UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-14202-Civ-Middlebrooks/Maynard

DAVID POSCHMANN, 

Plaintiff,

v.

ZERBY HOTEL, LLC, 

Defendant.

____________________________________________/

ADA TITLE III SCHEDULING ORDER

Pursuant to Federal Rule of Civil Procedure 16, the Court finds it necessary to issue a 

scheduling order tailored to the circumstances of this case, which has been brought under Title III 

of the Americans with Disabilities Act (“ADA”). Accordingly, to secure the just, speedy, and 

inexpensive determination of his case, consistent with Fed. R. Civ. P. 1, it is 

ORDERED that the provisions of Federal Rule of Civil Procedure 26(a)(1) and Local Rule 

16.1, which concern initial disclosures and the filing of a Conference Report and Joint Proposed 

Scheduling Order, are waived. Instead, the Parties must comply with the deadlines set forth below. 

These deadlines are not advisory and must be strictly followed. No extensions of time will be 

granted absent good cause.

The Parties are advised that this Order does not affect the responsive pleading deadlines 

set forth in Federal Rule 12(a)(1)(A).

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1. Plaintiff1 must serve a copy of this Order on any Defendant who is served with process 

after the date of this Order. 

2. By July 8, 2020, Plaintiff must answer, under oath or penalty of perjury, a verified 

statement responding to the Court’s interrogatories, attached as Appendix A; serve a copy 

on Defendant and file the answers with the Court titled as “Answers to Court’s 

Interrogatories.” 

3. By July 22, 2020, Plaintiff must also provide Defendant a copy of a written report 

concerning any claimed ADA violations.

4. By August 19, 2020, Defendant must serve Plaintiff with a written response including any 

existing report on which Defendant intends to rely (an expert report is not yet required). 

Defendant’s response must include Defendant’s position on any claimed violations of the 

ADA.

5. By September 16, 2020, the Parties must mediate this case before a mediator of their 

choice. If the Parties cannot agree on a mediator, the Court will appoint one. 

6. By September 23, 2020, the Parties must jointly file a status report that notifies the Court 

whether they have settled the case or reached an impasse.

7. If the Parties settle at mediation, appropriate dismissal documents shall be submitted by 

September 30, 2020. The settlement agreement should contain, to the extent possible, an 

agreement on attorney’s fees, including litigation expenses, and costs. If there is no 

agreement, the Court, at the Parties’ request, will reserve jurisdiction to decide the issue of 

attorney’s fees, expenses, and costs. Any request for attorney’s fees, expenses, and costs 

 

1

If there is more than one plaintiff or defendant named in this case, the singular reference to 

plaintiff or defendant also includes the plural.

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must be made in a separate motion or petition filed no later than fourteen (14) days after 

the entry of judgment.2 Notably if the Parties wish the Court to enter a consent judgment, 

the Court will not approve or reserve jurisdiction to enforce a confidential settlement 

agreement. 

8. If the Parties settle at any time prior to mediation, counsel shall promptly inform the Court 

by calling the chambers of U.S. District Judge Donald M. Middlebrooks at (561) 514-3720 

and, within 10 days of notification of settlement to the Court, submit appropriate dismissal 

documents, pursuant to Federal Rule of Civil Procedure 41(a). The Parties shall abide by 

all time requirements set by this Order unless and until an order of dismissal is docketed.

9. If the Parties do not settle, they must IMMEDIATELY file a Conference Report and Joint 

Proposed Scheduling Order. S.D. Fla. L.R. 16.1(b). The Court may thereafter hold a 

Preliminary Pretrial Conference and will issue a Scheduling Order. The Court’s goal is to 

set the case for trial at the earliest practicable time, but no later than six (6) months from 

the date of service of process on the first named Defendant. 

10. Until the Parties file the Case Management Report, all discovery in this case is STAYED, 

except as provided herein. 

11. In the alternative to the foregoing procedures, this Court hereby advises the Parties of the 

opportunity to consent to the jurisdiction of the paired U.S. Magistrate Judge pursuant to 

28 U.S.C. § 636(c). The paired U.S. Magistrate Judge generally allows parties great 

flexibility in setting the course, schedule, and trial date of their case. A fully executed 

consent form should be filed as soon as practicable if the Parties wish to consent to trial 

 

2

In deciding entitlement to and any amount of attorney’s fees, the Court advises that it will 

consider whether any pre-suit efforts were made to resolve the issues without filing suit. 

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before a U.S. Magistrate Judge. A sample form is attached as Appendix B to this 

Scheduling Order.

SIGNED in Chambers at West Palm Beach, Florida, this 24th day of June, 2020.

Donald M. Middlebrooks

United States District Judge

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APPENDIX A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

COURT’S INTERROGATORIES - ADA TITLE III

1. Residence Address.

2. Name of current employer and place of employment.

3. Describe the nature of your disability.

4. Date(s) and time(s) that you visited the subject property.

5. Did anyone accompany you? If so, who? 

6. What is the proximity of the subject property to your home and/or place of 

employment?

7. Describe your last patronage of the subject property.

8. Describe the definiteness of your plans to return to the subject property. 

9. Specifically list each architectural barrier that you personally observed or experienced 

at the subject property. Alternatively, if the violations alleged in this suit pertain to a 

website associated with Defendant, specifically list each access barrier that you 

personally observed or experienced on the website.

10. Did you take notes or make a contemporaneous record of these barriers? If so, attach 

a copy to these Answers.

11. What notice of deficiencies or other efforts did you make to resolve your complaints 

before filing suit? 

12. To what extent has counsel for Plaintiff conducted a search of case filings in the records 

of the Clerk of the United States District Court for the Southern District of Florida to 

ascertain whether or not Defendant or the property at issue has ever been sued prior to 

the filing of this suit, for alleged violations of the ADA? 

13. If there has been a prior filing, counsel shall state whether or not Defendant (and/or 

property owned by Defendant and the subject-matter of this suit) has complied with 

any settlement in the prior litigation, and if not, what remains to be done under the prior 

litigation. 

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APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

NOTICE OF RIGHT TO CONSENT TO DISPOSITION OF A CIVIL CASE

BY A U.S. MAGISTRATE JUDGE

Counsel shall review this notice with their client(s) before executing their notice of consent 

to trial before a U.S. Magistrate Judge.

Under 28 U.S.C. § 636(c), a U.S. Magistrate Judge may, upon the consent of all the parties 

in a civil case, conduct all proceedings, including a trial and all post-judgment proceedings. A 

consent form is attached and is also available from the Clerk of the Court. 

You have a right to trial by a U.S. District Judge. Your decision to consent to the referral 

of your case to a U.S. Magistrate Judge for disposition is entirely voluntary on your part; your 

lawyer cannot make this decision for you. You may, without adverse substantive consequences, 

withhold your consent, but this will prevent the Court’s jurisdiction from being exercised by a 

Magistrate Judge. If any party withholds consent, the identity of the parties consenting or 

withholding consent will not be communicated to any Magistrate Judge or to the District Judge to 

whom the case has been assigned.

Parties cannot withdraw their consent once given, although a District Judge may vacate a 

referral upon a showing of extraordinary circumstances by a party. An appeal from a judgment 

entered by a Magistrate Judge shall be taken directly to the U.S. Court of Appeals for this judicial 

circuit in the same manner as an appeal from any other judgment of this District Court.

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

 Case No. [ ]-Civ-Middlebrooks/Brannon 

[ ], 

Plaintiff(s), 

v.

[ ], 

Defendant(s). 

______________________________/

NOTICE OF CONSENT TO EXERCISE OF 

JURISDICTION BY A U.S. MAGISTRATE JUDGE

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil 

Procedure 73, the parties in this case consent to have a U.S. Magistrate Judge conduct any and all 

proceedings in this case, the Parties consent to the exercise of jurisdiction by the Magistrate Judge 

over all further proceedings in this case, including trial and all post-judgment proceedings.

Party Signatures Date

____________________________ ______________________________ ____________

____________________________ ______________________________ ____________

____________________________ ______________________________ ____________

____________________________ ______________________________ ____________

____________________________ ______________________________ ____________

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