United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on The Meyers Group, Inc.'s
(“TMG”) Motion for Reconsideration , and
Receiver Robert D. Terry's (the “Receiver”)
Motions for Settlement , .
September 18, 2012, the SEC filed its Complaint ,
asserting securities fraud claims against Defendants Angelo
A. Alleca (“Alleca”), Summit Wealth Management,
Inc (“Summit”), Summit Investment Fund, LP
(“SIF”), Asset Class Diversification Fund, LP
(“ACDF”) and Private Credit Opportunities Fund,
LLC (“PCOF” and together with SIF and ACDF, the
“Summit Funds”). The next day, the Court froze
Defendants' assets and enjoined Defendants from violating
the securities laws. (). On September 21, 2012, the Court
appointed Robert D. Terry as receiver for the estate of
Summit and the Summit Funds (the “Receivership
Entities.”) ( at 2).
6, 2017, the Receiver filed his original plan of distribution
(, as amended , the “Original Plan”),
proposing to distribute the receivership assets pursuant to
the “rising tide” methodology. Under this
[T]he Receiver will deduct the amount of a Claimant's
pre-receivership withdrawals after calculating the
investor's pro rata share of any distribution. If the
result is negative-meaning that the Claimant has already
received pre-receivership withdrawals in excess of his or her
calculated pro rata share of a distribution-that Claimant
will not participate in that distribution, although he or she
may participate in later distributions. This method preserves
assets for those Claimants who have received nothing thus far
and recognizes that some Claimants have already recovered a
substantial percentage of their investment.
( at 18); see Commodity Futures Trading Comm'n
v. Equity Fin. Grp., Inc., No. 04-cv-1512, 2005 WL
2143975, at *24 (D.N.J. Sept. 2, 2005) (discussing the rising
tide methodology). “If approved, after taking into
account any money received by investors prior to the
Receivership, this distribution [plan] will represent a
minimum recovery percentage among included Claimants of
[14.5%].” ( at 14;  at 3; [125.1] at 1). On
July 17, 2017, the Receiver filed minor amendments to his
Original Plan. ().
September 19, 2017, the Court held a hearing on the
Receiver's Original Plan. (). Only the Receiver and
his counsel attended the hearing. The Receiver told the Court
that his proposed Original Plan should be modified (the
“Modified Plan”) to ensure that claimants are
treated consistently. (Plan of Distribution Hearing
Transcript (Sept. 19, 2017) (“Tr.”) at 3).
Specifically, the Receiver sought to cancel his proposed
distributions to TMG and the Bank of North Georgia
Original Plan proposed distributing $123, 829.67 to TMG and
$28, 722.08 to BNG. ([125.1] at 6). TMG asserted a claim
based on a promissory note, dated April 21, 2010, in the
original principal amount of $1, 221, 582.00. (See
 at 25;  at 3). BNG asserted a claim based upon a
promissory note dated August 25, 2011, in the amount of $289,
843.46. (See  at 25;  at 3). Before the
Receiver was appointed, Defendants paid some, but not all, of
the money owed to TMG and BNG under the promissory notes.
They paid $407, 194.00, to TMG and $105, 160.20 to BNG (the
“Payments”). ([133 at 4-5). The Original Plan
reduced the value of TMG's and BNG's “allowed
claims”-that is, the amount from which they are
entitled to a 14.5% recovery-by the amount of the Payments.
([125.1] at 6). The Receiver represented at the hearing on
the Original Plan that in order to conform to his treatment
of other claimants, the Receiver concluded that the Payments
should be deemed “pre-receivership withdrawals”
rather than amounts by which the “allowed claims”
are reduced. The Receiver stated that, if the Payments
constitute pre-receivership withdrawals, TMG and BNG are not
entitled to any distributions because they previously
received more than 14.5% of the value of their promissory
notes. (Tr. at 3-4, 7-8, 10). The Receiver asked the Court to
approve the Original Plan except for the proposed
distributions to TMG and BNG.
September 21, 2017, the Court issued an order  (the
“September 21 Order”) granting the Receiver's
Motion to Approve Plan of Distribution but ordering the
Receiver to withhold distributions to TMG and BNG. The Court
further ordered that the Receiver file a formal motion to
modify the Original Plan to give TMG and BNG notice of the
proposed revised treatment of their claims and to give them
an opportunity to respond to the revision.
October 4, 2017, TMG filed its Motion for a Court Conference,
seeking (1) a stay of the September 21 Order to allow TMG
more time to object to the Modified Plan; (2) discovery prior
to objecting to the Modified Plan; (3) leave of court to file
an action against the Receiver for breach of fiduciary duty;
and (4) a court-ordered settlement conference. ().
October 5, 2017, the Receiver filed his Motion to Modify the
Distribution Plan (the “Modified Plan”). ().
In seeking Court approval of the Modified Plan, the Receiver
stated that a more equitable approach to TMG's and
BNG's distributions would be to calculate their allowed
claims as the amount of their original notes, as opposed to
the amount of their original notes, minus payments received
before the Receiver was appointed. Under this method BNG and
TMG would not be entitled to a distribution because both
claimants received an amount of pre-receivership payments in
excess of the rising tide percentage (14.5%) of the allowed
October 26, 2017, TMG filed its Opposition to the
Receiver's Motion to Modify the Plan. ().
November 16, 2017, the Court granted the Receiver's
Motion to Modify the Distribution Plan (the “November
16, 2017, Order”). (). The Court also denied
TMG's motion seeking a court conference, a stay of
distributions to other claimants, discovery from the
receiver, and leave to initiate an action against the
Receiver for breach of fiduciary duties. (Id.).
November 20, 2017, the Receiver filed a Motion for Settlement
seeking (1) approval of a proposed settlement of a disputed
claim for damages by the Receiver against Alexandria Capital,
LLC, (2) entry of a bar order, and (3) approval of a form of
notice related to the settlement and bar order. ().
November 24, 2017, TMG filed its Motion for Reconsideration
of the November 16, 2017, Order approving the Receiver's
November 30, 2017, the Receiver filed its Motion for
Settlement seeking approval of a proposed settlement of a
disputed claim made by BNG. ().
Motion for Reconsideration
for reconsideration should not be used to present the Court
with arguments already heard and dismissed, or to offer new
legal theories or evidence that could have been presented in
the previously-filed motion. See Arthur v. King, 500
F.3d 1335, 1343 (11th Cir. 2007); O'Neal v.
Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992);
Bryan v. Murphy, 246 F.Supp.2d 1256, 1259 (N.D.Ga.
2003); see also Jones v. S. Pan Servs., 450
Fed.Appx. 860, 863 (11th Cir. 2012) (“A motion to alter
or amend a judgment cannot be used to relitigate old matters,
raise arguments, or present evidence that could have been
raised prior to the entry of judgment.”); Pres.
Endangered Areas of Cobb's History, Inc. v. U.S. Army
Corps of Eng'rs, 916 F.Supp. 1557, 1560 (N.D.Ga.
1995), aff'd, 87 F.3d 1242 (11th Cir. 1996)
(“A motion for reconsideration is not an opportunity
for the moving party and their counsel to instruct the court
on how the court ‘could have done it better' the
first time.”). Whether to grant a motion for
reconsideration is within the sound discretion of the
district court. See Region 8 Forest Serv. Timber
Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th
Motion for Reconsideration reiterates the objections and
arguments it made in response to the Receiver's
modification of the Original Plan. The modification was made
for the reasons stated in the Court's November, 16, 2017,
Order. TMG opposes the Modified Plan's
“pooling” of funds, and argues that the assets of
the Summit Funds should be separated from those of Summit
Wealth Management, and trade claimants (such as TMG) should
be paid from the assets of Summit Wealth Management. TMG
again argues that the prior payments it received on the
amount owed to it should be subtracted from the total amount
owed and should not be subtracted from the rising tide theory
claim amount the Court calculated was payable to TMG. The
Court considered these same arguments in the November 16,
2017, Order. (See November 16, 2017, Order  at
13-14). TMG does not present the Court with any new evidence,
an intervening change in the law, or the need to correct
clear error or prevent manifest injustice that warrants
reconsideration. TMG was able to object to the Modified Plan
in its submission on the Modified Plan submitted by the
Receiver, and the Court considered TMG's arguments in
approving the Modified Plan in the November 16, 2017, Order.
That TMG disagrees with the Court's ruling in the
November 16, 2017, Order is not a basis for reconsideration.
TMG's Motion for Reconsideration is denied.
Motions for Settlement of Disputed Claims
district court has broad powers and wide discretion to
determine relief in an equity receivership.” S.E.C.
v. Elliott, 953 F.2d 1560, 1566 (11th Cir. 1992);
see also S.E.C. v. Kaleta, 530 Fed.Appx. 360, 362
(5th Cir. 2013). In determining whether to ...