govinfo:USCOURTS-flsd-1_21-cv-24221-1

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
CASE NO. 21-24221-CIV-LENARD/LOUIS 
 
PABLO DARIO CASTILLO, 
 
 Plaintiff, 
 
v. 
 
FERNANDO COLMENARES, 
 
 Defendant, 
________________________________/ 
 
FERNANDO COLMENARES, 
 
 Counter-Plaintiff, 
 
v. 
 
PABLO DARIO CASTILLO, 
 
 Counter-Defendant, 
_____________________________________________/ 
 
ORDER  
 
 THIS CAUSE is before the Court on Defendant’s Motion to Alter or Amend  
Judgment (“Motion”) (D.E. 323), filed October 2, 2025. In it, Defendant requests the Court 
alter or amend its Judgment (“Judgment”) (D.E. 322) entered September 30, 2025. Plaintiff 
filed his Response (“Response”) (D.E. 324) on October 14, 2025, and Defendant filed his 
Reply (“Reply”) on October 20, 2025. Having considered the Motion, the Response, the 
Reply, the docket, and otherwise being fully informed, the Court finds as follows. 
 
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I. Background 
The Plaintiff filed the Complaint (“Complaint”) (D.E. 1) on December 1, 2021, 
alleging the following Counts against the Defendant: (I) breach of fiduciary duty; (II) 
fraudulent misappropriation;1 (III) conversion; and (IV) constructive trust. D.E. 1 at 4-10. 
The Complaint alleges that the Court has diversity jurisdiction over this case pursuant to 
28 U.S.C. § 1332. The Plaintiff is an Argentine citizen who resides in Argentina. D.E. 1 at 
1. The Defendant is a citizen of Florida. Id. The Plaintiff alleges an amount in controversy 
greater than $75,000. Id. The Defendant filed his Answer, Affirmative Defenses, and 
Counterclaim (“Counterclaim”) (D.E. 34) on April 21, 2022. 
Throughout this case, Defendant has engaged in persistent bad faith, dilatory 
conduct. See D.E. 314. This case was delayed several times, including due to Defendant’s 
dilatory tactics. See D.E. 163 at 2. When Defendant failed to appear at the Final Pretrial 
Conference scheduled for June 16, 2025, the Court granted Plaintiff’s ore tenus Motion for 
Default and dismissed Defendant’s Counterclaim. See D.E. 31 0. The Court later 
supplemented its findings in an Order (“Order Granting Default”) (D.E. 314) and directed 
Plaintiff move for default judgment. See D.E. 314 at 23-24 . On September 22, 2025, 
Plaintiff filed his Motion for Default Judgment (D.E. 317), and Defendant filed his 
Response to the Motion for Default Judgment (D.E. 320) on September 29, 2025. At the 
Court’s direction, Plaintiff filed a Supplement to the Motion for Default Judgment  
(“Supplement”) (D.E. 319), also on September 29, 2025. See D.E. 318; D.E. 319. 
 
1 The Complaint has since been amended to voluntarily dismiss Count II. D.E. 263. 
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The Court granted Default Judgment and entered its Judgment on September 30, 
2025. D.E. 321; D.E. 322. Defendant’s Motion requests the Court alter or amend its 
Judgment pursuant to FRCP 59(e), alleging the Judgment “contains a clear error of law” 
and was the result of “procedural irregularity that materially affected the outcome of the 
case.” D.E. 323 at 1. Specifically, Defendant argues that Plaintiff lacks standing to enforce 
his claims and that th e Court erred by allowing Plaintiff to proceed with his claims 
personally, instead of as a derivative action. Id. at 2-3. Further, Defendant alleges that by 
granting the Motion for Default Judgment without providing Defendant an opportunity to 
respond to the Supplement, the Court’s Judgment was procedurally flawed. Id. at 3-4. 
In his Response, Plaintiff argues that there was no clear error, that Defendant’s 
standing argument is recycled and incorrect, and that there was no procedural error, as 
Defendant was able to respond to the first Motion for Default Judgment, and that the 
Supplement introduced no new evidence or legal argument. D.E. 324 at 2-5. 
In his Reply, Defendant reiterates his arguments from the Motion. See D.E. 325. 
II. Applicable Law 
Federal Rule of Civil Procedure  59(e) provides that a party may move to alter or 
amend a judgment within 28 days of 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). A litigant 
“cannot use a Rule 59(e) motion to relitigate old matters, raise argument or present 
evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. 
Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005). 
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III. Discussion 
The Court first addresses Defendant’s argument that the Court erred by granting 
default judgment, asserting that this case should have been treated as a derivative action, 
and that allowing Plaintiff to personally recover damages was clear error. Defendant 
previously made this same argument in his untimely Motion for Judgment on the Pleadings. 
See D.E. 221; D.E. 230. 
As an initial matter, this argument does not meet the standard of Rule 59(e) of 
presenting either newly discovered evidence or manifest error in law or fact. Plaintiff has 
properly pleaded this action alleging personal harm. Pursuant to Florida law, a member of 
an LLC may maintain a direct action against another member or manager to protect their 
rights and interests where they plead and prove an actual injury that is not solely the result 
of injury suffered by the LLC. FL Stat § 605.0801 (2025). The Complaint properly pleads 
actual injury suffered directly by Plaintiff, and the Motion for Default Judgment and the  
Supplement prove that injury. See D.E. 1; D.E. 319. 
Furthermore, this argument has already been advanced by Defendant, in his Motion 
for Judgment on the Pleadings and in his Motion for Reconsideration of the denial of the 
same. D.E. 221; D.E. 235. In denying the Motion for Reconsideration, the Court found 
that: 
Defendant Colmenares does not raise arguments that comply with the 
standard set forth by Rule 59(e). Defendant's motion is instead a length 
recitation of the procedural history of the case, and an attempt to litigate 
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matters that have either been previously addressed by the Court, or 
unresolved matters that must be addressed at trial. 
D.E. 238. The Court adopts its reasoning from its denial of the Motion for 
Reconsideration.  
That Defendant’s Motion for Judgment on the Pleadings was denied for being 
untimely, rather than decided on its merits, does not alter this conclusion. Per the Eleventh 
Circuit, Rule 59(e) motions cannot be used to “relitigate old matters, raise argument or 
present evidence that could have been raised prior to the entry of judgment.” Michael Linet, 
408 F.3d at 763 (italics added). Defendant cannot now use the Motion to take yet another 
bite at the apple. 
Next, the Court addresses the argument of procedural irregularity. Defendant argues 
that the Court erred by entering Judgment without providing Defendant an opportunity to 
respond to the Supplement. D.E. 323 at 3. Defendant argues that this materially affected 
the outcome of the case. Id. at 1. As the Court noted above, Defendant filed a response to 
Plaintiff’s Motion for Default Judgment. See D.E. 317; D.E. 320. The Court directed 
Plaintiff to file a supplement to his Motion for Default Judgment that contains further proof 
of his claims.  D.E. 318. Plaintiff did so and the Court granted Judgment. D.E. 319; D.E. 
322. 
This argument is without merit. Defendant was not entitled to respond to the 
Supplement. Defendant was afforded the opportunity to respond to the Motion for Default 
Judgment. Defendant’s Response to the Motion for Summary Judgment and the Motion 
contain substantially the same argument, specifically, that Plaintiff was not entitled to bring 
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this case as a personal, rather than derivative, action. See D.E. 320; D.E. 323. This 
relitigation of a baseless argument would not have availed him in response to the 
Supplement any more than in the Motion for Summary Judgment.  Defendant argues that 
the Court denied him the opportunity to respond to the Supplement 
In sum, this Motion is the most recent chapter in Defendant’s dilatory, bad faith 
conduct that he has maintained throughout this case. Had Defendant wished to defend this 
case in good faith, he had nearly five years in which to do so. Instead, at every step, he 
engaged in bad faith behavior, misrepresented facts, and showed a flagrant disregard for 
the Court’s Orders and a total lack of respect for everyone else in this case. 
IV. Conclusion 
For the preceding reasons, it is ORDERED AND ADJUDGED  that Defendant’s 
Motion to Alter or Amend Judgment (D.E. 323) is DENIED. 
DONE AND ORDERED in Chambers at Miami, Florida this 21st day of April,  
2026. 
            
     ____________________________________ 
     JOAN A. LENARD 
     UNITED STATES DISTRICT JUDGE 
 
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