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Montgomery Bank, N.A. v. Pike Creek Turf Farms, Inc.

United States District Court, M.D. Florida, Fort Myers Division

April 7, 2017

MONTGOMERY BANK, N.A., Plaintiff,
v.
PIKE CREEK TURF FARMS, INC., LEE COUNTY, SOUTHERN GULF EQUIPMENT RENTAL & SALES, INC., RIVERBEND HOMEOWNERS ASSOCIATION OF LEE COUNTY, INC. and FLORIDA DEPARTMENT OF REVENUE, Defendants.

          OPINION AND ORDER [1]

          SHERI POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff Montgomery Bank, N.A.'s (“Montgomery Bank”) Unopposed Motion for Reconsideration (Doc. 94) filed on March 3, 2017. The Court has reviewed Montgomery Bank's Response to the Court's Show Cause Order, which was filed on March 3, 2017. (Doc. 95). Finally, the Court has reviewed Montgomery Bank's Agreed Motion to Alter or Amend Judgment of Dismissal, which was filed on March 20, 2017. (Doc. 102). These matters are ripe for review.

         BACKGROUND

         This is a foreclosure action that centers on a mortgage lien on real property located in Lee County, Florida. On March 3, 2016, Montgomery Bank filed a Complaint against Thomas P. Hoolihan, Jr., Kerrey R. Hoolihan, Riverbend Golf & Country Club, Inc. (“Riverbend”), Vision One Management Group, Inc. (“Vision One”), Pike Creek Turf Farms, Inc. (“Pike Creek”), Lee County, the State of Florida, Southern Gulf Equipment Rental & Sales, Inc. (“Southern Gulf”), and Riverbend Homeowners Association of Lee County, Inc. (Doc. 1). Though Montgomery Bank issued a summons for each Defendant named in the Complaint, Pike Creek, Southern Gulf, Riverbend, and Vision One all failed to respond. (Docs. 2, 3, 4, 5, 6, 7, 8, 9, 10).

         Pursuant to a motion filed by Montgomery Bank (Doc. 27), a Clerk's Default was entered against Pike Creek and Southern Gulf on April 29, 2016. (Doc. 34). Montgomery Bank then moved for, and was granted, a Clerk's Default against Riverbend and Vision One. (Doc. 60). The latter Clerk's Default against Riverbend and Vision One, however, was set aside. (Doc. 73).

         On October 26, 2016, Montgomery Bank filed an Amended Complaint, substituting the State of Florida as a party for the Florida Department of Revenue (“FDOR”). (Doc. 77). Montgomery Bank did not immediately attempt to serve FDOR.

         Later, on February 23, 2017, Montgomery Bank filed a Notice of Settlement and Joint Motion to Retain Jurisdiction. (Doc. 89). The Notice purported to notify the Court of a settlement that had been reached between Montgomery Bank and Thomas P. Hoolihan, Jr., Kerrey R. Hoolihan, Riverbend, and Vision One. (Doc. 89). The text of the Notice asked the Court to “close this case but retain jurisdiction to enforce the terms of the settlement[, ]” and was signed by the relevant attorneys for each party. (Doc. 89).

         Upon review of Montgomery Bank's Notice, the Court undertook a review of the docket and observed two deficiencies. First, FDOR had not been served. Second, Montgomery Bank had not moved for a default judgment against Pike Creek or Southern Gulf even though it had been nearly a year since Clerk's Defaults were entered against them. As a result, the Court issued an Order to Show Cause to Montgomery Bank as to why its claims against those Defendants should not be dismissed for failure to effectuate service of process or for failure to prosecute. (Doc. 90).

         With that, the Court turned to Montgomery Bank's Notice of Settlement. Because the Notice “jointly move[d]” the Court to “close [the] case[, ]” and because it was signed by the relevant parties' attorneys, the Court dismissed Montgomery Bank's claims as to Thomas P. Hoolihan, Jr., Kerrey R. Hoolihan, Riverbend, and Vision One. (Doc. 92 at 2). But, the Court declined to retain jurisdiction to enforce the settlement. (Docs. 92 at 2).

         Montgomery Bank now asks the Court to reconsider its dismissal of Thomas P. Hoolihan, Jr., Kerrey R. Hoolihan, Riverbend, and Vision One. (Doc. 94). It has also filed an Agreed Motion to Alter or Amend Judgment of Dismissal, seeking the same relief. (Doc. 102).

         Montgomery Bank did not rest there. It also responded to the Court's Order to Show Cause (Doc. 95), filed a return of service for FDOR (Doc. 91), and moved for a Clerk's Default against FDOR (Doc. 97). United States Magistrate Judge Carol Mirando denied Montgomery Bank's Motion because it did not properly serve FDOR. (Doc. 98). Undeterred, Montgomery Bank filed two more returns of service for FDOR (Docs. 99, 100), and again moved for a clerk's default. (Doc. 101). That motion was again denied because the return of service did not state that Montgomery Bank served FDOR with the Amended Complaint. (Doc. 104 at 2).

         Pending before the Court now are Montgomery Bank's Unopposed Motion for Reconsideration (Doc. 94), its Agreed Motion to Amend Judgment (Doc. 102), and its Response to the Court's Order to Show Cause. (Doc. 95). Each will be addressed in turn.

         DISCUSSION

         A. Montgomery Bank's Motion for Reconsideration

         Montgomery Bank argues in its Motion for Reconsideration that the Court should reconsider its prior order of dismissal because “the Court did not have the benefit of information pertaining to the settlement that it had requested in the Show Cause Order, ” because the parties did not request dismissal, because dismissal was not justified under the circumstances and because dismissal would prejudice Montgomery Bank. (Doc. 94 at 3). The Court finds none of these reasons to warrant reconsideration.

         As an initial matter, Montgomery Bank did not specify the specific procedural rule upon which it premised its Motion for Reconsideration, but while one of the two cases cited, Delaware Valley Floral Grp., Inc. v. Shaw Rose Nets, LLC, 597 F.3d 1374 (Fed. Cir. 2010), was silent on the issue of statutory authority, the other, Frantz v. Walled, 513 F.App'x 815 (11th Cir. 2013), based its ...


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