Noble Prestige Limited v. Craig Thomas Galle

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11520
____________________
NOBLE PRESTIGE LIMITED,
Plaintiff-Appellee,
versus
CRAIG THOMAS GALLE,
individually,
PAUL HORN,
individually,
GALLE LAW GROUP, P.A.,
a Florida professional association,
Defendants-Appellants.
____________________
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2 Opinion of the Court 22-11520
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:20-cv-82357-RS
____________________
Before WILLIAM PRYOR, Chief Judge, LUCK *, and MARCUS, Circuit
Judges.
MARCUS, Circuit Judge:
Noble Prestige Limited lent Paul Thomas Horn $500,000 to
pursue litigation against a telecommunications company. Under
the terms of the loan, Horn agreed to repay Noble $5,000,000, or
5% of the recovery from the litigation, whichever turned out to be
greater. While the litigation was pending, however, a conserva-
torship over Horn’s assets was commenced in a probate court in
Denver, Colorado (the “Denver Probate Court”), due to a
longstanding mental illness that interferes with Horn’s ability to
make his own decisions or convey his wishes to others. Horn’s
longtime counsel, Craig Thomas Galle, was appointed conservator
and authorized to resolve the litigation on Horn’s behalf. The case
settled, and the proceeds were placed in the conservatorship estate,
subject to Galle’s management and the ultimate custody and con-
trol of the Denver Probate Court.
Following settlement, the Denver Probate Court refused to
authorize the payment of $5,000,000 to Noble because of concerns
* Judge Luck concurs in all but Section III.A.
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22-11520 Opinion of the Court 3
it had about the enforceability of the loan agreement. So, Noble
decided to arbitrate its dispute with Horn in Hong Kong, ulti-
mately obtaining arbitral awards that required Horn to pay Noble
the debt owed under the loan agreement and Galle to pay Noble
costs associated with the arbitration.
With its international arbitral awards in hand, Noble moved
to confirm the awards under the New York Convention in the
United States District Court for the Southern District of Florida.
Noble also sought a temporary restraining order prohibiting Galle,
Horn, and Galle’s law firm, Galle Law Group (“GLG”), from trans-
ferring, using, dissipating, or otherwise encumbering funds up to
the amount owed to Noble under the arbitral awards. Galle and
GLG (together, “Respondents”) opposed Noble’s request and
moved to dismiss the action. The district court granted Noble’s
request, entering what it termed a “temporary restraining order”
that prohibited Galle from dissipating or transferring $10,000,000
“notwithstanding any order(s) entered by the [Denver] Probate
Court.” The district court also entered an order granting Respond-
ents’ motion to dismiss in part and denying it in part. Now, Re-
spondents appeal both orders.
After careful review and with the benefit of oral argument,
we dismiss in part and vacate and remand in part. We do not have
appellate jurisdiction to review the partial denial of the motion to
dismiss. But we do have jurisdiction over the “temporary restrain-
ing order” because it was actually a preliminary injunction. We
hold, however, that the injunction was improperly entered, and
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4 Opinion of the Court 22-11520
therefore vacate that order and remand the matter to the district
court for further proceedings consistent with this opinion.
I.
A.
The dispute giving rise to this litigation dates back to 2011,
when Noble agreed to a Loan Facility Agreement (“Facility Agree-
ment”) with Horn to fund a dispute in which he was involved with
AT&T. Noble agreed to loan Horn $500,000, and, in exchange,
Horn agreed to repay Noble $5,000,000 or 5% of Horn’s eventual
recovery (sometimes referred to by the parties as Horn’s “Appreci-
ated Value Interest”), whichever turned out to be greater. 1 The Fa-
cility Agreement dictated that the parties would resolve any dispute
arising out of the Agreement through arbitration in Hong Kong.
To secure repayment of its loan, Noble also obtained “a se-
curity interest (lien) in the sums paid by the ATT Parties to Horn
on account of the Appreciated Value Interest” by entering into a
“Security Agreement” with Horn. The Security Agreement
1 “Appreciated Value Interest,” or “AVI,” refers to the subject of Horn’s dis-
pute with AT&T: the value of Horn’s interest in a cellular telecommunications
system called “Colorado 3.” Horn’s 1991 Assignment Agreement sold Horn’s
interest in Colorado 3 to a predecessor of AT&T, and the Assignment Agree-
ment styled the payment owed to Horn as his “AVI.” The later Facility Agree-
ment between Horn and Noble tracked this language.
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limited the amount of the lien to “those portion[s] of the funds
that equal the sums due Noble under the [Facility] Agreement.”
Noble disbursed the loan principal to Horn between Decem-
ber 2011 and February 2014. However, AT&T and Horn were un-
able to resolve their dispute informally so, in 2014, Horn sued
AT&T in a Colorado state court (the “AT&T litigation”).
B.
Horn suffers from a mental illness known as Functional
Neurological Deficit, also commonly referred to as Conversion
Disorder, which causes various neurological impairments in those
afflicted. Because of the impact this illness has on Horn’s ability to
make his own decisions, in 2017, while the AT&T litigation was
pending, a conservatorship proceeding was instituted in the Den-
ver Probate Court (the “Conservatorship”) to ensure that any pro-
ceeds owed to Horn from the AT&T litigation would not be
wasted or lost.
The Colorado Probate Code authorizes the State’s probate
courts to institute a conservatorship to manage the estate of an
adult if, after notice and hearing, the probate court determines
(1) by clear and convincing evidence that “the individual is unable
to manage property and business affairs because the individual is
unable to effectively receive or evaluate information or both or to
make or communicate decisions . . . or because the individual is
missing, detained, or unable to return to the United States,” and
(2) by a preponderance of the evidence, that “the individual has
property that will be wasted or dissipated unless management is
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6 Opinion of the Court 22-11520
provided . . . .” Colo. Rev. Stat. § 15-14-401(1)(b) (2023). Based on
expert opinion reports authored by Horn’s psychiatrist and neurol-
ogist, as well as testimony provided by a clinical psychologist at an
evidentiary hearing, the Denver Probate Court concluded that
Horn was “incapable of making decisions concerning his lawsuit,”
“incapable of communicating, giving input or direction, or re-
sponding clearly with his Counsel and other professionals assisting
him,” and “lacks the ability to make simple decisions.” Because
“substantial assets belonging to Mr. Horn [would] be wasted, if not
lost,” the Probate Court entered an order appointing Galle as “Spe-
cial Conservator” to “make any and all decisions concerning” the
AT&T litigation. See Colo. Rev. Stat. § 15-14-412(3)(a) (2023). The
Probate Court also appointed a guardian ad litem, James Britt, to
represent and protect the best interests of Horn and report to the
Probate Court as necessary.
Following his appointment as Special Conservator, Galle
agreed to settle the AT&T litigation on Horn’s behalf for
$57,500,000, and the Denver Probate Court approved the settle-
ment on August 23, 2017. The settlement proceeds (the “AT&T
settlement funds”) were paid into Horn’s estate, and placed in ac-
counts managed by Galle in his capacity as Special Conservator,
subject to the ultimate control of the Denver Probate Court. As of
September 2021, the Conservatorship estate contained funds ex-
ceeding $30,000,000.
Around two months after the AT&T litigation settled, in
November 2017, Noble sought payment of the $5,000,000 it
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claimed it was owed under the Facility Agreement. The Denver
Probate Court had authorized Galle, as Special Conservator, to pay
certain expenditures and debts of Horn’s using the AT&T settle-
ment funds, but expressly denied him permission to pay Noble be-
cause of questions it had regarding the Facility Agreement’s en-
forceability (given Horn’s mental state) and the potentially “usuri-
ous” nature of the loan (inasmuch as that payment would net No-
ble $4,500,000 on a $500,000 loan). Britt, the guardian ad litem, of-
fered to pay Noble $2 million to resolve its claim against Horn’s
estate, but Noble rejected this offer. Instead, Noble filed for arbi-
tration against Horn in the Hong Kong International Arbitration
Centre (“HKIAC”), under the terms of the Facility Agreement,
seeking to collect on the debt.
Once Galle learned of the arbitration in January 2018, he
sought, and the Denver Probate Court granted him, specific au-
thorization to represent Horn’s interests in the arbitration and to
hire local Hong Kong counsel. Then, on March 21, 2018, the Den-
ver Probate Court issued an order (the “Conservatorship Order”)
terminating all of Horn’s pre-existing financial powers of attorney
and broadening the scope of Galle’s authority to that of a general
Conservator -- tasking him with managing Horn’s estate in Horn’s
best interest and empowering him to take a variety of different ac-
tions on behalf of the estate under Colorado law. See Colo. Rev.
Stat. §§ 15-10-201(9) (2023), 15-14-411 (2023), 15-14-425 (2023). The
Probate Court reiterated its finding that Horn was “unable to man-
age property and business affairs because of an inability to effec-
tively receive or evaluate information or both or to make or
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8 Opinion of the Court 22-11520
communicate decisions.” The Probate Court further found that
Horn was “missing, detained, or unable to return to the United
States.” According to an affidavit submitted by Galle, Horn has not
resided in the United States since at least 1996 and was last known
to have resided in Thailand.
C.
Having obtained authorization from the Denver Probate
Court to represent Horn’s interests in the HKIAC arbitration, Galle
made an appearance before the arbitral tribunal and, through local
counsel, filed an answer on Horn’s behalf. The tribunal (the
“HKIAC Tribunal”) concluded, however, that the orders of the
Denver Probate Court authorizing Galle to represent Horn in the
arbitration were insufficient to convey that authority as a matter of
Hong Kong Law, and, on March 29, 2019, issued an “Interim
Award” prohibiting Galle from further participation in the arbitra-
tion “until such time as proper authority is obtained.” In a separate
award, the HKIAC Tribunal also ordered Galle to pay Noble’s costs
incurred in resolving the issue of Galle’s authority, which totaled
HK$3,250,000, plus interest (the “Partial Award on Costs”).
The arbitration continued without an appearance by Horn
or any other party authorized to represent him. Nevertheless, on
May 14, 2020, the HKIAC Tribunal entered a “Final Award” against
Horn that, among other things, ordered him to pay Noble “the sum
of US$5,000,000 due as a debt under the Facility Agreement, alter-
natively as damages for breach of the Facility Agreement,” plus
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attorneys’ fees, costs of HK$3,800,530.05, and prejudgment and
postjudgment interest.
D.
With the Interim Award, Partial Award on Costs, and Final
Award (together, the “Arbitral Awards”) in hand, Noble filed a peti-
tion to “[c]onfirm and [e]nforce” the Awards in the United States
District Court for the Southern District of Florida on December
18, 2020 (the “Petition”). Noble named Horn, GLG, and “Galle,
individually,” as Respondents, and sought a judgment confirming
the three Arbitral Awards and awarding the sums set forth in those
Awards, a temporary restraining order “in the form to be submitted
to the Court,” and “such other relief as this Court deems just and
proper, including costs.”
On December 21, 2020, Noble filed an ex parte application
for a temporary restraining order prohibiting Respondents from
transferring “all monies held or received by Respondents, or other
financial institutions, for the benefit of any or more of the Re-
spondents, and any financial accounts tied thereto, up to the
amounts under the Final Award . . . and the Partial Award on
Costs,” and for an expedited hearing for a preliminary injunction.
Noble’s application calculated that, as of December 18, 2020, the
total amount owed to Noble by Horn and Galle was $7,075,917.81,
with an additional $1,470.42 in interest accruing daily.
Galle and GLG appeared in the action, filed a response to the
ex parte application, and moved to dismiss the Petition on several
grounds, including that the district court lacked subject matter
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10 Opinion of the Court 22-11520
jurisdiction over GLG and Galle, individually, because neither had
signed an arbitration agreement with Noble. Noble opposed the
motion to dismiss and filed a reply in support of its ex parte appli-
cation.
The district court scheduled a hearing on Noble’s ex parte
application (though it referred to the application as a “Motion for
Preliminary Injunction”) and Respondents’ motion to dismiss for
September 17, 2021. At the hearing, the district court took argu-
ment from all parties regarding the motion to dismiss. However,
the court only permitted Noble to present argument on its request
for preliminary injunctive relief; Respondents were not allowed to
present argument before the district court granted Noble’s request.
The district court entered two orders. First, it granted in part and
denied in part the Respondents’ motion to dismiss. As relevant
here, the district court denied the motion to dismiss Noble’s claims
against Galle individually because Galle had voluntarily partici-
pated in the HKIAC arbitration proceedings and, thus, the court
had subject matter jurisdiction over Noble’s claims to confirm and
enforce the Arbitral Awards against him.
Second, the district court entered an order granting Noble’s
request for a “temporary restraining order.” The district court or-
dered Galle and GLG, “notwithstanding any order(s) entered by the
Probate Court in In the Matter of: Paul Clayton Horn, Case no. 2017-
PR-30071,” not to “dissipate, transfer, send, sequester, or deplete,
or cause or permit the dissipation, transfer, sending, sequestration,
or depletion of, the sum of US$ 10,000,000 [sic] from amount
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remaining of the payment in respect of Horn’s AVI.” The district
court did not consider whether to require Noble to post a bond,
and did not specify any end date for the “temporary restraining or-
der.”
Respondents timely appealed, challenging the entry of both
orders. Because the district court had only granted Respondents’
motion to dismiss in part, and the district court had labeled its in-
junctive order a “temporary restraining order,” this Court ordered
the parties to file jurisdictional briefs setting forth the basis for ap-
pellate jurisdiction. A panel of this Court construed Noble’s re-
sponse as a motion to dismiss, but denied the motion, concluding
that, although the district court had styled its injunction as a tem-
porary restraining order, it was, in reality, a preliminary injunction
and therefore immediately appealable. See 28 U.S.C. § 1292(a)(1).
The panel further concluded that the Court has pendent appellate
jurisdiction over Noble’s claims against Galle, individually, as the
district court had concluded in its dismissal order.
II.
We review questions of our jurisdiction, as well as the dis-
trict court’s subject matter jurisdiction, de novo. United States v.
Amodeo, 916 F.3d 967, 970 (11th Cir. 2019); Rubinstein v. Yehuda, 38
F.4th 982, 992 (11th Cir. 2022). We review the district court’s grant
of a preliminary injunction for abuse of discretion. Lebron v. Sec’y,
Fla. Dep’t of Child. & Fams., 710 F.3d 1202, 1206 (11th Cir. 2013).
But we review underlying questions of law, including the proper
interpretation of the Federal Rules of Civil Procedure, de novo. Id.;
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Mega Life & Health Ins. Co. v. Pieniozek, 585 F.3d 1399, 1403 (11th
Cir. 2009).
Our analysis begins, at it must, with the issue of our jurisdic-
tion to hear this appeal. See Peppers v. Cobb County, 835 F.3d 1289,
1296 (11th Cir. 2016). We have jurisdiction over “appeals from all
final decisions of the district courts of the United States.” 28 U.S.C.
§ 1291. A decision “is considered final and appealable only if it ends
the litigation on the merits and leaves nothing for the court to do
but execute the judgment.” W.R. Huff Asset Mgmt. Co. v. Kohlberg,
Kravis, Roberts & Co., 566 F.3d 979, 984 (11th Cir. 2009). If the de-
cision “does not end the litigation, it must come within an excep-
tion to the final judgment rule to be reviewable on appeal.” Farr v.
Heckler, 729 F.2d 1426, 1427 (11th Cir. 1984) (per curiam). Some of
these exceptions are found in decisions of this Court and the Su-
preme Court; others are provided by statute. See, e.g., Jenkins v.
Prime Ins., 32 F.4th 1343, 1345-46 (11th Cir. 2022). As relevant here,
the courts of appeals have jurisdiction over appeals from “[i]nter-
locutory orders of the district courts . . . granting . . . injunctions.”
28 U.S.C. § 1292(a)(1).
Noble urges us to dismiss this appeal because neither ap-
pealed order terminates the litigation in its entirety, and neither or-
der falls within any of the recognized exceptions. While Congress
has granted this Court jurisdiction to hear appeals from prelimi-
nary injunctions, the injunctive order entered by the district court
was, according to Noble, a temporary restraining order, not a pre-
liminary injunction, and this Court has held that temporary
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restraining orders are not immediately appealable under 28 U.S.C.
§ 1292(a)(1). McDougald v. Jenson, 786 F.2d 1465, 1472 (11th Cir.
1986). Thus, the argument goes, we lack the power to entertain
Respondents’ appeal.
Noble is undoubtedly correct that “[i]t is well settled in this
circuit that a TRO is not ordinarily appealable.” Id. But just be-
cause the district court labeled its order a “temporary restraining
order” does not make it so. “[T]he label placed on [such] an order
. . . is not dispositive of its nature and appealability under section
1292(a)(1).” Id. Rather, we look to three factors to determine
whether an interlocutory injunctive order is immediately appeala-
ble as a preliminary injunction: whether “(1) the duration of the re-
lief sought or granted exceeds that allowed by a TRO (ten days),
(2) the notice and hearing sought or afforded suggest that the relief
sought was a preliminary injunction, and (3) the requested relief
seeks to change the status quo.” AT&T Broadband v. Tech
Commc’ns, Inc., 381 F.3d 1309, 1314 (11th Cir. 2004).
Applying these factors, it is clear that Respondents have ap-
pealed from a preliminary injunction, not a temporary restraining
order. The district court did not temporally limit the order in any
way. The order had no ending date. Moreover, Respondents op-
posed Noble’s motion by filing a brief and by appearing at the dis-
trict court’s hearing, and the court’s order plainly altered the status
quo by placing restrictions on Galle’s authority as Conservator of
the funds subject to the Conservatorship. See id. We therefore
have jurisdiction to review the district court’s injunctive order.
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14 Opinion of the Court 22-11520
We do not, however, have jurisdiction over the district
court’s dismissal order. That order dismissed Noble’s claims
against GLG, but left Noble’s claims against the other Respondents
pending. So the order obviously did not “end[] the litigation on the
merits and leave[] nothing for the court to do but execute the judg-
ment.” W.R. Huff, 566 F.3d at 984. Nor does the dismissal order
fall into any other identifiable category of interlocutory order that
would be immediately appealable. Contra 28 U.S.C. § 1292; Jenkins,
32 F.4th at 1345-46.
Nevertheless, Respondents contend that we may exercise
our discretion to review the dismissal order under the doctrine of
pendent appellate jurisdiction. Though a panel of this Court pre-
viously agreed, upon further review and with the benefit of oral
argument, we now conclude that we cannot exercise pendent ap-
pellate jurisdiction over the district court’s motion to dismiss. See
11th Cir. R. 27-1(g) (“A ruling on a motion or other interlocutory
matter, whether entered by a single judge or a panel, is not binding
upon the panel to which the appeal is assigned on the merits, and
the merits panel may alter, amend, or vacate it.”).
The doctrine of pendent appellate jurisdiction allows us to
review certain decisions that are not typically appealable “if the
non-appealable matters are ‘inextricably intertwined with an ap-
pealable decision or if review of the former decision is necessary to
ensure meaningful review of the latter.’” Smith v. LePage, 834 F.3d
1285, 1292 (11th Cir. 2016) (quoting Jackson v. Humphrey, 776 F.3d
1232, 1239 (11th Cir. 2015)). The doctrine does not apply here,
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22-11520 Opinion of the Court 15
though, because the issue of the district court’s subject matter ju-
risdiction over Noble’s claims against Galle, individually, is neither
inextricably intertwined with nor necessary to ensure meaningful
review of Respondents’ challenges to the district court’s prelimi-
nary injunction. See Summit Med. Assocs., P.C. v. Pryor, 180 F.3d
1326, 1335-36 (11th Cir. 1999) (holding that the portion of a district
court’s order denying a motion to dismiss on standing grounds was
not “inextricably intertwined with” or “necessary to ensure mean-
ingful review of” another portion of the order denying a motion on
Eleventh Amendment grounds, because the appellant’s standing
arguments were “completely irrelevant to” their Eleventh Amend-
ment arguments) (internal quotation marks omitted).
The preliminary injunction prohibits Galle from transfer-
ring, spending, or diverting funds that are held in Conservatorship
accounts and are subject to the jurisdiction of the Denver Probate
Court. Thus, the preliminary injunction necessarily runs against
Galle only in his capacity as Conservator -- not against him individ-
ually. So even if we were to conclude that the district court lacked
jurisdiction over Noble’s claims against Galle in his individual ca-
pacity, that finding would have no bearing on the district court’s
authority to enter a preliminary injunction against Galle as Conser-
vator. Put simply, we need not resolve the jurisdictional question
to resolve the issues raised about the lawfulness of the district
court’s preliminary injunction. See id.; see also Moniz v. City of Fort
Lauderdale, 145 F.3d 1278, 1281 n.3 (11th Cir. 1998) (holding that
we lacked pendent appellate jurisdiction to review standing issue
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16 Opinion of the Court 22-11520
where the appellants had properly appealed the district court’s re-
jection of their qualified immunity defense).
Because we cannot assert pendent appellate jurisdiction
over the district court’s dismissal order, we dismiss Respondents’
appeal insofar as it challenges the district court’s denial of the mo-
tion to dismiss, and vacate the prior panel’s order to the extent it is
inconsistent with that conclusion.
III.
We turn then to the merits of Respondents’ challenges to
the district court’s preliminary injunction. We hold that the injunc-
tion must be vacated for two separate and independent reasons,
either of which would, standing alone, require vacatur. First, the
district court was barred from entering the order under the doc-
trine of “prior exclusive jurisdiction.” And second, the district court
lacked the authority to issue preliminary injunctive relief freezing
Respondents’ assets under Federal Rule of Civil Procedure 65. 2
A.
At the outset, we address whether the district court had the
power to enter a preliminary injunction restraining $10,000,000 of
2 Respondents also argue that the district court abused its discretion in issuing
preliminary injunctive relief for two separate reasons: (1) Noble failed to es-
tablish that it would suffer irreparable harm absent entry of an injunction, and
(2) the district court failed to even consider whether to require Noble to post
a bond before issuing the injunction. Because we hold that the district court
lacked the power to issue the injunction in the first place, we have no occasion
to reach these arguments.
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the AT&T settlement funds. Respondents first challenge the in-
junction on the ground that, under the doctrine of “prior exclusive
jurisdiction” (also sometimes referred to as “Princess Lida” absten-
tion), the district court was barred from entering an order that
sought to assert jurisdiction and control over funds that are already
under the exclusive jurisdiction and control of the Denver Probate
Court. See Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456,
466 (1939). We agree.
1.
Under the “ancient and oft-repeated doctrine of prior exclu-
sive jurisdiction,” when “a court of competent jurisdiction has ob-
tained possession, custody, or control of particular property, that
possession may not be disturbed by any other court.” Applied Un-
derwriters, Inc. v. Lara, 37 F.4th 579, 591 (9th Cir. 2022) (alteration
adopted) (citation omitted). Put another way, once one court has
properly asserted in rem jurisdiction over a res, other courts are
“precluded from exercising [their] jurisdiction over the same res to
defeat or impair the [first] court’s jurisdiction.” Kline v. Burke Con-
str. Co., 260 U.S. 226, 229 (1922); see also Princess Lida, 305 U.S. at
466 (“[I]f the two suits are in rem, or quasi in rem, so that the court,
or its officer, has possession or must have control of the property
which is the subject of the litigation in order to proceed with the
cause and grant the relief sought the jurisdiction of the one court
must yield to that of the other.”); 13F Charles Alan Wright & Ar-
thur R. Miller, Federal Practice and Procedure § 3631 & n.16 (3d ed.
2023) (“[W]hen a state or federal court of competent jurisdiction
has obtained possession, custody, or control of particular property,
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18 Opinion of the Court 22-11520
that authority and power over the property may not be disturbed
by any other court.”) (collecting cases).
This rule serves an important function in our federal sys-
tem of government: where two separate courts must navigate their
independent -- and sometimes overlapping -- jurisdictions, the rule
helps avoid the needless conflict that comes when one court at-
tempts to interfere with the valid process of another. See Covell v.
Heyman, 111 U.S. 176, 182 (1884). But the prior exclusive jurisdic-
tion doctrine is not merely a “principle of comity.” Id. As the Su-
preme Court explained over a century ago, “between state courts
and those of the United States, it is something more. It is a principle
of right and of law, and therefore of necessity. It leaves nothing to
discretion or mere convenience.” Id.[W]hen one takes into its jurisdiction a specific thing,
that res is as much withdrawn from the judicial power
of the other as if it had been carried physically into a
different territorial sovereignty. To attempt to seize
it by a foreign process is futile and void. . . . No judi-
cial process, whatever form it may assume, can have
any lawful authority outside of the limits of the juris-
diction of the court or judge by whom it is issued; and
any attempt to enforce it beyond these boundaries is
nothing less th[a]n lawless violence.
Id. at 182-83.
Thus, the doctrine operates to bar a subsequent court’s as-
sertion of in rem jurisdiction over a res that would interfere with a
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prior court’s exclusive control of that res. See United States v.
$270,000 in U.S. Currency, Plus Interest, 1 F.3d 1146, 1147-48 (11th
Cir. 1993) (per curiam) (citing Kline, 260 U.S. at 229); Applied Under-
writers, 37 F.4th at 591 (same); United States v. One Parcel Property
Located at Lot 85, 100 F.3d 740, 742 (10th Cir. 1996) (citing Princess
Lida, 305 U.S. at 465-66). The doctrine extends even to cases in
which property has not “been actually seized under judicial process
before a second suit is instituted.” United States v. Bank of N.Y. &
Tr. Co., 296 U.S. 463, 477 (1936). “It applies as well where suits are
brought to marshal assets, administer trusts, or liquidate estates,
and in suits of a similar nature” -- in other words, cases “where, to
give effect to its jurisdiction, the court must control the property.”
Id.; accord Kline, 260 U.S. at 231-32; Applied Underwriters, 37 F.4th at
591-93.
Notably, however, this does not mean that the doctrine
reaches so far as to bar any exercise of jurisdiction related to a res
that is already under another court’s control.
Where the judgment sought is strictly in personam,
for the recovery of money or for an injunction com-
pelling or restraining action by the defendant, both a
state court and a federal court having concurrent ju-
risdiction may proceed with the litigation, at least un-
til judgment is obtained in one court which may be
set up as res []judicata in the other.
Penn Gen. Cas. Co. v. Pennsylvania ex rel. Schnader, 294 U.S. 189, 195
(1935); accord Markham v. Allen, 326 U.S. 490, 494 (1946) (collecting
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20 Opinion of the Court 22-11520
cases); see also United States v. Certified Indus., Inc., 361 F.2d 857, 860
(2d Cir. 1966) (quoting Markham, 326 U.S. at 494); Citibank, N.A. v.
Data Lease Fin. Corp., 645 F.2d 333, 338-39 (5th Cir. Unit B May
1981) 3 (citing Kline, 260 U.S. at 229); Lot 85, 100 F.3d at 743 (quoting
Penn Gen., 294 U.S. at 198); State Eng’r v. S. Fork Band of Te-Moak
Tribe of W. Shoshone Indians, 339 F.3d 804, 811 (9th Cir. 2003) (quot-
ing Penn Gen., 294 U.S. at 195); Goncalves ex rel. Goncalves v. Rady
Child.’s Hosp. San Diego, 865 F.3d 1237, 1254 (9th Cir. 2017) (same).
The Supreme Court’s decision in Penn General provides a
useful illustration of the doctrine’s scope. There, shareholders of
an insolvent insurance company brought suit in federal district
court alleging that the company’s officers had misappropriated
funds and seeking the appointment of a receiver to liquidate the
company and distribute its assets. Penn Gen., 294 U.S. at 191-92.
Shortly thereafter, Pennsylvania’s Attorney General filed a similar
suit in state court, seeking an order taking the assets of the com-
pany into the possession of the insurance commissioner for liqui-
dation. Id. at 192. Nearly simultaneously, the two courts issued
competing preliminary injunctions prohibiting the company and
its officers or agents from transacting any business and from dis-
posing of the company’s property and enjoining all other persons
from interfering with the company in any way. Id. at 192-93. The
state-court action eventually proceeded to judgment, resulting in a
3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to October 1, 1981.
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22-11520 Opinion of the Court 21
final decree directing the acting insurance commissioner to take
possession of and liquidate the company’s assets. Id. at 193. After
the insurance company refused to comply, citing the conflicting
preliminary injunction issued by the federal district court, the
State’s Attorney General appealed to the Pennsylvania Supreme
Court, which affirmed the state court’s decree. Id.
The U.S. Supreme Court then granted certiorari to resolve
the “impasse” between the federal and state courts, each of which
had attempted to assert jurisdiction over the same subject matter
-- “the liquidation of the business, and assets of the insolvent cor-
poration” -- and each of which was “unable to perform its function
without acquiring possession and control of the property.” Id. at
190-91, 194. The Court determined that the federal court had first
acquired jurisdiction over the res because the federal plaintiffs had
filed their complaint before the Pennsylvania Attorney General in-
itiated the state-court action. Id. at 196-97. As a result, the federal
district court “alone c[ould] rightfully assert control over the prop-
erty and proceed with litigation which affects that control, and it
alone c[ould] determine how far it w[ould] permit any other court
to interfere.” Id. at 197 (citations omitted).
That did not mean, however, that the state court was en-
tirely denuded of the power to entertain an action concerning the
insurance company. The Supreme Court explained that the state
court could still “make orders which do not conflict with the au-
thority of the court having jurisdiction over the control and dispo-
sition of the property,” such as ordering a receiver to surrender
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22 Opinion of the Court 22-11520
property to the court having prior jurisdiction or to “take posses-
sion and proceed with the liquidation when the court having juris-
diction over the property relinquishes it.” Id. at 198. But the fed-
eral court’s prior assertion of jurisdiction over the insolvent com-
pany and its assets deprived the state court of the power to enter
orders that would disturb the federal court’s exclusive control, in-
cluding the injunction which prohibited the company from dispos-
ing of its assets and prohibited others from taking possession of
them. See id. at 198-99. The Supreme Court therefore concluded
that Pennsylvania’s high court had “erred in affirming” the orders
“direct[ing] the insurance commissioner to take possession of the
business and property of the company,” “enjoin[ing] the company
from surrendering its books, records, and assets to any person
other than the commissioner, and enjoin[ing] others from taking
possession of them.” Id. at 199; see also $270,000 in U.S. Currency, 1
F.3d at 1149; Certified Indus., 361 F.2d at 860; Applied Underwriters,
37 F.4th at 591-92.
Applying these principles to the case before us, it is clear, as
an initial matter, that the Conservatorship predates the federal dis-
trict court action. The Conservatorship commenced on March 7,
2017, several years before Noble moved to confirm the Arbitral
Awards in federal district court in late 2020. So, if the Conserva-
torship is in fact an in rem proceeding, the prior exclusive jurisdic-
tion rule would bar the district court from entering any order that
asserts in rem jurisdiction over Conservatorship assets, thereby dis-
turbing the Denver Probate Court’s exclusive control of the res. See
Penn Gen., 294 U.S. at 199.
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22-11520 Opinion of the Court 23
There can be no question that the Denver Probate Court has
asserted in rem jurisdiction over the assets of the Conservatorship
estate. Indeed, counsel for Noble conceded this point at oral argu-
ment in our Court. Oral Argument at 15:45-16:02. Under Colo-
rado law, once a conservatorship has commenced, the probate
court obtains “[e]xclusive jurisdiction” over the protected person’s
estate “to determine how [that] estate . . . must be managed, ex-
pended, or distributed.” Colo. Rev. Stat. § 15-14-402(1)(b) (2023).
While the probate court “may appoint a limited or unlimited con-
servator” to manage the estate and take certain actions on behalf
of the protected person for his or her benefit, see id. §§ 15-14-401(1)
(2023), 15-10-201(9) (2023), 15-14-411 (2023), 15-14-425 (2023), the
assets of the estate remain subject to the ultimate custody and con-
trol of the probate court, which may exercise “all the powers over
the estate and business affairs of the protected person that the per-
son could exercise if the person were an adult, present, and not un-
der conservatorship or other protective order.” Colo. Rev. Stat. §
15-14-410(1)(b) (2023). Thus, “to give effect to its jurisdiction, the
court must control the property.” Bank of New York, 296 U.S. at 477(concluding that state court liquidation proceeding in which assets
of insurance company had been vested in a statutory liquidator was
in rem); see Black v. Black, 482 P.3d 460, 474-75 (Colo. App. 2020) (not-
ing that Colorado probate courts exercise in rem jurisdiction over
assets of the conservatorship estate); Applied Underwriters, 37 F.4th
at 592 (concluding that state court conservatorship proceeding in
which assets of insurance company had been vested in state insur-
ance commissioner subject to probate court’s control was in rem).
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24 Opinion of the Court 22-11520
As a consequence, the Denver Probate Court “alone can
rightfully assert control over the property” that makes up the Con-
servatorship estate. Penn Gen., 294 U.S. at 197. Yet, here, the district
court entered a preliminary injunction ordering Galle not to “dissi-
pate, transfer, send, sequester, or deplete, or cause or permit the
dissipation, transfer, sending, sequestration, or depletion of, the
sum of US$ 10,000,000 [sic] from amount remaining of the pay-
ment in respect of Horn’s AVI,” “notwithstanding any order(s) en-
tered by the Probate Court in In the Matter of: Paul Clayton Horn,
Case no. 2017-PR-30071.” To give effect to its order, the federal
district court would have to assert control over the $10,000,000
“from [the] amount remaining of the payment in respect to Horn’s
AVI” -- in other words, the AT&T settlement funds. See Bank of
New York, 296 U.S. at 477. Because these funds are part of the Con-
servatorship estate, the district court’s order prohibits Galle from
taking any action with respect to funds that are properly within the
custody and control of the Denver Probate Court. See Penn Gen.,
294 U.S. at 197. Under the prior exclusive jurisdiction doctrine, the
district court’s entry of the preliminary injunction represents an as-
sertion of in rem jurisdiction that the court was powerless to make.
See id. at 199.
Of course, the prior exclusive jurisdiction doctrine does not
dictate that Noble’s action be dismissed. After all, Noble’s underly-
ing Petition seeks to confirm and enforce Arbitral Awards that pro-
vide in personam relief against Respondents; the Awards order Re-
spondents to pay Noble monetary sums without any reference to a
discrete res. Thus, the district court properly retains jurisdiction to
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22-11520 Opinion of the Court 25
entertain Noble’s claims for in personam relief. See id. at 198. But,
because the district court reached beyond the scope of the in perso-
nam action filed by Noble to enter a preliminary injunction that as-
serted control over a res already subject to the exclusive control of
the Denver Probate Court, that order must be vacated. See id. at
199; Farmers’ Loan & Tr. Co. v. Lake St. Elevated R.R. Co., 177 U.S. 51,
62 (1900) (holding that state court erred by “enjoining and restrain-
ing” party from “proceeding with or prosecuting . . . foreclosure
suit in the circuit court of the United States” because the federal
court had first acquired jurisdiction over the property upon filing
of complaint seeking foreclosure); Certified Indus., 361 F.2d at 862
(holding that district court’s entry of preliminary injunction that
“directly interfere[d] with and [was] in conflict with disposition of
the fund under control of the state court” was error); $270,000 in
U.S. Currency, 1 F.3d at 1149 (vacating district court’s forfeiture or-
der on prior exclusive jurisdiction ground where state court had
not yet relinquished its in rem jurisdiction over property by “en-
ter[ing] a final order disposing of the property”).
2.
Noble offers two rejoinders, but neither saves the injunc-
tion.
First, Noble argues that Respondents waived their prior ex-
clusive jurisdiction argument by failing to raise it in the district
court. To preserve an issue for appeal, “a party must ‘clearly pre-
sent it to the district court . . . in such a way as to afford the district
court an opportunity to recognize and rule on it.’” Belevich v.
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26 Opinion of the Court 22-11520
Thomas, 17 F.4th 1048, 1051 n.1 (11th Cir. 2021) (alteration in Bele-
vich) (quoting In re Pan Am. World Airways, Inc., 905 F.2d 1457, 1462
(11th Cir. 1990)). Contrary to Noble’s argument, however, Re-
spondents repeatedly argued that the Denver Probate Court had
exclusive jurisdiction and control over the AT&T settlement funds.
In their brief opposing Noble’s request for a temporary re-
straining order, under the heading “Jurisdiction,” Respondents said
that the district court “must abstain from exercising jurisdiction
over funds held under the control and supervision of the Denver
Probate Court” because the Conservator, like “a trustee in bank-
ruptcy or a receiver, holds property ‘in custodia legis.’” Respond-
ents expressly asserted that “[a]ny injunctive relief in this case
against the Conservator would affect the Probate Court’s exclusive
jurisdiction of the Horn assets.” And, at the district court hearing
on Noble’s motion, counsel for Respondents argued that “we have
disputed the entry of any type of . . . preliminary injunction tying
up these funds that are in the custody of the Denver probate court.”
While Respondents did not specifically direct the district court to
the Princess Lida case or refer to their argument as “Princess Lida
abstention,” that omission is of no moment. A party is obviously
not limited to citing the same authority or offering the same argu-
ment on appeal as it did before the district court, as long as the new
authority or argument is still offered in support of an issue that has
been properly preserved. See Pugliese v. Pukka Dev., Inc., 550 F.3d
1299, 1304 n.3 (11th Cir. 2008) (“Although new claims or issues
may not be raised, new arguments relating to preserved claims may
be reviewed on appeal.” (emphasis in original)). Respondents’
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22-11520 Opinion of the Court 27
submissions were more than sufficient to put the district court
squarely on notice of Respondents’ prior exclusive jurisdiction ar-
gument and to give the court the opportunity to rule on it. See
Belevich, 17 F.4th at 1051 n.1.
Next, Noble argues that the Constitution’s Supremacy
Clause bars application of the prior exclusive jurisdiction doctrine.
Noble’s Petition ultimately seeks to confirm and enforce the
Awards under the New York Convention. Because the New York
Convention is incorporated into federal law by the Federal Arbitra-
tion Act, and, under the Supremacy Clause, federal law reigns su-
preme over state law, Noble reasons that any “purported exclusive
jurisdiction of the Denver Probate Court, . . . purported application
of Colorado probate law, [or] purported doctrines of abstention
and deference to state probate[] courts, etc. ha[s] no application
here.”
Whether the district court had the power to issue prelimi-
nary injunctive relief that would interfere with the Denver Probate
Court’s prior exclusive jurisdiction over the AT&T settlement
funds does not implicate any conflict between the New York Con-
vention and state law, or any other law for that matter. See Murphy
v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1479 (2018) (noting
that the Supremacy Clause “simply provides ‘a rule of decision’”
and “specifies that federal law is supreme in case of a conflict with
state law” (citation omitted)). If anything, the prior exclusive juris-
diction doctrine implicates potential conflicts between the exercise
of jurisdiction of state courts and federal courts over a res -- not
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28 Opinion of the Court 22-11520
conflicts between state and federal law. Noble does not explain
how or why the Supremacy Clause would prevent the district court
from asserting jurisdiction in light of the state court’s prior exclu-
sive jurisdiction over the res, simply because the underlying federal
action has been brought under the New York Convention. Nor
does it offer any authority standing for that proposition.
Under the doctrine of prior exclusive jurisdiction, the district
court’s entry of preliminary injunctive relief over the AT&T settle-
ment funds must be vacated.
B.
Next, we consider Respondents’ alternate and independent
argument that the district court improperly granted a preliminary
injunction under Federal Rule of Civil Procedure 65. We conclude
that, since Noble’s Petition seeks only legal (not equitable) relief,
the district court lacked the power to issue preliminary injunctive
relief freezing Respondents’ assets pursuant to Rule 65.
1.
“It is axiomatic that equitable relief is only available where
there is no adequate remedy at law; cases in which the remedy
sought is the recovery of money damages do not fall within the
jurisdiction of equity.” Rosen v. Cascade Int’l, Inc., 21 F.3d 1520, 1527
(11th Cir. 1994). Relying on this “fundamental principle of equity
jurisprudence,” we have often explained that “‘a court may not
reach a defendant’s assets unrelated to the underlying litigation and
freeze them so that they may be preserved to satisfy a potential
money judgment.’” Id. (quoting Mitsubishi Int’l Corp. v. Cardinal
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22-11520 Opinion of the Court 29
Textile Sales, Inc., 14 F.3d 1507, 1521 (11th Cir. 1994)). In other
words, in “[c]ases in which the remedy sought is the recovery of
money (whether as collection on a debt or as damages),” a district
court is powerless to grant preliminary injunctive relief under Rule
65 because the plaintiff’s claims “do not fall within the jurisdiction
of equity,” Mitsubishi, 14 F.3d at 1518, and “preliminary injunctive
relief [is] of a different ‘character’ from the final relief sought and
obtainable in the litigation (the prohibition of certain conduct, not
the payment of money damages),” Rosen, 21 F.3d at 1528 (quoting
De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 220 (1945)).
See Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S.
308, 333 (1999).
That is precisely the case here. The district court lacked the
authority to enter a preliminary injunction under Rule 65 because
Noble’s Petition has not asserted any equitable claims nor does it
ultimately seek any equitable relief. The Petition lists two counts:
Count I, labeled “The Court Should Confirm and Enforce the
Awards Under the New York Convention,” and Count II, labeled
“The Court Should Issue a Temporary Restraining Order.” As the
title suggests, Count II is not a claim for final relief, but rather a
request for interim relief in the form of a temporary restraining or-
der under Rule 65(b) that Noble included in its Petition. See FED.
R. CIV. P. 65(b)(1).
Thus, the only claim for “final relief” that is “obtainable” in
Noble’s Petition is found in Count I. Rosen, 21 F.3d at 1528. In this
claim, the Petition seeks relief in the form of (1) a judgment
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30 Opinion of the Court 22-11520
“confirming and enforcing” the Arbitral Awards against Respond-
ents, and retaining jurisdiction to enforce that judgment; (2) a judg-
ment awarding Noble $5,000,000 as debt owed under the Facility
Agreement, plus pre- and post-judgment interest, and
HK$3,800,530.05 as costs (the same sums awarded to Noble in the
Arbitral Awards); and (3) “such other relief as this Court deems just
and proper, including costs.”
None of this is equitable in nature. The Arbitral Awards that
Noble seeks to confirm and enforce were issued as part of an arbi-
tration brought by Noble to collect on the debt established by the
Facility Agreement. As a secured creditor, Noble had two basic op-
tions upon Horn’s default: it could foreclose on the lien it held
against the AT&T settlement funds, or “ignore its security interest
and obtain a judgment on the underlying obligation and proceed
by execution and levy.” 4 James J. White, Robert S. Summers, &
Robert A. Hillman, Uniform Commercial Code: Practitioner Treatise Se-
ries § 34:7 (6th ed. 2023); accord 51 Am. Jur. 2d Liens § 79 (West
2023) (“Claims for enforcement of a lien are separate and distinct
from an underlying breach of contract claim.”); id. at § 79 n.6
(“Where there is a debt secured by a note, which is, in turn, secured
by a lien, the lien and the note constitute separate obligations; thus,
the right to recover on the promissory note and the right to fore-
close may be enforced separately.”). The actions associated with
each option are distinct. An action to reduce the obligation estab-
lished by the promissory note to judgment is one at law, and seeks
a judgment against the debtor in personam, whereas a foreclosure
action is equitable in nature, and the relief sought is in rem, “limited
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22-11520 Opinion of the Court 31
to the property.” United States v. Alvarado, 5 F.3d 1425, 1428-29 (11th
Cir. 1993); accord 1 Dan B. Dobbs, Dobbs Law of Remedies § 2.6(3) (2d
ed. 1993).
Significantly, in pursuing arbitration before the HKIAC Tri-
bunal, Noble elected to obtain an award against Horn in personam
on the underlying debt, rather than attempt to foreclose on its se-
curity interest. Counsel for Noble conceded this point at oral argu-
ment, Oral Argument at 16:08-17:00, and the HKIAC Tribunal con-
firmed as much in its Award:
Claimant issued these proceedings for payment of a
debt and/or damages for breach of contract against
Respondent, and for related relief. On Claimant’s
case these are claims against Respondent in personam.
The Tribunal agrees. The subject matter of this arbi-
tration is not an in rem claim against the sums recov-
ered for Respondent pursuant to the AT&T Action.
Accordingly, the Awards issued by the HKIAC Tribunal were
legal, rather than equitable in nature. An action in district court to
confirm and enforce an in personam award rendered by an arbitral
panel remains the confirmation of an in personam award. See EGI-
VSR, LLC v. Coderch Mitjans, 963 F.3d 1112, 1124-25 (11th Cir. 2020).
Nor does Noble’s generic request for “such other relief as this
Court deems just and proper, including costs,” transform the con-
firmation of an in personam award into an action seeking equitable
relief. See Rosen, 21 F.3d at 1526 n.12 (“The mere incantation of
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32 Opinion of the Court 22-11520
such boilerplate language does not convert a legal cause of action
into a legitimate request for equitable relief.”).
Put simply, when Noble filed its Petition in federal district
court, it elected to pursue confirmation of several in personam
awards that granted only legal relief. Noble did not attempt to fore-
close on its lien -- whether before the arbitral panel, or before the
district court, as Noble’s counsel admitted during oral argument. 4
Oral Argument at 18:50-19:00. Nor, finally, did Noble assert any
other claim that ultimately sought equitable relief.
In sum, Noble’s Petition fails to invoke the equitable juris-
diction of the district court, and, therefore, the issuance of a pre-
liminary injunction under Rule 65 was improper. See Rosen, 21 F.3d
at 1528; Mitsubishi, 14 F.3d at 1520-21.
2.
Noble tries to resist this conclusion, offering two arguments.
We remain unpersuaded.
First, Noble says that the existence of a lien against the
AT&T settlement funds under the Security Agreement, standing
alone, is sufficient to give the district court the equitable authority
to issue preliminary injunctive relief under Rule 65. But the essen-
tial question is not whether a plaintiff has a lien against property; it
is whether the plaintiff has sought to foreclose on that lien. See
Rosen, 21 F.3d at 1529-30; Mitsubishi, 14 F.3d at 1518-19. Until and
4 We take no position on whether Noble could successfully state a claim for
foreclosure of its lien in the Southern District of Florida.
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22-11520 Opinion of the Court 33
unless it has done so, Noble has not invoked the district court’s eq-
uitable power. Noble did not assert any equitable claim in this ac-
tion. It never moved to enforce its lien in the district court, or, as
best we can tell, anywhere else.
Noble has not cited any case in support of its claim for equi-
table relief. See Deckert v. Indep. Shares Corp., 311 U.S. 282, 288, 290-
91 (1940) (holding that preliminary injunction was warranted
where “the bill state[d] a cause [of action] for equitable relief ”);
United States v. First Nat’l City Bank, 379 U.S. 378, 379, 385 (1965)
(holding that preliminary injunction preventing dissipation of as-
sets was warranted where plaintiff sought foreclosure of tax lien);
Grupo Mexicano, 527 U.S. at 333 (holding that preliminary injunctive
relief freezing defendants’ assets was not warranted because in-
junctive relief was historically unavailable where plaintiff sought
only money damages for breach of contract); SEC v. ETS Payphones,
Inc., 408 F.3d 727, 734 (11th Cir. 2005) (per curiam) (“[T]he asset
freeze is justified as a means of preserving funds for the equitable
remedy of disgorg[e]ment.”); United States v. Askins & Miller Ortho-
paedics, P.A., 924 F.3d 1348, 1361 (11th Cir. 2019) (affirming district
court’s preliminary injunction and expressly distinguishing Rosen,
Mitsubishi, and Grupo Mexicano because “[h]ere, in contrast, the
IRS’s complaint asked for a permanent injunction providing pro-
spective equitable relief for anticipated future violations -- the same
relief sought by the preliminary injunction at issue.”).
Second, Noble claims that, in any event, Rule 65 authorized
preliminary injunctive relief because Noble’s action seeks to
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34 Opinion of the Court 22-11520
enforce a foreign arbitral award under a treaty of the United States.
Granting a preliminary injunction, Noble asserts, would “serve[]
the public interest because it [would] advance[] the strong federal
policy favoring arbitration and the enforcement of arbitral awards,
especially foreign arbitral awards in particular.” Br. of Appellee at
35. But the question whether preliminary injunctive relief would
serve the public interest has no bearing on whether the district
court has the equitable power to enter such relief in the first place.
Noble’s claims remain legal claims, and that those claims were
brought pursuant to the New York Convention, standing alone,
does not convert them into claims sounding in equity.
The district court lacked the power to issue an order freez-
ing the AT&T settlement funds pending judgment, and we must
vacate the district court’s entry of the preliminary injunction.
Accordingly, we DISMISS Respondents’ appeal to the ex-
tent it challenges the district court’s denial of their motion to dis-
miss, VACATE the district court’s entry of preliminary injunctive
relief, and REMAND the case for further proceedings consistent
with this opinion.
DISMISSED IN PART; VACATED AND REMANDED IN
PART.