Smith v. School Bd. of Orange County

• Citation: 487 F.3d 1361
• Decision Date: 04 June 2007
• Docket Number: No. 06-16624 Non-Argument Calendar.,06-16624 Non-Argument Calendar.
• Parties: George V. SMITH, Plaintiff-Appellant, v. SCHOOL BOARD OF ORANGE COUNTY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

487 F.3d 1361

George V. SMITH, Plaintiff-Appellant, v. SCHOOL BOARD OF ORANGE COUNTY, Defendant-Appellee.

No. 06-16624 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

June 4, 2007.

George V. Smith, Altamonte Spring, FL, pro se.

Kimberly D. Webb, Francis Henry Sheppard, Rumberger, Kirk & Caldwell, P.A., Orlando, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before DUBINA, CARNES and FAY, Circuit Judges.

PER CURIAM:

George V. Smith appeals the district court's grant of the School Board of Orange County's ("School Board") motion for summary judgment in Smith's pro se employment discrimination action. On appeal, Smith challenges several nondispositive orders entered by the magistrate judge, the district court's denial of his motion to amend his complaint, and the court's grant of the School Board's summary judgment motion. For the reasons discussed more fully below, we affirm.

I. Background

In December 2004, Smith filed this pro se complaint against his former employer, the School Board of Orange County ("School Board"), alleging (1) race and age discrimination, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2, and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 623(a); (2) retaliation, in violation of Title VII and 42 U.S.C. §§ 1981 and 1983; and (3) deprivation of procedural due process rights, in violation of the Fourteenth Amendment to the United States Constitution. The district court entered a case management and scheduling order, explicitly indicating that "all parties (both represented and pro se) shall comply with this order, [and] with the Federal Rules of Civil Procedure. . . ." The scheduling order also provided that the date by which all motions to amend pleadings had to be filed was September 16, 2005. Additionally, the scheduling order indicated the following with regard to motions for summary judgment:

Each party opposing a motion for summary judgment shall serve, within thirty days after being served with such motion, a legal memorandum with citation of authorities in opposition to the relief requested as required by Local Rule 3.01(b). The memorandum in opposition shall specify the material facts as to which the opposing party contends there exists a genuine issue for trial, and shall be accompanied by affidavit(s) and other evidence in the form required by Fed. R.Civ.P. 56. . . . The Court takes a motion for summary judgment under advisement thirty days from the date it is served, unless the Court orders a different date. Unless specifically ordered, the Court will not hold a hearing on the motion. Failure to oppose any motion for summary judgment may result in the entry of a judgment for the movant without further proceedings. . . . All requirements in this [scheduling order] apply to pro se litigants as well as to parties represented by counsel.

Thereafter, Smith filed numerous motions relating to pre-trial discovery and Smith's representation by counsel. First, Smith filed a motion to compel witness to appear and be deposed, and a "motion to deem admitted" the admissions he served on the School Board. The magistrate denied both of those motions on November 23, 2005. Smith did not object to the magistrate's November 23 order. Next, Smith filed a large series of motions, including: (1) a "motion for order on compliance" requiring the School Board to comply with his request for admissions; (2) a "motion to determine sufficiency" requesting that the court find that the School Board's response to his complaint was insufficient; (3) another "motion to determine sufficiency"; (4) another "motion for order on compliance"; (5) two "rebuttals" to the School Board's response to his "motion to determine sufficiency"; and (6) an "amended motion to determine sufficiency." On May 12, 2006, the magistrate denied the motions and ordered the rebuttals stricken because they failed to comply with the local rules of the Middle District of Florida. On May 26, 2006, Smith filed objections to the magistrate's May 12 order.

Smith later filed additional motions, including: (1) a motion for leave to file an amended complaint; (2) a "motion for intermittent appearance," requesting that the court permit him to retain counsel for certain specified actions; and (3) a motion for reconsideration of the magistrate's November 23, 2005 order, which motion he filed on June 9, 2006. The magistrate judge denied all of those motions on June 19, 2006, noting that counsel could not represent Smith in an "intermittent" fashion. Smith did not object to the magistrate's June 19 order.

Lastly, of relevance to the instant appeal, Smith filed the following motions: (1) a motion to compel responses to his interrogatories; (2) a "motion to determine sufficiency" of the School Board's response; (3) a "motion to compel [and] request for production"; (4) a "motion to limit time," requesting that the court not rule on any motion before three days from the date on which the motion was filed; (5) a "motion to compel" a witness to appear for a deposition; and (6) a "motion to compel" a response to his interrogatory. On September 15, 2006, the magistrate denied all of the above-listed motions. Smith did not object to the magistrate's September 15 order, however, he filed a motion for reconsideration of that order on October 23, 2006.

Also on September 15, 2006, the School Board filed a motion for summary judgment. Smith did not file a response to the summary judgment motion. On October 19, 2006, however, Smith filed a motion for leave to file a second amended complaint, arguing that, through discovery, he had learned of new violations of the law committed by the School Board.

On November 21, 2006, the district court granted the School Board's motion for summary judgment and denied all pending motions as moot. The district court amended its order on November 29, 2006, though the record does not indicate a reason for the amended order and review of both orders reveals no substantive alterations. In its grant of the summary judgment motion, the court noted that Smith had not filed a response to the motion, but that the case management and scheduling order provided him with adequate notice of his obligations regarding a summary judgment motion and that he had "sporadic legal assistance in this case." Smith filed a notice of appeal as to the district court's November 21 order granting the School Board's motion for summary judgment and the court's November 29 amended order.

II. Analysis

A. Magistrate Judge's Orders

In his appellate brief, Smith requests reversal of four of the magistrate's orders, which were entered on the following dates: (1) November 23, 2005; (2) May 12, 2006; (3) June 19, 2006; and (4) September 15, 2006. In that regard, Smith argues that the magistrate erred in denying his various motions to compel depositions, require the School Board to respond to his request for admissions and interrogatories, and allow him to secure "intermittent" counsel.

We review a district court's discovery rulings for abuse of discretion. Maynard v. Bd. of Regents, 342 F.3d 1281, 1286 (11th Cir.2003). We also review a district court's decision not to appoint counsel for abuse of discretion. United States v. Berger, 375 F.3d 1223, 1226 (11th Cir.2004). The orders at issue here were all entered by the magistrate judge. According to Federal Rule of Civil Procedure 72:

A magistrate judge to whom a pretrial matter not dispositive of a claim or defense of a party is referred to hear and determine shall promptly conduct such proceedings as are required and when appropriate enter into the record a written order setting forth the disposition of the matter. Within 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made.

Fed.R.Civ.P. 72(a). We have concluded that, where a party fails to timely challenge a magistrate's nondispositive order before the district court, the party waived his right to appeal those orders in this Court. Maynard, 342 F.3d at 1286; see also Farrow v. West, 320 F.3d 1235, 1249 n. 21 (11th Cir.2003) (holding that a pro se litigant waived his right to appellate review of a magistrate's nondispositive order by not objecting to the order before the district court, as required by Fed.R.Civ.P. 72(a)). In the instant case, it is undisputed that each order that Smith appeals is a nondispositive order, as none of the orders disposed of a claim or defense of any party. The School Board argues that Smith did not object to the magistrate's orders before the district court, and, thus, pursuant to Rule 72(a), he waived his right to raise those issues on appeal. Each order to which Smith asserts error is discussed in turn.

First, Smith claims that the magistrate erred in its November 23, 2005 order denying his motions to compel depositions and deem his admissions admitted. Smith did not object to that order before the district court, but rather, he filed a motion for reconsideration of the order on June 9, 2006. Because Smith did not filed objections to the magistrate's November 23, 2005 order, he has waived that issue for purposes of this appeal. See Fed.R.Civ.P. 72(a); see also Maynard, 342 F.3d at 1286. Further, even to the extent that his motion for reconsideration could be construed as objections to the order, that motion was filed beyond the 10-day limitation period for filing such objections, as specified in Rule 72(a).

Second, Smith maintains that the magistrate's May 12, 2006 order was similarly erroneous. Even though the School Board's argument on appeal contends otherwise, the record reflects that, on May 26, Smith did file objections to the May 12 order. As an initial matter, it is...