Securities and Exchange Commission v. Founding Partners Capital Management, Co. et al
Filing
402
OPINION AND ORDER denying 351 William L. Gunlicks' Motion to Vacate the Consent Decree and Judgment Pursuant to Rule 60(b). See Opinion and Order for details. Signed by Judge John E. Steele on 10/24/2013. (AAA)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
vs.
Case No. 2:09-cv-229-FtM-29DNF
FOUNDING PARTNERS CAPITAL MANAGEMENT
CO., WILLIAM L. GUNLICKS and PAMELA
L. GUNLICKS,
Defendants,
___________________________________
OPINION AND ORDER
This matter comes before the Court on William L. Gunlicks’
Motion to Vacate the Consent Decree and Judgment Pursuant to Rule
60(b) (Doc. #351) filed on October 12, 2012.
Response (Doc. #356) on October 25, 2012.
Plaintiff filed a
For the reasons set
forth below, the motion is denied.
I.
This matter is brought by plaintiff asserting violations of
the antifraud provisions of the federal securities laws.
3, 2010, the Court entered
On March
an Order (Doc. #200) granting the SEC’s
Request for Entry of Judgment of Permanent Injunction and Other
Relief, with the Consent of Defendant William L. Gunlicks, and
directing the Clerk to enter judgment wherein Mr. Gunlicks “waived
findings of fact and conclusions of law; and waived any right to
appeal from this Judgment.”
(Doc. #200, pp. 2-3.)
On March 4,
2010, the Clerk entered a Judgment in a Civil Case (Doc. #201)
which included language that “The Court shall determine the amounts
of the disgorgement and civil penalty upon motion of the Commission
. . .
In connection with the Commission’s motion for disgorgement
and/or a civil penalty, the parties may take discovery, including
discovery from appropriate non-parties.”
(Doc. #201, pp. 5-6.)
On May 4, 2011, the SEC filed a Motion to Set Disgorgement and
Prejudgment Interest, and Impose a Civil Penalty Against Defendant
William L. Gunlicks (Doc. #288).
On June 13, 2011, finding no
response to the SEC’s motion, the Court issued an Opinion and Order
(Doc. #292) granting the SEC’s motion and directing the payment of
disgorgement, pre-judgment interest, and civil monetary penalties
by William L. Gunlicks.
A Supplemental Judgment (Doc. #293) was
issued on June 15, 2011, and William L. Gunlicks was terminated as
a party.
On July 15, 2011, the Gunlicks defendants filed a Notice
of Appeal.
(Doc. #300.)
On December 1, 2011, the Court issued an Opinion and Order
indicating that defendant William Gunlicks’ Rule 60(b) Motion,
Motion to Vacate the Court’s Opinion and Order and Vacate the
Supplemental
Judgment
and
Strike
Underlying
Motion
to
Set
Disgorgement and Pre-Judgment Interest and Impose a Civil Penalty
Against Defendant (Doc. #309) would be denied if the matter was
remanded.
(Doc. #321.)
On May 22, 2011, after the Eleventh
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Circuit Court of Appeals dismissed the appeal, the Court denied the
Rule 60(b) Motion.
(Doc. #339.)
On October 25, 2012, defendant Williams Gunlicks filed the
subject motion seeking to vacate the Consent Decree (Doc. #197-1)
and the March 3, 2010 Order (Doc. #200) pursuant to Fed. R. Civ. P.
60(b) and 65(d).
(Doc. #351.)
II.
Federal Rule of Civil Procedure 60(b) permits a party to seek
relief from a final judgment under the following circumstances:
(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence . . .; (3) fraud
. . ., misrepresentation, or misconduct by an opposing
party; (4) the judgment is void; (5) the judgment has
been satisfied, released or discharged . . .; or (6) any
other reason that justifies relief.
Fed. R. Civ. P. 60(b).
movant
must
show
To receive relief under Rule 60(b)(6), the
“that
the
circumstances
are
sufficiently
extraordinary to warrant relief . . . that is, movants must show
that absent such relief, an extreme and unexpected hardship will
result."
Galbert v. W. Caribbean Airways, 715 F.3d 1290, 1294
(11th Cir. 2013)(internal citation and quotation marks omitted).
“Even then, whether to grant the requested relief is a matter for
the district court's sound discretion."
1337,
1342
(11th
Cir.
2006)(quotation
Cano v. Baker, 435 F.3d
and
alteration
marks
omitted).
Defendant William Gunlicks argues that the Consent Decree and
March 3, 2010 Order should be vacated because: (1) Gunlicks was not
-3-
allowed to engage in discovery regarding plaintiff’s Motion to Set
Disgorgement and Prejudgment Interest, and Impose a Civil Penalty
Against Defendant William L. Gunlicks (Doc. #288); (2) the Receiver
has prevented Gunlicks from accessing files, documents, and records
for the purpose of facilitating an evidentiary hearing on the issue
of disgorgement, preserving his own claims, and in assisting the
Receivership; (3) the Receiver has challenged Gunlicks’ individual
claims; (4) Gunlicks was never permitted an evidentiary hearing on
the issue of disgorgement; (5) the Court granted plaintiff’s motion
for disgorgement without any discovery or evidentiary hearing; (6)
the Consent Decree is void for want of consideration; and (7) the
Receiver’s
actions
have
injured
the
investors, and the Relief Defendants.
receivership
estate,
the
(Doc. #351.)
The Court finds that defendant Gunlicks has failed to show
that the circumstances are sufficiently extraordinary to warrant
relief. The Court has previously addressed Gunlicks’ argument that
he was denied his right to discovery or an evidentiary hearing on
the issue of disgorgement.
(Docs. ## 321, 329.)
To the extent
defendant Gunlicks is now arguing that the Consent Decree and March
3, 2010 Order should be vacated as a result, the Court finds the
argument unconvincing.
Gunlicks’ arguments that the Receiver’s
-4-
actions require the Court to vacate the Consent Decree and March 3,
2010 Order are also insufficient.1
Accordingly, it is now
ORDERED:
William L. Gunlicks’ Motion to Vacate the Consent Decree and
Judgment Pursuant to Rule 60(b) (Doc. #351) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 24th day of
October, 2013.
Copies: Counsel of record
1
To the extent defendant Gunlicks seeks leave to file an
oversized memorandum in support of the motion, the request is
denied.
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