfect service of process may, under some circumstances, result in dismissal of the case. Fed. R. Civ. P. 4(m), 12(b). Plaintiff must also file proof of service, generally by affidavit of the process server, as to each defendant who has not waived service. Fed. R. Civ. P. 4(l)(1). For those plaintiffs who have filed a motion to proceed in forma pauperis, the Court endeavors to rule on such motions 4 1 PageID 23 in a timely fashion. However, it remains the Plaintiff's burden to ensure service on all defendants is accomplished within 90 days from when the complaint was filed. Fed. R. Civ. P. 4(c)(1), 4(m). If the motion to proceed in forma pauperis is granted, the United States Marshals Service will attempt to serve the defendants after you provide fully executed summonses and copies of the complaint to the Marshals Service. However, the Marshals Service will not attempt to effect service until the motion to proceed in forma pauperis is granted. Fed. R. Civ. P. 4(c)(3). On its own initiative, or by the Plaintiff filing a motion, the Court will address extensions of time to serve defendants on an as needed basis. Nevertheless, you should actively monitor the docket. VI. Filings with the Court All filings with the Court must be made in accordance with the Federal Rules of Civil Procedure and this Court's Local Rules. A. Corresponding with the Court No party shall correspond with the Court or any Judge or Magistrate Judge of the Court in letter form. M.D. Fla. L.R. 3.01(f). The Judges of this Court will only deliver their decisions and opinions in response to documents filed with the Clerk's Office in accordance with the governing rules of 5 1 PageID 24 procedure. Any correspondence sent to judicial officers will not be responded to, will be stricken from the case file, and will be returned to the sending party. B. Types of Filings All documents filed with the Court must be in the form of either a pleading or a motion. Each pleading, motion, notice, or other paper shall be presented in a separate document. C. Requesting Relief from the Court All requests for relief from, or action by, the Court must be in the form of a motion. The motion must meet the requirements of all applicable rules. All motions must be accompanied by a legal memorandum with citation of authorities in support of the relief requested. M.D. Fla. L.R. 3.01(a). The motion and memorandum shall be filed as one single document and cannot exceed 25 pages in length. Id. Further, prior to filing most motions, Local Rule 3.01(g) requires that the party filing the motion confer with opposing counsel in a good faith attempt to resolve the issue. The motion must include a certificate that the movant has complied with this requirement and shall also notify the Court whether the parties agree on the relief requested. The Court expects all parties to carry out their obligation under Local 6 1 PageID 25 Rule 3.01(g) in good faith and to make themselves reasonably available for Local Rule 3.01(g) conferences. Local Rule 3.01 sets forth several other requirements and rules governing motions filed with the Court. Failure to comply with these requirements or any other rule may result in the denial of the motion. D. Responding to Motions If Plaintiff wishes to respond to a motion filed by another party in this case, the response must be timely filed. Any brief or legal memorandum in opposition to a motion must be filed within 14 days after Plaintiff is served with that motion. M.D. Fla. L.R. 3.01(b). If a party has missed a filing deadline, that party must file a motion seeking leave of Court to file the document out of time. If a response is not timely filed, the Court may assume Plaintiff does not oppose that motion and any relief requested by it. Moreover, a response in opposition may not exceed 20 pages. Id. E. Additional Requirements All documents filed with the Court must include a caption, a brief title that describes the nature of the document, the filing party's name and signature, and a Certificate of Service. Fed. R. Civ. P. 10, 11. The last two items are explained below. 7 1 PageID 26 1. Name and Signature All pleadings, motions, or other papers filed with the Court by Plaintiff must bear his or her original signature, or they will be rejected by the Court. Among other things, the signature serves as Plaintiff's certification under Rule 11(b) that the document is not submitted for any improper purpose; that the claims or defenses presented in it are warranted by existing law; and that there exists reasonable factual support for the allegations or assertions made. Plaintiff should carefully review Rule 11, as the failure to comply with its provisions can result in the imposition of sanctions, including monetary fines or dismissal of the case. 2. Certificate of Service All pleadings, motions, or other papers filed with the Court by Plaintiff must also include a signed Certificate of Service. The Certificate of Service is confirmation that Plaintiff has complied with the requirements of Rule 5 by serving on every other party to the action (or its attorney) a copy of the particular pleading, motion, or other paper filed with the Court. At a minimum, a Certificate of Service must state the date on which a copy of the particular document was served on the other parties to the action (or their 8 1 PageID 27 attorneys) and the means by which such service was made (e.g., U.S. Mail, Federal Express, or hand delivery). VII. Compliance with Court's Orders Plaintiff must abide by and comply with all orders of this Court. Failure to do so may result in sanctions, including dismissal of this case. VIII. Compliance with Applicable Rules Although proceeding pro se, Plaintiff is not relieved of all of the obligations that rest upon an attorney. There are still many requirements with which Plaintiff must comply, including those imposed by the Federal Rules of Civil Procedure and the Local Rules of this Court. Plaintiff is warned that the failure to comply with these requirements and obligations can have significant consequences. For example, failure to respond to discovery requests as described in the Rules may result in sanctions. Fed. R. Civ. P. 37. In addition, failure to conduct a timely Case Management Conference and submit a Case Management Report can result in dismissal of this case for lack of prosecution. M.D. Fla. L.R. 3.05, 3.10. IX. Duty to Maintain Information and Monitor Docket Plaintiff is under a continuing obligation to keep his or her address, phone number, and, if on file, e-mail address 9 1 PageID 28 current. The Court must be informed of any change in Plaintiff's contact information. In addition, Plaintiff is under a continuing obligation to regularly monitor the docket. Failure to do so may result in Plaintiff missing a deadline, which as described above can have severe consequences. X. CM/ECF Access CM/ECF is the Court's electronic docketing system. Use of CM/ECF allows for more efficient communication between the parties and the Court. If Plaintiff has paid the filing fee or has been granted permission by the Court to proceed in forma pauperis, Plaintiff may file a motion requesting access to CM/ECF. While use of CM/ECF is encouraged, it is not required for pro se litigants. If the Court grants a pro se litigant permission to use CM/ECF, that person must comply with the Clerk's CM/ECF Administrative Procedures and other applicable rules. XI. Judge Covington's Practices and Preferences Judge Covington's webpage on the Middle District of Florida's website contains useful information and lists Judge Covington's practices. Plaintiff is highly encouraged to thoroughly review the webpage. 10 1 PageID 29 Accordingly, it is ORDERED, ADJUDGED, and DECREED: Plaintiff shall review and comply with the provisions of this Order, as well as the Federal Rules of Civil Procedure, the Local Rules of the Middle District of Florida, and any applicable statutes and regulations. DONE and ORDERED in Chambers in Tampa, Florida, this 2nd day of May, 2017. 11