Case 6:16-cv-02240-JA-GJK Document 173 Filed 02/11/21 Page 1 of 4 PageID 11482

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

DAVID MADISON CAWTHORN,

Plaintiff,

v. Case No: 6:16-cv-2240-Orl-28GJK

AUTO-OWNERS INSURANCE
COMPANY,

Defendant.

ORDER

This cause came on for consideration without oral argument on the

following motion:

MOTION: MOTION TO VACATE ORDER STAYING AUTO-

OWNERS’ MOTION FOR ATTORNEYS’ FEES AND
COSTS AND INCORPORATED MEMORANDUM
OF LAW (Doc. No. 171)

FILED: January 11, 2021

THEREON it is ORDERED that the motion is DENIED.

This case has a tortured procedural history, but a complete recounting of it

is unnecessary to resolve Defendant’s “Motion to Vacate Order Staying Auto-

Owners’ Motion for Attorneys’ Fees and Costs and Incorporated Memorandum of
Case 6:16-cv-02240-JA-GJK Document 173 Filed 02/11/21 Page 2 of 4 PageID 11483

Law” (the “Motion”). Doc. No. 171. On April 28, 2018, the Court entered an order

granting Defendant’s motion for summary judgment and finding that Plaintiff’s

bad faith claim was not ripe because there was no excess judgment or its functional

equivalent. Doc. No. 124 at 24. On April 30, 2018, judgment was entered against

Plaintiff, and in favor of Defendant (the “Judgment”). Doc. No. 125. On October

25, 2019, the Eleventh Circuit affirmed the Judgment, Doc. No. 132, and on

November 25, 2019, entered its mandate, Doc. No. 134.

On January 23, 2020, Defendant filed a renewed motion for an award of

attorney’s fees and costs based on the Judgment (the “Renewed Motion”). Doc.

No. 138. On February 4, 2020, Plaintiff filed a motion for relief from judgment and

to abate Defendant’s Renewed Motion. Doc. No. 139. In the motion for relief from

judgment, Plaintiff represented that he refiled the underlying negligence claim

against the insured in state court. Id. at 3. On February 11, 2020, United States

Magistrate Judge Thomas B. Smith entered an order (the “Order”) staying the

Renewed Motion because “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.” 1 Doc. No. 142. Judge Smith also stayed the

Renewed Motion due to the pending state court case. Id. at 2.

1 Judge Smith stated in the Order, “Either party may, for good cause shown, file a motion to lift
this stay.” Doc. No. 142 at 2. It is not clear why Defendant titled the Motion as one to vacate the

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On November 10, 2020, the Court denied Plaintiff’s motion for relief from

judgment and to abate the Renewed Motion “because the summary judgment has

been affirmed by the Eleventh Circuit and the magistrate judge has already stayed

litigation of [the Renewed Motion].” Doc. No. 163 at 2 (footnote omitted). On

December 2, 2020, Plaintiff appealed the denial. Doc. No. 164. On January 11, 2021,

Defendant filed the Motion, asking the Court to lift the stay. Doc. No. 171 at 6. On

January 25, 2021, Plaintiff filed his response to the Motion. Doc. No. 172.

Both the appeal from the order denying the motion for relief from judgment

and the state court proceeding are still pending. Doc. No. 171 at 4, 5. Thus, the

bases for the Order staying the Renewed Motion have not changed. Doc. No. 142.

As stated in the order denying Defendant’s motion for an award of

attorney’s fees and costs when judgment was first entered for it, “deferring ruling

on a motion for attorney’s fees and costs pending an appeal is a matter within the

court’s discretion, and courts will defer ruling in the interests of judicial economy.”

Truesdell v. Thomas, No: 5:13–cv–552–Oc–10PRL, 2016 WL 7049252, at *2 (M.D. Fla.

Dec. 5, 2016); Doc. No. 130 at 2. Deferring ruling on the Renewed Motion continues

Order, rather than as a motion to lift the stay, especially because the relief requested is lifting the
stay. Doc. No. 171 at 6.

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to serve the interests of judicial economy.

Accordingly, it is ORDERED that the Motion (Doc. No. 171) is DENIED.

DONE and ORDERED in Orlando, Florida, on February 11, 2021.

Copies furnished to:

Counsel of Record
Unrepresented Parties

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