Apple Glen Investors, L.P. v. Express Scripts, Inc.

Filing 108

ORDER: Plaintiff Apple Glen Investors, L.P.'s Renewed Motion for Attorneys' Fees and Costs (Doc. # 106 ) is DENIED without prejudice and with leave to re-file no later than fourteen days after entry of a mandate by the Court of Appeals on the pending appeal. Signed by Judge Virginia M. Hernandez Covington on 10/7/2016. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
APPLE GLEN INVESTORS,
L.P.,
Plaintiff,
v.

Case No: 8:14-cv-1527-T-33EAJ

EXPRESS SCRIPTS, INC.,
Defendant.
_____________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff
Apple Glen Investors, L.P.’s Renewed Motion for Attorneys’
Fees and Costs (Doc. # 106) seeking $803,516.50 in fees and
$15,315.03 in costs, which was filed on September 22, 2016.
For the reasons that follow, the Court denies the Motion
without

prejudice

and

with

leave

to

re-file

after

the

conclusion of the pending appeal.
Discussion
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. In Green Leaf Nursery v. E.I.
DuPont de Nemours & Co., 341 F.3d 1292, 1309 (11th Cir.
2003), the Eleventh Circuit explained: “The filing of an
appeal

is

an

event

of

jurisdictional

significance–-it

confers jurisdiction on the court of appeals and divests the
district court of its control over those aspects of the case
involved

in

the

appeal.”

However,

notwithstanding

the

pendency of an appeal, the Court has discretion to deny a
motion for attorney’s fees without prejudice with leave to
re-file after the appeal has concluded. See Fed. R. Civ. P.
54(d) (governing the procedure for awarding attorney's fees
and costs).

The Advisory Committee Notes to Rule 54(d)(2)

provide that “[i]f 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,
period

for

Advisory

directing

under

subdivision

filing

after

the

Committee

Notes

to

appeal
the

(d)(2)(B)

has

1993

been

a

new

resolved.”

amendment

to

Rule

54(d)(2).
Rather than resolving the Motion for attorney’s fees
presently

before

the

Court

during

the

pendency

of

the

appeal, the Court determines that the interests of justice
would

be

better

served

by

denying

the

Motion

without

prejudice and with leave to re-file after the conclusion of

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the appeal.

Immediate resolution of the collateral issues

raised after the filing of the Notice of Appeal is unlikely
to assist the Court of Appeals, and attorney’s fees and
costs are often resolved in appellate mediation.

See Larson

v. Correct Craft, Inc., No. 6:05-cv-686-Orl-31-GKJ, 2008
U.S. Dist. LEXIS 32311, at *3 (M.D. Fla. Apr. 18, 2008).
Thus, the Court denies the Motion without prejudice and
with leave to re-file no later than fourteen days after
entry

of

a

mandate

by

the

Court

of

Appeals

on

Express

Scripts’ pending appeal.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED that
Plaintiff Apple Glen Investors, L.P.’s Renewed Motion
for Attorneys’ Fees and Costs (Doc. # 106) is DENIED without
prejudice and with leave to re-file no later than fourteen
days after entry of a mandate by the Court of Appeals on the
pending appeal.
DONE and ORDERED in Chambers in Tampa, Florida on this
7th day of October, 2016.

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