Bostick v. State Farm Mutual Automobile Insurance Company
Filing
211
ORDER denying without prejudice 205 motion to compel compliance; denying without prejudice 209 motion for post-trial discovery. Signed by Magistrate Judge Amanda Arnold Sansone on 12/3/2018. (DMP)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LISA N. BOSTICK,
Plaintiff,
v.
Case No. 8:16-cv-1400-T-33AAS
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY,
Defendant.
________________________________/
ORDER
State Farm moves to compel Lisa Bostick to comply with the order awarding
State Farm its taxable costs and the order awarding State Farm its attorney’s fees.
(Doc. 205). State Farm also moves to compel post-trial discovery. (Doc. 209). Ms.
Bostick opposes State Farm’s motions.
(Docs. 206, 210).
The undersigned will
address State Farm’s motions in turn after providing background.
I.
BACKGROUND
Ms. Bostick sued State Farm to recover uninsured motorist benefits. (Doc. 2).
State Farm served Ms. Bostick with a settlement offer, which Ms. Bostick rejected.
(Doc. 155-1). The case proceeded to a jury trial after which the jury returned a verdict
in State Farm’s favor and awarded Ms. Bostick no damages. (Doc. 139, 140). The
Clerk then entered judgment in State Farm’s favor. (Doc. 145).
State Farm later moved for attorney’s fees incurred after State Farm served
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Ms. Bostick its settlement offer. (Doc. 155). State Farm also moved for taxable costs.
(Doc. 170). The court adopted the undersigned’s reports and recommendations on
State Farm’s motions. (Docs. 175, 177, 190). As a result, the court awarded State
Farm $16,351.23 in taxable costs and $236,663.48 in attorney’s fees. (Docs. 177, 190).
Following her trial against State Farm, Ms. Bostick appealed multiple orders
in this case. (Doc. 182). Most relevant to the current motions, Ms. Bostick appealed
the order concluding that State Farm was entitled to attorney’s fees and the order
awarding State Farm $16,351.23 in taxable costs. (Id.).
State Farm now moves to compel Ms. Bostick to comply with the orders
awarding State Farm attorney’s fees and taxable costs. (Doc. 205). State Farm also
moves to compel post-trial discovery. (Doc. 209). Ms. Bostick opposes State Farm’s
motions. (Docs. 206, 210). The undersigned will now address State Farm’s motions.
II.
ANALYSIS
A.
State Farm’s Motion to Compel Compliance with Court Orders
State Farm moves to compel Ms. Bostick to comply with the orders awarding
State Farm attorney’s fees and taxable costs. (Doc. 205). According to State Farm,
Ms. Bostick has yet to comply with the court’s orders despite Ms. Bostick’s failure to
post a bond or move for a stay of the court’s orders. (Id. at 2). The undersigned will
address the orders at issue in State Farm’s motion separately.
1.
Order on Attorney’s Fees
State Farm specifically points out Ms. Bostick failed to comply with the order
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awarding State Farm $236,663.48 in attorney’s fees despite the fact that “no stay has
been issued, nor has any bond been posted.” (Doc. 205, p. 2).
State Farm included no memorandum of law in its motion required under Local
Rule 3.01(a), nor did State Farm provide case law to support its claim for relief. To
the extent State Farm argues it has a judgment for attorney’s fees and Ms. Bostick
failed to stay enforcement of that judgment, that argument is unavailing and will be
discussed in greater detail below with respect to State Farm’s motion for post-trial
discovery.
To the extent State Farm does not argue it has an attorney’s fees judgment,
but Ms. Bostick must comply with the order nonetheless, the second report and
recommendation on the amount of State Farm’s attorney’s fees award addressed this
issue. (Doc. 186). After recognizing that Ms. Bostick appealed the underlying order
concluding State Farm is entitled to attorney’s fees, and after discussing Eleventh
Circuit case law about the court’s jurisdiction to award attorney’s fees, the report and
recommendation stated the following:
Here, the amount of attorney’s fees to award State Farm is collateral to
whether State Farm is entitled to attorney’s fees in the first place. If
the court’s decision concluding State Farm is entitled to attorney’s fees
is reversed, then Ms. Bostick will be unaffected by this Report and
Recommendation. If the court’s decision is affirmed, then the analysis
in this Report and Recommendation and subsequent order will be
unaffected. Therefore, because determining how much to award State
Farm does not affect the question Ms. Bostick raised on appeal—
namely, whether State Farm is entitled to attorney’s fees in the first
place—the court retains jurisdiction over State Farm’s current motion.
(Id. at pp. 2–3). The second report and recommendation on State Farm’s motion for
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attorney’s fees, therefore, explicitly recognized that State Farm’s award is contingent
on the Eleventh Circuit’s review of the court’s order concluding that State Farm is
entitled to attorney’s fees. See also Earthcam, Inc. v. OxBlue Corp., 658 F. App’x 526,
531 (11th Cir. 2016) (affirming district court’s conclusion that it could rule on a
motion for attorney’s fees but not require payment until appeal concluded).
State Farm cited no case law to support its motion to compel Ms. Bostick to
pay an attorney’s fees award that could be reversed by the Eleventh Circuit.
Therefore, State Farm’s motion to compel Ms. Bostick to comply with the order
awarding State Farm $236,663.48 in attorney’s fees is denied without prejudice. If
the Eleventh Circuit affirms the order concluding State Farm is entitled to attorney’s
fees, State Farm may renew its motion.
2.
Order on Taxable Costs
With respect to the order awarding State Farm $16,351.23 in taxable costs,
State Farm simply states: “As of the date of this motion, plaintiff has failed to comply
with this court’s order [on taxable costs].” (Doc. 205, p. 2). Therefore, State Farm
requests an order compelling Ms. Bostick to comply with the court’s order on taxable
costs. (Id. at 3).
State Farm’s motion to compel Ms. Bostick’s compliance with the court’s order
on taxable costs is denied for two reasons. First, to the extent State Farm argues it
has a judgment for taxable costs, that argument is unavailing and will be discussed
in greater detail below with respect to State Farm’s motion for post-trial discovery.
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Second, to the extent State Farm does not argue it has a judgment for taxable
costs but seeks to compel compliance with the court’s order on taxable costs
nonetheless, like the order on attorney’s fees, the order on taxable costs is on appeal
to the Eleventh Circuit. Ms. Bostick need not comply with the order on taxable costs
at this time because that order could be reversed. See Earthcam, 658 F. App’x at 531
(affirming district court’s conclusion that it could not require payment of expenses
award until appeal concluded). Therefore, State Farm’s motion to compel compliance
with the order awarding State Farm $16,351.23 in taxable costs is denied without
prejudice. If the Eleventh Circuit affirms the order awarding State Farm taxable
costs, State Farm may renew its motion.1
B.
State Farm’s Motion to Compel Post-Trial Discovery
State Farm moves to compel post-trial discovery and for “a writ of execution
granting broad discovery authority.” (Doc. 209, p. 1). State Farm specifically wants
to serve interrogatories and requests for production on Ms. Bostick, as well as
schedule a deposition, so State Farm can identity assets “which may be used to satisfy
the monetary judgments entered by this court’s orders awarding [State Farm] taxable
To the extent State Farm argues the court should require Ms. Bostick to file a bond
for State Farm’s taxable costs under Federal Rule of Appellate Procedure 7, that
argument is unavailing. The bond for costs under Rule 7 is limited to expenses
incurred during appeal—not at the district court. Trabulsy v. Polk Comm. Coll., No.
8:08-CV-2271-33AEP, 2010 WL 5152915, at *1 (M.D. Fla. Oct. 26, 2010). The court
awarded State Farm $16,351.23 for costs incurred at the district court. (Doc. 177).
Therefore, any attempt by State Farm to require Ms. Bostick to post a bond for State
Farm’s $16,351.23 in taxable costs is unsuccessful.
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costs and attorney’s fees.” (Doc. 209, p. 1).
A money judgment is enforced by a writ of execution. Fed. R. Civ. P. 69(a)(1).
In aid of the judgment or execution, a judgment creditor may obtain discovery. Fed.
R. Civ. P. 69(a)(2).
At the heart of State Farm’s motion to compel compliance with the orders
awarding attorney’s fees and taxable costs and its motion for post-trial discovery is
one fact State Farm misapprehends: State Farm has no judgment for attorney’s fees
or taxable costs. The court entered orders awarding State Farm attorney’s fees and
taxable costs. (Docs. 175, 177, 190). An order awarding attorney’s fees or taxable
costs is not a judgment; therefore, a writ of execution and post-trial discovery is
unavailable. See In re Moore, 88 B.R. 385, 386 (Bankr. M.D. Fla. 1988) (concluding
that a writ of execution is unavailable to enforce an order awarding attorney’s fees).
State Farm has a non-money judgment. (Doc. 145). A writ of execution or posttrial discovery against Ms. Bostick is therefore inappropriate. Further, because it
has a non-money judgment on appeal, State Farm has no amount of money it must
secure pending the appeal. See United States v. O’Callaghan, 805 F. Supp. 2d 1321,
1324 (M.D. Fla. 2011) (discussing how the purpose of bonds under Federal Rule of
Civil Procedure 62 is to secure a judgment during appeal and compensate the
judgment creditor in the event of a loss caused by a stay to enforce judgment); see also
10 James Wm. Moore et al., Moore’s Federal Practice, § 308.10 (3d ed. 2017)
(discussing Federal Rule of Appellate Procedure 8, and stating that, “[u]nless stayed,
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a judgment awarding money or property may be executed upon notwithstanding that
an appeal is pending”) (footnote omitted).
The cases from this circuit State Farm cited in its motion involved money
judgments or judgments for attorney’s fees—not orders granting attorney’s fees or
expenses.
Moore v. Appliance Direct, Inc. No. 6:09-CV-224-Orl-GJK, 2013 WL
12336219 (M.D. Fla. Feb. 26, 2013) (permitting discovery in aid of money judgment);
Nat’l Serv. Indus., Inc. v. Vafla Corp., 694 F.2d 246, 250 (11th Cir. 1982) (affirming
district court’s decision to compel post-trial discovery in aid of money judgment); Am.
Honda Motor Co., Inc. v. Motorcycle Info. Network, Inc., No. 5:04-CV-12-Oc-10GRJ,
2009 WL 10675487 (M.D. Fla. Aug. 3, 2009) (permitting post-trial discovery in aid of
judgment for attorney’s fees). State Farm’s attempt to apply Federal Rule of Civil
Procedure 69 to an order—not a judgment—is unavailing. Therefore, State Farm’s
motion to compel post-trial discovery and for a writ of execution granting broad
discovery authority is denied.
III.
CONCLUSION
Ms. Bostick need not comply with the orders awarding attorney’s fees and
taxable costs to State Farm at this time because those orders may be reversed. And
State Farm is not entitled to conduct post-trial discovery or a writ of execution
because it has no money judgment for attorney’s fees or taxable costs. Therefore, the
following is ORDERED:
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1.
State Farm’s motion to compel compliance with the orders awarding
State Farm attorney’s fees and taxable costs (Doc. 205) is DENIED
without prejudice.
2.
State Farm’s motion to compel post-trial discovery and for a writ of
execution granting broad discovery authority (Doc. 209) is DENIED
without prejudice.
ENTERED in Tampa, Florida, on December 3, 2018.
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