U.S SECURITIES AND EXCHANGE COMMISSION v. SECURE CAPITAL FUNDING CORPORATION et al

Filing 94

OPINION filed. Signed by Judge Anne E. Thompson on 6/27/2013. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
U.S. SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,

Civ. No. 11-00916

v.

OPINION

SECURE CAPITAL FUNDING
CORPORATION, et al.,
Defendants.
THOMPSON, U.S.D.J.
This matter has come before the Court upon Plaintiff U.S. Securities and Exchange
Commission’s (“Plaintiff’s”) Motion for Default Judgment as to Defendants Secure Capital
Funding Corporation (“SCF”), ST Underwriters Corporation (“STUC”), Alan Smith (“Smith”),
and Kiavanni Pringle (“Pringle”) (collectively “Defendants”). (Doc. No. 85). The motion is
unopposed. 1 The Court has decided the motion based upon the written submissions of the parties
and without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Local Rule
78.1(b). For the reasons included herein, the Court grants Plaintiff’s motion.
PROCEDURAL HISTORY
This action stems from the filing of Plaintiff’s February 18, 2011 Complaint against SCF,
Hill, PP&M Trade Star Partners (“PP&M”), and Pringle for alleged participation in an
international “prime bank” fraud scheme. (Doc. No. 1, Compl.). After issuing a temporary
restraining order (“TRO”) on the date of the Complaint, (Doc. No. 4), the Court entered a
preliminary injunction on February 28, 2011. (Doc. No. 10). The Court’s TRO and preliminary
1

The attempted submissions of H. Draudins are not considered as opposition for the purposes of this Opinion, as
Mr. Draudins has repeatedly failed to join as a legitimate party in this case.

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injunction orders included provisions to freeze those domestic bank accounts in which suspected
fraud proceeds were deposited. (Doc. No. 4, ¶¶ I, II, V; Doc. No. 10, ¶¶ I, VIII). The orders also
required defendants to repatriate monies that Hill and SCF had transferred out of the United
States to bank accounts in the Republic of Latvia. (Id.).
On April 27, 2011, the Clerk entered defaults against SCF, Pringle and PP&M pursuant
to Rule 55(a) of the Federal Rules of Civil Procedure. (See Clerk’s Entry, April 27, 2011).
PP&M was later dismissed without prejudice upon the discovery that it was a fictitious entity.
(Doc. No. 28). After receiving leave from the Court, Plaintiff filed the First Amended Complaint
(“FAC”) adding Smith, STUC, and Secure Trust as Defendants on July 15, 2011. (Doc. No. 29,
FAC). Although Plaintiff was unable to serve process on Secure Trust, which it now seeks to
dismiss as a fictitious entity, Plaintiff did serve Smith and STUC. Neither Smith nor STUC,
however, filed responsive pleadings, and the Clerk entered defaults against them on November 9,
2011 and February 8, 2012, respectively. (Clerk’s Entry, Nov. 9, 2011; Clerk’s Entry, Feb. 8,
2012). On April 20, 2012, the Court granted Plaintiff’s motion for preliminary injunctions
against Smith and STUC. (Doc. No. 61). On August 13, 2012, the Court entered a judgment
against Hill as to liability and nonmonetary remedies pursuant to a settlement agreement with
Plaintiff. (Doc. No. 66). The agreement reserved the issue of monetary remedies for later
resolution. (Doc. No. 64).
Robert J. Del Tufo, Esq. was appointed as the agent for distribution of recovered fraud
proceeds to investors on February 20, 2013. (Doc. No. 83). On June 24, 2013, Mr. Del Tufo
submitted a proposed plan with respect to the distribution of the monies frozen in the domestic
bank accounts and any additional monies recovered from Hill or any other Defendant. (Doc. No.
90).

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Not party to the litigation, but a frequent contributor to the docket nonetheless, is one
Harry Draudins (“Draudins”). Draudins has attempted at various points in this litigation to
intervene in the proceedings, claiming to be the alter ego and/or successor in interest to Smith,
STUC, SCF, and Secure Trust. (See, e.g., Doc. Nos. 46, 68). However, despite various
opportunities given by the Court to intervene legitimately in this action, Draudins has failed to
follow Court orders and properly appear. (Doc. No. 56; Doc. No. 85, Att. 6, Ex. 3 to Norman
Declaration, Feb. 2, 2012 Draudins Letter). The Court has thus returned to disregarding his
submissions as a nonparty. (See Doc. Nos. 41, 47, 54, 87, 88).
On May 7, 2013, Plaintiff moved for (1) entry of default judgment with respect to SCF,
STUC, Smith, and Pringle pursuant to Rules 54(b) and 55(b), (Doc. No. 85); and (2) dismissal of
Defendant Secure Trust without prejudice, (Doc. No. 86). The Court here will address the
motion for entry of default judgment, and will address the dismissal of Secure Trust in a separate
Opinion.
FACTUAL BACKGROUND
“In an application for an entry of default judgment, the Court accepts as true any facts
contained in the pleadings regarding . . . liability.” Arpalo v. Dupre, Civ. No. 08-3548, 2011 WL
831964, at *4 (D.N.J. Mar. 3, 2011). The FAC alleges that Smith masterminded, and Defendants
participated in, the execution of a prime bank fraud. (Doc. No. 29, FAC, ¶ 1). A major
component of this fraud was Defendants’ false representations that they could provide access to
exclusive offshore opportunities that would yield risk-free monthly returns of 10% to 100%,
through multi-million dollar bank guarantees and medium term notes. (Doc. No. 29, FAC, ¶¶
13-15). Investors were told that their initial investments would be either used to purchase Swiss
“debentures” or held in “non-depleting” Swiss accounts to secure the leveraged trading in
securities. (Doc. No. 29, FAC, ¶ 14). They were directed to send all funds to SCF, or to a
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California-based entity known as Secure Capital Funding Corporation; from there, the majority
of funds were transferred to a Latvian bank account. (Doc. No. 29, FAC, ¶¶ 22, 36-37; Doc. No.
3, Att. 1, Norman Decl., ¶ 25; Doc. No. 7, Supp. Norman Decl., ¶¶ 17, 23). Purchase money was
also transmitted through J.P. Morgan Chase bank accounts in New Jersey. (Doc. No. 29, FAC, ¶
27).
Contrary to Defendants’ representations, the debentures and levered accounts in
Switzerland were fictitious and no bank guarantees were ever provided. (Doc. No. 29, FAC, ¶
20). Indeed, despite gathering over $4 million from investors between September 2010 and
February 2011, (Doc. No. 29, FAC, ¶ 16; see also Doc No. 3, Att. 1, Norman Decl. ¶ 23; Doc.
No. 7, Supp. Norman Decl., ¶ 8-24), no investors have been able to access their supposed Swiss
accounts to make trades, and none are known to have been refunded their purchase money, (Doc.
No. 29, FAC, ¶ 15).
As for the roles and relations between the defaulting Defendants, Smith, who controlled
STUC, also directed and controlled the activities of Hill and SCF, (Doc. No. 29, FAC, ¶¶ 35),
determining the allotted “fees” and/or “commissions” to be paid for their “services.” (Doc. No.
29, FAC, ¶ 36). Smith used Pringle to identify and target investors for fraudulent solicitations,
(Doc. No. 29, FAC, ¶ 37), and Smith himself directly communicated with at least two investors
in furtherance of the fraudulent scheme, (Doc. No. 29, FAC, ¶¶ 39-40). One of those investors,
an all-boys boarding school, was located in the United States. (Doc. No. 29, FAC, ¶ 39).
In fleshing out Defendants’ overall scheme, the FAC explains that Smith and STUC held
themselves out as providing brokerage services despite failing to register as such. (Doc. No. 29,
FAC, ¶¶ 48-51). Smith and STUC also demanded “interest” from foreign and domestic investors
on the “credit” supposedly made available in the fictional margin trading accounts. (Doc. No.
29, FAC, ¶ 52). Smith further sent to investors, or caused to be sent, arbitration demands
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claiming that investors owed interest on the fictional trading accounts. (Doc. No. 29, FAC, ¶
28).
Delving into Pringle’s responsibility, the FAC explains that Pringle agreed to raise
money for SCF in exchange for a fee of 3% of all “assets under management.” (Doc. No. 29,
FAC, ¶ 44). Pringle represented to investors that PP&M would professionally select the
securities to be purchased from the margin brokerage accounts that were supposed to be
established for the investor based upon the investor’s purchase of Swiss debentures. (Doc. No.
29, FAC, ¶ 44). In one instance, Pringle engaged an unaccredited investor whom he instructed to
wire $50,000 to a bank account controlled by SCF. (Doc. No. 29, FAC, ¶ 46). Pringle informed
the investor that the fund would be used to purchase “non-depleting” “risk free” Swiss
debentures which would secure a $5 million credit line managed for his benefit, and that he
would receive 10 to 100% monthly returns with no risk to his initial investment. (Doc. No. 29,
FAC, ¶ 46). Although the investor was provided with login information and a username for a
website that purported to provide account access, he never received any account statements,
trade confirmations or documentation, monthly payments or earnings. (Doc. No. 29, FAC, ¶ 46).
After detailing the above facts, the FAC sets out five claims for relief: (1) Fraud in the
Purchase and Sale of Securities in Violation of Section 10(b) of the Exchange Act and Rule 10b5 thereunder; (2) Fraud in the Offer and Sale of Securities in Violation of Section 17(a) of the
Securities Act; (3) Unregistered Offer and Sale of Securities in Violation of Section 5(a) and (c)
of the Securities Act; (4) Acting as Brokers without Registration in Violation of Section 15(a) of
the Exchange Act (with respect to Secure Trust and STUC only); and (5) Aiding and Abetting
Secure Trust and ST Underwriters’ Violations of Section 15(a) of the Exchange Act (with
respect to Smith only). (Doc. No. 29, FAC). The FAC concludes with an extensive prayer for
relief, requesting, inter alia, certain disgorgement of funds and permanent injunctive relief. Such
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relief is now under consideration in the present motion with respect to Smith, SCF, STUC, and
Pringle.
DISCUSSION
The Court will first review its basis for asserting jurisdiction before analyzing whether
default judgment is appropriate under Federal Rule of Civil Procedure 55. Because Plaintiff
seeks to secure a final judgment as to fewer than all parties, the Court will also evaluate the
appropriateness of judgment under Federal Rule of Civil Procedure 54. The Court will conclude
with an inquiry into the requested relief.
A. Jurisdiction
“Before entering a default judgment against a party that has not filed responsive
pleadings, ‘the district court has an affirmative duty to look into its jurisdiction . . . over the
subject matter and the parties.’” Bank of America, N.A. v. Hewitt, Civ. No. 07-4536, 2009 WL
1635365, at *2 (D.N.J. Jun. 10, 2009) (quoting Williams v. Life Sav. & Loan, 802 F.2d 1200,
1203 (10th Cir. 1986)). In this case, the Court finds subject matter jurisdiction proper where the
prime bank securities and credit lines at issue are “securities” within the meaning of the federal
securities laws under which Plaintiff has sued. See Section 2(a)(1) of the Securities Act [15
U.S.C. §77b(a)(1)] and Section 3(a)(10) of the Exchange Act [15 U.S.C. § 78c(a)(3)(10)]
(defining the terms “security” to include any “debenture,” “note,” or “investment contract”);
Reves v. Ernst and Young, 494 U.S. 56, 66 (1990) (“The Court will consider instruments to be
‘securities’ on the basis of [investor] expectations, even where an economic analysis of the
circumstances of the particular transaction might suggest that the instruments are not “securities”
as used in that transaction.”). Plaintiff has also sufficiently alleged facts leading to the plausible
inference that the parties incurred irrevocable liability within the United States, in accordance
with Section 10(b) of the Exchange Act, in that the victims in this case complied with
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instructions to send their payments to accounts in the United States. Thus, subject matter
jurisdiction is appropriate under 28 U.S.C. § 1331.
The Court also has personal jurisdiction over this matter because the Defendants, directly
and/or through their co-defendants and agents, have both solicited and transacted business in
New Jersey. (See, e.g., Doc. No. 29, FAC, ¶¶ 5-9, 11-41, 47-69; Doc. No. 7, Supp. Norman
Decl., ¶¶ 7, 8, 19, 24). Thus, the Defendants have sufficient minimum contacts with the forum to
support jurisdiction. See, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 29798, 314 (1980) (finding the “minimum contacts” requirement is satisfied so long as the contacts
resulted from the defendant’s purposeful conduct and not the unilateral activities of the plaintiff);
Hanson v. Denckla, 357 U.S. 235, 253 (1958) (finding the exercise of specific personal
jurisdiction requires there be some act or acts by which a defendant “purposefully avails itself of
the privilege of conducting activities in the forum state”).
B. Federal Rule of Civil Procedure 55(b)(2)
Since jurisdiction is proper in this instance, the Court turns to the question of default
judgment. A district court may enter default judgment under Federal Rule of Civil Procedure
55(b)(2), after an entry of default by the Clerk of Court. See Sourcecorp Inc. v. Croney, 412 Fed.
App’x 455, 458 (3d Cir. 2011) (citing Fed. R. Civ. P. 55). The decision to enter such judgment
is primarily within the district court’s discretion, Bank v. Lake Estates Condominium Assoc.,
Inc., Civ. No. 11-5338, 2012 WL 1435637, at * 3 (D.N.J. Apr. 25, 2012) (quoting Century Real
Estate LLC v. Kenneth M. Yanni, Inc. Civ. No. 07-6078, 2009 WL 904122, at *1 (D.N.J. Mar.
31, 2009)), with the significant caveat that default judgments are discouraged in favor of
adjudications on the merits, Hill v. Williamsport Police Dept., 69 Fed. App’x 49, 51 (3d Cir.
2003); United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194 (3d Cir. 1984); Poulis v.

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State Farm Fire & Cas. Co., 747 F.2d 863, 867 (3d Cir. 1984); Hritz v. Woma Corp., 732 F.2d
1178, 1181 (3d Cir. 1984).
The Third Circuit has established a three-part test for determining the appropriateness of
default: (1) the “prejudice to the plaintiff if default is denied, (2) whether the defendant appears
to have a litigable defense, and (3) whether defendant’s delay is due to culpable conduct.”
Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000). The Court will briefly consider
each of the factors below.
1. The Prejudice to the Plaintiff if Default is Denied
“Prejudice is established . . . when a plaintiff’s ‘ability to pursue the claim has been
hindered . . . [by, inter alia,] loss of available evidence, increased potential for fraud or collusion,
or substantial reliance upon the judgment.’” Nationwide Mut. Ins. v. Starlight Ballroom Dance
Club, Inc., 175 Fed. App’x 519, 524 (3d Cir. 2006) (quoting Feliciano v. Reliant Tooling Co.,
691 F.2d 653, 657 (3d Cir. 1982)). “Delay in realizing satisfaction on a claim rarely serves to
establish a sufficient degree of prejudice.” Id. at 524-25 (quoting Feliciano, 691 F.2d at 656-57)
(internal quotations and punctuation omitted).
Here, Plaintiff argues that, if default is denied, the case will remain in a state of perpetual
suspension due to Defendants’ decisions not to appear. Plaintiff will consequently be denied its
right to a timely adjudication of its claims, and the victims of the fraud will never have any
portion of their money returned. The Court, upon scrutinizing the conduct of Defendants up
until this point, finds little evidence that further delaying judgment will inspire the Defendants to
respond, and that the case might indeed continue on ad infinitum. As the delay in adjudication
continues, evidence is no doubt lost, and the potential for continuing fraud on the part of
Defendants is increased. Thus, although the Court is aware that delay is rarely sufficient to
establish prejudice, in this instance, where the case has been pending for more than two years
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and the cost to the victims continues to be great, the Court finds that this factor weighs in favor
of an entry for default judgment.
2. A Litigable, or Meritorious, Defense
Whether or not a defendant has a meritorious defense is frequently considered the most
important factor in determining whether default judgment should be imposed or vacated. See,
e.g., Bank v. Lake Estates, 2012 WL 1435637 at *4, Nationwide Mut. Ins., 175 Fed. App’x at
522. Over the course of this litigation, Plaintiff has submitted various materials to the Court that
demonstrate the strength of its claims. In return, Defendants have either (a) failed to respond; or
(b) responded with information and arguments that do little to showcase a litigable defense.
Gathering these few paltry responses together, the Court considers (1) Smith’s Wells
Submission, submitted prior to his designation as a Defendant in this case; (2) Pringle’s
deposition testimony; and (3) the submissions of nonparty Draudins.
In his Wells Submission, Smith attempts to direct Plaintiff’s investigation onto Pringle,
and to deflect other accusations of fraud by implying that his companies could not be charged
with offering and selling “securities” where investors could not have actually believed they were
buying “debentures.” (Doc. No. 85, Att. 10 & 11, 4th Suppl. Normal Declaration, Ex. 7). The
Court notes that the fictional nature of a security does not remove it from the purview of the law
where an investor believes it to be an actual security. Reves, 494 U.S. at 66 (“The Court will
consider instruments to be ‘securities’ on the basis of [investor] expectations, even where an
economic analysis of the circumstances of the particular transaction might suggest that the
instruments are not “securities” as used in that transaction.”). Here, Smith’s sales contracts to
investors expressly described the instruments as debentures.
With respect to Pringle’s deposition testimony, the Court, upon review, agrees with
Plaintiff’s analysis that it is replete with admissions regarding the essential elements of
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Plaintiff’s charges against him. (See, e.g., Doc. No. 85, Att. 3, 4th Supp. Norman Decl., ¶ 3; Ex.
1, Pringle Dep. 54:17-60:15; 63:12-64:20; 68:17-78:3 (confessing, among other things, to
promising huge returns to four investors induced to purchase Secure Trust instruments, with no
remotely realistic way of making good on those promises)). Pringle has also purportedly pled
guilty to criminal charges regarding similar fraudulent conduct that postdates his participation in
the scheme at issue here. (Doc. No. 85, Att. 3, 4th Supp. Norman Decl., Ex. 8, Pringle Guilty
Plea).
Finally, with respect to nonparty Draudins, Plaintiff dismisses his various submissions as
irrational or unintelligible in the context of the larger case, an assertion with which the Court
agrees.
Thus, after balancing Plaintiff’s strong evidentiary showing with the weak objections of
Smith, the various admissions by Pringle, and the general lack of response (coherent or
otherwise) from Defendants, the Court finds it unlikely that Defendants can show they have a
meritorious defense. As a result, this factor also supports entry of default judgment.
3. Culpable Conduct
In demonstrating the third and final factor in the Third Circuit’s default judgment inquiry,
culpable conduct, a plaintiff must show more than mere negligence, Nationwide Mut. Ins. Co.,
175 Fed. App’x at 523 (quoting Hritz, 732 F.2d at 1183), but a showing of “[r]eckless disregard
for repeated communications from plaintiffs and the court” may be sufficient. Id. (quoting Hritz,
732 F.2d at 1183-84 (rejecting the suggestion that it would be “an abuse of discretion for a trial
judge to enter a default judgment to sanction a party who has callously disregarded repeated
notices of a judicial proceeding”)).
Here, Plaintiff argues that Defendants have no conceivable claim of excusable neglect.
Smith received notice of the FAC and all subsequent filings. Draudins, the alleged successor in
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interest and/or alter ego of the Defendants, has failed to appear before the Court despite explicit
assurances that he would do so. Pringle was both served with process and deposed, but has
ceased responding either to Plaintiff or to the Court. As this is the third factor the Court finds in
favor of default judgment, the Court concludes that entry of default is appropriate under Rule
55(b)(2).
C. Federal Rule of Civil Procedure 54(b)
Turning now to the question of whether final judgment may be entered against fewer than
all of the Defendants, Federal Rule of Civil Procedure 54(b) provides that when an action
involves multiple parties,
the court may direct entry of a final judgment as to one or more, but fewer than all . . .
[the] parties only if the court expressly determines that there is no just reason for delay.
Otherwise, any order or other decision, however designated, that adjudicates . . . the
rights and liabilities of fewer than all the parties does not end the action as to any of the . .
. parties and may be revised at any time before the entry of a judgment adjudicating all of
the claims and all the parties’ rights and liabilities.
Fed. R. Civ. P. 54(b).
In arguing for entry of final judgment, Plaintiff points out that the only parties not
included in the motion for default judgment are Secure Trust (which the Court dismisses from
this action in a separate Opinion) and Hill. With regards to the former, Plaintiff argues that it is
highly unlikely it would ever again seek to bring suit against Secure Trust, as it appears to be a
fictitious entity. With regards to the latter, Plaintiff points out that this Court has already entered
a consent order against Hill, and, to the extent that order excluded a determination on penalties
and disgorgement, Hill has agreed not to contest the allegations as demonstrated in the FAC. As
such, Plaintiff argues there is little chance of inconsistency as to liability judgments or remedies.
Upon review of the facts and proposed relief, the Court agrees that there is no just reason
for delay, and that default judgment with respect to the parties in question should be granted.
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D. Relief
Since the Court has found entry of judgment appropriate pursuant to Rules 54 and 55, the
Court now turns to the matter of relief. The Court concludes that Plaintiff has brought forth
sufficient evidence in the FAC to demonstrate violations of Exchange Act § 10(b) and Securities
Act § 17(a); violations of Securities Act §§ 5(a) and 5(c); violations of Exchange Act § 15(a)(1);
and the aiding and abetting of violations of Exchange Act § 15(a)(1). In response to these
violations, Plaintiff seeks to (1) permanently enjoin Defendants from violation of federal
securities laws (as set forth specifically in the Order accompanying this Opinion); (2) disgorge
Smith of his ill-gotten gains and collect prejudgment interest; and (3) exact civil penalties against
Smith and Pringle. Although the Court will reserve the questions of disgorgement, prejudgment
interest, and civil penalties for a separate evidentiary hearing, the Court finds permanent
injunctive relief appropriate in this instance.
An action for permanent injunctive relief shall be granted “upon a proper showing by the
commission [Plaintiff]” that “a person is engaged in acts in violation of the securities laws.”
Securities and Exchange Comm’n v. Bonastia, 614 F.2d 908, 912 (3d Cir. 1980) (citing 15
U.S.C. § 77t(b); 15 U.S.C. § 78u(d)). The purpose of such injunctive relief is not to punish the
violator, but to deter him from committing future infractions of the securities laws. Id. The
decision on whether to grant injunctive relief “is based on a determination of whether there is a
reasonable likelihood that the defendants, if not enjoined, will again engage in the illegal
conduct.” Id. (citing Tanzer v. Huffines, 408 F.2d 42, 43, n. 1 (3d Cir. 1969) (per curiam)). To
determine such likelihood, courts look to, “among other things, the degree of scienter involved
on the part of the defendant, the isolated or recurrent nature of the infraction, the defendant’s
recognition of the wrongful nature of his conduct, the sincerity of his assurances against future

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violations, and the likelihood, because of defendant’s professional occupation, that future
violations might occur.” Id.
Here, upon a review of the evidence presented, the Court agrees with Plaintiff that
Defendants acted with a high degree of scienter and committed multiple, systematic, and
egregious violations of the securities laws. None of the Defendants in this litigation have
admitted to the wrongfulness of their conduct or provided any kind of reassurance that such
activity will not reoccur. The Court is troubled by Plaintiff’s evidence that Smith has already
attempted to further defraud his victims by sending phony arbitration demands and instructions
to forward moneys for its payment. (See Doc. No. 29, FAC, ¶¶ 25-28; Doc. No. 85, Att. 10-11,
4th Supp. Norman Decl., Ex. 7). Plaintiff contends that a permanent injunction will provide law
enforcement with a valuable tool if and when Smith is ever located and found to have perpetrated
additional securities frauds. Based on all of these facts and circumstances, the Court agrees with
Plaintiff that a permanent injunction is appropriate in this case.
With respect to the disgorgement of funds, payment of prejudgment interest, and the
assessment of civil penalties, the Court, as previously stated, will reserve such issues for an
evidentiary hearing to take place on the date and time indicated in the accompanying Order.
Given the significant amount of money at issue in this case, the Court considers it appropriate to
give the defaulting Defendants a final opportunity to be heard.
CONCLUSION
For the foregoing reasons, the Court grants Plaintiff’s Motion for Default Judgment as to
Defendants SCF, STUC, Smith, and Pringle. (Doc. No. 85). An appropriate Order accompanies
this Opinion.
/s/Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.
Date:

June 27, 2013
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