FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MAY 29, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________

No. 06-13254

_____________________________

D. C. Docket No. 03-02353-CV-T-17-TBM

FEDERAL TRADE COMMISSION,

Plaintiff-Appellee,

versus

SHAUN OLMSTEAD,

JULIE CONNELL,

Defendants-Appellants,

versus

MARK BERNET,

Receiver-Appellee.

_________________________________________

Appeal from the United States District Court

for the Middle District of Florida 

_________________________________________

 (May 29, 2008)

 
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting by *

designation.

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Before EDMONDSON, Chief Judge, KRAVITCH and ALARCÓN, Circuit *

Judges.

PER CURIAM:

CERTIFICATION FROM THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT

OF FLORIDA, PURSUANT TO FLA. R. APP. P. 9.150(a). TO THE

SUPREME COURT OF FLORIDA AND ITS HONORABLE JUSTICES:

In this case, we must decide whether, at the request of a judgment-creditor,

a court may order a judgment-debtor to surrender all “right, title, and interest” in

the debtor’s single-member limited liability company (“LLC”), even though that

LLC is not a party to the garnishment action. Because this question is a matter of

Florida law, we certify the question to the Florida Supreme Court. 

I. Background

Shaun Olmstead, with the assistance of Julie Connell (together,

“Defendants”), operated an advance-fee credit card scam. Through the corporate

defendants, Peoples Credit First, LLC (“PCF”) and Consumer Preferred, LLC

(“CP”), Defendants mailed consumers over ten million solicitations. These
 Among other things, the stipulated preliminary injunction directed the receiver to “[c]onserve,

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hold, and manage,” “preserve the value of,” and prevent the “unauthorized transfer, withdrawal, or

misapplication” of the receivership assets.

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solicitations created the impression that, in exchange for a payment of $45 or $49,

a consumer would receive a “platinum” credit card like a VISA or MasterCard

with a $5,000 credit line. More than 200,000 consumers purchased the credit

cards; but the cards they received were not major credit cards like VISA or

MasterCard. Instead, the cards were merely platinum-colored cards usable only

for purchasing products from Defendants’ merchandise catalog or website. 

Although some consumers used the cards to make purchases, a significant number

of consumers claimed to have been misled and complained to PCF and CP as well

as to local better business bureaus and state agencies.

The Federal Trade Commission (“FTC”) filed this action, alleging that

Defendants, including PCF and CP, violated Section 5(a) of the Federal Trade

Commission Act, 15 U.S.C. § 45(a), which prohibits unfair or deceptive trade

practices. The district court immediately issued an ex parte temporary restraining

order (“TRO”) freezing Defendants’ assets and appointing a receiver over PCF

and CP. Later, with the parties’ consent, the district court approved a stipulated

preliminary injunction extending the asset freeze and receivership provisions of

the TRO. At the receiver’s request, the district court also entered a series of 1
 These non-party, single-member LLCs are Dynamic Fulfillment & Services, LLC; Foundation 2

Commercial Properties, LLC; Product Dynamics, LLC; SoHo Holdings, LLC; Generation Housing,

LLC; and Nu Products, LLC. Each was organized under Florida law.

 A panel of this Court filed an unpublished opinion in No. 06-11827 on 19 July 2007, affirming 3

the district court’s judgment. 

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orders extending the receivership to include several non-party LLCs in which

either Olmstead or Connell was the sole member. The court placed these single- 2

member LLCs into receivership because Defendants’ management of them

violated the terms of the asset freeze.

The FTC then moved for summary judgment, which the district court

granted, entering a judgment for injunctive relief and for more than $10 million in

restitution against Defendants. The district court also entered an amended

judgment, which included additional equitable relief. Defendants appealed the

district court’s grant of summary judgment to the FTC.

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Defendants did not seek a stay of execution; so, to satisfy the judgment

partially, the FTC moved to compel Defendants to surrender their membership

interests in their LLCs to the receiver. Defendants objected, asserting that the

FTC only has the rights of an assignee under Florida law. The district court

nevertheless granted the FTC’s motion and compelled Defendants to “endorse and

surrender to the Receiver, all of their right, title and interest” in their LLCs. A

later order issued by the district court authorized the receiver to liquidate the
According to the FTC, the proceeds from the auctions are being held in an interest-bearing 4

account until the resolution of both this appeal and Defendants’ appeal of the underlying summary

judgment order, No. 06-11827, which this Court has already decided.

 We must first address the jurisdictional question that we earlier presented to the parties: 

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Whether this Court has appellate jurisdiction given that, after the named defendants

filed their June 2, 2006, notice of appeal, the district court granted, in part, the

interested party’s tolling motion for reconsideration of a related order. 

Because the order issued after the notice of appeal involved completely different assets and different

parties, the 3 May surrender order — which Defendants sought to appeal in their 2 June notice of

appeal — is appealable according to the doctrine of practical finality. See Atl. Fed. Sav. & Loan

Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989) (treating orders as

final that decide the right to contested property and that direct the property to be sold or delivered).

Accordingly, we conclude that this Court has appellate jurisdiction to consider the district court’s

3 May surrender order.

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assets in Defendants’ LLCs, which the receiver did through public auctions, and to

pay the proceeds to the FTC. In this appeal, Defendants only challenge the 4

district court’s order requiring them to surrender the assets in their non-party,

single-member LLCs to the receiver.

II. Discussion

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Under Rule 69 of the Federal Rules of Civil Procedure, proceedings in aid

of judgment or execution are to be conducted in accordance “with the procedure of

the state where the court is located.” Fed. R. Civ. P. 69(a)(1). Defendants argue

that the surrender order is in error because it is contrary to Florida’s Limited
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Liability Company Act (“LLC Act”), particularly Fla. Stat. § 608.433(4). Section

608.433(4) provides:

On application to a court of competent jurisdiction by any judgment

creditor of a member, the court may charge the limited liability

company membership interest of the member with payment of the

unsatisfied amount of the judgment with interest. To the extent so

charged, the judgment creditor has only the rights of an assignee of

such interest. This chapter does not deprive any member of the

benefit of any exemption laws applicable to the member’s interest.

Because the plain language of this provision draws no distinction between singlemember and multiple-member LLCs, Defendants contend that a charging order is

the only remedy that a judgment-creditor may obtain against the membership

interest of an LLC member, even if that member is the sole member of the LLC. 

Therefore, according to Defendants, the district court erred by ordering

Defendants to surrender “all of their right, title and interest” in their singlemember LLCs.

Although acknowledging that the plain text of the LLC Act does not

distinguish between single-member and multiple-member LLCs, the FTC argues

nevertheless that the overall statutory context “leads to the inevitable conclusion

that a charging order is a senseless (and certainly not exclusive) remedy for a

judgment-creditor against the membership interest in a single member LLC.” The

FTC points out that the charging order remedy originated in common law to
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protect nondebtor partners from being forced unwillingly into partnership with a

creditor. This rationale is lost in the context of single-member LLCs where, as

here, no nondebtor members exist whose interests need protection. 

In addition, the FTC argues that closely related provisions of the LLC Act

demonstrate how Defendants’ contended-for application of the charging order

remedy to single-member LLCs would produce absurd results. For instance, the

LLC Act provides that an assignee can become an LLC member with the consent

of members other than the judgment-debtor. See Fla. Stat. §§ 608.432(1)(a),

608.433(1). The FTC contends that this provision, which allows assignees to

become LLC members, is rendered purposeless for single-member LLCs unless

they are treated differently than multiple-member LLCs: Treating single-member

and multiple-member LLCs alike would produce the absurd result that assignees

could become members in multiple-member LLCs but not in single-member

LLCs. 

Also, according to the FTC, the LLC Act directs that an LLC member

ceases to be a member upon the assignment of that member’s interest. See id. §

608.432(2)(c). But, if a single-member LLC were subject only to a charging

order remedy, then the single-member LLC would be left without any members to

manage it. Because an LLC must be dissolved “[a]t any time there are no
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members,” id. § 608.441(1)(d), the FTC contends that no member would remain

with the authority to take the steps prescribed in Section 608.4431 to wind down

the dissolved LLC. Given the foregoing, the FTC concludes that the “only way to

harmonize these provisions into a coherent whole is to recognize that where, as

here, an LLC has only one member, the assignment of that member’s interest to a

judgment-creditor necessarily enables the creditor to step in and liquidate the

LLC’s assets.” 

Neither party cites to Florida case law that directly addresses the

application of Section 608.433(4) to single-member LLCs. Instead, both parties

rely on well-established canons of statutory construction. Defendants contend,

for instance, that “where a statute is clear and unambiguous a court will not look

beyond the statute’s plain language for legislative intent.” Appellant Br. 12

(citing City of Miami Beach v. Galbut, 626 So. 2d 192, 193 (Fla. 1993)). The

FTC, on the other hand, cites the “cardinal rule of statutory construction, that a

legislature does not intend to create statutes that lead ‘to an unreasonable or

ridiculous result.’” Appellee Br. 13 (citing Galbut, 626 So. 2d at 193). 

After considering the parties’ arguments and given the absence of

controlling case law on point, we conclude that Florida law is not sufficiently

well-established for us to determine with confidence whether the district court’s
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surrender order is permissible under Section 608.433(4). The Florida

Constitution authorizes this Court to certify a question about state law to the

Florida Supreme Court if it “is determinative of the cause and for which there is

no controlling precedent of the supreme court of Florida.” Fla. Const. art. V, §

3(b)(6). Because we have found no such controlling precedent, we certify the

following question to the Florida Supreme Court:

Whether, pursuant to Fla. Stat. § 608.433(4), a court may order a

judgment-debtor to surrender all “right, title, and interest” in the

debtor’s single-member limited liability company to satisfy an

outstanding judgment. 

In certifying this question, “we do not intend to restrict the issues

considered by the state court.” Stevens v. Battelle Mem’l Inst., 488 F.3d 896, 904

(11th Cir. 2007); see also Miller v. Scottsdale Ins. Co., 410 F.3d 678, 682 (11th

Cir. 2005) (“Our phrasing of the certified question is merely suggestive and does

not in any way restrict the scope of the inquiry by the Supreme Court of

Florida.”). We are indeed mindful that “latitude extends to the Supreme Court’s

restatement of the issue or issues and the manner in which the answers are given.” 

Stevens, 488 F.3d at 904 (internal quotation marks omitted). We ask for

guidance.

QUESTION CERTIFIED.