Skypoint Advisors, LLC. v. 3 Amigos Productions LLC. et al

Filing 313

ORDER denying 310 Plaintiff's Motion for Reconsideration of in the Alternative Emergency Motion for Continuance. Signed by Judge John E. Steele on 4/1/2022. (AFC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SKYPOINT ADVISORS, LLC.,
Plaintiff/Counter
Defendant,
v.

Case No:

2:18-cv-356-JES-MRM

3 AMIGOS PRODUCTIONS LLC.,
BLACKBURNSTEELE LLC., ISSA
ZAROUI, and MARK C CRAWFORD,
Defendants/
Counterclaimants.
3 AMIGOS PRODUCTIONS LLC.,
BLACKBURNSTEELE LLC., ISSA
ZAROUI, and MARK C CRAWFORD,
Third-Party
Plaintiffs,
v.
DENIS DRENI,
Third-Party
Defendant.
OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Motion for
Reconsideration

or

in

the

Alternative

Emergency

Motion

Continuance (Doc. #310) filed Friday, April 1, 2022.
scheduled to begin on Monday, April 4, 2022.

for

Trial is

Given the emergency

nature of the request, the Court decides the motion without waiting

for a response from Defendants.

For the reasons set forth below,

the motion is DENIED.
In the Motion, Skypoint requests that the Court reconsider
its prior Order (Doc. #301) denying Skypoint’s motion (Doc. #295)
to present the testimony of three witnesses – William Kaufman,
Marco Balsamo, and Lulzim Vulashi – via remote video at trial.
(Doc. #295.) Defendants opposed the request.

Based on Skypoint’s

representations in its first motion, Kaufman could not attend trial
in-person because he is shooting a movie, Balsamo could not attend
trial in-person because he intends to be at a soccer tournament in
Italy, and Vulashi could not attend trial in-person because he is
in Italy.

The Court denied Skypoint’s request because it had not

shown good cause in compelling circumstances to depart from the
mandatory rule that witness testimony at trial “must be taken in
open court.”

Fed. R. Civ. P. 43(a).

The Court also denied

Skypoint’s alternative request for leave to take video deposition
testimony (for the first time) of the three witnesses because
Skypoint failed to show good cause to modify the Case Management
and Scheduling Order, in which discovery closed in May 2021.

Fed.

R. Civ. P. 16.
Skypoint now moves for reconsideration of the Court’s prior
Order.

As an initial matter, Skypoint moves pursuant to Fed. R.

Civ. P. 60(b).

Rule 60(b) allows a party to seek relief of a

“final judgment, order, or proceeding.”

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Fed. R. Civ. P. 60(b)

(emphasis added). The Court’s Order was not a final Order, so Rule
60(b) does not apply.
A non-final order may be revised at any time before the entry
of a final judgment. Fed. R. Civ. P. 54(b). The decision to grant
a motion for reconsideration is within the sound discretion of the
trial court and may be granted to correct an abuse of discretion.
Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993
F.2d 800, 806 (11th Cir. 1993). “The courts have delineated three
major grounds justifying reconsideration of such a decision: (1)
an intervening change in controlling law; (2) the availability of
new evidence; (3) the need to correct clear error or prevent
manifest injustice.”

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

F.R.D. 689, 694 (M.D. Fla. 1994).
“A motion for reconsideration should raise new issues, not
merely readdress issues litigated previously.”

PaineWebber 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.

Taylor Woodrow Constr. Corp. v.

Sarasota/Manatee Airport Auth., 814 F. Supp. 1072, 1073 (M.D. Fla.
1993); 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

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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 already determined.

Court opinions are not intended as

mere first drafts, subject to revision and reconsideration at a
litigant's pleasure.”

Grey Oaks Cty. Club, Inc. v. Zurich Am.

Ins. Co., No. 2:18-cv-639-FtM-99NPM, 2019 WL 4594591, at *2, 2019
U.S. Dist. LEXIS 161559, at *5 (M.D. Fla. Sep. 23, 2019) (citing
Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282,
288 (N.D. Ill. 1988) (quotations omitted)).

Reconsideration of a

court’s order “is an extraordinary remedy and a power to be ‘used
sparingly,’” Santamaria v. Carrington Mortg. Servs., LLC, 2019
U.S. Dist. LEXIS 129682, 2019 WL 3537150, *2 (M.D. Fla. July 10,
2019) (citation omitted), with the burden “upon the movant to
establish

the

reconsideration.”

extraordinary

circumstances

supporting

Mannings v. Sch. Bd. of Hillsborough Cty.,

Fla., 149 F.R.D. 235, 235 (M.D. Fla. 1993).

Unless the movant’s

arguments fall into the limited categories outlined above, a motion
to reconsider must be denied.
Skypoint fails to demonstrate that one of the three limited
categories applies.

At most, Skypoint attempts to provide “new

evidence” of the circumstances surrounding Kaufman’s and Balsamo’s
(not Vulashi’s) inability to appear in-person.

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(Doc. ## 310-1,

310-2.)

But the underlying circumstances are still the same:

Kaufman is on a movie set and Balsamo is at a soccer tournament in
Italy.

Skypoint has failed to carry its burden of showing that

the extraordinary remedy of reconsideration is warranted. 1
Skypoint alternatively request an emergency continuance of
the trial because Kaufman, Balsamo, and Vulashi are “essential”
witnesses.

Skypoint’s request is unavailing.

Skypoint filed this action nearly four years ago and has known
of the identity of Kaufman, Balsamo, and Vulashi for the entirety
of the litigation.

Their identities were not hidden, Skypoint

knew they did not live in Florida, and their inability to provide
live,

in-person

foreseeable.
1996

testimony

was

completely

and

reasonably

Fed. R. Civ. P. 43, advisory committee’s note to

amendment.

Skypoint,

nevertheless,

made

the

decision not to depose its “essential” witnesses. 2

conscious

Defendants,

The cases Skypoint cites in support of its request are not
applicable. Skypoint cites Justice O’Connor’s dissent in Swidler
& Berlin v. United States, which is a case about attorney-client
privileges. 524 U.S. 399, 411 (1998). Skypoint provides a quote
from Unites States v. Bryan, which quote is discussing exemptions
for testifying or producing records.
339 U.S. 323 (1950).
Skypoint cites Justice Scalia’s dissent in Jaffee v. Redmond, which
is a case about psychotherapist-patient privilege. 518 U.S. 1,
36 (1996). Skypoint cites an Eleventh Circuit case, United States
v. Drogoul, which discusses using depositions at trial in criminal
cases. 1 F.3d 1546, 1552 (11th Cir. 1993).
1

2

33MAP,
motion
merely
Peeler

See e.g., Peeler v. KVH Indus., Inc., No. 8:12-CV-1584-T2013 WL 12155937, at *4 (M.D. Fla. Dec. 16, 2013) (denying
to allow trial deposition in lieu of live testimony “not
because the discovery period has ended, but also because
offers no explanation for his failure to depose these
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defense counsel, and the Court would be unduly burdened by delaying
the trial at this late juncture so Skypoint may reopen discovery
or find a more convenient time for Skypoint to present its case.
Accordingly, it is hereby
ORDERED:
1.

Plaintiff’s

Motion

for

Reconsideration

or

in

the

Alternative Emergency Motion for Continuance (Doc. #310)
is DENIED.
2.

Trial remains as scheduled for April 4, 2022 at 9:00
a.m.

DONE and ORDERED at Fort Myers, Florida, this

1st

day of

April, 2022.

Copies:
Counsel of Record

witnesses before the close of discovery and because Peeler delayed
in requesting to depose these witnesses until one month before the
start of the trial term.”); then see Peeler v. KVH Indus., Inc.,
No. 8:12-CV-1584-T-33TGW, 2014 WL 201754, at *2 (M.D. Fla. Jan.
17, 2014) (denying emergency motion for continuance of trial
because “delaying the trial at this late juncture so that Peeler
may conduct additional discovery would be exceedingly burdensome
to the Court as well as Peeler’s opposing party and counsel”).
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