United States District Court

for the

Southern District of Florida

Oceania III Condominium 

Association, Inc., Plaintiff,

v.

Westchester Surplus Lines Ins. Co. 

and Everest Indemnity Ins. Co., 

Defendants.

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Civil Action No. 22-23681-Civ-Scola

Order Denying the Plaintiff’s Motion for Reconsideration

The Plaintiff Oceania III Condominium Association, Inc. (“Oceania”) 

moves for reconsideration of the Court’s February 23, 2023, order (ECF No. 32) 

granting the Defendants Everest Indemnity Insurance Company and 

Westchester Surplus Lines Insurance Company’s (collectively the “Defendants”) 

joint motion to dismiss Oceania’s amended complaint. (Mot. for Recons., ECF 

No. 33.) The Defendants responded in opposition to Oceania’s motion. (Resp., 

ECF No. 34.) Although Oceania did not file a reply, it later submitted a notice of 

supplemental authority in support of its motion. (Notice, ECF No. 37.) The 

Court has reviewed the record, the parties’ briefs, and the relevant legal 

authorities. For the reasons set forth below, the Court denies Oceania’s 

motion. (Mot. for Recons., ECF No. 33.) 

As an initial matter, the Court notes that Oceania’s motion is not 

received favorably because it is procedurally deficient. Local Rule 7.1(a)(3) of 

the U.S. District Court for the Southern District of Florida requires that:

Prior to filing any motion in a civil case, . . . counsel for the movant 

shall confer (orally or in writing), or make reasonable effort to confer

(orally or in writing), with all parties or non-parties who may be 

affected by the relief sought in the motion in a good faith effort to 

resolve by agreement the issues to be raised in the motion. 

S.D. Fla. L.R. 7.1(a)(3). The Rule further requires that “[a]t the end of the 

motion, and above the signature block, counsel for the moving party shall 

certify” how they have complied with the rule, and states that “[f]ailure to 

comply . . . may be cause for the Court to grant or deny the motion and impose 

on counsel an appropriate sanction . . . .” Id. (emphasis added). By its terms, 

the Rule does not exempt motions for reconsideration from its requirements. 

(See id.)

Despite the foregoing, Oceania’s motion makes no mention of conferring, 

or reasonable efforts to confer, with counsel for the Defendants. In addition, 

Case 1:22-cv-23681-RNS Document 42 Entered on FLSD Docket 06/12/2023 Page 1 of 4
even though the Defendants’ response emphasizes the fact that Oceania did 

not confer with them prior to moving for reconsideration, Oceania did not file a 

reply or otherwise attempt to justify its failure to confer. This, alone, is 

sufficient for the Court to deny Oceania’s request for reconsideration. See, e.g., 

Khan v. United States, No. 13-24366-CIV-ALTONAGA, 2014 U.S. Dist. LEXIS 

203035, at *3 (S.D. Fla. July 8, 2014) (Altonaga, J.) (“It is therefore unclear 

what efforts (if any) were made to confer with counsel for Khan about the relief 

the Government requests, and the Court denies the Motion on this ground.”). 

Notwithstanding the above, the Court also finds that Oceania’s motion 

fails on the merits. In seeking reconsideration, Oceania invokes Federal Rules 

of Civil Procedure 59(e) and 60(b)(6). Oceania’s burden under each Rule is 

essentially the same. 

Rule 59(e) permits a motion to alter or amend a judgment, but only in 

limited circumstances—where there is “newly-discovered evidence or manifest 

errors of law or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) 

(quotation omitted). Thus, “[a] Rule 59(e) motion cannot be used to relitigate 

old matters, raise argument or present evidence that could have been raised 

prior to the entry of judgment.” Id. (cleaned up). 

It is an improper use of the motion to reconsider to ask the Court to 

rethink what the Court already thought through—rightly or wrongly. 

The motion to reconsider would be appropriate where, for example, 

the Court has patently misunderstood a party, or has made a 

decision outside the adversarial issues presented to the Court by the 

parties, or has made an error not of reasoning but of apprehension. 

A further basis for a motion to reconsider would be a controlling or 

significant change in the law or facts since the submission of the 

issue to the Court. Such problems rarely arise and the motion to 

reconsider should be equally rare. 

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

(Hoeveler, J.) (cleaned up).1 

Rule 60(b)(6) permits relief from a final judgment or order for “any other 

reason that justifies relief.” Relief under this provision is an “extraordinary 

remedy which may be invoked only upon a showing of exceptional 

circumstances.” Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984). 

The moving party must show that “an ‘extreme’ and ‘unexpected’ hardship will 

result” absent relief. Id. (quoting United States v. Swift & Co., 286 U.S. 106, 

119, 52 S. Ct. 460, 76 L. Ed. 999 (1932)). As with Rule 59(e), a motion for 

1 Additionally, a Rule 59(e) motion “must be filed no later than 28 days after the entry of the 

judgment[,]” so that Oceania should have filed its motion by March 23, 2023. Instead, Oceania 

submitted its motion on March 24, 2023, without previously seeking an extension of time from 

the Court, which means that the motion can be denied on this ground as well. 

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reconsideration under Rule 60(b) “cannot be used to relitigate old matters or 

present arguments or evidence that the movant could have raised before the 

entry of judgment.” Imperato v. Hartford Ins. Co., 803 F. App’x 229, 231 (11th 

Cir. 2020) (per curiam).

After considering Oceania’s motion, the record, and the relevant legal 

authorities, the Court finds that Oceania does not meet the standard of either 

Rule 59(e) or 60(b)(6). In its order granting the Defendants’ joint motion to 

dismiss, the Court concluded that Oceania’s complaint was time-barred 

because it was filed after the running of the applicable statute of limitations. 

(See ECF No. 32.) To reach that conclusion, the Court considered, and rejected, 

three separate arguments raised by Oceania for why the statute of limitations 

on its claim should be tolled. (Id.) Oceania now argues that the Defendants’

joint reply in support of their motion to dismiss inaccurately represented the 

interactions between the parties in the months leading up to the running of the 

statute of limitations, such that the events that actually unfolded support the 

tolling arguments previously rejected by the Court. (See Mot. for Recons., ECF 

No. 33.) Critically, however, Oceania fails to provide any justification 

whatsoever for waiting until now to provide the additional information on which 

its motion for reconsideration depends.

Oceania support its motion for reconsideration by asserting myriad 

additional facts and providing no less than nine (9) new exhibits to show that it 

was not sitting on its “proverbial hands” while the statute of limitations ran on 

its claim. (Id. at 2.) But Oceania does not give any reasons why it could not 

have raised this evidence before the Court issued its decision on the 

Defendants’ motion to dismiss. To that point, all of the new materials provided 

by Oceania appear to have been created well before the parties’ briefing on the 

motion to dismiss was underway, with the latest such document dated 

September 13, 2022. (See Ex. 9 to Mot. for Recons., ECF No. 33-9.) In addition, 

all of the materials were either drafted by, or sent to, Oceania’s counsel, so 

there is no reason to believe that Oceania did not have access to the 

information until recently. Moreover, to the extent Oceania suggests that it 

could not adequately address the Defendants’ version of events because it was

only set forth in their reply in support of dismissal, Oceania could have, but 

failed to, move the Court for leave to file a sur-reply. Thus, the thrust of 

Oceania’s motion is that the Court should reconsider arguments it already

rejected because of evidence that Oceania, without any justification, failed to 

provide before the entry of the Court’s order. This is precisely the kind of 

situation that the Eleventh Circuit has consistently held Rules 59(e) and 

60(b)(6) were not intended for. 

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Finally, the Court notes that Oceania’s supplemental authority does not 

change the Court’s decision. Oceania points the Court to Cole v. Universal Prop. 

& Cas. Ins. Co., 2023 Fla. App. LEXIS 2997 (4th DCA 2023), which was decided 

after the Court issued its order granting the Defendants’ joint motion to 

dismiss. In Cole, Florida’s Fourth District Court of Appeal held that the pre-suit 

notice provision in Fla. Stat. § 627.70152(3) is procedural in nature and, as 

such, applies retroactively to policies that, like Oceania’s, were in existence at 

the time of the statute’s enactment. (Id. at *13.) However, Cole did not address 

the precise issue presented by this case—i.e., whether § 627.70152(3) could be 

applied retroactively to toll the statute of limitations on an insured’s claim. 

Moreover, Cole specifically distinguished Menendez v. Progressive Express Ins. 

Co., 35 So. 3d 873, 878 (Fla. 2010), the Florida Supreme Court decision on 

which courts have relied to “overwhelmingly f[ind] that, because [§ 627.70152] 

affects substantive rights by imposing new duties on the insured, it cannot be 

applied retroactively.” New Laxmi v. Rockhill Ins. Co., No. 22-23421-CIV, 2023 

U.S. Dist. LEXIS 62312, at *6 (S.D. Fla. Feb. 28, 2023) (Martinez, J.) (quoting 

Hershenhorn v. Am. Home Assurance Co., No. 21-CV-897, 2022 U.S. Dist. 

LEXIS 145606, at *4 (M.D. Fla. Aug. 15, 2022)). Unlike those courts, and 

unlike the Florida Supreme Court in Menendez, the Cole court did not consider 

whether § 627.70152(3)’s other provisions, such as that tolling the statute of 

limitations, substantively impact the rights of both the insured and the 

insurer, so that the statute cannot be applied retroactively in circumstances 

like this one. Cf. Menendez, 35 So. 3d at 878 (considering amendment that 

tolled the statute of limitations as part of the reason that new pre-suit notice 

provision could not be applied retroactively).2 

Accordingly, for the reasons explained above, the Court concludes that 

Oceania has failed to meet the demanding standards for reconsideration and 

denies its motion under both Rules 59(e) and 60(b)(6). (Mot. for Recons., ECF 

No. 33.) 

Done and ordered at Miami, Florida on June 12, 2023. 

 

 ________________________________ 

 Robert N. Scola, Jr. 

 United States District Judge 

2 See also Silverberg v. Paine, Webber, Jackson & Curtis, Inc., 710 F.2d 678, 690 (11th Cir. 

1983) (“A federal court applying state law is bound to adhere to decisions of the state’s 

intermediate appellate courts absent some persuasive indication that the state’s highest court 

would decide the issue otherwise.”).

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