Securities & Exchange Commission v. Richard L. Goble , 656 F. App'x 969 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11804
Non-Argument Calendar
________________________
D.C. Docket No. 6:08-cv-00829-MSS-KRS
SECURITIES & EXCHANGE COMMISSION,
Plaintiff-Appellee,
versus
NORTH AMERICAN CLEARING, INC., et al.,
Defendants,
RICHARD L. GOBLE,
Defendant-Appellant.
________________________
No. 14-15826
Non-Argument Calendar
________________________
D.C. Docket No. 6:08-cv-00829-MSS-KRS
SECURITIES AND EXCHANGE COMMISSION,
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Plaintiff-Appellee,
SECURITIES INVESTOR PROTECTION CORPORATION,
Movant-Appellee,
versus
NORTH AMERICAN CLEARING, INC., et al.,
Defendants,
RICHARD L. GOBLE,
Defendant-Appellant.
________________________
No. 15-10599
Non-Argument Calendar
________________________
D.C. Docket No. 6:08-cv-00829-MSS-KRS
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff-Appellee,
PETER J. ANDERSON,
SUTHERLAND ASBILL & BRENNAN, LLP,
KEITH JERROD BARNETT,
MICHAEL K. FREEDMAN,
OLGA GRENBERG,
Interested Parties-Appellees,
SECURITIES INVESTOR PROTECTION CORPORATION,
Intervenor,
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versus
NORTH AMERICAN CLEARING, INC., et al.,
Defendants,
RICHARD L. GOBLE,
Defendant-Appellant.
________________________
No. 15-10937
Non-Argument Calendar
________________________
D.C. Docket No. 6:08-cv-00829-MSS-KRS
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff-Appellee
versus
NORTH AMERICAN CLEARING, INC., et al.,
Defendants,
RICHARD L. GOBLE,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(July 18, 2016)
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Before HULL, MARCUS, and ANDERSON, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Richard L. Goble appeals the district court’s
entry of a new permanent injunction, the denial of his second Fed. R. Civ. P. 60(b)
motion for relief from the new injunction, the denial of his Rule 60(b) motions for
relief from a receivership order and a protective decree under the Securities
Investor Protection Act (“SIPA”), 15 U.S.C. §§ 78aaa et seq., and the denials of his
renewed motion for leave to sue under the Barton1 doctrine and his motion for
reconsideration in the Securities Exchange Commission’s (“SEC”) civil
enforcement action alleging violations of the Securities Exchange Act of 1934
(“Exchange Act”). On appeal, Goble argues that the district court abused its
discretion in issuing a new permanent injunction. He also asserts that the district
court abused its discretion in denying his second Rule 60(b) motion for relief from
the new injunction. Additionally, Goble contends that the district court abused its
discretion by denying his Rule 60(b) motions for relief from the receivership order
and the SIPA protective decree. Finally, he argues that the district court abused its
discretion by denying his renewed Barton motion and his motion for
reconsideration of the denial of the renewed Barton motion.
1
Barton v. Barbour, 104 U.S. 126, 26 L. Ed. 672 (1881).
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I.
We review a district court’s grant of injunctive relief for abuse of discretion
and will affirm unless the district court made a clear error of judgment.
SunAmerica Corp. v. Sun Life Assurance Co. of Canada, 77 F.3d 1325, 1333 (11th
Cir. 1996). In order to demonstrate entitlement to injunctive relief, the SEC must
demonstrate “(1) a prima facie case of previous violations of federal securities
laws, and (2) a reasonable likelihood that the wrong will be repeated.” SEC v.
Calvo, 378 F.3d 1211, 1216 (11th Cir. 2004). Factors that courts consider to
determine whether there is a reasonable likelihood that the wrong will be repeated
include:
the egregiousness of the defendant’s actions, the isolated or recurrent
nature of the infraction, the degree of scienter involved, the sincerity
of the defendant’s assurances against future violations, the
defendant’s recognition of the wrongful nature of the conduct, and the
likelihood that the defendant’s occupation will present opportunities
for future violations.
Id. (quotation omitted).
Rule 65(d) provides that “[e]very order granting an injunction . . . must . . .
describe in reasonable detail . . . the act or acts restrained or required.” Fed. R.
Civ. P. 65(d). An injunction must be written so that those enjoined will know
exactly what conduct the court has required or prohibited. Fla. Ass’n of Rehab.
Facilities, Inc. v. State of Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208,
1223 (11th Cir. 2000). As such, “[i]t is well-established in this circuit that an
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injunction demanding that a party do nothing more specific than obey the law is
impermissible.” Elend v. Basham, 471 F.3d 1199, 1209 (11th Cir. 2006)
(quotation omitted). However, we have acknowledged that “a broad, but properly
drafted injunction, which largely uses the statutory or regulatory language may
satisfy the specificity requirement of Rule 65(d) so long as it clearly lets the
defendant know what he is ordered to do or not do.” SEC v. Goble, 682 F.3d 934,
952 (11th Cir. 2012). Furthermore, we have recognized that §§ 15(c)(3) and 17(a)
and Rules 15c3-3 and 17a-3 thereunder are not vague because the rules set forth
specific compliance criteria. Id. at 951.
The district court did not abuse its discretion by granting the SEC’s motion
for a new permanent injunction that is based on Goble’s violation of Rule 15c3-3,
the Customer Protection Rule (requiring a Reserve Account for the protection of
the broker’s customers), and his violation of Rule 17a-3 (requiring certain specific
record-keeping). See SunAmerica Corp., 77 F.3d at 1333. The SEC made an
ample demonstration of previous violations of §§ 15(c)(3) and 17(a) of the
Exchange Act. See Calvo, 378 F.3d at 1216. As to whether there is a reasonable
likelihood that the wrong will be repeated, the district court considered the
egregiousness of Goble’s actions, the isolated or recurrent nature of the infraction,
the degree of scienter involved, and Goble’s recognition of the wrongful nature of
his conduct. Our prior determination that Goble’s conduct did not violate § 10(b)
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of the Exchange Act did not affect the district court’s analysis of these factors
relied on by the district court in that the grant of injunctive relief. See Goble, 682
F.3d at 943-46; see also SunAmerica Corp., 77 F.3d at 1333. Indeed, we expressly
acknowledged the violations of the Customer Protection Rule, Rule 15c3-3, and
the books and records provision, Rule 17a-3. Goble, 682 F.3d at 946-47.
Moreover, unlike the obey-the-law injunction which we set aside in Goble, 682
F.3d at 952, the new injunction complied with Rule 65(d) because it specifically
described the acts required and restrained. See Fed. R. Civ. P. 65(d).
II.
We generally only review the denial of a Rule 60(b) motion for an abuse of
discretion. Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co., 198 F.3d 1332, 1338
(11th Cir. 1999). To demonstrate an abuse of discretion, the appellant “must
demonstrate a justification so compelling that the court was required to vacate its
order.” Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993)
(quotation omitted). We generally construe pro se briefs liberally. See Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
Rule 60(b)(2) allows a court to grant relief from a final judgment due to
newly discovered evidence which, by due diligence, could not have been
discovered in time to move for a new trial under Rule 59(b). Fed. R. Civ. P.
60(b)(2). The moving party must meet the following five-part test: (1) the
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evidence must be newly discovered since the trial; (2) the movant used due
diligence to discover the new evidence; (3) the evidence is not merely cumulative
or impeaching; (4) the evidence is material; and (5) the evidence is such that a new
trial would probably produce a new result. Toole v. Baxter Healthcare Corp., 235
F.3d 1307, 1316 (11th Cir. 2000).
The time requirement for the filing of a Rule 60(b) motion allows for a
filing within a “reasonable time,” or for reasons in Rule 60(b)(1), (2), and (3),
within a year of judgment. Fed. R. Civ. P. 60(c)(1). Importantly, “the fact that the
rule itself imposes different time limits on motions under Rule 60(b)(6) and
60(b)(1)-(3), has led to the conclusion that the grounds specified under the first
five subsections will not justify relief under subsection (6).” Seven Elves, Inc. v.
Eskenazi, 635 F.2d 396, 402 n.3 (5th Cir. Unit A Jan. 1981). 2 In other words,
relief under Rule 60(b)(6) applies only to “cases that do not fall into any of the
other categories listed in parts (1)-(5),” United States v. Real Prop. & Residence
Located at Route 1, Box 111, Firetower Rd., Semmes, Mobile Cnty., Ala., 920 F.2d
788, 791 (11th Cir. 1991).
The district court did not abuse its discretion by denying Goble’s second
Rule 60(b) motion for relief from the new permanent injunction. See Am. Bankers
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), this Court
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
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Ins. Co. of Fla., 198 F.3d at 1338. The court properly determined that Goble’s
motion was untimely filed. In the motion, Goble referred to the bankruptcy court’s
ruling and the evidence that supported the ruling as new evidence, cited Rule
60(b)(2), and discussed at length the factors for relief based on newly discovered
evidence under Rule 60(b)(2). Although pro se filings should be liberally
construed, the district court could not construe Goble’s motion as a motion for
Rule 60(b)(6) relief because Rule 60(b)(2) provided coverage for his claim. See
Timson, 518 F.3d at 874; see also Real Prop., 920 F.2d at 791. Because Goble’s
motion was filed for the reasons set out in Rule 60(b)(2), he was required to file it
within one year of the injunction. See Fed. R. Civ. P. 60(c)(1). However, the
district court issued the injunction in April 2013, and Goble did not file the instant
motion until January 2015. 3
Similarly, the district court did not abuse its discretion by denying Goble’s
Rule 60(b) motions for relief from the receivership order and SIPA protective
decree because the motions were untimely filed. See Am. Bankers Ins. Co. of Fla.,
198 F.3d at 1338. In the motions, Goble referred to new evidence, cited Rule
60(b)(2), and discussed at length the factors for relief based on newly discovered
evidence under Rule 60(b)(2). The district court could not construe Goble’s
3
Moreover, the evidence concerning the financial status of Goble’s own company, upon
which he bases his Rule 60(b) motion, could not be new evidence, previously unavailable to
Goble.
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motions as Rule 60(b)(6) motions because Rule 60(b)(2) provided coverage for his
claims. See Real Prop., 920 F.2d at 791. Because Goble’s motions were filed for
the reasons set out in Rule 60(b)(2), he was required to file it within one year of the
issuance of the challenged orders. See Fed. R. Civ. P. 60(c)(1). However, the
district court appointed a receiver in May 2008, and it entered the protective decree
in July 2008, but Goble did not file the instant motions until September and
October 2014.
III.
Although we have never determined the standard of review for a challenge
to the denial of a Barton motion, other Circuits that have considered the issue
review a lower court’s ruling on a Barton motion for an abuse of discretion. See In
re McKenzie, 716 F.3d 404, 422 (6th Cir. 2013); In re VistaCare Grp., LLC, 678
F.3d 218, 224 (3d Cir. 2012); In re Linton, 136 F.3d 544, 546 (7th Cir. 1998); In re
Kashani, 190 B.R. 875, 886 (9th Cir. BAP 1995); In re Beck Indus., Inc., 725 F.2d
880, 889 (2d Cir. 1984).
“It is a general rule that before suit is brought against a receiver[,] leave of
the court by which he was appointed must be obtained.” Barton, 104 U.S. at 128.
We have explained that “[w]ithout the requirement . . . , trusteeship will become a
more irksome duty, and so it will be harder for courts to find competent people to
appoint as trustees. Trustees will have to pay higher malpractice premiums, and
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this will make the administration of the bankruptcy laws more expensive.” Carter
v. Rodgers, 220 F.3d 1249, 1252-53 (11th Cir. 2000) (quoting In re Linton, 136
F.3d at 545). We have included attorneys and investigators hired by a trustee as
among those actors who cannot be sued without the plaintiff first obtaining leave
of the bankruptcy court. Lawrence v. Goldberg, 573 F.3d 1265, 1269-70 (11th Cir.
2009).
In Barton, the Supreme Court recognized that the doctrine does not apply to
acts a trustee performs in excess of his authority. Barton, 104 U.S. at 134. We
have held that “court-appointed receivers . . . enjoy judicial immunity for acts
within the scope of their authority . . . [which] extends to carrying out faithfully
and carefully the orders of the appointing judge,” and that, by analogy,
court-appointed bankruptcy trustees are entitled to absolute
quasi-judicial immunity where they act “under the supervision and subject to the
orders of the bankruptcy judge.” Prop. Mgmt. & Invs., Inc. v. Lewis, 752 F.2d 599,
602 (11th Cir. 1985) (holding that a receiver was immune from a suit alleging
defamation, conversion, and embezzlement arising out of the course of
administering the receivership); Boullion v. McClanahan, 639 F.2d 213, 214 (5th
Cir. Unit A Mar. 1981). To afford protection, such orders must be facially valid.
Roland v. Phillips, 19 F.3d 552, 555 (11th Cir. 1994). “‘Facially valid’ does not
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mean ‘lawful.’ An erroneous order can be valid” for purposes of immunity. Id. at
556 (citation omitted).
There is also a statutory exception to the Barton doctrine for suits based on
acts committed in “carrying on the business connected with” the bankruptcy estate.
28 U.S.C. § 959(a). We have noted that this exception is limited and the common
situation in which it applies is a negligence claim in a slip-and-fall case. Carter,
220 F.3d at 1254. The exception does not apply where the acts complained of
were either aspects of or necessarily incident to the administration or liquidation of
the bankrupt estate. Id.
We review the district court’s denial of a motion to alter or amend a
judgment pursuant to Rule 59 for abuse of discretion. Arthur v. King, 500 F.3d
1335, 1343 (11th Cir. 2007). The only grounds for granting a Rule 59(e) motion
are newly-discovered evidence or manifest errors of law or fact. Id. A Rule 59(e)
motion cannot be used to relitigate old matters, raise new arguments, or present
evidence that could have been raised prior to the entry of judgment. Jacobs v.
Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010).
The district court did not abuse its discretion by denying Goble’s renewed
Barton motion. The findings of the bankruptcy court did not demonstrate that the
receivership order or the protective decree was improperly issued. Accordingly,
the receiver acted within the scope of his authority by consenting to NACI’s
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liquidation, and the bankruptcy trustee acted within the scope of his authority by
carrying out the liquidation process. See Prop. Mgmt. & Invs., Inc., 752 F.2d at
602; see also Boullion, 639 F.2d at 214. The statutory exception in § 959(a) does
not apply because Goble sought to raise claims based on the receiver’s reports and
consent to the protective decree, and the trustee’s continued participation in the
liquidation process, and these actions were incident to the administration and
liquidation of NACI. See Carter, 220 F.3d at 1254. The district court also did not
abuse its discretion by denying Goble’s Rule 59(e) motion because the motion
reiterated arguments that were previously rejected by the court and discussed
evidence that was available prior to the district court’s ruling on the renewed
Barton motion. See Jacobs, 626 F.3d at 1344.
For the foregoing reasons, 4 the judgment of the district court is
AFFIRMED.
4
Other arguments raised on appeal by Goble are rejected as being without merit. For
example, although Goble claims that the testimony of Ward and Blatman in later Bankruptcy
proceedings was inconsistent with their testimony in the bench trial – i.e., although Goble claims
that the Ward / Blatman testimony upon which the district court relied in issuing the new
injunction was unreliable – we disagree. We agree with the district court in Document 318 that
there is no substantial inconsistency.
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