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IN THE CIRCUIT OF THE THIRTEENTH JUDICIAL CIRCUIT

IN AND FOR HILLSJJOROUGH COUNTY, FLORIDA


GE,NElUlL CIVIL DIVISION
NEIL J. GILLESPIE,
Plaintiff, CASE NO.: 05-CA-7205
vs.
BARKER, RODEMS & COOK, P.A., DIVISION: H RECEIVED AND FILED
a Florida corporation;
J. COOK,
DEC 11 2006
Defendants.
CLERK OF CIRCUlT COURT
/
HILLSBOROUGH COUNTY, FL
PLAINTIFF'S MOTION FOR RECONSIDERATION Dis ("
Plaintiff moves for reconlsideration Judge Nielsen's ruling of June
granting Defendants' Motion to Compel discovery, and the Court's Order Granting
Defendants' Motion to Compel signed by Judge Nielsen July 24, 2006. Plaintiff
moves that the Order be quashecl or vacated.
1. Plaintiff moved to disqlLalify the Honorable Richard A. Nielsen for
specifically described prejudice or bias. Judge Nielsen denied Plaintiffs motion to
disqualify as untimely filed, but recused himself two days later sua sponte, citing: "THIS
CAUSE came before the court upon its own motion, and the court being fully advised in
this matter, that it is in the best interest of all parties that tllis case be assigned to another
division." Judge Nielsen directed the C:lerk's office to immediately reassign the case.
2. Judge Nielsen signed his Order of Recusal November 22, 2006. The case
was assigned by the Clerk of the Court to the Honorable Claudia R. Isom, Division H,
effective November 22, 2006.
Gillespie v. Barker, Rodems & Cook, P.A. CASE NO.: 05-CA-7205, Div. H
3. Given the proximity of the Court's Order of Recusal - just two days after
Plaintiff moved to disqualify the Judge, it can be reasonably inferred that Judge Nielsen
agreed with the slLbstance of Plaintiffs motion to disqualify, and that Judge Nielsen's
Order of Recusal be treated as an Order of Disqualification for the purpose of this motion
4. Defendants cannot claim they are prejudiced by this Motion for
Reconsideration because Defendants and their attorneyl are directly responsible for Judge
Nielsen's recusal. Defendants' lawyer, Ryan Christopher Rodems, was shown to have
committed perjury before the Court in order to gain favor with Judge Nielsen, who in hIm
relied upon Mr. Rodems bold-faced lies that created tIle specifically described prejudice or
bias of the Judge against Plaintiff.
5. The matters of law and fact to be relied upon as grounds for the
modification or vacation of the order are the following:
(a) Pretrial discovery was implemented to simplify the issues in a case, to
encourage the settlement of cases, and to avoid costly litigation. (Elkins v. Syken, 672
So.2d 517 (Fla. 1996). In this case the parties know the issues from Defendants' prior
representation of Plaintiff on the same matter. But because Defendants are lawyers they
can freely litigate this case almost indefinitely. The rules of discovery are designed to
secure the just and speedy determination every action (In re Estes' Estate, 158 So.2d 794
(Fla. Dist. Ct. App. 3d Dist. 1963), to promote the ascertainment of truth (Ulrich v. Coast
Dental Services, Inc. 739 So.2d 142 (Fla. Dist. Ct. App. 5
th
Dist. 1999), and to ensure that
judgnlents are rested on the real merits of causes iliational Healthcorp Ltd. Partnership v.
Close, 787 So.2d 22 (Fla. Dist. Ct. App. 2d Dist. 2001), and not upon the skill and
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Gillespie v. Barker, Rodems & Cook, P.A. CASE NO.: 05-CA-7205, Div. H
maneuvering of counsel. (Zuberbuhler v. Division of Administration, State Dept. of
Transp. 344 So.2d 1304 (Fla. Dist. Ct. App. 2d Dist. 1977).
(b) Plaintiff appears pro se because he cannot afford legal counsel and lawyers he
contacted are reluctant to litigate against Defendants, not because he prefers to litigate
against his former lawyers.
(c) Plaintiff is not an attorney and has not attended law school. The Court is fully
advised in this fact, and stated the following on April 25, 2006. (Transcript, p. 17):
THE COURT: All Right. Well, Mr. Gillespie, you're not trained in the law.
You're not trained in the Rules of Civil Procedure so I'll give you a quick explanation of
how we can get to where we are today. (Relevant portion). Mr. Rodems also knows that
Plaintiff is not trained as a lawyer and has completed only a few paralegal classes at a
local junior college.
(d) In response to Mr. Rodems' discovery requests submitted March 28, 2006,
Plaintiff responded timely by letter dated April 29, 2006. (Exhibit 1). Plaintiffs letter
sets fourth the following:
(i) A timely response to Mr. Rodems' discovery requests;
(ii) An objection to the time and place for the production of documents;
(iii) An offer to provide discovery to Mr. Rodems by May 15, 2006, production of
documents free of charge. This offer can be, and should be, reasonably construed as a
request for extension of time in providing the discovery. This was Plaintiff's first request
for an extension, and should have been acknowledged and granted by Mr. Rodems as
1 Defendants and their lawyer are one-in-the-same; a law fmn representing itself against a suit brought by a
former client for fraud and breach of contract.
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Gillespie v. Barker, Rodems & Cook, P.A. CASE NO.: 05-CA-7205, Div. H
such, per the Hillsborough County Standards of Professional Courtesy, and other
applicable law.
(iv) An offer to provide discovery to Mr. Rodems by May 15, 2006, answers to
interrogatories. This offer can be, and should be, reasonably construed as a request for
extension of time in providing the discovery. This was Plaintiffs first request for an
extension, and should have been acknowledged and granted by Mr. Rodems as such, per
the Hillsborough County Standards of Professional Courtesy, and other applicable law.
(v) Plaintiff also noted the following:
"As you know, you already have most, if not all, the items requested for which
you are entitled, by way of your prior representation of me."
This raises the question that Defendants' discovery request was more of a
harassing nature than a bona-fide request pursuant to the rules of discovery, considering
the fact that Mr. Rodems refused to grant an extension of time to May 15,2006 for
Plaintiff to respond.
(vi) Plaintiffs request for an extension of time to May 15,1006 was reasonable
because Plaintiff was preparing for four motions to be heard on April 25, 2006:
1. Plaintiff s Motion to Disqualify Counsel;
2. Plaintiffs Motion to Dismiss and Strike Counterclaim;
3. Defendants' Motion for Sanctions Pursuant to Section 57.105(1),
Florida Statutes;
4. Plaintiffs Motion For An Order Of Protection.
(vii) Because of the foregoing, it appears that the timing of Mr. Rodems's
discovery request, and his refusal to grallt an extension, was calculated to "trip-up"
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Gillespie v. Barker, Rodems & Cook, P.A. CASE NO.: 05-CA-7205, Div. H
Plaintiff over fine points of law, and the Rules of Civil Procedure in which Plaintiff is not
trained. This conduct is a prohibited use of discovery cited above in paragraph 5(a).
(e). On January 30, 2006, Plaintiff called Mr. Rodems about the case management
conference pursuant to Fla.R.Civ.P., Rule 1.200(a). At first Mr. Rodems seemed unaware
of the rule, and had to look it up. Mr. Rodems said the rule is not usually followed, but
he would do so if Plaintiff requested, but this did not occur. Given the nature of this case,
and Plaintiff's unfamiliarity with the law and civil procedure, the Court should have
mandated a case management conference to include discovery procedure, but it did not.
(i) While discussing discovery, Mr. Rodems said Plaintiff could copy documents
at his law office, but that Plaintiff would probably want to do this elsewhere because of
Defendants hostility toward him.
(ii) Mr. Rodems failed to return a phone call from September 30, 2005, that
Plaintiff made upon receipt of case law that the Court directed Mr. Rodems provide.
Whenever Plaintiff calls Mr. Rodems, he is unavailable, and his staff put the call through
to voice mail. Mr. Rodems only returns about half of Plaintiff's phone calls. Mr.
Rodems' failure to communicate is a strategy employed to his advantage, and he did so
here by failing to respond to Plaintiff's letter dated April 29, 2006.
(f) The Court and Mr. Rodems refuse to grant Plaintiff any procedural latitude for
his unfamiliarity with the law or civil procedure. In Haines v. Kerner, 404 U.S. 520
(1971) the United States Supreme Court found that pro se pleadings should be held to
"less stringent standards" than those drafted by attorneys. In Florida, for the District
Court of Appeals for the Second District, Biermann v. Cook, 619 So.2d 1029, is a case on
point. The Court noted that the majority ofpro se litigants conduct themselves, if not
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G-illespie v. Barker, Rodems & Cook, P.A. CASE NO.: 05-CA-7205, Div. H
always with the expertise of trained attorneys, respectfully, candidly, and with honest
effort to abide by rules of procedure. The Court wrote that our power, and desire, to
impose sanctions against pro se and/or indigent litigants is limited by the constitutiol1al
right of access to the courts, by the statutory ability of indigents to obtain court services at
little or no cost, and by a well-recognized principle that non-lawyer litigants not be
penalized for any inability to observe strict compliance with rules of procedure.
Therefore, Plaintiff s motion for reconsideration should be granted, the Order granting
Defendants Motion to Compel Discovery, sholLld be quashed or vacated.
(g) Mr. Rodems sent Plaintiff an email Friday, May 5, 2006, stating:
"Neil: Your discovery was due on May 2, 2006, and we have not received
responses to the interrogatories or request for production. Please consider this my good
faith effort to secure the responses without court action, Fla. R. Civ. P. I.380)a)(2)."
Because Plaintiff responded to Defendants discovery by letter dated April 29,
2006 (Exhibit 1), Mr. Rodems' email was factually incorrect. Mr. Rodems knew this,
and Plaintiff was reluctant to respond to the email and become engaged in a hostile
argument with Mr. Rodems, which was likely given his hostile phone call to Plaintiffs
home on March 3, 2006. Instead Plaintiff intended to provide the discovery responses by
May 15, 2006, as stated in his letter to Mr. Rodems. This plan was short-circuited by Mr.
Rodmes' Motion to Compel Discovery submitted May 11, 2006.
(e) Plaintiff responded to Defendants' Motion to Con1pel with the following:
(i) Plaintiffs Motion for an Order of Protection (Discovery)
(ii) Plaintiffs Answers to Defendants' Interrogatories; and
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Gillespie v. Barker, Rodems & Cook, P.A. CASE NO.: 05-CA-7205, Div. H
(iii) Plaintiff s Responses to Defendants' Request for Production.
The following is a procedural history of what followed:
A hearing on Defendants' Motion to Compel was held June 28, 2006, and the
Court granted Defendants' motion and awarded attorneys' fees. The Court erred for the
following reasons:
(iv) The Court failed to acknowledge Plaintiffs timely April 29, 2006
response to Mr. Rodems' discovery requests. Plaintiffs letter sets fOllrth the following:
1. A timely response to Mr. Rodems' discovery requests;
2. An objection to the time and place for the production of documents;
3. An offer to provide discovery to Mr. Rodems by May 15, 2006, production of
documents free of charge. This offer can be, and should be, reasonably construed as a
request for extension of time in providing the discovery. This was Plaintiffs first request
for an extension, and should have been acknowledged and granted by Mr. Rodems as
such, per the Hillsborough County Standards of Professional Courtesy, and other
applicable law.
4. An offer to provide discovery to Mr. Rodems by May 15, 2006, answers to
interrogatories. This offer can be, and should be, reasonably construed as a request for
extension of time in providing tIle discovery. This was Plaintiffs first request for an
extension, and should have been acknowledged and granted by Mr. Rodems as such, per
the Hillsborough County Standards of Professional Courtesy, and other applicable law.
5. Plaintiff also noted the following:
"As you know, you already have most, if not all, the items requested for which
you are entitled, by way of your prior representation of me."
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Gillespie v. Barker, Rodems & Cook, P.A. CASE NO.: 05-CA-7205, Div. H
(t) The Court erred in granting Defendants' Motion to Compel because:
(i) the Order required Plaintiff to produce was information not within the
scope of discovery and discovery that is -burdensome;
(ii) The Court failed to acknowledge Plaintiffs timely response. (Exhibit 1).
(iii) By granting Defendants' motion to compel, the Court ordered
disclosure ofjudicial complaints (if any ~ e x i s t e d ) contrary to the confidentiality of
such records. (This was the advice of cOlillsel).
(iv) The Court required Plaintiff to provide, organize and index records at
his costs, and pay for the costs of security, contrary to the holding of Evangelos v.
Dachiel, 553 So.2d 245, and Baron v. Costa, 478 So.2d 492.
(g) Plaintiff appealed the Court's Order (}ranting Defendants' Motion to Compel
discovery signed by Judge Nielsen July 24, 2006. This is a tinle-line of events:
(i) August 14,2006, Plaintiffs Notice of Appeal, Order Granting Defendants'
Motion to Compel (Circuit Court);
(ii) August 22,2006, Plaintiffs/Appellant's Petition for Writ of Certiorari
(Second District Court of Appeal);
(iii) August 25, 2006, Plaintiffs Motion to Stay Discovery Order (Circuit Court)
(iv) September 8, 2006, Plaintiffs/Appellant's Writ of Certiorari dismissed for
lack ofjurisdiction (Second District Court of Appeal). This dismissal was a technical
issue that arose when the Circuit Court informed Plaintiff it was providing the record to
the 2
nd
DCA, but failed to do so.
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Gillespie v. Barker, Rodems & Cook, P.A. CASE NO.: 05-CA-7205, Div. H
(v) October 2, 2006, Plaintiffs/Appellant's Motion to Correct Omission (Second
District Count of Appeal) to correct the failure of the Circuit Court to provide the record
to the 2
nd
DCA. (Taken on the advice of counsel).
(vi) December 5, 2006, Plaintiffs/Appellant's Motion to expedite, or refund filing
fee (taken on advice of Clerk of the Court). Currently waiting for a response.
(h) In a good faith effort, Plaintiff submitted the following to Mr. Rodems while
waiting for a final ruling by the 2
nd
DCA:
(i) Plaintiffs Answers to Defendant Barker Rodems & Cook, P.A.'s First
Set of Interrogatories to Plaintiff, submitted December 8, 2006;
(ii) Plaintiffs Responses to Defendants' Request for Production,
submitted Decerrlber 8, 2006.
(i) Defendants' counsel, Ryan Christopher Rodems has made improper
discovery requests upon Plaintiff, as follows:
(i) Defendants' Request for Production to Plaintiff. Mr. Rodems has made
unreasonable document demands to harass or embarrass Plaintiff, and to impose
an inordinate burden or expense in responding. Mr. Rodems has requested
documents from Plaintiff that he would not provide when the same request was
sent to his client. Mr. Rodems' request for production to Plaintiff contained 23
demands; 28 with subparts. When the same or equivalent document requests were
sent to Defendants, Mr. Rodems objected to 16 of the requests, or 21 with
subparts, and improperly answered "previously produced" on 2 other demands.
(ii) Defendants' Interrogatories to Plaintiff. Mr. Rodems has sent improper
interrogatories to harass or embarrass Plaintiff, and to impose an inordinate burden
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Gillespie v. Barker, Rodems & Cook, P.A. CASE NO.: 05-CA-7205, Div. H
or expense in responding. For example, Mr. Rodems sent 12 interrogatories to
Plaintiff, but when Plaintiff sent the same interrogatories to Defendant Cook, Mr.
Rodems objected to five of the interrogatories, answered three incompletely, and
answered fOUf in the negative.
G) Defendants' discovery requests seek information from Plaintiff that is
not within the scope of discovery, information that is privileged, and discovery that
is burdensome. Also, because of Defendants' prior representation of Plaintiff, it
already has most, if not all of the items for which it is entitled.
(k) Because of the foregoing, Defendants should not be granted attorneys' fees.
WHEREFORE, Plaintiff moves this Court for reconsideration of Judge
Nielsen's June 28, 2006 ruling, and to quash or vacate his Order Granting
Defendants' Motion to Compel discovery.
RESPECTFULLY SUBMITTED this 11 th day of December, 2006.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished by hand
delivery to Ryan Christopher Rodems, attorney, Barker, Rodems & Cook, P.A., Attorneys
for Defendants, 400 North Ashley Drive, Suite 2100, TamP'l.!.Fler" 33602, t11th day
of December, 2006. .' ,,' .':'< ,',".. '" ," "f"
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Page - 10 of 10
Neil J. Gillespie
8092 SW 115
th
Loop
Ocala, Florida 34481
Telephone: (352) 854-7807
April 29, 2006
Ryan Christopher Rodems, Attorney at Law
Barker, Rodems & Cook, P.A.
400 North Astlley Drive, Suite 2100
Tampa, Florida 33602
Dear Mr. Rodems,
This is in reply to Defendants' Request For Production submitted March 28, 2006.
In your request for production, you requested to inspect items at the law office of Barker,
Rodems & Cook, P.A. on May 4, 2006 at 9:00 a.m. I object to your request, and will not
appear at your office for any reason, due to your threats against me.
In the alternative I will respond to your request for production by mailing you
copies of the items requested, subject to objection, by May 15, 2006.
As for Defendant Barker, Rodems & Cook, P.A.'S Notice Of Service of First
Interrogatories To Plaintiff, I will provide answers, subject to objection, by May 15, 2006.
As you know, you already have most, if not all, the items requested for which you
are entitled, by way of your prior representation of me.
Sincerely,
Neil J. Gillespie
r
EXHIBIT
~ I
/