Absolute Activist Value Master Fund, Ltd v. Devine

Filing 83

ORDER denying 73 defendant's Motion for Reconsideration of Court's Order Regarding Subpoenas Directed to Collins & Associates and Motion for Stay of Production; denying 75 intervenors' Joinder in Defendant's Motion for Rec onsideration of Court's Order Regarding Subpoenas Directed to Collins & Associates and Motion for Stay of Production, as Amended by 76 ; denying as moot 78 defendant's Emergency Renewed Motion for Stay of Production by Collins & Associat es; denying as moot 81 intervenors' Joinder in Defendant's Emergency Motion to Stay; denying as moot 82 defendant's Motion for Leave to File Reply in Support of Her Emergency Renewed Motion for Stay of Production by Collins & Associates. See Order for details. Signed by Judge John E. Steele on 5/8/2017. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ABSOLUTE
ACTIVIST
VALUE
MASTER
FUND
LIMITED,
ABSOLUTE
EAST
WEST
FUND
LIMITED, ABSOLUTE EAST WEST
MASTER
FUND
LIMITED,
ABSOLUTE EUROPEAN CATALYST
FUND
LIMITED,
ABSOLUTE
GERMANY
FUND
LIMITED,
ABSOLUTE INDIA FUND LIMITED,
ABSOLUTE
OCTANE
FUND
LIMITED,
ABSOLUTE
OCTANT
MASTER FUND LIMITED, and
ABSOLUTE RETURN EUROPE FUND
FIMITED,
Plaintiffs,
v.

Case No: 2:16-cv-47-FtM-99MRM

SUSAN ELAINE DEVINE, ORION
CORPORATE & TRUST SERVICES,
LTD., AS TRUSTEE, and LAIRD
LILE,
Defendants.
ORDER
This matter comes before the Court on defendant's Motion for
Reconsideration of Court's Order Regarding Subpoenas Directed to
Collins & Associates and Motion for Stay of Production (Doc. #73)
filed on April 21, 2017. 1

Intervenors Isabella Devine and Conrad

Homm join defendant’s Motion for Reconsideration.

1

(Docs. ##75,

On April 24, 2017, defendant supplemented her Motion for
Reconsideration to include a certification required by Local Rule
3.01(g). (See Doc. #74.)

76.)

On May 5, 2017, plaintiffs filed an Opposition to defendant’s

Motion for Reconsideration.

(Doc. #77.)

Also on May 5, 2017,

defendant filed an Emergency Renewed Motion for Stay of Production
by Collins & Associates (Doc. #78), to which plaintiffs filed a
Response in Opposition (Doc. #79) and Declaration in support (Doc.
#80).
I.
Reconsideration

of

a

court’s

previous

order

is

an

extraordinary remedy, and reconsideration is a power to be “used
sparingly.”

United States ex rel. Mastej v. Health Mgmt. Assocs.,

Inc., 869 F. Supp. 2d 1336, 1348 (M.D. Fla. 2012).

In particular,

motions filed under Rule 60(b)(6)’s “catch-all” provision “must
demonstrate that the circumstances are sufficiently extraordinary
to warrant relief.”

Galbert v. W. Caribbean Airways, 715 F.3d

1290, 1294 (11th Cir. 2013) (citation omitted).

The movant has

the burden of showing such extraordinary circumstances.

Mastej,

869 F. Supp. 2d at 1348.
A motion for reconsideration does not provide an opportunity
to argue for the first time a new issue that could have been raised
previously, or to argue more vociferously an issue the Court has
previously decided.
first

drafts,

Id.

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).

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When the Court has

carefully

considered

the

relevant

issues

and

rendered

its

decision, “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.”
1348 (citations omitted).

Mastej, 869 F. Supp. 2d at

Accordingly, a motion to reconsider

should set forth material facts previously unknown to the party
seeking reconsideration or direct the Court’s attention to “law of
a strongly convincing nature to demonstrate to the court the reason
to reverse its prior decision.”

Id. (citations omitted).
II.

On September 6, 2016, the Magistrate Judge issued an Order
denying the Motion for Protective Order and to Quash Subpoenas
Duces Tecum Directed to Collins & Associates; denying the Joint
Supplemental Motion for Protective Order and to Quash Subpoenas
Duces Tecum; denying defendant’s Renewed Motion to Quash Subpoenas
Duces Tecum Directed to Collins & Associates; and staying the
production of subpoenaed documents until after the Court ruled on
the pending Motion to Dismiss.

(Doc. #62.)

The Magistrate Judge

ruled that “[b]ecause the Court has not yet ruled on Defendant’s
Motion

to

Dismiss,

the

possibility

remains

that

Plaintiffs’

federal RICO claims could be dismissed leaving only Plaintiffs’
state law claims.

If only state law claims remain, then state law

would provide the applicable rule of decision, leading to the
application of state privilege law.”

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(Id. at 23.)

Therefore, the

Magistrate Judge ordered that should the Court grant Defendant’s
Motion to Dismiss as to both federal claims, intervenors and
defendant should file an appropriate motion within seven (7) days
from the date of the Order “addressing specifically whether an
account-client privilege exists regarding the subpoenaed documents
and whether that privilege has been waived.”

(Id.) This Court

subsequently dismissed all federal claims and plaintiffs elected
to proceed only on their state law claim of unjust enrichment.
(Case No. 2:15-cv-00328, Docs. ##521, 527.)
Defendant objected to the Magistrate Judge’s Order prior to
the Court’s dismissal of the federal claims.

After the dismissal

of the federal claims, this Court overruled defendant’s Objection
as the Court had dismissed the federal claims and the Magistrate
Judge had explicitly instructed the parties to file a motion within
seven days of the Opinion and Order on the Motion to Dismiss
“addressing specifically whether an accountant-client privilege
exists

regarding

the

subpoenaed

privilege has been waived.”

documents

and

whether

that

(Doc. #72.)

Defendant now seeks reconsideration of this Court’s Order on
defendant’s

Objection

to

Court’s

Order

Denying

Motion

for

Protective Order and to Quash Collins & Associates Subpoenas.
(Doc. #73.)

Defendant contends that the Court erred because “the

Court did not address Ms. Devine’s arguments that the accountantclient privilege is applicable to the subpoenaed documents in light

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of the fact that Plaintiffs’ lone remaining claim arises under
state law and, as a result, the only basis for subject matter
jurisdiction

is

diversity

of

citizenship.”

(Id.

at

1-2.)

Defendant acknowledges that she did not file a motion within seven
days of the Court’s ruling on the Motion to dismiss, “but contends
that doing so was unnecessary” because (1) the Court allowed
plaintiff twenty-one days to re-plead their claims, (2) the issue
of whether the accountant-client privilege existed was already
fully briefed before the Magistrate Judge, (3) defendant had filed
her objection before the Court ruled on the Motion to Dismiss, and
(4) due to the change in circumstances it is apparent that the
documents and information that plaintiffs seek have no relevance
to the sole remaining claim.

(Id. at 6-8.)

It seems that defendant, having realized that she did not
file a motion with the Court within the seven-day time period set
forth

by

the

Magistrate

Judge,

now

seeks

reconsideration of this Court’s Order.

relief

by

seeking

The Court denies the

Motion for Reconsideration for the following reasons.

First,

while the Court acknowledges that the Magistrate Judge could not
have predicted the Court’s ruling on the Motion to Dismiss, or
that the Court would provide plaintiffs with twenty-one days to
re-plead, defendant was not without a remedy.

Defendant was free

to seek an extension of the seven-day time period due to the change
in circumstances, yet failed to do so.

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Second, the fact that the

parties had briefed the issue as to the accountant-client privilege
does not nullify the Magistrate Judge’s instruction to file a
motion should the Court dismiss all of the federal claims.

The

Magistrate Judge stated that he was not addressing “the issues of
whether Intervenors and Defendant demonstrated that an accountantclient privilege actually existed or whether Intervenors and/or
Defendant waived that privilege.”

(Doc. #62, p. 18.)

Third,

while the defendant filed her objection before the Court’s ruling
on the Motion to Dismiss, she did not raise the seven-day time
period as a basis for her Objection and she was well aware of this
period within which to file a motion regarding the accountantclient

privilege.

Lastly,

defendant

did

not

object

to

the

Magistrate Judge’s ruling as to relevancy.
Accordingly,

the

Court

denies

defendant’s

Motion

for

Reconsideration of Court’s Order Regarding Subpoenas Directed to
Collins & Associates and Motion for Stay of Production. (Doc. #73.)
Intervenors

Isabella

Devine

and

Conrad

Homm

have

joined

defendant’s motion and also assert that the Magistrate Judge’s
ruling regarding the production of their tax returns is contrary
to law and clearly erroneous because neither the Magistrate Judge
nor this Court in its Order took into consideration the dramatic
change in posture of this case.

(Doc. #75.)

Once again, the

Magistrate Judge instructed the parties to raise these issues
within seven days of the Court’s ruling on the Motion to Dismiss

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and this precise issue of relevancy was not raised in their
Objection (see Doc. #64) and therefore is not within the scope of
a Motion for Reconsideration.

Therefore the Intervenors’ Joinder,

as Amended, is denied.
Accordingly, it is hereby
ORDERED:
1.

Defendant's Motion for Reconsideration of Court's Order

Regarding Subpoenas Directed to Collins & Associates and Motion
for Stay of Production (Doc. #73) is DENIED.
2.

Intervenors’

Joinder

in

Defendant’s

Motion

for

Reconsideration of Court’s Order Regarding Subpoenas Directed to
Collins & Associates and Motion for Stay of Production (Doc. #75),
as Amended (Doc. #76), is DENIED.
3.
Production

Defendant’s
by

Collins

Emergency
&

Renewed

Associates

Motion

(Doc.

#78),

for

Stay

of

Intervenors’

Joinder in Defendant’s Emergency Motion to Stay (Doc. #81), and
Defendant’s Motion for Leave to File Reply in Support of Her
Emergency Renewed Motion for Stay of Production by Collins &
Associates (Doc. #82) are denied as moot.
DONE and ORDERED at Fort Myers, Florida, this __8th__ day of
May, 2017.

Copies: Counsel of Record

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