Aubrey et al v. D Magazine Parners, L.P. et al

Filing 124

ORDER denying 123 Motion for Reconsideration. Signed by Judge Beth Bloom on 11/13/2018. See attached document for full details. (ar2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 18-cv-61117-BLOOM/Valle
STEVEN BENTON AUBREY and
BRIAN EDWARD VODICKA,
Plaintiffs,
v.
D MAGAZINE PARTNERS, L.P. d/b/a
D MAGAZINE; MAGAZINE
LIMITED PARTNERS, L.P.; ALLISON
MEDIA, INC.; JAMIE L. THOMPSON;
ROBERT L. ERMATINGER, JR;
SCOTT ROBERT SAYERS; STEPHEN
CHARLES SCHOETTMER; ERIC
VAUGHN MOYE; DALLAS POLICE
DEPARTMENT; CITY OF DALLAS;
MELINDA CHRISTINE URBINA;
DALLAS COUNTY SHERIFF’S
DEPT.; DALLAS COUNTY, TEXAS;
and DOES 1–10, all of whose true
names are unknown,
Defendants.
________________________________/
ORDER DENYING MOTION FOR RECONSIDERATION
THIS CAUSE is before the Court upon Plaintiffs’ Motion for Reconsideration of Rule 4
Expenses, ECF No. [123] (“Motion”). In their Motion, Plaintiffs argue that the Court erred in
ruling that it could not grant relief after finding that no personal jurisdiction exists over the
Defendants in this case. ECF No. [122] (“Order”). The Court has carefully reviewed the
Motion, the record in this case and the applicable law, and is otherwise fully advised. For the
reasons set forth below, the Motion is denied. 1

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The Court notes that in addition, Plaintiffs failed to confer under Local Rule 7.1 prior to filing
the Motion, and it is thus due to be denied upon this basis alone.

Case No. 18-cv-61117-BLOOM/Valle
A motion for reconsideration requests the Court to grant “an extraordinary remedy to be
employed sparingly.” Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1370
(S.D. Fla. 2002). A party may not use a motion for reconsideration to “relitigate old matters,
raise argument or present evidence that could have been raised prior to the entry of judgment.”
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (quoting Michael Linet,
Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005)). “This prohibition
includes new arguments that were ‘previously available, but not pressed.’” Id. (quoting Stone v.
Wall, 135 F.3d 1438, 1442 (11th Cir. 1998) (per curiam).
Within this framework, however, a court may grant reconsideration when there is (1) an
intervening change in controlling law, (2) the availability of new evidence, and (3) the need to
correct clear error or prevent manifest injustice. Hood v. Perdue, 300 F. App’x 699, 700 (11th
Cir. 2008). Thus, a motion to reconsider is “appropriate where, for example, the Court has
patently misunderstood a party, or has made a decision outside the adversarial issues presented to
the Court by the parties, or has made an error not of reasoning but of apprehension.” Kapila v.
Grant Thornton, LLP, No. 14-61194-CIV, 2017 WL 3638199, at *1 (S.D. Fla. Aug. 23, 2017)
(quoting Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992) (internal
quotation marks omitted).
On reconsideration, Plaintiffs argue that under Rule 4 of the Federal Rules of Civil
Procedure, the Court was bound to award Plaintiffs the expenses incurred with respect to serving
Defendants Schoettmer and Moyé, after Defendants failed to waive formal service of process. In
addition, Plaintiffs state that the “good cause” required to justify such a waiver “does not include
the belief that a lawsuit is groundless, or that is has been brought in an improper venue, or that
the court has no jurisdiction over this matter or over the defendant or the defendant’s property.”

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Case No. 18-cv-61117-BLOOM/Valle
Mot., ECF No. 123 at 1-2; Fed. R. Civ. P. 4, Form Notice of a Lawsuit and Request to Waive
Service of Summons. Upon review, Plaintiffs’ Motion fails.
First, Plaintiffs fail to address any of the three potential grounds justifying
reconsideration, arguing simply that the Court erred. Therefore, Plaintiffs fail to set forth any
ground warranting reconsideration.

Second, while the Court acknowledges that Rule 4

incorporates a form waiver with language regarding what may or may not constitute “good
cause” for a defendant’s failure to waive service, Rule 4 does not—and cannot—alter the scope
of the Court’s personal jurisdiction over Defendants. “As a general rule, courts should address
issued relating to personal jurisdiction before reaching the merits of a plaintiff’s claims.”
Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 940 (11th Cir. 1997)
(citations omitted). This is so because “[a] defendant that is not subject to the jurisdiction of the
court cannot be bound by its rulings.” Id. (citing Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.
1990)). Plaintiffs fail to cite any authority that would permit the Court to adjudicate their request
for costs, when it has previously found that personal jurisdiction is lacking. See, e.g. Smith v.
Conner, 2013 WL 1482761, at *2 (M.D. Fla. Apr. 10, 2013) (“It is elementary that without in
personam jurisdiction, a court has no power to adjudicate a claim or obligation of that person . . .
If a court acts without personal jurisdiction, any judgment or order it renders is null and void.”
(citation omitted)); Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1214 n.6 (11th Cir. 1999) (“A
Court without personal jurisdiction is powerless to take further action.”).
Accordingly, it is ORDERED AND ADJUDGED that the Motion, ECF No. [123], is
denied.

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Case No. 18-cv-61117-BLOOM/Valle
DONE AND ORDERED in Chambers at Miami, Florida, this 13th day of November,
2018.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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