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

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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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