379 F.3d 1298 (11th Cir. 2004), 02-16469, Ortega Trujillo v. Banco Central Del Ecuador

Docket Nº:02-16469.
Citation:379 F.3d 1298
Party Name:Leonidas ORTEGA TRUJILLO, Jaime Ortega Trujillo, Luis Alberto Ortega Trujillo, Plaintiffs-Counter-Defendants-Third-Party-Defendants-Appellants, v. BANCO CENTRAL DEL ECUADOR, an agency of the government of Ecuador, Defendant-Counter-Claimant-Third-Party-Plaintiff-Appellee, Augusto De La Torre, Conover & Company, a Massachusetts corporation, Defendan
Case Date:August 09, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1298

379 F.3d 1298 (11th Cir. 2004)

Leonidas ORTEGA TRUJILLO, Jaime Ortega Trujillo, Luis Alberto Ortega Trujillo, Plaintiffs-Counter-Defendants-Third-Party-Defendants-Appellants,

v.

BANCO CENTRAL DEL ECUADOR, an agency of the government of Ecuador, Defendant-Counter-Claimant-Third-Party-Plaintiff-Appellee,

Augusto De La Torre, Conover & Company, a Massachusetts corporation, Defendants-Appellees,

Banco Continental, S.A., Banco Continental Overseas, N.V., Third-Party-Plaintiffs,

Pamamerican Bank, A Florida bank, et al., Third-Party-Defendants.

No. 02-16469.

United States Court of Appeals, Eleventh Circuit

August 9, 2004

Page 1299

Elliot H. Scherker, Elliot B. Kula, Greenberg Traurig, P.A., Miami, FL, for the Trujillos.

Nancy A. Copperthwaite, John F. O'Sullivan, Ackerman, Senterfitt & Eidson, P.A., Laura Besvinick, Hogan & Hartson, LLP, Miami, FL, for Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON, Chief Judge, CARNES, Circuit Judge, and MILLS [*], District Judge.

PER CURIAM:

This case is about appealability and assessment of attorney's fees and costs as a condition to a plaintiff's voluntarily dismissing a civil action without prejudice. The Plaintiffs (the "Ortegas") dispute Banco Central's entitlement to attorney's fees and costs and dispute the district court's determination on the appropriate amount due Banco Central. Seeing no basis for a direct appeal of the conditions on the voluntary dismissal, we dismiss for lack of jurisdiction.

I. Background

In 1996, Banco Central brought suit in a Bahamian court against several members of the Ortega family and several companies associated with the Ortegas. In connection with the Bahamian litigation, Banco Central's public relations firm issued a press release; the release alleged involvement by the Ortegas in a bank-fraud scheme.

Page 1300

In February 1998, the Ortegas sued Banco Central in a United States district court; they alleged, among other things, defamation in connection with the press release.

After several years of litigating their claims, the Ortegas moved to dismiss their action voluntarily and without prejudice under FRCP 41(a) (2) "upon such terms and conditions as the Court deems proper." Banco Central opposed the dismissal; but if the dismissal was to be granted, Banco Central also urged that, as a condition, plaintiffs pay Banco Central's costs and attorney's fees. In March 2001, the district court granted the Ortegas' motion to dismiss voluntarily. The district court, in the pertinent dismissal order, specifically retained jurisdiction to determine the fees and costs Banco Central sustained when defending this action: the district court, thus, conditioned the dismissal. 1

Banco Central filed a verified motion for attorney's fees and costs, requesting approximately $2 million for the nearly three years of on-going litigation. 2 The Ortegas opposed the fees and costs. In July 2001, the district court said attorney's fees and costs would be awarded to Banco Central but that the district court needed to decide "the reasonableness of the fees and costs [incurred by Banco Central]." The district court decided to hold an evidentiary hearing to assess better Banco Central's request.

Later, after the two-day evidentiary hearing, the district court entered a preliminary order resolving that Banco Central should receive a reasonable amount of attorney's fees and costs for "wasted" effort defending the case.

In August 2002, Banco Central submitted a supplemental written submission, setting forth a revised claim for attorney's fees and costs, reducing its initial request of upwards of $2 million to one of approximately $700,000.

In November 2002, the district court entered an order granting Banco Central the amount sought in the amended fee application. Ortega Trujillo v. Banco Central, 229 F.Supp.2d 1369, 1376 (S.D.Fla.2002). No motion to withdraw the Ortegas' voluntary dismissal was ever made to the district court.

The Ortegas now appeal the district court's decision to assess attorney's fees and costs as a 41(a) (2) condition and the district court's determination on what specific amount of fees and costs the Ortegas owe to Banco Central.

II. Review for...

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