United States for the Use and Benefit of Hydrograss Technologies, Inc. v. Lodge Construction, Inc. et al

Filing 45

OPINION AND ORDER denying 39 Motion for Reconsideration; denying as moot 44 Motion for Leave to File Response. Signed by Judge John E. Steele on 10/31/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
UNITED STATES FOR THE USE
AND BENEFIT OF HYDROGRASS
TECHNOLOGIES, INC.,
Plaintiff,
v.

Case No: 2:13-cv-26-FtM-29CM

LODGE CONSTRUCTION, INC. and
THE
HANOVER
INSURANCE
COMPANY,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff's Motion for
Reconsideration of the Court's September 5, 2014, Order [DN38]
(Doc. #39) filed on September 18, 2014.

Defendant, The Hanover

Insurance Company filed a Response in Opposition (Doc. #43) on
October 1, 2014.
Rule

59(e)

affords

the

Court

substantial

reconsider an order which it has entered.
F.3d 1106, 1137 (11th Cir. 2000).

discretion

to

See Mincey v. Head, 206

“The only grounds for granting

a rule 59 motion are newly discovered evidence or manifest errors
of law or fact.”

Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.

2007) (citing In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)).
A Rule 59 motion is not intended as a vehicle to re-litigate old
matters, raise new arguments or present evidence that could have
been raised prior to the entry of judgment.

Id. (citing Michael

Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th
Cir. 2005)).

Plaintiff seeks reconsideration of the Court’s

September 5, 2014, Order (Doc. #38) denying plaintiff’s Motion for
Award of Attorneys’ Fees, Costs and Expenses (Doc. #26).
On or about August 7, 2013, the parties reached a settlement
without Court intervention or review of the merits.

The parties

agreed to a set amount of damages, and an award of reasonable
attorneys’ fees, costs, and expenses “in an amount to be determined
by the Court.”

(Doc. #39, pp. 3-4.)

The parties never sought

approval or the retention of jurisdiction by the Court over an
agreement.

An executed version of the Mediation Mutual Release

and Settlement Agreement (Doc. #39-2, Exh. 2) is attached and
provides as follows in paragraph 4:
Lodge and Hanover agree that Hydrograss is
entitled to recover from Lodge and Hanover its
reasonable attorneys' fees, costs and expenses
incurred by Hydrograss in the Hydrograss
Litigation or otherwise arising out of
Hydrograss' claim for payment under the bond
issued by Hanover that was the subject of
Hydrograss' claims against Hanover in the
Hydrograss Litigation in an amount to be later
determined by the Court in the Hydrograss
Litigation in accordance with the Court's
ordinary procedures and applicable law for
awarding attorneys' fees. Lodge and Hanover
shall be afforded thirty (30) days from entry
of the Court's order on the motion to pay any
sum awarded and Hydrograss shall not seek the
entry of any judgment within that time.
(Doc. #39-2, Exh. 2, ¶ 4.)

Pursuant to this agreement,

plaintiff filed its motion seeking attorneys’ fees, costs, and

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expenses as a prevailing party under the agreement.

The Court

denied the motion finding that the case remained pending, and “no
basis reflected in the record to award attorney fees to anyone.”
(Doc. #38, p. 2.)
A party is considered a “prevailing party” if “they succeed
on any significant issue in litigation which achieves some of the
benefit the parties sought in bringing suit.”
506 U.S. 103, 109 (1992) (citations omitted).

Farrar v. Hobby,
There must be some

change in the legal relationship and some relief on the merits of
the claim achieved, with a resulting enforceable judgment.
at 111.

Id.

“A defendant's voluntary change in conduct, although

perhaps accomplishing what the plaintiff sought to achieve by the
lawsuit, lacks the necessary judicial imprimatur on the change.
Our

precedents

thus

counsel

against

holding

that

the

term

“prevailing party” authorizes an award of attorney's fees without
a

corresponding

parties.”

alteration

in

the

legal

relationship

of

the

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of

Health & Human Res., 532 U.S. 598, 605 (2001).

“Thus, it is clear

that . . . if the district court either incorporates the terms of
a settlement into its final order of dismissal or expressly retains
jurisdiction to enforce a settlement, it may thereafter enforce
the terms of the parties' agreement.

Its authority to do so

clearly establishes a ‘judicially sanctioned change in the legal
relationship of the parties,’ as required by Buckhannon, because

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the plaintiff thereafter may return to court to have the settlement
enforced.”

Am. Disability Ass'n, Inc. v. Chmielarz, 289 F.3d

1315, 1320 (11th Cir. 2002) (quoting Buckhannon, 532 U.S. at 605).
Absent

any

judicially

sanctioned

change

in

the

legal

relationship, the Court had no basis to award fees and costs, and
therefore reconsideration is denied.
Accordingly, it is hereby
ORDERED:
1. Plaintiff's

Motion

for

Reconsideration

of

the

Court's

September 5, 2014, Order [DN38] (Doc. #39) is DENIED.
2. Defendant,

The

Hanover

Insurance

Company’s

Unopposed

Motion to File Response in Opposition to Plaintiff’s Second
Supplemental Affidavit of David E. Gurley and Response in
Opposition (Doc. #44) is DENIED AS MOOT.
DONE and ORDERED at Fort Myers, Florida, this
of October, 2014.

Copies:
Counsel of Record

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