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

Filing 92

ORDER: Plaintiff Apple Glen Investors, L.P.'s Motion to Determine Amount of Prejudgment Interest and to Direct Entry of Amended Final Judgment (Doc. # 90 ) and Motion for Attorneys' Fees and Costs (Doc. # 91 ) are 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 4/15/2016. (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 Motion to Determine Amount of
Prejudgment Interest and to Direct Entry of Amended Final
Judgment (Doc. # 90) and Motion for Attorneys’ Fees and
Costs (Doc. # 91), both filed on April 11, 2016.

For the

reasons that follow, the Court denies the Motions without
prejudice.
Discussion
On March 10, 2016, the Court entered its Findings of
Fact and Conclusions of Law (Doc. # 86) after holding a
bench trial.

On March 11, 2016, the Clerk of the Court

entered Judgment in favor of Apple Glen in accordance with
the Findings of Fact and Conclusions of Law. (Doc. # 87).
Express Scripts, Inc. filed a timely Notice of Appeal on

April 7, 2016. (Doc. # 88).

Thereafter, on April 11, 2016,

Apple Glen filed the present Motions requesting prejudgment
interest, attorneys’ fees, costs, and entry of an Amended
Judgment.
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

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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 Motions that are 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 Motions without prejudice and
with leave to re-file after the conclusion of the appeal.
This is especially appropriate because Apple Glen requests
the entry of an Amended Final Judgment. 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

appellate mediation.

and

costs

are

often

resolved

in

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 Motions without prejudice
and with leave to re-file no later than fourteen days after

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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

Motion

to

Determine Amount of Prejudgment Interest and to Direct Entry
of

Amended

Final

Judgment

(Doc.

#

90)

and

Motion

for

Attorneys’ Fees and Costs (Doc. # 91) are 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
15th day of April, 2016.

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