IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA THE LEAGUE OF WOMEN VOTERS OF FLORIDA; THE NATIONAL COUNCIL OF LA RAZA; COMMON CAUSE FLORIDA; JOAN ERWIN; ROLAND SANCHEZ-MEDINA, JR.; J. STEELE OLMSTEAD; CHARLES PETERS; OLIVER D. FINNIGAN; SERENA CATHERINA BALDACCHINO; AND DUDLEY BATES Plaintiffs, v. KENNETH W. DETZNER, in his official capacity as Florida Secretary of State; THE FLORIDA SENATE; MICHAEL HARIDOPOLOS, in his official capacity as President of the Florida State Senate; THE FLORIDA HOUSE OF REPRESENTATIVES; and DEAN CANNON, in his official capacity as Speaker of the Florida House of Representatives, Defendants. PLAINTIFFS OPPOSITION TO THE FLORIDA HOUSE OF REPRESENTATIVES MOTION TO STAY DISCOVERY Plaintiffs respectfully oppose The Florida House of Representatives Motion to Stay Discovery. The motion should be denied for the reasons set forth herein.
INTRODUCTION The Florida House of Representatives seeks a complete stay of discovery in this case based on the pendency of a motion to dismiss that has little chance of success. The House s apparent confidence in its dismissal arguments notwithstanding, it is well-settled law in Florida that the pendency of a motion to dismiss does not provide sufficient good cause to bring the discovery process to a halt. Nor, apart from the pendency of its dismissal motion, does the House set forth any compelling justifications for a blanket stay. In fact, even if this Court were inclined to postpone certain depositions of legislators and their staff pending appellate review of its legislative privilege ruling in the Congressional (Romo case, the rest of this case should proceed without delay Plaintiffs have served discrete, narrowly tailored discovery designed to set this case on a track for trial. There is no good reason to interrupt that progress. BACKGROUND The Complaint in this case, which asserts claims pursuant to Article III, Section 21 of the Florida Constitution challenging the proposed Senate map enacted by the Florida Legislature, was filed on September 5, 2012. Because these same parties are also litigating a factually and legally related case challenging the proposed Congressional Map, Plaintiffs moved to consolidate these two cases for discovery purposes only. Consolidation is particularly appropriate for discovery, and relevant here, because of the litigation efficiency and judicial economy that will be realized by avoiding duplicative depositions and document productions. Thus, since there is neither a pending motion to dismiss nor a similar motion for a complete stay in the Congressional (Romo case where discovery is proceeding, staying discovery in this case would 2
nullify many of the benefits and savings that the parties and the Court might realize through consolidation. Also, although the Legislative Defendants have moved to dismiss this action, the Secretary of State has not yet responded to the Complaint and is not due to respond until November 13, 2012. Plaintiffs have requested a hearing on the Legislative Defendants motion to dismiss. In the interim, Plaintiffs have sought to make sure that this case does not languish. On October 29, 2012, Plaintiffs served a first set of six limited interrogatories, as well as a first request for production of documents. Both discovery requests are narrowly tailored and specifically targeted to gathering basic and fundamental information and documents that will allow for the balance of discovery to proceed quickly and efficiently. Plaintiffs have also crossnoticed certain depositions that have been scheduled in the Congressional case, which will prevent the parties, deponents and lawyers from having to repeat many of the same depositions twice. Consolidation of these cases for discovery would further ensure additional discovery efficiency. Allowing for this continued, orderly progression of discovery will make for a timely resolution of this dispute. MEMORANDUM OF LAW The law is clear that the pendency of a motion to dismiss is not sufficient good cause to stay discovery. In Maris Distributing Co. v. Anheuser-Busch, Inc., the First District Court of Appeal quashed a trial court order staying discovery pending a ruling on a motion to dismiss, drawing on Florida Supreme Court precedent that a trial court may limit discovery only when the moving party has made an affirmative showing of good cause. 710 So. 2d 1022, 1025 (Fla. 3
1st DCA 1998 (emphasis added and citing Deltona Corp. v. Bailey, 336 So. 2d 1163, 1169 (Fla. 1976. See also Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607, 611 (Fla. 4th DCA 1975 (finding no good cause for stay of discovery pending motion to dismiss. Moreover, Florida Rule of Civil Procedure 1.280, which governs discovery generally in Florida state courts, contemplates that discovery will proceed even with a pending, allegedly dispositive motion to dismiss. Discovery stays are similarly disfavored and rarely granted in Florida s federal courts. 1 In Feldman v. Flood, 176 F.R.D. 651 (M.D. Fla. 1997, for example, the district court denied a motion to stay pending resolution of a motion to dismiss after balancing the harm produced by a delay in discovery against the possibility that the motion to dismiss would be granted. The Court found that the balance tips in favor of permitting discovery to proceed because, like here, it is not clear on the face of the motion to dismiss that it will be granted, and also because, like here, many of the issues that will be the subject of discovery will be litigated anyway. Id. at 653. See also Schreiber v. Kite King s Lake, LLC, No., 10cv391, 2010 WL 3909717 (M.D. Fla. Oct. 1, 2010 (denying motion to stay discovery pending motion to dismiss where it was not clear that the dismissal motion would be granted; Koock v. Sugar & Felsenthal, LLP, No. 09cv609, 2009 WL 2579307 (M.D. Fla. Aug. 19, 2009 (same; Bocciolone v. Solowsky, No. 08cv20200, 2008 WL 2906719 (S.D. Fla. Jul. 24, 2008 (same. Similar to Florida Rule of Civil Procedure 1.280, Federal Rule of Civil Procedure 26 does not contemplate a stay of discovery when there is a pending motion to dismiss. And, the Discovery Practices Handbooks for both the Southern and Middle Districts of Florida go even further: 1 Since the Florida Rules of Civil Procedure are patterned very closely after the Federal rules, it has been the practice of Florida courts to examine and analyze the Federal decisions and commentaries under the Federal rules in interpreting Florida s own discovery Rules. See Orlando Sports Stadium, 316 So. 2d 607 at 611. 4
Normally, the pendency of a motion to dismiss or motion for summary judgment will not justify a unilateral motion to stay discovery pending a ruling on the dispositive motion. Such motions to stay are generally denied except where a specific showing of prejudice or burdensomeness is made, or where a statute dictates that a stay is appropriate or mandatory. S.D. Fla. L.R., Appendix A at D(5. Applying this law here, there can be no question that a stay is unwarranted. Having done little more than declare their motion to dismiss to be case dispositive and complain of the burdens of discovery, the House has not come close to making the requisite showing for a complete stay of discovery, let alone establishing the prejudice the defendants will suffer from simply complying with the relevant discovery rules. The motion does not identify a single aspect of Plaintiffs discovery that requires anything more than a straightforward response or production of documents, much less explain how a coordinate branch of government will be put to considerable additional expense. In fact, if this case is consolidated with the Congressional action for discovery purposes only, it is quite possible that a great deal of the discovery work will have already been completed. And, even absent consolidation, the discovery at issue is nothing approaching burdensome. As to the motion to dismiss itself, even a cursory review reveals that it has almost no chance of success. Although presented as a three-pronged attack on the Complaint, the motion in fact attempts to make just one point that the Florida Supreme Court has already decided this case and then repeats that point in three different ways. This argument finds no support in either the law or the undisputed factual record of this case. The Supreme Court itself made clear that its scope of review was far more cursory than what the Florida Constitution now requires. As is alleged in the Complaint, the Florida Supreme Court performed a facial review of the Senate map, considering only the facts that appeared on the record before it, and considering 5
only specific portions of the map that were specifically at issue when the first Senate map was rejected. This case, by contrast, is an as-applied challenge, seeking judicial resolution of the Constitutional issues that the Florida Supreme Court expressly did not reach and specifically examining issues of intent made central by the Fair Districts Amendments to the Florida Constitution. In fact, the Supreme Court s opinion observed that there was neither sufficient time nor a sufficiently developed factual record to explore fully the issue of legislative intent that the Constitution now requires. In re Senate Joint Resolution of Legislative Apportionment 2-B, 89 So. 3d 872, 891-893 (Fla. 2012 (Pariente, J., concurring. This case is precisely the type of proceeding where that critical issue can and should be addressed. Thus, not only does this case present an entirely separate claim from the facial challenge that was before the Florida Supreme Court, it is a claim that this Court is required to address by the Florida Constitution. Finally, the cases cited in the House s motion do not compel or support any stay of discovery. All of the cases are easily distinguished; most are not even remotely relevant. Rojas v. Ryder Truck Rental, Inc., 641 So. 2d 855 (Fla. 1994, for example, did not even involve a discovery stay issue. Deltona Corp. v. Bailey, 336 So. 2d 1163 (Fla. 1976, which the House cites for the unremarkable proposition that a stay may be appropriate under certain circumstances, expressly states that the pendency of such unresolved motions is not sufficient good cause to stay discovery. Feigin v. Hospital Staffing Servs., Inc., 569 So. 2d 941 (Fla. 4th DCA 1990, is a three sentence per curiam opinion that mentions in passing that the trial court did not abuse its discretion in staying certain depositions, providing no support for the complete stay of discovery sought here. United Auto Ins. Co. v. Gables MRA, 997 So. 2d 1208 (Fla. 3d DCA 2008, is also inapposite, as it involves a stay of discovery while there were issues as to the plaintiff s standing and class certification. It is well settled that merits discovery is not permitted 6
until the class is certified. In Carrow v. The Florida Bar, 848 So. 2d 1283 (Fla. 2d DCA 2003, the Second District affirmed a stay of discovery pending a motion to dismiss where the operative complaint was barely coherent: Petitioner filed a complaint against the Florida Bar which vaguely describes a purported vast state-wide conspiracy amongst various unnamed persons and entities including individual members of The Florida Bar, over 100 law firms, judges, court and law enforcement personnel, law students, law clerks and others. The apparent object of this so-called conspiracy is to mount an illegal boycott of the plaintiff in the courts of this state over the last eleven years. Carrow v. The Florida Bar, Brief on Jurisdiction of Respondent The Florida Bar, 2003 WL 22400861 (Fla. 2003. Similarly, in Chudasama v. Mazda Motor Corp., 123 F.3d 1353 (11th Cir. 1997, the Eleventh Circuit found that a stay of discovery was appropriate where the claim for relief was particularly dubious. Indeed, the Eleventh Circuit expressly noted that even the most cursory review of the Chudasamas shotgun complaint reveals that it is novel and of questionable validity. Id. at 1368. Here, the complaint is a far cry from being shotgun, incoherent or dubious, and thus none of these authorities compel a complete stay of discovery. CONCLUSION For the foregoing reasons and on the foregoing authorities, the Florida House of Representatives Motion to Stay Discovery should be denied. 7
Dated: November 6, 2012 Respectfully submitted, /s/adam M. Schachter Gerald E. Greenberg Florida Bar No. 0440094 ggreenberg@gsgpa.com Adam M. Schachter Florida Bar No. 647101 aschachter@gsgpa.com GELBER SCHACHTER & GREENBERG, P.A. 1441 Brickell Avenue, Suite 1420 Miami, Florida 33131 Telephone: (305 728-0950 Facsimile: (305 728-0951 Michael B. DeSanctis mdesanctis@jenner.com Admitted Pro Hac Vice JENNER & BLOCK, LLP 1099 New York Ave NW, Suite 900 Washington, DC 20001 Telephone: (202 639-6000 Facsimile: (202 639-6066 Richard Burton Bush Florida Bar No. 294152 rbb@bushlawgroup.com BUSH & AUGSPURGER, P.A. 3375-C Capital Circle N.E., Suite 200 Tallahassee, FL 32308 Telephone: (850 386-7666 Facsimile: (850 386-1376 J. Gerald Hebert hebert@voterlaw.com Admitted Pro Hac Vice 191 Somervelle Street, #415 Alexandria, VA 22304 Telephone: (703 628-4673 Counsel for Plaintiffs 8
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this, 6 th day of November, 2012, a true and correct copy of the foregoing was sent by electronic mail to all counsel of record listed below: Charles T. Wells George N. Meros, Jr. Jason L. Unger Allen Winsor GrayRobinson, P.A. P.O. Box 11189 (32302 301 South Bronough Street Suite 600 Tallahassee, Florida 32301 Tel. (850 577-9090 Fax. (850 577-3311 Charles.Wells@gray-robinson.com George.Meros@gray-robinson.com Jason.Unger@gray-robinson.com Allen.Winsor@gray-robinson.com croberts@gray-robinson.com tbarreiro@gray-robinson.com mwilkinson@gray-robinson.com Miguel De Grandy (FBN 332331 800 Douglas Road, Suite 850 Coral Gables, Florida 33134 Telephone: 305-444-7737 Facsimile: 305-443-2616 mad@degrandylaw.com George T. Levesque (FBN 555541 General Counsel Florida House of Representatives 422 The Capitol Tallahassee, Florida 32399-1300 Telephone: 850-410-0451 George.Levesque@myfloridahouse.gov Glevesque4@comcast.net Velma.Carter@myfloridahouse.gov Counsel for The Florida House of Representatives and Dean Cannon, in his official Capacity as Speaker of the Florida House of Representatives Leah Marino Deputy General Counsel 409 The Capitol 404 South Monroe Street Tallahassee, Florida 32399-1110 Tel. (850 487-5229 MARINO.LEAH@flsenate.gov Raoul G. Cantero Jason N. Zakia Jesse L. Green WHITE & CASE LLP Southeast Financial Center, Ste. 4900 200 South Biscayne Boulevard Miami, FL 33131 Telephone: (305 371-2700 Facsimile: (305 358-5744 rcantero@whitecase.com jzakia@whitecase.com jgreen@whitecase.com ldominguez@whitecase.com mgaulding@whitecase.com Counsel for The Florida State Senate and Michael Haridopolis in his official capacity as President of The Florida State Senate 9
Daniel E. Nordby Ashley E. Davis Florida Department of State R. A. Gray Building 500 South Bronough Street Tallahassee, FL 32399-0250 Tel. (850 245-6536 Fax. (850 245-6127 Daniel.Nordby@DOS.MyFlorida.com Ashley.Davis@DOS.MyFlorida.com Betty.Money@DOS.MyFlorida.com Stacey.Small@DOS.MyFlorida.com Counsel for Kenneth W. Detzner Secretary of State /s/adam M. Schachter ADAM M. SCHACHTER 10