U.S. Commodity Futures Trading Commission v. Marcus et al

Filing 50

MEMORANDUM Order: Defendants John D Briner and MetroWest Law Corporation's motion to vacate order of default 46 is denied. Signed by the Honorable Milton I. Shadur on 7/27/2015:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

U.S. COMMODITY FUTURES
TRADING COMMISSION,
Plaintiff,
v.
MATTHEW J. MARCUS, et al.,
Defendants.

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Case No. 15 C 3307

MEMORANDUM ORDER
Defendants John Briner ("Briner") and MetroWest Law Corp. ("MetroWest") have
continued their course of conduct in this action brought against them and two codefendants by
the U.S. Commodity Futures Trading Commission ("CFTC") -- conduct that this Court referred
to in its brief July 9, 2015 memorandum order ("Order") as "really appalling" -- by tendering a
current filing that makes that characterization a major understatement. 1 Briner and MetroWest,
now represented by Adam Tracy of Securities Compliance Group, Ltd., have now come up with
a Motion To Vacate Default Order ("Motion," Dkt. No. 46) that is totally without merit, and this
further memorandum order points to the patent insufficiencies of that current filing.
As the Motion stated (in perhaps its only accurate statement), the Order followed its grant
of default against both Briner and MetroWest with this mandate:

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Although the Order and the earlier June 10, 2015 memorandum opinion and order
("Opinion") are available for reference on the court docket, both are brief enough so that it makes
good sense to attach copies of them to this memorandum order to make it self-contained.

In addition, pursuant to Rule 11(c)(3) Briner is ordered to show cause by an
appropriate filing on or before July 23, 2015 as to why his conduct referred to in
the Opinion and in this memorandum order has not violated Rule 11(b).
Instead of complying with that unambiguous order, all that Briner and MetroWest have done is
to engage attorney Tracy as their attorney on July 22 (just one day before the due date of their
show-cause response), and Tracy has in turn done nothing other than to file the Motion without
saying a word that would support any such relief. Indeed, attorney Tracy compounds that
deficiency by setting a proposed presentment date more than a month out -- on August 31 -- thus
flouting the express requirement of this District Court's LR 5.3(b) and its related LR 78.1.
In sum, the combination of substantive and procedural deficiencies in the Motion call for
its outright denial, and this Court so orders. Moreover, the continued court-contemptuous
conduct on the part of Briner and MetroWest, which has unfortunately been assisted rather than
tempered by attorney Tracy's entry onto the scene, has converted from a possibility to an
actuality what was described in the Order as "imposing as sanctions both an award to CFTC for
its 'reasonable expenses, including attorney's fees, incurred for the motion' (Rule 11(c)(2)) and a
fine payable into court (Rule 11(c)(4))." This Court will welcome input from CFTC's counsel in
that respect so that those sanctions can be quantified.

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Milton I. Shadur
Senior United States District Judge
Date: July 27, 2015

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