Andrews v. Scott et al

Filing 157

ORDER denying without prejudice 151 Defendants' Motion for Taxation of Costs. ; denying without prejudice 152 Defendants' Renewed Motion for judgment; and denying without prejudice 154 Defendants' Motion for Taxation of Costs. Defendants may refile their motions within fourteen (14) days after the date the Eleventh Circuit Court of Appeals issues its mandate on the pending appeal.. Signed by Judge Sheri Polster Chappell on 6/17/2019. (AEH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANITA ANDREWS,
Plaintiff,
v.

Case No.: 2:16-cv-814-FtM-38MRM

DEPUTY BRANDON MARSHALL,
SERGEANT ROBERT KIZZIRE,
CORIZON HEALTH, INC. and
CARMINE MARCENO,
Defendants.
/
OPINION AND ORDER1
Before the Court is Defendants’ Motion to Tax Costs (Doc. 151), Renewed Motion
to Enter Judgment (Doc. 152), and Motion for Taxation of Costs (Doc. 154). For these
reasons, the Motions are denied without prejudice with leave to refile.
On May 8, 2019, the Court granted summary judgment for Defendants. (Doc. 148).
The Clerk entered judgment on May 16, 2019. (Doc. 150). Afterwards, Defendants filed
these Motions to Tax Costs (Docs. 151; 154) and the Renewed Motion to Enter Judgment
(Doc. 152). The Motions to Tax Costs (Docs. 151; 154) are grounded in Federal Rule of
Civil Procedure 54(d)(1), which allows certain costs for the prevailing party.

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The

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Renewed Motion to Enter Judgment (Doc. 152) seeks costs of a previous action that was
voluntarily dismissed. (Doc. 152-1). Plaintiff did not respond to any of the Motions. But
Plaintiff recently filed a Notice of Appeal on the merits of summary judgment. (Doc. 155).
That case remains pending before the Eleventh Circuit Court of Appeals.
“As a general rule, the filing of a notice of appeal divests a district court of
jurisdiction on any matter involved in the appeal.” Elver v. Whidden, No. 2:18-cv-102FtM-29CM, 2019 WL 718536, at *1 (M.D. Fla. Feb. 20, 2019). But district courts can
retain jurisdiction to consider motions on issues collateral to those on appeal, such as
attorney’s fees and costs. Landon v. City of North Port, No. 8:15-cv-2272-T-36JSS, 2018
WL 904301, at *1 (M.D. Fla. Jan. 30, 2018), report and recommendation adopted, 2018
WL 894012 (M.D. Fla. Feb. 14, 2018). Although this jurisdictional limit does not prohibit
the current motions, district courts have discretion to deny a motion for attorney’s fees
without prejudice with leave to refile after the appeal has concluded. See Fed. R. Civ. P.
54(d) Advisory Committee Note to 1993 Amendment (stating that “[i]f an appeal on the
merits of the case is taken, the court may rule on the claim for fees, may defer its ruling
on the motion, or may deny the motion without prejudice, directing under subdivision
(d)(2)(B) a new period for filing after the appeal has been resolved”); see also Elver, 2019
WL 718536, at *1 (denying motion for attorney’s fees and costs until appeal concluded);
Landon, 2018 WL 904301, at *1 (denying motion for costs until appeal concluded).
Here, the Court concludes that justice would be better served by denying the
motions without prejudice with leave to refile after the appeal concludes. See Bowers v.
Universal City Dev. Partners, Ltd., No. 603CV985ORL18JGG, 2005 WL 1243745, at *2
(M.D. Fla. May 19, 2005) (“If the district court were to resolve the fee and cost issue while

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an appeal remains pending, it would be asked to repeat the procedure following the
appeal. This Court prefers to avoid the piecemeal resolution of fee disputes.”). Thus,
because Plaintiff’s appeal is pending before the Eleventh Circuit, the Court will deny
without prejudice Defendants’ Motion to Tax Costs (Doc. 151), Renewed Motion to Enter
Judgment (Doc. 152), and Motion for Taxation of Costs (Doc. 154).

If necessary,

Defendants may refile the motions within fourteen days after the appeal has been
resolved. See Elver, 2019 WL 718536 at *1; Landon, 2018 WL 904301, at *1.
Accordingly, it is now
ORDERED:
(1) Defendants’ Motion to Tax Costs (Doc. 151) is DENIED without prejudice.
(2) Defendants’ Renewed Motion to Enter Judgment (Doc. 152) is DENIED
without prejudice.
(3) Defendant’s Motion for Taxation of Costs (Doc. 154) is DENIED without
prejudice.
(4) Defendants may REFILE their motions, if appropriate, within fourteen (14)
days after the date that the Eleventh Circuit Court of Appeals issues its
mandate on the pending appeal.
DONE and ORDERED in Fort Myers, Florida this 17th day of June, 2019.

Copies: All Parties of Record

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