IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF FLORIDA 

GAINESVILLE DIVISION 

SHERRIE RUSSELL-BROWN, 

 Plaintiff, 

CASE NO. 1:09-cv-00257-MP-AK 

v. 

 

THE UNIVERSITY OF FLORIDA, 

BOARD OF TRUSTEES, 

THE UNIVERSITY OF FLORIDA, 

LEVIN COLLEGE OF LAW, and 

ROBERT H. JERRY, II, in his 

individual and official capacities as 

Dean of the University of Florida, 

Levin College of Law, 

Defendants. 

___________________________________/ 

PLAINTIFF’S EMERGENCY MOTION TO CANCEL HEARING (DOC. 124)

Pursuant to N.D. Fla. Loc. R. 7.1(C) and (E), Plaintiff Sherrie Russell-Brown (“Plaintiff’ or 

“Ms. Russell-Brown”) respectfully moves to cancel the motion hearing (Doc. 124), currently 

scheduled for tomorrow morning, August 17, 2010, at 10:00 a.m. In support of her Emergency 

Motion, Ms. Russell-Brown states as follows:

1. On Friday, August 13, 2010, Ms. Russell-Brown filed a Motion for Voluntary 

Dismissal Without Prejudice (Doc. 129), explaining that she has not had and will not have a full and 

fair opportunity to be heard on the merits of her case. Under these circumstances, Ms. Russell-Brown 

is unable to pursue her action before the Court and, certainly, the Court cannot further compound the 

issue by forcing her to do so. 

2. For example, the hearing scheduled for tomorrow on all pending motions, includes 

Ms. Russell-Brown’s Motion to Compel (Doc. 120), filed August 3, 2010, on which, as she explains in 

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her Motion for Voluntary Dismissal (Doc. 129, pp. 3-4), neither the Defendants nor the Court had 

taken any action, as of the filing of her Motion, on August 13, 2010. 

3. Today, the Defendants finally filed their Response in Opposition (Doc. 131), to Ms. 

Russell-Brown’s Motion to Compel (Doc. 120). Clearly, Ms. Russell-Brown would not have had a full 

and fair opportunity to respond, at the hearing, scheduled for tomorrow morning, August 17, 2010, 

10:00 a.m., to the points raised in the Defendants’ Response, filed today, August 16, 2010, at 

approximately, 1:40 p.m. 

4. Further, in their Response, the Defendants argue that the Court should deny Ms. 

Russell-Brown’s Motion to Compel, because it was filed after the close of discovery, as set forth in 

the Court’s March 26, 2010 Initial Scheduling Order (Doc. 48). Again, as Ms. Russell-Brown 

explains in her Motion for Voluntary Dismissal (Doc. 120, pp. 4-5), Fed. R. Civ. P. Rule 16(b), as 

well as the Court’s Initial Scheduling Order, required the Court to enter a Final Scheduling Order or 

to set the matter for a Scheduling Conference, within 14 days of the parties’ joint report. The 

parties’ Joint Report, in which the parties agreed to December 3, 2010, as the discovery cut-off 

date, was filed on May 11, 2010 (Doc. 65). To-date, a Final Scheduling Order has not been 

entered in this action nor has a Scheduling Conference been set, despite Ms. RussellBrown’s July 15, 2010 Motion for a Scheduling Conference (Doc. 101), in which she 

respectfully requested an order setting a scheduling conference, in order to finalize a 

scheduling order. The Defendants can only make that argument, they only have the benefit of that 

argument, precisely because the Court has failed to comply with the Federal Rules of Civil 

Procedure, its own Order, or to take any action on Ms. Russell-Brown’s Motion (Doc. 101). 

5. Finally, on Monday, August 16, 2010, Ms. Russell-Brown sought leave to file a Reply 

Memorandum (Doc. 132), in order to clear up the Defendants’ misrepresentations of law and fact in 

their Response in Opposition (Doc. 130), including their misrepresentation of law that the Court can 

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condition a voluntary dismissal, without prejudice, on the assessment of “costs” and “attorneys’ 

fees,” should Ms. Russell-Brown re-file the identical complaint, against the same Defendants, in the 

same venue. The plain language of Fed. R. Civ. P. Rule 41(d) limits the Court’s authority to, if 

anything, assessing full or partial “costs,” not “attorneys’ fees,” should a plaintiff re-file the identical 

complaint, against the same defendants, in the same venue. Since the Defendants have refused to 

engage in discovery (Doc. 120), the Defendants have incurred no costs in terms of making witnesses 

available for depositions, answering interrogatories or producing documents. 

6. Ms. Russell-Brown’s Motion for Voluntary Dismissal Without Prejudice (Doc. 129), 

which can be decided on the papers, moots all pending motions, as well as the hearing scheduled for 

tomorrow morning, thereon. Further, Ms. Russell-Brown’s counsel, in his Notice of Unavailability 

(Doc. 110), filed with the Court and served on all parties, on July 22, 2010, explained that he would 

be out of the country for previously scheduled proceedings in the matter of The Prosecutor v. Ephrem 

Setako, before the International Criminal Tribunal for Rwanda, from August 19 – September 1, 2010 

and, again, from September 22 – 28, 2010, and that to allow, responsibly, for any unexpected travel 

disruptions, out of counsel’s control, he would be unavailable for proceedings in Ms. RussellBrown’s action, between August 16 – September 3, 2010 and September 20 – October 1, 2010. 

 WHEREFORE, Ms. Russell-Brown respectfully requests that this Honorable Court cancel, 

as rendered moot by the filing of her Motion for Voluntary Dismissal Without Prejudice (Doc. 129), 

the motion hearing (Doc. 124), currently scheduled for tomorrow morning, August 17, 2010, at 

10:00 a.m. 

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DATED this 16th day of August, 2010. 

 Respectfully submitted, 

/s/ Lennox S. Hinds

Lennox S. Hinds 

New York Bar No. 8196 

Stevens, Hinds & White, PC 

116 West 111th Street 

New York, NY 10026-4206 

(212) 864-4445 

(212) 222-2680 (fax) 

lawfirmshw@yahoo.com 

Attorney for Plaintiff 

CERTIFICATE OF COUNSEL

As of this filing, I was unsuccessful in reaching Defendants’ counsel for the purpose of being 

able to report to the Court, the Defendants’ position on the herein motion. 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August 16, 2010, the foregoing has been filed with the Clerk 

of the Court and served electronically by using the CM/ECF system, upon the following: 

Ian S. Marx, Esq. 

Greenberg Taurig, LLP 

200 Park Avenue 

Florham Park, NJ 07932 

Richard C. McCrea, Jr., Esq. 

Greenberg Taurig, LLP 

Courthouse Plaza, Suite 100 

625 East Twiggs Street 

Tampa, FL 33602 

Attorneys for Defendants 

/s/ Lennox S. Hinds

Lennox S. Hinds 

Attorney for Plaintiff 

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