Foley v. Orange County

• Court: District Court, M.D. Florida
• Decided: March 14, 2023
• Docket: 6:22-cv-00456
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

DAVID W. FOLEY, JR.; and JENNIFER T. FOLEY,

Plaintiffs,

v. Case No. 6:22-cv-456-RBD-EJK

ORANGE COUNTY; ASIMA AZAM; TIM BOLDIG; FRED BRUMMER; RICHARD CROTTY; FRANK DETOMA; MILDRED FERNANDEZ; MITCH GORDON; TARA GOULD; CAROL HOSSFIELD; TERESA JACOBS; RODERICK LOVE; ROCCO RELVINI; SCOTT RICHMAN; JOE ROBERTS; MARCUS ROBINSON; TIFFANY RUSSELL; BILL SEGAL; PHIL SMITH; and LINDA STEWART,

Defendants. ____________________________________

ORDER Before the Court is Defendants’ Motion for Judgment Pursuant to Rule 58. (Doc. 71 (“Motion”).) The Court previously dismissed the pro se Plaintiffs’ case with prejudice. (Doc. 70.) Defendants then filed the instant Motion seeking the entry of a separate final judgment under Federal Rule of Civil Procedure 58. (Doc. 71.) Plaintiffs subsequently appealed from the dismissal order. (Docs. 84, 105, 109, 115, 123.) But they did not substantively oppose the Motion for final judgment, asking only that its resolution be delayed until after the Court ruled on their motion for

reconsideration of the dismissal order, which was later denied. (Docs. 83, 89, 104.) The Motion was referred to U.S. Magistrate Judge Embry J. Kidd, who entered a Report and Recommendation submitting that the Court should grant the

Motion and enter a separate judgment to avoid any confusion as to the finality of the dismissal order. (Doc. 125 (“R&R”).) Judge Kidd noted the lack of substantive opposition by Plaintiffs. (Id.) Plaintiffs then objected to the R&R on the ground that it was moot. (Doc. 129 (“Objection”).)

After an independent de novo review of the record, the Motion, and the Objection, the Court agrees with Judge Kidd’s R&R. See 28 U.S.C. § 636(b)(1); Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 513 (11th Cir. 1990). It is

true that parties may waive the Rule 58(d) requirement, and many parties do treat a dismissal with prejudice as a final appealable order even without a separate judgment. See Llauro v. Linville, No. 20-12862, 2021 WL 5767935, at *3 (11th Cir.

Nov. 6, 2021). But in this case, Defendants did request a separate judgment for clarity—and understandably so, as Plaintiffs, being pro se, have demonstrated confusion as to whether the dismissal order was immediately appealable. (See Doc. 120, p. 6; see also Docs. 84, 105, 109, 115, 123.) Given Defendants’ request and

Plaintiffs’ lack of substantive opposition to the Motion, the Court agrees with Judge Kidd that a separate judgment here is warranted; as such, Plaintiffs’ Objection to the R&R is not well-taken. See Fed. R. Civ. P. 58 advisory committee’s

note (emphasizing that the purpose of the rule is to provide clarity as to appellate rights); cf. Llauro, 2021 WL 5767935, at *3 (noting waiver where one party appeals from a dismissal order and the other party does not raise the absence of a separate judgment).? Accordingly, it is ORDERED AND ADJUDGED: 1. The Objection (Doc. 129) is OVERRULED. 2. The R&R (Doc. 125) is ADOPTED, CONFIRMED, and made a part of this Order in its entirety. 3. The Motion (Doc. 71) is GRANTED. 4. The Clerk is DIRECTED to enter judgment in favor of Defendants and against Plaintiffs. DONE AND ORDERED in Chambers in Orlando, Florida, on March 14, 2023.

f] i. py é el ROY B. DALTON JR: United States District Judge

1 See generally Fogade v. ENB Revocable Tr., 263 F.3d 1274, 1286-87 & n.10 (11th Cir. 2001) (noting that where Rule 58 requirement was not waived, district court did not lose jurisdiction to enter separate judgment).