Federal Deposit Insurance Corporation v. Bayer et al

Filing 89

OPINION AND ORDER granting in part and denying in part 80 Plaintiff's Motion for Reconsideration of June 27, 2014 Opinion and Order and Alternative Motion for Certification of Interlocutory Appeal. The motion is granted as to the request for reconsideration. Having reconsidered the matter, the Court reaches the same conclusions as set forth in the Opinion and Order filed on June 27, 2014. The motion is otherwise denied. See Opinion and Order for details. Signed by Judge John E. Steele on 9/19/2014. (MAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receiver for
Hillcrest Bank Florida,
Plaintiff,
v.

Case No: 2:13-cv-752-FtM-29DNF

JOEL S. BAYER, IRWIN J.
BLITT, JACK N. FINGERSH, and
RONALD R. RUCKER,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff's Motion for
Reconsideration of June 27, 2014 Opinion and Order and Alternative
Motion for Certification of Interlocutory Appeal (Doc. #80) filed
on

July

25,

2014.

Defendants

filed

a

Joint

Opposition

to

Plaintiff’s Motion for Reconsideration and Alternative Request for
Certification of Interlocutory Appeal (Doc. #86) on August 15,
2014.
I.
The FDIC, as the receiver for Hillcrest Bank Florida, filed
a two-count Complaint against defendants on October 22, 2013,
seeking

compensatory

and

consequential

damages

caused

by

defendants’ negligence and gross negligence in approving nine loan
transactions.

On June 27, 2014, the Court entered an Opinion and

Order striking the last full sentence of paragraph 74 and all of
paragraph 91 from the Complaint because “[j]oint and several
liability

for

economic

Legislature in 2006.”

damages

was

abolished

by

the

Florida

(Doc. #78, p. 9.)

Plaintiff now asks that the Court reconsider its Opinion and
Order striking the allegations of joint and several liability
because it believes joint and several liability remains viable in
cases, like the one at hand, involving an indivisible injury.

In

the alternative, plaintiff asks the Court to certify a question of
law to the Eleventh Circuit pursuant to 12 U.S.C. § 1292(b).
II.
Reconsideration

of

a

court’s

previous

order

is

an

extraordinary remedy and, thus, is a power which should be used
sparingly.

American Ass’n of People with Disabilities v. Hood,

278 F. Supp. 2d 1337, 1339 (M.D. Fla. 2003) (citing Taylor Woodrow
Constr. Corp. v. Sarasota/Manatee Airport Auth., 814 F. Supp. 1072,
1072-73 (M.D. Fla. 1993)).
raise

new

previously.”

issues,

not

“A motion for reconsideration should
merely

readdress

issues

litigated

PaineWebber Income Props. Three Ltd. P'ship v. Mobil

Oil Corp., 902 F. Supp. 1514, 1521 (M.D. Fla. 1995).

Courts have

“delineated three major grounds justifying reconsideration: (1) an
intervening change in controlling law; (2) the availability of new
evidence; [and] (3) the need to correct clear error or prevent
manifest injustice.”

Sussman v. Salem, Saxon & Nielsen, P.A., 153

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F.R.D. 689, 694 (M.D. Fla. 1994).

Unless the movant’s arguments

fall into one of these categories, the motion must be denied.
The motion to reconsider must set forth facts or law of a
strongly convincing nature to demonstrate to the court the reason
to reverse its prior decision.

Taylor Woodrow, 814 F. Supp. at

1073; PaineWebber, 902 F. Supp. at 1521.

“When issues have been

carefully considered and decisions rendered, the only reason which
should commend reconsideration of that decision is a change in the
factual or legal underpinning upon which the decision was based.”
Taylor Woodrow, 814 F. Supp. at 1072–73.
A motion for reconsideration does not provide an opportunity
to simply reargue-or argue for the first time-an issue the Court
has once determined.
first

drafts,

subject

litigant’s pleasure.”

Court opinions “are not intended as mere
to

revision

and

reconsideration

at

a

Quaker Alloy Casting Co. v. Gulfco Indus.,

Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988).

“The burden is upon

the movant to establish the extraordinary circumstances supporting
reconsideration.”

Mannings v. Sch. Bd. of Hillsborough Cnty., 149

F.R.D. 235, 235 (M.D. Fla. 1993).
III.
Plaintiff requests reconsideration because it believes that
the Court committed clear error by striking the allegations of
joint and several liability.

The Court grants reconsideration,

but after such reconsideration reaches the same conclusion.

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In Florida, the apportionment of damages is governed by Fla.
Stat.

§

768.81.

Section

768.81(3)

provides

that

“[i]n

a

negligence action, the court shall enter judgment against each
party liable on the basis of such party’s percentage of fault and
not on the basis of joint and several liability.”
768.81(3).

Fla. Stat. §

By amending Fla. Stat. § 768.81 in 2006, the Florida

Legislature has mandated that courts “shall enter judgment against
each party liable on the basis of such party’s percentage of fault
and

not

on

liability.”
2007).

the

basis

of

the

doctrine

of

joint

and

several

Williams v. Davis, 974 So. 2d 1052, 1061 n.10 (Fla.

See also Wal-Mart Stores, Inc. v. Strachan, 82 So. 3d

1052, 1053 (Fla. 4th DCA 2011) (the 2006 amendments to § 768.81
abolished joint and several liability for economic damages in
Florida); Hennis v. City Tropics Bistro, Inc., 1 So. 3d 1152, 1154
(Fla. 5th DCA 2009); Tampa Bay Water v. HDR Eng’g, Inc, 731 F.3d
1171, 1178 (11th Cir. 2013) (“Florida’s comparative negligence law
renders

a

party

liable

only

for

the

share

of

total

damages

proportional to its fault.”) (emphasis added).
Plaintiff argues that FDIC v. Castro, Case No. 9:13-cv-80596DMM (S.D. Fla. Mar. 31, 2014), reflects the continuing viability
of joint and several liability in a case such as this.
disagrees.

The Court

In Castro, the court denied the defendants’ motion to

dismiss the allegations of joint and several liability without

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referring to Fla. Stat. § 768.81 or any relevant case law.

Id.

The Court therefore finds Castro to be unpersuasive.
Plaintiff also argues that the 2006 amendment to Fla. Stat.
§ 768.81 did not abolish joint and several liability under the
indivisible injury rule; therefore, it should be permitted to rely
on

this

theory

because

the

alleged

injury

is

indivisible.

Plaintiff’s reliance on the indivisible injury rule, however, is
misplaced.
The indivisible injury rule applies to negligence actions
“when a person is injured by the wrongful act of one tortfeasor
and that injury is subsequently aggravated by the wrongful act of
another tortfeasor.”

Univ. of Miami v. Francois, 76 So. 3d 360,

364 (Fla. 3d DCA 2011).

In Gross v. Lyons, 763 So. 3d 276 (Fla.

2000), the Supreme Court of Florida concluded that “where the
plaintiff

sues

the

first

of

two

successive

tortfeasors

and

establishes liability, but the jury cannot apportion the injury
between the two after both parties have had the opportunity to
present evidence on the issue, the first tortfeasor will be liable
for the entire injury.”

763 So. 3d at 279.

Stated differently,

“a tortfeasor is liable for the ‘entire unapportionable injuries’
sustained by a plaintiff, even if those injuries were heightened
by prior [or subsequent] incidents for which the defendant cannot
be held liable.”

Myers v. Central Fla. Invs., Inc., 592 F.3d

1201, 1214 (11th Cir. 2010) (quoting Gross, 763 So. 3d at 279).

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“This is true although the original tortfeasor and the subsequently
negligent [tortfeasor] are independent tortfeasors and not jointly
and severally liable for one common injury.”

Francois, 76 So. 3d

at 365.
In this matter, plaintiff has failed to allege an indivisible
injury

caused

by

successive

tortfeasors.

Instead,

plaintiff

alleges that defendants’ concerted actions caused the alleged
harm.

Furthermore,

plaintiff

“knows

precisely

which

of

the

Defendants are responsible for approving which Transactions and,
therefore, which Defendants caused which damages.”
Doc. #59, p. 5.)

(Doc. #1-1;

Because plaintiff has failed to allege that its

injuries were heightened by successive tortfeasors, the Court
finds the indivisible injury rule to be inapplicable.

See Froats

v. Baron, 883 So. 2d 885, 887 (Fla. 5th DCA 2004) (“a plaintiff
who is injured in two successive accidents may bring one suit where
the

accidents

cause

the

same

or

similar

injuries

and

it

is

difficult or impossible to apportion the injuries between the two
tortfeasors.”).
IV.
Plaintiff asks the Court to certify the following question to
the Eleventh Circuit: “whether the indivisible injury rule as
applied by the FDIC-R survived the 2006 amendments to § 768.81.”
(Doc. #80, p. 8.)

Because the indivisible injury is inapplicable

to the facts alleged in the Complaint, and the case fails to

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satisfy the standard for an interlocutory appeal set forth in 28
U.S.C. § 1292(b), the Court declines certification.
Accordingly, it is hereby
ORDERED:
Plaintiff's

Motion

for

Reconsideration

of

June

27,

2014

Opinion and Order and Alternative Motion for Certification of
Interlocutory Appeal (Doc. #80) is GRANTED as to the request for
reconsideration.

Having

reconsidered

the

matter,

the

Court

reaches the same conclusions as set forth in the Opinion and Order
filed on June 27, 2014 (Doc. #78).

The motion is otherwise DENIED.

DONE and ORDERED at Fort Myers, Florida, this
of September, 2014.

Copies:
Counsel of Record

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19th

day