657 F.3d 1184
11th Cir.2011Background
- Hofmann sues Elliott and related entities for state and federal RICO violations and seeks injunctive relief to preserve assets during litigation.
- District court appoints a special master (monitor) instead of a receiver to oversee assets during litigation.
- At a July 14, 2009 hearing, Scott proposed a monitoring master; the memorandum reflected an agreement among the parties.
- Concepcion signed the memorandum on behalf of himself and as authorized representative of the Elliott Defendants; Almanzar (DMK) attended but did not object.
- District court on July 17, 2009 entered an order appointing Scott as monitor over the Elliott Defendants (including DMK) and authorized waiver of jurisdictional objections and forum non conveniens.
- DMK and EMI Resorts move to reconsider; they appeal the July 17 order, challenging consent and scope of the monitor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DMK validly consented to the July 17 order | DMK bound by Concepcion’s July 14 signature | DMK did not consent; not bound by memo | DMK consent valid; order affirmed |
| Whether the district court deviated from the July 14 agreement | No deviation; order reflects substance of memo | Order exceeded memorandum scope | No material deviation; order consistent with agreement |
| Whether the monitor's authority exceeded the parties’ agreement | Authority aligned with memorandum | Broader than agreed | No meaningful excess beyond memorandum; authority within agreement |
| Whether the consent/waiver aspects were properly incorporated | Waiver of jurisdictional objections reflected in agreement | Waiver improperly included for DMK | Consent and waiver properly tied to July 14 agreement |
Key Cases Cited
- Reynolds v. Roberts, 202 F.3d 1303 (11th Cir. 2000) (interpretation of consent orders and standing to appeal)
- Shores v. Sklar, 885 F.2d 760 (11th Cir. 1989 (en banc)) (standing to appeal consent orders; nullify consent standards)
- Dorse v. Armstrong World Industries, Inc., 798 F.2d 1372 (11th Cir. 1986) (standing to appeal consent orders when deviating from agreement)
- Swift & Co. v. United States, 276 U.S. 311 (1928) (binding effect of consent orders; deference to parties’ agreement)
- Yoder Bros., Inc. v. California-Florida Plant Corp., 537 F.2d 1347 (5th Cir. 1976) (facts to nullify consent for appeal of consent orders)