Securities and Exchange Commission v. Boock et al

Filing 269

MEMORANDUM OPINION AND ORDER: For the foregoing reasons, it is hereby ORDERED that the Boocks February 28, 2019 motion to void judgments is denied. IT IS FURTHER ORDERED that the Boocks may not file any additional motion in this case related to the 2012 and 2015 judgments without prior leave of Court. SO ORDERED. (Signed by Judge Denise L. Cote on 5/10/2019) Copies mailed to: Irwin Boock Birte Boock 500 Hidden Trail Toronto, Ontario M2R 3R5 Irwin Boock Birte BoockP.O. Box 8173 RPO The Concourse North York, Ontario M2R 3X1 (jca)

Case 1:09-cv-08261-DLC-DCF Document 269 Filed 05/10/19 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------- X
:
SECURITIES AND EXCHANGE COMMISSION, :
:
Plaintiff,
:
:
-v:
:
IRWIN BOOCK, STANTON B.J.
:
DEFREITAS, NICOLETTE D. LOISEL,
:
ROGER L. SHOSS, and JASON C. WONG, :
:
Defendants,
:
:
and
:
:
BIRTE BOOCK, 1621533 ONTARIO, INC., :
and ALENA DUBINSKY,
:
:
Relief
:
Defendants.
:
:
----------------------------------- X

09cv8261 (DLC)
MEMORANDUM OPINION
AND ORDER

DENISE COTE, District Judge:
On February 28, 2019, defendant Irwin Boock (“Boock”) and
relief defendant Birte Boock (“Ms. Boock”; together, the
“Boocks”) moved pursuant to Rule 60(b)(6), Fed. R. Civ. P., to
void the judgments entered against them in 2012 and 2015.

For

the following reasons, the motion is denied.
As explained most recently in an Order of January 22, 2019,
the Securities and Exchange Commission (“SEC”) brought this
civil securities fraud case in 2009 against various defendants
for hijacking over 40 public shell companies.

Neither of the

Boocks answered the complaint, and the Court entered default

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judgments against them on March 26, 2010.
Boocks moved to set aside the defaults.

In October 2010, the
On January 25, 2011,

the SEC moved to dismiss the Boocks’ motion to set aside
default, citing Boock’s admission of liability at his January
13, 2011 deposition.

On February 1, 2011, Boock filed an

affirmation asserting that, during the deposition, the SEC
tricked and coerced him into conceding liability under false
pretenses.

In the February 1 affirmation, Boock stated that the

SEC’s trial counsel “could have had me admitting to murders in
countries I had never been to if he so wanted,” and claimed that
allowing an entry of judgment “would be no different than if the
court knowingly allowed an innocent man to executed [sic] for a
crime he did not commit.”
The Boocks did not answer the complaint and an Order of
June 2, 2011 denied the Boocks’ motions to vacate the default
judgments.

On August 2, 2012, judgment was entered against

Boock in the amount of $8,284,634.

On January 26, 2015,

judgment in the amount of $4,112,987.79, plus a $2.86 million
civil penalty, was entered jointly and severally against Boock
and a codefendant.

The judgments against Boock became final in

August 2015, when the Court of Appeals dismissed Boock’s appeal
from the 2012 and 2015 judgments.

Final judgment was entered

against Ms. Boock in the amount of $828,184 on July 31, 2015.

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On November 8, 2017, the Boocks filed motions pursuant to
Rule 60(b)(4), Fed. R. Civ. P., to void the judgments against
them on the basis of the Supreme Court’s decisions in Kokesh v.
SEC, 137 S. Ct. 1635 (2017) and Gabelli v. SEC, 568 U.S. 442
(2013).

An Order of January 22, 2018 denied those motions.

The

Boocks’ motions for reconsideration of the January 22 Order were
denied on February 21, 2018.

On April 1, 2019, the Court of

Appeals affirmed the January 22 Order denying the Boocks’
motions to void the judgments against them.
The Boocks now move for the second time to void the 2012
and 2015 judgments -- this time pursuant to Rule 60(b)(6).

The

Boocks principally argue that the judgments are void because the
SEC’s trial counsel perpetrated a fraud on the court by
“suborn[ing] perjured testimony from Irwin Boock on the day of
his [January 13, 2011] deposition.”

The Boocks assert that Ms.

Boock’s health condition made Boock vulnerable to coercion and
that, prior to admitting liability, Boock had told the SEC’s
trial counsel that he was innocent and thus an admission of
liability would require him to “lie under oath.”

In essence,

the Boocks’ motion revives the argument Boock made in his
February 1, 2011 affirmation.
The Boocks’ motion is untimely.

Unlike Rules 60(b)(1)-(3),

Rule 60(b)(6) does not prohibit a party from bringing a motion
more than a year after the entry of judgment in a civil case.
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See Fed. R. Civ. P. 60(c).

To obtain relief under Rule

60(b)(6), however, a party must demonstrate “extraordinary
circumstances” and show that the relief requested “is not
premised on one of the grounds for relief enumerated in clauses
(b)(1) through (b)(5).”

Liljeberg v. Health Servs. Acquisition

Corp., 486 U.S. 847, 863 (1988).

Because Rule 60(b)(6) and

Rules 60(b)(1)-(5) are “mutually exclusive,” see Stevens v.
Miller, 676 F.3d 62, 67-68 (2d Cir. 2012), “a party may not
avail himself of the broad ‘any other reason’ clause of 60(b) if
his motion is based on [other] grounds . . . .”
U.S. at 863 n.11 (citation omitted).

Liljeberg, 486

“Of particular concern is

that parties may attempt to use Rule 60(b)(6) to circumvent the
one-year time limitation in other subsections of Rule 60(b).”
Stevens, 676 F.3d at 67.
Although the Boocks bring their motion under Rule 60(b)(6),
their allegations fall squarely within the circumstances
described in Rule 60(b)(3):

“fraud . . . , misrepresentation,

or misconduct by an opposing party.”

Fed. R. Civ. P. 60(b)(3).

As such, it was required to be brought within the one-year time
limitation set forth in Rule 60(c), Fed. R. Civ. P.

The Boocks

filed this motion nearly four years after final judgment was
entered in this case and nine years after Boock’s deposition at
which the alleged misconduct took place.
must be denied.
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It is untimely and

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Moreover, the Boocks have not asserted any “extraordinary
circumstance” to justify this delay.

See Pioneer Inv. Servs.

Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993)
(“To justify relief under subsection (6) [of Rule 60(b)], a
party must show ‘extraordinary circumstances’ suggesting that
the party is faultless in the delay.”)

There can be no claim,

for example, that either of the Boocks lacked knowledge of the
factual basis for this motion until after the entry of judgment.
Cf. Liljeberg, 486 U.S. at 850.

“Simply put,” the Boocks’

motion “is nothing more than a late Rule 60(b)[(3)] motion.”
Stevens v. Miller, 676 F.3d 62, 67-68 (2d Cir. 2012). 1
The motion must be denied for other reasons as well.

The

substance of the Boocks’ argument was already considered and
rejected in an Opinion of August 25, 2019.

See SEC v. Boock,

No. 09cv8261(DLC), 2011 WL 3792819, at *6 n.2 (S.D.N.Y. Aug. 25,
2011).

As explained in that Opinion, the statements in Boock’s

February 1, 2011 affirmation “all directly contradict his
deposition testimony that the SEC had made no promises to him in
exchange for his admissions, that he was not under duress, and
that his admissions were not related to his or his wife’s health
conditions.”

Id.

The statements were properly disregarded

Even if the motion were properly considered under Rule
60(b)(6), it would still be denied because it was not filed
“within a reasonable time.” See Fed. R. Civ. P. 60(c).
1

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pursuant to Estate of Hamilton v. City of New York, 627 F.3d 50,
54 (2d Cir. 2010) (“It is well settled in this circuit that a
party’s affidavit which contradicts his own prior deposition
testimony should be disregarded on a motion for summary
judgment.”).

In any event, the judgments against the Boocks

were supported by an abundance of evidence and affirmed by the
Court of Appeals.

The Boocks will not be permitted to continue

to litigate these same issues ad infinitum.
For the foregoing reasons, it is hereby
ORDERED that the Boocks’ February 28, 2019 motion to void
judgments is denied.
IT IS FURTHER ORDERED that the Boocks may not file any
additional motion in this case related to the 2012 and 2015
judgments without prior leave of Court.

SO ORDERED:
Dated:

New York, New York
May 10, 2019
____________________________
DENISE COTE
United States District Judge

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Copies mailed to:
Irwin Boock
Birte Boock
500 Hidden Trail
Toronto, Ontario
M2R 3R5
Irwin Boock
Birte Boock
P.O. Box 8173 RPO The Concourse
North York, Ontario
M2R 3X1

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