United States Securities and Exchange Commission v. Luiz Carlos Capuci, Jr.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11139
Non-Argument Calendar
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UNITED STATES SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff-Appellee,
versus
MCC INTERNATIONAL CORP.,
d.b.a. Mining Capital Coin Corp., et al.,
Defendants,
LUIZ CARLOS CAPUCI, JR.,
a.k.a. Junior Caputti,
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2 Opinion of the Court 23-11139
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:22-cv-14129-KMM
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Before J ORDAN, NEWSOM , and B RASHER , Circuit Judges.
PER CURIAM:
Luiz Carlos Capuci, Jr. appeals from the district court’s two
March 8, 2023, orders granting the Security and Exchange Com-
mission’s (“SEC”) motion to allow alternate service and explaining
the court’s June 17, 2022, paperless order granting the SEC’s mo-
tion for a preliminary injunction. These are not final and appeala-
ble orders because the district court has not yet resolved the rights
and liabilities of all the parties and did not certify either order for
immediate appeal. See 28 U.S.C. § 1291; Fed. R. Civ. P. 54(b); CSX
Transp., Inc. v. City of Garden City, 235 F.3d 1325, 1327 (11th Cir.
2000). However, in his notice of appeal, Capuci states that the al-
ternate service order is immediately appealable under the collateral
order doctrine and pendent appellate jurisdiction. As to the appeal
from the alternate service order, the SEC moves to dismiss it for
lack of jurisdiction and moves for summary affirmance.
The alternate service order is not appealable under the col-
lateral order doctrine because a challenge of the district court’s
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23-11139 Opinion of the Court 3
exercise of personal jurisdiction based on service of process can be
vindicated following final judgment. See Plaintiff A v. Schair, 744
F.3d 1247, 125252 (11th Cir. 2014); Van Cauwenberghe v. Biard, 486
U.S. 517, 526‑27 (1988). It is also not appealable under pendent ap-
pellate jurisdiction because the relevant issue otherwise on appeal
is whether the district court erred in granting a preliminary injunc-
tion before service of process. See Jones v. Fransen, 857 F.3d 843, 850
(11th Cir. 2017); Smith v. LePage, 834 F.3d 1285, 1292 (11th Cir.
2016). To answer that question, we need not determine whether,
nine months later, the district court was divested of jurisdiction to
grant alternate service.
Further, the explanatory order is not an immediately appeal-
able injunction order because it merely explained, but did not alter
or modify, the preliminary injunction issued by the paperless order.
See 28 U.S.C. § 1292(a)(1); Birmingham Fire Fighters Ass’n 117 v. Jeffer-
son County, 280 F.3d 1289, 1292 (11th Cir. 2002); Sierra Club v. Mei-
burg, 296 F.3d 1021, 1029 (11th Cir. 2002). However, we may con-
sider the district court’s explanation in reviewing appeal No.
22‑12281, which was taken directly from the paperless order issu-
ing the preliminary injunction. Because the first appeal was fully
briefed before the explanatory order was issued and this appeal is
now fully briefed, the parties’ briefs from this appeal will be dock-
eted in the first appeal to aid our review.
Accordingly, the SEC’s motion to dismiss the appeal of the
alternate service order is GRANTED, this appeal is DISMISSED for
lack of jurisdiction, and the motion to consolidate appeals is
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4 Opinion of the Court 23-11139
DENIED as moot. The SEC’s request for summary affirmance is
DENIED. The clerk is ORDERED to docket the merits briefs from
this appeal in appeal No. 22‑12281.
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