Absolute Activist Value Master Fund Limited et al v. Devine
Filing
574
OPINION AND ORDER denying as moot 380 defendant's Motion for Reconsideration of Court's Order Denying Her Motion to Dissolve Temporary Restraining Order. See Opinion and Order for details. Signed by Judge John E. Steele on 7/25/2017. (AMB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ABSOLUTE
ACTIVIST
VALUE
MASTER
FUND
LIMITED,
ABSOLUTE
EAST
WEST
FUND
LIMITED, ABSOLUTE EAST WEST
MASTER
FUND
LIMITED,
ABSOLUTE EUROPEAN CATALYST
FUND
LIMITED,
ABSOLUTE
GERMANY
FUND
LIMITED,
ABSOLUTE INDIA FUND LIMITED,
ABSOLUTE
OCTANE
FUND
LIMITED,
ABSOLUTE
OCTANE
MASTER FUND LIMITED, and
ABSOLUTE RETURN EUROPE FUND
LIMITED,
Plaintiffs,
v.
Case No: 2:15-cv-328-FtM-29MRM
SUSAN ELAINE DEVINE,
Defendant.
OPINION AND ORDER
This matter comes before the Court on defendant's Motion for
Reconsideration of Court's Order Denying Her Motion to Dissolve
Temporary Restraining Order (Doc. #380) filed on May 17, 2016.
Plaintiffs filed a Response (Doc. #408) on June 14, 2016.
I.
On June 1, 2015, plaintiffs filed a six-count Complaint
against Ms. Susan Devine (“Devine”) alleging that Devine engaged
in a money laundering enterprise with her ex-husband, Florian Homm,
to conceal tens of millions of dollars fraudulently taken from the
plaintiffs pursuant to an illegal “Penny Stock Scheme.”
#2.)
(Doc.
Plaintiffs’ initial and Amended Complaint asserted claims
against Devine for:
(1) Violation of RICO, 18 U.S.C. § 1962(c);
(2) RICO Conspiracy, 18 U.S.C. § 1962(d); (3) Florida RICO and
Civil Remedies for Criminal Activities; (4) Florida RICO and
Florida Civil Remedies for Criminal Activities—Conspiracy; (5)
Unjust Enrichment; and (6) Constructive Trust.
(Docs. ##2, 196.)
Concurrently with the filing of the initial Complaint, plaintiffs
filed an Ex Parte Motion for Temporary Restraining Order and
Preliminary
Injunction
seeking
to
“restrain[]
Devine
from
transferring or dissipating any and all assets in her name or under
her control.”
On
July
(Doc. #3, p. 10.)
1,
2015,
this
Court
entered
an
Order
plaintiffs’ Motion for Temporary Restraining Order.
granting
(Doc. # 10.)
The Temporary Restraining Order (“TRO”) contained the following
language:
Defendant Susan Elaine Devine, her officers,
agents, servants, and employees and any
persons in active concert or participation
with them are temporarily restrained and
enjoined
from
directly
or
indirectly
transferring,
selling,
alienating,
liquidating, encumbering, pledging, leasing,
loaning, assigning, concealing, dissipating,
converting,
withdrawing,
or
otherwise
disposing of any money or other of Devine’s
assets, including: (i) any assets located in
bank accounts or other financial accounts in
Devine’s name (or for her benefit or the
benefit of her children) or the names of
foundations benefitting or controlled by
Devine, including but not limited to any
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account of Brek Stiftung, Loyr Stiftung,
Hosifa Stiftung, Floma Foundation, and/or
Levanne Stiftung, or otherwise under her
direct or indirect control; (ii) Devine’s
residence in Naples Florida; and (iii) any
other assets of any type, and in any form,
held by Devine, or under her direct or
indirect control, anywhere in the world.
(Id. at 66-67.)
Additionally, the Court ordered Devine to produce
“documents sufficient to identify all assets, anywhere in the
world, currently under her direct or indirect control.”
68.)
In
response,
Devine
produced
a
list
of
(Id. at
eighty-two
individually identified assets, eleven of which were shown as being
held by Devine for the benefit of her children, Isabella Devine
(“Isabella”) and/or Conrad Homm (“Conrad”).
(Docs. ##116-1, 130-
1.)
The TRO was initially in place for a period of fourteen days
and has since been modified (see, e.g., Docs. ##68, 76, 198, 230,
233, 275, 313, 333, 445, 556) and, pursuant to agreement of the
parties, extended through the trial on the merits, (Docs. ##81,
83).
On September 29, 2015, defendant moved to dissolve the TRO
(Doc. #96), which this Court denied on April 19, 2016 (Doc. #368).
On May 17, 2016, defendant sought reconsideration of the Court’s
Order denying her Motion to Dissolve Temporary Restraining Order,
(Doc. #380), and on May 19, 2017 defendant filed a Notice of
- 3 -
Interlocutory Appeal of the Court’s Order denying her Motion to
Dissolve Temporary Restraining Order (Doc. #383). 1
On February 8, 2017, the Court granted in part and denied in
part defendant’s Motion to Dismiss Amended Complaint, dismissing
without prejudice plaintiffs’ federal and Florida RICO claims and
dismissing with prejudice plaintiffs’ constructive trust claim,
leaving only the unjust enrichment claim remaining.
(Doc. #521.)
The Court allowed plaintiffs twenty-one days to amend, should they
desire.
(Id.)
On February 28, 2017, plaintiffs notified the
Court that they would be proceeding on their sole remaining state
law claim of unjust enrichment. 2 (Doc. #527.)
II.
“As a general matter, the filing of a notice of appeal
deprives
the
district
involved in the appeal.”
court
of
jurisdiction
over
all
issues
Mahone v. Ray, 326 F.3d 1176, 1179 (11th
Cir. 2003) (citing Griggs v. Provident Consumer Disc. Co., 459
1
It was just brought to the Court’s attention that the
Eleventh Circuit Court of Appeal stayed briefing pending this
Court’s resolution of the Motion for Reconsideration. (Doc. #539,
p. 3 n.2.)
2
The Court directed plaintiffs to file a Second Amended
Complaint containing only their unjust enrichment claim and the
related allegations.
(Doc. #559.) On May 15, 2017, plaintiffs
filed a Second Amended Complaint, the operative pleading before
the Court. (Doc. #560.)
Defendant has since again moved to dissolve the Ex Parte TRO.
(Doc. #530.) This motion is currently pending before the Court.
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U.S. 56, 58 (1982)).
however,
“prevent
The filing of a notice of appeal does not,
the
district
court
from
taking
action
‘in
furtherance of the appeal,’” id. (quoting Lairsey v. Advance
Abrasives Co., 542 F.2d 928, 930 (5th Cir. 1976)), nor from
“entertaining motions on matters collateral to those at issue on
appeal,” id. (citation omitted).
Even after the filing of a notice
of appeal, district courts retain jurisdiction to entertain or
deny
a
Rule
60(b)
motion
furtherance of the appeal.
because
the
court’s
action
is
Id. at 1180 (citation omitted).
in
The
jurisdiction is limited to denying the Rule 60(b) motion and
“following the filing of a notice of appeal district courts do not
possess jurisdiction to grant a Rule 60(b) motion.”
Id.
Accordingly, a district court presented with
a Rule 60(b) motion after a notice of appeal
has been filed should consider the motion and
assess its merits. It may then deny the motion
or indicate its belief that the arguments
raised are meritorious. If the district court
selects the latter course, the movant may then
petition the court of appeals to remand the
matter so as to confer jurisdiction on the
district court to grant the motion.
Id.
Therefore,
Reconsideration
because
defendant
pursuant
to
has
Rule
filed
60(b),
her
this
Motion
for
Court
has
jurisdiction to entertain and deny the motion or indicate its
belief that the arguments are meritorious.
III.
Reconsideration
of
a
court’s
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previous
order
is
an
extraordinary remedy, and reconsideration is a power to be “used
sparingly.”
United States ex rel. Mastej v. Health Mgmt. Assocs.,
Inc., 869 F. Supp. 2d 1336, 1348 (M.D. Fla. 2012).
In particular,
motions filed under Rule 60(b)(6)’s “catch-all” provision “must
demonstrate that the circumstances are sufficiently extraordinary
to warrant relief.”
Galbert v. W. Caribbean Airways, 715 F.3d
1290, 1294 (11th Cir. 2013) (citation omitted).
The movant has
the burden of showing such extraordinary circumstances.
Mastej,
869 F. Supp. 2d at 1348.
A motion for reconsideration does not provide an opportunity
to argue for the first time a new issue that could have been raised
previously, or to argue more vociferously an issue the Court has
previously decided.
first
drafts,
Id.
subject
litigant’s pleasure.”
Court opinions “are not intended as mere
to
revision
and
reconsideration
at
a
Quaker Alloy Casting Co. v. Gulfco Indus.,
Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988).
When the Court has
carefully
and
considered
the
relevant
issues
rendered
its
decision, “the only reason which should commend reconsideration of
that decision is a change in the factual or legal underpinning
upon which the decision was based.”
1348 (citations omitted).
Mastej, 869 F. Supp. 2d at
Accordingly, a motion to reconsider
should set forth material facts previously unknown to the party
seeking reconsideration or direct the Court’s attention to “law of
a strongly convincing nature to demonstrate to the court the reason
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to reverse its prior decision.”
Id. (citations omitted).
Defendant seeks reconsideration of the Court’s ruling on the
following issues:
(1) The incorrect legal standard for tracing
was applied, and the tracing analysis was
predicated on errors of fact and erroneous
applications of law to fact;
(2) No authority exists under Florida law to
restrain Ms. Devine’s assets on the basis of
unjust enrichment, for controlling precedent
in this Circuit establishes that Florida does
not recognize a claim for unjust enrichment
predicated on wrongful or tortious conduct;
(3) No authority exists under Florida law to
restrain Ms. Devine’s assets on the basis of
Florida RICO, for controlling precedent in
this Circuit establishes that Florida law does
not apply extraterritorially;
(4) No authority exists under the federal RICO
statute to restrain any of Ms. Devine’s
assets, for federal RICO does not apply
extraterritorially;
(5) No authority exists under the RICO
statutes
to
restrain
assets
because
Plaintiffs’ RICO claims (and the predicate
acts they rely upon) are barred by the PSLRA;
and
(6) No authority exists to restrain assets
located outside of this judicial district, for
this Court has no authority to determine
Plaintiffs’ title to such assets.
(Doc. #380, p. 2.)
Defendant’s
arguments
in
her
Motion
for
Reconsideration
relating to issues 3, 4, and 5 will be denied as moot as plaintiffs’
federal and Florida RICO claims have been dismissed from this
action.
(Docs. ##521, 527.)
Following the Court’s dismissal of
Counts I, II, III, IV, and VI, defendant has again moved to
dissolve the TRO on the basis that the dismissal of these counts
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substantially changed the posture of the case and now justifies
the dissolution of the TRO on the grounds set forth in her
currently-pending
Motion
to
Dissolve
Ex
Parte
Temporary
Restraining Order Based on Court’s Dismissal of Counts I, II, III,
IV, and VI of Plaintiff’s Amended Complaint.
(Doc. #530.)
The
Court agrees the posture of this matter has substantially changed
as a result of the dismissal of the federal counts and the filing
of the Second Amended Complaint, will consider the issues raised
in defendant’s Motion to Dissolve Ex Parte Temporary Restraining
Order Based on Court’s Dismissal of Counts I, II, III, IV, and VI
of Plaintiffs’ Amended Complaint (Doc. #530), and finds that the
original
Motion
to
Dissolve
(Doc.
#96)
and
Motion
for
Reconsideration (Doc. #380) have become moot.
Accordingly, it is hereby
ORDERED:
Defendant's
Motion
for
Reconsideration
of
Court's
Order
Denying Her Motion to Dissolve Temporary Restraining Order (Doc.
#380) is DENIED as moot.
DONE and ORDERED at Fort Myers, Florida, this __25th__ day of
July, 2017.
Copies: Counsel of Record
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