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FTBB, LLC v. Hyman

United States District Court, M.D. Florida, Tampa Division

March 29, 2018

FTBB, LLC, Plaintiff,
v.
LARRY S. HYMAN, assignee for G3 Tampa, LLC, a Florida limited liability company, et al., Defendants.

          ORDER

          ELIZABETH A. KOVACHEVICH, United States District Judge.

         This cause is before the Court on:

Dkt. 588 Unopposed Motion for Order Reinstating Stipulated Motion for Final Judgment in Garnishment Nunc Pro Tunc (FTBB, LLC)
Dkt. 589 Motion to Intervene (Travelers)
Dkt. 601 Order Granting Motion to Intervene
Dkt. 602 Response (Travelers)
Dkt. 603 Order Granting Unopposed Motion (Dkt. 588)
Dkt. 604 Motion for Reconsideration re Order on Motion for Miscellaneous Relief, or, Alternatively, Motion for Clarification (Travelers)
Dkt. 606 Response (FTBB, LLC)

         Intervenor Travelers Casualty and Surety Company of America seeks reconsideration or clarification of the Court's Order (Dkt. 603), which granted Plaintiff FTBB, LLC's Unopposed Motion for Order Reinstating Stipulated Motion for Final Judgment in Garnishment Nunc Pro Tunc. Intervenor Travelers submits that the Court should vacate the Order, void the purported assignment to FTBB, LLC of Regions' lien position to the Interpled Funds, prohibit FTBB, LLC from asserting a priority lien position, deny FTBB, LLC's Motion to Reinstate, and grant Travelers a superior lien position to the Interpled Funds. In the alternative, Intervenor Travelers requests that the Court clarify the Order to expressly state that it is not making any determination as to the priority of Travelers vs. FTBB, but is leaving that issue for the State Court to decide. (Dkt. 604).

         A. Background

         On September 17, 2014, Trustee Larry S. Hyman was served with a Writ of Garnishment by Regions Bank in Case No. 13-CA-010851, Hillsborough County Circuit Court. That case is styled “Regions Bank v. Larry S. Hyman, assignee for G3 Tampa, LLC, et al, a Florida limited liability company, Bing Charles W. Kearney, Jr., Brian Seeger, Tracy J. Harris, Jr. and Gregory Bennett.” On March 17, 2015, Trustee Larry S. Hyman was served with a Writ of Garnishment by Regions Bank in this case.

         On March 31, 2015, Trustee Larry S. Hyman was served with a Writ of Garnishment by Travelers Casualty and Surety Company of America, in Case No. 8:09-CV-1850-T-30TBM.

         Trustee Larry S. Hyman answered the three Writs of Garnishment, stating that he was indebted to Mr. Kearney and Mr. Seeger for the Administrative Claim, but the amount of the Administrative Claim to be awarded was not known at that time. (Dkts. 602-18, 602-4, 517)

         The Court's previous Order (Dkt. 603) relates to FTBB, LLC's Stipulated Motion for Final Judgment in Garnishment (Dkt. 560) as to funds distributed pursuant to the Order of the Bankruptcy Court dated April 28, 2015 in Case No. 8:09-BK-11791-CED, which approved the Trustee's Motion to Approve Final Distributions and directed the Trustee to file an Interpleader action to resolve the competing claims to the final distribution of $72, 918. Post-confirmation Trustee Larry S. Hyman filed an Interpleader Case in Hillsborough County Circuit Court, Case No. 15-CA-004075 (Dkt. 602-7), and deposited the funds ($72, 918.00) into the registry of the Court on June 15, 2015. The Interpleader Complaint named Regions Bank, Travelers Casualty and Surety Company of America, Pine Cone Management, LLC, the Law Office of William Collins, P.A., Bing Charles W. Kearney, Jr. and Brian Seeger as Defendants. FTBB, LLC was later substituted for Regions Bank as party Defendant in the Interpleader case.

         On May 22, 2015, FTBB, LLC filed a Stipulated Motion for Final Judgment in Garnishment as to those funds. (Dkt. 560). The Court deferred ruling. (Dkt. 563). FTBB, LLC then withdrew the Stipulated Motion for Final Judgment, stating “The Parties will re-file their Stipulated Motion for Final Judgment in Garnishment in the State Court Interpleader action.” (Dkt. 564). On June 8, 2015, the Court stayed the Garnishment proceeding in this case as to the $72, 918.00, pending a final determination in Case 15-CA-004075. (Dkt. 572).

         On March 28, 2016, Travelers filed its Motion for Final Summary Judgment in Garnishment in the Interpleader case.

         On May 25, 2016, FTBB, LLC filed its Unopposed Motion for Order Reinstating Stipulated Motion for Final Judgment in Garnishment Nunc Pro Tunc pursuant to Rule 60 and the Court's inherent authority, because Travelers moved for summary judgment on its request for a Final Judgment in Garnishment in the Interpleader case. (Dkt. 588).

         Travelers moved to intervene to respond to FTBB, LLC's Motion for Order Reinstating Stipulated Motion. (Dkt. 589). The Court granted the Motion. (Dkt. 601).

         FTBB, LLC opposes the Motion for Reconsideration or Clarification.

         B. Standard of Review

         The decision to grant a motion for reconsideration is within the sound discretion of the trial court and will only be granted to correct an abuse of discretion. Region 8 Forest Serv. Timber Purchases Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993). There are three bases for reconsidering an order: “ (1) an intervening change in controlling law; (2) availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994). See also Lamar Adver. of Mobile, Inc. v. City of Lakeland, 189 F.R.D. 480, 489 (M.D. Fla. 1999).

         Furthermore, a motion for reconsideration does not provide an opportunity to simply reargue, or argue for the first time, an issue the Court has once determined. Court opinions are “not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure.” Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988). The reconsideration of a previous order is an “extraordinary remedy” and “must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” Ludwig v. Liberty Mutual Fire Ins. Co., 2005 WL 1053691 (citing Lamar, 189 F.R.D. at 489 (M.D. Fla. 1999)).

         II. Discussion

         The Court treated FTTB, LLC's Motion as if the motion were unopposed, without considering Travelers' Response, and without a Rule 60(b) analysis. However, the Court had granted intervention to Travelers to permit Travelers to file the response in opposition. For this reason alone, the Court grants the Motion for Reconsideration, and vacates the prior Order. (Dkt. 603).

         A. Standard of Review

         To prevail on a motion under Rule 60(b), the movant must demonstrate a justification for relief so compelling that the district court would be required to grant the motion. See Rice v. Ford Motor Co., 88 F.3d 914, 919 (11th Cir. 1996). Relief under Rule 60(b)(6) “is an extraordinary remedy which may be invoked only upon a showing of exceptional circumstances.” Griffin v. Swim-Tech Corp., 772 F.2d 677, 680 (11th Cir. 19084)(citing Ackermann v. United States, 340 U.S. 193, 202 (1950)). “The party seeking relief has the burden of showing that absent relief, an ‘extreme' and ‘unexpected' hardship will result.” Id. (quoting United States v. Swift & Co., 286 U.S. 106, 119 (1932)). The Court may only consider relief under Rule 60(b)(6) if the case does not fall into any of the categories listed in Rule ...


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