United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE, UNITED STATES DISTRICT JUDGE
THE COURT is Defendant Michael P. Toups' Motion
and Memorandum of Law for Relief from Order and Judgment, Per
Rule 60 and the SEC's opposition (Dkts. 57, 60). Upon
consideration, Toups' motion is DENIED.
SEC sued Toups for violating Section 17(a) of the Securities
Act, Section 10(b) of the Exchange Act, Rule 10b-5, and
Section 13(a) of the Exchange Act, Rules 13a-l, 13a-13 and
12b-20, seeking injunctive relief, disgorgement, and civil
penalties. (Dkt. 1). After extensive negotiations, the
parties reached a bifurcated settlement. (Dkt. 32). Toups
waived findings of fact and conclusions of law, consented to
entry of a judgment enjoining him from violating federal
securities laws, and agreed that the Court would determine,
on the SEC's motion, whether disgorgement and civil
penalties were appropriate, and the amounts. (Dkt. 32-1).
Judgment was entered accordingly. (Dkt. 34).
March 27, 2019, the SEC filed its Motion for Final Judgment
as to Civil Remedies Against Defendant Michael P. Toups and
served a copy on his counsel. (Dkt. 45). A response to the
motion was due April 10, 2019. See Local Rule
3.01(b). SEC counsel certified that before filing the motion,
he conferred with Toups' counsel twice, on January 29,
2019 and again on March 19, 2019, regarding the motion and
"Defendant's counsel indicated that [he] would relay
the proposed relief that the SEC hereby seeks in order to
determine if Toups would agree to such civil remedies."
(Dkt. 45, p. 24).
25, 2019, the SEC was directed to provide an updated
conferral notice and the parties were directed to advise of
the status of the settlement. (Dkt. 48). The SEC reported
that it had, with the consent of Toups' counsel,
contacted Toups by email on August 6, 2019 in an attempt to
confer and provided him with a courtesy copy of the motion.
Toups' counsel of record and his current counsel, who
represented him in other litigation, were included as
recipients of the email. (Dkt. 54, ¶ 7). And on August 7
and 8, 2019, SEC counsel discussed the motion, relief sought,
and a settlement framework with Toups' current counsel,
who relayed the information to Toups. (Id.,
August 11, 2019, the SEC's Motion for Final Judgment as
to Civil Remedies Against Michael Toups was granted and final
judgment entered. (Dkt. 55). The motion was deemed unopposed
because Toups had not responded to it. (Id., p. 1).
Almost a month later, on September 9, 2019, Toups filed the
instant motion, seeking reconsideration and relief under Rule
60 (b) (1) and (6), Fed. R. Civ. P., contending that
"[he] was not aware of the motion to impose penalties as
his counsel of record, James Patterson, Esq. ..., did not
inform him of the motion or respond, ", and as a result,
"he did not have an opportunity to respond." (Dkt.
57, p. 2). He also contends that "[t]he imposed
judgment is unwarranted and excessive . ..."
(Id. at p. 4).
is not warranted since Toups, who was represented by counsel,
had the opportunity to respond to the SEC's motion but
failed to do so. He offers no explanation for why he did not
respond to the motion or at least seek an extension of time
to respond after being notified of the motion by his
attorney. Moreover, the purported defenses he raises could
have been raised in a timely response to the motion.
motion for reconsideration cannot be used to "raise
argument or present evidence that could have been raised
prior to the entry of judgment." Michael Linet, Inc.
v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th
Cir. 2005). This includes new arguments that were
"previously available, but not pressed." Stone
v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998) (per
curiam); Wilchombe v. TeeVee Toons, Inc., 555 F.3d
949, 957 (11th Cir. 2009). Accordingly, reconsideration is
provides six grounds for relief from judgment, two of which
Toups invokes. According to the introductory paragraph of his
motion, he seeks relief "pursuant to Rule 60(b)(1) and
(6) of the Federal Rules of Civil Procedure." (Dkt. 57,
Rule 60(b)(1), a party may be relieved from judgment due to
"mistake, inadvertence, surprise, or excusable
neglect." See SEC v. Simmons, 241 Fed.Appx.
660, 662 (11th Cir. 2007). Essentially, Toups seeks relief
because of counsel's excusable neglect. However, an
attorney's negligent failure to respond to a motion does
not constitute excusable neglect. Solaroll Shade &
Shutter Corp. v. Bio-Energy Sys., Inc.,803 F.2d 1130,
1132 (11th Cir. 1986). And this Circuit "has
demonstrated its wariness of grants of Rule 60(b)(1) relief