[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-11674 JULY 13, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 4:08-cv-10104-KMM
CAT CHARTER, LLC,
PATRICIA RYAN,
DANIEL RYAN,
Plaintiffs - Appellants,
versus
WALTER SCHURTENBERGER,
MULTIHULL TECHNOLOGIES, INC. (MTI),
a Florida corporation,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 13, 2011)
Before TJOFLAT and BARKETT, Circuit Judges, and STEELE,* District Judge.
*
Honorable John E. Steele, United States District Judge for the Middle District of
Florida, sitting by designation.
TJOFLAT, Circuit Judge:
The Federal Arbitration Act (the “FAA” or the “Act”), 9 U.S.C. § 1 et seq.,
provides for expedited and limited judicial review of arbitration awards, id.
§§ 9–11. Section 10(a) of the Act delineates four grounds that permit a court to
vacate an award. The question here is whether arbitrators “exceeded their
powers”—thereby justifying vacatur of their award under § 10(a)(4)—when they
purportedly failed to provide a “reasoned award” as agreed to by the parties. The
district court held that they had and therefore vacated the award. We respectfully
disagree and reverse.
I.
This case arises out of a dispute over the construction of a yacht. Daniel
and Patricia Ryan are Massachusetts citizens who, in anticipation of retirement
and with an eye toward the construction of a vessel, formed a Delaware limited
liability corporation, Cat Charter, LLC (“Cat Charter”). The Ryans, through Cat
Charter (collectively, the “Plaintiffs”), agreed to pay Mutihull Technologies, Inc.
(“MTI”), a Florida business owned solely by Walter Schurtenberger (collectively,
the “Defendants”), to construct a vessel to be known as the Magic.1
1
Construction began prior to any written agreement between the parties. The parties
eventually entered into a contract—one without an explicit price term—on February 4, 2005.
We do not belabor the specific details of the failed transaction, because our task here is to
2
But relations between the parties soured, and the Defendants never
delivered the Magic, despite receiving roughly $2 million from the Plaintiffs. As a
result, the parties entered into binding arbitration pursuant to their written
agreement.2
The Plaintiffs filed their initial Statement of Claim with the American
Arbitration Association (the “AAA”) on October 23, 2008. On April 15, 2009, the
Plaintiffs submitted an Amended Statement of Claim,3 in which they asserted six
separate claims against the Defendants: (1) deceptive and unfair trade practices
under Fla. Stat. § 501.201 et seq.; (2) rescission; (3) breach of contract; (4) fraud
or alternative misrepresentation; (5) breach of fiduciary duty; and (6) civil remedy
evaluate the vacatur of the arbitration award, not the underlying merits. For more background on
the transaction, see Cat Charter LLC v. Schurtenberger, 691 F. Supp. 2d 1339, 1341 (S.D. Fla.
2010).
2
The contract agreed to by Cat Charter and MTI provided, in relevant part:
The parties agree that any dispute between themselves arising out of this
agreement or the performance thereof shall be settled by binding arbitration
according to the rules and procedures of the American Arbitration Association and
that proper venue of such arbitration shall be Key West, Florida. Further the
parties agree that the substantially prevailing party shall recover the cost of such
arbitration and reasonable attorney’s fees; the arbitration award may be entered in
any court of competent jurisdiction.
3
There was initially some uncertainty as to the proper parties to the arbitration; the
Plaintiff’s initial Statement of Claim was asserted solely against MTI, whereas the Amended
Statement of Claim included all relevant parties. Neither the Plaintiffs nor the Defendants
presently challenge the Panel’s authority to adjudicate the issues surrounding the failed
construction project as to all parties.
3
for criminal practices under Florida law.
The Defendants answered on April 30, 2009, denying the Plaintiffs’ claims
and arguing that the construction of the Magic had proceeded according to the
terms of the “cost plus” contract entered into in 2005.4 Both the Plaintiffs and the
Defendants requested an award of reasonable attorney’s fees.
The arbitration proceeded under the Commercial Arbitration Rules of the
AAA (the “Arbitration Rules”) before a panel of three arbitrators (the “Panel”).5
Pursuant to the Arbitration Rules, the Panel held a preliminary hearing on March
4, 2009. The next day it issued a Report of Preliminary Hearing and Scheduling
Order setting forth the schedule and procedures for the pending arbitration. In
relevant part, the Panel stated, “The form of the award also will be determined by
agreement of the parties.”6 On March 25, 2009, the Defendants’ attorney sent a
4
In essence, this dispute was a swearing match, and its resolution necessarily depended
on credibility determinations made by the arbitrators. We will not evaluate or disturb the
factfinding of the arbitrators here. See Major League Baseball Players Ass’n v. Garvey, 532 U.S.
504, 509, 121 S. Ct. 1724, 1728, 149 L. Ed. 2d 740 (2001) (per curiam) (holding that “[w]hen an
arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged,
the arbitrator’s improvident, even silly, factfinding does not provide a basis for a reviewing court
to refuse to enforce the award” (citations and internal quotation marks omitted)).
5
The Panel consisted of three qualified, experienced arbitrators, including the then-
President of the Florida Bar.
6
Parties may contract for more than the default “standard award” in arbitration. Under
Arbitration Rule R-42(b), “[t]he arbitrator need not render a reasoned award unless the parties
request such an award in writing prior to the appointment of the arbitrator, or unless the arbitrator
determines that a reasoned award is appropriate.” AAA Commercial Arbitration Rule R-42(b)
4
facsimile to the AAA case manager informing her that “the parties have agreed
that the panel shall provide a reasoned award and that the panel shall determine
who the prevailing party or parties are on the various claims between the parties.”
The Plaintiffs also reminded the Panel of this agreement in their post-trial brief,
stating that “[t]he parties have agreed to ask the panel to issue a ‘reasoned award’
and determine which party is the ‘prevailing party’ on all claims.”
Following discovery, a five-day hearing, and post-trial briefing, the Panel
issued a unanimous arbitration award (the “Award”) on December 7, 2009. The
Award stated, in pertinent part:
1. On the claim of the Claimants, CAT CHARTER, LLC;
DANIEL RYAN; and PATRICIA RYAN (hereinafter collectively
“Claimants”), for violation of the Florida Deceptive and Unfair Trade
Practices Act (“FDUTPA”), we find that Claimants have proven their
claim against Respondents, MULTIHULL TECHNOLOGIES, INC.
(hereinafter “MTI”), and WALTER SCHURTENBERGER
(emphasis added).
The parties in the present case did not request a reasoned award “prior to the appointment
of the arbitrator,” because there was no such request prior to the preliminary hearing. Despite
this fact, the Defendants contended—and the district court held—that the parties properly
modified their agreement to require the Panel to render a reasoned award under Arbitration Rule
R-1(a). Rule R-1(a) provides that “[t]he parties, by written agreement, may vary the procedures
set forth in these rules. After appointment of the arbitrator, such modifications may be made
only with the consent of the arbitrator.” Id. R-1(a).
Given the deference we accord arbitrators in determining arbitral procedures, we are not
entirely convinced that the parties’ agreement bound the Panel to deliver a reasoned award.
Nevertheless, we will interpret the Panel’s indication that “[t]he form of the award also will be
determined by agreement of the parties” to be sufficient “consent” within the meaning of
Arbitration Rule R-1(a), and assume that the parties validly altered the procedures to require a
reasoned award when they subsequently communicated with the Panel.
5
(“SCHURTENBERGER”), by the greater weight of the evidence;
2. On the claim of the Claimant, CAT CHARTER, LLC, for
breach of contract by Respondent MTI, we find that Claimant, CAT
CHARTER, LLC has proven its claim against MTI by the greater
weight of the evidence;
3. All other claims of the Claimants are hereby denied. All
counter-claims of the Respondents, MTI and SCHURTENBERGER,
are denied;
4. On the claim of the Claimants for entitlement to attorney’s
fees in this arbitration proceeding and entitlement to an award of
arbitration expenses and costs, inclusive of the arbitrators’ fees and
costs, we find that Claimants are the substantially prevailing parties in
this arbitration and are entitled to an award of such fees and costs
against the Respondents, MTI and SCHURTENBERGER.
5. On the claim of the Respondents for entitlement to
attorney’s fees and costs in this arbitration, we find that Respondents
are not the substantially prevailing parties in this arbitration, and said
claim is denied;
6. On the claim by Claimants for civil theft which the
Arbitrators have denied, the Arbitrators find that Claimants raised a
claim that had substantial fact and legal support pursuant to Fla. Stat.
§ 772.104(3). More specifically, we find that the issues relating to
missing resin and the cost of the skiff presented substantial fact issues
raised by Claimants, justifying denial of any attorney’s fees for
Respondents; . . . .
The Panel then ordered the Defendants to “jointly and severally pay” the Plaintiffs
more than $2 million in damages, fees, costs, and interest. The Panel also granted
the Plaintiffs a first lien on the Magic.
On December 31, 2009, the Plaintiffs filed a motion to confirm the Award
6
in the District Court for the Southern District of Florida.7 The Plaintiffs attached
to this motion the Award, their Amended Statement of Claim to the Panel, and a
host of other exhibits. They made no mention of the agreement requiring the
Panel to provide a reasoned award, and they presented no argument regarding the
sufficiency of the reasons provided.
The Defendants responded on January 19, 2009, with a motion to vacate the
Award on the ground that the Panel exceeded its authority by failing to issue a
reasoned award as required by the parties’ agreement. The Defendants never
complained to the Panel regarding the form of the Award or requested a
modification of the Award after it was delivered; they first raised their concern
over the lack of reasons provided by the Panel in their motion to vacate.8
The district court vacated the arbitration award, agreeing with the
7
The district court had jurisdiction under 28 U.S.C. § 1332. While the FAA provides the
grounds for vacatur of an arbitration award, it does not serve as an independent ground for
jurisdiction in federal courts. See Hall Street Assocs., LLC v. Mattel, Inc., 552 U.S. 576,
581–82, 128 S. Ct. 1396, 1402, 170 L. Ed. 2d 254 (2008) (“As for jurisdiction over controversies
touching arbitration, the [FAA] does nothing, being something of an anomaly in the field of
federal-court jurisdiction in bestowing no federal jurisdiction but rather requiring an independent
jurisdictional basis.” (citations and internal quotation marks omitted)).
We have authority to review the vacatur decision under 9 U.S.C. § 16(a)(1)(E), which
allows an appeal to be taken from an order “modifying, correcting, or vacating an award.”
8
The Defendants have not waived any claims through their delay; a party seeking vacatur
has three months after the award is filed or delivered in which to serve notice on the adverse
party. 9 U.S.C. § 12. We note that the Defendants raised this claim for the first time upon
seeking vacatur only to underscore the apparently strategic nature of their behavior.
7
Defendants that the Panel had exceeded its powers within the meaning of
§ 10(a)(4) by failing to provide a satisfactorily reasoned award. Cat Charter LLC
v. Schurtenberger, 691 F. Supp. 2d 1339, 1344–45 (S.D. Fla. 2010). The court
further ruled that remand to the Panel was barred by the operation of the common
law doctrine functus officio.9 Id. at 1345. If this court were to affirm the district
court’s order, the parties would be required to begin a new arbitration proceeding
before a new panel in order to settle the controversy surrounding the Magic. In
other words, the district court determined that the Award was so deficient that it
warranted sending the parties back to square one, ostensibly granting the
Defendants a second bite at the apple because of a perceived technical defect in
the form of the Award.
II.
A.
We review the district court’s findings of fact for clear error and its
conclusions of law de novo. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938,
947–48, 115 S. Ct. 1920, 1926, 131 L. Ed. 2d 985 (1995) (holding that a circuit
9
Because we ultimately reverse the district court’s holding that the arbitrators exceeded
their powers, we need not reach the question of whether functus officio would bar remand to the
original arbitrators. Nevertheless, we note approvingly that a sister circuit, when faced with a
nearly identical factual scenario, deemed the doctrine inapplicable and remand to the original
arbitrators appropriate. See Green v. Ameritech Corp., 200 F.3d 967, 976–78 (6th Cir. 2000).
8
court reviewing a district court’s disposition of an arbitration award should apply
“ordinary, not special, standards.”).
As the district court recognized, the FAA “‘imposes a heavy presumption in
favor of confirming arbitration awards’”; therefore, “‘a court’s confirmation of an
arbitration award is usually routine or summary.’” Cat Charter LLC v.
Schurtenberger, 692 F. Supp. 2d 1339, 1342 (S.D. Fla. 2010) (quoting Riccard v.
Prudential Ins. Co., 307 F.3d 1277, 1288 (11th Cir. 2002)). But § 10(a) of the
FAA provides for vacatur of an arbitration award in four scenarios, one of which
is relevant to this case.10 A district court may11 vacate the Award if, by not
providing a reasoned award, “the arbitrators exceeded their powers, or so
imperfectly executed them that a mutual, final, and definite award upon the subject
matter submitted was not made.” 9 U.S.C. § 10(a)(4).12 Still, this review is
10
The Supreme Court has made clear that the statutory grounds justifying vacatur found
in 9 U.S.C. § 10(a) are exclusive. Hall Street Assocs., LLC v. Mattel, Inc., 552 U.S. 576, 578,
128 S. Ct. 1396, 1400, 170 L. Ed. 2d 254 (2008).
11
We note that Congress instructed that a court “may make an order vacating the
award”—as opposed to “must” or “shall”—in delineating the grounds for vacatur, further
emphasizing the deferential nature of our review. 9 U.S.C. § 10(a) (emphasis added).
12
Section 10(a)(4) is the most frequent ground upon which awards are vacated. See
Andrew M. Campbell, Annotation, Construction and Application of § 10(a)(4) of Federal
Arbitration Act (9 U.S.C. § 10(a)(4)) Providing for Vacating of Arbitration Awards Where
Arbitrators Exceed or Imperfectly Execute Powers, 136 A.L.R. Fed. 183, § 2[a], at 219. As
Campbell notes, “the courts have tended to find that the arbitrators did not exceed their powers
when the awards in commercial arbitrations . . . have been challenged on the grounds that the
form of the awards was improper,” as is the case here. Id. § 2[a], at 222.
9
circumscribed, as arbitrators “do not act as junior varsity trial courts where
subsequent appellate review is readily available to the losing party.” Nat’l
Wrecking Co. v. Int’l Bd. of Teamsters, 990 F.2d 957, 960 (7th Cir. 1993).
As the Act makes clear, arbitration is a creature of contract. Parties must
agree to arbitrate in the first instance, and may contractually limit or alter the
issues to be presented to the arbitrators, the scope of the award, and, as here, the
form of the award. The FAA “requires courts to enforce privately negotiated
agreements to arbitrate, like other contracts, in accordance with their terms.” Volt
Info. Scis., Inc. v. Bd. of Trustees, 489 U.S. 468, 478, 109 S. Ct. 1248, 1255, 103
L. Ed. 2d 488 (1989). Ultimately, arbitrators derive their powers from the parties’
agreement.
We recognize, then, that arbitrators may exceed their power within the
meaning of § 10(a)(4) if they fail to comply with mutually agreed-upon contractual
provisions in an agreement to arbitrate.13 Szuts v. Dean Witter Reynolds, Inc., 931
F.2d 830 (11th Cir. 1991), provides a prime illustration of this principle. In Szuts,
we vacated an award that was handed down by only two arbitrators when the
13
We refer to contractual provisions regarding the scope or form of the arbitration.
Parties cannot contract for a heightened standard of review by a federal court or expand the
grounds for reversing an arbitration award beyond the statutory grounds provided by the FAA.
See Hall Street, 552 U.S. at 578, 128 S. Ct. at 1400.
10
arbitration agreement in question unambiguously required arbitration before “at
least three arbitrators,” and the party seeking vacatur had objected on that ground
prior to the arbitral award. Id. at 830–32. We based our decision on the
uncontroversial notion that the “authority of the arbitrators in an arbitration
proceeding is dependent on the provisions of the arbitration agreement under
which the arbitrators were appointed.” Id. at 831 (footnote omitted).
An arbitrator may also exceed her authority by failing to provide an award
in the form required by an arbitration agreement.14 The Ninth Circuit, for
example, vacated an arbitration award that failed to provide “findings of fact and
conclusions of law” as required by the arbitration agreement there at issue. W.
Employers Ins. v. Jefferies & Co., 958 F.2d 258, 260 (9th Cir. 1992). The court
determined that because the parties “have a right to arbitration according to the
terms for which [they] contracted,” the panel exceeded its authority under the FAA
by failing to meet its contractual obligations. Id. at 261.
We affirm the contractual nature of arbitration and do not disturb the notion
that arbitrators are bound to perform their contractual duties.
14
At least one court has viewed this concept with skepticism, musing that “[i]ndeed, it is
very strange to assert that an arbitrator has exceeded his powers by not doing enough.” ARCH
Dev. Corp. v. Biomet, Inc., No. 02 C 9013, 2003 WL 21697742, at *4 n.4 (N.D. Ill. July 30,
2003). We do not share this view and believe that an arbitrator can, in fact, exceed his powers by
“not doing enough.”
11
B.
To determine whether the Panel in this case exceeded its powers, then, we
must first decipher what constitutes a “reasoned award,” a somewhat ambiguous
term left undefined by the FAA, the Arbitration Rules, and the parties’ contract.
As a result, we must rely on common sense and scarce precedent to illuminate this
critical term.
Determining whether an award is reasoned first requires some context.
Generally, an arbitrator need not explain her decision; thus, in a typical arbitration
where no specific form of award is requested, arbitrators may provide a “standard
award” and simply announce a result. See United Steelworkers v. Enterprise
Wheel & Car Co., 363 U.S. 593, 598, 80 S. Ct. 1358, 1361, 4 L. Ed. 2d 1424
(1960) (“Arbitrators have no obligation to the court to give their reasons for an
award.”). At the other end of the spectrum, the Arbitration Rules allow parties to
request that the arbitrators make “findings of fact and conclusions of law,” a
relatively exacting standard familiar to the federal courts. See, e.g., ARCH Dev.
Corp. v. Biomet, Inc., No. 02 C 9013, 2003 WL 21697742, at *4 (N.D. Ill. July 30,
2003).
Logically, the varying forms of awards may be considered along a
“spectrum of increasingly reasoned awards,” with a “standard award” requiring the
12
least explanation and “findings of fact and conclusions of law” requiring the most.
Id. In this light, therefore, a “reasoned award is something short of findings and
conclusions but more than a simple result.” Sarofim v. Trust Co. of the W., 440
F.3d 213, 215 n.1 (5th Cir. 2006) (citations and internal quotation marks omitted).
Our recognition of this spectrum, however, is still insufficient to fully
evaluate the Award as handed down by the Panel. We thus require further
guidance regarding the key term. Webster’s defines “reasoned” as “based on or
marked by reasoning,” and “provided with or marked by the detailed listing or
mention of reasons.” Webster’s Third New Int’l Dictionary: Unabridged 1892
(1993). Relatedly, “reason”—as used in this context—is defined as “an
expression or statement offered as an explanation of a belief or assertion or as a
justification of an act or procedure.” Id. at 1891. Strictly speaking, then, a
“reasoned” award is an award that is provided with or marked by the detailed
listing or mention of expressions or statements offered as a justification of an
act—the “act” here being, of course, the decision of the Panel.
With these considerations in mind, we now turn to the ultimate question of
whether the Panel exceeded its authority when it handed down the Award as
quoted above.
III.
13
We hold that the Panel’s actions survive scrutiny under § 10(a)(4). The
Defendants argue that the Panel’s statements that the Plaintiffs proved their claims
“by the greater weight of the evidence” add no explanatory value to the Award and
“work[] no transformative alchemy on what is most certainly a ‘bare’ or ‘standard’
award.” Appellee’s Answer Br. 15–16.
The context of the Panel’s statements and the fact that the Award provides
detailed reasons regarding one claim, however, lead us to disagree with the
Defendants. Put simply, the controversy here turned primarily upon credibility
determinations made by the Panel. Either the transaction proceeded along the
lines of a duly executed contract—the Defendants’ story—or the transaction
surrounding construction of the Magic was punctuated by misrepresentations and
dubious behavior on the Defendants’ part—the Plaintiffs’ story. The statement
that “[o]n the claim of the Claimants . . . for breach of contract . . . we find that
Claimant . . . has proven its claim against MTI by the greater weight of the
evidence” is easily understood to mean that, in the swearing match between the
Plaintiffs and the Defendants, the Panel found the Plaintiffs’ witnesses to be more
credible. We certainly cannot say that this statement is devoid of any statements
offered as a justification; the reason for the Plaintiffs’ victory is plainly provided.
14
To be sure, the Panel could have provided more. But again, had the parties
wished for a greater explanation, they could have requested that the Panel provide
findings of fact and conclusions of law;15 to this court, the statement quoted above
is greater than what is required in a “standard award,” and that is all we need
decide.
Further, the Panel provided a detailed explanation for the only conclusion
that truly required it—the determination of the prevailing party for each claim and
the concomitant award of attorney’s fees. The Panel rejected the Plaintiffs’ claim
for civil theft, but nonetheless declined to award the Defendants attorney’s fees on
that claim, even though they would appear to be the substantially prevailing party.
To clarify, the Panel wrote that the Plaintiffs “raised a claim that had substantial
fact and legal support” and that, “[m]ore specifically, we find the issues relating to
missing resin and the cost of the skiff presented substantial fact issues raised by
Claimants, justifying denial of any attorney’s fees for” the Defendants. These
15
Indeed, prior to their request for a reasoned award, the parties contemplated requesting
a more detailed opinion from the Panel. In an email exchange, an attorney for the Defendants
stated a preference for “an award including findings of fact and conclusions of law.” Notably, in
response, an attorney for the Plaintiffs explained, “I don’t want to ask them to do voluminous
findings, I think a paragraph would be sufficient and more consistent with the nature of
arbitration.”
This exchange reveals that the parties knew full well that they could request the Panel to
produce “findings of fact and conclusions of law” but consciously opted for a less-demanding
standard.
15
statements clearly provide more than a simple result, and give ample justification
for the decision of the Panel. In short, the Award was a reasoned one.16
Our conclusion today holds consistent with the general review principles
embodied in the FAA. The Supreme Court has read §§ 9–11 of the FAA
as substantiating a national policy favoring arbitration with just the
limited review needed to maintain arbitration’s essential virtue of
resolving disputes straightaway. Any other reading opens the door to
the full-bore legal and evidentiary appeals that can render informal
arbitration merely a prelude to a more cumbersome and time-
consuming judicial review process, and bring arbitration theory to
grief in post-arbitration process.
Hall Street Assocs., LLC v. Mattel, Inc., 552 U.S. 576, 588, 128 S. Ct. 1396, 1405,
170 L. Ed. 2d 254 (2008) (citations and internal quotation marks omitted).
IV.
In the present case, three validly-appointed arbitrators oversaw a five-day
hearing and rendered a thoughtful, reasoned award. We decline to narrowly
interpret what constitutes a reasoned award to overturn an otherwise apparently
16
Our holding comports with the sparse precedent that specifically addresses this issue.
Compare Green v. Ameritech Corp., 200 F.3d 967, 970, 974–76 (6th Cir. 2000) (reversing a
district court’s vacatur order and confirming an arbitration award challenged on the ground that it
failed to provide reasons when the arbitration agreement required an explanation with respect to
each theory advanced), with Vold v. Broin & Assocs., Inc., 699 N.W.2d 482, 484–85 (S.D. 2005)
(affirming a lower court’s vacatur order where an arbitrator provided “no reason for each award
and no reason for rejecting [a party’s] claims” and “did not mention any of the relevant contract
provisions at issue, cite any law, or discuss any of the evidence” despite being required to
provide a reasoned award).
16
seamless proceeding. The parties received precisely what they bargained for—a
speedy, fair resolution17 of a discrete controversy by an impartial panel of
arbitrators skilled in the relevant areas of the law. To vacate the Award and
remand for an entirely new proceeding would insufficiently respect the value of
arbitration and inject the courts further into the arbitration process than Congress
has mandated. As such, the Award should be confirmed and this controversy
should be put to rest once and for all.
For the foregoing reasons, the ruling of the district court is REVERSED and
REMANDED for reinstatement of the Award.
SO ORDERED.
17
As this court has previously explained, “[i]n applying the statutory grounds for the
granting of a motion to vacate an award, we must always bear in mind that the basic policy of
conducting arbitration proceedings is to offer a means of deciding disputes expeditiously and
with lower costs than in ordinary litigation.” Schmidt v. Finberg, 942 F.2d 1571, 1573 (11th Cir.
1991) (citations omitted).
17