Medallion Homes Gulf Coast, Inc. v. Tivoli Homes of Sarasota, Inc. et al

Filing 43

ORDER: Defendants' Motion for Attorney's Fees and Costs (Doc. # 40 ) 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 12/2/2015. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MEDALLION HOMES GULF
COAST, INC.,
Plaintiff,
v.

Case No: 8:14-cv-3117-T-33JSS

TIVOLI HOMES OF SARASOTA,
INC., ET AL.,
Defendants.
_____________________________/
ORDER
This

cause

Defendants

comes

Michael

before

Duke

and

the

Court

Nicole

pursuant

Duke’s

Motion

to
for

Attorney’s Fees and Costs (Doc. # 40), which was filed on
November 20, 2015.

On December 1, 2015, Plaintiff filed a

Notice of Appeal. (Doc. # 41).

For the reasons that follow,

the Court denies the Motion without prejudice.
Discussion
On

November

5,

2015,

the

Court

granted

Defendants’

Motion for Summary Judgment in this copyright infringement
action. (Doc. # 38).

The Clerk of Court entered Judgment in

favor of Defendants on November 6, 2015. (Doc. # 39). On
November

20,

2015,

Defendants

filed

attorney’s fees and costs. (Doc. # 40).

a

Motion

requesting

Prior to responding

to the Motion for attorney’s fees and costs, Plaintiff filed
a Notice of Appeal. (Doc. # 41).

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

54(d)(2).

2

(d)(2)(B)

has

1993

been

a

new

resolved.”

amendment

to

Rule

Rather than resolving the Motion for Attorney’s Fees
and Costs 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

the

appeal.

Immediate resolution of the collateral issues of attorney’s
fees and costs 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

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 Plaintiff’s pending appeal.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED that
Defendants’ Motion for Attorney’s Fees and Costs (Doc.
# 40) 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
2nd day of December, 2015.

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