United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
PARADISE BAXTER UNITED STATES DISTRICT JUDGE.
civil action was filed in this Court on February 29, 2016.
The complaint, filed by the Securities and Exchange
Commission, alleges, among other things, that Defendant
Parilla and Defendant Fortitude Group, Inc. violated sections
of the Securities Exchange Act of 1934, and seeks civil
monetary penalties and injunctive relief against Defendant
pending before this Court are two motions: Mr. Parilla's
pro se motion to dismiss [ECF No. 40] and the
government's motion for default judgment [ECF No. 42].
Both motions will be denied.
Government's motion for default judgment will be
dismissed as there is no longer a Clerk's entry of
default as it was lifted by order of the court. See
ECF No. 39 (lifting Clerk's entry of default). Without an
entry of default - and one cannot be entered now as Mr.
Parilla has filed a motion to dismiss - the Court cannot
entertain a motion for default judgment. Fed.R.Civ.P. 55.
Additionally, a motion for default judgment must include the
specific relief sought by any judgment entered. If damages
are involved, they must be specified by dollar amount and
sufficiently supported by factual submission or operation of
law. Similarly, with non-monetary relief, a proposed order
must specify in detail the equitable relief sought, which
relief also must be supported by submissions and operation of
law. Here, the government failed to provide a proposed order
outlining the specific relief sought in its motion for
default judgment. See Local Rule 7(D).
Mr. Parilla's motion to dismiss, it fails to comply with
Federal Rule of Civil Procedure 12, which allows a responding
party to assert any of the following fatal flaws in the
complaint against it: lack of subject matter or personal
jurisdiction, improper venue, insufficient process or service
of process, failure to state a claim upon which relief can be
granted, or failure to join a necessary party. In Mr.
Parilla's pro se motion to dismiss, he argues that the
SEC targeted the wrong person in its investigation and that
his constitutional right to counsel under the Sixth Amendment
has been violated by the SEC. As to the first argument, Mr.
Parilla is defending the charges against him as he would at
trial by making factual arguments about the strength of the
government's claims. Instead, under Fed.R.Civ.P.
12(b)(6), he must demonstrate the claims are not cognizable
under the law, not whether they will be successful as against
complaint will only be dismissed pursuant to Rule 12(b)(6) if
it does not allege “enough facts to state a claim to
relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)
(rejecting the traditional 12(b) (6) standard set forth in
Conley v. Gibson, 355 U.S. 41 (1957)). The Third
Circuit has explained that
determine the sufficiency of a complaint under
Twombly [and Iqbal], we must take the
following three steps:
First, the court must ‘tak[e] note of the elements a
plaintiff must plead to state a claim.' Second, the court
should identify allegations that, ‘because they are no
more than conclusions, are not entitled to the assumption of
truth.' Finally, ‘where there are well-pleaded
factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement for relief.'
v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir.
2011) quoting Santiago v. Warminster Twp., 629 F.3d
121, 130 (3d Cir. 2010). Mr. Parilla does not agree with the
well-pleaded facts of the complaint, but he has not alleged
that if proven to be true, they would not state a claim
against him. Therefore, his motion fails.
Mr. Parilla's claim that his right to have counsel
represent him was violated in a deposition prior to this case
being filed, this Court has no jurisdiction over the issue.
This is a civil matter and the jurisdiction
of this Court extends only to the matter before it. The Sixth
Amendment right to counsel only attaches in
criminal matters when the accused's
liberty is at stake. See U.S. v. Gouveia, 467 U.S.
180, 187 (1984) (“The Sixth Amendment guarantees that
‘in all criminal prosecutions, the accused shall enjoy
the right … to have the Assistance of Counsel for his
defence.'”); Gideon v. Wainwright, 372
U.S. 335 (1963). Accordingly, his motion to dismiss shall
HEREBY ORDERED that the motion to dismiss [ECF No. 40] and
the motion for default judgment [ECF No. 42] are denied.
FURTHER ORDERED that Mr. Parilla must file an Answer to the
Complaint by July 31, 2019.