Court filing

Order Overruling Objection re Supplemental Authority — Wall v. CDC

No. 6:21-cv-00975-PGB-DCI · Doc. 159 · Docket on CourtListener

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Case 6:21-cv-00975-PGB-DCI Document 159 Filed 10/19/21 Page 1 of 6 PageID 4921

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

LUCAS WALL,

Plaintiff,

v. Case No: 6:21-cv-975-PGB-DCI

CENTERS FOR DISEASE
CONTROL & PREVENTION,
DEPARTMENT OF HEALTH &
HUMAN SERVICES,
TRANSPORTATION SECURITY
ADMINISTRATION,
DEPARTMENT OF HOMELAND
SECURITY, DEPARTMENT OF
TRANSPORTATION, JOSEPH
R. BIDEN, JR. , GREATER
ORLANDO AVIATION
AUTHORITY and CENTRAL
FLORIDA REGIONAL
TRANSPORTATION
AUTHORITY,

Defendants.
/

ORDER

This cause is before the Court on Plaintiff Lucas Wall’s Motion to Vacate the

Magistrate Judge’s Order Striking Notice of Supplemental Authority (Doc. 144 (the

“Objection”)), filed August 28, 2021. Upon consideration, the Objection is

overruled.

As is relevant here, Plaintiff filed a Notice of Supplemental Authority in

support of his Motion for Summary Judgment on August 27, 2021. (Doc. 140).
Case 6:21-cv-00975-PGB-DCI Document 159 Filed 10/19/21 Page 2 of 6 PageID 4922

Magistrate Judge Irick struck Plaintiff’s Notice of Supplemental Authority on the

same day, stating:

If a party deems it appropriate to alert the Court to a new
legal authority by filing a notice of supplemental
authority, it may do so by filing only the citation to the
new legal authority. Plaintiff has filed a number of notices
that go beyond such a citation and—in conjunction with
each other and the filing they purport to supplement—
constitute violations of the Court’s local rules concerning
page limitations. See, e.g., Docs. 99, 107, 109, 108, 140.
Any further notices that contain such commentary will be
stricken and the filer may be subject to sanctions.

(Doc. 141 (the “Order”)). Plaintiff now requests the Court to vacate Magistrate

Judge Irick’s Order and to reinstate his Notice of Supplemental Authority, arguing

that Magistrate Judge Irick “misapplied” Local Rule 3.01(i). (Doc. 144).

Federal Rule of Civil Procedure 72(a) authorizes a district court reviewing a

litigant’s objection to a magistrate judge’s non-dispositive order to “modify or set

aside any part of the order that is clearly erroneous or is contrary to law.” FED. R.

CIV. P. 72(a); see also Howard v. Hartford Life & Accident Ins. Co., 769 F. Supp.

2d 1366, 1372 (M.D. Fla. 2011). “A finding is ‘clearly erroneous’ when although

there is evidence to support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been committed.” TemPay,

Inc. v. Biltres Staffing of Tampa Bay, LLC, 929 F. Supp. 2d 1255, 1260 (M.D. Fla.

2013) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). “An

order is contrary to law ‘when it fails to apply or misapplies relevant statutes, case

2
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law or rules of procedure.’” Id. (quoting S.E.C. v. Kramer, 778 F. Supp. 2d 1320,

1326–27 (M.D. Fla. 2011)).

Here, Local Rule 3.01(i) provides:

After filing a legal memorandum but before a decision, a
party identifying a supplemental authority that is not
merely cumulative may file—without argument or
comment—a notice of supplemental authority that
contains only:

(1) a citation of the authority;

(2) a specification by page, paragraph, and line
of the issue or argument in the earlier paper
that the authority supplements; and

(3) a succinct quotation from the authority.

The notice must not include a copy of the authority unless
the authority is not readily available and must not exceed
two pages inclusive of all parts.

Plaintiff contends that: (1) “The magistrate’s Order is clearly erroneous because it

states a party may file ‘only the citation’ but ignores Clauses 2 & 3 of Local Rule

3.01(i)”; (2) each of his numerous Notices of Supplemental Authority comply with

the two-page limit; and (3) “The magistrate’s Order seems to object that [he has]

filed too many Notices of Supplemental Authority pursuant to Rule 3.01(i) . . . But

there is no limit in the Local Rule on the number of such notices that may be

submitted.” (Id. at p. 2).

First, Magistrate Judge Irick did not ignore the second and third

requirements for a Notice of Supplemental Authority. The use of the conjunctive

“and” means Plaintiff must satisfy all three of these conditions to properly file a

3
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Notice of Supplemental Authority, and Magistrate Judge Irick’s Order properly

notes that the instant Notice of Supplemental Authority fails the first one. Rather

than simply citing the authority, Plaintiff provides long excerpts from the case,

without specifying the page, paragraph, and line of the argument in the Motion for

Summary Judgment that these excerpts supplement. (Doc. 140). Consequently,

even though Magistrate Judge Irick only explicitly references the first requirement,

it is clear that Plaintiff’s Notice of Supplemental Authority fails to comply with

second and third requirements, too.

Moreover, the primary issue with Plaintiff’s filing is the inclusion of

“commentary.” (Doc. 141) (emphasis added). In the instant Notice of

Supplemental Authority, Plaintiff states, “The Supreme Court last night struck

down Defendant CDC’s Eviction Moratorium, which is based on the same statute

and regulations as the two orders (FTMM and ITTR) I challenge.” (Doc. 140, p. 1).

In the following paragraphs, Plaintiff: (1) bolds and capitalizes the words “Counts

4 & 22” and then proffers a 14-line quotation; (2) bolds and capitalizes the words

“Count 6” and then proffers a three-line quotation; and (3) bolds and capitalizes

the word “Generally” and then proffers a seven-line quotation, with the sentence

“But our system does not permit agencies to act unlawfully even in pursuit of

desirable ends” in bold italics.1 (Id. at pp. 1–2). Local Rule 3.01(i) clearly prohibits

1 Plaintiff appears to reference certain causes of action in his Complaint here. However, Local
Rule 3.01(i) requires “a specification by page, paragraph, and line of the issue or argument in
the earlier paper that the authority supplements.” The Notice of Supplemental Authority not
only fails to specify a page, paragraph, or line, but it also fails to cite to “the earlier paper that
the authority supplements,” Plaintiff’s Motion for Summary Judgment.

4
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such “argument or comment.” Therefore, the Notice of Supplemental Authority

goes beyond merely citing to the authority, specifying the supplemented issue or

argument, and succinctly quoting the authority.

Accordingly, Plaintiff’s Notice of Supplemental Authority also violates the

25-page limitation for Motions under Local Rule 3.01(a). In other words, because

Plaintiff’s Notice of Supplemental Authority does not merely identify a relevant

case but rather comments on that case, the filing impermissibly adds pages to his

Motion for Summary Judgment. Thus, even though the Notice of Supplemental

Authority complies with Local Rule 3.01(i)’s two-page limit, it must comply with

the entirety of Local Rule 3.01(i) to constitute a proper filing.

Next, it is true that there is no specific limit on the number of Notices of

Supplemental Authority a litigant can file under Local Rule 3.01(i). However, Local

Rule 3.01(i) bars such filings that are “merely cumulative.” Magistrate Judge Irick

does not go as far as to characterize Plaintiff’s filings as “merely cumulative” in his

Order. Instead, he points out that some of Plaintiff’s other Notices of Supplemental

Authority also suffer from the defects outlined above.2 Nonetheless, Plaintiff

should take note that he does not necessarily have carte blanche to file Notices of

Supplemental Authority under the Local Rules.

2 For example, Plaintiff’s Notice of Supplemental Authority in support of his Motion to Dismiss,
filed on July 24, 2021, states: “That preliminary injunction order has now been upheld by the
11th Circuit pending appeal, signaling to this Court that the appellate tribunal will view other
CDC COVID-19 pandemic orders issued beyond the agency’s constitutional, statutory, and
regulatory authority with great skepticism. This Court should grant the pending Motion for
Summary Judgment.” (Doc. 99, p. 2). This is impermissible commentary.

5
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Finally, the Court notes that Plaintiff filed a Notice Requesting Immediate

Ruling on the Unopposed Motion to Vacate (Doc. 152) on September 28, 2021.

Plaintiff complains that a month elapsed without a ruling from the Court on the

instant Objection. (Id.). This filing is completely inappropriate. Plaintiff’s case is

not the only action on the Court’s docket, and Plaintiff does not dictate how the

Court manages its caseload. Going forward, the Court will immediately strike any

further filings of this impertinent nature and may impose other fitting sanctions

on Plaintiff.

For these reasons, the Court OVERRULES Plaintiff’s Motion to Vacate the

Magistrate Judge’s Order Striking Notice of Supplemental Authority (Doc. 144)

and AFFIRMS Magistrate Judge Irick’s Order Striking the Notice of

Supplemental Authority (Doc. 141).

DONE AND ORDERED in Orlando, Florida on October 19, 2021.

Copies furnished to:

Counsel of Record
Unrepresented Parties

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