Travaglio v. American Express Company et al
Filing
51
ORDER denying 46 Plaintiff's FRCP 59(e) and 15(a)(2) Motion for Reconsideration of the Court's Final Judgment of Dismissal with Prejudice, to Reopen this Case and to Grant Leave to Amend the Complaint. Signed by Judge Virginia M. Hernandez Covington on 10/11/2011. (CR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TINA MARIE TRAVAGLIO,
Plaintiff,
v.
CASE NO:
8:10-cv-1311-T-33AEP
AMERICAN EXPRESS COMPANY, et al.,
Defendants.
_______________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff's
FRCP 59(e) and 15(a)(2) Motion for Reconsideration of the
Court's Final Judgment of Dismissal with Prejudice, to Reopen
this Case and to Grant Leave to Amend the Complaint (Doc. #
46).
Defendant
Bank
of
Newport's
filed
a
Response
in
Opposition thereto (Doc. # 47), Defendants American Express
Company and American Express Travel Related Services Company,
Inc. filed a Memorandum in Opposition thereto (Doc. # 48), and
Defendant Catalyst Health Solutions, Inc. filed an Opposition
thereto (Doc. # 50).
For the reasons that follow, the Court
denies the motion.
I.
Background
Travaglio filed her Complaint in this action on June 9,
2010, with a single count titled as follows:
Count 1 - Deception, Fraud, Bad Faith, Conspiracy
Florida Statutes 624.155(b), et al.
Doc. # 1 at 4.
Each of the three Defendants filed a motion to
dismiss. The Court subsequently entered an Order granting the
motions to dismiss pursuant to Rule 12(b)(6) with prejudice
and finding that "[t]he Complaint fails to allege the material
elements
necessary
to
sustain
recovery
under
the
legal
theories of deception, fraud, common law bad faith, conspiracy
or statutory bad faith."
Doc. # 42 at 11, 13.
In addition,
this Court granted the Bank's motion to dismiss pursuant to
Rule 12(b)(2) finding that there was no personal jurisdiction
over the Bank as Travaglio had failed to allege any facts to
suggest that the Bank satisfied any of the criteria set forth
in Florida's Long-Arm Statute § 48.193. Id. at 12. The Court
noted that Travaglio had not requested leave to amend in the
event that the Court found her Complaint insufficient. Id. at
13.
In addition, the Court found that it did not appear,
based solely on Travaglio's three responses to the motions to
dismiss,
that
she
would
be
successful
in
amending
her
Complaint to state a claim that would survive a motion to
dismiss.
Id.
Accordingly, the Court granted the motions to
dismiss with prejudice.
Travaglio now seeks reconsideration of the Court's Order
pursuant
to
Rules
59(e)
and
2
15(a)(2),
Fed.
R.
Civ.
P.
Travaglio argues that keeping the case closed will create a
manifest injustice in that "attempts to refile may surface
time limitation and res judicata defenses, not applicable in
the present case."
Doc. # 46 at 3.
Travaglio claims that she
has taken steps to cure the conditions that led to "submission
of admittedly substandard pleadings by purchasing better
equipment and increasing study time of the court's rules."
Id. at 4.
Finally, Travaglio claims that she is looking for
associate counsel to partner in this action, which should
assure "that future filings will be in conformance with the
rules and that plaintiff's case will progress in a manner
expected by the court."
II.
Id.
Motion for Reconsideration
A.
Standard of Review
A motion for reconsideration will be decided under Rule
59(e) of the Federal Rules of Civil Procedure.
Ludwig v.
Liberty Mut. Fire Ins. Co., Case No. 8:03-cv-2378-T-17-MAP,
2005 U.S. Dist. LEXIS 37718, at *6 (M.D. Fla. Mar. 30, 2005).
As stated in Florida College of Osteopathic Medicine, Inc. v.
Dean Witter Reynolds, Inc., 12 F. Supp. 2d 1306, 1308 (M.D.
Fla. 1998), “[a] motion for reconsideration must demonstrate
why the court should reconsider its prior decision and set
3
forth facts or law of a strongly convincing nature to induce
the court to reverse its prior decision.”
Further, “[i]n the
interests of finality and conservation of scarce judicial
resources,
reconsideration
of
a
previous
order
extraordinary remedy to be employed sparingly.”
is
an
Lamar Adver.
of Mobile, Inc. v. City of Lakeland, 189 F.R.D. 480, 489 (M.D.
Fla. 1999).
This
Court
recognizes
three
grounds
to
justify
reconsideration of a prior order under Federal Rule of Civil
Procedure 59(e): “(1) an intervening change in controlling
law; (2) the availability of new evidence; and (3) the need to
correct clear error or manifest injustice.” Fla. College of
Osteopathic Med., Inc., 12 F. Supp. 2d at 1308.
Further, as
explained in Ludwig, 2005 U.S. Dist. LEXIS 37718, “[t]his
Court will not reconsider its judgment when the motion for
reconsideration
fails
to
raise
new
issues
but,
instead,
relitigates that which the Court previously found lacking.”
Id. at *9-10.
In addition, “a motion for reconsideration is
not the proper forum for the party to vent dissatisfaction
with the Court’s reasoning.” Id. at *11 (citation omitted).
B.
Analysis
Travaglio
does
not
assert
that
there
has
been
an
intervening change in the law and presents no new evidence.
4
Travaglio only conclusively states that the dismissal "will
create a manifest injustice against plaintiff in that attempts
to
refile
defenses."
may
surface
time
Doc. # 46 at 3.
limitation
and
res
judicata
In addition, Travaglio has not
presented any evidence or argument regarding what claims she
would bring, if permitted leave to amend, that would survive
a motion to dismiss.
As such, Travaglio has failed to
establish a ground for reconsideration and has failed to
"strongly convince" the Court that it should reconsider its
Order.
Accordingly,
the
Court
denies
the
Motion
for
Reconsideration.
III. Motion to Amend
A.
"The
Standard of Review
court
should
freely
give
leave
when
justice
requires." Fed. R. Civ. 15(a)(2). However, a motion to amend
may be denied on numerous grounds including undue delay, bad
faith or dilatory tactics, undue prejudice to defendant and
futility. Foman v. Davis 371 U.S. 178, 182 (1962); Maynard v.
Bd. of Regents, 342 F.3d 1281, 1287 (11th Cir. 2003); Marco
Island Cable, Inc. v. Comcast Cablevision of the S., Inc., No.
2:04-cv-26-FtM-29DNF, 2006 WL 1733860, at *2 (M.D. Fla. June
21, 2006).
A decision whether to grant or deny a motion for
leave to file an amended complaint is within the sound
5
discretion of the district court.
B.
As
Foman, 371 U.S. at 182.
Analysis
the
Court
noted
requested leave to amend.
in
its
Order,
Doc. # 42 at 13.
Travaglio
never
"A district court
is not required to grant a plaintiff leave to amend his
complaint sua sponte when the plaintiff, who is represented by
counsel, never filed a motion to amend nor requested leave to
amend before the district court."
Wagner v. Daewoo Heavy
Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002).
This
Court dismissed the Complaint with prejudice because it did
not believe there to be any facts upon which Travaglio could
assert any claims.
Travaglio has failed to assert any cause
of action that she wishes to add or any facts supporting the
causes of action previously pled.
Accordingly, the Court
denies the Motion to Amend.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff's
FRCP
59(e)
and
15(a)(2)
Motion
for
Reconsideration of the Court's Final Judgment of Dismissal
with Prejudice, to Reopen this Case and to Grant Leave to
Amend the Complaint (Doc. # 46) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 11th
6
day of October, 2011.
Copies:
All Counsel of Record
7
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