United States District Court, D. South Carolina
Beattie B. Ashmore, In His Capacity as Court-Appointed Receiver for Ronnie Gene Wilson and Atlantic Bullion and Coin, Inc., Plaintiffs,
Lucile M. and Hewlett K. Sullivan, Jr., Defendants.
ORDER AND OPINION
Beattie B. Ashmore (“Plaintiff), in his capacity as
court-appointed receiver for Ronnie Gene Wilson
(“Wilson”) and Atlantic Bullion and Coin, Inc.
(“AB&C”), filed the instant action against
Defendants Lucile M. Sullivan and Hewlett K. Sullivan, Jr.
(together “Defendants”) to recover grossly
excessive payments received by Defendants as a return on
their investment in the Wilson-AB&C Ponzi
matter is before the court on Lucile M. Sullivan's Motion
to Reconsider Order Denying Defendants' Motion to Compel
(ECF No. 47). Specifically, Lucile M. Sullivan seeks
reconsideration of the Order that was entered by the court on
November 8, 2016 (the “November Order”), denying
Defendants' Motion to Compel (ECF No. 25). (ECF No. 44 at
5.) Plaintiff opposes Lucile M. Sullivan's Motion
asserting that it should be denied. (ECF No. 49 at 1.) For
the reasons set forth below, the court GRANTS IN PART Lucile
M. Sullivan's Motion to Reconsider.
FACTUAL AND PROCEDURAL BACKGROUND
is the court appointed Receiver in In Re: Receiver for
Ronnie Gene Wilson and Atlantic Bullion & Coin,
Inc., C/A No. 8:12-cv-02078-JMC, ECF No. 1 (D.S.C. July
25, 2012), a case related to the instant matter. Plaintiff
alleges that “[o]n August 24, 2001, Defendants made an
initial ‘investment' [in the Wilson-AB&C Ponzi
scheme] of $21, 750.00.” (ECF No. 1 at 4 ¶ 24.)
“Subsequently, Defendants made additional
‘investments' of $211, 350.00 between September 8,
2003 and February 3, 2009 for a total investment of $239,
100.00.” (Id. at ¶ 25.) Plaintiff further
alleges that “Defendants withdrew a total of $3, 448,
110.00 [from the Wilson-AB&C Ponzi scheme] between
September 2002 and February 2012 resulting in a profit of $3,
209, 010.00.” (Id. at ¶ 26.)
on his appointment as Receiver tasked with “locating,
managing, recouping, and distributing the assets of the
Wilson-AB&C investment scheme, ” Plaintiff
commenced the instant action against Defendants on February
6, 2015, asserting claims for fraudulent transfer (in
violation of the Statute of Elizabeth, SC Code Ann. §
27-23-10 (2014)) and unjust enrichment. (ECF No. 1 at 1
¶ 1 & 6 ¶ 38-7 ¶ 52.) On June 6, 2016,
Defendants filed a Motion to Compel (ECF No. 25) seeking
“[t]he contents of files kept by [Wilson] and
[AB&C] for those investors who filed a claim with the
Receiver.” (Id. at 3.) Plaintiff filed a
Response in Opposition (ECF No. 29) on June 23, 2016, to
which Defendants filed a Reply on July 5, 2016. (ECF No. 31.)
After the court entered the November Order, Lucile M.
Sullivan moved for reconsideration on December 6, 2016. (ECF
court has jurisdiction over this matter under 28 U.S.C.
§ 1331 pursuant to Plaintiff s allegation that the
Complaint “is so related to the In Re
Receiver, 8:12-CV-2078-JMC case and the underlying
criminal case, United States v. Wilson, et al,
8:12-cr-00320[, ]” cases in which the court has
jurisdiction, “that it forms part of the underlying
case or controversy.” (ECF No. 1 at 1 ¶ 3.) The
court may properly hear Plaintiff's state law claims for
fraudulent transfer and unjust enrichment based on
supplemental jurisdiction since these claims “are so
related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy 28 U.S.C. § 1367(a).
LEGAL STANDARD AND ANALYSIS
Motion to Reconsider, Lucile M. Sullivan did not identify the
basis for her request. The court agrees with Plaintiff that
54(b) provides the only appropriate avenue for the relief
Lucile M. Sullivan seeks at this time. (See ECF No.
49 at 2-3.)
Applicable Standard under Rule 54(b)
54(b) provides the following:
When an action presents more than one claim for
relief-whether as a claim, counterclaim, crossclaim, or
third-party claim-or when multiple parties are involved, the
court may direct entry of a final judgment as to one or more,
but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay.
Otherwise, any order or other decision, however designated,
that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised
at any time before the entry of a judgment adjudicating all
the claims and all the parties' rights and liabilities.
Id. Under Rule 54(b), the “district court
retains the power to reconsider and modify its interlocutory
judgments . . . at any time prior to final judgment when such
is warranted.” Am Canoe Ass'n v. Murphy Farms,
Inc., 326 F.3d 505, 514-15 (4th Cir. 2003); see also
Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460
U.S. 1, 12 (1983) (noting that “every order short of a
final decree is subject to reopening at the discretion of the
district judge”). The Fourth Circuit has offered little
guidance on the standard for evaluating a Rule 54(b) motion,
but has held motions under Rule 54(b) are “not subject
to the strict standards applicable to motions for
reconsideration of a final judgment.” Am. Canoe
Ass'n, 326 F.3d at 514; see also Fayetteville
Investors v. Commercial Builders, Inc., 936 F.2d 1462,
1472 (4th Cir. 1991) (the Court found it “unnecessary
to thoroughly express our views on the interplay of Rules 60,
59, and Rule 54”). In this regard, district courts in
the Fourth Circuit, in analyzing the merits of a Rule 54
motion, look to the standards of motions under Rule 59 for
guidance. See U.S. Home Corp. v. Settlers Crossing,
LLC, C/A No. DKC 08-1863, 2012 WL 5193835, at *2 (D. Md.
Oct. 18, 2012); R.E. Goodson Constr. Co., Inc. v.
Int'l Paper Co., C/A No. 4:02-4184-RBH, 2006 WL
1677136, at *1 (D.S.C. June 14, 2006); Akeva L.L.C. v.
Adidas Am., Inc., 385 F.Supp.2d 559, 565-66 (M.D. N.C.
2005). Therefore, reconsideration under Rule 54 is
appropriate on the following grounds: (1) to follow an
intervening change in controlling law; (2) on account of new
evidence; or (3) to correct a clear error of law or prevent
manifest injustice. Beyond Sys., Inc. v. Kraft Foods,
Inc., C/A No. PJM-08-409, 2010 WL 3059344, at *2 (D. Md.
Aug. 4, 2010) (“This three-part test shares the same
three elements as the Fourth Circuit's test for amending
an earlier judgment under Rule 59(e), but the elements are
not applied with the same force when analyzing an
interlocutory order.”) (citing Am. Canoe
Ass'n, 326 F.3d at 514).