SEC v. First Choice Mgt Svc, et al
Filing
1153
OPINION AND ORDER GRANTING 1137 Amended MOTION for Sanctions Against Judgment-Debtors Pursuant to Federal Rules of Civil Procedure, Rule 11(b) and (c) and Rule 37. The Court ORDERS the Receiver to submit an itemizedand verified statement of attorney fees by October 16, 2019. Signed by Judge Robert L Miller, Jr on 9/18/19. (Copy mailed to all pro se parties)(ksp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
v.
FIRST CHOICE MANAGEMENT
SERVICES, INC., and GARY
VAN WAEYENBERGHE,
Defendants,
JOSEPH D. BRADLEY, Receiver,
Judgement-Creditor,
NONA K. ROACH and AGAPE &
ASSOCIATES, INC.,
Judgment-Debtors.
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Cause No. 3:00-CV-446-RLM-MGG
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OPINION AND ORDER
The court and parties are familiar with the background of this case, see
[Doc. No. 1140], so the court will include only that which is pertinent to today’s
ruling. In March 2019, the Receiver filed a motion for proceedings supplemental
against Nona K. Roach and Agape & Associates, Inc. in an attempt to recover an
outstanding judgment. The court found that Ms. Roach still owed a balance of
$41.305.24 and ordered Ms. Roach to produce and serve upon Receiver’s counsel
documentation relating to the financial condition of and property owned by Ms.
Roach and Agape & Associates. Ms. Roach was to produce the documentation
by April 25, 2019, but didn’t do so.
The Receiver’s motion for sanctions under Rules 11(b-c) and 37 is before
the court. In her response, Ms. Roach provides several reasons for her
noncompliance with the March 2019 order, again maintaining that she wasn’t
compensated for work product, and that her submission of records relating to
the underlying case was timely. The other justifications that Ms. Roach provides
include severe flooding on May 21, 2019 in the town in which she resides,
employees who had their own flood related obligations, supporting and caring
for family members, medical appointments, and the inability to find an attorney
to assist her. Ms. Roach also asserts that as a pro se litigant, she does not
understand the intricacies of the federal court system and so shouldn’t be held
to the standards provided in the Rules.
Discussion
Rule 37(b)(2) provides that if a party “fails to obey an order to provide or
permit discovery, including an order under Rule 26(f), 35, or 37(a), the court
where the action is pending may issue further just orders.” The court must order
the disobedient party “to pay the reasonable expenses, including attorney’s fees,
caused by the failure, unless the failure was substantially justified or other
circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(c).
Ms. Roach seeks to justify her noncompliance with the March 2019 order
by relitigating old issues, blaming flooding in the town in which she resides and
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works, citing personal and familial obligations, and pointing out her pro se status
and inability to obtain a lawyer. Ms. Roach’s disagreement with the court’s
judgment doesn’t relieve her of her obligation to comply with its orders. A flood
that prevented Ms. Roach from accessing her office could provide substantial
justification for her failure to produce the ordered records, but the flood occurred
on May 21 and Ms. Roach was ordered to produce and serve the records by April
25, almost a month before the flooding occurred, and her employees’ flood related
obligation couldn’t have arisen until the flood occurred. The flood doesn’t provide
justification for her failure to produce and serve the ordered records. Ms. Roach
also cites many personal issues, such as family obligations and medical issues,
as the justification for her noncompliance with the March 2019 order. The court
has sympathy for Ms. Roach’s circumstances, but they don’t justify her many
months of noncompliance. Finally, Ms. Roach reminds the court of her pro se
status. “But being a pro se litigant does not give a party unbridled license to
disregard clearly communicated court orders. It does not give the pro se litigant
the discretion to choose which of the court's rules and orders it will follow, and
which it will [willfully] disregard.” Downs v. Westphal, 78 F.3d 1252, 1257 (7th
Cir. 1996). The court made clear to Ms. Roach what was required of her, first in
the March 26 order itself, and then in the June 17 order. Ms. Roach’s status as
a pro se litigant doesn’t excuse her noncompliance. Ms. Roach hasn’t provided
the court with substantial justification for her noncompliance.
Nor has Ms. Roach shown that imposition of sanctions would be unjust.
Ms. Roach has been chastised before for engaging in improper filings and has
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been held in civil contempt for non-compliance with court orders, and she still
hasn’t complied with the order to produce the financial records. Given Ms.
Roach’s conduct in this case, the imposition of sanctions is not unjust.1
CONCLUSION
For the foregoing reasons, the court GRANTS the Receiver’s Motion for
Sanctions [Doc. No. 1137]. The court orders the Receiver to submit an itemized
and verified statement of attorney fees by October 16, 2019.
SO ORDERED.
ENTERED:
September 18, 2019.
/s/ Robert L. Miller, Jr.
Judge, United States District Court
In light of the court’s finding that sanctions are appropriate under Rule 37, the court need
not address the Receiver’s alternate request for sanctions under Rule 11.
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