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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

FTN FINANCIAL CAPITAL MARKETS,

a division of First Tennessee Bank,

National Association,

Plaintiff/Counter-Defendant,

vs. 4:03-CV-249-SPM

MAGNOLIA CAPITAL ADVISORS,

INC.,

Defendant/Counter-Plaintiff,

_____________________________/

ORDER DENYING DEFENDANT PARAGON’S MOTION FOR 

ENTRY OF FINAL JUDGMENT

THIS CAUSE comes before the Court upon “Defendant Paragon Financial

Group, Incorporated’s Motion for Entry of Final Judgment and Memorandum in

Support” (doc. 223) filed June 23, 2005 and Plaintiff’s memorandum in opposition

(doc. 228) filed July 8, 2005. For the reasons set forth below, the Court finds the

motion must be denied.

I.

Paragon moves for entry of judgment under Federal Rule of Civil

Procedure 54(b), which provides:

When more than one claim for relief is presented in an action,

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whether as a claim, counterclaim, cross-claim, or third-party claim,

or when multiple parties are involved, the court may direct the entry

of a final judgment as to one or more but fewer than all of the

claims or parties only upon an express determination that there is

no just reason for delay and upon an express direction for the entry

of judgment. In the absence of such determination and direction,

any order or other form of decision, however designated, which

adjudicates fewer than all the claims or the rights and liabilities of

fewer than all the parties shall not terminate the action as to any of

the claims or parties, and the order or other form of decision is

subject to revision at any time before the entry of judgment

adjudicating all the claims and the rights and liabilities of all the

parties.

Paragon asserts as grounds for the motion that “[i]t is not disputed, and cannot

be disputed, that Paragon was to be dismissed, with prejudice, without payments

of monies by Paragon to Plaintiff (or payment of monies from Plaintiff to Paragon,

for that matter) on a non-confidential basis once the agreement among Plaintiff

and the principal Defendants was finalized.” 

A review of the e-mail correspondence between the parties does not

“indisputably” demonstrate Paragon’s intended outcome. A general chronology,

which includes all references to Paragon, is set out below.

January 25, 2005: Defense counsel Kelly O’Keefe e-mails Plaintiff with her

understanding of the terms of settlement, adding, “I don’t have to worry about

Paragon bringing Magnolia, its clients, or Don back in the suit either so I guess I

need to know whether FTN is planning on dismissing the suit against Paragon as

well. That issue should be addressed in the release and we may need Paragon

as a party. The terms as I currently understand them are:

* * *

2) MCAI and FTN will enter a mutual release with terms to be

agreed on, including terms that resolve the Paragon issue

explained above.

* * *

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January 25, 2005: Plaintiff responds with: “We have a deal in principal [sic], with

the terms and details to be reduced to writing. [A]s we have discussed, the

release will include related companies and individuals on both sides. I will call

Perry today re Paragon.” 

January 27, 2005: Plaintiff e-mails a proposed written “Mutual Release and

Settlement Agreement” to all parties. The introductory paragraph reads as

follows:

This Mutual Release and Settlement Agreement (“Agreement”) is

knowingly, willingly, and voluntarily entered into this ____ day of

_______, 2005, by and between FTN Financial Capital Markets

(“FTN”), Magnolia Capital Advisors, Inc. (“Magnolia”), Don Reinhard

(“Mr. Reinhard”) and Sarah Reinhard (“Mrs. Reinhard”) in order to

conclude, terminate, and settle any and all disputes between them.

January 27, 2005: Plaintiff e-mails the proposed Notice of Settlement to all

parties. 

January 27, 2005: O’Keefe replies to an e-mail sent by Plaintiff discussing when

the settlement would be finalized: “As I represented, we are going forward with

the settlement agreement provided we work out the terms of the release. That

depends on Paragon’s agreement too.”

January 28, 2005: O’Keefe advises Plaintiff that she will attempt to have the

agreement executed within the next three days (as per Plaintiff’s request), but

warns that she could provide no guarantee: “Per our discussion I will attempt to

coordinate execution of the agreement by Monday as you requested. However,

in light of the fact that . . . we need to consider the effect of Paragon not entering

a confidentiality agreement I cannot guarantee that it will be finalized by Monday. 

I will do what I can.” 

II.

Under Rule 54(b), a “final judgment” is a ‘judgment’ in the sense that it is a

decision upon a cognizable claim for relief, and it must be ‘final’ in the sense that

it is ‘an ultimate disposition of an individual claim entered in the course of a

multiple claims action.’” Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8

(1980). The order enforcing the settlement agreement is final as to the other

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parties in the suit, not to Paragon. The introductory paragraph of the settlement

agreement names only four parties: 1) FTN; 2) Magnolia Capital Advisors, Inc.;

3) Don Reinhard; and 4) Sarah Reinhard. No mention is made of including

Paragon in this release. Indeed, there was no response to O’Keefe’s inquiry as

to “whether FTN is planning on dismissing the suit against Paragon as well.”

The correspondence between the parties, recited supra, shows that

settlement between FTN and Paragon was still “up in the air” at the time the

January 27, 2005 settlement agreement was signed, and there has been no

indication of changed circumstances since then. Paragon cannot now request

that final judgment be entered on an order that does not even refer to Paragon. 

Accordingly, it is

ORDERED AND ADJUDGED that the motion for entry of final judgment

(doc. 223) is hereby denied.

DONE AND ORDERED this eighteenth day of July, 2005.

 s/ Stephan P. Mickle 

Stephan P. Mickle

United States District Judge

/pao

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