Montgomery Bank, N.A. v. Hoolihan et al

Filing 105

ORDER denying 94 Montgomery Bank's Unopposed Motion for Reconsideration of Order and Judgment of Dismissal. Montgomery Bank's Agreed Motion to Alter or Amend Judgment of Dismissal 102 is DENIED. Montgomery Bank has until April 14, 2017 to serve process on FDOR. Failure to do so will result in FDOR's dismissal. Defendants Pike Creek and Southern Gulf are DISMISSED as a result of Montgomery Bank's failure to prosecute. The clerk is DIRECTED to terminate them as parties in this case. Signed by Judge Sheri Polster Chappell on 4/7/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MONTGOMERY BANK, N.A.,
Plaintiff,
v.

Case No: 2:16-cv-173-FtM-38CM

PIKE CREEK TURF FARMS, INC.,
LEE COUNTY, SOUTHERN GULF
EQUIPMENT RENTAL & SALES,
INC., RIVERBEND HOMEOWNERS
ASSOCIATION OF LEE COUNTY,
INC. and FLORIDA DEPARTMENT
OF REVENUE,
Defendants.
/
OPINION AND ORDER 1
This matter comes before the Court on Plaintiff Montgomery Bank, N.A.'s
(“Montgomery Bank”) Unopposed Motion for Reconsideration (Doc. 94) filed on March 3,
2017. The Court has reviewed Montgomery Bank’s Response to the Court’s Show Cause
Order, which was filed on March 3, 2017. (Doc. 95). Finally, the Court has reviewed
Montgomery Bank’s Agreed Motion to Alter or Amend Judgment of Dismissal, which was
filed on March 20, 2017. (Doc. 102). These matters are ripe for review.

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BACKGROUND
This is a foreclosure action that centers on a mortgage lien on real property located
in Lee County, Florida. On March 3, 2016, Montgomery Bank filed a Complaint against
Thomas P. Hoolihan, Jr., Kerrey R. Hoolihan, Riverbend Golf & Country Club, Inc.
(“Riverbend”), Vision One Management Group, Inc. (“Vision One”), Pike Creek Turf
Farms, Inc. (“Pike Creek”), Lee County, the State of Florida, Southern Gulf Equipment
Rental & Sales, Inc. (“Southern Gulf”), and Riverbend Homeowners Association of Lee
County, Inc. (Doc. 1). Though Montgomery Bank issued a summons for each Defendant
named in the Complaint, Pike Creek, Southern Gulf, Riverbend, and Vision One all failed
to respond. (Docs. 2, 3, 4, 5, 6, 7, 8, 9, 10).
Pursuant to a motion filed by Montgomery Bank (Doc. 27), a Clerk’s Default was
entered against Pike Creek and Southern Gulf on April 29, 2016. (Doc. 34). Montgomery
Bank then moved for, and was granted, a Clerk’s Default against Riverbend and Vision
One. (Doc. 60). The latter Clerk’s Default against Riverbend and Vision One, however,
was set aside. (Doc. 73).
On October 26, 2016, Montgomery Bank filed an Amended Complaint, substituting
the State of Florida as a party for the Florida Department of Revenue (“FDOR”). (Doc.
77). Montgomery Bank did not immediately attempt to serve FDOR.
Later, on February 23, 2017, Montgomery Bank filed a Notice of Settlement and
Joint Motion to Retain Jurisdiction. (Doc. 89). The Notice purported to notify the Court
of a settlement that had been reached between Montgomery Bank and Thomas P.
Hoolihan, Jr., Kerrey R. Hoolihan, Riverbend, and Vision One. (Doc. 89). The text of the

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Notice asked the Court to “close this case but retain jurisdiction to enforce the terms of
the settlement[,]” and was signed by the relevant attorneys for each party. (Doc. 89).
Upon review of Montgomery Bank’s Notice, the Court undertook a review of the
docket and observed two deficiencies. First, FDOR had not been served. Second,
Montgomery Bank had not moved for a default judgment against Pike Creek or Southern
Gulf even though it had been nearly a year since Clerk’s Defaults were entered against
them. As a result, the Court issued an Order to Show Cause to Montgomery Bank as to
why its claims against those Defendants should not be dismissed for failure to effectuate
service of process or for failure to prosecute. (Doc. 90).
With that, the Court turned to Montgomery Bank’s Notice of Settlement. Because
the Notice “jointly move[d]” the Court to “close [the] case[,]” and because it was signed by
the relevant parties’ attorneys, the Court dismissed Montgomery Bank’s claims as to
Thomas P. Hoolihan, Jr., Kerrey R. Hoolihan, Riverbend, and Vision One. (Doc. 92 at 2).
But, the Court declined to retain jurisdiction to enforce the settlement. (Docs. 92 at 2).
Montgomery Bank now asks the Court to reconsider its dismissal of Thomas P.
Hoolihan, Jr., Kerrey R. Hoolihan, Riverbend, and Vision One. (Doc. 94). It has also filed
an Agreed Motion to Alter or Amend Judgment of Dismissal, seeking the same relief.
(Doc. 102).
Montgomery Bank did not rest there. It also responded to the Court’s Order to
Show Cause (Doc. 95), filed a return of service for FDOR (Doc. 91), and moved for a
Clerk’s Default against FDOR (Doc. 97). United States Magistrate Judge Carol Mirando
denied Montgomery Bank’s Motion because it did not properly serve FDOR. (Doc. 98).
Undeterred, Montgomery Bank filed two more returns of service for FDOR (Docs. 99,

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100), and again moved for a clerk’s default. (Doc. 101). That motion was again denied
because the return of service did not state that Montgomery Bank served FDOR with the
Amended Complaint. (Doc. 104 at 2).
Pending before the Court now are Montgomery Bank’s Unopposed Motion for
Reconsideration (Doc. 94), its Agreed Motion to Amend Judgment (Doc. 102), and its
Response to the Court’s Order to Show Cause. (Doc. 95). Each will be addressed in
turn.
DISCUSSION
A.

Montgomery Bank’s Motion for Reconsideration
Montgomery Bank argues in its Motion for Reconsideration that the Court should

reconsider its prior order of dismissal because “the Court did not have the benefit of
information pertaining to the settlement that it had requested in the Show Cause Order,”
because the parties did not request dismissal, because dismissal was not justified under
the circumstances and because dismissal would prejudice Montgomery Bank. (Doc. 94
at 3). The Court finds none of these reasons to warrant reconsideration.
As an initial matter, Montgomery Bank did not specify the specific procedural rule
upon which it premised its Motion for Reconsideration, but while one of the two cases
cited, Delaware Valley Floral Grp., Inc. v. Shaw Rose Nets, LLC, 597 F.3d 1374 (Fed.
Cir. 2010), was silent on the issue of statutory authority, the other, Frantz v. Walled, 513
F. App'x 815 (11th Cir. 2013), based its holding on Rule 59(e). For that reason, the Court
will construe Rule 59(e) as the Motion’s basis of authority.
“Under Rule 59(e), a court has considerable discretion in deciding whether to grant
a motion for reconsideration.” Gillis v. Deutsche Bank Trust Co., No. 2:14-CV-418-FTM-

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38CM, 2015 WL 4937367, at *1 (M.D. Fla. Aug. 18, 2015) (citing Drago v. Jenne, 453
F.3d 1301, 1305 (11th Cir.2006)). “In exercising this discretion, the court balances two
competing interests: the need for finality and the need to render just rulings based on all
the facts.” Id.
Still, “[r]econsideration of a court's previous order is an extraordinary remedy and,
thus, is a power which should be used sparingly.” Carter v. Premier Rest. Mgmt., No.
2:06CV212FTM99DNF, 2006 WL 2620302, at *1 (M.D. Fla. Sept. 13, 2006) (citing
American Ass'n of People with Disabilities v. Hood, 278 F. Supp. 2d 1337, 1339 (M.D.
Fla. 2003)). “The courts have ‘delineated three major grounds justifying reconsideration:
(1) an intervening change in the controlling law; (2) the availability of new evidence; (3)
the need to correct clear error or prevent manifest injustice.’” Susman v. Salem, Saxon
& Meilson, P.A., 153 F.R.D. 689, 904 (M.D. Fla. 1994).
“A motion for reconsideration should raise new issues, not merely readdress
issues litigated previously.” Paine Webber Income Props. Three Ltd. P’ship v. Mobil Oil
Corp., 902 F. Supp. 1514, 1521 (M.D. Fla. 1995). “The motion must set forth facts or law
of a strongly convincing nature to demonstrate to the court the reason to reverse its prior
decision.” Carter, 2006 WL 2620302 at *1 (citing Taylor Woodrow Constr. Corp. v.
Sarasota/Manatee Auth., 814 F. Supp. 1072, 1072-73 (M.D. Fla. 1993)).
The Court's opinions “are not intended as mere first drafts, subject to revision and
reconsideration at a litigant's pleasure.” Id. at 1 (citation omitted). “The burden is upon
the movant to establish the extraordinary circumstances supporting reconsideration.” Id.
(citing Mannings v. Sch. Bd. Of Hillsboro Cty, Fla., 149 F.R.D. 235, 235 (M.D. Fla. 1993)).

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“Unless the movant's arguments fall into the limited categories outlined above, a motion
to reconsider must be denied.” Carter, 2006 WL 2620302 at *1.
First, in its Motion for Reconsideration Montgomery Bank argues that the Court
should reconsider its prior order of dismissal because the Court “did not have the benefit
of the information pertaining to the settlement that it had requested in the Show Cause
Order.” (Doc. 94 at 3). This argument is meritless, as the Court requested no such
information in its Show Cause Order. Instead, the Court requested why the claims against
Pike Creek, Southern Gulf and FDOR should not be dismissed for failure to prosecute or
failure to effectuate service of process. (Doc. 90 at 3).
Second, Montgomery Bank argues that dismissal was not the relief requested nor
was it justified. This argument misses the mark. By submitting the Notice, Defendants
roughly complied with the contours of the Local Rules. See Local Rule 3.08(a). Local
Rule 3.08(a) requires that, upon reaching a settlement, counsel must immediately notify
the Court. Id. And, Rule 3.08(b) authorizes the Court to administratively close the file
and order that a case be dismissed without prejudice. Id. at 3.08(b).
Even so, parties commonly file joint stipulations of dismissal concurrently with
notices of settlement. Joint stipulations are required to be signed by all parties who have
appeared. Fed. R. Civ. P. 41(a)(1)(A)(ii). Coupling that rule with the fact that the Notice
requested the Court to “close [the] case” and that the Notice had the signatures of the
attorneys for all relevant parties - Montgomery Bank, Thomas P. Hoolihan, Jr., Kerrey R.
Hoolihan, Riverbend, and Vision One - the Court reasonably understood that the parties
requested it to dismiss this matter. But, because active parties still remained in the matter,
the Court dismissed the matter pursuant to Rule 41(a)(2), which allows for dismissal on

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terms the Court deems proper. Fed. R. Civ. P. 41(a)(2). Given the context of the parties’
filing, this decision was reasonable.
Third, Montgomery Bank argues that “dismissal works a manifest injustice against
the Plaintiff.” (Doc. 94 at 3). In support, it argues that the Court’s retention of jurisdiction
to enforce the settlement was crucial to reaching the terms of the settlement, and
dismissal would render the terms of the settlement unenforceable. This argument is a
non-starter. For one thing, the argument is assumptious because where parties reach a
settlement and a matter is dismissed, retention of jurisdiction over the settlement
agreement is a matter of the Court’s discretion. See Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 381 (1994). As a result of that discretion, to the extent that the
parties reached a settlement based on their expectation that the Court would retain
jurisdiction, it was misguided.
Montgomery Bank’s argument also comingles concepts because, although it
argues that the Court should reconsider dismissal, the crux of its claim relates only to the
insular issue of the Court’s retention of jurisdiction to enforce the settlement agreement.
Montgomery Bank makes this clear through its argument that it would be prejudiced if the
Court declines to reconsider because the terms of the settlement would be unenforceable.
Beyond those mere words, Montgomery Bank makes no showing of prejudice.
Finally, Montgomery Bank’s manifest injustice argument is unsupported because
neither dismissal of this action, nor the Court’s denial of the retention of jurisdiction to
enforce the settlement makes the settlement unenforceable. In the ordinary case where
federal litigants enter into a settlement agreement, the Court does not retain jurisdiction.
See id. at 378 (“Enforcement of [a] settlement agreement . . . whether through award of

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damages or decree of specific performance, is more than just a continuation or renewal
of the dismissed suit[.]”). And, where a Court does not retain jurisdiction, unless there is
some independent basis for federal jurisdiction, enforcement of a settlement agreement
is a matter for state courts. Id. at 382.
At base, a settlement agreement is merely a contract, and as such, it is governed
by the principles of Florida law. See Schwartz v. Florida Bd. of Regents, 807 F.2d 901,
905 (11th Cir. 1987). Simply because a contract contemplates future action does not
mean that it is not enforceable at the time it is signed. It seems, then, given that
Montgomery Bank has provided no independent grounds for federal jurisdiction, that
enforcement of the settlement agreement is a matter for state courts. 2 See id. at 382.
In sum, Montgomery Bank has not attempted to show that there has been an
intervening change in controlling law, nor that new evidence on the issue of dismissal has
emerged. While they have attempted to show that the Court’s failure to reconsider its

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Even if enforcement of the settlement agreement would be proper in federal court
because of the existence of diversity jurisdiction pursuant to 28 U.S.C. § 1332, that would
still not be enough to prove independent grounds for federal jurisdiction because, absent
a breach of the settlement agreement, Montgomery Bank would lack standing, and any
action would not yet be ripe. See Texas v. United States, 523 U.S. 296, 300 (1998) (“A
claim is not ripe for adjudication if it rests upon contingent future events that may not
occur as anticipated, or indeed may not occur at all.”) (internal quotations omitted); see
also Elend v. Basham, 471 F.3d 1199, 1205 (11th Cir. 2006) (“If an action for prospective
relief is not ripe because the factual predicate for the injury has not fully materialized, then
it generally will not contain a concrete injury requisite for standing.”). Both ripeness and
standing are components of a federal court’s subject matter jurisdiction. Digital Properties,
Inc. v. City of Plantation, Fla., 121 F.3d 586, 591 (11th Cir. 1997) (ripeness); Bochese v.
Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (standing). “[W]hen a federal
court concludes that it lacks subject-matter jurisdiction, the court must dismiss the
complaint in its entirety.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).

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Order would result in manifest injustice, this is not the case. Hence, the Motion for
Reconsideration is denied.
B.

Alternative Motion to Stay
In its Motion for Reconsideration, Montgomery Bank requests in the alternative that

the Court stay this matter until July 17, 2017. (Doc. 94 at 4). Federal district courts have
discretion to grant a motion to stay. See Landis v. North American Co., 299 U.S. 248,
255 (1936). In making its determination, the court considers the “facts produced, judicial
economy, whether lack of a stay would [result in] . . . irreparable harm, and whether there
is a clear and substantial reason to grant a stay.” Quest NetTech Corp. v. Tropical
Smoothie Franchise Dev. Corp., No. 8:11-cv-02I02-EAK-AEP, 2012 WL 5503533, at *2
(M.D. Fla. Nov. 30, 2012).
As an initial matter, the Court declines to stay this matter because it has already
been dismissed, and the Court has declined to reconsider that Order. Moreover, the
alternative request for a motion to stay is another attempt at the Court enforcing the
settlement agreement. The Court has spoken on that issue.
But even if the Court had reconsidered its Order, Montgomery Bank has provided
no support as to why a stay would be beneficial, the impacts of a stay on judicial economy,
and whether the lack of a stay would result in irreparable harm. When parsing the
arguments, the only reason that July 17, 2017 appears to be relevant is because that is
the deadline for Defendants to fulfill certain unnamed acts pursuant to the settlement
agreement. That is not enough to stay this case.
C.

Montgomery Bank’s Agreed Motion to Alter or Amend

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Next, Montgomery Bank’s Agreed Motion to Alter or Amend does not differ in
substance from the relief requested or the grounds upon which Montgomery Bank based
its previous Unopposed Motion for Reconsideration. (Doc. 102). The only apparent
difference between the two motions is that Montgomery Bank argues that the Court
should amend its prior Order of dismissal because it now has “information that the Court
lacked at the time of dismissing this action[.]” (Doc. 102 at 3).
“[U]nder Federal Rule of Civil Procedure 59(e), a movant must identify newlydiscovered evidence that supports his claim or manifest errors of law or fact in the
judgment. Osaigbovo v. Bank of Am. Corp., No. 15-15247, 2016 WL 7367781, at *2 (11th
Cir. 2016). But, Montgomery Bank cites no “newly-discovered evidence.” Presumably,
Montgomery Bank relies on nothing more than the terms of its settlement agreement, and
Defendants’ July 17, 2017 deadline as “newly-discovered evidence.”

But merely

because that deadline was not previously revealed to the Court does not make it new
evidence. “[W]here a party attempts to introduce previously unsubmitted evidence on a
motion to reconsider, the court should not grant the motion absent some showing that the
evidence was not [previously] available . . . . ” Mays v. U.S. Postal Serv., 122 F.3d 43,
46 (11th Cir. 1997). The terms of the settlement agreement are not new evidence
because they were available at the time Montgomery Bank filed the Notice. Accordingly,
the Court denies Montgomery Bank’s Agreed Motion to Amend.
D.

Montgomery Bank’s Response to the Court’s Order to Show Cause
In Response to the Court’s Order to Show Cause why Montgomery Bank’s claims

against FDOR should not be dismissed for failure to effectuate service of process, it
argues that its claims should not be dismissed because it has filed the return of service

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for FDOR and because in serving FDOR, it has complied with the requirements of the
Federal Rules of Civil Procedure. (Doc. 95). But, as has been indicated above, Judge
Mirando found that attempt, and other subsequent attempts at service of process to be
improper. (Docs. 98, 104).
1. Service of Process on FDOR
Federal Rule of Civil Procedure 4(m) states “[i]f a defendant is not served within
90 days after the complaint is filed, the court--on motion or on its own after notice to the
plaintiff--must dismiss the action without prejudice against that defendant or order that
service be made within a specified time.”
Given that the Amended Complaint was filed on October 26, 2016, Montgomery
Bank had until January 24, 2017 to serve FDOR. The record reflects that this deadline
was not satisfied. But, because Montgomery Bank has made several attempts to properly
serve FDOR, the Court will allow it until April 14, 2017 to properly serve process upon
FDOR. If a return of service for FDOR is not properly filed by that date, FDOR will be
dismissed as a party.
2. Moving for Default Judgment against Pike Creek and Southern Gulf
Separately, in response to the Court’s Order to Show Cause why Pike Creek and
Southern Gulf should not be dismissed for failure to prosecute, Montgomery Bank
indicated that it would be moving for a default judgment against those Defendants soon
after the time of filing. That was March 3, 2017. To date, no such motion has been filed.
Local Rule 1.07(b) states that
When service of process has been effected but no
appearance or response is made within the time and manner
provided by Rule 12, Fed.R.Civ.P., the party effecting service
shall promptly apply to the Clerk for entry of default pursuant

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to Rule 55(a), Fed.R.Civ.P., and shall then proceed without
delay to apply for a judgment pursuant to Rule 55(b),
Fed.R.Civ.P., failing which the case shall be subject to
dismissal sixty (60) days after such service without notice and
without prejudice; provided, however, such time may be
extended by order of the Court on reasonable application with
good cause shown.
M.D. Fla. R. 1.07(b). Against this backdrop, 342 days have elapsed since a Clerk’s
Default was entered against Pike Creek and Southern Gulf on April 28, 2016. (Doc. 34).
Despite assurances to the contrary, Montgomery Bank has not moved for a default
judgment. This is a circumstance contemplated by Local Rule 1.07(b). Accordingly,
Pike’s Creek and Southern Gulf are dismissed without prejudice.
Accordingly, it is now ORDERED:
1. Montgomery Bank's Unopposed Motion for Reconsideration of Order and
Judgment of Dismissal (Doc. 94) is DENIED.
2. Montgomery Bank’s Agreed Motion to Alter or Amend Judgment of Dismissal
(Doc. 102) is DENIED.
3. Montgomery Bank has until April 14, 2017 to serve process on FDOR. Failure
to do so will result in FDOR’s dismissal.
4. Defendants Pike Creek and Southern Gulf are DISMISSED as a result of
Montgomery Bank’s failure to prosecute. The clerk is DIRECTED to terminate
them as parties in this case.
DONE and ORDERED in Fort Myers, Florida this 7th day of April, 2017.

Copies: All Parties of Record

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