United States District Court, M.D. Florida, Tampa Division
ELIZABETH A. KOVACHEVICH, United States District Judge.
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
Dkt. 606 Response (FTBB, LLC)
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.
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.
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.
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)
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.
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.
March 28, 2016, Travelers filed its Motion for Final Summary
Judgment in Garnishment in the Interpleader case.
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).
moved to intervene to respond to FTBB, LLC's Motion for
Order Reinstating Stipulated Motion. (Dkt. 589). The Court
granted the Motion. (Dkt. 601).
LLC opposes the Motion for Reconsideration or Clarification.
Standard of Review
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.
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)).
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).
Standard of Review
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