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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

OPINION CORP. and CONSUMER
OPINION CORP.,
Petitioners,

v.

Case No: 8:15-cv-811-T-17AEP

ROCA LABS, INC.,
Respondent.
ORDER GRANTING PLAINTIFFS' MOTION FOR RECONSIDERATION

This cause came before the Court pursuant to the Plaintiffs' Motion to Alter or

Amend Judgment Under Fed. R. Civ. P. 59(e) (Doc. No. 52) (the "Motion for
Reconsideration") filed by the Plaintiffs, Opinion Corp. and Consumer Opinion Corp. (the
"Plaintiffs" or the "Opinion Parties") on September 8, 2015, and the Defendant's Roca

Labs, Inc. Response to Plaintiff's (sic) Motion to Alter or Amend Judgment (Doc. No. 55)
(the "Response") filed by the Defendant, Roca Labs, Inc. (the "Defendant" or "Roca").
For the reasons set forth below, the Motion for Reconsideration is GRANTED.

I.

Background

On August 15, 2014, Roca filed a complaint against the Opinion Parties in Florida
state court. On August 26, 2014, the case was removed to the United States District
Court for the Middle District of Florida, and assigned Case No. 8:14-cv-2096-VMC-EAJ
(the "2096 Case"). (2096 Case Doc. No. 1). 1 Through the 2096 Case, Roca asserted
claims against the Opinion Parties for (i) violations of the Florida Deceptive and Unfair

All references to documents filed in the 2096 Case shall be in the following format:
(2096 Case Doc. No. _).

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Trade Practices Act ("FDUTPA"), (ii) interference with Roca's contractual relationships,
and (iii) defamation. (2096 Case Doc. No. 2).

On September 11, 2014, the Opinion

Parties filed and served their answer in the 2096 Case. (2096 Case Doc. No. 9) (the
"Answer").

According to the Opinion Parties, on October 29, 2014 Roca transmitted a
"takedown" request to the Opinion Parties under the Digital Millennium Copyright Act (the

"DMCA"). (Doc. No. 1, at 2).

The "takedown" request alleged acts of copyright

infringement by the Opinion Parties. (Doc. No. 1, at 6). Thereafter, on January 13, 2015,
Roca allegedly sent the Opinion Parties a correspondence under Section 770.01 of the
Florida Statutes, through which it threatened to sue the Opinion Parties for defamation.
(Doc. No. 1, at 3).

The following day, on January 14, 2015, the Opinion Parties

commenced this action, seeking (i) damages for alleged violations of the DMCA and
abuse of process related to Roca's transmittal of the "takedown" notice, (ii) declaratory
relief regarding whether the Opinion Parties had infringed Roca's copyrights, (iii)
declaratory relief regarding whether the statements identified by Roca in its January 13,
2015 correspondence were defamatory, and (iv) a determination that Roca was an alter
ego of another entity, Roca Labs Nutraceuticals USA, Inc. ("RLN USA") (collectively, the
"811 Claims"). (Doc. No. 1).

Shortly thereafter, on January 19, 2015, Roca filed a motion in the 2096 Case to
amend its complaint to address and incorporate some of the events that gave rise to the
811 Claims. (2096 Case Doc. No. 79). Judge Covington permitted Roca to amend its
complaint, which it filed on March 20, 2014. (2096 Case Doc. No. 114) (the "Amended
Complaint"). On April 15, 2015, the Opinion Parties filed their answer and affirmative

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defenses to the Amended Complaint. (2096 Case Doc. No. 117) (the "Amended
Answer"). However, the Opinion Parties did not assert any counterclaims mirroring the

811 Claims in the Amended Answer.
Two days later, on April 17, 2015, Roca filed a motion to dismiss the 811 Claims
for failure to state a claim (Doc. No. 28) (the "Motion to Dismiss"). On August 10, 2015,
the Court entered an Order (Doc. No. 43) (the "Dismissal Order") dismissing the 811
Claims with prejudice. Through the Dismissal Order, the Court determined that the 811
Claims should have been asserted as compulsory counterclaims in the 2096 Case;
particularly in the Amended Answer.

Fourteen days later, on August 24, 2015, the

Plaintiffs filed a Notice of Appeal (Doc. No. 45) (the "Notice of Appeal") of the Dismissal
Order to the Eleventh Circuit Court of Appeals. Thereafter, on September 8, 2015, 2 the
Plaintiffs filed the Motion for Reconsideration, seeking reconsideration of the Dismissal
Order. The Defendant filed its Response on September 23, 2015.

II.

Legal Analysis
A.

The Court has jurisdiction to consider the Motion for
Reconsideration.

Before considering the merits of the Motion for Reconsideration, the Court must
address a threshold jurisdictional issue. First, "[a]s a general rule, the filing of a timely
notice of appeal divests a district court of jurisdiction over the action." Guadagni v. New
York Transit Auth., 2009 WL 750224, at *2 n.3 (E.D.N.Y. March 19, 2009). As a result,

some courts have concluded that a district court lacks jurisdiction to consider a motion for
reconsideration filed after a notice of appeal of the same order or judgment. See, e.g.,

The Motion for Reconsideration was filed 29. days after entry of the Dismissal Order.
However, since Monday, September 7, 2015 was Labor Day, the Motion for
Reconsideration was timely under Federal Rule of Civil Procedure 6(a)(1)(C).

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Adkins v. Jeffreys, 327 F.App'x 537, 539 (6th Cir. 2009). However, other courts have
held that under Federal Rule of Appellate Procedure 4(a)(4), the filing of a motion for
reconsideration suspends the effectiveness of an earlier-filed notice of appeal until after
the district court has ruled on the post-trial motion. See, e.g., Stewart Part & Reserve
Coal., Inc. v. Slater, 374 F.Supp.2d 243, 252 (N.D.N.Y. 2005) (where a notice of appeal
is "filed prior to ... the filing of a Rule 59(e) [m]otion ... application of Appellate Rule 4
effectively renders the appeal to the Court of Appeals in abeyance pending the district
court's determination of the post-judgment motion.").
The Eleventh Circuit has not squarely addressed this issue, but binding Fifth Circuit
authority states that a district court has authority to consider and deny a Rule 60(b) motion
filed after a notice of appeal. Wilson v. Thompson, 638 F.2d 801, 803 (5th Cir. 1981).
More recently, a court in this circuit held that the effect of filing a Rule 59 motion after the
filing of a notice of appeal "is (1) to stay the notice of appeal until the motion is resolved
and (2) to revive the court's jurisdiction." McNairv. Campbell, 315 F.Supp.2d 1179, 1181
(M.D. Ala. 2004). The McNair court's interpretation is supported by the 1993 Advisory
Committee Notes to Federal Rule of Appellate Procedure 4, which state that "[a] notice
filed before the filing of one of the specified motions or after the filing of a motion but
before disposition of the motion is, in effect, suspended until the motion is disposed of,
whereupon, the previously filed notice effectively places jurisdiction in the court of
appeals." Slater, 374 F.Supp.2d at 252 (quoting Fed. R. App. P. 4, Advisory Committee
Notes 1993 Amendments) (emphasis added).
Applying Slater, Wilson, and McNairto the facts of this case, the filing of the Motion
for Reconsideration suspended the effectiveness of the Notice of Appeal. Therefore, the

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Court believes that it has jurisdiction to consider the merits of the Motion for
Reconsideration.
B.

The Court has discretion to grant or deny a Motion for
Reconsideration.

Federal Rule of Civil Procedure 59(e) gives the Court "broad discretion to
reconsider an order which it has entered." Offices Togolais Des Phosphates v. Mulberry
Phosphates, Inc., 62 F.Supp.2d 1316, 1331 (M.D. Fla. 1999). "There are three grounds
that justify granting a motion to alter or amend judgment: 1) an intervening change in
controlling law; 2) the availability of new evidence; or 3) the need to correct clear error or
prevent manifest injustice. Id. "A motion to alter or amend a judgment must demonstrate
why the court should reconsider its prior decision and set forth facts or law of a strongly
convincing nature to induce the court to reverse its prior decision." Wendy's Int'/, Inc. v.
Nu-Cape Constr., Inc., 169 F.R.D. 680, 684 (M.D. Fla. 1996). While a Rule 59(e) motion
is "not a vehicle for rehashing arguments already rejected by the court or for refuting the
court's prior decision," such a motion is appropriate "when the court has patently
misunderstood a party and has made a decision outside the adversarial issues presented,
or has made a mistake, not of reasoning, but of apprehension." Id. at 686. Ultimately,
"[t]he decision of whether to grant or deny a Rule 59(e) motion is discretionary." Id.
Here, the Opinion Parties contend that the Court committed a clear error of law by
dismissing the 811 Claims with prejudice. In particular, they argue that the events that
gave rise to the 811 Claims occurred after the Opinion Parties filed their Answer in the
2096 Case and, as a result, that the 811 Claims could not have been compulsory
counterclaims in the 2096 Case. For the reasons set forth below, the Court agrees that
it was improper to dismiss the 811 Claims with prejudice.

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C.

The 811 Claims were not compulsory counterclaims when the
Opinion Parties filed their Answer.

Federal Rule of Civil Procedure 13(a)(1) states that "[a] pleading must state as a
counterclaim any claim that - at the time of its service - the pleader has against an
opposing party ... "Fed. R. Civ. P. 13(a)(1) (emphasis added). Pursuant to Federal Rule
of Civil Procedure 7(a)(2), "an answer to a complaint" is a pleading. Fed. R. Civ. P. 7(a)(2).
Therefore, at the time of the service of the Answer in the 2096 Case, the Opinion Parties
were required to state any compulsory counterclaim they had against Roca. Here, the
811 Claims are largely derived from conduct that occurred subsequent to the filing of the
Answer in the 2096 Case. For example, Counts 1-111 are based on the "takedown" notice
that Roca transmitted to the Opinion Parties in October of 2014, and Count Vis based on
the allegations of defamation made in the January 13, 2015 correspondence. Along the
same lines, Count IV, wherein the Opinion Parties seek a declaration regarding Roca's
accusations of copyright infringement, and Count VII, wherein the Opinion Parties seek a
determination that Roca is an alter ego of RLN USA, were not raised in the 2096 Case.
As a result, the 811 Claims were not compulsory counterclaims when the Opinion Parties
filed their Answer in the 2096 Case.

D.

Even if the 811 Claims became compulsory counterclaims based on
the filing of the Amended Complaint in the 2096 Case, the 811 Claims
fall within the "another pending action" exception set forth in Rule
13(a)(2)(A).

Federal Rule of Civil Procedure 13(a)(2)(A) states that "[t]he pleader need not state
the claim if when the action was commenced, the claim was the subject of another
pending action." Fed. R. Civ. P. 13(a)(2)(A). In Union Paving Co. v. Downer Corp., which
is cited in the Advisory Committee Notes to Rule 13, the Ninth Circuit Court of Appeals
stated "[t]he purpose of this exception is seemingly to prevent one party from compelling

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another to try his cause of action in a court not of the latter's choosing when the same
cause of action is already the subject of pending litigation in another forum, one which
was probably chosen by the owner of the cause of action concerned." 276 F.2d 468, 470
(9th Cir. 1960). Stated simply, "[t]he exception enables a party to escape the waiver rule
if he has already begun his action in another forum of his own choosing." Id.
In the Dismissal Order, the Court did not consider the impact of Rule 13(a)(2)(A)
because, when the 2096 Case was commenced in August of 2014, the 811 Claims were
not technically the subject of "another pending action." Rather, the 811 Claims did not
become the subject of "another pending action" until approximately five months later,
when the Opinion Parties commenced this case.

However, upon closer review, the

decision not to apply Rule 13(a)(2)(A) was based an overly technical and narrow reading
of Rule 13(a)(2)(A).

This is because even if the filing of the Amended Complaint

converted the 811 Claims into compulsory counterclaims, the earliest the Opinion Parties
would have been required to assert the 811 Claims as counterclaims would have been
when they filed the Amended Answer. By that point in time, the 811 Claims had been the
subject of "another pending action" for approximately four months. As a result, requiring
the Opinion Parties to bring the 811 Claims in the 2096 Case have violated the policy of
Rule 13(a)(2)(A), which is "to prevent one party from compelling another to try his cause
of action in a court not of the latter's choosing when the same cause of action is already
the subject of pending litigation in another forum." Union Paving, 276 F.2d at 470. With
these considerations in mind, the Court believes that it misapprehended the applicability
of Rule 13(a)(2)(A) in relation to Roca's filing of the Amended Complaint. Therefore, the
811 Claims should not have been dismissed for failure to comply with Rule 13(a)(1).

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Ill.

Conclusion

Accordingly, it is
ORDERED that the Motion for Reconsideration is GRANTED. The Clerk of Court

is directed to VACATE the Dismissal Order, and to STAY this case pending resolution of
the appeal. Within fourteen (14) days after the resolution of the appeal, the parties shall
file a joint statement regarding the status of this case.
DONE and ORDERED in Chambers, in Tampa, Florida this 25th day of January,

2016.

Copies furnished to:
All Parties and Counsel of Record

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