U.S. Commodity Futures Trading Commission v. Arrington et al
MEMORANDUM AND ORDER - Motion to Alter or Amend and for Relief from a Final Judgment (Filing No. 171 ) filed by Defendant Michael B. Kratville, is denied. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
U.S. COMMODITY FUTURES TRADING
CASE NO. 8:11CV181
MICHAEL B. KRATVILLE, ELITE
MANAGEMENT HOLDINGS CORP., MJM
ENTERPRISES LLC, JONATHAN W.
ARRINGTON, and MICHAEL J. WELKE,
This matter is before the Court on the Motion to Alter or Amend and for Relief
from a Final Judgment (Filing No. 171) filed by Defendant Michael B. Kratville. For the
reasons discussed below, the Motion will be denied.
The Court incorporates the Background section from its prior Memorandum and
Order dated January 28, 2014 (Filing No. 168 at 1–16), and will not recite the facts
again here. The Court concluded in the Memorandum and Order that the undisputed
evidence in the record demonstrated that Kratville committed fraud under the
Commodity Exchange Act (the “CEA” or the “Act”), 7 U.S.C. §§ 1 et seq., and its
implementing regulations, 17 C.F.R. §§ 1.1 et seq., and the Court granted the Motion for
Summary Judgment (Filing No. 97) submitted by Plaintiff United States Commodity
Futures Trading Commission (“CFTC”).
Kratville now argues that the Court’s reasoning in its Memorandum and Order
was flawed. Specifically, he argues that the Court erred in (1) not concluding that issues
of fact and/or ultimate inferences precluded summary judgment, and (2) failing to
exclude certain evidence. Kratville also argues that his former attorney’s “excusable
neglect” warrants the Court’s consideration of additional evidence.
contends that his prior attorney’s advice, directing Kratville to invoke the protection of
the Fifth Amendment, was also “excusable neglect” warranting the re-opening of the
STANDARD OF REVIEW
“Rule 59(e) motions serve the limited function of correcting ‘manifest errors of law
or fact or to present newly discovered evidence.’” United States v. Metro. St. Louis
Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006) (quoting Innovative Home Health Care,
Inc. v. P.T.-O.T. Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998)). “Such
motions cannot be used to introduce new evidence, tender new legal theories, or raise
arguments which could have been offered or raised prior to entry of judgment.” Id.
(quoting Innovative Home Health Care, 141 F.3d at 1286) (internal marks omitted). The
“district court has broad discretion in determining whether to grant or deny a motion to
alter or amend judgment pursuant to Rule 59(e) . . . .” Id.
Federal Rule of Civil Procedure 60(b) motions serve to relieve parties from final
judgments, orders, or proceedings on several enumerated grounds, including “mistake,
inadvertence, surprise, or excusable neglect.”1
Post-judgment motions for leave to
amend may be granted if timely made. U.S. ex rel. Roop v. Hypoguard USA, Inc., 559
F.3d 818, 823 (8th Cir. 2009). “Rule 60(b) is ‘not a vehicle for simple reargument on the
Rule 60(b)(1). Rule 60(b)(6) also provides that relief may be granted for "any other reason that
justifies relief." As discussed below, this "catch-all" provision applies "where exceptional circumstances
have denied the moving party a full and fair opportunity to litigate his claim and have prevented the
moving party from receiving adequate redress." Harley v. Zoesch, 413 F.3d 866, 871 (8th Cir. 2005).
merits.’” Arnold v. Wood, 238 F.3d 992, 998 (8th Cir. 2001) (quoting Broadway v. Norris,
193 F.3d 987, 990 (8th Cir. 1999)).
Kratville has not identified manifest errors of law or fact that require the Court to
alter or amend its Memorandum and Order or the accompanying Judgment.
Error of Law
Kratville has identified only one alleged error of law, arguing that this Court
mistakenly applied a passive standard with respect to causation of fraud. Kratville points
to the Court’s citation—in a footnote—to a case from the Eastern District of Michigan,
SEC v. Conaway, 698 F. Supp. 2d 771, 865-66 (E.D. Mich. 2010). Kratville suggests
that this Court mistakenly relied on that case for the principle that, in some
circumstances, an individual may contribute to fraud by acquiescing to fraudulent
behavior. He notes that Conaway ultimately applied an active standard, i.e., the
defendant in Conaway actively caused a material fact to be omitted.
The court in Conaway specifically noted that its analysis did not “exhaust the
universe of factual patterns in which one can be found liable for causing another to
make or omit making certain statements.” 698 F. Supp. 2d at 869. Under the facts of
that case, the director of a corporation did not himself draft, edit, or review allegedly
fraudulent statements, yet was found to have caused fraud. Id. at 865. In that regard,
the factual circumstances in Conaway were similar to those presented by Kratville, who
argued that he did not draft or approve fraudulent documents, although the evidence
established that he affirmatively directed investors and potential investors to such
misleading information. (See, e.g., Memorandum and Order, Filing No. 168 at 22-26.)
Regardless, this Court’s analysis in the Memorandum and Order did not depend on the
citation to Conaway, or whether an active or passive standard applied to causation.
Error of Fact
Much of Kratville’s argument with respect to error-of-fact is devoted to re-arguing
the same or similar arguments made in his resistance to the CFTC’s Motion for
Summary Judgment. Kratville argues that issues of fact or “ultimate inference” preclude
summary judgment, and the Court erred in concluding otherwise. Specifically, Kratville
contends that issues of fact or ultimate inference remain as to:
The use of FXIG as the trader for the applicable investment groups, and
whether Kratville caused a lack of disclosure or merely acquiesced;
Kratville’s control of the investment groups;
The refund/rollover process in the summer of 2006, and the viability of
The preclusive effect of releases signed by other defendants and
The admissibility of emails attached to the affidavit of Jon Arrington, the
affidavit of Patrick Shannon, and the affidavit of Tony Leach.
The Court addressed each of these matters in its Memorandum and Order.
Kratville has not presented any argument that could not have been presented earlier,
nor do any of his arguments alter the Court’s ultimate conclusion. The Court will not
repeat its analysis with respect to each of the issues Kratville attempts to re-litigate.
Newly Discovered Evidence
Although Kratville does not assert that he is entitled to relief under Rule 59(e) on
the basis of newly discovered evidence, the Court will address whether it should
consider the documents attached to Kratville’s affidavit in support of his Motion (Filing
“To prevail on a Rule 59(e) motion, the movant must show that (1) the
evidence was discovered after [judgment]; (2) the movant exercised due
diligence to discover the evidence before [judgment was entered]; (3) the
evidence is material and not merely cumulative or impeaching; and (4) a new trial
considering the evidence would probably produce a different result.” Metro. St.
Louis Sewer Dist., 440 F.3d at 933; see also Innovative Home Health Care, 141
F.3d at 1286.
The emails from Jon Arrington’s hard-drive were previously addressed in
Magistrate Judge F.A. Gossett’s Order denying Kratville’s Motion to Supplement
Discovery (Filing No. 164). As stated in Judge Gossett’s Order, there was no credible
evidence that the CFTC wrongfully withheld documents from Kratville.
(Id. at 2.)
Further, Kratville did not depose Arrington, nor did he seek production of documents
from Arrington until a few weeks before the close of discovery. (Id.) For the reasons
stated in Judge Gossett’s Order, Kratville has failed to demonstrate that the Court
should consider additional evidence.
Kratville argues that the Court should consider or permit additional evidence for
purposes of summary judgment based on the excusable neglect of his former attorney.
Kratville argues, primarily under Rule 60(b)(1), that his former attorney’s alleged
negligence with respect to obtaining evidence and creating a record constituted
noncompliance and (2) that is excusable.” In re Guidant Corp. Implantable Defibrillators
Products Liab. Litig., 496 F.3d 863, 866 (8th Cir. 2007). “In assessing whether conduct
is excusable, several factors must be taken into account, including: (1) the danger of
prejudice to the non-moving party; (2) the length of the delay and its potential impact on
judicial proceedings; (3) whether the movant acted in good faith; and (4) the reason for
the delay, including whether it was within the reasonable control of the movant.” Id. at
866-67 (citing Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 395
(1993)). “These [factors] do not carry equal weight,” and “the reason for delay is a key
factor in the analysis.” Id. at 867 (citing Lowry v. McDonnell Douglas Corp., 211 F.3d
457, 463 (8th Cir. 2000).
If Kratville’s Motion were granted, these proceedings would be significantly
delayed. The CFTC would be required to depose Kratville again, to obtain responses to
the questions he refused to answer, and likely would be required to conduct extensive
discovery to re-litigate issues that have been resolved. With respect to the reason for
delay, Kratville simply asserts professional carelessness. His principal argument is that
but for his prior attorney’s neglect, Kratville would not have asserted Fifth Amendment
privileges, and the Court would have seen his testimony and the evidence he now
submits. (Def. Br., Filing No. 172 at 25.)
The Eighth Circuit has held that professional carelessness does not warrant relief
under Rule 60(b). In re Guidant Corp., 496 F.3d at 868; see also Inman v. Am. Home
Furniture Placement, Inc., 120 F.3d 117, 119 (8th Cir.1997) (“Litigants choose counsel
at their peril….Rule 60(b) has never been a vehicle for relief because of an attorney's
incompetence or carelessness.”) Several other courts have determined that an
attorney’s error or litigation strategy is not grounds to vacate a judgment under Rule
60(b)(1).2 The Court agrees that attorney negligence under these circumstances is not
grounds for relief under Rule 60(b)(1). See Inman, 120 F.3d at 119 (citing Link v.
Wabash R.R., 370 U.S. 626, 634 n. 10 (1962)). Kratville’s decision to assert Fifth
Amendment privileges, and his delay in seeking discovery, both appear to have been
part of litigation strategy, and not excusable neglect.
Kratville cites DiMercurio v. Malcom, 716 F.3d 1138, 1140 (8th Cir. 2013), to
support his proposition that a Rule 60(b) motion is appropriate to correct an attorney’s
action. In DiMercurio, however, the Eighth Circuit simply reversed the district court
See Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1101 (9th Cir. 2006) (“We agree
that Rule 60(b)(1) is not intended to remedy the effects of a litigation decision that a party later comes to
regret through subsequently-gained knowledge that corrects the erroneous legal advice of counsel.”);
Acevedo–Garcia v. Vera–Monroig, 368 F.3d 49, 54 (1st Cir. 2004) (holding that a mistake of law is not a
“mistake” for Rule 60(b)(1) purposes); McCurry ex rel. Turner v. Adventist Health System/Sunbelt, Inc.,
298 F.3d 586, 595 (6th Cir. 2002) (holding “that out-and-out lawyer blunders—the type of action or
inaction that leads to successful malpractice suits by the injured client—do not qualify as ‘mistake’ or
‘excusable neglect’ within the meaning of Rule 60(b)(1)”) (citation and quotation marks omitted); Yapp v.
Excel Corp., 186 F.3d 1222, 1231 (10th Cir.1999) (“[A] party who simply misunderstands or fails to predict
the legal consequences of his deliberate acts cannot later, once the lesson is learned, turn back the clock
to undo those mistakes.”); Webb v. James, 147 F.3d 617, 622 (7th Cir. 1998) (concluding that an
attorney’s mistake was not excusable under Rule 60(b)(1), and holding that the “district court was not
obliged to relieve [the defendant] of the burden of a ... mistake of law.”); Cashner v. Freedom Stores, Inc.,
98 F.3d 572, 577 (10th Cir. 1996) (“If the mistake alleged is a party's litigation mistake, we have declined
to grant relief under Rule 60(b)(1) when the mistake was the result of a deliberate and counseled decision
by the party.”); United States v. Bank of New York, 14 F.3d 756, 759 (2d Cir. 1994) (“When a party makes
a deliberate, strategic choice to settle, she cannot be relieved of such a choice merely because her
assessment of the consequences was incorrect.”).
when the district court provided no reason why it could not accommodate a request for
a continuance. Id. at 1140. The Eighth Circuit did not address whether an attorney’s
litigation strategy was grounds for voiding a judgment based on mistake or
inadvertence. Likewise, in Noah v. Bond Cold Storage, 408 F.3d 1043, 1045 (8th Cir.
2005), the Eighth Circuit said: “It is generally held that ‘excusable neglect’ under Rule
60(b) does not include ignorance or carelessness on the part of an attorney.” Id. at
1045 (citing Hunt v. City of Minneapolis, 203 F.3d 524, 528 n. 3 (8th Cir. 2000)). The
cases relied upon by Kratville do not support his position.
Finally, Kratville argues that he is entitled to relief from judgment under Rule
60(b)(6), which permits relief for “any other reason that justifies relief.” The Eighth
Circuit has explained that this rule justifies relief only in “extraordinary circumstances.”
In re Guidant Corp., 496 F.3d at 868. “Exceptional circumstances are not present every
time a party is subject to potentially unfavorable consequences as a result of an
adverse judgment properly arrived at. Rather, exceptional circumstances are relevant
only where they bar adequate redress.” Atkinson v. Prudential Prop. Co., Inc., 43 F.3d
367, 373 (8th Cir. 1994) (internal quotations omitted). “Relief under this rule is
exceedingly rare as relief requires an ‘intrusion into the sanctity of a final judgment.’” Id.
(quoting Watkins v. Lundell, 169 F.3d 540, 544 (8th Cir.1999)). Kratville does not
identify any extraordinary circumstances meriting relief under Rule 60(b)(6), nor has the
Court identified any.
For the reasons stated above, Kratville has not demonstrated that the Court’s
previous Memorandum and Order (Filing No. 168) contained manifest error, nor has he
demonstrated that mistake, excusable neglect, or exceptional circumstances justify
relief from judgment. Accordingly,
IT IS ORDERED, the Motion to Alter or Amend and for Relief from a Final
Judgment (Filing No. 171) filed by Defendant Michael B. Kratville, is denied.
Dated this 16th day of April, 2014.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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