Galloway et al v. Big Picture Loans, LLC et al, No. 3:2018cv00406 - Document 608 (E.D. Va. 2021)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 5/18/2021. (jsmi, )
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Galloway et al v. Big Picture Loans, LLC et al Doc. 608 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division LULA WILLIAMS, ^ al., Plaintiffs, Civil Action No. 3 Civil Action No. 3:18cv406 17CV461 BIG PICTURE LOANS, LLC, et al , Defendants. RENEE GALLOWAY, et al. , V. BIG PICTURE LOANS, et al., LLC, Defendants. HEHORANDUM OPINION This matter is before the Court on DEFENDANT MATT D lARTORELLO'S MOTION FOR ORDER CERTIFYING NOVEMBER 18, FOR INTERLOCUTORY APPEAL UNDER 28 U.S.C. ECF No. 946 in Williams, 2020 MEMORANDUM OPINION § 1292(b) (th« "Motion") , et al v. Big Picture Loans, LLC, et al.. Galloway I' ') . opposing and Having reply Dockets.Justia.com memoranda, the Motion (ECF No. 946 in Williams and ECF No. 582 in Galloway) will be denied. BACKGROUND In Williams, Galloway I Martorello, et al., 3:19cv314 and Renee Galloway, et al. II"), (E.D. Va.) ("Galloway V, the Plaintiffs filed three similar, but in some respects sv:bstantively quite different, actions arising out of a so-called "Rent A Tribe" scheme allegedly orchestrated by Matt Martorello ("Ms rtorello"), members of his family, companies that he controls, an d investors who allegedly funded the scheme (the "Martorello De fendants"). Big Picture Loans, LLC ("Big Picture") and Ascension T^chnologies, Inc. ("Ascension") (collectively sometimes referred to as the "Tribal Defendants") are entities formed under the tribal laws of the Lac View Band of Lake Superior Chippewa Indians {" LVD"). Picture and Ascension are also named defendants in Big illiams and Galloway I, and both entities are alleged to be implic:ated in the Rent A Tribe scheme that lies at the core of the Plaint:Lffs' claims in those cases. In Williams, Big Picture and Ascension claimed to share LVD's sovereign immunity and, on that basis, those enti ties sought dismissal of the case against them. The Court rejected that argument.^ On appeal, the United States Circuit Court of Appeals for the Fourth Circuit^ held that Big Picture and Asc ension were entitled to the protection of LVD's sovereign immunity Following the decision of the Fourth Circuit in Wj.lliams, the Court directed that the parties file Statements of Position explaining, how, if at all, the decision of the Fourth affected these proceedings and pending motions (ECF 601) LVD's OS. 599 and In his Statement of Position, Martorello argued holding that Big Picture and Ascension are protected sovereign immunity has siabstantive Circuit that the ^rom suit by and procedural consequences that necessitate dismissal of the case adainst them. MARTORELLO'S STATEMENT OF POSITION PURSUANT TO ECF NOS 599 & 601 ^ Williams v. Big Picture Loans, LLC, 329 F.Supp.Sd 2'::8 (E.D. Va. 2018) Williams v. Big Picture Loans, LLC, 929 F.3d 170 (4th Cir. 2019) In so ruling, the Fourth Circuit made clear that its decision does not affect the merits of the Plaintiffs' claims Id. at 185. It appears that the Fourth Circuit relied on this Court's findings of fact, finding no clear error in those findings. WilJjiams v. Big Picture Loans, LLC, 929 F.3d at 177. 3 Those entities also claimed sovereign immunity in Galloway I. Big Picture, Ascension and many other defendants since : aave reached a class action settlement of Williams, Galloway I, and Galloway II James that was filed in yet another case, Renee Galloway, et a.1. III"). That Williams, Jr., et al., 3:19cv470 (E.D. Va.) ("Galloway settlement has been preliminary approved and a hearing for final approval is set for December 15, 2020. on a motion ^ Although this ORDER was not entered in Galloway I, the parties have briefed that topic and the misrepresentations is^ues in that case in the same way as they briefed them in Williams (ECF No. 613). In their response to MARTORELLO'S STATEMENT OF POSITION PURSUANT TO ECF NOS. 599 & 601, the Plaintifj:s asserted, inter alia, that Martorello and others made material misrepresentations to this Court and to the Fourth Circuit about the facts pertaining to sovereign immunity and that, as a result, the Fourth Circuit's decision on that issue cannot be relied on by Martorello. PLAINTIFFS' RESPONSE TO MATT MARTORELLO S STATEMENT OF POSITION (ECF No. 624).5 At the urging of Martorello, the Court held a evidentiary hearing and accepted post-hearing briefs done so that Martorello, in his words, "be provided fair opportunity to respond [to two-day That was a full and plaintiffs ' alleged misrepresentations] through an evidentiary hearing and briefing. After conducting the requested evidentiary Ijiearing reviewing the requested briefing, the Court issued s. MEMORANDUM Therein, OPINION (Williams, ECF No. 944; Galloway, ECF. No 581 the Court found that Martorello had made misrepresentations asserted by the plaintiffs. certa.in The and of the MEMORANDUM OPINION explained that, as a result of the evidentia.ry hearing, 5 There are pending other motions in which the parties same positions. take the 6 Williams, NOTICE OF MATT MARTORELLO REGARDING EVIDENTIARY HEARING (ECF No. 679 at 5); Williams, MATT MARTORELLO'S SUPPLEI1ENTAL BRIEF ADDRESSING THE EFFECT OF THE FOURTH CIRCUIT'S DECISION ON PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (ECF No. 66 1 at 16-17); Williams, ORDER (ECF No. 697). "in analyzing all pleadings and future motions in whicli Martorello argues that his position is supported by the Fourth Circuit's [sovereign immunity] decision, this Court will now be required to take into account the record about the misrepresentations and the findings about them that are made herein." MEMORANDUM OPINION (Williams, ECF No. 944 at 39; Galloway I, ECF. No 581 at 39). Contrary to Martorello's brief, the MEMORANDUM not expressly overrule its previous factual findings OPINION did in Williams V. Big Picture Loans, LLC, 329 F. Supp.3d 248 (E.D. Va. 2018), which were affirmed, and relied on, by the Fourth Circuit in Williams v. Big Picture Loans, LLC, 929 F.3d 170 (4th Cir. 2019). What the Court did is say that, had it known the truth representations proved at the evidentiary hearing, it about could not have made certain of those factual findings. DISCUSSION Martorello seeks an interlocutory appeal of the OPINION."' MEMORANDUM Martorello seeks an interlocutory appeal because: In reaching its findings, the Court stated that it considered allegedly conflicting evidence and assessed Martorello s credibility, thereby depriving Martorello h;.s right to have a right to have a jury decide factual questions raised by the Plaintiffs' claims. This error merits appellate review ' It is appropriate to note that the Order followed tj he Memorandum Opinion (Williams, ECF No. 945) merely reqliiired counsel to set a schedule for the filing of briefs on an Amended Motion for Class Certification. and issuance of an Order certifying its determination for immediate appeal under 28 U.S.C. § 1292(b), which will materially advance the termination of this case. in addition, the Court expressly overruled its previous factual findings in Williams v. Big Picture Loans, LLC, 329 F. Supp.Bd 248 (E.dT Va. 2018), which were affirmed by the Fourth Circuit in Williams v. Big Picture Loans, LLC]:, 929 F.3d 170 {4th Cir. 2019). In doing s the Court violated the mandate rule requiriiig district courts to consider only expressly remanded following appeal. so, the Court violated the issueis In doing mandate ru].e requiring district courts to consider only issues expressly remanded following appeal. The fundamental premise for the reasons for see king appeal ignore what actually happened. In sum, the plaintif fs that Martorello had made misrepresentations of fact t o in securing certain legal rulings from the Court asserted the Court Martorello vigorously asserted that he had not made misrepreserltations and had demanded an evidentiary hearing, a request the Court granted He also demanded full briefing on the misrepresenta tions after a transcript was prepared. as well. issue The Court granted t.hat request As a result of the hearing, the Court detlermined, in fact, that Martorello had made certain misrepresentations of fact The end result was that, in analyzing pending and future motions on a limited topic (whether Martorello's position in any particular motion is supported by the Fourth Circuit's decision), the Court will be required to talce into account the recird on the misrepresentations and findings about them. To date, nothing of the sort has happened. Moreover, Martorello's brief illustrates the fundamental misunderstanding of what is required to secure an ordeij' permitting an interlocutory appeal Under 28 U.S.C. § 1292(b), a district court must <j:e^tify that any order sought to be appealed: (1) involves a controlling question of law; (2) as to which there is substantial ground for difference of opinion; and (3) that an immediate appe al order may litigation. materially Those advance the prerequisites ultimate are from the term ination important because of an interlocutory appeal under § 1292(b) is an exception to the general rule that appeals are to be had only after final judgment. Accordingly, the appellate device created by § 1292(b) "should be used sparingly and its requirement must be strictly construed." Difelice v. U.S. Airways, 404 F. Supp. 2d 907, 908-9C 9 (E.D. Va. 2005). As Difelice explained, the kind of question best suited for interlocutory review "is a narrow question of pui e law whose resolution will be completely dispositive of the litigation, even as a legal or practical matter, whichever way it goes " V. U.S. Airways, Inc., 404 F. Supp. 2d at 908-909. Difelice Martorello's motion fails these tests. To begin, Martorello's vaguely identified "controlling question of law" is not a controlling question of law. Indeed, Martorello actually seeks to appeal matters of fact, no t a question of law. Nor has Martorello shown any ground for substantial difference of opinion on any question that he asserts should be examined on interlocutory appeal; third, Martorello his not shown how an interlocutory appeal would materially advance the ultimate termination of the litigation and, to the contrary, ,n appeal of this stage would be slow the litigation further than it already has been slowed. The closest that Martorello comes to specifying a question of law for review is in his assertion that the mandate rule was violated because the Court overruled previous factual findings on which the Court of Appeals relied. That simply is not true. What the Court did was find that, in the face of the evidencf:e presented at the evidentiary hearing {that was requested by Martorello), it could not have been able to make findings that it had made. Nothing was reversed. Nothing was changed. In sum, there is no reason to grant an interlociji tory appeal in this case. CONCLUSION For the reasons set forth above, DEFENDANT MATT iflARTGRELLO'S MOTION FOR ORDER CERTIFYING NOVEMBER 18, 2020 MEMORAljlDUM OPINION FOR INTERLOCUTORY APPEAL UNDER 28 U.S.C. § 1292(b), ECF No. 946 in Williams, et al v. Big Picture Loans, LLC, et al , 3:17cv461 8 and ECF No. 582 in Galloway, et al v. Big Picture Loa,ns, LLC, et al., 3:18cv406, will be denied. It is so ORDERED. /s/ Robert E. Payne j Senior United States District Judge Richmond, Date: May Virg;lE nia 2021
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