ORDER

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V MELBOURNE
DOCKET / CHRONOLOGICAL FILE
ORDER

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CASE NO. 6:99-CV-416-ORL-19B

MEREDITH T. RANEY, JR.,
Plaintiff,
v.
CITY OF MELBOURNE, FLORIDA,
Defendant.

ORDER

This cause comes before the Court on the following matters:

(1) Plaintiff's Motion for Evidentiary Hearing (Doc. No. 17, filed May 30,

(2) Plaintiff's Motion to Recuse (Doc. No. 18, filed May 30, 2000); and

(3) Defendant's Response in Opposition to Plaintiff's Motion for Evidentiary Hearing and Motion to Recuse (Doc. No. 19, filed May 31, 2000).

I. BACKGROUND

This case was before the Eleventh Circuit Court of Appeals pursuant to appeal by Meredith T. Raney Jr. ("Raney") of this Court's Order dated March 8, 2000. See (Doc. Nos. 11 & 12). On May 10, 2000, the Eleventh Circuit Court of Appeals remanded this case "on a limited basis to the Clerk of the Middle District of Florida for investigation and correction of the docket." See (Doc. No. 14). The remand stated that "[i]n the event that the Clerk determines that the docket is correct, the District Court should hold an evidentiary hearing into Appellant's allegations and report its findings to this Court." Id. After confirming the accuracy of the docket, as instructed by the Eleventh Circuit Court of Appeals, the Clerk of the Middle District of Florida referred the case to this Court for further action. See (Doc. NO. 15, 1-2 & 5) (confirming that the docket is correct).

In an Order dated May 19, 2000, the Court explained, in great detail, how the reference to a document that does not appear in the docket appeared in the March 8, 2000 Order. The Court recognized that a time-consuming and fruitless evidentiary hearing might be avoided, and review of this case on the merits expedited, by a simple correction of the March 8 Order pursuant to Rule 60(a) of the Federal Rules of Civil Procedure.[1] The Court requested that the parties indicate whether an evidentiary hearing should occur "in light of the Court's explanation of its reference in the Raney Order to Document Number 18." On May 30, 2000 Appellant filed a motion for evidentiary hearing together with a motion to recuse. See (Doc. Nos. 17 & 18).

II. MOTION FOR AN EVIDENTIARY HEARING

This Court is satisfied, upon a review of the record, that an evidentiary hearing is not required in this matter. Appellant's motion to recuse confirmed that his allegations to the Eleventh Circuit Court of Appeals were based on this Court's reference to Document Number 18. See (Doc. No. 18, at ¶ 3) ("The reason for filing [the motion to restrict the record on appeal] was the reference by the District Judge to a document called 'Defendant's Memorandum Of Law in Opposition to Plaintiff's Motion to Strike' in the . . . order of March 8, 2000"). The Court's May 19, 2000 Order fully explains the Court's reference in its March 8, 2000 Order to Document Number 18. Thus, Appellant's allegations have been fully addressed.

In addition, although this Court indicated that the parties should advise the Court on the need for an evidentiary hearing in light of the Court's explanation" in the May 19 Order, Appellant's Motion for Evidentiary Hearing does not acknowledge the Court's explanation at all.[2] See (Doc. No. 17). Appellant merely recites the statement in the Eleventh Circuit Court of Appeals' Remand Order that a hearing "should" be held. Despite the use of the word "should" in the Remand Order, the Court cannot find that the Eleventh Circuit Court of Appeals intended to require an evidentiary hearing regardless of the circumstances. Thus, this Court finds that an evidentiary hearing is not required in this matter.

III. MOTION TO RECUSE

Appellant has also moved for recusal pursuant to 28 U.S.C. §455(a) and (b)(1). (Doc. No. 18, ¶ 10] ("The U.S. District Judge has demonstrated personal knowledge of disputed facts and so should disqualify herself in accord with 28 U.S.C. §455(b)(1); also, this evidentiary hearing is a proceeding in which her impartiality might reasonably be questioned and so she should disqualify herself on account of 28 U.S.C. §455(a)."). Because this Court has found that an evidentiary hearing need not be held, the Appellant's motion to recuse will be denied as moot.

IV. CONCLUSION

Based on the foregoing, the Court RULES that:

(1) Plaintiff's Motion for Evidentiary Hearing (Doc. No. 17) is DENIED.

(2) Plaintiff's Motion to Recuse (Doc. No. 18) is DENIED AS MOOT.

(3) This Order and the Court's Order dated May 19, 2000 (Doc. No. 15) constitute this Court's report of its findings as requested by the Eleventh Circuit Court of Appeals (Doe. No. 14),

(4) Pursuant to Rule 60(a) of the Federal Rules of Civil Procedure, the Court hereby seeks leave of the Eleventh Circuit Court of Appeals to correct the record on appeal by amending this Court's Order dated March 8, 2000 to strike the following from page one, paragraph number two: "; and Defendant's Memorandum of Law in Opposition to Plaintiff's Motion to Strike (Doc. No. 18, filed September 7, 1999)."

DONE AND ORDERED at Orlando, Florida, this 21st day of June 2000.

PATRICIA C. FAWSETT (signed)
UNITED STATES DISTRICT JUDGE

Copies to:
All Counsel of Record
The Eleventh Circuit Court of Appeals

FOOTNOTES

[1] Rule 60(a) provides for the correction of clerical errors as follows:

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

Fed. R.Civ. P. 60(a) (emphasis added).

[2] For instance, Appellant's Motions do not indicate that there is any reason to doubt the Court's explanation for its error; nor do the Motions indicate what may be gained from an evidentiary hearing. See id.