HOROWITCH v. DIAMOND AIRCRAFT, 299 Fed.Appx. 951 (11th Cir. 2008)

No. 07-15856.United States Court of Appeals, Eleventh Circuit.
November 12, 2008.

Hala A. Sandridge, Fowler White Boggs Banker, P.A., Tampa, FL, for Defendant-Appellant.

William V. Custer, IV, Jennifer B. Dempsey, Powell, Goldstein, Frazer Murphy, Atlanta, GA, Marc P. Ossinsky, Ossinsky Cathcart, PA, Winter Park, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 06-01703 CV-ORL-19-KRS.

Before EDMONDSON, Chief Judge, ANDERSON, Circuit Judge, and COHILL,[*] District Judge.

Page 952

PER CURIAM:

Pursuant to 28 U.S.C. § 1292(b), the district court certified for interlocutory appeal the following as a controlling issue of law: “Whether Florida law would enforce a contractual provision that limits a buyer’s remedy to a return of his deposit upon the seller’s breach.” After full discussion at oral argument, and after careful consideration, we conclude that the administrative panel improvidently granted leave to pursue this interlocutory appeal.

In the Eleventh Circuit an administrative panel makes the initial decision to permit an interlocutory appeal under § 1292(b). However, the administrative panel’s ruling is subject to revocation by the merits panel designated to decide the case McFarlin v. Conseco Servs., 381 F.3d 1251, 1253 (11th Cir. 2004). Accordingly, the previous order of the administrative panel granting permission to appeal this case is VACATED, and the petition for permission to appeal is DENIED, and this appeal is DISMISSED without prejudice and REMANDED to the district court for further proceedings.