Brewer v. Lago Villaggio Homeowners Association, Inc

Filing 33

ORDER denying without prejudice 24 Appellee's Renewed Motion for Attorney Fees on Appeal. Appellee Lago Villaggio Homeowner's Association, Inc. may file a Motion for Attorneys' Fees and Costs, if necessary, within fourteen (14) days of the date that the Eleventh Circuit Court of Appeals issues its Mandate on the pending appeal. Signed by Judge Sheri Polster Chappell on 1/9/2018. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
IN RE: CINDY BREWER

CINDY BREWER,
Appellant,
v.

Case No: 2:17-cv-94-FtM-38

LAGO VILLAGGIO HOMEOWNERS
ASSOCIATION, INC,
Appellee.
/
ORDER1
This matter comes before the Court on Appellee Lago Villaggio Homeowner’s
Association, Inc.’s (Lago) Renewed Motion for Attorney Fees on Appeal (Doc. 24) filed
on November 20, 2017. Debtor/Appellant Cindy Brewer (Brewer) filed a Response in
Opposition (Doc. 31) on December 27, 2017. In its Motion, Lago seeks to recover
attorneys’ fees and costs as the prevailing party.
On October 27, 2017, the Court affirmed the decision of the Bankruptcy Court and
entered judgment in favor of Lago. (Doc. 22, Doc. 23). Brewer thereafter filed a Notice

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of Appeal (Doc. 25) on November 22, 2017. The 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 with respect to any matter involved in the appeal.” Southern-Owners Ins. Co.
v. Wall 2 Wall Construc., LLC, 8:12-cv-1922, 2013 WL 6893254, at *1 (M.D. Fla. Dec. 31,
2013). Although this jurisdictional limit does not prohibit the current motion, district courts
have discretion to deny a motion for attorneys' fees without prejudice and with leave to
refile after the appeal has concluded. See Fed. R. Civ. P. 54(d)(2)(i) (“Unless a statute
or a court order provides otherwise, the motion must: (i) be filed no later than 14 days
after the entry of judgment; . . .”). Further, “[t]he Advisory Committee Notes to Rule
54(d)(2) provide that:
‘If 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.’’
Larson v. Correct Craft. Inc., No. 6:05–cv–686, 2008 U.S. Dist. LEXIS 32311, at *3 (M.D.
Fla. Apr. 18, 2008) (citing Advisory Committee Notes to the 1993 amendment to Rule
54(d)(2)).
Here, because Brewer’s appeal is pending before the Eleventh Circuit Court of
Appeals (Doc. 25), the Court will deny Lago’s Motion for Attorneys’ Fees and Costs (Doc.
24) without prejudice to refiling, if necessary, after the appeal has been resolved. See
Southern-Owners, 2013 WL 6893254, at *1 (denying the defendant’s motion for attorneys’
fees because, in part, “[i]mmediate resolution of the collateral issues of attorneys’ fees
and costs [would] unlikely . . . assist the Court of Appeals”); Larson, 2008 U.S. Dist. LEXIS

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32311, at *3 (finding no good cause to grant the defendant’s motion for attorneys’ fees
pending the plaintiff’s appeal where the court would likely have to reconsider attorneys’
fees after the appeal and when fee issues are often resolved in appellate mediation).
Accordingly, it is now
ORDERED:
(1)

Appellee’s Renewed Motion for Attorney Fees on Appeal (Doc. 24) is

DENIED without prejudice.
(2)

Appellee Lago Villaggio Homeowner’s Association, Inc. may file a Motion

for Attorneys’ Fees and Costs, if necessary, within fourteen (14) days of the date that
the Eleventh Circuit Court of Appeals issues its Mandate on the pending appeal.
DONE and ORDERED in Fort Myers, Florida this 9th day of January, 2018.

Copies: All Parties of Record

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