ORDER 10/21/99

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
OCALA WOMEN'S CENTER V CITY OF OCALA
DOCKET / CHRONOLOGICAL FILE
ORDER 10/21/99

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
CASE NO. 98-371-Civ-OC-10C

OCALA WOMEN'S CENTER, INC.,
a Florida corporation, and
JAMES S. PENDERGRAFT, M.D.,
on their own behalves and for the class of
patients, staff and associated physicians,
Plaintiffs,
-vs-
CITY OF OCALA, et al.
Defendants

ORDER

On April 27, 1999, the Court entered an order granting in part and denying in part the Plaintiffs' application for preliminary injunction (Doc. 49). Subsequently, the Court denied the Plaintiffs' motion for reconsideration (Doc. 59) and for further injunctive relief {Doc.69). The Plaintiffs then instituted interlocutory appeals (Docs. 63 & 80) from both orders under 28 U.S.C. §1292(a) and sought to have the action stayed in the District Court pending the resolution of the appeals. By order entered August 31, 1999 (Doc. 82), the Court denied the motion for stay. The Plaintiffs have now filed under seal a motion seeking a stay of all discovery pending the appeals or "in the further alternative Plaintiffs' voluntary dismissal under Rule 41 ."

There is no logical basis for a stay of this action or a stay of discovery pending resolution of the Plaintiffs' appeals by the Court of Appeals. Stated another way, the decision of the Court of Appeals will not conclude the case one way or the other. If denial of preliminary injunctive relief is affirmed, the Plaintiffs will still have the right to proceed to litigate their claims whether on the existing complaint or such amendments to the pleadings as might~then be sought and allowed. Conversely, if the Court of Appeals decides that injunctive relief should have been afforded in broader scope than the relief this Court previously granted, then the Defendants will have the right to litigate their resistance to the granting of permanent relief. It follows that the present motion seeking an abatement of all discovery should be and is Denied. That leaves the question of voluntary dismissal. It is not clear to the Court that the present motion actually seeks a voluntary dismissal as distinguished from merely reciting Plaintiffs' intent in that regard if discovery is allowed to proceed. It is also unclear whether the Plaintiffs intend not only to conclude the action in the District Court but to abandon the appeals as well, dismissal of the appeals as moot being a probable consequence of the dismissal of the action in the District Court. See Druhan v. American Mutual Life, 166 F.3d t324, 1326 (11th Cir. 1999); Pacific Insurance Co. V. General Development Corp., 28 F.3d 1093, 1096 (11th Cir. 1994); Ethredge v. Hail, 996'F.2d 1173, 1175 (11th Cir. 1993).

Accordingly, the Plaintiffs' motion (filed under seal) for a protective order or stay of discovery is DENIED. If the Plaintiffs now wish to pursue voluntary dismissal under Rule 41, they are free to do so at any time by filing a separate notice or pleading which complies with the rule.

IT IS SO ORDERED.
DONE and ORDERED in Ocala, Florida, this 21st day of October, 1999.

Wm. TERRELL HODGES (signed)
UNITED STATES DISTRICT JUDGE

Copy to counsel of record
Copy to the Hon. Timothy J. Corrigan