[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOV 12, 2008
No. 07-15856
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-01703 CV-ORL-19-KRS
ALAN HOROWITCH,
Plaintiff-Appellee,
versus
DIAMOND AIRCRAFT INDUSTRIES, INC.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 12, 2008)
Before EDMONDSON, Chief Judge, ANDERSON, Circuit Judge, and COHILL,*
District Judge.
PER CURIAM:
_______________________
*Honorable Maurice B. Cohill, Jr., United States District Judge for the Western District of
Pennsylvania, sitting by designation.
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.
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