Securities and Exchange Commission v. Coddington et al

Filing 304

ORDER Plaintiff's Motion to Amend and for Relief from Judgment Against Lewis P. Malouf (Doc. # 300 ) is DENIED, by Judge Christine M. Arguello on 9/22/2021.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-03363-CMA-KMT
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
v.
JESSE W. ERWIN, JR., and
LEWIS P. MALOUF,
Defedant,
DANIEL SCOTT CODDINGTON,
Relief Defendant.
ORDER DENYING PLAINTIFF’S MOTION TO AMEND AND FOR RELIEF FROM
JUDGMENT AGAINST LEWIS P. MALOUF
This matter is before the Court on Plaintiff’s Motion to Amend and for Relief from
Judgment Against Lewis P. Malouf. (Doc. # 300.) Therein, Plaintiff Securities and
Exchange Commission (“SEC”) seeks to alter, or in the alternative seeks relief from, the
August 25, 2021 Final Judgment entered against Defendant Lewis P. Malouf (Doc. #
298) on the basis that counsel for the SEC failed to include a request for entry of an
injunction against Mr. Malouf in its Motion for Summary Judgment (Doc. # 249). For the
following reasons, the Motion is denied.

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The SEC moves to amend the Court’s August 25, 2021 Final Judgment under
Fed. R. Civ. P. 59(e) and Fed. R. Civ. P. 60(b)(1) and (6). Rule 59(e) is the appropriate
vehicle for seeking “reconsideration of matters properly encompassed in a decision on
the merits[,]” so a Rule 59(e) motion is normally granted “only to correct manifest errors
of law or to present newly discovered evidence.” Jennings v. Rivers, 394 F.3d 850, 854
(10th Cir. 2005) (citations omitted). Rule 60(b) provides, in relevant part, that a court
may relieve a party from a final judgment for “(1) mistake, inadvertence, surprise, or
excusable neglect; . . . or (6) any other reason justifying relief . . . .” Fed. R. Civ. P.
60(b). Relief under Rule 60 is an extraordinary remedy that is appropriate when
“circumstances are so ‘unusual or compelling’ that extraordinary relief is warranted, or
when it ‘offends justice’ to deny such relief.” Cashner v. Freedom Stores, Inc., 98 F.3d
572, 580 (10th Cir. 1996) (quoting Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1147
(10th Cir. 1990)).
In this case, the issue of an injunction against Mr. Malouf was not before the
Court at summary judgment due to the SEC’s inadvertence, so Rule 59(e) is
inapplicable. See Jennings, 394 F.3d at 854. With respect to Rule 60(b), the SEC failed
to raise the issue of an injunction against Mr. Malouf in the ten months its Motion for
Summary Judgment was pending. 1 Additionally, Mr. Malouf’s counsel moved to
withdraw after briefing on the Motion for Summary Judgment was completed, and Mr.
Malouf now proceeds pro se. Under these circumstances, the SEC has failed to

The SEC’s Motion for Summary Judgment against Mr. Malouf was filed on September 17,
2020, and its Reply was filed on October 29, 2020. (Doc. ## 249, 269.)

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demonstrate that it is entitled to the extraordinary remedy of Rule 60 relief or that the
denial of such relief offends justice.
Accordingly, Plaintiff’s Motion to Amend and for Relief from Judgment Against
Lewis P. Malouf (Doc. # 300) is DENIED.
DATED: September 22, 2021
BY THE COURT:
_____________________________
CHRISTINE M. ARGUELLO
United States District Judge

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