Marbella at Spanish Wells 1 v. Zurich American Insurance Company

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION MARBELLA AT SPANISH WELLS CONDOMINIUM ASSOCIATION, INC., Plaintiff, v. Case No.: 2:21-cv-641-SPC-KCD EMPIRE INDEMNITY INSURANCE COMPANY, Defendant.

/ OPINION AND ORDER1 Over two months ago, the Court ordered this Hurricane Irma dispute to appraisal and stayed the case pending the completion of appraisal. (Doc. 48).

But appraisal has not begun. Instead, Defendant Empire Indemnity Insurance Company filed an interlocutory appeal (Doc. 49) and now asks the Court to stay appraisal pending the outcome of the interlocutory appeal (Doc. 53). Plaintiff Marbella at Spanish Wells 1 Condominium Association, Inc. responded in opposition. (Doc. 58).

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Whether the Eleventh Circuit will accept jurisdiction over the interlocutory appeal is an open question. The parties are responding to a jurisdictional question from the Eleventh Circuit. Empire has appealed similar cases and at least five have been stayed pending the Eleventh Circuit’s decision on the same jurisdictional question. See Positano Place at Naples II Condo. Ass’n, Inc. v. Empire Indem. Co., 2:21-cv-181-SPC-KCD; Positano Place at Naples III Condo. Ass’n, Inc. v. Empire Indem. Co., 2:21-cv-183-SPC-KCD; Positano Place at Naples IV Condo. Ass’n, Inc. v. Empire Indem. Co., 2:21-cv- 186-SPC-KCD; 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 Amended Motion for Stay Order Pending Appeal (Doc.

53) 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. Defendant’s Amended Motion for Leave to File a Reply (Doc. 60) is DENIED as moot.

3. The parties must provide the Court with a joint status update on the appeal proceedings by August 8, 2022, and every thirty days thereafter.

4. 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 July 11, 2022.

UNITED STATES DISTRICT JUDGE Copies: All Parties of Record