Pirtek USA, LLC v. Twillman et al

Filing 85

ORDER terminating 65 Motion for Attorney Fees; granting 83 Motion to Withdraw Motion for Attorney Fees. Signed by Magistrate Judge Thomas B. Smith on 12/1/2016. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
PIRTEK USA, LLC,
Plaintiff,
v.

Case No: 6:16-cv-1302-Orl-37TBS

MICHAEL J. TWILLMAN, DOLORES M.
TWILLMAN and DONALD J. TWILLMAN,
Defendants.
ORDER
This case comes before the Court on Pirtek USA’s Motion for Payment, by
Defendants, of its Attorneys’ Fees Pursuant to the Franchise Agreement (Doc. 65), and
Pirtek USA, LLC’s Motion for Withdrawal of its Motion for Attorney’s Fees, [Doc. 65],
Without Prejudice, or in the Alternative, for an Enlargement of Time for the Filing of the
Fees Motion (Doc. 83). Defendants oppose both motions (Docs. 78, 84).
On October 26, 2016, Plaintiff moved for payment of its attorney fees incurred in
pursuit of a preliminary injunction against Defendants (Doc. 65). Plaintiff argues that the
recovery of its fees is authorized by the parties’ franchise agreement (Id. at 2-3).
Defendants oppose the motion on the grounds that: (1) it is time-barred; (2) the motion is
deficient because it does not state the amount of fees sought; (3) the contractual fee
provision is unconscionable; and alternatively, (4) the motion is premature (Doc. 78).
Plaintiff has reconsidered its motion for fees and now “accepts [Defendants’]
argument that its request for such fees is premature and that it should seek such fees at
the conclusion of the case.” (Doc. 83 at 1). Accordingly, Plaintiff has asked the Court for
permission to withdraw its fee motion (Id.). Defendants oppose this request on the ground

that their argument regarding the prematurity of the motion is only made in the alternative
and the Court should decide the fee motion now, on the merits (Doc. 84).
Allowing Plaintiff to withdraw its motion will not delay the proceedings or prejudice
Defendants. Cf. D.H. Pace Co. v. AOD Group, LLC, Case No. 1:12-cv-3854-WSD, 2013
U.S. Dist. LEXIS 162744, at *3 (N.D. Ga. Nov. 15, 2013). Accordingly, Plaintiff’s motion to
withdraw (Doc. 83) is GRANTED, and the Clerk is directed to TERMINATE the motion for
attorney’s fees (Doc. 65) without prejudice to refiling at a later date (Doc. 65). This Order
does not adjudicate any of Defendants’ arguments why the motion for attorney’s fees
should not be granted.
DONE and ORDERED in Orlando, Florida on December 1, 2016.

Copies furnished to Counsel of Record

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