No. 1:18-MC-00190-CMA D. Colo.
HOLMES, BACHARACH, and McHUGH, Circuit Judges.
ORDER AND JUDGMENT [*]
Carolyn B. McHugh Circuit Judge.
W. Harkins and Jason M. White (together, Appellants),
proceeding pro se, appeal from the district court's order
compelling them to comply with subpoenas issued by the
Securities and Exchange Commission (SEC). The district
court's order is a final decision that affords us
jurisdiction under 28 U.S.C. § 1291. E.E.O.C. v.
Dillon Cos., 310 F.3d 1271, 1272 (10th Cir. 2002). We
are founding principals and officers of Hartman Wright Group,
LLC (HWG). They, as well as HWG, are the subjects of an SEC
investigation. Appellants failed to comply with testimonial
subpoenas issued by the SEC, causing the SEC to file in the
district court an application to compel
district court set a show-cause hearing and directed
Appellants to respond to the SEC's application within
seven days after receiving notice. The order further stated
that "[i]f a response is not filed within the prescribed
time, the Court may treat the Application as conceded."
R., Vol. II at 6. The district court then granted
Appellants' motion for an extension, setting a November
13, 2018, deadline for the response. On November 13,
Appellants mailed their documents, which the district court
received and filed on November 15. The SEC filed a reply on
after the SEC filed its reply, the district court issued its
order compelling Appellants to comply with the subpoenas. It
held that the SEC had satisfied the four requirements for a
court to enforce an administrative agency investigative
subpoena. See R., Vol. II at 215-16 (citing
United States v. Powell, 379 U.S. 48, 57-58 (1964)).
The district court further stated:
Moreover, in this Court's order granting the SEC's
application for an order to show cause, the Court indicated
that Respondents were required to file a timely response to
the SEC's motion. Additionally, the Court advised that if
a response is not filed within the prescribed time, the Court
may treat the Application as conceded. After this Court
granted Respondents an extension of time to respond,
Respondents still failed to enter a timely submission.
Respondent[s'] response was due on 11/13/2018. However,
Respondents did not submit any filings until 11/15/2018.
Therefore, in light of Respondents' untimely response and
the evidence submitted by the SEC, this Court finds that
Respondents should be compelled to comply with the
Id. at 217-18 (record citations and internal
quotation marks omitted). It later summarily denied
Appellants' motion for reconsideration.
review for abuse of discretion both the order compelling
compliance and the order denying reconsideration. Walters
v. Wal-Mart Stores, Inc., 703 F.3d 1167, 1172 (10th Cir.
2013) (Fed. R. Civ. P. 59(e) and 60(b) motions); Dillon
Cos., 310 F.3d at 1274 (order regarding administrative
subpoenas). "An abuse of discretion occurs when the
district court bases its ruling on an erroneous conclusion of
law or relies on clearly erroneous fact findings."
Walters, 703 F.3d at 1172 (internal quotation marks
this court, Appellants do not challenge the requirements for
enforcement that the district court identified or the
court's reasons for determining that the SEC satisfied
those requirements. Instead, they reiterate the arguments
they made in their motion for reconsideration-that the
district court erroneously disregarded their response as
untimely and issued its order prematurely because they did
not have time to file a sur-reply. Appellants also request an
award of costs.
asserting that their filings were timely, Appellants rely on
Fed.R.Civ.P. 6(d), which provides, "[w]hen a party may
or must act within a specified time after being served and
service is made under Rule 5(b)(2)(C) (mail), (D) (leaving
with the clerk), or (F) (other means consented to), 3 days
are added after the period would otherwise expire under Rule
6(a)." Appellants were not permitted to use the
court's electronic filing system and were served by mail.
Apparently this ...