Ralph S. Janvey, Appellee v. STANFORD INTERNATIONAL BANK LIMITED, et al., Defendants Jane Ann Sasser; Linda K. Oge; Mark D. Oge, Movants-Appellants.
No. 10-10336
United States Court of Appeals, Fifth Circuit.
May 5, 2011.
339
See also, 2009 WL 2371432 and 2011 WL 1378470.
Second, Worrell argues that her failure to respond to HCA‘s first motion to compel should have been excused because of Hurricane Ike. This argument was rejected by the magistrate judge‘s December 2, 2008 order because of evidence presented by HCA showing that on September 17, 2008, Houston had received an e-mail from HCA‘s counsel advising him that a motion to compel would be filed the next day, and that Houston had responded to that e-mail within twenty-four hours. Worrell now asserts that this e-mail exchange is irrelevant because the e-mail account (i.e., Houston‘s e-mail account on his Blackberry phone) was not the official e-mail account on file with the district court for purposes of service (i.e., Houston‘s Yahoo! e-mail account). This argument is misguided. Even if we were to accept that Houston did not have access to his Yahoo! account because of Hurricane Ike and thus did not receive a copy of the motion to compel at the time it was served, the record does not show that the motion was not properly served on Houston via the Yahoo! account, and the e-mail exchange that was presented to the magistrate judge still shows that Houston had notice of the imminent filing of the motion. In these circumstances, it was Houston‘s responsibility either to locate a copy of the motion through other channels or to notify the court that because of Hurricane Ike, he would need an extension of deadlines. Houston failed to do either. Moreover, as the magistrate judge explained, the effects of Hurricane Ike do not adequately explain why Worrell failed to respond to the motion for over a month. Therefore, we cannot say that the magistrate judge‘s December 2, 2008 decision was in error.
Lastly, Worrell insists that her disclosures and responses were complete under the federal rules. We disagree. At every stage of the proceedings, Worrell‘s disclosures and responses were insufficient under
IV. CONCLUSION
Because the district court did not abuse its discretion in dismissing Worrell‘s case with prejudice pursuant to
AFFIRMED.
SECURITIES and EXCHANGE COMMISSION, Plaintiff-Appellee
Kevin M. Sadler, Timothy Stuart Durst, Esq., Dustin Mark Howell, Esq., Stacy Sharp, Baker Botts, L.L.P., Austin, TX, Ben L. Krage, Esq., Krage & Janvey, L.L.P., Michael Warren Stockham, Esq., Thompson & Knight, L.L.P., Dallas, TX, for Appellee.
Robert Vaughan Cornish, Jr., Esq., Counsel, Dilworth Paxson, L.L.P., Washington, DC, Christopher Casey, Esq., James J. Rodgers, Dilworth Paxson, L.L.P., Philadelphia, PA, Robert L. Broussard, Durio, McGoffin, Stagg & Ackerman, Lafayette, LA, for Movants-Appellants.
Before REAVLEY, GARZA, and SOUTHWICK, Circuit Judges.
This is an appeal from the District Court‘s denial of the Appellants’ motion for a modification of an injunction1 to allow Appellants to proceed with their respective arbitrations. We affirm.
As part of an enormous alleged Ponzi scheme perpetrated by the Stanford companies, financial advisors sold innocent investors essentially worthless certificates of deposit (“CD‘s“) issued by Stanford Bank in Antigua. In February 2009, the SEC filed suit against Allen Stanford and all related Stanford entities. The District Court appointed a Receiver, Ralph S. Janvey, to marshal, conserve, hold, manage and preserve the value of the receivership estate. Additionally, the District Court issued an injunction against all judicial, administrative, or other proceedings in other fora against any Stanford entities.
Appellant Jane Ann Sasser (“Sasser“), a retired, widowed school teacher, invested her entire retirement, approximately $550,000, in Stanford CD‘s. Those CD‘s are now virtually worthless. Pursuant to her contract with her financial advisor, Sasser filed a claim for arbitration with the Financial Industry Regulatory Authority (“FINRA“) against her Stanford financial advisor, Robert Lenoir (“Lenoir“), and his supervisor, Douglas McDaniel (“McDaniel“). Both Lenoir and McDaniel have accounts that are the subject of the receivership suit. Similarly, Appellants Linda and Mark Oge (the “Oges“) invested a substantial amount of their retirement savings, approximately $250,000, in now-worthless Stanford CD‘s. The Oges also filed a claim with FINRA against their financial advisors, James Keith Cox (“Cox“) and Arlen R. Blackwell (“Blackwell“). The Receiver has brought suit against Cox for over $1 million.
FINRA refunded Appellants’ filing fees and stated that the arbitrations could not proceed absent leave of court in the receivership suit. The Appellants moved the District Court to modify the stay to allow them to pursue their arbitrations against their financial advisors. The District Court denied the motions. The Appellants timely appealed, and we have jurisdiction to review a district court‘s refusal to modify an injunction pursuant to
“We review the district court‘s actions pursuant to the injunction it issued for an abuse of discretion.” Newby v. Enron Corp., 542 F.3d 463, 468 (5th Cir. 2008). “In performing that review, findings of fact that support the district court‘s decision are examined for clear error, whereas conclusions of law are reviewed de novo.” Affiliated Prof. Home Health Care Agency v. Shalala, 164 F.3d 282, 284-84 (5th Cir. 1999).
Appellants first argue that the District Court‘s injunction violates their procedural due process right to arbitration. It is axiomatic that a district court has broad authority to issue blanket stays of litigation to preserve the property placed in receivership pursuant to SEC actions. Schauss v. Metals Depository Corp., 757 F.2d 649, 654 (5th Cir. 1985); SEC v. Wencke, 622 F.2d 1363, 1372 (9th Cir. 1980) (“Wencke I“) (“It is especially appropriate in an action like this one that the federal courts have the power, if necessary, to take control over an entity and impose a
Appellants next contend that the District Court abused its discretion when it denied their motion for modification of the stay to allow them to pursue their arbitrations against their financial advisors. To determine whether an exception should be made to a stay of proceedings in a case such as this, the court should consider “(1) whether refusing to lift the stay genuinely preserves the status quo or whether the moving party will suffer substantial injury if not permitted to proceed; (2) the time in the course of the receivership at which the motion for relief from the stay is made; and (3) the merit of the moving party‘s underlying claim.” SEC v. Wencke, 742 F.2d 1230, 1231 (9th Cir. 1984) (Wencke II).
The first factor essentially balances the interests in preserving the receivership estate with the interests of the Appellants. See United States v. Acorn Tech. Fund, L.P., 429 F.3d 438, 443 (3d Cir. 2005). The District Court found that the Appellants’ desire for immediate arbitration—although understandable—was outweighed by the importance of maintaining control over the receivership estate for several reasons. First, the District Court found that the financial advisors at issue were, in many cases, parties to ancillary litigation already initiated by the Receiver. Recovery against one of them could deplete possible assets coming into the estate. Second, the District Court noted that it had not yet ruled on whether the insurance proceeds of any insurance policies, which could pay for awards against the advisors, were property of the estate. So, again recovery against the advisors could deplete the estate. Third, the District Court found it highly likely that the financial advisors would argue as a defense that the Stanford companies were at least partially responsible for the investors’ losses. And last, the District Court found that the Receiver‘s ongoing duty to monitor and possibly intervene in ancillary actions would cost the estate in money and efficiency. The District Court held that the first factor weighed in favor of maintaining the stay.
We are not insensitive to the Appellants’ arguments that given their financial situations, their need to recover funds immediately is paramount. However, the Receiver‘s task to marshal, preserve and conserve the receivership estate is as much for their benefit as for the benefit of all of the other investors—investors who also lost amounts of money that changed their lives. Therefore, at this stage of the litigation, we agree with the District Court that the needs of the Receiver outweigh the substantial injury being suffered by the Appellants.
The District Court also weighed the second factor—the time in the course of the receivership—in favor of maintaining the stay. Timing in a receivership process is fact specific, based on the number of entities, the complexity of the scheme, and any number of other factors. See Wencke II, 742 F.2d at 1231-32; SEC v. Universal Fin., 760 F.2d 1034, 1039 (9th Cir. 1985). At the time of the District Court‘s order, the receivership had been in place for one year. The District Court found that the alleged Ponzi scheme was complex and intricate, involving many entities and bil-
For the last factor, the District Court was unable to make findings regarding the merits of the Appellants’ claims. However, the court indicated a willingness to reweigh the factor once the evidence in the ancillary litigation revealed more facts regarding the financial advisors’ knowledge and participation in the scheme. The Wencke factors acknowledge that, with time, the balancing between the parties may change, such that modifying the stay would be possible. And, the District Court‘s findings reflect that understanding. Based on the findings of the District Court, we cannot say that it abused its discretion in denying the Appellants’ motion to modify.
AFFIRMED.