2:23-cv-01218
M.D. Fla.
Aug 18, 2025

DANESH NOSHIRVAN, an individual, Plaintiff, v. JENNIFER COUTURE, an individual, RALPH GARRAMONE M.D., an individual, RALPH GARRAMONE, M.D., P.A. d/b/a GARRAMONE PLASTIC SURGERY, CENTRAL PARK OF SOUTHWEST FLORIDA, LLC, OMG REALTY, LLC, THE LAW OFFICE OF PATRICK TRAINOR ESQ., LLC d/b/a THE LAW OFFICE OF PATRICK TRAINOR, PATRICK TRAINOR, an individual, and ANTI-DOXING LEAGUE INC., Defendants.

Case No: 2:23-cv-1218-JES-KCD

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

August 18, 2025

19190

RALPH GARRAMONE, M.D., P.A. d/b/a GARRAMONE PLASTIC SURGERY, JENNIFER COUTURE, an individual, RALPH GARRAMONE, M.D., an individual, PATRICK TRAINOR, an individual, Counter-Plaintiffs, v. DANESH NOSHIRVAN, Counter-Defendant.

OPINION AND ORDER

This matter comes before the Court on review of two objections filed by two parties to two non-dispositive discovery orders entered by the assigned magistrate judge. Non-party Richard Luthmann (Luthmann) filed an objection to the magistrate judge’s January 17, 2025, Order. (Doc. #252.) Defendant Patrick Trainor (Trainor) filed an objection to the magistrate judge’s July 13, 2025, Order. (Doc. #440.) No responses were filed. For the reasons set forth below, the objections are overruled.

I.

Because both objections are to the magistratе judge’s non-dispositive discovery orders, this Court applies the clearly erroneous or contrary to law standard. Fed. R. Civ. P. 72(a) (“When a pretrial matter not dispositive of a party’s claim or defense is referrеd to a magistrate judge to hear and decide . . . [t]he district judge in the case must consider timely objections ‍​​​‌‌‌​​​​‌‌​​‌‌​​​​‌​​​​​​‌​‌‌‌‌‌‌​‌‌‌‌​​​​‌​‌​‍and modify or set aside any part of the order that is clearly erroneous or is contrary to lаw.”). “The ‘clearly erroneous or contrary to law’ standard is extremely deferential.” Scopelliti v. McClean, No. 8:20-CV-104-CEH-CPT, 2023 WL 1071626, at *1 (M.D. Fla. Jan. 27, 2023) (citing Pac. Employers Ins. Co. v. Wausau Bus. Ins. Co., No. 3:05-cv-850-JHM-MMH, 2007 WL 433362, at *2 (M.D. Fla. Feb. 6, 2007)). “A finding is clearly erroneous when the reviewing court, after assessing the evidence in its entirety, is left with a definite and firm conviction that a mistake has been committed.” Krys v. Lufthansa German Airlines, 119 F.3d 1515, 1523 (11th Cir. 1997) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)). “A magistrate judge’s order is contrary to law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Positano Place at Naples IV Condo. Ass’n, Inc. v. Empire Indem. Ins. Co., No. 2:21-CV-186-SPC-KCD, 2024 WL 3817021, at *1 (M.D. Fla. Aug. 14, 2024) (quoting A.R. by and through Root v. Dudek, 151 F. Supp. 3d 1309, 1312 (S.D. Fla. 2015)).

II.

This litigation began after Plaintiff Danesh Noshirvan (Noshirvan) published a Tik-Tok video of an altercation between Defendant Jennifer Couture (Couture) ‍​​​‌‌‌​​​​‌‌​​‌‌​​​​‌​​​​​​‌​‌‌‌‌‌‌​‌‌‌‌​​​​‌​‌​‍and another woman. Noshirvan alleges that Defendants, enraged by his publication of the video, began a continuing course of harassment against him.1 Trainor is a Defendant and counsel for some of the other Defendants. Luthmann, who self-identifies as a professional investigative journalist, is a non-party that has nonetheless been connected to this litigation. (See Doc. #454, p. 15) (finding Nоshirvan’s expert witness was harassed after Luthmann published Noshirvan’s expert disclosures online).

A. Luthmann’s Objection

Luthmann’s objection relates to the emergency motion he filed after Noshirvan served him with a subpoena seеking the production of certain records. Luthmann’s emergency motion requested the subpoena be quashed, a protective order, the disqualification of Noshirvan’s attorney, Nicholas Chiappetta (Chiappetta), a one hundred-thousand-dollar ($100,000.00) sanction against Noshirvan and Chiappetta, a declaration that the subpoena was an abuse of process, and more. (Doc. #219, pp. 2-5.) That relief was warranted, Luthmann argued, because the subpoena was technically defective, the qualified privilege for journalists applied, and it was served in a bad faith attempt to harаss and intimidate a journalist engaged in a constitutionally protected activity. Chiappetta withdrew the subpoena the day after Luthmann was served it, (Doc. #220, p. 8), leading the magistrate judge to deny Luthmann’s requеst for sanctions and deny as moot the rest of Luthmann’s requested relief. (Doc. #230.)

Luthmman objects to the magistrate judge denying his emergency motion as moot. (See Doc. #252.) Luthmann argues that, because the “capable of repetition yet evading review” mootness exception applies, the magistrate judge needed to reach all the issues of law and fact in his emergency motion, including finding Luthmann is indeed a professional investigative journalist, the qualified privilege of journalists applied, and that a protective order was merited. (Id.)

“Although there is an exception to the mootness doctrine when the action being challenged by the lawsuit is capable of being repeated and evading review, this exception is narrow, and applies only in exceptional situations.” Graham v. Att’y Gen., State of Georgia, 110 F.4th 1239, 1245 (11th Cir. 2024) (alteration in original) (quoting Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001)). “This exception ‘applies where (1) there [is] a reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party, and (2) the challenged action is in its duration too short to bе fully litigated prior to its cessation or expiration.’” Id. at 1246 (alteration in original) (quoting United States v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1223, 1229 (11th Cir. 2015)). “The remote possibility that an event might recur is not enough to overcome mootness, and even a ‍​​​‌‌‌​​​​‌‌​​‌‌​​​​‌​​​​​​‌​‌‌‌‌‌‌​‌‌‌‌​​​​‌​‌​‍likely recurrence is insufficient if there would be ample opportunity for review at that time.” Hall v. Sec’y, Alabama, 902 F.3d 1294, 1297 (11th Cir. 2018) (quoting Al Najjar, 273 F.3d at 1336). “The [movant] bears the burden of establishing that this exception applies.” Warren v. DeSantis, 125 F.4th 1361, 1364 (11th Cir. 2025).

Luthmann fails to carry that burden. He fails at the first prong because there is no demonstrated probability that he would be subject to another subpoena from Noshirvan. When Noshirvan alerted the magistrate judge that the subpoena had been withdrawn, he also simultaneously asserted that serving it in the first place was near impossible because Luthmann did not seem to live at his listed place of residence and had been elusive. (Doc. #228, pp. 8-9.) Such difficulty did not demonstrate Luthmann was likely to be served the subpoena again. Even if Luthmann had been served with another subpoena, the magistrate judge would have had ample time to consider any appropriate relief then, unsatisfying the first prong. Al Najjar, 273 F.3d at 1336; In re Aleph Inst., No. 06-61788-CIV, 2007 WL 9700821, at *4 (S.D. Fla. July 3, 2007) (holding that capable of repetition but evading review exception did not apply to a motion for protective order after subpoena was withdrawn because ample time to review existed with no trial date certain). In any event, there is no longer even a remote possibility that Luthmann could be served another subpoena by Noshirvan in this case since discovery for those purрoses has closed. “Because [Luthmann] fail[s] to meet the first prong of the mootness exception, we need not address whether [he] meet[s] the second prong.” Graham, at 1246. Luthmann’s objection is overruled.

B. Trainor’s Objection

Trainor’s objection relates to his motion to compel certain discovery, filed on June 22, 2025. (Doc. #419.) Discovery was set to end on June 30, 2025. (Doc. #316.) The magistrate judge denied Trainor’s motion as untimely. (Doc. #436.) He explained it was untimely becausе all discovery issues must be resolved by the discovery deadline. (Id. at p. 1.) And if a motion to compel discovery is filed too late so as to not allow the filing of an opposition brief before the discоvery deadline, especially without good cause, then discovery issues cannot be adequately ‍​​​‌‌‌​​​​‌‌​​‌‌​​​​‌​​​​​​‌​‌‌‌‌‌‌​‌‌‌‌​​​​‌​‌​‍resolved before the deadline. (Id. at p. 2.)

Trainor objects, pointing out that the magistrate judge issuеd a separate order on the same day encouraging the parties to confer and resolve discovery issues before seeking court intervention. (Doc. #440, p. 5)(citing Doc. #437, n.3.)2 Trainor argues he wаs diligently attempting to resolve the discovery issues without court intervention. (Id. at p. 7.) And as such, the magistrate judge’s order promoting conferral and the separate order denying Trainor’s motion to comрel, are “inconsisten[t]”, making the denial of his motion to compel “clearly erroneous and contrary to law[] because it improperly shifts Noshirvan’s obligation to comply with the Court’s Order to a burden uрon

Trainor to police an opposing party’s obligation to comply with the Court’s Order.” (Id.) Trainor adds that leaving the magistrate judge’s Order intact would prejudice Trainor’s case and reward Noshirvan’s failure to provide the required discovery. (Id.)

Trainor’s argument is unpersuasive. The magistrate judge’s promotion of conferral is not clearly erroneous or contrary to law. The Court’s Local Rules, as аpproved by the Eleventh Circuit, promotes the same conferral between parties before seeking court intervention. See M.D. Fla. R. 3.01(g). A party’s duty to confer does not negate a party’s duty to diligеntly abide by deadlines. And diligent Trainor was not. Per Trainor’s own recount, Noshirvan’s discovery was due by early May at the latest. (Doc. #440, ¶ 2.) Yet Trainor did not file the motion to compel until late June. Trainor argues he wаs entitled to the disputed discovery pursuant to a court order and it was not his burden “to police [Noshirvan]’s obligation to comply with the Court’s Order.” (Doc. #440, p. 7.) However, if a court order entitled Trainor to сertain discovery or any other relief, it is his burden to raise that issue before the Court. United States v. Campbell, 26 F.4th 860, 872 (11th Cir. 2022) (explaining that American courts function under the party presentment principle, where parties “are responsible for advancing the facts and arguments entitling them to relief.” (quoting Greenlaw v. United States, 554 U.S. 237, 244 (2008))). Lastly, Noshirvan’s discovery production or lack thereof could help Noshirvan and hurt Trainor, but whether a court order helps or hurts a particular party does not make a court order clearly erroneous ‍​​​‌‌‌​​​​‌‌​​‌‌​​​​‌​​​​​​‌​‌‌‌‌‌‌​‌‌‌‌​​​​‌​‌​‍or contrary to law. The deferential clearly erroneous or contrary to law standard has not been met. Trainor’s objection is overruled.

Accordingly, it is now

ORDERED:

  1. Luthmann’s Objection (Doc. #252) is OVERRULED.
  2. Trainor’s Objection (Doc. #440) is OVERRULED.

DONE AND ORDERED at Fort Myers, Florida, this 18th day of August 2025.

JOHN E. STEELE

SENIOR UNITED STATES DISTRICT JUDGE

Notes

1
A separate case alleges that Noshirvan is the harasser, not the other way around. See 23-cv-340-SPC-KCD (M.D. FL.).
2
Trainor’s objection is replete with confusing errors. For starters, the document he cites as containing a footnote from the magistrate judge promoting conferral is in reality an endorsed order containing neither. A footnote promoting conferrаl does exist, but elsewhere. (See Doc. #435, n.3.) More gravely, Trainor filed his objection to the wrong order. (See Doc. #440, p. 1)(citing Doc. #435.) That order from the magistrate judge denied a different party’s motion to compel different discovery, (see Doc. #435), meaning the magistrate judge’s order concerning Trainor’s motion to compel, (Doc. #436), technically went unobjected to, and because the time to dо so has since expired, any objections to that order are waived. Smith v. Marcus & Millichap, Inc., 106 F.4th 1091, 1097 (11th Cir. 2024) (“[W]here a party fails to timely challenge a magistrate[ judge’s] nondispositive order before the district court, the party waive[s] his right to appeal those orders in this Court.” (alterations in original)). Even assuming arguendo that Trainor timely objected to the order concerning his discovery, such objection is due to be overruled for the reasons stated herein.
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