[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 4, 2007
No. 06-16624 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-01811-CV-ORL-28-DAB
GEORGE V. SMITH,
Plaintiff-Appellant,
versus
SCHOOL BOARD OF ORANGE COUNTY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 4, 2007)
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
2
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
3
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
4
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
5
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
6
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
7
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 unclear whether Smith filed his
objections within the time limit specified in Rule 72(a), namely, that objections
must be filed within 10 days of being served with the magistrate’s order. See
Fed.R.Civ.P. 72(a). It is apparent that the objections were filed more than 10 days
from the date that the magistrate issued the order, May 12, 2006, but it is not clear
on what day Smith was served with that order. However, the district court’s docket
sheet indicates that copies of the May 12 order were mailed to Smith on May 15,
2006, and, thus, it is reasonable to assume that the earliest date on which Smith
could have received the copy of the order was May 16, 2006, which would have
made his objections filed on May 26 timely. See Fed.R.Civ.P. 72(a). Regardless,
construing Smith’s pro se brief liberally, and considering that the School Board
does not contend that Smith filed the objections more than 10 days after he was
served with the magistrate’s order, we conclude that Smith’s objections to the
8
magistrate’s May 12 order were timely filed, pursuant to Rule 72(a). Nevertheless,
review of the record reveals that the district court never ruled on the merits of
Smith’s objections, but the court did indicate in its order granting the School
Board’s motion for summary judgment that it denied all pending motions as moot.
In light of our decision to affirm the district court’s grant of the School Board’s
motion for summary judgment, discussed more fully below, and Smith’s lack of
argument in his appellate brief that his objections to the magistrate’s order, which
denied Smith’s various discovery motions, were not moot, we affirm the district
court’s finding that the pending objections were moot.
Third, Smith argues that the magistrate’s June 19, 2006 order was also
erroneous. Smith did not file objections to this order, and, accordingly, he waived
his right to appeal that issue. See Fed.R.Civ.P. 72(a); see also Maynard, 342 F.3d
at 1286. Lastly, Smith contends that the magistrate’s September 15, 2006 order
was erroneous. Again, Smith did not object to the magistrate’s order, though, on
October 23, 2006, he did file a motion to reconsider that order. Nonetheless, to the
extent that Smith’s motion for reconsideration can be construed as an objection to
the magistrate’s September 15 order, it did not meet the 10-day time limit of Rule
72(a) because Smith filed it more than 30 days after the magistrate entered the
order and, presumably, long after Smith was served with the order. See
9
Fed.R.Civ.P. 72(a); see also Maynard, 342 F.3d at 1286.
B. Motion to Amend Complaint
In addition to appealing the four orders of the magistrate, Smith also appeals
the district court’s denial of his motion to amend his complaint, which he filed
approximately one month after the School Board filed its motion for summary
judgment. Smith asserts that he sought to amend his complaint in order to include
facts and claims of which he had become aware only after the School Board
withheld those facts from him during discovery.
We have explained that we “will only reverse a district court’s denial of a
motion to amend in instances in which the district court has clearly abused its
discretion.” Henson v. Columbus Bank & Trust Co., 770 F.2d 1566, 1575 (11th
Cir. 1985). Pursuant to Fed.R.Civ.P. 15(a), a party seeking to amend its complaint
after it previously has amended the complaint, or after a responsive pleading has
been filed, may amend the complaint “only by leave of court or by written consent
of the adverse party; and leave shall be freely given when justice so requires.”
Fed.R.Civ.P. 15(a). However, where a party’s motion to amend is filed after the
deadline for such motions, as delineated in the court’s scheduling order, the party
must show good cause why leave to amend the complaint should be granted. See
Fed.R.Civ.P. 16(b); Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1419 (11th Cir.
10
1998).
Here, it is undisputed that Smith previously had amended his original
complaint and that the School Board had filed a responsive pleading to Smith’s
amended complaint. Further, the district court had entered a scheduling order that
set forth the deadline for amending pleadings: September 16, 2005. Therefore,
despite Smith’s argument on appeal that the district court should have granted his
motion to amend his complaint in accordance with the liberal amendment
instructions of Rule 15(a), Smith still had to comply with Rule 16(b)’s good cause
requirement because he filed his motion to amend on October 19, 2006, more than
one year after the court’s deadline for such motions. See Sosa, 133 F.3d at 1419
(explaining that, where a party files a motion to amend within the time prescribed
in the court’s scheduling order, this Court focuses on Rule 15(a) on appeal; but,
where a party files an untimely motion to amend, this Court must first determine
whether the party complied with Rule 16(b)’s good cause requirement).
Careful review of Smith’s motion to amend his complaint reveals that Smith
did not indicate with any specificity the good cause he had for untimely moving to
amend his complaint. Smith alleged that discovery had “produced new violations
of the [l]aw that must be addressed within the counts of the complaint,” but he
failed to further indicate what those new violations were, what facts supported
11
them, and why those facts previously were undiscoverable. Furthermore, the
School Board’s motion for summary judgment had been pending for
approximately one month prior to Smith’s motion to amend his complaint. The
district court never ruled expressly on Smith’s motion, but it denied the motion as
moot when it granted the School Board’s motion for summary judgment and made
a general denial of all pending motions as moot. Given the extreme untimeliness
of Smith’s motion and his lack of a complete showing of good cause, the district
court did not abuse its discretion in denying Smith the opportunity to amend his
complaint before the court ruled on the summary judgment motion and denied all
pending motions as moot.
C. Motion for Summary Judgment
Smith argues on appeal that the district court erroneously granted the School
Board’s motion for summary judgment without first entering an order that
specified a time by which he had to file his response to the summary judgment
motion. Smith contends that he did not respond to the summary judgment motion
because he was awaiting a notice from the court specifying a hearing date. He
asserts that, according to Fed.R.Civ.P. 56, the court was required to notify him at
least 10 days prior to its ruling that (1) it intended to rule on the motion without
first holding a hearing and (2) he had an opportunity to respond to the motion prior
12
to the ruling.
We review a district court’s grant of summary judgment de novo. Brooks v.
County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1161 (11th Cir. 2006).
Pursuant to Fed.R.Civ.P. 56(c), a motion for summary judgment “shall be served at
least 10 days before the time fixed for the hearing.” We have interpreted the notice
requirement of Rule 56 as requiring “10-day advance notice to the adverse party
that the motion and all materials in support of or in opposition to the motion will
be taken under advisement by the trial court as of a certain day.” Milburn v.
United States, 734 F.2d 762, 765 (11th Cir. 1984) (emphasis in original). “It is
well settled in this circuit that Rule 56(c) does not require an oral hearing.” Id.
However, Rule 56(c) notice “requires at least this: that an adverse party must be
given express, ten-day notice of the summary judgment rules, of his right to file
affidavits or other material in opposition to the motion, and of the consequences of
default.” Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985). Thereafter,
“the court may properly take the motion under advisement as of a day certain and
may rule on the motion consistent with the dictates of procedural fairness required
by Rule 56.” Id. “We have held repeatedly that this requirement of notice will be
deemed strictissimi juris and applies to all parties litigant.” Id. (emphasis in
original). Moreover, “a court should be particularly careful to ensure proper notice
13
to a pro se litigant . . . so that any rights that such a litigant might have will not be
extinguished merely through failure to appreciate the subtleties of modern motion
practice.” Id. (quotation and citation omitted).
Here, the district court’s case management and scheduling order met all the
requirements of Griffith. Specifically, the scheduling order indicated that (1) a
party opposing a motion for summary judgment had 30 days from the date of
service to respond to the motion; (2) the response had to include a legal
memorandum, affidavits, and other evidence establishing the existence of a
genuine issue for trial; (3) the court would take the motion under advisement 30
days from the date it was served; (4) unless otherwise ordered, the court would not
hold a hearing on the motion; (5) failure to respond to the motion could have
resulted in the entry of judgment for the movant; and (6) the requirements applied
to both counseled and pro se parties. The record reveals that the district court
complied with the dates established in the scheduling order because it did not grant
the School Board’s motion for summary judgment until more than 60 days after it
was filed, thereby providing 30 days for Smith to respond and 30 days in which the
motion was under advisement by the court. Therefore, the district court provided
Smith proper notice, as required under Rule 56(c).1
1
To the extent that Smith argues in his reply brief that the district court should have
voided the scheduling order upon receipt of his objections to that order, his argument is without
14
In light of the foregoing, the district court’s grant of the School Board’s
motion for summary judgment and its denial of Smith’s pending motions as moot
is
AFFIRMED.
merit. Smith filed objections to the court’s scheduling order after issuance of the order, arguing
that his counsel had negotiated the scheduling order with the School Board, but his counsel
improperly waived his right to discovery. Given that Smith’s sole objection to the scheduling
order had to do only with the discovery process, and not the process by which the court would
dispose of motions for summary judgment, Smith cannot now complain that his objection to the
scheduling order included objecting to the court’s summary judgment procedure. See Access
Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (holding that this
Court will not consider issues not raised before the district court and raised for the first time on
appeal).
15