Olem Shoe Corporation v. Washington Shoe Corporation

Filing 553

ORDER requiring supplemental briefing on the issue of jurisdiction re: 525 MOTION to Alter Judgment filed by Olem Shoe Corporation. Signed by Magistrate Judge John J. O'Sullivan on 1/28/2013. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-23494-CIV-HUCK/O’SULLIVAN
OLEM SHOE CORP.,
a Florida corporation,
Plaintiff,
v.
WASHINGTON SHOE CO.,
a Washington corporation,
Defendant.
_________________________/
ORDER
THIS CAUSE comes before the Court on Olem Shoe Corp.’s Motion for Relief
from Judgment and Motion for Sanctions Pursuant to Fed. R. Civ. P. 56(h) & the
Court’s Inherent Power (DE# 525, 10/30/12). This case is presently pending before the
United States Court of Appeals for the Eleventh Circuit. See Washington Shoe
Company’s Notice of Appeal (DE# 452, 3/1/12); Olem Shoe Corp.’s Notice of CrossAppeal (DE# 456, 3/8/12). “As a general matter, the filing of a notice of appeal deprives
the district court of jurisdiction over all issues involved in the appeal . . . [but] does not
prevent the district court from taking action in furtherance of the appeal . . . [or] from
entertaining motions on matters collateral to those at issue on appeal.” Mahone v. Ray,
326 F.3d 1176, 1180 (11th Cir. 2003) (citations and internal quotation marks omitted);
The undersigned has reviewed the instant motion and the relevant documents related
to the instant motion and notes that there appears to be significant overlap between
issues before this Court and those raised on appeal before the Eleventh Circuit and that
the rulings made by the Eleventh Circuit may affect this Court’s disposition of the
instant motion and vice versa. See Dayton Indep. Sch. Dist. v. U.S. Mineral Prods. Co.,

906 F.2d 1059, 1063 (5th Cir.1990) (stating that “[w]hen one aspect of a case is before
the appellate court on interlocutory review, the district court is divested of jurisdiction
over that aspect of the case. A district court does not have the power to alter the status
of the case as it rests before the Court of Appeals.”)1 (citations and internal quotation
marks omitted). Neither party has addressed the issue of jurisdiction in their filings
before this Court. Accordingly, it is
ORDERED AND ADJUDGED that on or before Thursday, February 14, 2013,
the plaintiff shall file a memorandum of law addressing: (1) why the District Court has
jurisdiction to hear the matters raised in Olem Shoe Corp.’s Motion for Relief from
Judgment and Motion for Sanctions Pursuant to Fed. R. Civ. P. 56(h) & the Court’s
Inherent Power (DE# 525, 10/30/12) and (2) even if this Court has jurisdiction to hear
the instant motion, the memorandum should address why, in the interest of judicial
economy, the undersigned should not recommend that a stay be issued pending the
outcome of the appeal. If the defendant disagrees with the position taken by the plaintiff
in its memorandum of law, the defendant shall file a response on or before Monday,
February 25, 2013. A reply memorandum may be filed no later than Thursday, March
7, 2013.
DONE AND ORDERED, in Chambers, at Miami, Florida, this 28th day of
January, 2013.

JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
United States District Judge Huck
All Counsel of Record

1

The appeal in the instant case is not an interlocutory appeal. Nonetheless, the
principles underlying the Dayton case apply here.
2