David et al v. Fiddler's Creek, LLC

Filing 19

ORDER denying 1 Motion for Leave to File Interlocutory Appeal. The Clerk is directed to terminate all pending motions and close this case. Signed by Judge Virginia M. Hernandez Covington on 12/6/2010. (CR)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION IN RE: FIDDLER'S CREEK, LLC, et al. RAYMOND DAVID, et al., Appellants, v. CASE NO: 8:10-cv-2342-T-33 CASE NO. 9:10-bk-03846-ALP

FIDDLER'S CREEK, LLC, et al., Appellees. _______________________________/ ORDER This cause comes before the Court pursuant to

Appellants' Motion for Leave to File Interlocutory Appeal (Doc. # 1). Appellees filed a Response in Opposition

thereto (Doc. # 5). Interlocutory appeals are proper if: (a) the order involves a controlling question of law, (b) as to which there is substantial ground for difference of opinion, and (c) an immediate appeal from the order may advance the ultimate termination of litigation. 28 U.S.C. 158(a); 28 U.S.C. 1292(b); McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1257 (11th Cir. 2004). The party seeking an

interlocutory exceptional

appeal

"'has

the to

burden

of the

showing general

circumstances,

overcome

aversion to piecemeal litigation and to show that the circumstances warrant a departure from the basic policy of postponing appellate review until after entry of a final judgment.'" Yerushalmi v. Shibolelth, 405 B.R. 44, 47 (E.D.N.Y. 2009) (quoting In re Enron Corp., 2008 WL 281972, at *3 (S.D.N.Y Jan. 25, 2008)). "'[T]he appeal from interlocutory orders . . . should and will be used only in exceptional cases where decision of the appeal may avoid protracted and expensive litigation . . . where a question which would be dispositive of the litigation is raised and there is a serious doubt as to how it should be decided.'" U.S. ex rel. Borges v. Doctor's Care Medical Center, Inc., 2007 WL 984404, at *1 (S.D. Fla. Mar. 27, 2007) (quoting McFarlin, 381 F.3d at 1256). The Court, having considered the motion, response and being otherwise fully advised, finds that the

circumstances of this particular case do not warrant the certification of an interlocutory appeal of the

Bankruptcy Court's order enforcing the automatic stay.
2

The

Bankruptcy

Court's of

order law as

does to

not which

involve there

a is In

controlling substantial addition, an

question ground

for

difference appeal

of

opinion. not

immediate

would

materially

advance the ultimate determination of the litigation. Accordingly, it is ORDERED, ADJUDGED, and DECREED: (1) Appellants' Motion for Leave to File

Interlocutory Appeal (Doc. # 1) is DENIED. (2) The Clerk is directed to terminate all pending motions and close this case. DONE and ORDERED in Chambers in Tampa, Florida, this 6th day of December, 2010.

Copies: All Counsel of Record

3