Positano Place at Naples II Condominium Association, Inc. v. Empire Indemnity Insurance Company

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

POSITANO PLACE AT NAPLES II CONDOMINIUM ASSOCIATION, INC.,

Plaintiff,

v. Case No.: 2:21-cv-181-SPC-MRM

EMPIRE INDEMNITY INSURANCE COMPANY,

Defendant. / OPINION AND ORDER1 Over three months ago, the Court ordered this Hurricane Irma dispute to go to appraisal and stayed the case pending the completion of appraisal. (Doc. 63). But appraisal has not begun. Instead, Empire filed an interlocutory appeal (Doc. 64) and now asks the Court to stay appraisal pending the outcome of the interlocutory appeal (Doc. 66). The parties extensively briefed the issue. (Docs. 68, 71, 76, 79, 82). Whether the Eleventh Circuit will accept jurisdiction over the interlocutory appeal is an open question. The parties are responding to a

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide, nor does it have any agreements with them. The Court is also not responsible for a hyperlink’s availability and functionality, and a failed hyperlink does not affect this Order. jurisdictional question from the Eleventh Circuit. Empire has appealed similar cases and two have been stayed pending the Eleventh Circuit’s decision

on the same jurisdictional question. See The Breakwater Commons Ass’n, Inc. v. Empire Indem. Co., 2:20-cv-31-JLB-NPM; Creekside Crossings Condo. Ass’n, Inc. v. Empire Indem. Co., 2:20-cv-136-JLB-NPM. This Court has “broad discretion to stay proceedings as an incident to its

power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706-07 (1997). The Court exercises its discretion here to stay appraisal until the Eleventh Circuit decides whether it has jurisdiction to consider Empire’s interlocutory appeal. As much as Empire requests a stay under 28 U.S.C. § 1292(b), the

request is denied without prejudice to be refiled if the Eleventh Circuit does accept jurisdiction. If the Eleventh Circuit does not accept jurisdiction, appraisal will proceed. The parties need to update the Court either way. Accordingly, it is now

ORDERED: 1. Defendant’s Motion for Stay Order Pending Appeal (Doc. 66) is GRANTED to the extent that the Court exercises its discretion to stay appraisal until the Eleventh Circuit decides whether it has

jurisdiction to consider Empire’s interlocutory appeal; otherwise, the Motion is denied without prejudice. 2. The parties must provide the Court with a joint status update on the appeal proceedings by July 22, 2022, and every thirty days thereafter. 3. Defendant must inform the Court of the Eleventh Circuit’s decision

on the jurisdictional question within 3 days of its issuance. DONE and ORDERED in Fort Myers, Florida on June 22, 2022.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record