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 MOTION FOR VOLUNTARY DISMISSAL WITHOUT 

PREJUDICE

 

Pursuant to Fed. R. Civ. P. Rule 41(a)(2), Plaintiff Sherrie Russell-Brown (“Plaintiff” or “Ms. 

Russell-Brown”) respectfully moves this Court to dismiss this action, without prejudice. In support 

of her Motion, Ms. Russell-Brown states as follows: 

1. As explained in greater detail below, with respect to Ms. Russell-Brown’s case, the 

Court has not adhered to the Local Rules of the Northern District of Florida, the Federal Rules of 

Civil Procedure, Eleventh Circuit and United States Supreme Court precedent. For example, Ms. 

Russell-Brown’s case is in the unprecedented procedural position of: 1) the Defendants having filed 

an Answer (Doc. 51), followed by a Motion to Dismiss (Doc. 52), on April 26, 2010, which the 

Defendants have requested the Court convert to a summary judgment motion; 2) Ms. Russell-Brown 

having filed a Rule 56(f) Affidavit (Doc. 75-1), on May 24, 2010, because, should the Court convert 

the Defendants’ Motion to Dismiss to a summary judgment motion, she has not had an opportunity 

to obtain discovery, a Motion to Strike the Defendants’ Motion to Dismiss (Docs. 107, 127), on July 

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21, 2010, because the Defendants filed a responsive pleading, and a Motion to Compel (Doc. 120), 

on August 3, 2010, because the Defendants are refusing to engage in discovery, and; 3) no Final 

Scheduling Order having been entered (Doc. 101). Yet, as of the filing of this Motion, the Court has 

not taken any action on Ms. Russell-Brown’s July 21 Motion to Strike, such as to deny or terminate 

the Defendants’ Motion to Dismiss, as precluded or rendered moot, by their filing a responsive 

pleading, or taken any action on Ms. Russell-Brown’s May 24 Rule 56(f) Affidavit (Doc. 75-1) or 

August 3 Motion to Compel (Doc. 120), such as to order the Defendants to produce discovery and 

to continue, until Ms. Russell-Brown has had an adequate opportunity for discovery, the Defendants’ 

request to convert their Motion to Dismiss to a summary judgment motion. Under these 

circumstances, Ms. Russell-Brown is unable to pursue her action before the Court. 

A. THE LOCAL RULES OF THE NORTHERN DISTRICT OF FLORIDA

First, the Court abused its discretion by deciding the Defendants’ motions without affording 

Ms. Russell-Brown an opportunity to respond, as required by Local Rule 7.1(C)(1). See United States 

v. De La Mata, 535 F.3d 1267, 1273-75 (11th Cir. 2008). The Court explained that the Defendants’ 

motions were motions for which a memorandum of law was not required and that it “routinely” 

rules on such motions, without affording the opposing party an opportunity to respond (Doc. 94 ¶ 

15). However, Ms. Russell-Brown’s motions also included motions for which a memorandum of law 

was not required (Docs. 58, 59, 69). Yet, not only did the Court afford the Defendants an 

opportunity to respond, before deciding Ms. Russell-Brown’s motions, the Court contacted 

the Defendants, by e-mail and by telephone, in order to ascertain their response.

Second, Local Rule 54.1(B)(2) and (5) requires that attorney time records must be filed on the 

15th of each month reflecting time spent in the preceding month. The penalty for non-compliance 

with Local Rule 54.1(B) is clearly set forth in the rule: Failure to comply will result in a disallowance 

of otherwise available attorney fees. There is no mention in Local Rule 54.1(B) of any exception. 

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No published opinion by the Eleventh Circuit or the Northern District of Florida has ever construed 

Local Rule 54.1(B) to contain an exception. The commands of Local Rule 54.1(B) are mandatory, 

not permissive. Local Rule 54.1(B) gives the District Court no latitude to refuse to enforce it. Yet, 

the Court refused to enforce Local Rule 54.1(B), as well as its own Order (Doc. 48, ¶ 9 (d)) 

and, instead, allowed the Defendants to untimely file attorney time records totalling 90.20 

hours (Docs. 80, 81, 85, 86, 92, 93) and to untimely file or essentially hide attorney time 

records, for past work performed, totalling 386.4 hours, in a case in which the Defendants 

were never served and which has been closed since May 2009.

B. THE FEDERAL RULES OF CIVIL PROCEDURE

First, Rule 12(b) of the Federal Rules of Civil Procedure specifically provides that all defenses 

must be asserted either (1) in a responsive pleading, or (2) by motion under Rule 12(b), before 

interposing a responsive pleading if one is due. According to the Eleventh Circuit, motions to 

dismiss are precluded as nullities once a responsive pleading has been filed. See, e.g., Skrtich v. 

Thornton, 280 F.3d 1295, 1306 (11th Cir. 2002); Byrne v. Nezhat, 261 F.3d 1075, 1093 n. 35 (11th Cir. 

2002); Cardenas-Lanham v. United States, No. 6:09-cv-1115-Orl-19DAB, 2009 WL 2495963, at * 1 

(M.D.Fla. Aug. 11, 2009); Olesen-Frayne v. Olesen, 2:09-cv-49-FtM-29DNF, 2009 WL 580310, at * 

1 (M.D.Fla. March 6, 2009). Yet, the Court has allowed the Defendants to file both a 

responsive pleading, an Answer (Doc. 51), and a Motion to Dismiss (Doc. 52), directed at 

Ms. Russell-Brown’s Verified Complaint (Doc. 45), and, as of the filing of this Motion, has 

not taken any action on Ms. Russell-Brown’s July 21 Motion to Strike the Defendants’ 

Motion to Dismiss (Docs. 107, 127), as precluded or rendered moot, by the Defendants filing 

a responsive pleading. 

Second, Rule 56(f)(2) of the Federal Rules of Civil Procedure specifically provides that when 

affidavits needed to assert a plaintiff’s claim are unavailable at the time of a defendant’s motion for 

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summary judgment, the court may “order a continuance to enable affidavits to be obtained, 

depositions to be taken, or other discovery to be undertaken.” Both the Eleventh Circuit and the 

Northern District of Florida have often held that “summary judgment should not be granted until 

the party opposing the motion has had an adequate opportunity for discovery.” See, e.g., Snook v. 

Trust Co. of Georgia Bank of Savannah, N.A., 859 F.2d 865, 870 (11th Cir. 1988); see also, Brock v. 

Bd. of Trustees of the Univ. of Fla., et al, No. 1:09cv157/SPM/AK (N.D.Fla. June 28, 2010) 

(Mickle, C.J.) (denying defendant University of Florida et al’s motion for summary judgment based 

on plaintiff Brock’s opposing filing which requested that the motion be held in abeyance until the 

completion of discovery). Here, Ms. Russell-Brown has affirmatively invoked the protection of Rule 

56(f)(2) by filing a Rule 56(f) Affidavit (Doc. 75-1). Yet, as of the filing of this Motion, although 

no depositions have been taken, the Defendants have not answered any of Ms. RussellBrown’s interrogatories and the Defendants have not produced a single document in 

response to Ms. Russell-Brown’s document requests, the Court has not taken any action in 

response to Ms. Russell-Brown’s May 24 Rule 56(f) Affidavit (Doc. 75-1) or August 3 Motion 

to Compel (Doc. 120), to order the Defendants to produce discovery and to continue, until 

Ms. Russell-Brown has had an adequate opportunity for discovery, the Defendants’ request 

to convert their Motion to Dismiss to a summary judgment motion. 

Third, Rule 16(b) of the Federal Rules of Civil Procedure requires the Court to issue a Final 

Scheduling Order after receiving the parties’ joint report. The Court’s Initial Scheduling Order (Doc. 

48), also requires 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 Report of the Parties’ Rule 26(f) 

Planning Meeting (Doc. 65) was filed on May 11, 2010. Yet, three months later, as of the filing of 

this Motion, a Final Scheduling Order has not been entered in this action nor has a 

Scheduling Conference been set, despite Ms. Russell-Brown’s July 15, 2010 Motion for a 

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Scheduling Conference (Doc. 101), respectfully requesting an order setting a scheduling 

conference, in order to finalize a scheduling order. 

C. UNITED STATES SUPREME COURT PRECEDENT

On June 7, 2010, in accordance with 28 U.S.C. § 144, Ms. Russell-Brown filed a 

disqualification affidavit (Doc. 76), explaining that Judge Paul’s abuse of his discretion and his 

violations of the law, the local and federal rules, the Code of Conduct for United States Judges, to 

Ms. Russell-Brown’s detriment and in favor of the Defendants, was one manifestation of his 

personal bias or prejudice against Ms. Russell-Brown, which he has developed as a result of personal, 

“extra-judicial” knowledge of material facts in dispute in Ms. Russell-Brown’s case, acquired through 

ex parte communications, contact and involvement with the Defendants. Ms. Russell-Brown’s 

disqualification affidavit was accompanied by the requisite certificate of good faith, executed by her 

counsel of record, and was timely filed. See, e.g., United States v. Womack, 454 F.2d 1337, 1341 (5th

Cir. 1972). 

According to the United States Supreme Court in Berger, a disqualification affidavit based 

“upon information and belief” satisfies section 144. See Berger v. United States, 255 U.S. 22, 34-35, 

41 S.Ct. 230 (1921) (“[w]e are of opinion, therefore, that an affidavit upon information and belief 

satisfies [section 144] and that upon its filing, if it show the objectionable inclination or disposition 

of the judge, which we have said is an essential condition, it is his duty to ‘proceed no further’ in the 

case”). In addition, once a disqualification affidavit is filed, the Judge must not pass on the truth of 

the matters in the affidavit but must assume them to be true, even where the Judge knows them to 

be false. See Berger, 255 U.S. at 34-35. Any in-court inquiry into the facts of the disqualification 

affidavit is inappropriate. Id. Yet, oddly enough, quoting verbatim – which the Court did in 

almost all of its Orders – from the Defendants’ Response in Opposition to Ms. RussellBrown’s Motion to Recuse (Docs. 82, 87), the Court ignored clear Supreme Court precedent 

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and erroneously required that Ms. Russell-Brown’s disqualification affidavit be based upon 

“personal knowledge” (Doc. 94 ¶¶ 6-9, 11, 13, 19) and inappropriately passed on the truth of 

the matters alleged in Ms. Russell-Brown’s disqualification affidavit (Doc. 94 ¶¶ 6, 8, 9, 11, 

13, 19). 

2. In sum, in Ms. Russell-Brown’s case, the Court has refused to enforce the Local Rules 

of the Northern District of Florida, the Federal Rules of Civil Procedure, Eleventh Circuit and 

United States Supreme Court precedent. Under these circumstances, Ms. Russell-Brown is unable to 

pursue her action before the Court. 

3. Finally, no per se rule exists that the pendency of a summary judgment motion 

precludes a district court from granting a voluntary dismissal, without prejudice. See, e.g., 

Pontenberg v. Boston Scientific Corp., 252 F.3d 1253, 1258 (11th Cir. 2001). In Pontenberg, 

approximately three months after the discovery period had expired, one month after her expert 

reports had been excluded from the record as a result of her attorney’s failure to timely comply with 

the expert disclosure requirements of Fed. R. Civ. P. Rule 26, and after the defendant had moved for 

summary judgment, plaintiff Pontenberg moved to voluntarily dismiss her action, without prejudice. 

Id. at 1255-56. The defendant objected to a voluntary dismissal without prejudice, arguing that it 

had invested considerable resources, financial and otherwise, in defending the action, including by 

preparing the then pending summary judgment motion. Over the defendant’s objection, the District 

Court granted plaintiff permission to voluntarily dismiss her action, without prejudice, and the 

defendant appealed. On appeal, the Eleventh Circuit affirmed, declining “to adopt a per se rule that 

the pendency of a summary judgment motion precludes a district court from granting a Rule 41(a)(2) 

voluntary dismissal without prejudice.” Id. at 1258. The Court stated “Rule 41(a) expressly 

contemplates situations in which the district court may, in its discretion, dismiss an action without 

prejudice even after the defendant has moved for summary judgment. Indeed, a voluntary dismissal 

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by leave of court under Rule 41(a)(2) after a summary judgment motion is filed is deemed to be 

without prejudice unless otherwise ordered.” Id.

4. In terms of the Defendants’ “counterclaim” (Docs. 51, 54), since Ms. Russell-Brown 

denied service, returning the same electronically (Doc. 57) and via U.S. Mail, the Defendants were 

required to re-serve Ms. Russell-Brown, which they did not. See, e.g., Aucoin v. Connell, 209 

Fed.Appx. 891, 894-95 (11th Cir. 2006). Therefore, according to the Eleventh Circuit, the 

Defendants’ counterclaim is a nullity. Further, according to the Eleventh Circuit, dismissal by order 

of the Court does not implicate the two dismissal rule. See, e.g., ASX Inv. Corp. v. Newton, 183 

F.3d 1265, 1267-68 (11th Cir. 1999). 

WHEREFORE, Ms. Russell-Brown requests that the Court dismiss this action, without 

prejudice. 

DATED this 13th 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 

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CERTIFICATE OF COUNSEL 

I certify that I complied with my obligations under Local Rule 7.1(B)(1), to confer with 

Defendants’ counsel prior to filing this Motion. As of this filing, I have not received a response 

from Defendants’ counsel, Mr. Richard C. McCrea, Jr., Esq., regarding the Defendants’ position on 

the herein Motion. 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August 13, 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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