          Case: 13-11804   Date Filed: 07/18/2016   Page: 1 of 13




                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-11804
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:08-cv-00829-MSS-KRS

SECURITIES & EXCHANGE COMMISSION,

                                                            Plaintiff-Appellee,

                                 versus

NORTH AMERICAN CLEARING, INC., et al.,

                                                                    Defendants,

RICHARD L. GOBLE,

                                                         Defendant-Appellant.

                      ________________________

                            No. 14-15826
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:08-cv-00829-MSS-KRS

SECURITIES AND EXCHANGE COMMISSION,
          Case: 13-11804   Date Filed: 07/18/2016    Page: 2 of 13


                                                              Plaintiff-Appellee,

SECURITIES INVESTOR PROTECTION CORPORATION,

                                                              Movant-Appellee,

                                 versus

NORTH AMERICAN CLEARING, INC., et al.,

                                                                     Defendants,

RICHARD L. GOBLE,

                                                           Defendant-Appellant.


                      ________________________

                            No. 15-10599
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:08-cv-00829-MSS-KRS

SECURITIES AND EXCHANGE COMMISSION,

                                                              Plaintiff-Appellee,

PETER J. ANDERSON,
SUTHERLAND ASBILL & BRENNAN, LLP,
KEITH JERROD BARNETT,
MICHAEL K. FREEDMAN,
OLGA GRENBERG,
                                                    Interested Parties-Appellees,

SECURITIES INVESTOR PROTECTION CORPORATION,

                                                                     Intervenor,


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                                 versus

NORTH AMERICAN CLEARING, INC., et al.,

                                                                    Defendants,

RICHARD L. GOBLE,

                                                         Defendant-Appellant.

                      ________________________

                            No. 15-10937
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:08-cv-00829-MSS-KRS

SECURITIES AND EXCHANGE COMMISSION,

                                                              Plaintiff-Appellee

                                 versus

NORTH AMERICAN CLEARING, INC., et al.,

                                                                    Defendants,

RICHARD L. GOBLE,

                                                         Defendant-Appellant.
                      ________________________

              Appeals from the United States District Court
                   for the Middle District of Florida
                     ________________________

                             (July 18, 2016)



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Before HULL, MARCUS, and ANDERSON, Circuit Judges.

PER CURIAM:

      In this consolidated appeal, Richard L. Goble appeals the district court’s

entry of a new permanent injunction, the denial of his second Fed. R. Civ. P. 60(b)

motion for relief from the new injunction, the denial of his Rule 60(b) motions for

relief from a receivership order and a protective decree under the Securities

Investor Protection Act (“SIPA”), 15 U.S.C. §§ 78aaa et seq., and the denials of his

renewed motion for leave to sue under the Barton1 doctrine and his motion for

reconsideration in the Securities Exchange Commission’s (“SEC”) civil

enforcement action alleging violations of the Securities Exchange Act of 1934

(“Exchange Act”). On appeal, Goble argues that the district court abused its

discretion in issuing a new permanent injunction. He also asserts that the district

court abused its discretion in denying his second Rule 60(b) motion for relief from

the new injunction. Additionally, Goble contends that the district court abused its

discretion by denying his Rule 60(b) motions for relief from the receivership order

and the SIPA protective decree. Finally, he argues that the district court abused its

discretion by denying his renewed Barton motion and his motion for

reconsideration of the denial of the renewed Barton motion.



      1
             Barton v. Barbour, 104 U.S. 126, 26 L. Ed. 672 (1881).


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                                           I.

      We review a district court’s grant of injunctive relief for abuse of discretion

and will affirm unless the district court made a clear error of judgment.

SunAmerica Corp. v. Sun Life Assurance Co. of Canada, 77 F.3d 1325, 1333 (11th

Cir. 1996). In order to demonstrate entitlement to injunctive relief, the SEC must

demonstrate “(1) a prima facie case of previous violations of federal securities

laws, and (2) a reasonable likelihood that the wrong will be repeated.” SEC v.

Calvo, 378 F.3d 1211, 1216 (11th Cir. 2004). Factors that courts consider to

determine whether there is a reasonable likelihood that the wrong will be repeated

include:

      the egregiousness of the defendant’s actions, the isolated or recurrent
      nature of the infraction, the degree of scienter involved, the sincerity
      of the defendant’s assurances against future violations, the
      defendant’s recognition of the wrongful nature of the conduct, and the
      likelihood that the defendant’s occupation will present opportunities
      for future violations.

Id. (quotation omitted).

      Rule 65(d) provides that “[e]very order granting an injunction . . . must . . .

describe in reasonable detail . . . the act or acts restrained or required.” Fed. R.

Civ. P. 65(d). An injunction must be written so that those enjoined will know

exactly what conduct the court has required or prohibited. Fla. Ass’n of Rehab.

Facilities, Inc. v. State of Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208,

1223 (11th Cir. 2000). As such, “[i]t is well-established in this circuit that an
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injunction demanding that a party do nothing more specific than obey the law is

impermissible.” Elend v. Basham, 471 F.3d 1199, 1209 (11th Cir. 2006)

(quotation omitted). However, we have acknowledged that “a broad, but properly

drafted injunction, which largely uses the statutory or regulatory language may

satisfy the specificity requirement of Rule 65(d) so long as it clearly lets the

defendant know what he is ordered to do or not do.” SEC v. Goble, 682 F.3d 934,

952 (11th Cir. 2012). Furthermore, we have recognized that §§ 15(c)(3) and 17(a)

and Rules 15c3-3 and 17a-3 thereunder are not vague because the rules set forth

specific compliance criteria. Id. at 951.

      The district court did not abuse its discretion by granting the SEC’s motion

for a new permanent injunction that is based on Goble’s violation of Rule 15c3-3,

the Customer Protection Rule (requiring a Reserve Account for the protection of

the broker’s customers), and his violation of Rule 17a-3 (requiring certain specific

record-keeping). See SunAmerica Corp., 77 F.3d at 1333. The SEC made an

ample demonstration of previous violations of §§ 15(c)(3) and 17(a) of the

Exchange Act. See Calvo, 378 F.3d at 1216. As to whether there is a reasonable

likelihood that the wrong will be repeated, the district court considered the

egregiousness of Goble’s actions, the isolated or recurrent nature of the infraction,

the degree of scienter involved, and Goble’s recognition of the wrongful nature of

his conduct. Our prior determination that Goble’s conduct did not violate § 10(b)


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of the Exchange Act did not affect the district court’s analysis of these factors

relied on by the district court in that the grant of injunctive relief. See Goble, 682

F.3d at 943-46; see also SunAmerica Corp., 77 F.3d at 1333. Indeed, we expressly

acknowledged the violations of the Customer Protection Rule, Rule 15c3-3, and

the books and records provision, Rule 17a-3. Goble, 682 F.3d at 946-47.

Moreover, unlike the obey-the-law injunction which we set aside in Goble, 682

F.3d at 952, the new injunction complied with Rule 65(d) because it specifically

described the acts required and restrained. See Fed. R. Civ. P. 65(d).

                                          II.

      We generally only review the denial of a Rule 60(b) motion for an abuse of

discretion. Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co., 198 F.3d 1332, 1338

(11th Cir. 1999). To demonstrate an abuse of discretion, the appellant “must

demonstrate a justification so compelling that the court was required to vacate its

order.” Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993)

(quotation omitted). We generally construe pro se briefs liberally. See Timson v.

Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

      Rule 60(b)(2) allows a court to grant relief from a final judgment due to

newly discovered evidence which, by due diligence, could not have been

discovered in time to move for a new trial under Rule 59(b). Fed. R. Civ. P.

60(b)(2). The moving party must meet the following five-part test: (1) the


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evidence must be newly discovered since the trial; (2) the movant used due

diligence to discover the new evidence; (3) the evidence is not merely cumulative

or impeaching; (4) the evidence is material; and (5) the evidence is such that a new

trial would probably produce a new result. Toole v. Baxter Healthcare Corp., 235

F.3d 1307, 1316 (11th Cir. 2000).

        The time requirement for the filing of a Rule 60(b) motion allows for a

filing within a “reasonable time,” or for reasons in Rule 60(b)(1), (2), and (3),

within a year of judgment. Fed. R. Civ. P. 60(c)(1). Importantly, “the fact that the

rule itself imposes different time limits on motions under Rule 60(b)(6) and

60(b)(1)-(3), has led to the conclusion that the grounds specified under the first

five subsections will not justify relief under subsection (6).” Seven Elves, Inc. v.

Eskenazi, 635 F.2d 396, 402 n.3 (5th Cir. Unit A Jan. 1981). 2 In other words,

relief under Rule 60(b)(6) applies only to “cases that do not fall into any of the

other categories listed in parts (1)-(5),” United States v. Real Prop. & Residence

Located at Route 1, Box 111, Firetower Rd., Semmes, Mobile Cnty., Ala., 920 F.2d

788, 791 (11th Cir. 1991).

       The district court did not abuse its discretion by denying Goble’s second

Rule 60(b) motion for relief from the new permanent injunction. See Am. Bankers

2
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), this Court
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.


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Ins. Co. of Fla., 198 F.3d at 1338. The court properly determined that Goble’s

motion was untimely filed. In the motion, Goble referred to the bankruptcy court’s

ruling and the evidence that supported the ruling as new evidence, cited Rule

60(b)(2), and discussed at length the factors for relief based on newly discovered

evidence under Rule 60(b)(2). Although pro se filings should be liberally

construed, the district court could not construe Goble’s motion as a motion for

Rule 60(b)(6) relief because Rule 60(b)(2) provided coverage for his claim. See

Timson, 518 F.3d at 874; see also Real Prop., 920 F.2d at 791. Because Goble’s

motion was filed for the reasons set out in Rule 60(b)(2), he was required to file it

within one year of the injunction. See Fed. R. Civ. P. 60(c)(1). However, the

district court issued the injunction in April 2013, and Goble did not file the instant

motion until January 2015. 3

       Similarly, the district court did not abuse its discretion by denying Goble’s

Rule 60(b) motions for relief from the receivership order and SIPA protective

decree because the motions were untimely filed. See Am. Bankers Ins. Co. of Fla.,

198 F.3d at 1338. In the motions, Goble referred to new evidence, cited Rule

60(b)(2), and discussed at length the factors for relief based on newly discovered

evidence under Rule 60(b)(2). The district court could not construe Goble’s


3
       Moreover, the evidence concerning the financial status of Goble’s own company, upon
which he bases his Rule 60(b) motion, could not be new evidence, previously unavailable to
Goble.
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motions as Rule 60(b)(6) motions because Rule 60(b)(2) provided coverage for his

claims. See Real Prop., 920 F.2d at 791. Because Goble’s motions were filed for

the reasons set out in Rule 60(b)(2), he was required to file it within one year of the

issuance of the challenged orders. See Fed. R. Civ. P. 60(c)(1). However, the

district court appointed a receiver in May 2008, and it entered the protective decree

in July 2008, but Goble did not file the instant motions until September and

October 2014.

                                                III.

      Although we have never determined the standard of review for a challenge

to the denial of a Barton motion, other Circuits that have considered the issue

review a lower court’s ruling on a Barton motion for an abuse of discretion. See In

re McKenzie, 716 F.3d 404, 422 (6th Cir. 2013); In re VistaCare Grp., LLC, 678

F.3d 218, 224 (3d Cir. 2012); In re Linton, 136 F.3d 544, 546 (7th Cir. 1998); In re

Kashani, 190 B.R. 875, 886 (9th Cir. BAP 1995); In re Beck Indus., Inc., 725 F.2d

880, 889 (2d Cir. 1984).

       “It is a general rule that before suit is brought against a receiver[,] leave of

the court by which he was appointed must be obtained.” Barton, 104 U.S. at 128.

We have explained that “[w]ithout the requirement . . . , trusteeship will become a

more irksome duty, and so it will be harder for courts to find competent people to

appoint as trustees. Trustees will have to pay higher malpractice premiums, and


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this will make the administration of the bankruptcy laws more expensive.” Carter

v. Rodgers, 220 F.3d 1249, 1252-53 (11th Cir. 2000) (quoting In re Linton, 136

F.3d at 545). We have included attorneys and investigators hired by a trustee as

among those actors who cannot be sued without the plaintiff first obtaining leave

of the bankruptcy court. Lawrence v. Goldberg, 573 F.3d 1265, 1269-70 (11th Cir.

2009).

      In Barton, the Supreme Court recognized that the doctrine does not apply to

acts a trustee performs in excess of his authority. Barton, 104 U.S. at 134. We

have held that “court-appointed receivers . . . enjoy judicial immunity for acts

within the scope of their authority . . . [which] extends to carrying out faithfully

and carefully the orders of the appointing judge,” and that, by analogy,

court-appointed bankruptcy trustees are entitled to absolute

quasi-judicial immunity where they act “under the supervision and subject to the

orders of the bankruptcy judge.” Prop. Mgmt. & Invs., Inc. v. Lewis, 752 F.2d 599,

602 (11th Cir. 1985) (holding that a receiver was immune from a suit alleging

defamation, conversion, and embezzlement arising out of the course of

administering the receivership); Boullion v. McClanahan, 639 F.2d 213, 214 (5th

Cir. Unit A Mar. 1981). To afford protection, such orders must be facially valid.

Roland v. Phillips, 19 F.3d 552, 555 (11th Cir. 1994). “‘Facially valid’ does not




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mean ‘lawful.’ An erroneous order can be valid” for purposes of immunity. Id. at

556 (citation omitted).

      There is also a statutory exception to the Barton doctrine for suits based on

acts committed in “carrying on the business connected with” the bankruptcy estate.

28 U.S.C. § 959(a). We have noted that this exception is limited and the common

situation in which it applies is a negligence claim in a slip-and-fall case. Carter,

220 F.3d at 1254. The exception does not apply where the acts complained of

were either aspects of or necessarily incident to the administration or liquidation of

the bankrupt estate. Id.

      We review the district court’s denial of a motion to alter or amend a

judgment pursuant to Rule 59 for abuse of discretion. Arthur v. King, 500 F.3d

1335, 1343 (11th Cir. 2007). The only grounds for granting a Rule 59(e) motion

are newly-discovered evidence or manifest errors of law or fact. Id. A Rule 59(e)

motion cannot be used to relitigate old matters, raise new arguments, or present

evidence that could have been raised prior to the entry of judgment. Jacobs v.

Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010).

      The district court did not abuse its discretion by denying Goble’s renewed

Barton motion. The findings of the bankruptcy court did not demonstrate that the

receivership order or the protective decree was improperly issued. Accordingly,

the receiver acted within the scope of his authority by consenting to NACI’s


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liquidation, and the bankruptcy trustee acted within the scope of his authority by

carrying out the liquidation process. See Prop. Mgmt. & Invs., Inc., 752 F.2d at

602; see also Boullion, 639 F.2d at 214. The statutory exception in § 959(a) does

not apply because Goble sought to raise claims based on the receiver’s reports and

consent to the protective decree, and the trustee’s continued participation in the

liquidation process, and these actions were incident to the administration and

liquidation of NACI. See Carter, 220 F.3d at 1254. The district court also did not

abuse its discretion by denying Goble’s Rule 59(e) motion because the motion

reiterated arguments that were previously rejected by the court and discussed

evidence that was available prior to the district court’s ruling on the renewed

Barton motion. See Jacobs, 626 F.3d at 1344.

       For the foregoing reasons, 4 the judgment of the district court is

       AFFIRMED.




4
        Other arguments raised on appeal by Goble are rejected as being without merit. For
example, although Goble claims that the testimony of Ward and Blatman in later Bankruptcy
proceedings was inconsistent with their testimony in the bench trial – i.e., although Goble claims
that the Ward / Blatman testimony upon which the district court relied in issuing the new
injunction was unreliable – we disagree. We agree with the district court in Document 318 that
there is no substantial inconsistency.
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