Case 6:16-cv-02240-JA-GJK Document 171 Filed 01/11/21 Page 1 of 8 PageID 11447

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

DAVID MADISON CAWTHORN, )

)
Plaintiff, )
)
vs. ) CASE NO. 6:16-cv-02240-JA-GJK
)
AUTO-OWNERS INSURANCE )
COMPANY, )
)
Defendant. )
____________________________________ )

MOTION TO VACATE ORDER STAYING

AUTO-OWNERS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
AND INCORPORATED MEMORANDUM OF LAW
Defendant Auto-Owners Insurance Company (“Auto-Owners”) hereby moves the

Court to lift the stay of Auto-Owners’ Renewed Motion for Award of Attorneys’ Fees and

Costs (Doc. 138) (“Fee Motion”). The Magistrate Judge imposed the stay on February 11,

2020, when Plaintiff Cawthorn advanced a wholly new argument that this court lacked

jurisdiction to enter a summary judgment in the first place. (Doc. 142) That motion was

resolved (Doc. 163), and the Court should vacate the stay.

INTRODUCTION

On February 11, 2020, Magistrate Judge Smith entered an Order staying Auto-Owners’

Fee Motion until this Court determined jurisdiction. The Court recently denied Cawthorn’s

Motion for Relief from Judgment and to Abate Defendant’s Motion for Attorney [sic] Fees

(Doc. 139) (“Rule 60 Motion”). When the Court denied Cawthorn’s Rule 60 Motion, it

resolved the question of whether the Court has subject matter jurisdiction to hear Auto-

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Owners’ Fee Motion. Furthermore, Cawthorn’s pending Volusia County Circuit Court action

against Bradley Ledford will not affect the judgment herein. The pending state case addresses

issues independent of Auto-Owners’ Fee Motion in this Court.

The February 11 Order provided, in relevant part:

[T]he Court finds that until the jurisdictional issue is decided, it does not make
good sense to engage in costly, time consuming litigation of Defendant’s claim
for attorney’s fees and costs. And, even if Plaintiff’s motion is denied, it may
make sense to abate this action until the current state court case is resolved. For
these reasons, litigation of Defendant’s Renewed Motion for an Award of
Attorneys’ Fees and Reasonable Costs (Doc. 138), is STAYED until further
Order of Court. Either party may, for good cause shown, file a motion to lift
this stay.
(Doc. 142 at 1-2.)
As discussed herein, neither point identified in the February 11 Order requires

extending the stay of Auto-Owners’ Fee Motion. The issue of attorney fees and costs is ripe to

be decided.

ARGUMENT

A. Cawthorn’s Appeal Does Not Warrant Extending the Stay.

This Court’s recent Order denying Cawthorn’s Rule 60 Motion resolved the

jurisdictional issue forming the primary basis for the stay imposed by Magistrate Judge Smith’s

February 11 Order. As the Court observed in its Order dated November 10, 2020 (Doc. 163),

Cawthorn “did not argue any jurisdictional issues or that summary judgment was not the proper

vehicle when specifically asked to brief these matters” prior to the entry of summary judgment

in this case. (Id. at 2 n.3.) Cawthorn “failed to contest the Court’s finding of jurisdiction in the

summary judgment order . . .; and did not argue jurisdictional issues on appeal.” (Id.)

Additionally, as the Court recognized, “[b]y its decision affirming this Court’s Order, the

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Eleventh Circuit determined that it—and this Court—had subject-matter jurisdiction to grant

limited summary judgment in favor of Auto-Owners.” (Id.)

Cawthorn appealed yet again, seeking Eleventh Circuit review of the November 10

Order. However, the pending appeal should not delay this Court’s consideration of Auto-

Owners’ Fee Motion. In assessing whether to continue the stay, the Court should consider four

factors: (1) whether Cawthorn is likely to succeed on the merits of his appeal; (2) whether

lifting the stay will irreparably injure Cawthorn; (3) whether continuation of the stay will

substantially injure Auto-Owners; and (4) where the public interest lies. See Nken v. Holder,

556 U.S. 418, 434 (2009). The following analysis demonstrates why the Court should lift the

stay:

Factor 1. Cawthorn’s appeal is unlikely to succeed. Cawthorn bases his appeal entirely

on dicta from the Eleventh Circuit’s opinion affirming the summary judgment order and final

judgment in this case. The Eleventh Circuit observed that “[t]he District Court did not reach

th[e] issue [of whether Auto-Owners acted in bad faith] because there was no excess judgment

or functional equivalent, meaning no case or controversy. The District Court was correct not

to reach the issue.” Cawthorn v. Auto-Owners Ins. Co., 791 Fed. Appx. 60, 65-66 (11th Cir.

2019). Cawthorn seized on that language, which did not relate to the issue on which the Court

based the summary judgment order and final judgment. He conflated that language into a false

conclusion, that the Court entirely lacks subject matter jurisdiction in this case.

As this Court correctly stated in its November 10 Order, Cawthorn did not take this

position when he asked for permission to brief the Court on jurisdiction, nor did Cawthorn

raise that issue in the Eleventh Circuit during his previous appeal—even by way of filing a

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motion for rehearing to seek a dismissal. Cawthorn’s belated argument concerning jurisdiction

is a transparent attempt to forestall the Fee Motion.

Factor 2. Cawthorn cannot show irreparable injury absent a continuation of the stay.

Because Cawthorn’s appeal is unlikely to succeed, he will not suffer irreparable harm if

ordered to pay the prevailing party fees and costs to which Auto-Owners claims entitlement.

Even if Cawthorn prevails on appeal and the Eleventh Circuit determines that this Court should

convert its Final Judgment to a dismissal for lack of jurisdiction, Auto-Owners remains entitled

to recover its fees and costs under § 768.79, Florida Statutes. See Essex Builders Group, Inc.

v. Amerisure Ins. Co., 2007 WL 2376036 (M.D. Fla. Aug. 16, 2007).1 The outcome of

Cawthorn’s appeal is simply inconsequential to a decision on Auto-Owners’ Fee Motion. This

Court specifically held that it had jurisdiction to rule on whether the Cawthorn/Ledford $30

million consent judgment was the functional equivalent of a jury verdict for purposes of

bringing a bad faith action against Auto-Owners. The Eleventh Circuit affirmed. Cawthorn can

never hold Auto-Owners liable for payment of the $30 million Cawthorn/Ledford consent

judgment. As a result, Auto-Owners has a present right to prosecute its Motion for Attorneys’

Fees and Costs.

“Once an applicant satisfies the first two factors, the traditional stay inquiry calls for

assessing the harm to the opposing party and weighing the public interest.” Nken, 556 U.S. at

435.

1
For purposes of brevity, Auto-Owners hereby incorporates by reference its arguments
concerning the application of Essex Builders set forth in its Response in Opposition to Motion
for Relief from Judgment and to Abate Defendant’s Motion for Attorney’s Fees (Doc. 143 at
7-11).

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Factor 3. Auto-Owners obtained a final judgment in this action on April 30, 2018.

Since that time, Cawthorn successfully delayed paying Auto-Owners the fees and costs to

which Auto-Owners believes it is legally entitled. Auto-Owners has incurred substantial

additional attorneys’ fees and costs as a direct result of Cawthorn’s litigation tactics. Indeed,

at this point, the Court’s only remaining obligation is to determine whether Auto-Owners is

entitled to its attorneys’ fees and costs (and if so, the amount owed).

Factor 4. Concluding this case best serves the public interest. See Transamerica Life

Ins. Co. v. Brickman, 2016 WL 3552748, *3 (M.D. Fla. June 30, 2016) (expressing concern

“about staying this action indefinitely,” as “[d]elay would . . . disserve the public interest in

the just, speedy, and efficient resolution of this dispute”).

A reasonable analysis of the four factors demonstrates that the Court should lift the stay

and allow Auto-Owners to prosecute its Fee Motion.

B. Cawthorn’s Pending State Court Action has No Bearing on this Case and
Does Not Form a Basis for Prolonging the Stay.

Cawthorn’s pending state court action against Bradley Ledford has no bearing on Auto-

Owners’ prosecution of its Fee Motion. Having lost in this Court, Cawthorn’s pending Volusia

County Circuit Court case represents a final renewed effort to obtain an excess judgment that

fits within Perera. Regardless of the outcome of the pending Volusia County action, that

outcome will have no bearing on this Court’s determination that the Cawthorn/Ledford consent

judgment is not the functional equivalent of jury verdict. This Court resolved that issue with

finality, and the Eleventh Circuit affirmed. Because Auto-Owners prevailed on this now-final

issue, the new state court action cannot affect Auto-Owners’ status as the prevailing party here.

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CONCLUSION

The Court resolved the question of whether it has subject matter jurisdiction in this case

when it denied Cawthorn’s Rule 60 Motion. Despite the pending appeal, the Nken factors

weigh against a further stay of the litigation on Auto-Owners’ Fee Motion. Cawthorn’s pending

state court action against Ledford does not affect this Court’s determination that the

Cawthorn/Ledford consent judgment did not meet the requirements of Perera. This Court

should lift the stay.

WHEREFORE, Defendant, Auto-Owners Insurance Company, respectfully requests

that the Court lift the stay imposed in the February 11, 2020 Order (Doc. 142), order that Auto-

Owners can resume prosecution of its Renewed Motion for Award of Attorneys’ Fees and

Costs (Doc. 138), and provide any other and further relief that the Court deems necessary and

proper.

Respectfully submitted this 11th day of January, 2021.

/s/ Peter C. Vilmos

Peter C. Vilmos
Florida Bar # 075061
Email: pvilmos@burr.com
Secondary: nwmosley@burr.com
Gennifer L. Bridges
Florida Bar # 0072333
Email: gbridges@burr.com
Secondary: nwmosley@burr.com
BURR & FORMAN LLP
200 S. Orange Avenue, Suite 800
Orlando, FL 32801
Tel: 407-540-6600
Fax: 407-540-6601

S. Greg Burge
Florida Bar # 0743770
Email: gburge@burr.com

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Secondary: mkillian@burr.com
BURR & FORMAN LLP
420 North 20th Street, Suite 3400
Birmingham, AL 35203
Tel: 205-251-3000
Fax: 205-458-5100

Forrest S. Latta
Admitted pro hac vice
Email: forrest.latta@burr.com
Secondary: pgrove@burr.com
BURR & FORMAN LLP
11 North Water Street, Suite 22200
Mobile, AL 36602
Tel: 251-344-5151
Fax: 251-344-9696

Attorneys for Defendant, Auto-Owners

Insurance Company

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 3.01(g)

I HEREBY CERTIFY that on this 11th day of January, 2021, counsel for Auto-Owners

conferred with William Allen Bonner, counsel for David Madison Cawthorn regarding this

Motion. Cawthorn takes the position that Auto-Owners argued at the November 6, 2020

hearing that the district court should lift the stay on Auto-Owners’ Fee Motion and that the

Court denied this relief. To the extent that the Court may consider the instant motion as a

motion for reconsideration, Mr. Bonner states that Cawthorn opposes the relief requested

herein.

/s/ Peter C. Vilmos

Peter C. Vilmos
Florida Bar # 075061

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on January 11, 2021, I electronically filed the foregoing

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with the Clerk of the Court in the U. S. District Court, Middle District of Florida, Orlando

Division, by using the CM/ECF system, which will send a notice of electronic filing to:

William A. Bonner, Esquire

abonner@colson.com
Roberto Martinez, Esquire
bob@colson.com
COLSON HICKS EIDSON
255 Alhambra Circle, Penthouse
Coral Gables, FL 33134
eservice@colson.com;
claudia@colson.com
Attorneys for Plaintiff

Stephen A. Marino, Jr., Esquire

smarino@vpl-law.com
Michal Meiler, Esquire
mmeiler@vpl-law.com
Ver Ploeg & Lumpkin, P.A.
301 E. Pine Street, Suite 790
Orlando, FL 32801
smcgee@vpl-law.com
Co-Counsel for Plaintiff

/s/ Peter C. Vilmos

Peter C. Vilmos
Florida Bar # 075061

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