Federal Trade Commission v. 1st Guaranty Mortgage Corp. et al

Filing 256

ORDER striking 250 Motion to Compel; denying 254 Motion to Set Aside Judgment. Signed by Magistrate Judge John J. O'Sullivan on 5/14/2012. (mms)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO: 09-61840-CIV-SEITZ/O’SULLIVAN
FEDERAL TRADE COMMISSION,
Plaintiff,
vs.
1st GUARANTY MORTGAGE CORP., et al.,
Defendants.
___________________________________/
ORDER
THIS MATTER is before the Court on the Defendant Stephen Lalonde’s Supplemental
Motion to Compel Receiver Broad and Cassel to Preserve and Maintain All Hardware and Other
Items Seized by Named and Non-Named Defendants Along with All Assets (DE# 250,
12/16/11); and the defendant Michael R. Petroski’s Motion to Set Aside Judgment (DE# 254,
2/13/12). Having reviewed the motions and being otherwise duly advised in the premises, it is
ORDERED AND ADJUDGED that the Defendant Stephen Lalonde’s Notice of Appeal
of All Orders up to and Including Appeal of Final Judgment (DE# 224, 8/1/11) divested this
Court of its jurisdiction to rule on the Defendant Stephen Lalonde’s Supplemental Motion to
Compel Receiver Broad and Cassel to Preserve and Maintain All Hardware and Other Items
Seized by Named and Non-Named Defendants Along with All Assets (DE# 250, 12/16/11).
See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (explaining that “a
federal court and a federal court of appeals should not attempt to assert jurisdiction over a case
simultaneously. The filing of a notice of appeal is an event of jurisdictional significance - it
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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”). The Court lacks jurisdiction to resolve the motion
regarding preservation of assets while the appeal is pending. The motion is STRICKEN without
prejudice. It is further
ORDERED AND ADJUDGED that the defendant Michael R. Petroski’s Motion to Set
Aside Judgment (DE# 254, 2/13/12) is DENIED. The motion fails to satisfy the requirements to
have a judgment set aside. This Court previously denied two similar motions seeking relief from
judgment. To obtain relief under Federal Rule of Civil Procedure 60(b)(2), a party must show:
(1) the evidence must be newly discovered since the trial; (2) the movant must
have exercised due diligence in discovering the new evidence; (3) the evidence
cannot be merely cumulative or impeaching; (4) the evidence must be material;
and (5) the new evidence must be such that it would produce a different outcome
in the underlying action.
Kissinger-Campbell v. C. Randall Harrell, 418 Fed. Appx. 797, 804-05 (11th Cir. 2011) (citing
Waddell v. Hendry Co. Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003)). “A motion for
new trial under Rule 60(b)(2) is an extraordinary motion and the requirements of the rule must be
strictly met.” Waddell, 329 F.3d at 1309 (quoting Toole v. Baxter Healthcare Corp., 235 F.3d
1307, 1316 (11th Cir. 2000)). “Finality is a virtue of the law.” Waddell, 329 F.3d at 1309
(footnote omitted). Petroski’s motion fails to satisfy the requirements of Federal Rule of Civil
Procedure 60(b)(2). Thus, the defendant Michael R. Petroski’s Motion to Set Aside Judgment
(DE# 254, 2/13/12) is denied.

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DONE AND ORDERED in Miami, Florida, this 14th day of May, 2012.

___________________________________
JOHN O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies provided to:
All Counsel of Record
Copies provided by Chambers to:
Michael Shafir, Esq.
Broad and Cassell
One Biscayne Tower, 21st Floor
Miami, FL 33131
Counsel for Receiver of
Corporate Defendants
Amy Lalonde
2090 NE 65th Street
Fort Lauderdale, FL 33308

Stephen Lalonde
#501109985
Broward County Main Jail
P.O. Box 9356
Ft. Lauderdale, FL 33310

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Michael Petroski
5161 NE 18th Ave
Fort Lauderdale, FL 33334