Securities & Exchange Commission v. Investment Technology, Inc. , 200 F. App'x 858 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 14, 2006
No. 05-16573 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-02917-CV-TWT-1
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff-Appellee,
versus
INVESTMENT TECHNOLOGY, INC.,
THOMAS D. VIDMAR,
ROSENFELD, GOLDMAN & WARE, INC.,
ULYSSES THOMAS WARE,
SMALL CAP RESEARCH GROUP, INC.,
CENTENNIAL ADVISORS, L.L.C.,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 14, 2006)
Before CARNES, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Ulysses “Thomas” Ware and Rosenfeld, Goldman and Ware, Inc. (“RGW”)
appeal the district court’s denial of their motion to quash the Securities and
Exchange Commission’s (“SEC”) subpoena to Citizens Trust Bank seeking records
pertaining to their accounts. The SEC argues that this appeal is moot because the
bank has produced the documents requested in the subpoena and, based on the
facts of this case, meaningful relief cannot be granted. Ware and RGW argue that
the district court erred in denying their motion to quash based on lack of standing,
contending that their motion should have been granted.1
We review the question of mootness de novo. CAMP Legal Def. Fund v.
City of Atlanta, 451 F.3d 1257, 1268 (11th Cir. 2006). The bank’s compliance
with the subpoena does not make this case moot; should Ware prevail on the merits
of his motion to quash, we have the power to provide a partial remedy by ordering
the SEC to destroy or return all copies of the documents produced by the bank.
Church of Scientology v. United States, 506 U.S. 9, 13, 113 S.Ct. 447, 450, 121
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Ware and RGW also argue that, because Norris was not admitted pro hac vice before
appearing in the district court, in violation of the Northern District of Georgia’s Local Rule 83.1,
he is guilty of criminal contempt. They argue that the district court abused its discretion by
neither taking any disciplinary action against Norris nor referring the matter to the state bar for
disciplinary action. As this argument was raised for the first time on appeal, we will not
consider it. Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994).
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L.Ed.2d 313 (1992).
Ware and RGW argue that they both had a personal right or privilege in their
own bank records and a “personal interest” in those records and client confidences,
and, therefore, had standing to challenge the subpoena by the SEC. We review the
district court’s ruling on a motion to quash for abuse of discretion. See Moore v.
Armour Pharm. Co., 927 F.2d 1194, 1197 (11th Cir. 1991). “A district court
abuses its discretion when it misapplies the law in reaching its decision or bases its
decision on findings of fact that are clearly erroneous.” Arce v. Garcia, 434 F.3d
1254, 1260 (11th Cir. 2006). We review standing determinations de novo.
CAMP Legal Def. Fund, 451 F.3d at 1268. However, we generally do not consider
an issue or theory that was not raised before the district court. Narey, 32 F.3d at
1526-27.
Prior to the district court’s denial of their motion to quash the subpoena, the
only argument that Ware and RGW made in response to the SEC’s assertion that
they lacked standing was that Fed.RCiv.P. 45 did not impose a limitation on who
could file a motion to quash a subpoena. Ware and RGW did not assert standing
on the theory of a “personal interest” until they moved for reconsideration of the
denial of their motion to quash. However, the district court’s subsequent denial of
reconsideration is not before us. Fed.R.App.P. 4(a)(4)(B)(ii); Green v. Union
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Foundry Co., 281 F.3d 1229, 1233 (11th Cir. 2002). Consideration of this
argument on appeal would effectively require us to review the district court’s order
based on a theory that Ware and RGW did not present to the district court at that
time. We decline to do so. Narey, 32 F.3d at 1526-27.
In light of the foregoing, we affirm the district court’s order denying Ware
and RGW’s motion to quash the SEC’s subpoena.
AFFIRMED.
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