Securities & Exchange Commission v. Downey , 701 F. App'x 399 ( 2017 )

Case: 16-11578 Document: 00514239885 Page: 1 Date Filed: 11/16/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-11578
Fifth Circuit
FILED
Summary Calendar November 16, 2017
Lyle W. Cayce
SECURITIES AND EXCHANGE COMMISSION, Clerk
Plaintiff-Appellee
v.
PAUL DOWNEY; JEFFRY P. DOWNEY,
Defendants-Appellants
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:14-CV-185
Before PRADO, ELROD, and GRAVES, Circuit Judges.
PER CURIAM: *
The Securities and Exchange Commission (SEC) filed a complaint
against Paul R. Downey and Jeffry P. Downey alleging that they violated the
antifraud provisions of the Securities Act of 1933 and the Securities Exchange
Act of 1934. The Downeys appeal the district court’s grant of summary
judgment in favor of the SEC on the fraud allegations, arguing that the district
court erred by denying their motion for extension of time to respond to the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-11578 Document: 00514239885 Page: 2 Date Filed: 11/16/2017
No. 16-11578
SEC’s motion and generally arguing that the court erred by granting the
summary judgment motion. They move this court for leave to proceed in forma
pauperis (IFP).
The district court denied the motion for extension of time finding that
the certificate of conference contained in the motion failed to comply with a
local civil rule because it failed to explain why it was not possible to confer with
opposing counsel regarding whether he would oppose the Downeys’ motion.
See N.D. TEX. CIV. R. 7.1(b)(3). The Downeys have offered no reason, much less
an impelling one, for finding that the district court abused its discretion in
applying the local rules to their case. See Victor F. v. Pasadena Indep. Sch.
Dist., 793 F.2d 633, 635 (5th Cir. 1986). They have not shown that the denial
of the motion for extension of time for failure to comply with the local rules was
an inappropriate exercise of the district court’s discretion. See id. at 636. In
addition, the Downeys have failed to adequately brief their argument that the
district court erred by granting the SEC’s summary judgment motion; as such,
they have abandoned the claim on appeal. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Because the instant appeal is without merit and is therefore frivolous,
IT IS ORDERED that the Downeys’ motion for leave to proceed IFP on appeal
is DENIED, and their appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2.
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