Marseilles Capital, LLC v. Gerova Financial Group, Ltd

Filing 113

ORDER granting 82 Motion for Attorney Fees. Please see Order for details. Signed by Judge James I. Cohn on 9/28/2011. (awe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 10-81294-CIV-COHN-SELTZER
MARSEILLES CAPITAL, LLC,
Plaintiff,
v.
GEROVA FINANCIAL GROUP, LTD.,
a Cayman Islands corporation,
Defendant.
____________________________________/
ORDER GRANTING REQUEST FOR ATTORNEY’S FEES
THIS CAUSE is before the Court on Garnishee Brevet Capital Management,
LLC’s (“Brevet’s”) request for attorney’s fees [DE 82]. The Court has considered the
request, Plaintiff’s Reply [DE 92], and the record in this case, and is otherwise advised
in the premises.
On May 12, 2011, the Court granted Plaintiff’s Motion for Final Summary
Judgment [DE 48] and entered Final Judgment in favor of Plaintiff [DE 49]. On June
28, 2011, Plaintiff filed a Motion to Issue Writ of Garnishment [DE 76] and Writ of
Garnishment [DE 77] against Brevet.
On July 18, 2011, Brevet filed its Answer to Writ of Garnishment [DE 82], stating
that it “was not indebted to defendant [Gerova] for any sum of money,” DE 82 ¶ 1, it
“has no other goods, money effects, or other tangible or intangible property of Debtor in
its possession or control,” id. ¶ 2, and it “otherwise denies possessing any garnishable
property of Debtor,” id. ¶ 3. Brevet further states that it “knows of no person who may
be indebted to or who has possession or control of any tangible or intangible personal
property of Debtor.” Id. ¶ 4. Additionally, in its Answer, Brevet requests that the Court

“direct the clerk to disburse the $100 to Garnishee deposited pursuant to § 77.28,
Florida Statutes, to enter judgment for all additional costs and attorneys’ fees incurred
by Garnishee against the party liable, for the dissolution of the writ of garnishment, and
for all such other and further relief this Honorable Court deems just and proper.” Id. at
2.
In Plaintiff’s Reply, Plaintiff notes that Gerova “has failed to cooperate with any
discovery in aid of execution in this matter . . . [Plaintiff] lacks information to admit or
deny the allegations contained in Brevet’s Answer . . . and therefore must deny each
and every allegation contained therein, upon information and belief.” DE 92 ¶ 1. Thus,
Plaintiff objets to the entry of a judgment for additional costs and attorney’s fees.
Pursuant to Florida Statutes § 77.28, the $100 Plaintiff deposited in the registry
of the Court “shall be paid to the garnishee on the garnishee’s demand at any time after
the service of the writ for the payment or part payment of his or her attorney’s fee which
the garnishee expends . . . in obtaining representation in response to the writ.” Fla.
Stat. § 77.28. Consequently, Brevet is entitled to payment of the $100 deposited with
the registry of the Court.
Second 77.28 also provides as follows:
On rendering final judgment, the court shall determine the garnishee’s costs
and expenses, including a reasonable attorney’s fee, and in the event of a
judgment in favor of the plaintiff, the amount shall be subject to offset by the
garnishee against the defendant whose property or debt owing is being
garnished. In addition, the court shall tax the garnishee’s costs and
expenses as costs. Plaintiff may recover in this manner the sum advanced
by plaintiff and paid into registry of court, and if the amount allowed by the
court is greater than the amount of the deposit, together with any offset,
judgment for the garnishee shall be entered against the party against whom
the costs are taxed for the deficiency.
Fla. Stat. § 77.28. Other than Plaintiff’s lack of knowledge, Plaintiff has provided no

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reason for the Court to deny Brevet’s request to grant additional attorney’s fees and
costs or to dissolve the writ. In its Reply, Plaintiff noted that it had filed a Motion to
Compel [DE 81] regarding discovery in aid of execution, but Judge Seltzer has since
denied that motion [DE 107], noting “Plaintiff, of course, is free to re-notice the
deposition of Gerova’s corporate representative.” DE 107 at 4. To date, there is still no
indication on the record that Gerova’s corporate representative’s deposition has taken
place or that Plaintiff has re-noticed this deposition. Therefore, despite Plaintiff’s
objection, it is hereby
ORDERED AND ADJUDGED that Garnishee Brevet Capital Management, LLC’s
request for attorney’s fees [DE 82] is GRANTED. The Clerk of Court is DIRECTED to
disburse $100 from the registry of the Court to Brevet Capital Management, LLC,
payable to Quarles & Brady LLP. It is further
ORDERED AND ADJUDGED that the Writ of Garnishment against Garnishee
Brevet Capital Management, LLC’s [DE 77] is DISSOLVED, and Garnishee Bank of
America, N.A. is DISCHARGED from further liability under the Writ. It is further
ORDERED AND ADJUDGED that to the extent Brevet seeks additional
attorneys fees and costs, Brevet may file a motion and proposed order for such fees
and costs in accordance with the Federal Rules and Local Rules.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 28th day of September, 2011.

Copies provided to:
Counsel of record via CM/ECF

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