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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.: 20-cv-81254-MATTHEWMAN

JAY MOLBOGOT, 

Plaintiff,

vs. 

MARINEMAX EAST, INC., 

Defendant.

_______________________________/ 

ORDER DENYING DEFENDANT’S MOTION TO ALTER 

OR AMEND AN ORDER [DE 162] 

THIS CAUSE is before the Court upon Defendant, MarineMax East, Inc.’s (“Defendant”) 

Motion to Alter or Amend an Order (“Motion”) [DE 162]. Plaintiff, Jay Molbogot (“Plaintiff”), 

has filed a response [DE 163] to the Motion. The Court can easily rule on the Motion without the 

need for a reply. 

Defendant is seeking an order altering or amending the Court’s Order Denying Defendant’s 

Objection and Motion to Strike Affidavit of Jason Dunbar [DE 156] entered on June 14, 2022. 

Defendant is alternatively seeking an order extending the discovery deadline for the sole purposes 

of conducting a deposition of Plaintiff’s Expert Jason Dunbar and acquiring a rebuttal witness. 

Plaintiff objects to the relief sought and provides his reasons in his response. The Court finds it 

necessary to consider the Motion through the lens of three different Federal Rules of Civil 

Procedure. 

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Rule 59(e)

 Defendant’s Motion solely relies on Federal Rule of Civil Procedure 59(e) as the basis for 

the relief sought. This rule states that “[a] motion to alter or amend a judgment must be filed no 

later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). “The only grounds for 

granting [a Rule 59(e)] motion are newly-discovered evidence or manifest errors of law or fact.” In 

re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999). “The United States Supreme Court and the 

Court of Appeals for the Eleventh Circuit have made it clear that Rule 59(e) ‘may not be used to 

relitigate old matters, or to raise arguments or present evidence that could have been raised prior 

to the entry of judgment.’” Powell v. Bermudez, No. 20-CV-20391, 2020 WL 3183316, at *1 (S.D. 

Fla. June 15, 2020) (quoting Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008)); see 

also Stansell v. Revolutionary Armed Forces of Columbia, 771 F.3d 713, 746 (11th Cir. 2014). 

No judgment has been entered in this case, so Rule 59(e) is inapplicable. Reed v. Royal 

Caribbean Cruises Ltd., No. 19-24668-CIV, 2021 WL 2592888, at *6 (S.D. Fla. May 3, 2021)

(“However, motions for reconsideration of an interlocutory order are ‘not properly considered 

under Rule 59(e) but, instead, as simply a request for the district court to revisit its earlier ruling.’ 

12B Federal Practice and Procedure, Civil Rules, Quick Reference Guide, at 1066 (2019 ed.)”); 

see also Greer v. Owners Ins. Co., No. 3:05-CV232/RV/MD, 2006 WL 8443371, at *1 (N.D. Fla. 

Aug. 11, 2006) (“Rule 59(e) is not relevant here, however, for that rule only applies if it is a final 

order being challenged.”); Broadway v. Norris, 193 F.3d 987, 989 (8th Cir. 1999) (recognizing 

that “Rule 59(e) motions are motions to alter or amend a judgment, not any nonfinal order.”)). 

Therefore, since Rule 59(e) is wholly inapplicable here, Defendant’s Motion is denied on that 

ground. However, even if Rule 59(e) did apply (which it does not), Defendant has not met the high 

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standard under the rule of showing that there is newly-discovered evidence or that the Court’s 

Order contains manifest errors of law or fact. 

Rule 60(b) 

In an abundance of caution, the Court will also analyze the motion as a motion for 

reconsideration pursuant Federal Rule of Civil Procedure 60(b), which is the rule the Defendant 

should have traveled under in the first place but failed to even cite. The “purpose of a motion for 

reconsideration is to correct manifest errors of law or fact or to present newly discovered 

evidence.” Z.K. Marine Inc. v. M/V Archigetis, 808 F.Supp. 1561, 1563 (S.D. Fla. 1992). Thus, 

federal courts have delineated three major grounds justifying reconsideration: (1) an intervening 

change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear 

error or prevent manifest injustice. Degirmenci v. Sapphire-Fort Lauderdale, LLLP, 693 F. Supp. 

2d 1325, 1352 (S.D. Fla. 2010) (citing Offices Togolais Des Phosphates v. Mulberry Phosphates, 

Inc., 62 F.Supp.2d 1316, 1331 (M.D. Fla. 1999); Sussman v. Salem, Saxon & Nielsen, P.A., 153 

F.R.D. 689, 694 (M.D. Fla. 1994)). 

Defendant has not met this burden. More specifically, Defendant has failed to demonstrate 

that there has been an intervening change in controlling law, that new evidence is available, or that 

it needs to correct clear error or prevent manifest injustice. Rather, Defendant is simply attempting 

to re-litigate an issue that has already been decided. Thus, had Defendant filed a motion for 

reconsideration under Rule 60(b), it would be without merit and denied. 

Rule 16(b) 

 Finally, Defendant alternatively requests that the Court grant it an extension of the 

discovery deadline to depose Dunbar and to designate a rebuttal expert. Pursuant to Federal Rule 

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of Civil Procedure 16(b)(4), “[a] schedule may be modified only for good cause and with the 

judge's consent.” Fed. R. Civ. P. 16(b)(4). “This good cause standard precludes modification 

unless the schedule cannot be met despite the diligence of the party seeking the extension.” Sosa 

v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998) (internal quotation marks and citation 

omitted). Further, “[w]hen a party fails to complete discovery in time, it may move to reopen 

discovery and the court may, ‘for good cause,’ grant the motion if the party shows that it failed 

‘because of excusable neglect.’” EarthCam, Inc. v. OxBlue Corp., 703 F. App'x 803, 813 (11th 

Cir. 2017) (citing Fed. R. Civ. P. 6(b)(1)). Excusable neglect, for purposes of Rule 6(b), is an 

“‘equitable inquiry, taking account of all relevant circumstances surrounding the party’s omission’ 

... include[ing] ‘the danger of prejudice to the non-moving party, the length of the delay and its 

potential impact on judicial proceedings, the reason for the delay, including whether it was within 

the reasonable control of the movant, and whether the movant acted in good faith.’” Hurley v. 

Anderson, No. 16-80102-CIV, 2017 WL 4304894, at *2 (S.D. Fla. May 2017) (quoting Pioneer 

Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993) (alterations omitted)).

As the Court discussed in its prior Order, Defendant did, in fact, have a full opportunity to 

depose Jason Dunbar after receiving the March 11, 2022 report, yet failed to do so. Defendant has 

admitted that it chose not to move to compel Dunbar’s deposition after Dunbar refused to make 

himself voluntarily available for a deposition. [DE 154 at 7]. If Defendant had subpoenaed Dunbar 

and paid his professional fees and witness fees, Defendant most likely could have even deposed 

Dunbar without the need to file a motion compel.1 Defendant also could have filed a motion to 

1 It appears that Dunbar’s deposition was scheduled for April 19, 2022, but the deposition did not go forward because 

Defendant failed to subpoena Dunbar, and Defendant never paid the witness fees or professional fees. [DE 143-4; DE 

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compel Dunbar’s deposition but inexplicably failed to do so. Defendant additionally could have 

moved for leave to retain an expert during the discovery period to contradict Dunbar’s March 2022 

findings relating to damages but chose not to. Rather, Defendant has now belatedly moved “in the 

alternative” to retain a rebuttal expert on the eve of the August 15, 2022 specially set trial. If 

granted, this request would most likely require a continuance of the specially set trial and 

unnecessarily interfere with this Court’s schedule. The Court finds that Defendant has not shown 

good cause or excusable neglect for failing to depose Dunbar and/or failing to retain a rebuttal 

expert before the discovery cutoff elapsed. 

Finally, the Court notes that Defendant did not seek the deposition of Dunbar or time to 

retain a rebuttal expert in its original Objection and Motion to Strike Affidavit of Jason Dunbar 

[DE 132] or in its reply [DE 154]. Thus, Defendant should not be permitted to belatedly seek such

relief now, on the eve of trial, especially after waiting almost a month after the Court’s Order was 

entered to file its Motion. 

CONCLUSION

Based on the foregoing, it is hereby ORDERED that Defendant’s Motion to Alter or 

Amend an Order [DE 162] is DENIED. 

DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, in the 

Southern District of Florida, this 11th day of July, 2022. 

WILLIAM MATTHEWMAN 

United States Magistrate Judge

143-5]. 

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