United States District Court

for the

Southern District of Florida

Joshua Rizack, as Liquidating 

Trustee of the Grandparents.com, 

Inc. and Grand Card LLC 

Liquidating Trust, Plaintiff,

v.

Starr Indemnity & Liability 

Company, Defendant.

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Civil Action No. 20-21744-Civ-Scola

Order Denying Motion for Leave to Appeal 

Bankruptcy Court’s Order on Motion to Dismiss 

Movant Starr Indemnity & Liability asks the Court for leave to appeal the 

bankruptcy court’s denial, in large part, of its motion to dismiss Joshua Rizack, 

as the liquidating trustee of the Grandparents.com, Inc. (“GP.com”) and Grand 

Card LLC liquidating trust’s, complaint. (Def.’s Mot., ECF No. 1.) Starr complains 

the bankruptcy court erred on multiple points in denying its motion to dismiss. 

In response, Rizack points out various deficiencies in Starr’s motion, among 

them: (1) the motion fails to comply with the Local Rules; (2) Starr has not met 

its burden of showing that an interlocutory appeal would be permissible; and (3) 

Starr has not met its burden of showing that, even if permissible, the appeal 

would be warranted. (Pl.’s Resp., ECF No. 7.) Starr did not file a reply to the 

response and the time to do so has passed. After careful review, the Court agrees 

with Rizack and denies Starr’s motion for leave to appeal.

1. Background

In the underlying case here, Rizack sued Starr, in a four-count complaint, 

(1) seeking to avoid an allegedly fraudulent transfer under 11 U.S.C. § 

548(a)(1)(B); (2) seeking to avoid an allegedly fraudulent transfer under 11 U.S.C. 

§ 544 and Fla. Stat. § 726.106(1); (3) seeking to recover property transferred, or 

the value of such property, under 11 U.S.C. § 550 or Fla. Stat. §§ 727.108, 109; 

and (4) objecting to Starr’s claim. As described in the complaint, Starr and 

GP.com entered into an agreement, in 2013, under which Starr was required to 

provide various consulting services to GP.com, a website offering services to the 

elderly. (Def.’ Mot. at ¶¶ 1–2; Pl.’s Resp. at 2.) In return, GP.com agreed to pay 

Starr $80,000 a month plus an additional sum if certain benchmarks were met. 

(Def.’s Mot. at ¶ 2; Pl.’s Resp. at 2.) According to the complaint, GP.com paid 

Starr a total of $2,160,000 within four years of the bankruptcy-petition date. 

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(Def.’s Mot. at ¶ 3; Pl.’s Mot. at 3.) The complaint also alleges GP.com was 

insolvent or inadequately capitalized at the time the payments were made. (Pl.’s 

Mot. at 3.) Finally, the complaint maintains GP.com did not receive reasonably 

equivalent value for the payments. (Id.)

In responding to the complaint, Starr filed a motion to dismiss for failure 

to state a claim. (Id. at 3.) Starr argued, in part, the complaint should be 

dismissed because its statutory claims were really just disguised breach-ofcontract claims which were barred (1) because Rizack had not satisfied the 

notice-and-cure provisions of the agreement and (2) by the independent tort 

doctrine. (Id.) After hearing oral argument, the bankruptcy court rejected Starr’s 

arguments and denied, in large part, its motion to dismiss. (Id.) 

2. Legal Standard 

District courts have discretion to hear appeals from interlocutory orders of 

the bankruptcy courts. 28 U.S.C. § 158(a)(3). “In determining when to exercise 

this discretionary authority, a district court will look to the standards which 

govern interlocutory appeals from the district court to the court of appeals 

pursuant to 28 U.S.C. § 1292(b).” In re Celotex Corp., 187 B.R. 746, 749 (M.D. 

Fla. 1995) (citing In re Charter Co., 778 F.2d 617, 620 (11th Cir. 1985)). Under 

this standard, the district court may permit an appeal of an interlocutory order, 

if it presents (1) a controlling question of law, (2) with respect to which there is 

substantial ground for difference of opinion, and (3) the resolution of which 

would materially advance the ultimate termination of litigation. 28 U.S.C. 

1292(b); In re Celotex Corp., 187 B.R. at 749. However, even if all the factors are 

present in a particular case, a court may nevertheless decline to hear the appeal. 

McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259 (11th Cir. 2004). 

“Interlocutory review is generally disfavored for its piecemeal effect on cases.” 

Figueroa v. Wells Fargo Bank N.A., 382 B.R. 814, 823 (S.D. Fla. 2007) (Gold, J.). 

“Because permitting piecemeal appeals is bad policy, permitting liberal use of § 

1292(b) interlocutory appeals is bad policy.” McFarlin, 381 F.3d at 1259. 

Through this lens, the Court considers the instant motion.

3. Analysis

To begin with, the Court notes Starr’s motion fails to comply with Local 

Rules 7.1(c)(2) and 7.1(a)(3). Rule 7.1.(c)(2) limits motions, absent prior 

permission from the Court, to twenty-pages. Starr’s motion is thirty-pages long 

and Starr never sought the Court’s leave for an enlargement of pages—even after 

Rizack pointed out the noncompliance in his opposition. (Pl.’s Resp. at 2 n. 1.) 

Next, Rule 7.1(a)(3) requires a moving party, with exceptions not applicable here,

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to confer with all parties who may be affected by the relief sought “in a good faith 

effort to resolve by agreement the issues to be raised in the motion.” The moving 

party must then certify, at the end of the motion, the results of the conferral. 

S.D. Fla. L.R. 7.1(a)(3). Again, even after Rizack pointed out the omission in his 

response, Starr failed to address its noncompliance. The “[f]ailure to comply with 

the requirements of . . . Local Rule [7.1(a)(3)] may be cause for the Court to . . . 

deny the motion.” Id. Because Starr never attempted to remedy its motion’s 

deficiencies, the Court finds denial of its motion warranted on that basis alone.

Additionally, however, the Court also notes Starr’s motion fails on the 

merits as well. Starr sets forth four questions it believes warrant granting it leave 

to appeal: 

(1) “whether a payment made pursuant to a prior, validly executed 

contract is per se for reasonably equivalent value unless that 

contract is set aside”; 

(2) “whether, where a contract has not and cannot be set aside, 

payments of antecedent debts under the contract can still be 

classified as fraudulent transfers”; 

(3) “whether conditions precedent to recovery that are applicable to 

a debtor are obviated when a Trustee, stepping into the shoes of 

that debtor, seeks to recover on a contract claim; and 

(4) “whether the Bankruptcy Court correctly analyzed under what 

authority the Trustee was bringing its claims, and whether that 

authority permitted the claims without avoiding the [contract].” 

(Def.’s Mot. at 8.) The Court agrees with Rizack that Starr has not established 

the three factors necessary, with respect to any of these questions, to proceed 

with an appeal of the bankruptcy court’s order. 

Under the heading, “Controlling Question of Law,” Starr sets forth a 

handful of generalized statements. First, Starr explains, “While many courts 

have determined that payments of antecedent debts pursuant to a valid contract 

cannot be fraudulent transfers unless the contract is set aside, the Bankruptcy 

Court seems to disagree, and there is a dearth of authority in the Eleventh 

Circuit and in Florida.” (Def.’s Mot. at 12.) This springs from Starr’s second 

question on appeal, detailed above. Next, Starr complains, as apparently relates 

to its fourth question on appeal, above, the bankruptcy court disagrees with a 

number of courts that have held, “a Bankruptcy Court must analyze the 

authority under which a Trustee sues, and not accept the Trustee’s 

characterization as to his claim, [in order] to properly decide a fraudulent 

transfer claim.” (Id.) As to this point, Starr says, again, “there is a dearth of law 

in the Eleventh Circuit.” (Id.) Starr then concludes, without any actual analysis, 

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that “[a] determination of these questions would dispose of a wide spectrum of 

cases and settle these disputes in the Eleventh Circuit” and, therefore, “this case 

satisfies the controlling question of law standard.” (Id.) Other than setting forth 

the standard for the controlling-question-of-law factor, this is the extent of 

Starr’s analysis of this issue. This does not convince the Court that these issues

are controlling questions of law. 

“An issue is characterized as a controlling question of law if it deals with a 

question of pure law, or matters that can be decided quickly and cleanly without 

having to study the record.” Figueroa, 382 B.R. at 824. Additionally, “[a] question 

is controlling only if it may contribute to the determination, at an early stage, of 

a wide spectrum of cases.” Samsung Semiconductor, Inc. v. AASI Liquidating Tr. 

ex rel. Welt, 12-23707-CIV, 2013 WL 704775, at *5 (S.D. Fla. Feb. 26, 2013)

(cleaned up)1 (Rosenbaum, J.). “The term ‘question of law’ does not mean the 

application of settled law to fact.” McFarlin, 381 F. 3d at 1258. Instead, a 

controlling question of law “is more of an abstract legal issue or what might be 

called one of pure law[:] matters [a reviewing court] can decide quickly and 

cleanly without having to study the record.” Id. (cleaned up) (alterations added

here).

Without more, the Court is unable to determine that the questions posed 

by Starr are indeed controlling questions of pure law. First, even if the Court 

were to agree with Starr that “many courts have determined that payments of 

antecedent debts pursuant to a valid contract cannot be fraudulent transfers 

unless the contract is set aside,” Starr has failed to explain how the Court can 

find this pronouncement controlling here, without first looking at the facts of 

this case. Put another way, without evaluating the facts of this case, compared 

to facts before the “many courts,” the Court has no way of determining whether 

the fraudulent transfer claim here depends on a finding that the contract at 

issue should be set aside. Indeed, Rizack contends it does not. In the cases 

relied upon by Starr, it appears the plaintiffs themselves, in those cases, framed 

their claims as depending on setting aside the contracts at issue. See, e.g., In re 

Cent. Illinois Energy Coop., 526 B.R. 786, 789 (Bankr. C.D. Ill. 2015), aff’d, 15-

1118, 2016 WL 299007 (C.D. Ill. Jan. 25, 2016) (where a trustee sought to show 

that a contract “was unenforceable for want of consideration” and therefore the 

transfers from the debtor were constructively fraudulent). The Plaintiff here, on 

the other hand, maintains the contractual payments in this case can be 

classified as fraudulent transfers, despite a contract that has not been set aside. 

Determining whether this is so would require the Court “to delve beyond the 

1 The Court uses (cleaned up) to indicate that internal quotation marks, alterations, or citations 

have been omitted from quotations. See, e.g., Durham v. Rural/Metro Corp., 955 F.3d 1279, 1285 

(11th Cir. 2020).

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surface of the record in order to determine the facts.” McFarlin, 381 F.3d at

1259. Starr’s conclusory insistence that it has met the standard of the 

controlling-question-of-law factor is insufficient to show otherwise. 

Next, Starr maintains that a controlling question of law in this case is 

“[w]hether a Bankruptcy Court must analyze the authority under which a 

Trustee sues, and not accept the Trustee’s characterization as to his claim, [in 

order] to properly decide a fraudulent transfer claim.” Again, Starr offers no 

analysis as to why this is a controlling question of law in this case. And, indeed, 

the Court agrees with Rizack that this is certainly not a controlling question of 

law because it is solely focused on what the bankruptcy court did in this specific 

case. Ultimately, the Court cannot determine “whether the Bankruptcy Court 

correctly analyzed under what authority the Trustee is bringing his claims,” 

“without having to study the record,” Figueroa, 382 B.R. at 824. The Court 

would have to examine “the Trustee’s characterization” of his claim, in this 

specific case, and then evaluate the bankruptcy’s court treatment of that 

characterization in light of the issues raised in Starr’s motion to dismiss, below. 

In the end, Starr has failed to state “[t]he legal question . . . at a high enough 

level of abstraction to lift the question out of the details of the evidence or facts 

of a particular case and give it general relevance to other cases in the same area 

of law.” McFarlin, 381 F.3d at 1259.

As to Starr’s other questions on appeal—questions one and three—Starr 

does not even allege they satisfy the controlling-question-of-law standard. In 

fact, the majority of Starr’s overlength motion focuses on rehashing its 

arguments below. But the burden of persuading a court that a request for an 

interlocutory appeal meets all three factors rests squarely on the shoulders of 

the movant. Id. at 1264. Without even an allegation that its first and third 

questions on appeal satisfy the requirement that they qualify as controlling 

issues of law, Starr fails to meet its burden. 

Starr has not shown that any of its questions on appeal qualify as 

controlling questions of law. And, because a court may deny leave to appeal if a 

movant fails to establish any one of the factors, Figueroa, 382 B.R. at 824, the 

Court denies Starr’s motion in its entirety (ECF No. 1).

The Court directs the Clerk of Court to close this case.

Done and ordered at Miami, Florida, on July 1, 2020.

________________________________

Robert N. Scola, Jr.

United States District Judge

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