IN RE: SEASIDE ENGINEERING & SURVEYING INC

Filing 69

ORDER DENYING 67 MOTION FOR CERTIFICATION. Appeal No. 13-15139-C. Signed by JUDGE MARK E WALKER on 1/21/2014. (dlt)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
VISION-PARK PROPERTIES and
VISION BANK,
Appellants,
v.

CASE NO. 3:12-cv-511-MW/EMT

SEASIDE ENGINEERING &
SURVEYING, INC.,

Appellee.
_________________________________/
ORDER DENYING MOTION FOR CERTIFICATION
Assuming arguendo that Seaside Engineering & Surveying, Inc.’s
(“Seaside”) Motion for Certification is timely and properly before this Court, this
Court chooses not to exercise its discretion to certify its Order Denying Motion to
Dismiss, ECF No. 52, for interlocutory appeal. This Court does not find Seaside’s
arguments to be well taken. Accordingly, the motion is DENIED.
In the decision of In re Lett, 632 F.3d 1216 (11th Cir. 2011), the Eleventh
Circuit stated that “even if substantial consummation has occurred, a court must
still consider all the circumstances of the case to decide whether it can grant
effective relief.” Id. at 1225 (quoting In re club Assocs., 956 F.2d 1065, 1069
(11th Cir. 1992)). Having recognized the inquiry does not end with substantial
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consummation but further inquiry is required, the Eleventh Circuit unambiguously
stated that “[t]he party asserting [equitable] mootness bears the burden of
persuasion.” Id. at 1226. That is, the Eleventh Circuit set forth the burden of
persuasion in the context of a court considering all the circumstances of the case
when substantial consummation has occurred. It is important to note that the
Eleventh Circuit could have easily adopted the shifting burden standard, referenced
by Seaside, wherein a presumption of mootness is created once substantial
consummation is proven. When In re Lett issued in 2011, the Eleventh Circuit was
clearly aware that some circuits had adopted the shifting burden standard but the
Eleventh Circuit chose not to do so.
Further, this Court finds Seaside’s request for this Court to certify the “Winn
Dixie” analysis to the Eleventh Circuit for formal adoption by that Court as the law
of this Circuit to be equally unavailing. In light of several published Eleventh
Circuit opinions addressing the standard for mootness, see In re Lett, 632 F.3d
1216 (11th Cir. 2011); In re Club Assocs., 956 F.2d 1065 (11th Cir. 1992); Miami
Center Partnership v. Bank of New York, 838 F.2d 1547 (11th Cir. 1988), this
Court does not certify that the analysis set forth in an unpublished opinion, In re
Winn-Dixie Stores, Inc., 286 Fed. Appx. 619 (11th Cir. 2008), somehow creates
confusion regarding the appropriate standard. This is especially true where this
Court finds that the aggregate analysis contained in In re Winn-Dixie is not
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inconsistent with Eleventh Circuit precedent. For these reasons, the motion is
DENIED.
SO ORDERED on January 21, 2014.
s/Mark E. Walker
United States District Judge

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