IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH,
CENTRAL DIVISION
Case No.: 2:16-cv-00832-JNP
SECURITIES AND EXCHANGE COMMISSION, PLAINTIFF,
v. TRAFFIC MONSOON, LLC,
a Utah Limited Liability Company and CHARLES D. SCOVILLE, an individual, DEFENDANTS.
PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT JUDGMENT AGAINST DEFENDANT SCOVILLE
AND MEMORANDUM IN SUPPORT
The Court having reviewed the Securities and Exchange Commission’s (the “Commission”) Motion for Default Judgment against Defendant Charles Scoville, and good cause appearing makes the following findings of fact:
FINDINGS OF FACTS
1. The Commission filed a Complaint against Defendant on July 26, 2016.
2. On August 22, 2016, Defendant Scoville’s then counsel waived service of the Complaint.
3. Defendant’s answer or other responsive pleading was due on October 21, 2016.
4. Defendant Scoville requested, and the Commission agree to, an extension of time to answer until after the conclusion of the Preliminary Injunction proceedings.
5. On March 28, 2017, the Court granted the Commission’s Motion and entered the Preliminary Injunction.
6. Defendant Scoville subsequently appealed the decision to the U.S. Court of Appeals for the Tenth Circuit.
7. On January 24, 2019, the Tenth Circuit affirmed this Court’s Order.
SEC v. Scoville, 913 F.3d 1204 (10th Cir. 2019).
8. Defendant Scoville subsequently filed a petition for writ of certiorari with the U.S. Supreme Court, which was denied on November 4, 2019.
9. On December 9, 2019, the Tenth Circuit issued its mandate, affirming the decision of this Court.
10. On December 17, 2019, counsel for Defendant Scoville filed a motion to withdraw as counsel.
11. On December 23, 2019, the Court granted the motion to withdraw.
12. The Court ordered that Defendant Scoville had until February 3, 2020 to answer the Complaint and that “[i]f Mr. Scoville neglects to answer or request an extension by February 3, 2020 he may be subject to a default judgment pursuant to Rule 55 of the Federal Rules of Civil Procedure.”
13. On April 21, 2020, the Clerk of the Court entered a Default Certificate against Defendant Scoville after he failed to answer the Complaint.
14. No stipulation for an extension of time was entered into between the Commission and Defendant Scoville allowing further time in which to respond to the Complaint.
15. Scoville is not an infant or incompetent person, nor is he in the military service of the United States. It appearing that the Court has personal jurisdiction over Defendant Scoville, subject matter jurisdiction over the Commission’s claims, and there being no just reason for delay:
I. IT IS ORDERED, ADJUDGED, AND DECREED that Defendant is hereby prohibited from soliciting, accepting, or depositing any monies obtained from actual or prospective investors, individuals, customers, companies, and/or entities, through the Internet or other electronic means for Traffic Monsoon or a business model substantially similar to Traffic Monsoon’s sale of AdPacks.
II. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, as provided in Federal Rule of Civil Procedure 65(d)(2), the foregoing paragraph also binds the following who receive actual notice of this Judgment by personal service or otherwise: (a) Defendant’s officers, agents, servants, employees, and attorneys, when acting in such capacities on behalf of Defendant; and (b) other persons who are in active concert or participation with Defendant or with anyone described in (a).
III. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant is liable for disgorgement of $2,426,749, representing profits gained as a result of the conduct alleged in the Complaint, together with prejudgment interest thereon in the amount of $110,893.93, for a total of $2,537,642.93. Defendant shall satisfy his obligation by paying the total of $2,537,642.93 to the Securities and Exchange Commission within 14 days after entry of this Judgment.
Defendant may transmit payment electronically to the Commission, which will provide detailed ACH transfer/Fedwire instructions upon request.
Payment may also be made directly from a bank account via Pay.gov through the SEC website at
http://www.sec.gov/about/offices/ofm.htm. Defendant may also pay by certified check, bank cashier’s check, or United States postal money order payable to the Securities and Exchange Commission, which shall be delivered or mailed to Enterprise Services Center Accounts Receivable Branch 6500 South MacArthur Boulevard Oklahoma City, OK 73169 and shall be accompanied by a letter identifying the case title, civil action number, and name of this Court; [Defendant’s name] as a defendant in this action; and specifying that payment is made pursuant to this Final Judgment.
Defendant shall simultaneously transmit photocopies of evidence of payment and case identifying information to the Commission’s counsel in this action. By making this payment, Defendant relinquishes all legal and equitable right, title, and interest in such funds and no part of the funds shall be returned to Defendant.
The Commission shall hold the funds (collectively, the “Fund”) and may propose a plan to distribute the Fund subject to the Court’s approval. The Court shall retain jurisdiction over the administration of any distribution of the Fund.
If the Commission staff determines that the Fund will not be distributed, the Commission shall send the funds paid pursuant to this Final Judgment to the United States Treasury.
The Commission may enforce the Court’s judgment for disgorgement and prejudgment interest by moving for civil contempt (and/or through other collection procedures authorized by law) at any time after 30 days following entry of this Final Judgment.
Defendant shall pay post judgment interest on any delinquent amounts pursuant to 28 U.S.C. § 1961.
IV. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant shall pay a
civil penalty in the amount of $_____________ pursuant to Section 20(d) of the Securities Act and Section 21(d)(3) of the Exchange Act. Defendant shall make this payment within 14 days after entry of this Default Judgment by certified check, bank cashier's check, or United States postal money order payable to the Securities and Exchange Commission. The payment shall be delivered or mailed to the Office of Financial Management, Securities and Exchange Commission, 100 F Street, NE, Stop 6042, Washington DC 20549, and shall be accompanied by a letter identifying Charles D. Scoville as a defendant in this action; setting forth the title and civil action number of this action and the name of this Court; and specifying that payment is made pursuant to this Default Judgment. Defendant shall pay post-judgment interest on any delinquent amounts pursuant to 28 USC § 1961. The Commission shall remit the funds paid pursuant to this paragraph to the United States Treasury. V.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, for purposes of exceptions to discharge set forth in Section 523 of the Bankruptcy Code, 11 U.S.C. §523, the allegations in the complaint are true and admitted by Defendant, and further, any debt for disgorgement, prejudgment interest, civil penalty or other amounts due by Defendant under this Judgment or any other judgment, order, consent order, decree or settlement agreement entered in connection with this proceeding, is a debt for the violation by Defendant of the federal securities laws or any regulation or order issued under such laws, as set forth in Section 523(a)(19) of the Bankruptcy Code, 11 U.S.C. §523(a)(19).
VI. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court shall retain jurisdiction of this matter for the purposes of enforcing the terms of this Judgment.
VII. There being no just reason for delay, pursuant to Rule 54(b) of the Federal Rules of Civil
Procedure, the Clerk is ordered to enter this Final Judgment forthwith and without further notice.
Payment may also be made directly from a bank account via Pay.gov through the SEC website at
http://www.sec.gov/about/offices/ofm.htm. Defendant may also pay by certified check, bank cashier’s check, or United States postal money order payable to the Securities and Exchange Commission, which shall be delivered or mailed to Enterprise Services Center Accounts Receivable Branch 6500 South MacArthur Boulevard Oklahoma City, OK 73169 and shall be accompanied by a letter identifying the case title, civil action number, and name of this Court; [Defendant’s name] as a defendant in this action; and specifying that payment is made pursuant to this Final Judgment.
Defendant shall simultaneously transmit photocopies of evidence of payment and case identifying information to the Commission’s counsel in this action. By making this payment, Defendant relinquishes all legal and equitable right, title, and interest in such funds and no part of the funds shall be returned to Defendant.
The Commission shall hold the funds (collectively, the “Fund”) and may propose a plan to distribute the Fund subject to the Court’s approval. The Court shall retain jurisdiction over the administration of any distribution of the Fund.
If the Commission staff determines that the Fund will not be distributed, the Commission shall send the funds paid pursuant to this Final Judgment to the United States Treasury.
The Commission may enforce the Court’s judgment for disgorgement and prejudgment interest by moving for civil contempt (and/or through other collection procedures authorized by law) at any time after 30 days following entry of this Final Judgment.
Defendant shall pay post judgment interest on any delinquent amounts pursuant to 28 U.S.C. § 1961.
IV. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant shall pay a
civil penalty in the amount of $_____________ pursuant to Section 20(d) of the Securities Act and Section 21(d)(3) of the Exchange Act. Defendant shall make this payment within 14 days after entry of this Default Judgment by certified check, bank cashier's check, or United States postal money order payable to the Securities and Exchange Commission. The payment shall be delivered or mailed to the Office of Financial Management, Securities and Exchange Commission, 100 F Street, NE, Stop 6042, Washington DC 20549, and shall be accompanied by a letter identifying Charles D. Scoville as a defendant in this action; setting forth the title and civil action number of this action and the name of this Court; and specifying that payment is made pursuant to this Default Judgment. Defendant shall pay post-judgment interest on any delinquent amounts pursuant to 28 USC § 1961. The Commission shall remit the funds paid pursuant to this paragraph to the United States Treasury. V.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, for purposes of exceptions to discharge set forth in Section 523 of the Bankruptcy Code, 11 U.S.C. §523, the allegations in the complaint are true and admitted by Defendant, and further, any debt for disgorgement, prejudgment interest, civil penalty or other amounts due by Defendant under this Judgment or any other judgment, order, consent order, decree or settlement agreement entered in connection with this proceeding, is a debt for the violation by Defendant of the federal securities laws or any regulation or order issued under such laws, as set forth in Section 523(a)(19) of the Bankruptcy Code, 11 U.S.C. §523(a)(19).
VI. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court shall retain jurisdiction of this matter for the purposes of enforcing the terms of this Judgment.
VII. There being no just reason for delay, pursuant to Rule 54(b) of the Federal Rules of Civil
Procedure, the Clerk is ordered to enter this Final Judgment forthwith and without further notice.
We are still awaiting the Courts entry of this Judgement...watch this space!
