United States District Court, M.D. Florida, Fort Myers Division
CONTINENTAL 332 FUND, LLC, CONTINENTAL 298 FUND LLC, CONTINENTAL 306 FUND LLC, CONTINENTAL 326 FUND LLC, CONTINENTAL 347 FUND LLC, CONTINENTAL 355 FUND LLC, CONTINENTAL 342 FUND LLC and CONTINENTAL 245 FUND LLC, Plaintiffs,
DAVID ALBERTELLI, ALBERTELLI CONSTRUCTION INC., WESTCORE CONSTRUCTION, LLC, NATIONAL FRAMING, LLC, MFDC, LLC, TEAM CCR, LLC, BROOK KOZLOWSKI, JOHN SALAT, KEVIN BURKE, KERRY HELTZEL, AMY BUTLER, U.S. CONSTRUCTION TRUST, FOUNDATION MANAGEMENT, LLC, KMM CONSTRUCTION, LLC, WESTCORE CONSTRUCTION, L.L.C. and GEORGE ALBERTELLI, Defendants.
OPINION AND ORDER 
SHERIPOLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants' Joint Motion
to Permit Interlocutory Appeal and Stay (Docs. 151) filed on
June 21, 2018. Plaintiffs responded on July 5, 2018.
(Doc. 153). The matter is therefore ripe for review.
a dispute over an effort to pursue an interlocutory appeal of
denied motions to dismiss in an ongoing civil fraud case. The
details of the case have been meticulously laid out in an
earlier Opinion and Order. (Doc. 144). Only the salient facts
will be set forth here. Plaintiffs are funds created to
bankroll apartment construction projects around the country.
(Doc. 117 at ¶¶ 16(a)-(h)). Defendants are a group
of interrelated individuals and corporations that undertook
various roles associated with the construction of
Plaintiffs' apartment complexes. (Doc. 117 at
¶¶ 1-15, 18-33). Plaintiffs allege Defendants
perpetrated a wide-ranging fraudulent scheme upon them over a
period of six years on multiple construction projects. (Doc.
117 at ¶¶ 1-15, 44(a)-(h)).
experience led some of the Plaintiffs to sue some of the
Defendants in January 2017. (Doc. 1). After multiple
amendments and the addition of the entire panoply of current
Defendants, Plaintiffs filed a twenty-one count Third Amended
Complaint in March 2018. (Doc. 117). Count 1 of the Third
Amended Complaint alleges Defendants are liable for
violations of the Federal Racketeering Influenced and Corrupt
Practices Act (the "RICO Act") (Doc. 117 at
¶¶ 50-271). Although the RICO Act includes four
different causes of action under subsections of 18 U.S.C.
§ 1962, Count 1 did not specify the subsections upon
which it was lodged. Defendants seized on this omission and
moved to dismiss, arguing Count 1 was a shotgun pleading
because it involved: (1) multiple Plaintiffs, (2) multiple
Defendants, and (3) alleged violations of multiple
unspecified subsections of the RICO Act. (Docs. 130; 135;
136; 137, 138). The Court found it was not necessary for
Count 1 to be split into claims involving individual
Plaintiffs because the interests of clarity were advanced by
joining them in a single claim based on an alleged pattern of
behavior. (Doc. 144 at 19). It further found Count 1 did not
need to be split into claims involving individual Defendants
because it adequately alleged the actions each party
allegedly undertook. (Doc. 144 at 19). Finally, the Court
found it was not necessary for Count 1 to specifically state
the RICO subsections upon which it was based because
Defendants were provided adequate notice of the claims
against them and the grounds upon which each claim
rests. (Doc. 144 at 16-17). Now, Defendants move
for interlocutory appeal of that decision. (Doc. 151).
review is generally looked upon as "bad policy"
because of its piecemeal effect on cases. McFarlin v.
Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir.
2004). That said, under 28 U.S.C. § 1292(b), a
"district court may permit an interlocutory appeal when
the order at issue (1) involves a controlling question of law
upon which there is (2) a substantial ground for difference
of opinion, and (3) when immediate appeal from the order may
materially advance the ultimate termination of the
litigation. In re Yormak, No. 2:17-CV-73-FTM-38,
2017 WL 2645601, at *2 (M.D. Fla. June 19, 2017), appeal
dismissed, No. 17-13239-FF, 2017 WL 4857438 (11th Cir.
Sept. 13, 2017). "The movant seeking interlocutory
appeal bears the burden of showing that all § 1292(b)
requirements are satisfied and that the case is one of the
rare exceptions in which the court should exercise judicial
discretion to grant the remedy." In re Cmty. Health
Sys., Inc., No. 15-CV-222-KOB, 2017 WL 604334, at *2
(N.D. Ala. Feb. 15, 2017). "[I]f any elements are not
satisfied, the Court must deny interlocutory review."
In re Yormak, 2017 WL 2645601, at *2; see also
Inetianbor v. CashCall, Inc., No. 13-60066-CIV, 2016 WL
4249938, at *2 (S.D. Fla. Jan. 26, 2016).
Controlling Question of Law
the first element for interlocutory appeal, the movant must
demonstrate there is a question of law, and it is
controlling. See McFarlin v. Conseco Servs., LLC,
381 F.3d 1251, 1259 (11th Cir. 2004). A controlling question
of law pertains to "the meaning of a statutory or
constitutional provision, regulation, or common law
doctrine." Id. at 1258. In other words, a
controlling question of law is an issue of "pure
law" that can be decided "quickly and cleanly
without having to study the record." Id. The
question must also "be stated at a high enough level of
abstraction to lift the question out of the details of the
evidence or facts of a particular case and give it general
relevance to other cases in the same area of law."
Id. at 1259. By contrast, "[t]he antithesis of
a proper § 1292(b) appeal is one that turns on whether
there is a genuine issue of fact or whether the district
court properly applied settled law to the facts or evidence
of a particular case." Id. at 1259.
that backdrop, Defendants' proposed controlling question
of law is "[w]hether Plaintiffs have adequately
plead[ed] a RICO claim against all sixteen Defendants."
(Doc. 151 at 3). That, however, is plainly an issue that
turns on whether the Court "properly applied settled law
to the facts or evidence of a particular case." See
Id. Consequently, that question does not provide grounds
read charitably, though, the substance of Defendant's
Motion can be interpreted to propose another controlling
question of law: "what constitutes sufficient notice to
the Defendants for the purposes of avoiding the label of
shotgun pleading?" (Doc. 151 at 5). The Eleventh Circuit
refers to "[c]omplaints that violate either Rule 8(a)(2)
or Rule 10(b), or both ... as 'shotgun
pleadings.'" Weiland v. Palm Beach Cty.
Sheriff's Office, 792 F.3d 1313, 1320 (11th Cir.
2015). Thus, meaning and interpretation of that designation
is an issue of pure law. Thus, it satisfies the first element
necessary for interlocutory appeal.
Substantial Ground for Difference of Opinion
controlling question of law exists, the appellant must next
demonstrate the existence of a substantial ground for
difference of opinion. Flaum v. Doctor's Assocs.,
Inc., No. 16-61198-CIV, 2016 WL 8677304, at *2 (S.D.
Fla. Oct. 27, 2016). To do this, the appellant must show
"a legal issue is (1) difficult and of first impression,
(2) the district courts of the controlling circuit are split
as to the issue, or (3) the circuits are split on the
issue." Id. "[M]erely showing that the
order for which appeal is sought presents a difficult ruling,
or demonstrating a lack of authority ...