Federal Trade Commission v. IAB Marketing Associates, LP

Filing 318

ORDER granting 146 Receiver's Motion to Dismiss Gary D. Wood's counterclaim. Signed by Judge Robert N. Scola, Jr. on 9/18/2013. (rm00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 12-61830-Civ-SCOLA
Federal Trade Commission,
Plaintiff,
vs.
IAB Marketing Associates, LP, et al.,
Defendants,
Avis S. Wood and Tressa K. Wood,
Relief Defendants.
__________________________________________/
ORDER GRANTING RECEIVER’S MOTION TO DISMISS COUNTERCLAIM
The Texas Receiver, Charlene Koonce, moves to dismiss the counterclaim filed against
her by Defendant Gary D. Wood. Wood’s counterclaim asks the Court to order the Receiver to
return money that she took out of his account. (DE 129 at 11.) A receiver derives her authority
solely from the court that appointed her and thus shares the judge’s immunity from claims
arising from the faithful execution of her duties. Davis v. Bayless, 70 F.3d 367, 373 (5th Cir.
1995); New Alaska Development Corp. v. Guetschow, 869 F.2d 1298, 1303-04 (9th Cir. 1989);
Kermit Construction Corp. v. Banco Credito Y Ahorro Ponceno, 547 F.2d 1, 2-3 (1st Cir. 1976).
Because the Receiver’s act of taking possession and control of this money was done in
accordance with her duties under the Preliminary Injunction,1 she shares the judge’s immunity.
To state a valid claim against a receiver, a claimant must allege that the receiver lacks immunity.
New Alaska, 869 F.2d at 1303-04. When a complaint lacks facts demonstrating that the receiver
was not “faithfully and carefully carrying out the orders of the appointing judge,” courts dismiss
the counterclaim. Kermit, 547 F.2d at 3. Because Wood’s counterclaim fails to allege that the
Receiver lacks immunity and fails to allege facts showing that the Receiver was not faithfully

1

Section XV(c) of the Preliminary Injunction authorizes the Receiver to “[t]ake exclusive
custody, control, and possession of the Assets and income of the Individual IAB NonStiplulating Defendants,” a group that includes Gary Wood. (DE 72 at 23-24.)

and carefully carrying out her duties under the Preliminary Injunction, the Court GRANTS the
Receiver’s Motion (DE 146) and DISMISSES the Counterclaim.
DONE and ORDERED in chambers, at Miami, Florida, on September 18, 2013.

__________________________________________
ROBERT N. SCOLA, JR.
UNITED STATES DISTRICT JUDGE