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Post by travelbugaz on Aug 4, 2010 13:18:44 GMT -5
L.R. 83-6.1 Prohibition of Broadcasting, Television, Photography. Between 7:00 a.m. and 7:00 p.m., Monday through Friday, and at all other times when the Court is in session, the use of any forms, means or manner of radio or television broadcasting and the taking or making of photographs, motion pictures, video or sound recordings is prohibited in any room where court proceedings are being held, including but not limited to the areas specified below:
WESTERN DIVISION SPRING STREET BUILDING - The following areas of the United States Courthouse, 312 North Spring Street, Los Angeles, California:
(a) The parking areas; and
(b) The Main Street, Spring Street, second through fifth floors, eighth, ninth, tenth and sixteenth floors, except any area designated as a Press Room.
WESTERN DIVISION ROYBAL BUILDING - The following areas of the Roybal Federal Building and United States Courthouse, 255 East Temple Street, Los Angeles, California:
(a) The parking areas;
(b) The Temple Street and Terrace floors, except the area designated as a Press Room; and
(c) The third, fifth through eighth, eleventh and fourteenth floors.
SOUTHERN DIVISION - The following areas of the Ronald Reagan Federal Building and United States Courthouse, 411 West Fourth Street, Santa Ana, California:
(a) The parking areas; and
(b) The first, third, sixth, ninth and tenth floors, except the area designated as a Press Room.
EASTERN DIVISION - The following areas of the United States Courthouse, 3470 Twelfth Street, Riverside, California:
(a) The parking areas; and
(b) The Ground level, Plaza level and the second and third floors, except for any area designated as a Press Room.
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Post by sandi66 on Aug 4, 2010 14:08:20 GMT -5
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No.SACV 10-00031-JVS(MLGx) Date August 2, 2010 Title David Anderson Lt. Col., et al v Christopher Cox, et al. CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 1 Present: The Honorable James V. Selna Julie Barrera for Karla J. Tunis Deputy Clerk Sharon Seffens Court Reporter Attorneys Present for Plaintiffs: A. Clifton Hodges Attorneys Present for Defendants: Keith M. Staub Proceedings: FEDERAL DEFENDANTS’ MOTION TO DISMISS (Filed 5/28/10) Cause called and counsel state their appearances. The Court’s tentative ruling isissued. Counsel make their arguments. The Court GRANTS the defendant’s motion giving plaintiff 45 days to replead and giving defendants 30 days to respond. The Court’s ruling is in accordance with the tentative ruling as follows: Order re Motion to Dismiss Defendants Christopher Cox, Mary L. Shapiro, Cynthia A. Glassman, Paul S.Atkins, Roel C. Campos, Annette L. Nazareth, Troy A. Paredes, Luis A. Aguilar, Elisse B. Walter, and Kathleen L. Casey (collectively, “Defendants”) move the Court to dismiss Plaintiffs David Anderson, Nelson L. Reynolds, Sheila Morris, Patrick Cluney, Robert Hollenegg, Allan Treffry, and Reece Hamilton’s (collectively, “Plaintiffs”) Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiffs oppose. The Court GRANTS the motion. I. BACKGROUND Casavant Mining Kimberlite International, Inc. (“CMKI”) was created in 2002 through a merger of Cyber Mark International, Inc. and Casavant Mining Kimberlite International, Inc. (Compl. ¶ 15.) On February 3, 2003, 7,241,653,404 shares were issued and outstanding. (Id.) Through an amendment to its Articles of Incorporation,CMKI changed its name to CMKM Diamonds, Inc. (“CMKM”). (Id. ¶ 16.) The amendment also raised CMKM’s authorized capital to 800,000,000,000 common shares Case 8:10-cv-00031-JVS-MLG Document 15 Filed 08/02/10 Page 2 of 6 Page ID #:107 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No.SACV 10-00031-JVS(MLGx) Date August 2, 2010 Title David Anderson Lt. Col., et al v Christopher Cox, et al. with a par value of $0.0001. (Id.) In 2005, a temporary suspension of trading was imposed by the SEC because of concerns over the “adequacy” of publicly available information. (Id. ¶ 18.) Pursuant to these concerns, the SEC started a public administrative proceeding under the Securities Exchange Act of 1934. (Id. ¶ 19.) On July 12, 2005, an administrative law judge found that CMKM had failed to file required public reports. (Id. ¶ 21.) On October 28, 2005, CMKM was de-registered by the SEC and a “Task Force” was designated for the purpose of liquidating CMKM assets. (Id. ¶ 23.) Subsequently, Plaintiffs allege that the SEC, the Department of Justice of the United States, and others worked together to trap persons and entities believed to be responsible for naked short selling of CMKM stock. (Id. ¶ 32.) CMKM later negotiated a settlement with the short sellers, where the wrong doers promised to pay certain amounts to a frozen trust inexchange for no prosecution from the United States Government. (Id. ¶ 34.) Plaintiffs allege that the moneys subsequently collected were to benefit the shareholders, and the SEC had ultimate discretion for the distribution of them. (Id. ¶¶ 35-36.) Plaintiffs believe that the repeated failure by the SEC to make the money from the trust available to them constitutes a taking of property under the Fifth Amendment to the United States Constitution. (Id. ¶ 37.) II. LEGAL STANDARD A.Rule 12(b)(1) Dismissal under Rule 12(b)(1) is proper when the plaintiff fails to properly plead subject matter jurisdiction in the complaint. Fed. R. Civ. P. 12(b)(1). The plaintiff always bears the burden of establishing subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). For a facial attack on subject-matter jurisdiction, the Court accepts all allegations in the complaint as true. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). However, for a factual attack, the Court “need not presume the truthfulness of the plaintiff’s allegations.” Whitev. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). The Court may dismiss on jurisdictional grounds if the material allegations in the complaint are “controverted by undisputed facts in the record.” Id. (quoting Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987)). Case 8:10-cv-00031-JVS-MLG Document 15 Filed 08/02/10 Page 3 of 6 Page ID #:108 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No.SACV 10-00031-JVS(MLGx) Date August 2, 2010 Title David Anderson Lt. Col., et al v Christopher Cox, et al. B. Rule 12(b)(6) Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim upon which relief can be granted. A plaintiff must state “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility” if the plaintiff pleads facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroftv. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (May 18, 2009). In resolving a 12(b)(6) motion under Twombly, the Court must follow a two-pronged approach. First, the Court must accept all well-pleaded factual allegations as true, but “[t]hread-bare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Nor must the Court “accept as true a legal conclusion couched as a factual allegation.” Id. at 1949-50 (quoting Twombly, 550 U.S.at 555). Second, assuming the veracity of well-pleaded factual allegations, the Court must“determine whether they plausibly give rise to an entitlement to relief.” Id. at 1950. This determination is context-specific, requiring the Court to draw on its experience and common sense, but there is no plausibility “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.” Id. On a motion to dismiss, the Court is generally limited to considering the contents of the complaint. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). However, “ court may consider evidence on which the complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the document is central to the [claimant’s] claim;and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.” Id. “The court may treat such a document as ‘part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).’” Id.(quoting United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)). The Court may also consider evidence that is the proper subject of judicial notice. Intri-Plex Techs., Inc.v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). The Court may take judicial notice of matters of general public record. Emrich v. Touche Ross & Co., 846 F.2d 1190,1198 (9th Cir. 1988).
III. DISCUSSION
Case 8:10-cv-00031-JVS-MLG Document 15 Filed 08/02/10 Page 4 of 6 Page ID #:109
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.SACV 10-00031-JVS(MLGx) Date August 2, 2010 Title David Anderson Lt. Col., et al v Christopher Cox, et al.
Plaintiffs ask for damages and declaratory relief from Defendants through a Bivens action. They argue that sovereign immunity is waived since Defendants allegedlydeprived Plaintiffs of their constitutional rights. (Opp’n at 12.) Defendants argue that Plaintiffs’ claim should be dismissed because sovereign immunity does apply and Plaintiffs have failed to state a claim. (Mot. 5-6.)
A. Sovereign Immunity
Sovereign immunity attaches to federal employees acting in their official capacities. Cardenas v. Anzai, 311 F.3d 929, 934 (9th Cir. 2002); Hodge v. Dalton, 107F.3d 705, 707 (9th Cir. 1997). Plaintiffs “cannot state a claim against the federal officers in their official capacities unless the United States waives its sovereign immunity.” Nurse v. U.S., 226 F.3d 996, 1004 (9th Cir. 2000). In the present case, Plaintiffs allege a waiver of sovereign immunity through their Bivens claim. (Opp’n 11.) However, Plaintiff’s reliance on Bivens for stating a claim against Defendants acting in their official capacities is in apposite. Bivens merely provides a waiver of sovereign immunity for federal employees acting in their individual capacity, not their official capacity. Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 403 U.S. 388, 397 (1971). Bringing a Bivens action against federal officers acting in their official capacity would be tantamount to bringing the action against the United States. Consejo de Desarrollo Economico de Mexicali, A.C. v. U.S., 482 F.3d 1157, 1173 (9th Cir. 2007). Therefore, federal officers may only be sued in their individual capacity, not their official capacity. Id. Sovereign immunity is still applicable to any claims brought against Defendants acting in their official capacity.
Because of the uncertainty of the facts in the Complaint, the Court reserves the question whether the relief sought can only be obtained against Defendants acting in their official capacity.
B. Failure to State a Plausible Claim
Defendants also contend that Plaintiffs’ Complaint fails to state sufficient facts under the standards of Ashcroft v. Iqbal, 129 S. Ct. at 1949. They claim that the Complaint is merely a “formulaic recitation of the elements” of a takings claim and doesnot “state a claim to relief that is plausible on its face.” Id. In order for Plaintiffs’
Case 8:10-cv-00031-JVS-MLG Document 15 Filed 08/02/10 Page 5 of 6 Page ID #:110
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. SACV 10-00031-JVS(MLGx) Date August 2, 2010 Title David Anderson Lt. Col., et al v Christopher Cox, et al.
Complaint to survive a motion to dismiss, “ the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). Plaintiffs have not met this standard in the present case. The Complaint merely states that Plaintiffs have a property interest in the collected moneys and fails to provide any facts that would explain why Plaintiffs are beneficiaries of the trust. (Compl. ¶ 35.)
As a threshold matter, a claim under the Takings Clause requires a plaintiff to “first establish that he possesses a constitutionally protected property interest.” McIntyre v. Bayer, 339 F.3d 1097, 1099 (9th Cir. 2003). Defendants argue that Plaintiffs had no property interest and thus no enforceable rights in the moneys the SEC took. (Mot. 6,13.) Plaintiffs allege that the trust was set up to benefit them, as a group. (Compl. ¶ 35.) Plaintiffs rely on the Fifth Amendment and allege that Defendants directed agents and employees of the SEC to repeatedly misinform Plaintiffs about the release of the moneys in question. (Id. ¶ 37.) They allege that this action constitutes a taking of property without just compensation and without due process of law. (Id. ¶ 39.)
Under Iqbal, a “complaint must contain sufficient factual matter, accepted as true,to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949. Plaintiffs’ Complaint does not state a viable property interest and fails to present enough facts to survive a motion to dismiss. It is not enough to state that Plaintiffs are beneficiaries of the moneys in the trust. Plaintiffs do not allege that there was any contract or agreement that designated them specifically as having rights to the moneys. Additionally, Plaintiffs cannot have a viable property interest in the funds through their ownership of CMKM’s shares of stock because the Takings Clause does not protect shareholders from a government caused reduction of corporate equity. See Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th Cir. 1996). Without more, all that the Complaint presents is “a formulaic recitation of the elements” of a takings claim. Iqbal, 129 S.Ct. at 1949.
In short, Plaintiffs’ Complaint fails to state a plausible claim since it does not asserta viable property interest under Iqbal standards. “A liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.” Ivey v. Board of Regents, 673 F. 2d 266, 268 (9th Cir.1982). Plaintiffs’ vague allegations as to what exactly their property interest is cannot withstand a motion to dismiss.
Case 8:10-cv-00031-JVS-MLG Document 15 Filed 08/02/10 Page 6 of 6 Page ID #:111
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL
Case No. SACV 10-00031-JVS(MLGx) Date August 2, 2010 Title David Anderson Lt. Col., et al v Christopher Cox, et al.
IV. CONCLUSION
For the reasons set forth above, Defendants’ motion is GRANTED. Plaintiffs are granted 45 days to replead. Defendants are granted 30 days to respond.
IT IS SO ORDERED.
0:25 Initials of Preparer jb
zohoviewer.com/docs/zdKkdh
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Post by sandi66 on Aug 14, 2010 10:40:00 GMT -5
2010 California Rules of Court Rule 1.150. Photographing, recording, and broadcasting in court (a) Introduction The judiciary is responsible for ensuring the fair and equal administration of justice. The judiciary adjudicates controversies, both civil and criminal, in accordance with established legal procedures in the calmness and solemnity of the courtroom. Photographing, recording, and broadcasting of courtroom proceedings may be permitted as circumscribed in this rule if executed in a manner that ensures that the fairness and dignity of the proceedings are not adversely affected. This rule does not create a presumption for or against granting permission to photograph, record, or broadcast court proceedings. (Subd (a) adopted effective January 1, 1997.) (b) Definitions As used in this rule: (1)"Media coverage" means any photographing, recording, or broadcasting of court proceedings by the media using television, radio, photographic, or recording equipment. (2)"Media" or "media agency" means any person or organization engaging in news gathering or reporting and includes any newspaper, radio or television station or network, news service, magazine, trade paper, in-house publication, professional journal, or other news-reporting or news-gathering agency. (3)"Court" means the courtroom at issue, the courthouse, and its entrances and exits. (4)"Judge" means the judicial officer or officers assigned to or presiding at the proceeding, except as provided in (e)(1) if no judge has been assigned. (5)"Photographing" means recording a likeness, regardless of the method used, including by digital or photographic methods. As used in this rule, photographing does not include drawings or sketchings of the court proceedings. (6)"Recording" means the use of any analog or digital device to aurally or visually preserve court proceedings. As used in this rule, recording does not include handwritten notes on the court record, whether by court reporter or by digital or analog preservation. (7)"Broadcasting" means a visual or aural transmission or signal, by any method, of the court proceedings, including any electronic transmission or transmission by sound waves. (Subd (b) amended effective January 1, 2007; adopted as subd (a) effective July 1, 1984; previously amended and relettered as subd (b) effective January 1, 1997; previously amended effective January 1, 2006.) (c) Photographing, recording, and broadcasting prohibited Except as provided in this rule, court proceedings may not be photographed, recorded, or broadcast. This rule does not prohibit courts from photographing or videotaping sessions for judicial education or publications and is not intended to apply to closed-circuit television broadcasts solely within the courthouse or between court facilities if the broadcasts are controlled by the court and court personnel. (Subd (c) amended effective January 1, 2006; adopted effective January 1, 1997.) (d) Personal recording devices The judge may permit inconspicuous personal recording devices to be used by persons in a courtroom to make sound recordings as personal notes of the proceedings. A person proposing to use a recording device must obtain advance permission from the judge. The recordings must not be used for any purpose other than as personal notes. (Subd (d) amended effective January 1, 2007; adopted as subd (c) effective July 1, 1984; previously amended and relettered as subd (d) effective January 1, 1997; previously amended effective January 1, 2006.) (e) Media coverage Media coverage may be permitted only on written order of the judge as provided in this subdivision. The judge in his or her discretion may permit, refuse, limit, or terminate media coverage. This rule does not otherwise limit or restrict the right of the media to cover and report court proceedings. (1)Request for order The media may request an order on Media Request to Photograph, Record, or Broadcast (form MC-500). The form must be filed at least five court days before the portion of the proceeding to be covered unless good cause is shown. A completed, proposed order on Order on Media Request to Permit Coverage (form MC-510) must be filed with the request. The judge assigned to the proceeding must rule on the request. If no judge has been assigned, the request will be submitted to the judge supervising the calendar department, and thereafter be ruled on by the judge assigned to the proceeding. The clerk must promptly notify the parties that a request has been filed. (2)Hearing on request The judge may hold a hearing on the request or may rule on the request without a hearing. (3)Factors to be considered by the judge In ruling on the request, the judge is to consider the following factors: (A)The importance of maintaining public trust and confidence in the judicial system; (B)The importance of promoting public access to the judicial system; (C)The parties' support of or opposition to the request; (D)The nature of the case; (E)The privacy rights of all participants in the proceeding, including witnesses, jurors, and victims; (F)The effect on any minor who is a party, prospective witness, victim, or other participant in the proceeding; (G)The effect on the parties' ability to select a fair and unbiased jury; (H)The effect on any ongoing law enforcement activity in the case; (I)The effect on any unresolved identification issues; (J)The effect on any subsequent proceedings in the case; (K)The effect of coverage on the willingness of witnesses to cooperate, including the risk that coverage will engender threats to the health or safety of any witness; (L)The effect on excluded witnesses who would have access to the televised testimony of prior witnesses; (M)The scope of the coverage and whether partial coverage might unfairly influence or distract the jury; (N)The difficulty of jury selection if a mistrial is declared; (O)The security and dignity of the court; (P)Undue administrative or financial burden to the court or participants; (Q)The interference with neighboring courtrooms; (R)The maintenance of the orderly conduct of the proceeding; and (S)Any other factor the judge deems relevant. (4)Order permitting media coverage The judge ruling on the request to permit media coverage is not required to make findings or a statement of decision. The order may incorporate any local rule or order of the presiding or supervising judge regulating media activity outside of the courtroom. The judge may condition the order permitting media coverage on the media agency's agreement to pay any increased court-incurred costs resulting from the permitted media coverage (for example, for additional court security or utility service). Each media agency is responsible for ensuring that all its media personnel who cover the court proceeding know and follow the provisions of the court order and this rule. (5)Modified order The order permitting media coverage may be modified or terminated on the judge's own motion or on application to the judge without the necessity of a prior hearing or written findings. Notice of the application and any modification or termination ordered under the application must be given to the parties and each media agency permitted by the previous order to cover the proceeding. (6)Prohibited coverage The judge may not permit media coverage of the following: (A)Proceedings held in chambers; (B)Proceedings closed to the public; (C)Jury selection; (D)Jurors or spectators; or (E)Conferences between an attorney and a client, witness, or aide; between attorneys; or between counsel and the judge at the bench. (7)Equipment and personnel The judge may require media agencies to demonstrate that proposed personnel and equipment comply with this rule. The judge may specify the placement of media personnel and equipment to permit reasonable media coverage without disruption of the proceedings. (8)Normal requirements for media coverage of proceedings Unless the judge in his or her discretion orders otherwise, the following requirements apply to media coverage of court proceedings: (A)One television camera and one still photographer will be permitted. (B)The equipment used may not produce distracting sound or light. Signal lights or devices to show when equipment is operating may not be visible. (C)An order permitting or requiring modification of existing sound or lighting systems is deemed to require that the modifications be installed, maintained, and removed without public expense or disruption of proceedings. (D)Microphones and wiring must be unobtrusively located in places approved by the judge and must be operated by one person. (E)Operators may not move equipment or enter or leave the courtroom while the court is in session, or otherwise cause a distraction. (F)Equipment or clothing must not bear the insignia or marking of a media agency. (9)Media pooling If two or more media agencies of the same type request media coverage of a proceeding, they must file a joint statement of agreed arrangements. If they are unable to agree, the judge may deny media coverage by that type of media agency. (Subd (e) amended effective January 1, 2007; adopted as subd (b) effective July 1, 1984; previously amended and relettered as subd (e) effective January 1, 1997; previously amended effective January 1, 2006.) (f) Sanctions Any violation of this rule or an order made under this rule is an unlawful interference with the proceedings of the court and may be the basis for an order terminating media coverage, a citation for contempt of court, or an order imposing monetary or other sanctions as provided by law. (Subd (f) amended and relettered as subd (f) effective January 1, 1997; adopted as subd (e) effective July 1, 1984.) Rule 1.150 amended and renumbered effective January 1, 2007; adopted as rule 980 effective July 1, 1984; previously amended effective January 1, 1997, and January 1, 2006. www.courtinfo.ca.gov/rules/index.cfm?title=one&linkid=rule1_150ty tired_o_workin
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Post by sandi66 on Sept 16, 2010 16:49:32 GMT -5
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Post by sandi66 on Sept 20, 2010 16:04:27 GMT -5
www.zshare.net/download/806124859347fdc0/(Proposed) Order to Continue Deadlines and Schedule Conference September 17, 2010 ****For Those that have difficulty downloading**** Case 8:10-cv-00031-NVS-MLG Document 20-1 Filed 09/17/10 Page 1 of 1 Page ID #:1 ANDRE BIROTTE JR. United States Attorney LEON W. WEIDMAN Assistant United States Attorney Chief, Civil Division KIETH M. STAUB (State Bar No. 137909) Room 7516 Federal Building 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-7423 Facsimile: (213) 894-7819 Email: Keith.Staub@usdoj.gov Attorneys for Federal Defendants UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION DAVID ANDERSON et al., Plaintiffs, v CHRISTOPHER COX, et al., Defendants No. SACV 10-31 JVS (MLGx) (PROPOSED) ORDER TO CONTINUE DEADLINES AND SCHEDULING CONFERENCE Hon. James V. Selna The Court, having received, reviewed and accepted the parties stipulation to continue the deadlines and scheduling conference, ORDERS AS FOLLOWS: 1. The scheduling conference date of October 25, 2010 is vacated. 2. The scheduling conference will be continued to a date no sooner than thirty (30) days beyond the date in which this Court rules on defendants’ Motion to Dismiss, on a date to be set by the Court. The parties will exchange Rule 26 disclosures and file a Joint Rule 26 report 7 days prior to the new scheduling conference. Date: ______________ HON. JAMES V. SELNA District Court Judge
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Post by sandi66 on Sept 22, 2010 19:20:58 GMT -5
ecf.cacd.uscourts.gov/doc1/031110915963Page 1 of 2 --------------------------------------------------------------------------------------------------------------------- --------------------------------------------------- (PROPOSED) ORDER DIRECTING CLERK TO FILE REVISED FIRST AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AND FOR DAMAGES FOR VIOLATION OF CIVIL RIGHTS (JURY TRIAL DEMANDED) A. CLIFTON HODGES, State Bar No. 046803 HODGES AND ASSOCIATES 4 East Holly Street, Suite 202 Pasadena, California 91103 Telephone: (626) 564-9797 Facsimile: (626) 564-9111 Attorneys for Plaintiffs ANDRE BIROTTE JR. United States Attorney LEON W. WEIDMAN Assistant United States Attorney Chief, Civil Division KEITH M. STAUB, State Bar No. 137909 Assistant United States Attorney Room 7516 Federal Building 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-7423 Facsimile: (213) 894-7819 Email: Keith.Staub@usdoj.gov Attorneys for Federal Defendants UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION DAVID ANDERSON, et al., Plaintiffs, vs. CHRISTOPHER COX, et al., Defendants. Case No.: SACV 10-31 JVS (MLGx) ORDER DIRECTING CLERK TO FILE REVISED FIRST AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AND FOR DAMAGES FOR VIOLATION OF CIVIL RIGHTS (JURY TRIAL DEMANDED) (Proposed Order filed concurrently herewith) Honorable James V. Selna Case 8:10-cv-00031-JVS-MLG Document 22 Filed 09/21/10 Page 1 of 2 Page ID #:171 Page 2 of 2 --------------------------------------------------------------------------------------------------------------------- --------------------------------------------------- (PROPOSED) ORDER DIRECTING CLERK TO FILE REVISED FIRST AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AND FOR DAMAGES FOR VIOLATION OF CIVIL RIGHTS (JURY TRIAL DEMANDED) The Court, having received, reviewed and accepted the parties’ Stipulation to Allow Filing of Revised First Amended Complaint for Declaratory Judgment and for Damages for Violation of Civil Rights (Jury Trial Demanded), ORDERS AS FOLLOWS: The Clerk of the Court is instructed to file Plaintiffs’ Revised First Amended Complaint for Declaratory Judgment and for Damages for Violation of Civil Rights (Jury Trial Demanded). Dated: September 21, 2010 HONORABLE JAMES V. SELNA District Court Judge Case 8:10-cv-00031-JVS-MLG Document 22 Filed 09/21/10 Page 2 of 2 Page ID #:172 ecf.cacd.uscourts.gov/doc1/031110919026G-112A (02/09) NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS Note: In response to this notice the court may order 1) an amended or correct document to be filed 2) the document stricken or 3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PLAINTIFF(S) v. DEFENDANT(S). CASE NUMBER: NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS PLEASE TAKE NOTICE: Pursuant to General Order 08-02, Local Rule 5-4 and/or the Federal Rules of Civil Procedure, the following deficiency(ies) has been found with your electronically filed document: Date Filed Doc. No. Title of Doc. ERRORS WITH DOCUMENT Document submitted in the wrong case Incorrect document is attached to the docket entry Document linked incorrectly to the wrong document/docket entry Incorrect event selected. Correct event to be used is X Case number is incorrect or missing. Hearing information is missing, incorrect, or not timely Local Rule 7.1-1 No Certification of Interested Parties and/or no copies Case is closed Proposed Document was not submitted as separate attachment Title page is missing Local Rule 56-1 Statement of uncontroverted facts and/or proposed judgment lacking Local Rule 56-2 Statement of genuine issues of material fact lacking Local Rule 7-19.1 Notice to other parties of ex parte application lacking Local Rule 11-6 Memorandum/brief exceeds 25 pages Local Rule 11-8 Memorandum/brief exceeding 10 pages shall contain table of contents A Certificate of Good Standing is not attached to pro hac vice application. X Other: Complaints (such as third party complaints, AMENDED COMPLAINTS, complaints in intervention, counterclaims, and cross-claims) shall be filed in traditional manner Clerk, U.S. District Court Dated: By: Deputy Clerk cc: Assigned District Judge and/or Magistrate Judge Case 8:10-cv-00031-JVS-MLG Document 23 Filed 09/21/10 Page 1 of 1 Page ID #:173
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Post by sandi66 on Oct 1, 2010 4:30:35 GMT -5
Hodges Up to Date Docket per PACER « Thread Started Today at 7:48pm » -------------------------------------------------------------------------------- Nighthawk posted this on the Millionaires' board... millionaires.proboards.com/index.....ay&thread=34308tinyurl.com/2cbc9wjNo new info just a much more concise table of events that have transpired since Al filed his suit. Hodges Up to Date Docket per PACER « Thread Started Today at 1:34pm »
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Post by sandi66 on Oct 12, 2010 17:41:31 GMT -5
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Post by sandi66 on Oct 15, 2010 12:04:45 GMT -5
Subj: Letters from Hodges Aug & Sept 2010 posted on Millionaire's Board - 10/14/2010 -------------------------------------------------------------------------------- HODGES AND ASSOCIATES A PROFESSIONAL LAW CORPORATION A. CLIFTON HODGES 4 EAST HOLLY STREET JAMES S. KOSTAS SUITE 202 DONALD W. RICKETTS* PASADENA, CA. 91103 TEL (626) 564-9797 * OF COUNSEL FAX (626) 564-9111 September 22, 2010 VIA FACSIMILE; FED-EX; AND U.S. MAIL (202) 452-3819 Ben S. Bernanke Chairman of the Board of Governors Federal Reserve System 20th Street and Constitution Avenue, NW Washington, DC 20551 Re: World Global Settlements Dear Mr. Bernanke: I represent Mr. Lindell H. Bonney, Sr. with respect to collection of certain funds currently being held by the Federal Reserve System; Mr. Bonney has both a personal ownership interest and a fiduciary interest in such funds. I also represent certain other payees of the World Global Settlement funds; each of these payees have exhausted their ability to continue waiting for distribution of the funds to which they are entitled. We have been able to ascertain that these funds have been utilized, apparently with the approval and consent of the FED, for short term lending/hypothecation cycles which have allowed recovery of substantially more than 3% per day of the principal in addition to the FED transaction fee of 10%; we have now received confirmation that the FED has in fact received payment. These actions are obviously in violation of several Treaty agreements, as well as a plethora of Federal Laws and banking regulations, and expose each participant to both criminal and civil RICO actions. The purpose of this correspondence is to put you and each member of the Board of Governors on notice of these illegal actions in connection with the continued refusal of the FED to disburse monies due to be paid to Mr. Bonney in his personal and fiduciary capacity. Although we have previously been advised that the funds were available for disbursement, “something” has always been amiss when the scheduled time has arrived. On each such occasion, Mr. Bonney was ultimately advised that the money had, for unexplained reasons, become unavailable. Please be advised that we intend to hold you and each member of the Board of Governors jointly and severally responsible for a minimum of 10% per day recovery on the entire balance of the funds currently held for distribution to Mr. Bonney in his personal and fiduciary capacity. In the event that you and/or any of the Board of Governor members wish to discuss possible resolution of this issue please contact the undersigned directly; in the event that I fail to hear from anyone I will pursue all available remedies, including immediate disclosure of these defalcations to the media. Very truly yours, HODGES AND ASSOCIATES A. CLIFTON HODGES Cc: Mr. Lindell H. Bonney, Sr. Lynwood Maddox, Esq. Kevin M. Warsh Elizabeth A. Duke Daniel K. Tarullo Comptroller of the Currency Federal Reserve Bank, Richmond, VA Federal Reserve Bank, Cleveland, OH _______________________________________ HODGES ANDASSOCIATES A PROFESSIONAL LAW CORPORATION A. CLIFTON HODGES 4 EAST HOLLY STREET JAMES S. KOSTAS SUITE 202 DONALD W. RICKETTS* PASADENA, CA. 91103 TEL (626) 564-9797 * OF COUNSEL FAX (626) 564-9111 August 13, 2010 Sent Via E-Mail and Facsimile Fax No. 020 7270 4580 The Right Honorable George Osborne, MP Chancellor of the Exchequer HM treasury Horse Guards Road London SW1A 2HQ Re: U.S. Dollar Refunding Project Dear Honorable George Osborne: I write to you once more in furtherance of matters raised in my prior correspondence on behalf of my clients Michael C. Cottrell, B.A., M.S., of Erie, Pennsylvania, USA, and his corporations: Pennsylvania Investments, Inc., registered in the Commonwealth of Pennsylvania, and Cottrell Securities Limited, registered in England and Wales. The events of the past several weeks are both frustrating and aggravating. The many people involved in bringing the Global World Settlements to fruition have been convinced for some time that distribution of all funds would have been accomplished before now. I must report that the current U.S. Administration continues to interfere with conclusion of this process at every turn; a detailed summary of recent events, prepared by and attested to by Mr. Cottrell is attached for your information and review. Because the U.S. Dollar Refunding Project is a critical part of the efforts of so many to address the current world financial situation, Mr. Cottrell asked me to contact you directly with our formal request that the Monarchal loan of six point two trillion USD be initiated forthwith, via the Morgan Stanley account previously established for that specific purpose. Pennsylvania Investments, Inc. and Cottrell Securities Limited are prepared to proceed as originally conceived, notwithstanding the current funding failure of the Global World Settlements. We are fully prepared to accept the U.S. Dollar Refunding Project loan proceeds from the Royal Monarchal Power or nominee, and to proceed immediately with implementation of all requisite activities to accomplish the defined goals of the Project. I look forward to hearing from you directly, at your very earliest convenience. At that time we can conclude arrangements for the loan documentation, release of funds, and protected travel to London. Please let me know if any additional information is required, as we believe that most urgent action is needed. Sincerely, HODGES AND ASSOCIATES CLIFTON HODGES cc: His Royal Highness the Duke of Edinburgh Michael C. Cottrell Pennsylvania Investments, Inc. Cottrell Securities Limited ______________________________________ HODGES ANDASSOCIATES A PROFESSIONAL LAW CORPORATION A. CLIFTON HODGES 4 EAST HOLLY STREET JAMES S. KOSTAS SUITE 202 DONALD W. RICKETTS* PASADENA, CA. 91103 TEL (626) 564-9797 * OF COUNSEL FAX (626) 564-9111 August 13, 2010 For the urgent attention of the Chief of Staff: His Royal Highness the Duke of Edinburgh Buckingham Palace London SW1A 1AA Re: U.S. Dollar Refunding Project Dear Sirs: I write to you once more in furtherance of matters raised in my prior correspondence on behalf of my clients Michael C. Cottrell, B.A., M.S., of Erie, Pennsylvania, USA, and his corporations: Pennsylvania Investments, Inc., registered in the Commonwealth of Pennsylvania, and Cottrell Securities Limited, registered in England and Wales. The events of the past several weeks are both frustrating and aggravating. The many people involved in bringing the Global World Settlements to fruition have been convinced for some time that distribution of all funds would have been accomplished before now. I must report that the current U.S. Administration continues to interfere with conclusion of this process at every turn; a detailed summary of recent events, prepared by and attested to by Mr. Cottrell is attached for your information and review. As you are aware, Mr. Cottrell arranged for the formation of Cottrell Securities Limited, based in London, to handle the necessary fully taxable, on-balance sheet trades; we have been awaiting completion of the funding of the Global World Settlements to initiate this Refunding Project. In view of the U.S. Administration’s continued interference, and because the U.S. Dollar Refunding Project is such a critical part of the efforts of so many to address the current world financial situation, Mr. Cottrell asked me to contact The Right Honorable George Osborne, MP, Chancellor of the Exchequer, with our request for immediate funding of the Monarchal loan; I have done so by letter of even date. My purpose in writing to you directly, is not only to keep you advised of the progress of the U.S. Dollar Refunding Project; I am soliciting your assistance in coordinating with the Chancellor in hopes of expediting funding of the Monarchal loan. We believe that the current U.S. Administration will not relinquish control of the Settlements funds voluntarily; we also believe that urgent action is required. I would therefore be most grateful for any assistance that you can provide at this time to expedite finalization of all necessary arrangements to allow initiation of the U.S. Dollar Refunding Project. I look forward to receiving a positive response at your early convenience, so that this matter can be consummated as originally conceived and recommended by Her Majesty. Sincerely Yours, HODGES ANDASSOCIATES A. CLIFTON HODGES Cc: Michael C. Cottrell Pennsylvania Investments, Inc. Cottrell Securities Limited ____________________________________ HODGES ANDASSOCIATES A PROFESSIONAL LAW CORPORATION A. CLIFTON HODGES 4 EAST HOLLY STREET JAMES S. KOSTAS SUITE 202 DONALD W. RICKETTS* PASADENA, CA. 91103 TEL (626) 564-9797 * OF COUNSEL FAX (626) 564-9111 April 28, 2010 For the urgent attention of the Chief of Staff: His Royal Highness the Duke of Edinburgh Buckingham Palace London SW1A 1AA Dear Sirs I write with respect on behalf of my clients Michael C. Cottrell, B.A., M.S., of Erie, Pennsylvania, USA, and his corporations: Pennsylvania Investments, Inc., registered in the Commonwealth of Pennsylvania, and Cottrell Securities Limited, registered in England and Wales. I have been repeatedly advised by William H. Bonney that the Basel List contains a Line Item providing for a loan for on-the-books trading purposes in the sum of $6.2 Trillion Dollars in the aggregate, for use to finance the long-since approved Dollar Refunding Program requested of the G-7 financial powers by her Majesty the Queen ‘for the sake of the whole of humanity’. These sources have repeatedly confirmed to me, as Mr. Cottrell’s Attorney, that the Line Item funding is to be deployed for this purpose by Mr. Cottrell’s firm Pennsylvania Investments, Inc. The matter has likewise been confirmed on several occasions directly to Mr. Cottrell, prior to my appointment as his Attorney. The Dollar Refunding Program must ORIGINATE in the private sector, so that no corresponding PUBLIC DEBT is created on the other side of the balance sheet. Unfortunately, the US authorities have resisted this sound financing concept (the ONLY solution on the table) and seek to conduct the Dollar Refunding Program (on which the whole world depends) themselves, via the US Treasury, et. al., thereby generating a vast, open-ended further overhang of completely unnecessary official/public debt on the other side of the balance sheet. Obviously, since the debt accumulated will be 100%, whereas any tax raised from such trades will not exceed, say, 35%, this severely exacerbates the US official debt overhang. Such a course will therefore most certainly lead to US and global financial and economic disaster by rapidly accelerating the degradation of the US dollar and thereby inducing a Weimar-style hyperinflation. On the well-known principle that ‘good money’ replaces ‘bad money’, and long since recognizing that the US authorities were unwilling to follow the sound path recommended by Her Majesty, Mr. Cottrell arranged for the formation of Cottrell Securities Limited, based in London, to handle the necessary fully taxable on-balance sheet trades. A schematic plan (Figure 5A, Private Funding USD Refunding Loan) showing how the taxable trades will operate, is enclosed as the second sheet with the papers submitted herewith. The tax payable to the British authorities will be remitted along with any tax payable to the US authorities, directly to the British Treasury. Under the Bretton Woods Agreements, tax accrued abroad can be remitted by the ‘foreign’ country’s Treasury to its counterpart in the receiving country. The enclosed documents are itemized in the list presented as the first sheet with these papers. Documents dated 6th September 2008, 29th December 2008 and 3rd March 2009, sent via an intermediary, may not have arrived as intended; so on 16th June 2009, Mr. Christopher Story resubmitted the papers, and also reported the possible diversion of previously submitted documents to Thames Valley Police. With this package, I have arranged for everything that we believe to be pertinent to this matter to be provided all together. Unfortunately it has been necessary, due to the resistance mentioned above, to itemize details of what has been happening behind the scenes. We would prefer not to have had to do this, but were left with little choice in the matter. The purpose of this letter, apart from providing you with these materials, is to seek confirmation that the advice repeatedly proffered to me and to Mr. Cottrell by William H. Bonney will now be acted upon. In this connection you will of course be well aware that international financial affairs are now in almost permanent turmoil, and that further delay, due to the aforementioned resistance, in implementing the sole sound formula risks the integrity of our financial and real economies and most regrettably of the supreme British authority itself. I would therefore be most grateful for a positive response at your earliest convenience, so that matters can start to be brought under control by the means originally recommended by Her Majesty. Sincerely Yours, HODGES ANDASSOCIATES A. CLIFTON HODGES csonward.weebly.com/ cmkxunofficial.proboards.com/index.cgi?board=mofo&action=display&thread=7004
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Post by travelbugaz on Nov 13, 2010 9:32:53 GMT -5
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Post by sandi66 on Dec 3, 2010 17:09:03 GMT -5
Motion to Dismiss w/prejudice www.cacd.uscourts.gov/CACD/JudgeReq.nsf/d46c74ea800a4d3688256e5300731cd7/ea9d637dcccefc41882577ee00708458/$FILE/10-31%20Anderson%20v%20Cox%20MTD.pdf or tinyurl.com/25ym9qz MTD granted -------------------------------------------------------------------------------- 1 Plaintiffs are David Anderson, Nelson L. Reynolds, Sheila Morris, Patrick Cluney, Robert Hollenegg, Allan Treffry, and Reece Hamilton. 2 See, e.g., Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th Cir. 1996) (Takings Clause); Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir.1998) (Due Process Clause). 1 David Anderson, et al. v. Christopher Cox, et al., SAVC 10-31 JVS (MLGx) Tentative Order Granting Motion to Dismiss The present action arises out of the sale of stock from CMKM Diamonds, Inc. (“CMKM”), to plaintiffs,1 the corporation’s subsequent implementation of its resolution to self-liquidate, and the involvement of the Securities and Exchange Commission (“SEC”) in that process. Plaintiffs have brought an action against a number of former and present SEC Chairpersons and Commissioners, asserting claims for declaratory judgment and deprivation of their Fifth Amendment Rights under the Takings Clause and the Due Process Clause. Presently before the Court is the Motion to Dismiss the Revised First Amended Complaint (“FAC”) of defendants Christopher Cox, Mary L. Shapiro, Cynthia A. Glassman, Paul S. Atkins, Roel C. Campos, Annette L. Nazareth, Troy A. Paredes, Luis A. Aguilar, Elisse B. Walter, and Kathleen L. Casey (collectively, “Defendants”). The Court previously, on August 2, 2010, dismissed plaintiffs’ Complaint because plaintiffs failed to identify a viable property interest. The holding of a property interest is a necessary predicate to both a Takings Clause claim and a procedural due process claim.2 Moreover, as to the Takings Clause claim, the Court noted that mere ownership of shares of stock could not establish the property interest because the Takings Clause does not protect shareholders from a government caused reduction of corporate equity. See Aug. 2, 2010, Order (Docket No. 15) at 5 (citing Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th Cir. 1996) (noting that, in addition to the lack of case law authority suggesting the Takings Clause applies to cases not involving rights in real property, shareholders have no proprietary interest in corporate assets or profits in the absence of a declared dividend)). 2 The Court dismissed the Complaint with leave to amend. Plaintiffs filed the FAC, adding certain factual allegations. Relevant to the present discussion, and presented along with relevant factual allegations from the original Complaint, they may be summarized as follows. I. Factual Allegations The day before CMKM resolved to self-liquidate, the co-chair of the Board of Directors (Robert A. Maheu) resigned, and the other co-chair “agreed to remain as the sole officer and Director . . . until the affairs of CMKM were would up to ensure all shares and other assets . . . were properly distributed to its stockholders . . . .” FAC ¶¶ 34-35. CMKM thereafter traded certain assets for 50 million shares in a corporation called Entourage. FAC ¶ 34. On the day CMKM resolved to selfliquidate, October 21, 2005, a Task Force was appointed, “to conduct and orderly and verifiable pro rata liquidating distribution” of CMKM’s assets. FAC ¶ 35. A website was set up to help identify bona fide shareholders of CMKM. FAC ¶ 36. On January 19, 2006, the Task Force issued a press release regarding the reduction in total shares of Entourage from 50 million to 45 million, with proceeds to be distributed to CMKM shareholders. FAC ¶ 38. Based on these facts, “[t]he CMKM shareholders . . . believed a pro-rata share of the assets that the company possessed would be duly distributed.” FAC ¶ 39. According to plaintiffs, “ ince Entourage had considerable assets and no substantial liabilities, the shareholders then held a vested pro-rata property right interest protected under the Constitution.” FAC ¶ 39. At points of time not entirely clear, defendants began to use CMKM as a “sting operation” to identify illegal trading activity. See FAC ¶¶ 46-48. Beginning some time before the resolution to self-liquidate and continuing thereafter, Maheu negotiated settlements between those caught in the SEC’s sting operation and the SEC. FAC ¶ 48. These actions tended to injure the interests of the shareholders and delayed any distribution of assets to shareholders. FAC ¶ 46, 49. Plaintiffs allege that all the moneys were intended to be distributed within a year of October, 2005, but that, five years later, no funds have been released. FAC ¶ 53. 3 II. Legal Standards for Dismissal A. Rule 12(b)(1) Dismissal under Rule 12(b)(1) is proper when the plaintiff fails to properly plead subject matter jurisdiction in the complaint. Fed. R. Civ. P. 12(b)(1). The plaintiff always bears the burden of establishing subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). For a facial attack on subject-matter jurisdiction, the Court accepts all allegations in the complaint as true. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). However, for a factual attack, the Court “need not presume the truthfulness of the plaintiff’s allegations.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). The Court may dismiss on jurisdictional grounds if the material allegations in the complaint are “controverted by undisputed facts in the record.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). B. Rule 12(b)(6) Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim upon which relief can be granted. A plaintiff must state “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility” if the plaintiff pleads facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (May 18, 2009). In resolving a 12(b)(6) motion under Twombly, the Court must follow a two-pronged approach. First, the Court must accept all well-pleaded factual allegations as true, but “[t]hread-bare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Nor must the Court “accept as true a legal conclusion couched as a factual allegation.” Id. at 1949-50 (quoting Twombly, 550 U.S. at 555). Second, assuming the veracity of wellpleaded factual allegations, the Court must “determine whether they plausibly give rise to an entitlement to relief.” Id. at 1950. This determination is context-specific, requiring the Court to draw on its experience and common sense, but there is no plausibility “where the well-pleaded facts do not permit the court to infer more 4 than the mere possibility of misconduct.” Id. III. Official Capacity Claims Sovereign immunity bars claims against the United States and its officers when sued in their official capacity. Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997) (“The doctrine of sovereign immunity applies to federal agencies and to federal employees acting within their official capacities.”). Where there is no waiver of sovereign immunity, the Court lacks subject-matter jurisdiction to hear claims against the United States or its officers. Id. (“The terms of the United States' consent to be sued in any court define that court's jurisdiction to entertain the suit.”). The Federal Tort Claims Act (“FTCA”) provides a limited waiver of that immunity; however, the FTCA does not include a waiver of sovereign immunity for constitutional tort claims. Pesnell v. Arsenault, 543 F.3d 1038, 1041 (9th Cir. 2008). Thus, to the extent plaintiff’s claims against the defendants are asserted against them in their official capacity, no court has jurisdiction, and those claims are therefore dismissed with prejudice. IV. Individual Capacity Claims As to the individual capacity claims, plaintiffs have failed to correct the pleading deficiency the Court found fatal to their claims when considering the Motion to Dismiss the original Complaint: Plaintiffs fail to set forth factual allegations supporting their claim to a property interest. Nevertheless, even if the Court were to hold that plaintiffs have sufficiently pleaded a property interest, the claims asserted still fail. The takings claim fails because, as noted by the Court in its previous Order, the Ninth Circuit has held that a takings claim is not cognizable under the present facts. See Broad, 85 F.3d at 430. In Broad, the court considered the takings claim of a number of shareholders who challenged the creation of a trust that favored one group of shareholders (those who had attained the age of 65) over another. Id. at 5 425-26. In rejecting the takings claim, the court noted that “almost universally” takings claims involve rights to real property, and plaintiffs cited no cases suggesting that the Takings Clause applied to their personal property. Id. at 430. The court went on to note that, by definition, shareholders do not “directly own any part of a corporation’s property or assets,” and that shareholders merely held a “proportionate interest in the corporate equity remaining after a corporation meets all its other debts and obligations.” Id. On those facts, which are indistinguishable from those presented here, the court concluded: “Thus, the plaintiff shareholders have no proprietary interest that could have been ‘taken.’” Id. For this reason, plaintiffs may not assert their takings claim. Plaintiff’s procedural due process claim also fails. A procedural due process claim has two elements: deprivation of a constitutionally protected liberty or property interest and denial of adequate procedural protection. Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir.1998). Property interests are not constitutionally created; rather, protected property rights are “created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 577 (1972). Even assuming that plaintiffs have identified a property right in the abstract, plaintiffs have not cited authority suggesting that such a right is constitutionally protectable. In its research, the Court has not found authority suggesting that the right of a shareholder to receive proceeds from the winding up of a corporation is a constitutionally protected property right entitling the shareholder to a due process hearing. Plaintiffs have no more than a “unilateral expectation”; to proceed here they must have a “legitimate claim of entitlement,” id. at 577, and they do not. In the absence of an underlying claim, the declaratory relief claim must be dismissed. Nationwide Mut. Ins. Co. v. Liberatore, 408 F.3d 1158, 1161 (9th Cir. 2005) (noting that the Declaratory Judgment Act does not confer federal subject-matter jurisdiction). 3 In view of the disposition of the Takings Clause and the Due Process Clause claims, the Court need no consider the argument that each defendant’s conduct has not been sufficiently detailed, and that they are entitled to qualified immunity. Motion at 11-14. 6 V. Conclusion Defendants Motion to Dismiss is granted. Plaintiffs’ claims are dismissed with prejudice.3 IT IS SO ORDERED
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Post by sandi66 on Dec 10, 2010 22:27:56 GMT -5
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Post by sandi66 on Jan 28, 2011 10:17:01 GMT -5
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Post by sandi66 on Feb 1, 2011 6:45:50 GMT -5
Re: Appeal filed~ « Reply #45 Today at 7:10am » -------------------------------------------------------------------------------- They're back.. Did AT & PC receive what they were requesting too see??? TY Nighthawk 01/28/201136 NOTIFICATION by Circuit Court of Appellate Docket Number 11-55169, 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals, 33 as to Plaintiff David Anderson, Patrick Cluney, Reece Hamilton, Robert Hollenegg, Sheila Morris, Nelson L Reynolds, Allan Treffry. (cbr) (Entered: 01/31/2011) 01/28/201137 APPEAL FEE PAID: re Notice of Appeal to 9th Circuit Court of Appeals, 33 as to Plaintiff David Anderson; Receipt Number: SA000916, Paid in the amount of $455. (lr) (Entered: 01/31/2011) www.scribd.com/full/47947886?access_key=key-26t6an473jpv4e6bj5heJan 28, 2011, 11:24am, snifferpup wrote:Thanks bikini~ Al Filed.. « Thread Started Today at 9:54am » 01/27/2011 NOTICE OF APPEAL to the 9th CCA filed by Plaintiffs David Anderson, Reece Hamilton, Robert Hollenegg, Sheila Morris, Nelson L Reynolds. Appeal of Order Dismissing Case 32 (Appeal fee FEE NOT PAID.) (Attachments: # 1 Order of Dismissal, # 2 Service List)(Hodges, A) (Entered: 01/27/2011) convert.neevia.com/docs/2d597b5b-2e78-4cf7-b8d3-acbb8e54836f/1.pdf01/27/2011 REPRESENTATION STATEMENT re Notice of Appeal to 9th Circuit Court of Appeals, 33 . (Hodges, A) (Entered: 01/27/2011) convert.neevia.com/docs/af988a56-d6d1-44e8-81e3-dd1d55d662d0/2.pdf01/27/2011 Civil Appeals Docketing Statement received from forwarded to 9th CCA. RE: Notice of Appeal to 9th Circuit Court of Appeals, 33 (Attachments: # 1 Order of Dismissal, # 2 Service List)(Hodges, A) (Entered: 01/27/2011) convert.neevia.com/docs/a3566b74-a778-441e-9be7-ec1fb09dba8e/3.pdfRead more: qbidtalk.proboards.com/index.cgi?....9#ixzz1CLGFR4GhRead more: cmkxhottub.proboards.com/index.cg....7#ixzz1CLGaXKif « Last Edit: Today at 7:11am by seeking » tramp2.proboards.com/index.cgi?action=display&board=general&thread=15937&page=3#101051
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Post by sandi66 on Mar 14, 2011 19:54:22 GMT -5
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Post by sandi66 on Mar 16, 2011 5:57:20 GMT -5
Re: Court of Appeals Conference call for 3/21/11 Case: 11-55169 03/03/2011 Page: 1 of 5 ID: 7666677 DktEntry: 6 FILED MAR 03 2011 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS DAVID ANDERSON, Lt. Col; et al., Plaintiffs - Appellants, v. CHRISTOPHER COX, an individual; et al., Defendants - Appellees. No. 11-55169 ORDER SETTING ASSESSMENT CONFERENCE Date: March 21, 2011 Time: 2:00 p.m. Pacific (San Francisco) Time The Mediation Program of the Ninth Circuit Court of Appeals facilitates settlement while appeals are pending. See Fed. R. App. P. 33 and Ninth Cir. R. 33-1. The court has scheduled a telephone settlement assessment conference, with counsel only, on March 21, 2011, at 2:00 p.m. PACIFIC (San Francisco) Timeto discuss whether this case is appropriate for participation in the Mediation Program. The Circuit Mediator will initiate the conference call by contacting each person on the attached list of participants at the telephone number listed. Please be available for the call at least five minutes before the scheduled time. Counsel should review the attached list and inform the Mediation Assistant by email (Beatriz_Smith@ca9.uscourts.gov) at least 72 hours in advance of the scheduled call of any of the following: (1) any attorneys on the list of counsel who will not be participating in the conference; (2) the direct dial phone number of any participant if it is not listed; and (3) any other corrections to the list. Please notify the Circuit Mediator immediately by fax (415-355-8566) if the dispute is settled, the appeal is dismissed or if counsel has an unavoidable scheduling conflict. Please copy all counsel on any such communications. PAGE 1 -------------------------------------------------------------------------------- All discussions that take place in the context of the assessment conference are strictly confidential. For more detailed information about the assessment conference, confidentiality, the Mediation Program and its procedures generally, please see the attachment to this order and the Mediation Program web site: www.ca9.uscourts.gov/mediation. The briefing schedule previously set by the court remains in effect. FOR THE COURT: By: Elisa P. Monterola Deputy Clerk PAGE 2 LIST OF CONFERENCE PARTICIPANTS David Anderson, Lt. Col.; et al. Plaintiffs - Appellants v. Christopher Cox, an individual; et al. Defendants - Appellees A. Clifton Hodges, Esq. TEL: 626-564-9797 FAX: 626-564-9111 EMAIL: al@hodgesandassociates.com HODGES & ASSOCIATES 4 East Holly Street, Suite 202 Pasadena, CA 91103-3900 Andre Birotte, Esq. TEL: 213-894-4465 EMAIL: No Email Address OFFICE OF THE U.S. ATTORNEY 312 North Spring Street, Suite 1200 Los Angeles, CA 90012 Leon Warren Weidman, AUSA EMAIL: lee.weidman@usdoj.gov Civil Division Keith M. Staub, Esq. TEL: 213-894-7423 FAX: 213-894-7819 EMAIL: keith.staub@usdoj.gov USLA - OFFICE OF THE U.S. ATTORNEY 300 North Los Angeles Street Room 7516 Federal Bldg. Los Angeles, CA 90012 PAGE 3 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CIRCUIT MEDIATION OFFICE Email: ca09_mediation@ca9.uscourts.gov Phone: 415-355-7900 Fax: 415-355-8566 INFORMATION ABOUT ASSESSMENT CONFERENCES Overview of Purpose and Participants • The purpose of the assessment conference is to provide an opportunity for counsel and the Circuit Mediator to have a frank discussion about settlement. The mediator will explore the parties’ interests in settlement and, if appropriate, work with counsel to design a process to pursue resolution of the dispute. • The conference will be conducted by one of the nine Circuit Mediators, all of whom are court employees with extensive mediation and litigation experience. Appeals are randomly assigned to the Circuit Mediators irrespective of the subject matter or issues on appeal. The Circuit Mediators are authorized to file orders on most procedural matters, including vacating or moving the briefing schedule. • Counsel for all parties who intend to file briefs in the case should participate in the assessment conference. The lawyer with the closest relationship to the client should be on the call. Clients are neither expected nor required to participate in the assessment conference. • In advance of the conference, counsel should have a discussion with their clients about their goals in the litigation, its possible costs and outcomes (good and bad), the potential for further legal proceedings, and what issues beyond the litigation might be explored in mediation. (See the court’s website for a list of questions for exploring the suitability of the dispute for settlement.) • During the conference, counsel and the Circuit Mediator will discuss the factual and legal background of the dispute, the legal issues involved in the litigation and on appeal, any related legal proceedings, and any other considerations that may affect the parties' willingness to engage in settlement discussions. The scope of discussions is not limited to the issues on appeal and can include related legal proceedings or any other issues between the parties. PAGE 4 Confidentiality • Settlement-related information disclosed to a Circuit Mediator will be kept confidential and will not be disclosed to the judges deciding the appeal or to any other person outside the Mediation Program participants. Ninth Cir. R. 33-1. • All participants in the assessment conference are required to abide by the Mediation Program’s confidentiality rules. With limited exceptions, any communication made by the Circuit Mediator or any participant during the conference may not be used in any pending or future proceeding in this court or any other forum and may not be disclosed to anyone who is not a participant. Gen. Or. 7.4. Likely Outcomes of Assessment Conference • At the conclusion of the assessment conference, the Circuit Mediator may confirm in an order the agreements of the parties regarding the scope, process and timing of any further settlement efforts. Typical settlement processes include in-person mediation sessions, telephone settlement dialogues facilitated by the Circuit Mediator, or direct discussions between counsel. • The parties may agree to defer briefing in order to focus on settlement efforts or to provide an opportunity for circumstances to develop that might make settlement more likely. In most cases, the deferral of briefing will not delay disposition of the appeal, since the date of the filing of the notice of appeal controls when an appeal is assigned to a three-judge panel for decision. • At any point that the parties choose not to pursue settlement efforts, the Circuit Mediator will work with the parties to resolve any outstanding procedural issues and will enter orders effectuating any procedural agreements. More information is available on the Mediation Circuit link on the Ninth Circuit website www.ca9.uscourts.gov/mediation. PAGE 5 www.ca9.uscourts.gov/mediation/A Message From The Chief Judge For over twenty years, the Ninth Circuit Court of Appeals has operated a court mediation and settlement program. During that time, experienced and skilled circuit mediators have worked cooperatively with attorneys and their clients to resolve a variety of disputes. The disputes mediated range from the most basic contract and tort actions to the most complex cases involving important issues of public policy. The mediators have even successfully resolved death penalty cases. No case is too big or too small for mediation in the court's program. The court offers this service, at no cost, because it helps resolve disputes quickly and efficiently and can often provide a more satisfactory result than can be achieved through continued litigation. Each year the mediation program facilitates the resolution of hundreds of appeals. The judges of the Ninth Circuit are extremely proud of the professional work of the nine circuit mediators, all of whom are full-time employees of the court. They are highly experienced and qualified attorneys from a variety of practices and have extensive training and experience in negotiation, appellate mediation, and Ninth Circuit practice and procedure. Although the mediators are court employees, they are well shielded from the rest of the court's operations. The court has enacted strict confidentiality rules and practices; all who participate in one of the court's mediations may be assured that what goes on in mediation stays in mediation. Experience has shown that counsel and litigants will find professional, efficient and effective mediation services from the court's highly regarded Circuit Mediation Office. Alex Kozinski, Chief Judge tramp2.proboards.com/index.cgi?board=general&action=display&thread=16443ty Duc
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Post by sandi66 on Jun 16, 2011 18:49:10 GMT -5
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