US Commodity Futures Trading Commission v. Prestige Capital Advisors, LLC et al

Filing 34

ORDER denying without prejudice 30 Motion to Intervene; granting 32 Motion to Intervene & to Stay; granting 27 Motion for Default Judgment as to Prestige Capital Advisors and D2W Capital Mgmt ; denying without prejudice 28 Motion for Extension of Time to file response/reply. Signed by District Judge Max O. Cogburn, Jr on 1/25/13. (Pro se litigant served by US Mail.)(bsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11cv431
U.S. COMMODITY FUTURES
TRADING COMMISSION,

)
)
)
Plaintiff,
)
)
Vs.
)
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PRESTIGE CAPITAL ADVISORS, LLC,
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a Delaware Limited Liability Company,
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D2W CAPITAL MANAGEMENT, LLC,
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a North Carolina Limited Liability Company, )
and TOBY D. HUNTER, and individual
)
)
Defendant.
)
__________________________________________)

ORDER

THIS MATTER is before the court on the government’s Motion to Intervene and for a
Stay of Civil Discovery and Other Pending Deadlines. In the motion, the government moves to
intervene and for a stay in this matter pending the resolution of the corresponding criminal case
(3:12cr237). The motion reflects that plaintiff U.S. Commodity Futures Trading Commission
and defendant Toby Hunter have been consulted and consent to the motion.
Under Fed.R.Civ.P. 24(b), a third-party may be permitted to intervene “when an
applicant’s claim or defense and the main action have a question of law or fact in common.” The
court finds that the present case shares questions of law and fact with the related criminal case
and will therefore grant the motion to intervene.
With respect to the government’s second request, “[T]he power to stay proceedings is
incidental to the power inherent in every court to control the disposition of the causes on its
docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. North
American Co., 299 U.S. 248, (1936); see also United States v. Georgia Pacific Corp., 562 F.2d

294, 296 (4th Cir.1977) (noting that a motion to stay proceedings is committed to the sound
discretion of the court). As indicated above, plaintiff and one defendant have indicated that they
consent to the stay while the other two defendants, Prestige Capital Advisors and D2W Capital
Management have not responded. Having considered the motion and other pleadings, the court
enters the following order.
ORDER
IT IS, THEREFORE, ORDERED that the Government’s Motion to Intervene and For a
Stay of Civil Discovery and Other Pending Deadlines (#32) is hereby GRANTED. This matter
is STAYED while the corresponding criminal case (3:12cr237) is resolved. Furthermore, the
remaining motions will be disposed of as follows.
1.

Plaintiff’s Motion for Default Judgment as to Prestige Caital Advisors LLC and
D2W Capital Management, LLC (#27) is GRANTED as follows:
(a)

The court orders Prestige to pay a civil monetary penalty of $6,949,122,
which represents triple the monetary gain to Prestige as a result of its
unlawful conduct (i.e., $4,686,557 (total pool participant deposits) $1,466,567 (total trading losses) - $528,616 (total funds returned to pool
participants) - $375,000 (total funds in frozen accounts) = $2,316,374 x 3=
$6,949,122). The court further orders D2W to pay a civil monetary penalty
of $280,000, which represents $140,000 for each violation alleged in the
Complaint.

(b)

The court orders injunctive relief against defendants through incorporation
by reference of ECF No. 27-2 as if fully set forth herein.

2.

Third-Party Taylor Business Holding’s Motion for Extension of Time to File
Response/Reply (#28) is DENIED WITHOUT PREJUDICE.

3.

Third-Party Taylor Business Holding’s Motion to Intervene (#30) is DENIED
WITHOUT PREJUDICE.

IT IS SO ORDERED.
Signed: January 25, 2013