The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GOVERNMENT EMPLOYEES
INSURANCE CO., GEICO
INDEMNITY CO. and GEICO
GENERAL INSURANCE COMPANY,
Plaintiffs,
v. Case No: 8:19-cv-1950-KKM-JSS
GLASSCO INC., JASON WILEMON,
JOHN BAILEY and ANDREW
VICTOR,
Defendants.
___________________________________/
REPORT AND RECOMMENDATION
Following the Eleventh Circuit’s opinion and mandate dismissing Plaintiffs’
appeal in this matter for lack of jurisdiction, the parties renew their motions asking the
court to determine their entitlement to attorneys’ fees and costs. (Dkts. 227, 2281, 229,
230, 233, 243) (collectively, the Renewed Fees Motions).2 Plaintiffs oppose
Defendants’ renewed motions (Dkts. 237, 238, 239, 244) and Defendants Glassco Inc.
(Glassco) and John Bailey oppose Plaintiffs’ renewed motion (Dkts. 241, 242). The
Eleventh Circuit also transferred to this court Defendants’ motion for an award of
appellate attorneys’ fees (Dkt. 224) (Appellate Fees Motion), which Plaintiffs oppose
1 Defendant Glassco, Inc. filed a renewed motion (Dkt. 227) and an amended renewed motion to
correct the date of its certificate of service. (Dkt. 228.)
2 Defendants have also filed proposed bills of costs. (Dkts. 226, 231, 234.)
(Dkt. 225). (Dkt. 223.) Upon consideration, and for the reasons that follow, the
undersigned recommends that the Renewed Fees Motions and the Appellate Fees
Motion be denied without prejudice.
BACKGROUND
Plaintiffs (GEICO) bring this action against Glassco and its owners (together,
Defendants) alleging that Defendants submitted fraudulent claims to GEICO for
reimbursement on windshield repairs. (Dkt. 1.) Glassco also asserted four
counterclaims against GEICO, alleging that GEICO engaged in unlawful price-fixing.
(Dkt. 65.) On September 2, 2021, the court granted GEICO’s motion to dismiss
Glassco’s counterclaims. (Dkt. 147.)
On September 24, 2021, the court granted in part and denied in part Defendants’
motions for summary judgment and denied GEICO’s motion for summary judgment.
(Dkt. 148.) In its order, the court denied Defendants’ motions for summary judgment
with respect to GEICO’s claims alleging fraudulent and deceptive practices
independent of GEICO’s claims arising under the Florida Motor Vehicle Repair Act.
(Id. at 62–63.) The court further denied GEICO’s motion for reconsideration of the
summary judgment order. (Dkt. 158.) Thus, certain of GEICO’s fraud-related claims
and allegations remained pending before the court.
On March 9, 2022, the court granted GEICO’s motion for leave to amend the
Complaint to remove its remaining fraud-related claims, directed entry of the amended
complaint removing those claims, and directed entry of final judgment in favor of
Defendants so that GEICO could perfect an immediate appeal. (Dkts. 183, 184, 185.)
The parties thereafter filed various motions seeking entitlement to attorneys’ fees and
costs. (Dkts. 189, 190, 191, 192, 193.) On March 24, 2022, GEICO filed a Notice of
Appeal as to the final judgment and the court’s decisions on various dispositive
motions throughout the case. (Dkt. 195.) On May 18, 2022, the court denied without
prejudice the parties’ attorneys’ fees and costs motions and directed that the parties
may refile their fees motions within 30 days after the Eleventh Circuit’s mandate issues
on GEICO’s appeal. (Dkt. 204.)
On February 6, 2023, the Eleventh Circuit issued an opinion finding that it
lacked jurisdiction over GEICO’s appeal because GEICO’s fraud-related allegations
had not been completely removed from the Amended Complaint and this court had
therefore not rendered an appealable final decision. (Dkt. 205.) Following the
Eleventh Circuit’s mandate (Dkt. 211), the court granted GEICO leave to file a second
amended complaint that removed the remaining fraud-related allegations and directed
entry of judgment in favor of Defendants based on GEICO’s Second Amended
Complaint. (Dkts. 220, 221, 222.) In accordance with the court’s prior order denying
their initial fees motions (Dkt. 204), the parties thereafter filed the Renewed Fees
Motions (Dkts. 227, 228, 229, 230, 233, 243) and the Eleventh Circuit transferred
Defendants’ Appellate Fees Motion (Dkt. 224) to this court. On March 31, 2023,
GEICO filed a notice of appeal of the court’s March 2023 final judgment (Dkt. 222),
the court’s March 2022 judgment (Dkt. 185), and the court’s decisions on various
dispositive motions throughout the case, including docket numbers 59, 148, 158. (Dkt.
232.)
APPLICABLE STANDARDS
Generally, the filing of a notice of appeal divests a district court of jurisdiction
on any matter involved in the appeal. In Green Leaf Nursery v. E.I. DuPont de Nemours
& Co., 341 F.3d 1292, 1309 (11th Cir. 2003). However, the district court may retain
jurisdiction to consider motions on matters that are collateral to the matters on appeal.
Mahone v. Ray, 326 F.3d 1176, 1179 (11th Cir. 2003). Specifically, the district court
may entertain a motion for attorneys’ fees after a notice of appeal has been filed in the
underlying case. Briggs v. Briggs, 260 F. App’x 164, 165 (11th Cir. 2007) (citing
Rothenberg v. Sec. Mgmt. Co., 677 F.2d 64, 65 (11th Cir. 1982)).
Alternatively, the court has discretion to deny a motion for attorneys’ fees
without prejudice with leave to re-file after the appeal has concluded. See Fed. R. Civ.
P. 54(d) advisory committee’s note to 1993 amendment (providing that “[i]f an appeal
on the merits of the case is taken, the court may rule on the claim for fees, may defer
its ruling on the motion, or may deny the motion without prejudice, directing under
subdivision (d)(2)(B) a new period for filing after the appeal has been resolved”); see
also Universal Physician Servs., LLC v. Del Zotto, No. 8:16-cv-1274-T-36JSS, 2020 WL
886867, at *1 (M.D. Fla. Feb. 24, 2020); Short v. Immokalee Water & Sewage Dist., No.
2:18-cv-124-FtM-38CM, 2019 WL 8370780, at *1 (M.D. Fla. July 10, 2019) (“The
district court may also deny a motion for attorneys’ fees without prejudice with leave
to refile after the appeal has concluded.”); The Indigo Room, Inc. v. City of Fort Myers,
No. 2:12-cv-39-FtM-38CM, 2014 WL 1174355, at *1 (M.D. Fla. Mar. 21, 2014)
(denying motion for attorneys’ fees without prejudice and with leave to re-file after
entry of appellate court’s mandate); Southern-Owners Ins. Co. v. Wall 2 Walls Constr.,
LLC, No. 8:12-cv-1922-T-33TBM, 2013 WL 6893254, at *1 (M.D. Fla. Dec. 31, 2013)
(same).
ANALYSIS
Rather than resolving the Renewed Fees Motions (Dkts. 227, 228, 229, 230,
233, 243) and Defendants’ Appellate Fees Motion (Dkt. 224) during the pendency of
GEICO’s current appeal, the ends of justice are best served by denying the motions
without prejudice with leave to re-file after the conclusion of the appeal. See, e.g.,
Bowers v. Universal City Dev. Partners, Ltd., No. 6:03-cv-985-Orl-18JGG, 2005 WL
1243745, at *2 (M.D. Fla. May 19, 2005) (stating that “[i]f the district court were to
resolve the fee and cost issue while an appeal remains pending, it would be asked to
repeat the procedure following the appeal”); Pinto v. Rambosk, No: 2:19-cv-551-JLB-
MRM, 2021 WL 4263404, at *2 (M.D. Fla. Sept. 20, 2021) (“Notably, courts routinely
defer ruling on motions for attorney’s fees and costs pending appeal in the interest of
judicial economy.”) (collecting cases). Given the procedural posture of the case,
immediate resolution of the Renewed Fees Motions and Defendants’ Appellate Fees
Motion is unwarranted. See Hess v. Coca-Cola Refreshments USA, Inc., No. 8:13-cv-3136-
T-33EAJ, 2016 WL 99567, at *1 (M.D. Fla. Jan 8, 2016) (“Immediate resolution of
the collateral issues of taxable costs and attorneys’ fees and costs is unlikely to assist
the Court of Appeals, and attorneys’ fees and costs are often resolved in appellate
mediation.”); U.S. ex rel. Ragghianti Founds. III, LLC v. Peter R. Brown Constr., Inc., No.
8:12-cv-942-T-33MAP, 2014 WL 5307490, at *1 (M.D. Fla. Oct. 16, 2014)
(“Resolving [Defendant’s] Motion and Proposed Bill of Costs while the present appeal
remains pending would require the Court to engage in piecemeal adjudication of costs,
as the Court would be asked to repeat the procedure following the appeal.”); Mock v.
Bell Helicopter Textron, Inc., No. 6:04-cv-1415, 2010 WL 5209307, at *1–2 (M.D. Fla.
Oct. 8, 2010) (“Determination of that appeal, regardless of its outcome, will greatly
affect consideration of the fee motion and provide guidance as to whether prior
analysis is appropriate. Thus, any time spent analyzing the fee request at this juncture
would likely be wasted.”), report and recommendation adopted, 2010 WL 5209304 (M.D.
Fla. Dec. 16, 2010); Quigley v. Gov’t Emps. Ins. Co., No. 8:03-cv-1349-T-26EAJ, 2008
WL 384561, at *1 (M.D. Fla. Feb 11, 2008) (denying motion for appellate fees and
award of attorneys’ fees and costs without prejudice while appeal remained pending).
Similarly, although GEICO has not appealed the court’s order dismissing
Glassco’s counterclaims (Dkt. 147), which forms part of the basis for GEICO’s
renewed fees motion (Dkt. 229), the interests of justice, efficiency, and judicial
economy are best served by denying GEICO’s renewed fees motion without prejudice
and resolving all attorneys’ fees motions together following the conclusion of the
appeal.3 See, e.g., United States ex rel. GLF Constr. Corp. v. FEDCON Joint Venture, No.
8:17-cv-1932-CEH-AAS, 2021 WL 1186839, at *2 (M.D. Fla. Mar. 30, 2021) (“Courts
3 In its renewed motion, GEICO asserts that “all parties’ entitlement to attorneys’ fees should be
decided following the resolution of Plaintiffs’ [] renewed appeal,” but states that it is filing the renewed
motion to comply with the court’s prior order regarding the original fees motions (Dkt. 204). (Dkt.
229 at 2–3.)
have cited concerns such as having to repeat the attorney’s fees and costs procedure
following appeal, the desire to avoid piecemeal adjudication, that resolution is unlikely
to assist the Eleventh Circuit, and that attorney’s fees and costs issues are often
resolved during appellate mediation.”), reconsideration denied, 2021 WL 2109074 (M.D.
Fla. May 25, 2021); Short, 2019 WL 8370780, at *1 (“Because Short’s appeal is
pending, the Court denies the motions for attorney’s fees.”).
Accordingly, itis RECOMMENDED that the Renewed Fees Motions (Dkts.
227, 228, 229, 230, 233, 243) and Defendants’ Appellate Fees Motion (Dkt. 224) be
DENIED without prejudice and with leave to re-file the motions, proposed bills of
costs, or both, within 30 days of the entry of a mandate by the Eleventh Circuit Court
of Appeals on GEICO’s pending appeal.
IT IS SO REPORTED in Tampa, Florida, on April 27, 2023.
f ee
st 5. SHEED —
UNITED STATES MAGISTRATE JUDGE
NOTICE TO PARTIES
A party has 14 days from this date to file written objections to the Report and
Recommendation’s factual findings and legal conclusions. A party’s failure to file
written objections waives that party’s right to challenge on appeal any unobjected-to
factual finding or legal conclusion the district judge adopts from the Report and
Recommendation. See 11th Cir. R. 3-1.
-7-
Copies furnished to:
The Honorable Kathryn Kimball Mizelle
Counsel of Record