Scharrer et al v. Fundamental Administrative Services, LLC et al

Filing 80

ORDER denying 75 Defendants' Motion to Dismiss with Prejudice on Behalf of Defendants Fundamental Administrative Services, LLC and Christine Zack. Signed by Judge James S. Moody, Jr on 1/10/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BETH ANN SCHARRER and TRANS
HEALTH MANAGEMENT, INC.,
Plaintiffs,
v.

Case No: 8:12-cv-1855-T-30MAP

FUNDAMENTAL ADMINISTRATIVE
SERVICES, LLC and CHRISTINE
ZACK,
Defendants.

ORDER
THIS CAUSE comes before the Court upon the Defendants' Motion to Dismiss with
Prejudice on Behalf of Defendants Fundamental Administrative Services, LLC and
Christine Zack (Dkt. #75) and Plaintiffs' Response in Opposition to the Motion (Dkt. #79).
It is the Court’s conclusion that the Motion should be denied.
Background
Plaintiffs sued Defendants alleging that the Defendants engaged in the unauthorized
practice of law. On July 30, 2013, this Court entered an Order dismissing the Plaintiff’s
Amended Complaint without prejudice (Dkt. 73). In that Order, the Court noted that the
Florida Supreme Court had not issued an order holding that the specific conduct at issue in
this case constituted the unauthorized practice of law. Relying on Goldberg v. Merrill
Lynch Credit Corp., 35 So. 3d 905 (Fla. 2010), this Court dismissed the complaint without

prejudice to allow Plaintiffs sixty days to seek an advisory opinion from the Florida
Supreme Court. If Plaintiffs failed to file the petition within sixty days, the dismissal would
be with prejudice. On September 27, 2013, Plaintiff submitted their Petition for Formal
Advisory Opinion Concerning the Unauthorized Practice of Law (the “Petition”) (Dkt.
#74) to the Florida Bar Standing Committee on the Unlicensed Practice of Law. Defendants
now seek to have this case dismissed with prejudice.
Discussion
Defendants argue that the Court’s dismissal of Plaintiffs’ complaint without
prejudice bars Plaintiff from seeking an advisory opinion. They argue three bases to
support this claim: (1) Plaintiffs did not voluntarily dismiss their claim, (2) a related lawsuit
seeking damages for breach of fiduciary duty and malpractice precludes the UPL
committee from pursuing the UPL petition, and (3) Plaintiffs allege facts in the petition
that go beyond the facts in this case, and therefore an advisory opinion is futile.
Since the Court has already dismissed this action, the Court will construe
Defendants’ motion as either a motion for reconsideration under Federal Rule of Civil
Procedure 59 or a motion for relief from judgment under Rule 60. See Nisson v. Lundy,
975 F.2d 802, 806 (11th Cir. 1992) (finding that a Rule 59(e) motion may be treated as a
60(b) motion “if grounds stated would be a basis for Rule 60(b) relief.”).
Rule 59 mandates that a request for reconsideration must be filed within 28 days
after entry of the judgment. Defendants filed this Motion four months after the Order,
therefore, the request is untimely. Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126,

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1129 (11th Cir. 1994). (“an untimely filed motion to alter or amend cannot invoke a trial
court's jurisdiction.”)
Under Rule 60 of the Federal Rules of Civil Procedure, a party may request relief
from an order based on “(1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence that, with reasonable diligence, could not have been discovered
in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based
on an earlier judgment that has been reversed or vacated; or applying it prospectively is no
longer equitable; or (6) any other reason that justifies relief.” Fed.R.Civ.P. 60(b). “Federal
courts grant relief under Rule 60(b)(6) only for extraordinary circumstances.” Frederick v.
Kirby Tankships, Inc., 205 F.3d 1277, 1288 (11th Cir. 2000), cert. denied, 531 U.S.
813,121 S.Ct. 46, 148 L.Ed.2d 16 (2000).
Defendants’ arguments in their Motion do not establish a basis for relief under
subsections (1)-(5) of Rule 60(b). Although they argue that Plaintiffs made improper legal
arguments in their Petition, these arguments are not sufficient to rise to the level of fraud,
misrepresentation or misconduct in this case to justify relief under subsection (3). To
prevail on a Rule 60(b)(3) motion, the moving party is required to “prove by clear and
convincing evidence that an adverse party has obtained the verdict through fraud,
misrepresentation, or other misconduct.” Cox Nuclear Pharmacy, Inc. v. CTI, Inc., 478
F.3d 1303, 1314 (11th Cir. 2007) (alteration and internal quotation marks omitted).

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Further, the Defendants’ arguments as to why the Court should enter a dismissal
with prejudice do not present the type of extraordinary circumstances necessary for
granting relief under the catch-all provision in Rule 60(b)(6). The Eleventh Circuit has held
that “… Rule 60(b)(6) is reserved for instances of genuine injustice, and does not permit a
party or a judge to circumvent the clear commands of Rules 6(b) and 59(e). Rule 6(b)
forbids a court to enlarge the time within which a Rule 59(e) motion may be served….”
Hertz Corp., 16 F.3d at 1128. Therefore a court should not use Rule 60(b)(6) in such a way
as to “undermine finality, … and defeat the ends of Rules 6(b) and 59(e).” Id.
Defendants’ arguments appear to be more properly suited in opposition to
Plaintiffs’ Petition, not as a basis for relief from the Order. The Court purposefully
dismissed the case without prejudice relying on Goldberg to specifically allow Plaintiffs
to file the Petition. The dismissal would have been with prejudice had Plaintiffs decided
not to pursue that course of action. Therefore, to argue that the Order itself prohibits
Plaintiffs from pursuing the Petition is incongruous.
Plaintiffs also request that this Court change the Order from one that dismisses the
case to one that stays the proceedings to eliminate confusion about the Court’s intent. The
Court denies this request as an untimely request for reconsideration under Rule 59(e).
Further, given that Plaintiffs’ argument in their response that Plaintiffs have complied with
Rule 10-9.1 of the Rules Regulating the Florida Bar and that the UPL Committee has
accepted their Petition as compliant with the rules, Plaintiffs have not presented a basis to
justify relief from the Order.

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It is therefore ORDERED AND ADJUDGED that Defendants' Motion to Dismiss
with Prejudice on Behalf of Defendants Fundamental Administrative Services, LLC and
Christine Zack (Dkt. #75) is DENIED.
DONE and ORDERED in Tampa, Florida, this 10th day of January, 2014.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2012\12-cv-1855 mtd 75.docx

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