Securities & Exchange Commission v. Smith
Securities & Exchange Commission v. Smith
Opinion of the Court
This present action arises from an enforcement action that the Securities and Exchange Commission (“SEC”) filed on September 6, 2000, against Regald B. Smith (“Smith”), who misappropriated approximately $5,000,000 from his brokerage firm’s clients while acting as a stockbroker.
In a memorandum opinion and order dated April 2, 2002, the district court granted the Receiver’s rescission motion on the ground that the Real Property Purchase Agreement was a preferential conveyance in violation of Kentucky Revised Statute § 378.060.
On April 25, 2002, the Hayneses filed a motion, under Federal Rule of Civil Procedure 59(e), for reconsideration of the Re
On July 25, 2002, the district court issued an order partly denying and partly granting the Hayneses’ reconsideration motions. The district court declined to consider the Hayneses’ arguments as to the particularity of the pleadings and the statute of limitations on the ground that they had failed to raise them in a timely manner. Yet, the court permitted the offsets for the rent that the Receiver failed to collect and the costs to repair the Cowpen property due to the Receiver’s failure to take physical control of it. Without specifying the particular amounts of these additional offsets, the district court ordered the amendment of its April 15, 2002, disgorgement order to include them.
The Hayneses appeal: 1) the district court’s April 2, 2002, order rescinding the Real Property Purchase Agreement; 2) its April 15, 2002, judgment ordering the Hayneses to disgorge a portion of the $200,000 downpayment; 3) and its July 25, 2002, order denying their reconsideration motion’s claims that the application of KRS § 378.060 was time-barred and that the Receiver had failed to plead this legal theory properly. The Hayneses also appeal the district judge’s participation in the action on the ground that he should have sun sponte recused himself under 28 U.S.C. § 455(a). The Receiver, in turn, cross-appeals the district court’s July 25, 2002, order partly granting the Hayneses’ reconsideration motion by permitting the offsets for lost rent and property repairs.
We must first assure ourselves of our jurisdiction over these-appeals, even if the litigants have not raised the issue. United States v. Jolivette, 257 F.3d 581, 583 (6th Cir. 2001). 28 U.S.C. § 1291 provides, in part, that we have jurisdiction over “appeals from all final decisions of the district courts of the United States.” Generally, a judgment is not a “final decision” for purposes of § 1291 “when the assessment of damages remains.” Woosley v. Avco Corp., 944 F.2d 313, 316 (6th Cir. 1991) (citing Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976). which held that a grant of partial summary judgment on the limited issue of liability was not final under § 1291 “where assessment of damages or awarding of other relief remains to be resolved”). However, a judgment may be “final if only ministerial [and uncontroversial] tasks in determining damages remain.” Id. at 316-17 (holding that an order granting recovery for the defendant employer’s failure to reinstate the plaintiffs to their former positions but ordering the parties to stipulate to the requisite amount of backpay was a final decision within § 1291 because the stipulation concerning damages was “ministerial and uncontroversial”); see Durkin v. Mason & Dixon Lines, 202 F.2d 425, 425 (6th Cir. 1953) (holding that an order granting recovery for the defendant’s failure to pay overtime wages but providing that the particular amount of that recovery was subsequently to be determined based upon the
Here, however, the assessment of the amounts of the offsets for property repairs and lost rent is neither ministerial nor uncontroversial. Thus, the district court’s amended April 15, 2002, order permitting offsets for property repairs and lost rent is not a final decision with the meaning of § 1291. Additionally, neither Federal Rule of Civil 54(b) applies so as to render this decision final for purposes of § 1291, see Liberty Mutual Ins. Co., 424 U.S. at 743, nor 28 U.S.C. § 1292 applies to afford us jurisdiction in limited cases of interlocutory decisions. Therefore, we lack jurisdiction to hear the Hayneses’ appeals or the Receiver’s cross-appeal. We also lack jurisdiction to entertain the Hayneses’ companion claim that the district judge should have recused himself under 28 U.S.C. § 455(a). See Collier v. Picard, 237 F.2d 234, 234 (6th Cir. 1956) (holding that jurisdiction exists to review an appeal from an order rejecting disqualification under § 455(a) only upon the proper appeal of an interlocutory order or a final decision in the proceeding in which the disqualification motion was filed).
For the preceding reasons, we DISMISS the present appeals for a lack of appellate jurisdiction.
. On October 10, 2000, Smith pleaded guilty to criminal charges arising from this fraudulent conduct; Judge Hood sentenced Smith to twenty-four months of imprisonment.
. Section 378.060 provides, in part:
Any sale, mortgage or assignment made by a debtor and any judgment suffered by a defendant, or any act or device done or resorted to by a debtor, in contemplation of insolvency and with the design to prefer one or more creditors to the exclusion, in whole or in part, or others, shall operate as an assignment and transfer of all the properly of the debtor, and shall inure to the benefit of all his creditors, except as provided in subsection (2) of KRS 378.090, in proportion to the amount of their respective demands including those which are future and contingent.
. The Hayneses had previously filed this motion on April 12, 2002, before the district court rendered its April 15, 2002, final judgment.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.