Commodity Futures Trading Commission v. Scharf et al

Filing 185

ORDER granting in part and denying in part 109 Motion to Modify Consent Preliminary Injunction; denying 130 Motion in Limine to Exclude the Expert Testimony and Opinion of Peter Kent; granting in part and denying in part 131 Motion to Compe l Completion of CFTC Rule 30(b)(6) Deposition, and Production of Documents from Plaintiff; granting in part 134 Motion for Default Judgment; denying 135 Motion for summary judgment; denying 136 Motion for summary judgment; granting in part and denying in part 146 Motion to Strike; granting in part and denying in part 163 Motion to Strike; denying 170 Motion for Sanctions; setting multiple deadlines. See Order for details. Signed by Judge Timothy J. Corrigan on 11/14/2018. (JJB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
COMMODITY FUTURES
TRADING COMMISSION,
Plaintiff,
v.

Case No. 3:17-cv-774-J-32MCR

JASON B. SCHARF, CIT
INVESTMENTS LLC,
BREVSPAND EOOD, CIT
INVESTMENTS LTD., A&J MEDIA
PARTNERS, INC., MICHAEL
SHAH, and ZILMIL, INC.,
Defendants.

ORDER
On November 13, 2018, the Court held a hearing on the many pending
motions in this case, (Docs. 109, 130, 131, 134, 135, 136, 146, 163, 170), the
record of which is incorporated herein. For the reasons stated on the record, the
following are the Court’s rulings and deadlines.
Accordingly, it is hereby
ORDERED:
1.

Zilmil Defendants’ Motion to Modify Consent Preliminary

Injunction (Doc. 109) is DENIED in part and GRANTED in part. The

Consent Order for Preliminary Injunction (Doc. 32) will remain in place.
However, the Receiver is to minimize expenses as much as reasonably possible
until further order of the Court. If Dr. Shah has a good faith basis to do so, he
may file a separate motion seeking to unfreeze assets to pay for attorneys’ fees
and living expenses.
2.

CFTC’s Motion in limine to Exclude the Expert Testimony and

Opinion of Peter Kent (Doc. 130) is DENIED.
3.

Zilmil Defendants’ Motion to Compel: (i) Completion of CFTC Rule

30(b)(6) Deposition, and (ii) Production of Documents from Plaintiff (Doc. 131)
is GRANTED in part and DENIED in part. Defendants are permitted to
depose the CFTC’s 30(b)(6) witness, Heather Dasso, for three additional hours.
Defendants’ request for documents is MOOT.
4.

Motion for Entry of Default Judgment against Defendants CIT

Investments LLC, Brevspand EOOD, and CIT Investments Ltd. (Doc. 134) is
GRANTED in part. The Court finds theses defendants liable, but will carry
the damages determination with the case and withhold entry of final judgment
at this time.
5.

Zilmil Defendants’ Motion for Summary Judgment (Doc. 135) is

DENIED.
6.

CFTC’s Motion for Summary Judgment (Doc. 136) is DENIED.

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7.

Zilmil Defendants’ Motions to Strike Declarations, or in the

Alternative for leave to Depose Declarants, and for Sanctions (Docs. 146 & 163)
are GRANTED in part and DENIED in part. The witnesses and their
declarations are not stricken. However, Defendants, if they so choose, are
permitted to depose Silver, Tate, Giacca, and Keller. Unless the parties
otherwise agree, each deposition shall not exceed two-and-a-half hours for
direct examination and two-and-a-half hours for cross examination. Not later
than November 21, 2018, Zilmil Defendants shall notify the CFTC in writing
which witnesses they intend to depose.
8.

Zilmil Defendants’ Motion for Sanctions Pursuant to Rule 11 (Doc.

170) is DENIED.
9.

Not later than November 28, 2018, the CFTC and Zilmil

Defendants shall file and exchange witness lists.
10.

Not later than December 5, 2018, Zilmil Defendants shall inform

the Court if they consent to a magistrate judge conducting voir dire.
11.

Not later than December 5, 2018, the CFTC shall file its proposed

jury instructions.
12.

Not later than December 5, 2018, the CFTC and Zilmil

Defendants shall file and exchange exhibit lists.

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13.

Not later than December 5, 2018, the CFTC and Zilmil

Defendants shall file all motions in limine. Responses to motions in limine are
due by December 12, 2018.
14.

Not later than December 12, 2018, the Zilmil Defendants shall file

their proposed jury instructions.
15.

Not later than December 14, 2018, the CFTC and Zilmil

Defendants shall file their joint pretrial statement in accordance with the
September 27, 2017 Case Management Scheduling Order (Doc. 57).
16.

Not later than December 14, 2018, the CFTC and Zilmil

Defendants shall exchange any demonstrative or summary exhibits they intend
to use at trial.
17.

Not later than December 17, 2018, the Zilmil Defendants shall file

a memorandum, not to exceed five pages, explaining the intricacies of a
defendant asserting his Fifth Amendment rights in a civil jury trial.
18.

Not later than December 17, 2018, the CFTC and the Citrades

Defendants shall jointly notify the Court if they have reached an agreement as
to damages, and if not, what dates they request for an evidentiary hearing on
damages.
19.

The Final Pretrial Conference will be held on December 19, 2018

at 10:00 a.m. in Courtroom 10D, United States Courthouse, 300 North Hogan

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Street, Jacksonville, Florida 32202. The Citrades Defendants and the Receiver’s
presence are not required.
20.

In all other respects, the parties shall continue to be governed by

the terms of the Court’s September 27, 2017 Case Management Scheduling
Order (Doc. 57), as amended (Doc. 92).
DONE AND ORDERED in Jacksonville, Florida this 14th day of
November, 2018.

TIMOTHY J. CORRIGAN
United States District Judge

jb
Copies to:
Counsel of record

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