De Varona v. Discount Auto Parts, LLC

935 F. Supp. 2d 1335, 85 Fed. R. Serv. 3d 136, 2013 WL 1324921, 2013 U.S. Dist. LEXIS 49156
CourtDistrict Court, S.D. Florida
DecidedMarch 21, 2013
DocketCase No. 12-20714-CIV
StatusPublished
Cited by3 cases

This text of 935 F. Supp. 2d 1335 (De Varona v. Discount Auto Parts, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
De Varona v. Discount Auto Parts, LLC, 935 F. Supp. 2d 1335, 85 Fed. R. Serv. 3d 136, 2013 WL 1324921, 2013 U.S. Dist. LEXIS 49156 (S.D. Fla. 2013).

Opinion

ORDER ON PLAINTIFF’S MOTION ' TO COMPEL

EDWIN G. TORRES, United States , Magistrate Judge.

This matter is before the Court on Plaintiffs Motion to Compel Settlement Check. [D.E. 110]. We have carefully considered the motion, Defendant’s Response in Opposition [D.E. 114], and Plaintiffs reply thereto [D.E. 115], plus the record in this case. We no longer have [1338]*1338subject matter jurisdiction to grant any relief on Plaintiffs motion to compel. Accordingly, the motion must be denied.

I. BACKGROUND

■Plaintiff sued Defendant over a slip and fall on Defendant’s premises. Plaintiff alleged that she and her husband drove to Defendant’s auto parts store to buy a replacement part for the bus that they use to operate their transportation service. As Plaintiff exited the passenger side of her Mercedes SUV, she opened the door, stepped down' onto oil in the parking lot, fell and fractured her ankle. She sued for tort damages in state court.

On February 21, 2012, Defendant removed the action to federal court based upon diversity jurisdiction. The case proceeded through contentious discovery and motion practice, during which it became apparent that the lawyers’ personal animosity interfered, in part, with the speedy and expeditious resolution of the action. [D.E. 55, 75, 85, 87],

After mediation proved unsuccessful, and while Defendant’s summary judgment motion was pending, on or about October 23, 2012, Defendant served an offer of judgment under Rule 68 and Fla. Stat. § 768.79. Plaintiff considered the offer and accepted it on November 19, 2012. [D.E. 83, 104], The pending motions were thus promptly denied as moot and the Court closed the case for administrative purposes on November 21, 2012. [D.E. 107].

Shortly thereafter, the parties filed a joint stipulated dismissal with prejudice that the parties “hereby stipulate and agree to entry of the attached Final Order of Dismissal with Prejudice, and that the claims of Niurka De Varona against Defendant, Discount Auto Parts, LLC, be dismissed with prejudice, each party to bear its own attorneys’ fees and costs, if any. Defendant, Discount Auto Parts, LLC, however, requests that the Court retain jurisdiction for the limited purpose of adjudicating an unresolved dispute that arose in the course of discovery over funds paid by the Internal Revenue Service in error to Plaintiff, Niurka De Varona instead of to counsel for Defendant, Discount Auto Parts, LLC, Carlton Fields, P.A. Carlton Fields prepaid the IRS for Ms. De Varona’s federal income tax returns pursuant to an authorization provided by Ms. De Varona.” [D.E. 108].

The Court then entered a Final Order of Dismissal with prejudice that incorporated the parties’ proposed language “that the claims of Plaintiff, Niurka De Varona against Defendant, Discount Auto Parts, LLC be, and the same are, hereby DISMISSED with prejudice, with each party to bear its respective attorney’s fees and costs, and in accordance with the terms contained in said Stipulation, which are hereby APPROVED and made a part of this order. The Court RESERVES JURISDICTION for the limited purpose of adjudicating the dispute over the funds paid by the Internal Revenue Service in error to Plaintiff, Niurka De Varona instead of to counsel for Defendant, Discount Auto Parts, LLC, Carlton Fields, P.A., as more fully described in the Stipulation for Final Order of Dismissal with Prejudice.” [D.E. 109].

Significantly, the Court did not reserve jurisdiction for any other purpose, such as general supervision over the terms of the settlement agreement. Nor did the parties request any such broader reservation, or request that the Court delay entry of the Dismissal Order pending final closure of the settlement terms. The parties requested only a limited reservation of jurisdiction, which the Court granted.

One would think that this resolution of unnecessarily contentious, sometimes un[1339]*1339duly personal, litigation would bring closure and peace. Cf. Fed.R.Civ.P. 68, Adv. Comte. Notes, 1946 Arndts. (“These provisions should serve to encourage settlements and avoid protracted litigation.”). Regrettably, that proved not to be the case. What followed was yet another round of sparring on the lawyers’ part that leaves their clients still unwhole; Plaintiff still has not received her settlement payment and Defendant is still incurring attorneys’ fees.

Plaintiffs counsel “started it,” to paraphrase Defendant’s counsel, after Plaintiff timely received the settlement check from Defendant. It is undisputed that Defendant performed its primary obligation under the settlement by delivering the settlement payment, a $50.000 check, to Plaintiffs counsel. Though one would normally expect that check, upon receipt, to be immediately deposited in counsel’s trust account, Plaintiffs counsel neglected to make sure that happened. Instead, somehow the check was “misplaced” or “misfiled.” In other words, counsel-lost the check. After some time passed when the check did not turn up, Plaintiffs counsel then emailed Defense counsel on or about December 20, 2012, to request a new check. Defense counsel, who was undoubtedly focused' on other things and taking time off during the imminent holiday season, advised that he would get back to Plaintiff after conferring with his client.

Two weeks later, hearing nothing back, Plaintiffs counsel again communicated with Defense counsel and threatened to “move to compel” if Defendant did not issue a new settlement check. That missive, not surprisingly,'was met with hostility from Defendant’s counsel could who took umbrage to Plaintiffs counsel’s ultimatums following counsel’s own neglect, and advised that a new settlement check would be forthcoming only after certain specific conditions were met including payment for all fees and costs incurred by counsel losing the original check before any new settlement check was reissued. Two days later, Defendant delivered its “invoice” for the expenditures caused by the lost check, which ridiculously demanded reimbursement for ten hours in attorney and administrative time incurred in the process, plus the $26.00 stop payment fee, for a total of $1,516.00.

Not surprisingly, Plaintiffs counsel rejected that imprudent demand. The pending motion to compel followed, in which Plaintiff seeks an Order compelling delivery of a new settlement check in exchange for reimbursement only of .the stop payment fee incurred by Defendant, plus attorneys’ fees in Plaintiffs favor for having to seek court intervention to force Defendant to carry out the administrative task of issuing-a new settlement check.

Defendant responded in opposition, arguing that the Court lacked jurisdiction to do anything in response to the motion, and then arguing that Plaintiffs counsel was the one acting unreasonably by not negotiating over the matter to achieve a resolution without, court intervention. Plaintiff replied, arguing that the Court had jurisdiction' based upon Florida law and rejecting as disingenuous Defendant’s purported offers to negotiate a solution.

Since the filing of the motion, the matter has still not been resolved. The matter is thus, regrettably, ripe for disposition.

II. ANALYSIS

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Blitz Telecom Consulting, LLC v. Peerless Network, Inc.
212 F. Supp. 3d 1232 (M.D. Florida, 2016)
Hsi Chang v. JPMorgan Chase Bank, N.A.
138 F. Supp. 3d 1352 (S.D. Florida, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
935 F. Supp. 2d 1335, 85 Fed. R. Serv. 3d 136, 2013 WL 1324921, 2013 U.S. Dist. LEXIS 49156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-varona-v-discount-auto-parts-llc-flsd-2013.