UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO: 22-cv-81908-AMC

MARC M. DULCIO, 

Plaintiff,

vs.

ENVIRONMENTAL PROTECTRION AGENCY, 

et.al.,

Defendants.

__________________________________________________/

DEFENDANTS’ MOTION TO STAY DISCOVERY PENDING ADJUDICATION 

OF MOTION TO DISMISS [D.E. 26] PLAINTIFF'S AMENDED COMPLAINT

OR AND INCORPORATED MEMORANDUM OF LAW

Defendants, FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, 

SHAWN HAMILTON, LATESHEE M. DANIELS, FLORIDA DEPARTMENT OF 

ENVIRONMENTAL PROTECTION WASTE SITE CLEAN UP SECTION, THERESA PEPE, 

BRECK DALTON, AARON COHEN, FLORIDA DEPARTMENT OF ENVIRONMENTAL 

PROTECTION OFFICE OF GENERAL COUNSEL, GARY BALLARD, STACI KICHLER, 

FLORIDA DEPARTMENT OF ENVIORNMENTAL PROTECTION OF THE SOUTHEAST 

DISTRICT, JASON ANDREOTTA, SIRENA DAVILA, NORVA BLANDIN, ALANNAH 

IRWIN, ROMINA LANCELLOTTI and JUSTIN STARK (hereinafter collectively as, 

“Defendants” or individually as, Defendant {name}), by and through their undersigned counsel, 

Whitelock & Associates, P.A., and pursuant to Federal Rule of Civil Procedure 26(c) and S.D. Fla. 

L.R 7.1, hereby moves to stay discovery in this action pending resolution of the Defendants’ 

Case 9:22-cv-81908-RLR Document 65 Entered on FLSD Docket 04/26/2023 Page 1 of 8
Motion to Dismiss Plaintiff’s Amended Complaint (collectively, "Motions to Dismiss") filed 

March 17, 2023 [D.E. 26], and in support thereof state as follows:

I. INTRODUCTION

On or about January 3, 2023, Plaintiff, Marc Dulcio ("Plaintiff'' or "Dulcio"), filed an 

Amended Complaint in the United States District Court Southern District of Florid, Case 

Number: 22-cv-81908-RLR asserting thirteen (13) claims against twenty-one (21) Defendants. 

[D.E. 7]. In the Amended Pleading, the Plaintiff, a self-described “serial entrepreneur” who owns 

four drycleaners, also sues Federal parties, and essentially avers some fantastical conspiracy 

devoid of actual facts and viable claims, while suing in part governmental employees individually. 

See generally, id.; see also D.E. 26. As indicated in the Defendants’ Motion to Dismiss, this 

Amended Pleading is nothing more than a shotgun pleading that clearly failed to comply with the 

laws of this Circuit, contains legally baseless claims and extraneous matters and otherwise fails to 

state a claim. Id. at 5-8. The Defendants have also asserted immunity defenses in the Motion to 

Dismiss, including qualified immunity. Id. at 8-11, 17-21. In all, Defendants’ Motion seeks, and 

provides authority therein, to dismiss all of Plaintiff’s claims. Moreover, Plaintiff has filed an 

Opposition to Defendants’ Motion to Dismiss wherein Plaintiff acknowledges deficiencies in his 

Amended Complaint and plans on filing another amended complaint. [D.E. 42 at p. 8, FN 12 and 

pp. 11-12 at ¶ 10 and FN 14]. Accordingly, and for the reasons set forth below, the Defendants 

would request a stay as to discovery pending the ruling on D.E. 26.

II. LEGAL STANDARD

Courts have broad discretion in managing their own dockets. Clinton v. Jones, 520 U.S. 

681, 706 (1997); see also Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1269 (11th 

Cir. 2001) (courts have broad discretion over discovery)’ Chudasama v. Mazda Motor Corp., 123 

F.3d 1353, 1366 (11th Cir. 1997) (same). As a general rule, motions to dismiss should be resolved 

Case 9:22-cv-81908-RLR Document 65 Entered on FLSD Docket 04/26/2023 Page 2 of 8
as soon as practicable to obviate avoidable discovery costs, especially where a dubious claim 

appears destined for dismissal. See Chudasama, 123 F.3d at 1368 (“If the district court dismisses 

a no meritorious claim before discovery has begun, unnecessary costs to the litigants and to the 

court system can be avoided.”). In determining whether to stay discovery pending the resolution 

of a motion, the Court “must balance the harm produced by a delay in discovery against the 

possibility that the motion will be granted and entirely eliminate the need for such 

discovery.” Feldman v. Flood, 176 F.R.D. 651, 652 (M.D. Fla. 1997). In balancing these 

considerations, the Court may take a “preliminary peek at the merits” of the motion to determine 

if such is meritorious and case dispositive. Id.

Further, where immunity is raised as a defense, a stay is appropriate in this Circuit. 

Specifically, when a qualified immunity defense is raised, a stay of discovery is warranted because 

this immunity veil protects individuals from suit and trial, including the burdens of litigation and 

pretrial discovery. Blinco v. Green Tree Servicing, LLC, 366 F.3d 1249, 1252 (11th Cir. 2004); 

see also Moore v. Potter, 141 Fed. Appx. 803, 807 (11th Cir.2005) (no abuse of discretion by 

district court to stay discovery during pendency of motion). As the Supreme Court has 

admonished, “[u]ntil [the] threshold immunity question is resolved, discovery should not be 

allowed.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Indeed, “to ‘protect[ ] the substance 

of the qualified immunity defense,’ the court ‘must exercise its discretion so that officials are not 

subjected to unnecessary and burdensome discovery or trial proceedings’ until after the court has 

determined that the qualified-immunity defense will not stand.” Harbert Int’l, Inc. v. James, 157 

F.3d 1271, 1280 (11th Cir. 1998). Like qualified immunity, the other defenses raised in the Motion to 

Dismiss include both sovereign and Eleventh Amendment Immunity. These immunity defenses also 

warrant a stay of discovery. See Detournay v. City of Coral Gables, 127 So. 3d 869, 872 (Fla. 3d DCA

2013) (sovereign immunity is an immunity from suit); see also Keck v. Eminisor, 104 So. 3d 359, 361 (Fla. 

2012) (same); Bouchard Transp. Co. v. Fla. Dep’t of Envtl. Prot., 91 F.3d 1445, 1448 (11th Cir. 1996) 

Case 9:22-cv-81908-RLR Document 65 Entered on FLSD Docket 04/26/2023 Page 3 of 8
(Eleventh Amendment Immunity is entitlement to not face litigation burdens).

Based upon the foregoing, a stay of discovery pending the resolution of the Defendants’ 

Motions to Dismiss in this matter is appropriate. One, and based upon the Motions to Dismiss, 

there is a clear possibility that the adjudication of the Motions to Dismiss will dispose of this case, 

which includes thirteen (13) counts against twenty-one (21) Defendants, in its entirety. Two, the

Defendants’ Motions also raise immunity issues , all in favor of a discovery stay under the law of 

this Circuit. [D.E. 26 at pp. 8-11 and 17-21]. In addition, this amended pleading is indeed a 

shotgun pleading that has glaring pleading deficiencies. [D.E. 26 at pp. 5-8]. Plaintiff has asserted 

multiple claims against multiple defendants and cites to completely unrelated statutes and laws 

within the claims, and otherwise fails to assert cognzible claims. See generally D.E.[s] 7 and 54. 

The Defendants also raise Plaintiff’s Article III standing. 1A temporary stay so the Court 

can decide the gateway issue of Article III standing provides good cause for a stay of discovery 

because it is a threshold legal issue. Taylor v. Service Corp. Int’l, 20-cv-60709, 2020 WL 6118779 

at *2 (S.D. Fla., July 2, 2021). While the Court may ultimately find that Plaintiffs have Article III 

standing, facial challenges should be resolved before discovery to conserve the resources of the 

Court, counsel, and all parties. In re Mednax Servs., Inc. v. Customer Data Sec. Breach Litigation, 

21-MD-02994, 2020 WL 12432704 at *2 (S.D. Fla., Dec. 9, 2021) (citing Chudasama v. Mazda 

Motor Corporation, 123 F.3d 1353 (11th Cir. 1997)).

Notwithstanding the clear possibility that the adjudication of the Motions to Dismiss will 

dispose of this case in its entirety, discovery should be stayed so that the Individual Defendants 

claiming qualified immunity are not subject to pretrial discovery as fact witnesses. S.D. v. St. Johns 

County School Dist., 09-cv-250, 2009 WL 4349878 at *3 (M.D. Fla. Nov. 24, 2009). If Plaintiff’s 

1

In their Motion to Dismiss, Defendants argue that Plaintiff lacks Article III standing as to Counts I, II and XIII of 

the Amended Complaint. [D.E. 26 at pp. 14-17].

Case 9:22-cv-81908-RLR Document 65 Entered on FLSD Docket 04/26/2023 Page 4 of 8
action is dismissed but discovery is permitted while the Court considers the Motions to Dismiss, 

then any discovery that occurs between now and the date the Court dismisses the case in its entirety 

will cause the parties to incur unnecessary costs. Indeed, this would undermine the fundamental 

principal set out in Chudasama, which is that facial challenges to the sufficiency of a claim, such 

as a motion to dismiss based on failure to state a claim, should be resolved before discovery begins. 

Chudasama, 123 F.3d at 1367; see also Jackson-Bear Group, Inc. v. Amirjazil, 2011 WL 720462, 

*1 (M.D. Fla. Feb. 22, 2011) (After its "preliminary peek" at the motion to dismiss, the court held 

that defendants' motion to dismiss for lack of jurisdiction raised meritorious challenges to the 

complaint and thus granted the motion to stay discovery).

Moreover, on March 31, 2023, Plaintiff filed an Opposition to Defendants’ Motion to 

Dismiss Amended Complaint in which he fails to address specific arguments made by the 

Defendants and actually admits that he intends to seek leave to file another amended complaint. 

[D.E. 42 at p. 8, FN 12 and pp. 11-12 at ¶ 10 and FN 14]. In one instance, Plaintiff states that he 

has drafted the motion for leave to amend but “has elected to withhold from filing said motion, 

until after all defendant have appeared in this action.” Id. at p. 8, FN 12. However, Plaintiff 

suggests that “[i]f this court deems it necessary; plaintiff will happily amend his complaint within 

the time allotted.” Id. In another instance, Plaintiff acknowledges his pleading deficiencies and 

states that he “will definitely cure within his next amended pleading.” Id. at pp. 11-12 at ¶ 10 and 

FN 14. Similarly, the dismissal Motion by Defendant Stark also highlights these deficiencies and 

evidences that Plaintiff’s claims should be dismissed. See generally D.E. 54. In short, Defendants 

numerous individuals should not be subjected to discovery or incur expenses particularly where 

the Plaintiff has admitted that his most recent operative complaint is deficient or contains 

conclusory averments and/or that he has an intention to “cure.” [D.E. 42 at p. 8, FN 12 and pp. 11-

12 at ¶ 10 and FN 14].

Case 9:22-cv-81908-RLR Document 65 Entered on FLSD Docket 04/26/2023 Page 5 of 8
Lastly, a temporary stay of discovery will not prejudice the Plaintiff should discovery 

become necessary. Although in candor to this tribunal, Defendants recognize that this joint and 

requested stay is the exception not the rule, an exception still remains proper where discovery 

would place an undue burden on the opposing party. See e.g. D’Apuzzo, P.A. v. United States, 

2017 WL 3098713 (S.D. Fla. 2017) (where heavy burden to Defendant’s stay is appropriate). Such 

an exception should apply here. In addition to the immunity defenses, discovery in this matter with 

numerous Defendants would be time-consuming, consisting possibly of over thirty (30) 

depositions alone, and intrude on the privacy of individual Defendants with oppressive requests 

and financial discovery, particularly where Plaintiff is filing claims consisting of a conference call, 

or not permitting Plaintiff to film an otherwise confidential investigation, or not alleging any 

conspiracy facts, or not responding to an email, ecterea. Further, given that the Court is likely to 

rule on the Motions to Dismiss in the near future, Plaintiff would have adequate time for discovery 

should the Motion to Dismiss be denied. See e.g. Allman v. City of Jacksonville, 2008 WL 2704426 

(M.D. Fla., 2008) (granting a defendant's motion to stay discovery pending adjudication of its 

motion to dismiss, in part, because Plaintiff would not be prejudiced by a temporary delay in

discovery).

CONCLUSION

For the foregoing reasons, Defendants respectfully request that their Motion to Stay 

Discovery be granted and that the Court grant such other and further relief that it deems just and

proper.

Case 9:22-cv-81908-RLR Document 65 Entered on FLSD Docket 04/26/2023 Page 6 of 8
Respectfully submitted,

WHITELOCK & ASSOCIATES, P.A.

300 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316

Phone No.: (954) 463-2001

Facsimile No.: (954) 463-0410

Counsel for Defendants

/s/Christopher J. Whitelock 

CHRISTOPHER J. WHITELOCK

Florida Bar No. 067539

MEREDITH A. CHAIKEN

Florida Bar No.87927

CERTIFICATE OF GOOD FAITH CONFERRAL

Pursuant to the Court’s Local Rule 7.1(a)(3), the undersigned counsel certifies that he has 

communicated with the pro se Plaintiff and is authorized to represent that Plaintiff opposes the 

granting of the relief requested in this motion.

s/Christopher J. Whitelock 

CHRISTOPHER J. WHITELOCK

Case 9:22-cv-81908-RLR Document 65 Entered on FLSD Docket 04/26/2023 Page 7 of 8
CERTIFICATE OF SERVICE

I hereby certify that on April 26, 2023, I electronically filed the foregoing document with 

the Clerk of Court using CMECF. I also certify that the foregoing document is being served this 

day on all counsel of record identified on the attached Service List in the manner specified, either 

via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized 

manner for those counsel or parties who are not authorized to receive electronically Notices of 

Filing.

s/Christopher J. Whitelock 

CHRISTOPHER J. WHITELOCK

SERVICE LIST

Marc M. Dulcio, Pro Se Litigant

70 NE. 131sst Street

North Miami, FL 33161

info@warrantyrepairx.com

marcdulcio@hotmail.com

B. Kyle Morley, Esq.

Foley Mansfield, PLLP

146 Second Street, Suite 105

St. Peterburg, FL 33701

e-mail: kmorley@foleymansfield.com

tbpleadings@foleymansfield.com

ldavilar@foleymansfield.com

Attorneys for Defendant, Earth Tech Drilling, Inc.

Daniel C. Johnson, Esq.

Carlton Fields, P.A.

200 S. Orange Avenue, Suite 1000

Orlando, FL 32801-3400

djohnson@carltonfields.com

Attorney for Defendant, Arcadis, U.S. Inc.

.

Case 9:22-cv-81908-RLR Document 65 Entered on FLSD Docket 04/26/2023 Page 8 of 8