The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MANFRED HIRSCH and
ELLEN GIALLONARDO,
Plaintiffs,
v. Case No. 8:25-cv-747-WFJ-AAS
VICTORIA PALERMO, MD, DDS
FLORIDA CRANIOFACIAL
INSTITUTE PA, and FIRST COAST
SERVICES OPTIONS, INC.,
Defendants.
_______________________________________/
ORDER
Plaintiffs Manfred Hirsch and Ellen Giallonardo (collectively, the
plaintiffs) move to amend their complaint and add Dr. Victoria Palermo and
Florida Craniofacial Institute (FCI) as defendants. (Doc. 9). The United States
opposes the motion.1 (Doc. 11).
I. BACKGROUND
On February 18, 2025, the plaintiffs filed this action in the County Court
in and for Hillsborough County, Florida, under Case No. 2025-CC-6650,
naming these defendants: Dr. Victoria Palermo; FCI; and First Coast Service
1 Dr. Palermo and FCI are not named defendants here because they were dismissed
before the action was removed to this court. Thus, no response is required. The United
States responded in opposition to the plaintiffs’ motion to address other claims of
relief requested therein.
Options, Inc. (First Coast). (Doc. 1-1, pp. 1–4). On March 19, 2025, the County
Court held a pretrial conference in which the plaintiffs voluntarily dismissed
defendants Dr. Palermo and FCI, and the court entered a “Default Final
Judgment” against First Coast for $8,362.84, dismissed and closed the case.
(Doc. 1-2, p. 1; 1-3, p. 104–05). The United States then removed the action to
this court, moved to substitute the Centers for Medicare & Medicaid Services
in place of First Coast as defendant, and moved to alter, amend, or otherwise
provide relief from the default judgment. (See Docs. 1, 4, 5).
In response to the removal, the plaintiffs filed three documents to add
new party-defendants and damages claims. First, the plaintiffs filed “Answers
to Notice of Removal” that amended the caption of this action to add “Medicare
Part B Administration” as a party-defendant. (See Doc. 3). There, the plaintiffs
assert claims for “Compensation and Punitive Damages” against Medicare
Part B Administration and First Coast for “Gross Negligence, absolute
Dereliction of Duties and total Misrepresentation as causes of action.” (Id.).
The plaintiffs also filed a “Supplement” that alleges “additional [acts of] gross
negligence” by First Coast and requests $50,000.00 in damages. (Doc. 6). The
plaintiffs then filed the instant motion requesting to “formally name and keep
in this Federal Action / Suit” Dr. Palermo and FCI.2 (Doc. 9).
2 The instant motion continues to name “Medicare Part B Administration” as a party-
defendant. (Doc. 9, p. 1).
While the plaintiffs’ filings do not cite the Federal Rules of Civil
Procedure or other authority in support of their motion, it appears the
plaintiffs request amendment of the complaint. The United States opposes the
plaintiffs’ request to amend the complaint. (Doc. 11).
II. ANALYSIS
While Rule 15 applies to motions to amend, “the right to amend under
Rule 15(a) terminates once a complaint is dismissed.” See MacPhee v. MiMedx
Grp., Inc., 73 F.4th 1220, 1250 (11th Cir. 2023) (citing Czeremcha v. Int’l Ass’n
of Machinists & Aerospace Workers, AFLCIO, 724 F.2d 1552 (11th Cir. 1984)).
As is the case here, “after the action is dismissed and final judgment is
entered,” the plaintiffs must “move for relief under Rule 59(e) or 60(b).”
MacPhee, 73 F.4th 1250.
Rule 59(e) assesses the substance of the judgment. The court may only
amend a judgment if it determines that the crux of its ruling was clearly
erroneous. In Jacobs, the Eleventh Circuit observed that “the only grounds for
granting a Rule 59 motion are newly-discovered evidence or manifest errors of
law or fact.” Jacobs v. Tempur–Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir.
2010). Consequently, the purpose of Rule 59 is not to “raise arguments or
present evidence that could have been raised prior to the entry of judgment.”
Id.; Brown v. Spells, No. 7:11–cv–91 (HL), 2011 WL 4543905, *1 (M.D. Ga.
2011) (quoting Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n. 5 (2008)). The
plaintiffs raised no newly-discovered evidence or manifest error to justify
amendment to add additional party-defendants under Rule 59(e).
Rule 60(b) provides a limited set of circumstances from which a party
may request relief from a final judgment, order, or proceeding:
(1) Mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);3
(3) fraud . . ., misrepresentation, or misconduct by an opposing
party;
(4) the judgment is void;4
(5) the judgment has been satisfied, released or discharged . . .;
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). The plaintiffs do not allege Rule 60(b)’s first five
circumstances. However, the court must address whether the plaintiffs are
entitled to relief from the judgment based on a justifiable “other reason.”
Rule 60(b)’s catchall provision is “an extraordinary remedy which may
be invoked only upon a showing of exceptional circumstances, and that absent
3 The plaintiffs cannot assert “newly discovered evidence that, with reasonable
diligence, could not have been discovered,” since the relevant parties were known to
the plaintiffs, who already asserted an array of claims against those parties. (See Doc.
1-1).
4 The court notes that the United States has a pending motion to amend or vacate the
judgment. (See Doc. 5).
such relief, an extreme and unexpected hardship will result.” Saunders v.
United States, 380 F. App’x 959, 964 (11th Cir. 2010). The plaintiffs have
shown no exceptional reason, and the court has been unable to glean any
reason for invoking the Rule’s catchall provision. As stated above, Rule 60(b)
provides limited circumstances in which the court may grant a party relief.
Because the plaintiffs failed to advance sufficient justification for permitting
the amendment, the court finds that it must deny relief under Rule 60(b). See
Bell v. Hadley, No. CIV.A. 04-0263-WS-D, 2006 WL 572329, at *1 (S.D. Ala.
Mar. 7, 2006) (“Having elected to dismiss his claims against defendants in this
action voluntarily, plaintiff cannot “unring” that bell simply because he has
changed his mind” and noting relief, if any, would have to be under Rule 60(b)).
Til. CONCLUSION
Accordingly, the plaintiffs’ motion to amend their complaint and add Dr.
Palermo and FCI as defendants (Doc. 9) is DENIED. The Clerk of Court is
DIRECTED to terminate Dr. Victoria Palermo and Florida Craniofacial
Institute as named defendants.
ORDERED in Tampa, Florida, on April 30, 2025.
Aranda. Ayneh Same.
AMANDA ARNOLD SANSONE
United States Magistrate Judge