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Ashmore v. Lucile M.

United States District Court, D. South Carolina

February 1, 2017

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.


         Plaintiff 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 scheme.[1]

         This 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.


         Plaintiff 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.)

         Based 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 No. 47.)


         The 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).


         In her Motion to Reconsider, Lucile M. Sullivan did not identify the basis for her request. The court agrees with Plaintiff that Rule[2] 54(b) provides the only appropriate avenue for the relief Lucile M. Sullivan seeks at this time. (See ECF No. 49 at 2-3.)

         A. Applicable Standard under Rule 54(b)

         Rule 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).

         B. The ...

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