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Commission v. Spencer Pharmaceutical Inc.

United States District Court, D. Massachusetts

November 17, 2014



INDIRA TALWANI, District Judge.

On the eve of trial, Defendant Jean-Francois Amyot ("Amyot") has filed a Motion Requesting a Stay of the Proceedings [#163]. Amyot requests a stay to allow him to take depositions and reconsideration of the court's July 11, 2014 order denying his request for appointment of counsel. The motion is untimely and without merit and is DENIED.

I. Background

A. The Complaint and Initial Proceedings

Plaintiff Securities and Exchange Commission ("SEC") commenced this civil enforcement action in December 2012. See Compl. It named as defendants: Spencer Pharmaceutical, Inc.; IAB Media, Inc. ("IAB Media"); Hilbroy Advisory, Inc. ("Hilbroy"); Maximilien Arella ("Arella"); Ian Morrice ("Morrice"); and Amyot.[1] See id. ΒΆΒΆ 10-15. On April 30, 2013, the court set the case on the running trial list as of May 2014. See Electronic Clerk's Notes [#12].

B. Proceedings While Amyot Was Represented by Counsel

1. Responsive Pleadings

In May 2013, counsel appeared for Amyot and Defendants Hilbroy and IAB Media and moved to dismiss the complaint. See Notice Appearance [#14]; Def.'s Mot. Dismiss Lack Jurisdiction [#18]; Def.'s Mot. Dismiss Based Forum Non Conveniens [#20]; Def.'s Mot. Dismiss Failure State Claim [#22]. The motions to dismiss were denied[2] on July 15, 2013. See Electronic Clerk's Notes [#47]. On September 6, 2013, six weeks after his answer was originally due, Amyot answered the complaint. See Def.'s Answer [#48].

2. Written Discovery, Letters Rogatory, Deposition Scheduling and Sanctions

Plaintiff SEC served document requests on September 9, 2013. See Pl.'s Mem. Supp. Mot. Compel Production Documents & Issue Sanctions, Ex. 3, pp. 2-3 [#69] [hereinafter Pl.s' Mem. Compel]. In an October 17, 2013 letter, Plaintiff SEC requested that Defendants provide a response to Plaintiff SEC's document request by not later than October 21, 2013. See id. at Ex. 3, p. 7. On November 5, 2014, Amyot's counsel responded that Defendants had no responsive documents in their custody or control because all such documents had been seized by Quebec's securities regulator, the Quebec Autorite des Marches Financiers ("AMF"). See id. at Ex. 3, pp. 9-10. Amyot finally responded to Plaintiff SEC's document request on November 12, 2013. See id. at Ex. 3, pp. 12-13; id. at Ex. 4. Although this response purported on its cover page to be from Amyot, each request was answered only in the name of IAB Media. See id. at Ex. 4.

On January 21, 2014, the parties, through counsel, filed a joint motion to modify the case schedule. See Joint Mot. Modify Case Schedule. The parties requested that the case schedule be extended for five months to allow the parties sufficient time to continue to conduct discovery. See id. at 1. As cause for this extension, the parties explained that they were "engaged in discussions about the protocol that will apply to depositions... the vast majority of which will take place abroad" and that they had "been moving forward with the steps necessary to take depositions in foreign jurisdictions, such as the preparation of letters rogatory addressed to courts in Canada, " but that the process "has been time-intensive." Id. at 4. On February 7, 2014, the court allowed the joint motion (thereby extending the trial date to October 2014), but specifically noted that "[t]here shall be no further continuances." See Electronic Order [#54].

In February and March 2014, Plaintiff SEC submitted unopposed motions for issuance of letters rogatory to Canada "to obtain evidence necessary for the prosecution and trial of this case, " including discovery from ten individuals located in Canada. See Mot. Issuance Letters Rogatory [#56]; Second Mot. Issuance Letters Rogatory [#59]; Third Mot. Issuance Letters Rogatory [#62]. Plaintiff SEC explained that it sought the deposition testimony of witnesses resident in Canada in part because that testimony was "necessary for the trial of this case and... not otherwise obtainable by this Court at trial through this Court's compulsory process." See Third Mot. Issuance Letters Rogatory. On March 7, 2014, the court issued letters rogatory to the Provinces of Nova Scotia and Quebec, Canada. See Letter Rogatory [#65]; Letter Rogatory [#66]. Despite being afforded the additional time to conduct foreign discovery and despite being represented by counsel, Amyot did not seek letters rogatory.

On March 7, 2014, Plaintiff SEC served on Amyot its Second Requests for the Production of Documents. See Pl.'s Mem. Compel at 1. On May 7, 2014, Plaintiff SEC filed its motion to compel the production of documents and to issue sanctions. See Pl.s' Mot. Compel Produc. Docs. & Issue Sanctions [#68]. Plaintiff SEC explained that the bulk of depositions were set to take place in late May and June 2014, that Amyot's responses to Plaintiff SEC's second document requests were more than four weeks overdue, that Amyot had not produced a single responsive document, and that Amyot's counsel verbally reported that "he is still trying to work with his clients to determine whether responsive documents exist, " without giving any reason for why the search had taken so long. See Pl.'s Mem. Compel at 1. ...

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