Federal Judge Orders HIWU, FTC, To Be More Specific In What Relief Is Sought In Serpe Case

[Wandering Eyes]

Six days after trainer Philip Serpe argued that an attempt by the Horseracing Integrity and Welfare Unit (HIWU) to drop its pursuit of a $25,000 penalty in his ongoing Clenbuterol positive case was an alleged end-around to prejudicially stymie his legal efforts in a lawsuit against the Horseracing Integrity and Safety Authority (HISA) and the Federal Trade Commission (FTC), a federal judge in Florida ordered that a letter about that non-pursuit that was issued by HIWU Apr. 23 is not enough to moot Serpe's contention that he has been wrongfully denied his Seventh Amendment right to a jury trial.

As TDN's Dan Ross reported Apr. 29, in a joint motion filed last week, attorneys for the FTC and the HISA Authority wrote in an Apr. 24 motion to vacate a supplemental briefing order that the lack of a monetary fine in the case “moots Plaintiff's Seventh Amendment claim and removes any risk of cognizable harm with respect to it,” and that the judge in the case “should dispose of Plaintiff's Seventh Amendment claim, and Plaintiff's motion for a preliminary injunction relating to that claim.”

Serpe had replied in a same-day legal response to the defendants' motion to vacate that the “late-stage motion should be seen for what it probably is-part of a concerted effort with HIWU to prejudicially moot Serpe's claims during the pendency of this case.”

And in an Apr. 30 order-writing that he “need not await” a reply from the defendants before ruling on this matter-Judge David Leibowitz of United States District Court (Southern District of Florida) granted in part and denied in part the motion to vacate, stating that HIWU's sending of a letter via email to Serpe's legal team was not enough to allow for a ruling either way on the Seventh Amendment contention.

“The Court finds that HIWU's barebones statement by letter, notifying Plaintiff 'that HIWU will not be seeking a fine to be imposed against [Plaintiff] pursuant to ADMC Program Rule 3323,' is insufficient to apprise the Court clearly as to the types of remedies being pursued in this case by both Defendants and HIWU, and therefore the ultimate impact upon Plaintiff's Seventh Amendment claim,” the judge wrote.

“If Defendants want to obtain the relief they seek, [both the FTC and the HISA Authority] must file in the record a declaration or affidavit that sets forth the following:

“1. All specific forms of relief being sought or potentially sought (by HIWU or the Defendant filing the declaration or affidavit) against Plaintiff in the upcoming June 2025 arbitration, as well as in any subsequent adjudication or determination. Defendants must list every form of relief being pursued, even potentially (e.g., suspension, disgorgement, civil fine, etc.).

“2. All specific forms of relief not being sought or potentially sought (by HIWU or the Defendant filing the declaration or affidavit) against Plaintiff in the upcoming June 2025 arbitration, as well as in any subsequent adjudication or determination.

“In other words, what form(s) of relief do Defendants stipulate or attest will not be pursued against Plaintiff in the upcoming arbitration or any subsequent adjudications or determinations?” the order stated.

In addition to filing the above-described declaration/affidavit, the judge ordered that the HISA Authority and the FTC each must also brief the following legal questions:

“1. As to each form of relief being sought or potentially sought against Plaintiff in the upcoming June 2025 arbitration or any subsequent adjudication or determination [is] HIWU, the Authority, and the FTC immune from suit by Plaintiff (under the doctrine of sovereign immunity or otherwise), or has that immunity been waived?

“2. As to each form of relief not being sought or potentially sought against Plaintiff in the upcoming June 2025 arbitration or any subsequent adjudication or determination [does] HIWU, the Authority, and the FTC have the discretion to stipulate ab initio that those forms of relief will never be sought against Plaintiff under the relevant statute and regulations?”

The defendants were given 10 days to comply with the judge's order.

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