United States District Court, M.D. Florida, Orlando Division
U.S. SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
BIG APPLE CONSULTING USA, INC., MJMM INVESTMENTS, LLC, MARC JABLON, MATTHEW MAGUIRE, MARK C. KALEY and KEITH JABLON, Defendants.
ANTOON II UNITED STATES DISTRICT JUDGE
Mark C. Kaley, appearing pro se, filed the instant
Motion for Relief from Judgment in Favor of Securities and
Exchange Commission (Mot. Relief, Doc. 259) on October 15,
2019, and Plaintiff U.S. Securities and Exchange Commission
(SEC) filed a Response (Doc. 262). Kaley then filed a letter
(Doc. 264) that both requested to reply and replied. The
Court construes Kaley's letter as a motion for leave to
reply and grants the request, accepting the remainder of the
letter and his subsequent Reply (Doc. 266) as his Reply.
Kaley also filed a Motion to Stay Pending State Court Action
(Mot. Stay, Doc. 265). For the following reasons, the Court
denies Kaley's Motion for Relief from Judgment and his
Motion to Stay Pending State Court Action.
in favor of the SEC was entered in 2013 after a jury trial.
Kaley was ordered to pay a civil monetary penalty of $156,
500 plus post-judgment interest. (Doc. 259 at 1; Doc. 262 at
2). Kaley appealed but the judgment was affirmed. (Doc. 248).
According to the SEC, it has collected $9, 161.71 through
federal tax return offsets; Kaley has made no voluntary
payments; and the total amount owed as of November 14, 2019,
is $148, 846.28. (Doc. 262 at 2). Kaley now moves to be
relieved from the judgment based on Fed.R.Civ.P. 60(b)(5)
& (6). He also moves for the Court to stay a pending
state court foreclosure action under 28 U.S.C. § 2283.
Motion for Relief from Judgment
60(b) provides six grounds for relief from judgment. Relevant
to this Order, "[o]n motion and just terms, the court
may relieve a party . . . from a final judgment" under
Rule 60(b)(5) if "the judgment has been satisfied,
released, or discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying it
prospectively is no longer equitable" or under 60(b)(6)
for "any other reason that justifies relief."
Fed.R.Civ.P. 60(b)(5) & (6). "By its very nature,
the rule seeks to strike a delicate balance between two
countervailing impulses: the desire to preserve the finality
of judgments and the incessant command of the court's
conscience that justice be done in light of all the
facts." Seven Elves, Inc. v. Eskenazi, 635 F.2d
396, 401 (5th Cir. 1981) (internal quotation omitted).
under Rule 60(b) are directed to the sound discretion of the
district court." Id. at 402. In analyzing a
Rule 60(b) motion, courts should keep in mind the importance
of "preserving the principle of the finality of
judgments" as they consider the following factors: (1)
"[t]hat final judgments should not lightly be
disturbed"; (2) that the rule is not a substitute for
appeal; (3) "that the rule should be liberally construed
in order to achieve substantial justice"; (4) the
timeliness of the motion; (5) whether the case was decided on
the merits; (6) if the judgment was after a trial on the
merits, did the movant have "a fair opportunity to
present his claim or defense; (7) whether there are
intervening equities that would make it inequitable to grant
relief; and (8) any other factors relevant to the justice of
the judgment under attack." Id.
Fed.R.Civ.P. 60(b)(5)-ludgment No Longer
argues that he should be relieved from the Judgment under the
last portion of Rule 60(b)(5) because it is no longer
equitable to hold him accountable for the civil monetary
penalty imposed against him. However, the judgment against
Kaley cannot be relieved under Rule 60(b)(5) because it does
not have a prospective effect. "Cook v. Birmingham
News, 618 F.2d 1149, 1152 (5th Cir. 1980) held that Rule
60(b)(5) can be applied only to judgments that are
prospective in effect." United States v. Evler,
778 F.Supp. 1553, 1557 (M.D. Fla. 1991). Gibbs v. Maxwell
House, then "established that, within the Eleventh
Circuit, the relief contemplated by a Rule 60(b)(5) motion is
relief from orders with prospective application, and that
judgments awarding current monetary damages for past
wrongdoings are properly considered retroactive, not
prospective in nature." Id. (citing Gibbs
v. Maxwell House, 738 F.2d 1153 (11th Cir. 1984));
see Gibbs. 738 F.2d at 1156 ("That [defendant]
remains bound by the dismissal is not a 'prospective
effect' within the meaning of Rule 60(b)(5) any more than
if [defendant] were continuing to feel the effects of a money
judgment against him."). As one court has explained:
Virtually every court order causes at least some
reverberations into the future, and has, in that literal
sense, some prospective effect; even a money judgment has
continuing consequences, most obviously until it is
satisfied, and thereafter as well inasmuch as everyone is
constrained by his or her net worth. That a court's
action has continuing consequences, however, does not
necessarily mean that it has 'prospective
application' for the purposes of Rule 60(b)(5).
Twelve John Does v. Dist. of Columbia, 841 F.2d
1133, 1138 (D.C. Cir. 1987).
civil monetary penalty falls within the category of money
judgments meant to remedy a past wrong, not the category of
judgments having a prospective effect. Further, as explained
in more detail below, there are no exceptional circumstances
requiring relief; Kaley has not shown "that unforeseen
conditions have produced such extreme and unexpected hardship
that the decree is oppressive." Eyler, 778
F.Supp. at 1556 (quoting United States v. City of Fort
Smith, 760 F.2d 231, 233 (8th Cir. 1985)).
Fed. R. Civ. P. 60(b)(6)-Other Reasons ...