US Sec Exchg Cmsn v. Premium Income Corp ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 20, 2008
No. 07-10885 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Plaintiff - Appellee
v.
GERALD LEO ROGERS, also known as Jay Rogers, also known as Jay
Rodgers
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-cv-00415
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Gerald Leo Rogers appeals the district court’s grant of summary judgment
in favor of the U.S. Securities and Exchange Commission (“SEC”) in its civil
enforcement action against Rogers for violations of the anti-fraud and
registration provisions of the federal securities laws. 15 U.S.C. §§ 77e & 77q.
The district court permanently enjoined Rogers from violating these securities
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-10885
laws in the future, ordered the disgorgement of $10,959,181 in fraudulent gains,
and imposed a civil penalty of $120,000 for his violations. On appeal, Rogers
argues that (1) the district court lacked subject matter jurisdiction over the
SEC’s claims against him, (2) the SEC lacks standing to pursue the claims, (3)
the SEC lacks statutory authority to pursue the claims, and (4) the district court
erred in denying certain discovery requests. Because no genuine issues of
material fact preclude the grant of summary judgment, we affirm.
We review the district court’s grant of summary judgment de novo,
applying the same standard as the district court. Greenwell v. State Farm Mut.
Auto Ins. Co., 486 F.3d 840, 841 (5th Cir. 2007). Because Rogers is pursuing this
appeal pro se, we apply less stringent standards in interpreting his arguments
than we would in the case of a counseled party. Grant v. Cuellar, 59 F.3d 523,
524 (5th Cir. 1995).
Rogers’s first argument is that Congress limited jurisdiction over
enforcement actions under the Securities Act of 1933 and the Securities
Exchange Act of 1934 to a single district court – the United States District Court
for the District of Columbia. Rogers’s jurisdictional argument is meritless and
has been rejected by this court before. See SEC v. Res. Dev. Int’l LLC, 160 F.
App’x 368, 370 (5th Cir. 2005) (unpublished). The Acts authorize the SEC to
bring civil enforcement actions in any “district court of the United States,” 15
U.S.C. §§ 77t(b), 78u(d)(1), which includes the United States District Court for
the Northern District of Texas, 28 U.S.C. § 124.
Rogers’s second argument is that the SEC lacks standing to pursue the
claims against him because the Commission has not suffered a “personal injury”
and has no “personal stake” in the outcome of the litigation. Congress may
confer standing on federal agencies to bring enforcement actions under its
statutes. See Dir., Office of Workers’ Compensation Programs v. Newport News
Shipbuilding & Dry Dock Co., 514 U.S. 122, 133 (1995). It has explicitly done
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No. 07-10885
so with the SEC under the relevant acts. §§ 77t(b), 78u(d)(1). Thus, this
argument is also meritless.
We reject Rogers’s third argument as well. The district court found that
the investment scheme utilized by Rogers qualified as a “security” under both
Acts and Rogers has pointed to no record evidence that would undermine that
finding. Instead, he argues that his investment contracts were exempt from the
Securities Act. See § 77c(a). But the exemptions set forth in Section 77c do not
apply to the anti-fraud provisions of that Act. § 77q(c). Further, Rogers has
failed to point to any evidence in the record that would create a genuine issue of
fact as to whether his investment contracts would qualify for the exemption. He
has failed to carry his burden on this issue. See SEC v. Ralston Purina Co., 346
U.S. 119, 126 (1953).
Finally, Rogers challenges the district court’s denial of several discovery
requests. We review the district court’s discovery rulings for an abuse of
discretion. Atkinson v. Denton Publ’g Co., 84 F.3d 144, 147 (5th Cir. 1996). The
district court denied as overbroad and irrelevant Rogers’s motion to compel the
SEC to produce every document pertaining to every investigation, prosecution,
or enforcement action against him by any federal agency since 1960. The district
court also denied as abusive Rogers’s attempt to subpoena the opposing counsel,
Court receiver, and seven unidentified individuals. Finally, the district court
denied Rogers’s motion to strike the SEC’s claims as a sanction for allegedly
failing to answer certain interrogatories because it found that the SEC’s failure
had not been willful or in bad faith. Our review of the record and Rogers’s
arguments reveals that the district court did not abuse its discretion by denying
these discovery requests.
The judgment is AFFIRMED.
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