From Hodges and Associates « Thread Started Today at 5:28pm »
-------------------------------------------------------------------------------- As most are aware, Hodges and Associates has prepared and is ready to file a comprehensive Bivens based action against each of the SEC Commissioners whom have served since January 1, 2006. Just before filing on this date, we received credible information which we believe justifies a short withholding of action. The details of this information are not for publication, at least for the moment. Additional information will be available within hours, or a day or two.
Although we can hear the collective groan at another delay in this already unreasonably delayed saga, that's the reality. Another reality is that we wouldn't delay without very, very good reason to do so.
Jan 5 - Hodges and Associates « Thread Started Today at 8:22pm »
-------------------------------------------------------------------------------- Hi Everyone,
Here's the substance of what Al sent to the leads a short time ago:
As we advised yesterday, Hodges and Associates has received credible information which we believe justifies a short withholding of action. The details of this information are not for publication, at least for the moment. Additional information will not be available for 36 to 48 additional hours. We do, however, continue to believe that we have very, very good reason to withhold action for another day or two.
particleswaves (Dennis Smith) Hodges and Associates
Thursday, Jan 7 - Hodges and Associates « Thread Started Today at 6:01pm »
-------------------------------------------------------------------------------- Good Evening everyone,
The following is the substance of the update Al sent to the lead plaintiffs a short time ago.
As we advised on January 5th, Hodges and Associates has received credible information which we believe justifies a short withholding of action. The details of this information are not for publication. The additional information we expected to be available within 48 additional hours has not been fully completed. We do, however, continue to believe that we have very, very good reason to withhold action for the moment. We remain prepared to file our Bivens complaint as soon as we become aware that it is necessary.
The following is a copy of the update sent to the leads a short while ago:
As we previously advised, we have remained prepared to file our Bivens complaint, and have been monitoring developments very closely. Late this morning I received information which convinced me that filing was now required; accordingly the Complaint was filed in the United States District Court, Central District of California, Santa Ana Division this afternoon. A Conformed copy is attached for your files and general use. Please feel free to post is you so desire.
I will be in touch with you further when time and circumstance permit me to set forth the facts surrounding this 11th hour decision.
A. Clifton Hodges (CSBN 046803) HODGES AND ASSOCIATES
TEXT OF THE CMKM/CMKX LAWSUIT AGAINST THE S.E.C. CASE NUMBER CV10-00031-JVS (MLGX): SEE REPORT DATED 7TH JANUARY 2010 Saturday 9 January 2010 03:15 THE SUMMONS CIVIL COVER SHEET DISPLAYS: 'MONEY DEMANDED IN COMPLAINT: $3.87 TRILLION'
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
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
DAVID ANDERSON, LT. COL.; NELSON L. REYNOLDS, LT. COL.; SHEILA MORRIS; PATRICK CLUNEY; ROBERT HOLLENEGG; ALLAN TREFFRY; and REECE HAMILTON, Individually and on behalf of all similarly situated,
CHRISTOPHER COX, an individual; MARY L. SCHAPIRO, an individual; CYNTHIA A. GLASSMAN, an individual; PAUL S. ATKINS, an individual; ROEL C. CAMPOS, an individual; ANNETTE L. NAZARETH, an individual; TROY A. PAREDES, an individual; LUIS A. AGUILAR, an individual; ELISSE B. WALTER, an individual; KATHLEEN L. CASEY, an individual;
and DOES 1 through 10, inclusive,
Defendants. Case No.: CV10-00031-JVS (MLGx)
COMPLAINT FOR DECLARATORY JUDGMENT, AND FOR DAMAGES FOR VIOLATION OF CIVIL RIGHTS
(JURY TRIAL DEMANDED)
COME NOW Plaintiffs DAVID ANDERSON, LT. COL.; NELSON L. REYNOLDS, LT. COL.; SHEILA MORRIS; PATRICK CLUNEY; ROBERT HOLLENEGG; ALLAN TREFFRY; and REECE HAMILTON, individually and on behalf of all others similarly situated, who, for causes of action herein allege:
1. This action for declaratory judgment and for damages for violations of the Plaintiffs’ civil rights under Bivens v. Six Unknown Agents of the F.B.I., 403 U.S. 388 (1971), against Commissioners of the Securities and Exchange Commission, arises out of actions and failures to act occurring over the period from January 1, 2006 to date by Defendants CHRISTOPHER COX, an individual; MARY L. SCHAPIRO, an individual; CYNTHIA A. GLASSMAN, an individual; PAUL S. ATKINS, an individual; ROEL C. CAMPOS, an individual; ANNETTE L. NAZARETH, an individual; TROY A. PAREDES, an individual; LUIS A. AGUILAR, an individual; ELISSE B. WALTER, an individual; KATHLEEN L. CASEY, an individual; and other government agents whose names are not now known to the Plaintiffs.
2. These Defendants, acting in the course and scope of their employment by the United States of America as duly authorized Commissioners of the Securities and Exchange Commission, a federal agency, through their acts and omissions knowingly, consciously, wrongly, without compensation and without due process of law have effected a taking of property from each of the named Plaintiffs and all who are similarly situated.
JURISDICTION AND VENUE:
3. This action for declaratory relief and damages is predicated on the provisions of the Constitution and Statutes of the United States, the legal and equitable jurisdiction of this Court, the principles of common law, and this Court’s concurrent and pendant jurisdiction.
4. This Court has jurisdiction over the Plaintiffs’ claims under Article III of the United States Constitution and the Fifth Amendment thereto. This Court has jurisdiction over Plaintiffs’ property rights under the foregoing citations and, in addition, pursuant to Title 28 U.S.C., Section 1331 and the case law precedent of Bivens v. Six Unknown Agents of the F.B.I., 403 U.S. 388 (1971).
5. Venue is proper in this Court under Title 28 U.S.C., Section 1391(e)(1)/(2). Defendants are all past or current Commissioners of the Securities and Exchange Commission and therefore agents of the United States Government, and a substantial part of the property, and the acts related to such property subject to Plaintiffs’ claims, occurred or was situated in this Central District of California at all times relevant.
6. Plaintiff DAVID ANDERSON, LT. COL., U.S. Air Force pilot, resides in the State of Missouri, owns more than 280,000,000 shares of stock in CMKM Diamonds, Inc., and at all times relevant to the allegations set forth herein, was a citizen of the United States.
7. Plaintiff NELSON L. REYNOLDS, LT. COL., U.S. Air Force pilot, resides in the State of Texas, owns more than 15,000,000 shares of stock in CMKM Diamonds, Inc., and at all times relevant to the allegations set forth herein, was a citizen of the United States.
8. Plaintiff SHEILA MORRIS, a company owner/CEO resides in the State of North Carolina, owns more than 400,000,000 shares of stock in CMKM Diamonds, Inc., and at all times relevant to the allegations set forth herein, was a citizen of the United States.
9. Plaintiff PATRICK CLUNEY, a retired professional athlete resides in the State of Florida, owns more than 680,000,000 shares of stock in CMKM Diamonds, Inc., and at all times relevant to the allegations set forth herein, was a citizen of the United States.
10. Plaintiff ROBERT HOLLENEGG resides in the State of North Carolina, owns more than 85,000,000 shares of stock in CMKM Diamonds, Inc., and at all times relevant to the allegations set forth herein, was a citizen of the United States.
11. Plaintiff ALLAN TREFFRY, a licensed State of California Attorney, resides in the County of Los Angeles, State of California, owns more than One Billion shares of stock in CMKM Diamonds, Inc., and at all times relevant to the allegations set forth herein, was a citizen of the United States.
12. Plaintiff REECE HAMILTON, a business owner/partner resides in the County of Los Angeles, State of California, owns more than One Billion shares of stock in CMKM Diamonds, Inc., and at all times relevant to the allegations set forth herein, was a citizen of the United States.
13. Defendants CHRISTOPHER COX, Chairman 2005-2009, MARY L. SCHAPIRO, Chairman 2009-2010, CYNTHIA A. GLASSMAN Commissioner 2002-2006, PAUL S. ATKINS, Commissioner 2002-2008, ROEL C. CAMPOS, Commissioner 2002-2007, ANNETTE L. NAZARETH, Commissioner 2005-2008, TROY A. PAREDES, Commissioner 2008-2010, LUIS A. AGUILAR Commissioner 2008-2010, ELISSE B. WALTER Commissioner 2008-2010 and KATHLEEN L. CASEY, Commissioner 2008-2010: are and, at all referenced times mentioned herein were, acting as individuals and as Commissioners of the Securities and Exchange Commission, an agency of the UNITED STATES OF AMERICA, and acting within the course and scope of their employment. These Defendants are the real parties in interest in the claims set forth herein.
14. Other employees and servants of the Securities and Exchange Commission are also liable for damages under the causes of action set out in this Complaint. However, the names of these employees and servants are not now known to Plaintiffs, who thereby names them herein as DOES 1 through 10. When the names of these employees and servants become known, Plaintiffs reserve the right to amend this Complaint to add the names of these DOE Defendants.
FACTUAL CONTENTIONS APPLICABLE TO ALL CAUSES OF ACTION:
15. In November and December, 2002, CYBER MARK INTERNATIONAL INC., a public company domiciled in Nevada, reverse-merged with Casavant Mineral Claims, which then held mineral claims to more than 600,000 acres within Saskatchewan, Canada, increased authorized capital from 500,000,000 to 10,000,000,000 common shares, cancelled all preferred shares, and changed its name to CASAVANT MINING KIMBERLITE INTERNATIONAL, INC. (CMKI); as of February 3, 2003, 7,241,653,404 shares were issued and outstanding.
16. During the succeeding months CMKI declared a 2 for 1 stock split and filed with the Securities and Exchange Commission: Form 15 exemption claim, July, 2003; Certificate of Amendment to Articles of Incorporation changing its name to CMKM DIAMONDS, INC. (CMKM), February 5, 2004; Certificate of Amendment to Articles of Incorporation raising its authorized capital to 500,000,000,000 common shares @ $0.001 par value, March 1, 2004; Certificate of Amendment to Articles of Incorporation correcting the par value of common shares as of December 26, 2002 to $0.0001 par value, July 13, 2004; Certificate of Amendment to Articles of Incorporation raising its authorized capital to 800,000,000,000 common shares @ $0.0001 par value, July 13, 2004.
17. During the summer and fall of 2004: New York Attorney Roger Glenn was retained by the company; the number of acres upon which CMKM held claims increased to over 1.2 Million acres; claims development activity was pursued by the company; and a shareholders appreciation party was planned to be celebrated in Las Vegas, Nevada to thank the shareholders, to give them an opportunity to meet company personnel, and to announce an agreed upon merger with another public company, U.S. CANADIAN MINERALS INC. On the eve of the party celebration, the Securities and Exchange Commission placed an order on CMKM preventing any public disclosure of anticipated mergers or other development information.
18. In early 2005, CMKM announced the addition of Robert A. Maheu to the Board of Directors who shortly thereafter became the co-chairman of the Board; CMKM announced a new “corporate strategy plan to dramatically and comprehensively transform” the company for generation of consistent, long-term growth and profitability for the shareholders; CMKM filed an amended Form 15 on February 17, 2005 reinstating the company to a public reporting status; and on March 3, 2005 was notified by the Securities and Exchange Commission of a temporary suspension of trading of the company’s stock (Pink Sheets-CMKX) based upon, inter alia, concerns over the “adequacy” of publicly available information.
19. On March 16, 2005 the Securities and Exchange Commission instituted a public administrative proceeding pursuant to Section 12 (j) of the Securities Exchange Act of 1934 against CMKM to determine whether the company was required to file periodic reports under Section 12(g) and whether CMKM failed to comply with Section 13(a), and rules there-under, by failing to so file. CMKM responded on April 11, 2005 admitting that CMKM had a duty to file public reports and alleging various grounds of mistake, malpractice and other affirmative defenses to the factual allegations.
20. From March 17, 2005 through April 29, 2005 CMKM traded publicly in the US under the trading symbol “CMKX,” a total of 551,756,751,833 shares, an average share volume of more than 17 billion shares per day, reaching a maximum on April 21, 2005 of 94,654,588,201 shares. These figures do not include foreign trades nor trades made on an ex-clearing basis such as those disclosed by Jefferies & Company , Inc. on May 6, 2005: between March 25, 2004 and September 21, 2004 Jefferies traded 111,780,681,204 shares of CMKX stock on an ex-clearing basis.
21. On May 10, 2005 the Section 12 (j) administrative proceeding was conducted in a United States Central District of California courtroom; the Administrative Law Judge, Honorable Brenda P. Murray entered her decision on July 12, 2005 finding the facts to be as alleged by the Securities and Exchange Commission. CMKM then filed a Petition for Review which was granted, and a briefing schedule set.
22. On October 20, 2005: Robert A. Maheu resigned as a member and co-chairman of the CMKM Board of Directors; Urban Casavant agreed to remain as the sole officer and Director of CMKM until the affairs of CMKM were wound up to ensure all shares and other assets of CMKM were properly distributed to its stockholders; CMKM entered into an agreement with Entourage Mining Ltd. pursuant to which CMKM assigned its 50% interest in United Carina Resources Corp. to Entourage for 15,000,000 shares of stock, sold its 36% interest in Nevada Minerals, Inc. claims to Entourage for 5,000,000 shares of stock, and made a joint agreement with 101047025 Saskatchewan Inc. and Entourage whereby certain claims were transferred and CMKM became entitled to receive 30,000,000 shares of stock; CMKM’s other agreements with United Carina Resources Corp. and Nevada Minerals Inc. were terminated.
23. On October 21, 2005 CMKM approved formation of a Task Force consisting of Robert A. Maheu, Donald J. Stoecklein and Bill Frizzell for the purpose of assisting CMKM and Mr. Maheu, as “designated Trustee, to conduct an orderly and verifiable pro rata liquidating distribution of any Entourage Mining Ltd. shares…and any other available assets of CMKM;” the SEC Petition for Review was withdrawn by CMKM on October 21, 2005 and a Securities and Exchange Commission Order de-registering CMKM subsequently was formally entered on October 28, 2005. CMKM had 703,518,875,000 shares of common stock issued and outstanding on that date.
24. On November 4, 2005 CMKM established a web site (CMKMTaskForce.com) for the purpose, inter alia, of advising all shareholders to request physical share certificates evidencing their ownership interest in CMKM as one means of establishing that they were bona fide shareholders of the company. The company intended at that time to wind up its affairs and distribute the 50 million shares of Entourage Mining Ltd. stock and any other assets, including previously unpaid dividends, to the bona fide shareholders. The web site set forth procedures to be followed and established a means of registering all bona fide shareholder certificates prior to December 31, 2005; certificates evidencing 43,309,298,585, shares had been registered at that time.
25. A frequently asked question (FAQ) page was added to the web site on the evening of November 4, 2005 and in response to a question about the degree of naked shorting of CMKM stock, the Task Force indicated that “Credible information indicates the number of naked short shares is potentially as high as 2 Trillion shares”.
26. The Task Force issued a press release on January 19, 2006 discussing a reduction in total shares of Entourage Mining Ltd. stock to be distributed to CMKM shareholders from 50 Million shares to 45 Million shares as a result of a reduction in mining claims involved.
The Task Force also discussed issues involving difficulties obtaining physical share certificates being experienced by shareholders; accordingly the deadline date for registration of shares was extended to March 15, 2006.
The Task Force was provided a new “cert list” by First Global Stock Transfer showing certs issued “and active” on January 13, 2006; ADP Services also provided information to the Task Force. This data reflected a sample of 25,021 certificates representing 350,000,000,000 plus shares of stock and a total of more than 67,000 additional certificates to be counted.
27. On March 16, 2006 the Task Force issued a public release that “…we received a visit in our office [in Tyler, Texas] by an E-Trade rep today. This rep personally hand delivered copies of approximately 4000” certificates. Further information regarding on-going discussions with the DTCC and other brokerage houses was also provided.
28. The Task Force provided additional information on March 20, 2006, extending the time for registration of certificates to May 15, 2006, advising the shareholders that Urban Casavant and his immediate family would not participate in the share distribution, and advising that a printed notice to stock holders would be published in at least one nationally circulated United States newspaper.
29. On May 25, 2006 the Task Force received a second batch of 1,200 share certificates from AmeriTrade, having received some 1,000 share certificates a week earlier. AmeriTrade’s cover letter indicated that several hundred more certificates would be delivered within “the next few days.” The deadline for registering certificates of May 15, 2006 had not been extended, although the Task Force continued to advise shareholders that they should obtain their certificates and that the Task Force would honor any bona fide shareholder at the time of asset distribution. By late Fall, 2006, the Task Force had received and counted copies of certificates from more than 39,000 shareholders, evidencing more than 635 Billion shares.
30. Kevin West was hired pursuant to a written agreement by CMKM during the summer of 2006 to assist in winding up the affairs of the company and, more specifically, coordinating the share certificate pull. After serving nearly a year as Interim CEO, Kevin West was appointed Chairman of the Board on March 29, 2007 after which Urban Casavant stepped down as sole director, president, secretary and treasurer of CMKM Diamonds, Inc. Mr. West soon thereafter appointed Bill Frizzell as CMKM General Counsel and provided instructions for the filing of a number of lawsuits to attempt to recover moneys and other assets which had been wrongfully taken from the company.
31. During the period of June 1, 2004 through October 28, 2005 a total of 2.25 Trillion “phantom” shares of CMKM Diamonds Inc, was sold into the public market through legitimate brokers, illegitimate brokers and dealers, market makers, hedge funds, ex-clearing transactions and private transactions. The sales of the majority of such shares were at all times known to the Securities and Exchange Commission, including Defendants herein.
32. At some date prior to June 1, 2004 the Securities and Exchange Commission in concert with the Department of Justice of the United States, together combined with Robert A. Maheu and others to utilize CMKM Diamonds, Inc. for the purpose of trapping a number of widely disbursed entities and persons who were believed to be engaged in naked short selling of CMKM Diamonds Inc. stock and cellar boxing the company.
The Securities and Exchange Commission and the Department of Justice, with assistance from the Department of Homeland Security, believed and developed evidence that said short sellers were utilizing their activities to illegally launder moneys, wrongfully export moneys, avoid payment of taxes, and to support foreign terrorist operations. To fulfill the plan to criminally trap such wrongdoers, the Securities and Exchange Commission, with assistance from the Departments of Justice and Homeland Security:
(a) Assisted in and approved the retention of Roger Glenn, an ex-SEC trial attorney and drafter of Sarbanes-Oxley, to join CMKM Diamonds Inc. for the purpose of verifying claims value, increasing authorized shares of stock to 800,000,000,000, and supervising from the inside of the company;
(b) Encouraged the company to expand its promotional activities, assisted in the set up of the “racing activities” of the company, and underwrote a substantial portion of the cost of such activities;
(c) Consented to, facilitated, and supported the sale of certain company claims to several foreign corporations;
(d) Consented to, facilitated, and supported the conferences between Robert A. Maheu and his associates on the one hand, and the wrongdoing short sellers on the other, all for the purpose of settling the potential liability of said wrongdoers with consent of the U. S. Government and a representation of no criminal prosecution for such illegal sales;
(e) Consented to, facilitated, and supported the declaration of dividends payable by the company to each common shareholder of CMKM Diamonds, Inc.
(f) Consented to, facilitated, and supported the distribution of shares of CIM, a private company owned by Urban Casavant, as a stock dividend, including consent and approval of distribution of said shares to holders of more than 1.4 Trillion shares of CMKM Diamonds, Inc. common stock.
33. During the period from November, 2004 through April, 2005, CMKM Diamonds, Inc. negotiated the sale of some of its Saskatchewan, Canada, mineral claims to three Chinese domiciled corporations with the advice and consent, inter alia, of the Securities and Exchange Commission. Proceeds from the consummation of such sales were placed into a frozen trust for disbursal at a later time.
34. During the period from March, 2004 through August, 2006, on behalf of CMKM Diamonds, Inc. Robert A. Maheu, with assistance from others, negotiated a settlement with the illegitimate brokers, dealers, market makers, hedge funds, and other persons and entities that had engaged in naked short selling of CMKM Diamonds Inc. stock and cellar boxing the company. In exchange for a U. S. Government promise of no prosecution for such sales, the wrongdoers each promised to pay negotiated amounts to a frozen trust for disbursal at a later time.
35. Plaintiffs herein are informed and believe, and based thereon allege, that other moneys have been collected for the benefit of the shareholders of CMKM Diamonds, Inc. from the Depository Trust & Clearing Corporation, from the United States Government, and from the sale of additional assets including consent to enter into joint venture agreements with other companies holding mineral claims in Saskatchewan, Canada. Plaintiffs herein are further informed and believe, and based thereon allege, that said moneys, collected for the benefit of shareholders have also been placed in a trust or are otherwise now held in trust by the Depository Trust & Clearing Corporation and the United States Treasury.
36. Plaintiffs herein are informed and believe, and based thereon allege, that at all times mentioned, the Securities and Exchange Commission reserved unto itself the sole and absolute discretion to determine when moneys collected pursuant to the scheme set forth above would and could be released for distribution.
37. Demand for release of said moneys has been repeatedly presented to the Securities and Exchange Commission without result. Agents and employees of the Securities and Exchange Commission and the Department of Justice have represented repeatedly that the release of moneys for distribution was imminent, and/or would occur within several weeks, and/or would occur within less than a month. Each of said representations have been made knowing them to be false, and at the specific direction of the named Defendants. These actions of withholding distribution of said moneys, without compensation and without due process of law, amount to a taking of the property of the individual Plaintiffs and of all similarly situated.
38. At all times mentioned herein, the Defendants acted with deliberate indifference or reckless disregard for the Constitutional and other rights of all Plaintiffs, or with the intention and knowledge that they were violating Plaintiffs’ Constitutional or other rights or to cause them other injuries, losses and damage.
39. As a result of the Defendants’ misconduct, each of the named Plaintiffs and all of those similarly situated, have been denied their Constitutional rights, including, but not limited to, their Fifth Amendment right to be secure in their property, free from taking without just compensation and without due process of law, and have suffered injuries and property loss in excess of Three Trillion Dollars.
CLASS ACTION ALLEGATIONS:
40. Plaintiffs bring this action individually, and on behalf of all others similarly situated, and in the public interest.
41. Plaintiffs bring this action on behalf of a class of persons who were and are bona fide shareholders in CMKM Diamonds, Inc., a public company directly supervised by the Securities and Exchange Commission.
42. Plaintiffs are members of said class, have a claim typical of the claims of all members of said class, and will fairly and adequately represent the interests of the members of said class.
43. The members of said class are so numerous that joinder of all members is impracticable.
44. All of the class members are wholly identifiable from documents known to be in the possession of Defendants and of the Securities and Exchange Commission.
45. The claims of the members of said class present common issues of fact and law which predominate over any questions affecting only individual members of the class.
46. The defenses available to defendants to the claims of the members of the class present common issues of fact and law which predominate over any questions affecting only individual members of the class.
47. The prosecution of separate actions by the individual members of the class would create a risk of inconsistent or varying adjudications which would establish incompatible standards of conduct for defendants.
48. Adjudications with respect to individual members of said class would, as a practical matter be dispositive of the interest of other members not parties to the individual adjudications or would substantially impair or impede the right and/or ability to protect their interest.
49. Defendants have acted or refused to act on grounds generally applicable to said class thereby making appropriate final injunctive relief with respect to the class as a whole.
50. Unless ordered by this court, Defendants will continue their illegal and wrongful conduct, and repeated actions by individual class members will be required to obtain relief; and thereby the remedies available at law are inadequate.
51. For all of the above reasons, a class action is superior to other available methods for the fair and efficient adjudication of the claims alleged herein.
FIRST CAUSE OF ACTION (FOR DECLARATORY RELIEF AGAINST ALL DEFENDANTS):
52. Plaintiffs incorporate as though fully set forth herein, all of the allegations contained in Paragraphs 1 through 39 above.
53. Plaintiffs allege that an actual controversy exists in this jurisdiction, in that it is the Plaintiffs’ contention that:
(a) The Defendants are, or in the past were, Commissioners of the SECURITIES AND EXCHANGE COMMISSION, an agency of the UNITED STATES OF AMERICA. At all relevant times herein, said Defendants were acting as individuals and in their official capacity as agents of the SECURITIES AND EXCHANGE COMMISSION.
(b) On and after January 1, 2006, the Defendants, acting alone and acting in concert with each other, and acting without just cause, did consciously, knowingly, intentionally and wrongfully cause certain acts and omissions to proceed in such manner as to hinder, delay, and ultimately prevent the distribution of moneys held for the benefit of Plaintiffs, and all similarly situated, said moneys being payable to each said person on a per share basis.
(c) The Defendants, and each of them, acted in their individual and their official capacities with deliberate or reckless disregard for the Constitutional and other rights of Plaintiffs and all similarly situated or with malicious intent and with the knowledge that their acts and omissions violated and denied the Constitutional and other rights of Plaintiffs and all similarly situated, or that their acts would cause said Plaintiffs and all similarly situated other injuries.
(d) The Defendants, and each of them, did unlawfully and wrongfully cause certain acts and omissions to proceed in such manner as to hinder, delay, and ultimately prevent the distribution of moneys held for the benefit of Plaintiffs and all similarly situated, even though the Defendants knew that said persons had a vested interest and Constitutional right to receive said moneys in a timely, unfettered and unconstrained manner.
(e) The Defendants, and each of them, knew that Plaintiffs and all similarly situated had a vested interest and Constitutional right to receive said moneys in a timely, unfettered and unconstrained manner when they committed the acts and omissions set forth above, causing each said person to be deprived of property without just compensation and without due process of law.
54. The Defendants, and each of them, contend to the contrary. Therefore, it is necessary and proper for this Court at this time to determine and declare the validity of the contentions of the parties as set forth above.
SECOND CAUSE OF ACTION (FOR VIOLATION OF THE PLAINTIFFS’ CONSTITUTIONAL RIGHTS AGAINST DEFENDANTS COX, SHAPIRO, GLASSMAN, ATKINS, CAMPOS, NAZARETH, PAREDES,AGUILAR, WALTER, and CASEY):
55. Plaintiffs incorporate as though fully set forth herein all of the allegations contained in Paragraphs 1 through 51, above.
56. Defendants, by committing the above-mentioned acts and omissions, violated and denied the Plaintiffs’ Constitutional rights, and those of all similarly situated, including, but not limited to, their Fifth Amendment right to be secure in their property, free from taking without just compensation and without due process of law.
57. Defendants, and each of them, acted and failed to act with the intent to deny the Constitutional rights of Plaintiffs and of all those similarly situated, or with the intentional or callous disregard or deliberate indifference to those rights. The above described acts of the Defendants, all charged with securities law enforcement as Commissioners of the Securities and Exchange Commission, in violation of the Constitutional rights of Plaintiffs and of all those similarly situated, were not intended to be exempt from liability.
58. As a result of the Defendants’ acts, Plaintiffs and all those similarly situated have suffered injuries and property loss in excess of 3.87 Trillion Dollars in an exact amount to be determined at the time of Trial. Because Defendants’ actions were intentional or done with callous disregard or deliberate indifference to the Constitutional and other rights of all Plaintiffs, this Court should award punitive damages against each individually named Defendant.
WHEREFORE, Plaintiffs seek judgment as follows:
1. For a declaratory judgment, pursuant to Title 28 U.S.C., Sections 2201 and 2202, which determines and declares the validity of the contentions of the parties set forth in Paragraphs 52 to 54, above;
2. For a judgment for compensatory, general and special damages in the amounts prayed for in the Second Cause of action set forth above;
3. For a judgment for punitive damages in an amount sufficient to punish and to make examples of these Defendants, and to deter these Defendants and others from engaging in similar conduct;
4. For an award of reasonable attorney’s fees, expenses and costs of suit incurred herein; and:
5. For such other and further relief as this Court deems just and proper.
Dated: January 10, 2010.
HODGES AND ASSOCIATE
A. CLIFTON HODGES Attorneys for Plaintiffs
DEMAND FOR JURY TRIAL
• EDITOR'S NOTE: This document should be read in conjunction with our reports dated 7th and 9th January 2010. These can be accessed instantly by pressing ARCHIVE.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA (Southern Division - Santa Ana) CIVIL DOCKET FOR CASE #: 8:10-cv-00031-JVS-MLG
David Anderson et al v. Christopher Cox et al Assigned to: Judge James V. Selna Referred to: Magistrate Judge Marc L. Goldman Cause: 28:1331 Fed. Question
Date Filed: 01/08/2010 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
David Anderson Lt. Col represented by A Clifton Hodges Hodges and Associates 4 East Holly Street Suite 202 Pasadena , CA 91103-3900 626-564-9797 Fax: 626-564-9111 Email: email@example.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nelson L Reynolds Lt. Col represented by A Clifton Hodges (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheila Morris represented by A Clifton Hodges (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Cluney represented by A Clifton Hodges (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Hollenegg represented by A Clifton Hodges (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allan Treffry represented by A Clifton Hodges (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reece Hamilton individually and on behalf of all similarly situated represented by A Clifton Hodges (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Cox an individual
Mary L Schapiro an individual
Cynthia A Glassman an individual
Paul S Atkins an individual
Roel C Campos an individual
Annette L Nazareth an individual
Troy A Paredes an individual
Luis A Aguilar an individual
Elisse B Walter an individual
Kathleen L Casey an individual
Does 1 through 10, inclusive
Date Filed # Docket Text
01/08/2010 1 COMPLAINT against defendants Christopher Cox, Mary L Schapiro, Cynthia A Glassman, Paul S Atkins, Roel C Campos, Annette L Nazareth, Troy A Paredes, Luis A Aguilar, Elisse B Walter, Kathleen L Casey, Does.(Filing fee $ 350 paid) jury demand., filed by plaintiffs Allan Treffry, Reece Hamilton, David Anderson, Nelson L Reynolds, Sheila Morris, Patrick Cluney, Robert Hollenegg.(twdb) (Entered: 01/12/2010)
01/08/2010 2 CERTIFICATION AND NOTICE of Interested Parties filed by plaintiffs Allan Treffry, Reece Hamilton, David Anderson, Nelson L Reynolds, Sheila Morris, Patrick Cluney, Robert Hollenegg, (twdb) (Entered: 01/12/2010)
21 DAY Summons Issued re Complaint - (Discovery), 1 as to defendants Christopher Cox, Mary L Schapiro, Cynthia A Glassman, Paul S Atkins, Roel C Campos, Annette L Nazareth, Troy A Paredes, Luis A Aguilar, Elisse B Walter, Kathleen L Casey, Does. (twdb) (Entered: 01/12/2010)
Orange Superior Court Judge James Selna Confirmed To U.S. District Court for Central District
By a MetNews Staff Writer
Orange Superior Court Judge James V. Selna has been confirmed as the newest judge of the U.S. District Court for the Central District of California.
U.S. senators voted 97-0 on Thursday to confirm the 58-year-old jurist after less than two minutes of discussion. Selna was nominated Jan. 29 for the seat left vacant when Judge J. Spencer Letts took senior status in December 2000. Selna, 58, was named to the Orange Superior Court by then-Gov. Pete Wilson on New Year’s Eve, 1998, just before Wilson left office. Before joining the bench he was a partner at O’Melveny & Myers, having joined the firm in Los Angeles right out of Stanford Law School in 1970 and moved to the Newport Beach office in 1978.
His practice focused largely on business litigation, including antitrust and trade secrets issues, often representing technology companies in recent years. Among his antitrust clients was the National Football League.
He also arbitrated as a member of the National Panel and Large Complex Case Panel of the American Arbitration Association.
As a Superior Court judge, his assignments have included long-cause civil trials, criminal cases at the Fullerton courthouse, and civil fast-track. Off the bench, he has served as president and general counsel of the Newport Harbor Art Museum, as a director of Phoenix House, and as a trustee of the county law library.
There is one other vacancy on the court, a result of Carlos Moreno’s appointment to the California Supreme Court. Orange Superior Court Judge Cormac J. Carney was nominated last year for the Moreno seat and had his confirmation hearing this month.
Also Thursday, the Senate, by voice vote, confirmed Philip P. Simon to be U.S. district judge for the Northern District of Indiana. Simon is currently chief of the Criminal Division in the U.S. Attorney’s Office for that district, and is a former associate in the Chicago office of Kirkland & Ellis.
The Senate received three new judicial nominations on Thursday.
John A. Woodthingy Jr. was nominated to the U.S. District Court for the District of Maine. He is a partner in a Bangor law firm, a trustee of Bowdoin College, and longtime chairman of the Board of Trustees of Eastern Maine Medical Center.
Mark R. Kravitz was nominated to the United States District Court for the District of Connecticut. Kravitz is head of the appellate practice group at New Haven-based Wiggin & Dana, arguing before state and federal appellate courts..
He is also a visiting lecturer in law at Yale Law School.
L. Scott Coogler was nominated to the United States District Court for the Northern District of Alabama. Coogler is a circuit court judge in Tuscaloosa.
James V. Selna (born 1945) is a United States federal judge.
Selna was born in San Jose, California. He received an A.B. from Stanford University in 1967. He received a J.D. from Stanford Law School in 1970. He was a Captain, U.S. Army Reserve from 1967 to 1978. He was in private practice in California from 1970 to 1998. He was a judge on the Superior Court, Orange County, California from 1998 to 2003.
Selna was a federal judge on the United States District Court for the Central District of California. Selna was nominated by President George W. Bush on January 29, 2003, to a seat vacated by J. Spencer Letts. He was confirmed by the United States Senate on March 27, 2003, and received his commission the same day.
Selna issued the decision in C. F. et al. v. Capistrano Unified School District et al., issued on May 1, 2009. Selna decided that the teachers words violated the Establishment Clause of the First Amendment.
The above being said...and for what it's worth, I don't like what 2 criminal attorneys and others had to say about him in the below link where as the link states "Judges are Judged".
Comment #: 9626 Rating:1.0 Comments: this kind of person should never even be let near a bench - always sides with whatever side has more money - be it bank or large corporation and he has no compassion whatsoever
Criminal Defense Lawyer
Comment #: 4335 Rating:4.4 Comments: Bush appointee. Friendly, not particularly scholarly. Appears not to fully grasp issues and favors government defendants.
Comment #: 4554 Rating:3.0 Comments: Rubber stamp for the government. Has myopic vision of what a federal judge should be and how one should respond to public pressure. Small-minded, to put it nicely.
Comment #: 6259 Rating:Not Rated Comments: When he threw out the case that Shell Oil Company dealers had against Shell Oil, he pretty much jumped in bed with Big Oil, and showed he is more focused on his future in a political arena owned by big money interests. Shell dealers have been run out of business, and many ruined financially, by their parent oil company, and he is helping by throwing the case out. He should be ashamed. Just my opinion.
God Bless those with "Righteous" intent!
P.S. I tremendously enjoy that the ball is rolling...and look forward to what I feel is the "Financial Fruition" to come for CMKX Shareholders. IMHO, of course.
Hodges and Associates 1-15-10 « Thread Started Today at 6:28pm »
-------------------------------------------------------------------------------- Good Evening, Al sent the following to the leads a short time ago.
As we have previously advised, we expected that certain matters would be resolved by this date, which is a national financial drop-dead date. At this hour, the day is not concluded; however, I have received information which suggests that this deadline will not be met. I do not feel it appropriate to say more at this time. In the event that developments warrant it, I will update you further as the weekend progresses.
Please feel free to post the above if you so desire.
2nd Item UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DAVID ANDERSON, LT. COL., ET AL, Plaintiff(s), v. CHRISTOPHER COX, ET AL, Defendant(s).
CASE NO. SACV 10-31-JVS(MLGx) ORDER SETTING RULE 26(f) SCHEDULING CONFERENCE Date: APRIL 26, 2010 Time: 10:30 A.M. _______________________________) This case has been assigned to Judge James V. Selna. If plaintiff has not already served the complaint (or any amendment thereto) on all defendants, plaintiff shall promptly do so and shall file proofs of service within three days thereafter. Defendants also shall timely serve and file their responsive pleadings and file proofs of service within three days thereafter. This matter is set for a scheduling conference on the above date. The conference will be held pursuant to Fed.R.Civ.P., Rule 16(b). The parties are reminded of their obligations under Fed.R.Civ.P., Rule 26(a)(1) to disclose information (without awaiting a discovery request) and under Rule 26(f) to confer on a discovery plan not later than twenty-one (21) days prior to the scheduling Case 8:10-cv-00031-JVS-MLG Document 6 Filed 03/25/10 Page 1 of 7
2 conference and to file a Joint Rule 26(f) Report not later than fourteen (14) days after they confer. Failure to comply with the following requirements or to cooperate in the preparation of the Joint Rule 26(f) Report may lead to the imposition of sanctions. Unless there is a likelihood that upon motion by a party the Court would order that any or all discovery is premature, it is advisable for counsel to begin to conduct discovery actively before the Scheduling Conference. At the very least, the parties shall comply fully with the letter and spirit of Rule 26(a) and thereby obtain and produce most of what would be produced in the early stage of discovery. 1. Joint Rule 26(f) Report. The Joint Rule 26(f) Report, which shall be filed not later than one week before the scheduling conference, shall be drafted by plaintiff (unless the parties agree otherwise), but shall be submitted and signed jointly. “Jointly” contemplates a single report, regardless of how many separately-represented parties there are. The Joint Rule 26(f) Report shall report on all matters enumerated below, which include those required to be discussed by Rule 26(f) and Local Rule 26: a. Synopsis: a short synopsis (not to exceed two pages) of the main claims, counterclaims, and/or affirmative defenses. b. Legal issues: a brief description of the key legal issues. c. Damages: the realistic range of provable damages. d. Insurance: whether there is insurance coverage, the extent of coverage, and whether there is a reservation of rights. Case 8:10-cv-00031-JVS-MLG Document 6 Filed 03/25/10 Page 2 of 7
3 e. Motions: a statement of the likelihood of motions seeking to (I) add other parties or claims or (ii) file amended pleadings or (iii) transfer venue. f. Discovery and experts: pursuant to Rule 26(f), state what, if any, changes in the disclosures under R. 26(a) should be made; the subjects on which discovery may be needed and whether discovery should be conducted in phases or otherwise be limited; what discovery has been conducted thus far; whether applicable limitations should be changed or other limitations imposed; and whether the Court should enter other orders. Please state how many depositions each side will conduct. Also discuss the proposed time of expert witness disclosures under F.R.Civ.P. 26(a)(2). g. Dispositive motions: a description of the issues or claims that any party believes may be determined by motion for summary judgment or motion in limine. h. Settlement and settlement mechanism: a statement of what settlement discussions and/or written communications have occurred (specifically excluding any statement of the terms discussed) and a statement pursuant to the Local Rule 16-15.4 selecting a settlement mechanism under that rule. i. Trial estimate: a realistic estimate of the time required for trial and whether trial will be by jury or by court. Each side should specify (by number, not by name) how many witnesses it contemplates calling. If the time estimate for trial given in the Rule 26(f) Joint Report exceeds eight court days, counsel shall be prepared to discuss in detail the estimate. j. Timetable: complete of the Presumptive Schedule of Pretrial Dates form attached as Exhibit A to this Order and attach it to the Rule Case 8:10-cv-00031-JVS-MLG Document 6 Filed 03/25/10 Page 3 of 7
4 26(f) report. Submission of a completed Exhibit A is mandatory. The current entries in the “Weeks Before Trial” column merely reflect what the Court believes are appropriate for many, if not most, cases; those entries are not necessarily applicable to this case, and the form is designed to enable counsel to request the Court to set different last dates by which the key requirements must be completed. Each side should write in the month, day and year it requests for each event. E.g., for the expert discovery cut-off it might be “10/7/02" for plaintiff and “10/28/02" for defendant, if they cannot agree. At the conference, the Court will review this form with counsel. Each entry proposing dates shall fall on a Monday, except the trial date which is a Tuesday. In appropriate cases the Court will order different dates after it hears from Counsel. The proposed non-expert and expert discovery cut-off date means: the last day by which all depositions must be completed and responses to all previously-served written discovery must be provided. The proposed cut-off date for motions means: the last date on which motions may be heard, not noticed. k. Other issues: a statement of any other issues affecting the status or management of the case (e.g., unusually complicated technical or technological issues, disputes over protective orders, extraordinarily voluminous document production, non-English speaking witnesses, discovery in foreign jurisdictions, etc.). l. Conflicts: for conflict purposes, corporate parties must identify all subsidiaries, parents and affiliates. m. Patent cases: propose dates and methodology for claim construction and Markman hearings. The Court requires the parties to file concurrent opening briefs and concurrent reply briefs for the hearing. Case 8:10-cv-00031-JVS-MLG Document 6 Filed 03/25/10 Page 4 of 7
5 The Court intends to follow the rule for patent cases which have been adopted by the Northern District of California. n. Magistrates: Do the parties wish to have a Magistrate Judge preside? Under 28 U.S.C. § 636, the parties may consent to have a Magistrate Judge preside over all the proceedings, not just discovery. They may pick any Magistrate Judge (not just the one assigned to this case) from among those Magistrate Judges who accept these designations. (They are identified on the Central District’s website, which also contains the consent form.) The Joint Rule 26(f) Report should set forth the above enumerated information under section headings corresponding to this Order. 2. Scheduling Conference. Scheduling Conferences will be held in the Ronald Reagan Building, 411 West Fourth Street, Court Room 10C, Santa Ana. Counsel shall comply with the following: a. Participation. The lead trial attorney must attend the Scheduling Conference, unless excused for good cause shown in advance of the Scheduling Conference. b. Continuance. A continuance of the Scheduling Conference will be granted only for good cause. 3. Protective Orders. Case 8:10-cv-00031-JVS-MLG Document 6 Filed 03/25/10 Page 5 of 7
1 They may also be purchased from one of the following: Los Angeles Daily Journal West Publishing Company Metropolitan News 915 East First Street 50 West Kellogg Blvd. 210 South Spring Street Los Angeles, CA 90012 St. Paul, MN 55164-9979 Los Angeles, CA 90012 6 If you seek a protective order, propose it to opposing counsel before the Scheduling Conference, if at all possible. Protective Orders are considered by the Magistrate Judge assigned in this action. 4. Notice to be Provided by Counsel. Plaintiff’s counsel or, if plaintiff is appearing pro se, defendant’s counsel, shall provide this Order to any parties who first appear after the date of this Order and to parties who are known to exist but have not yet entered appearances. 5. Disclosures to Clients. Counsel are ordered to deliver to their respective clients a copy of this Order and of the Court’s Scheduling and Case Management Order, which contains the schedule that the Court sets at the Scheduling Conference. 6. Court’s Website. Copies of this and all other orders of this Court that may become applicable to this case are available on the Central District of California website, at “www.cacd.uscourts.gov,” under “Judge’s Procedures and Schedules.” Copies of the Local Rules are available on the website.1 Case 8:10-cv-00031-JVS-MLG Document 6 Filed 03/25/10 Page 6 of 7
H:\CMAssistant\ESched Conf Order - ANDERSON V COX.wpd 7 The Court thanks the parties and their counsel for their anticipated cooperation in carrying out these requirements. IT IS SO ORDERED. Dated: __March 25, 2010_ ____________________________ James V. Selna United States District Judge Copies to: All Counsel of Record Case 8:10-cv-00031-JVS-MLG Document 6 Filed 03/25/10 Page 7 of 7
Case 8:10-cv-00031-JVS-MLG Document 8 Filed 05/28/10 Page 1 of 18
ANDRÉ BIROTTE JR. United States Attorney LEON W. WEIDMAN Assistant United States AttorneyChief, 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,
v.CHRISTOPHER COX et al.,Defendants.)))))))))))
No. SACV 10-31 JVS (MLGx) NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES
Date: July 19, 2010 Time:1:30 p.m. Hon. James V. Selna
Post by misisipiflyer on May 29, 2010 7:31:22 GMT -5
*The way I see it...as per Motion To Dismiss... « Thread Started Yesterday at 8:19pm »
-------------------------------------------------------------------------------- Attorney Hodges' evidence cannot see the "light of day"...so to speak...due to what I feel is "The d*mning DNA Evidence" that is in his possession that would thus come out during discovery. The risk to the U.S. Financial Markets, Investor confidence (within the U.S. and Worldwide), U.S. Citizen/World confidence as it pertains to our U.S. Government Officials/Agencies...could all take a significant hit and fatal blow at a time when the U.S. Financial Markets/Investor confidence/U.S-World confidence in the U.S. Government Officials-Agencies are at an extreme low.
With the above in mind, I would imagine that President Obama (who appears to be cracking down on Wall Street to some degree)...would not want to risk this black eye/ugly blow DURING HIS TERM...again, via discovery...and would want to get this ER and "CMKX Fund" distribution situation resolved. Also...there are "World Settlement" Funds that continue to give the U.S. a black eye...for it appears as if other countries are EAGERLY AWAITING THEM. Don't forget...CMKX and World Settlement Funds are all rolled up together...so NO MATTER HOW YOU LOOK AT THIS...THIS PROBLEM IS NOT GOING TO GO AWAY...UNLESS IT IS RESOLVED SOONER THAN LATER.
Now with that in mind...do you think that President Obama would agree to grant ER and have "The CMKX Funds" released while there is still a Bivens Suit against one of his U.S. Government Commissions...THE SEC. Absolutely not. So now let's assume that ER has been granted...with a "behind the scenes" agreed upon THE BIVENS SUIT MUST BE DROPPED...then this Bivens Suit needs to go away...and vaporize into the sunset. With that thought in mind...would you:
1) Just have Attorney Hodges drop the Bivens suit out of nowhere. No (IMO)...for that would show "the U.S. Public/the World" that there must have been some behind the scenes settlement...which would show some form of wrong doing on The Defense's (SEC's) end. Also, it would make absolutely no sense to just drop it out of nowhere...for it could throw egg onto Attorney Hodges' face...and as stated before...possibly the SEC's. Again, it would just be too suspicious going in this direction/route.
2) Have Attorney Hodges (The Plaintiffs' Attorney) be the one to file "The Motion To Dismiss". Again, No (IMO)...for it would outwardly show that there must have been a "behind the scenes" settlement...which would again show The U.S. Public/The World that The Defense (The SEC) was involved with wrong doing...and the contents within The Bivens Suit must revolve around fact and not fiction.
OR WOULD YOU 3) Have The Defense (The SEC) file "The Motion To Dismiss"...so that when The Judge dismisses the suit...The SEC looks clean...and thus The U.S. Government and its Commissions/Agencies ultimately look clean as per this matter. Thus, "The Funds" can be released with "The Powers That Be" getting out of this without any egg on their face.
Let's face it...WHY DID IT TAKE THIS LONG FOR "THE DEFENSE - THE SEC" to file this "Motion To Dismiss"?...just at the time when we are 1 STEP - "A President Obama" approval/permission/ER step away from the release of "Our CMKX Funds". In fact..."The Funds" were already transferred to "Our Trustees hands" at the end of April with permission of higher "Power That Be" authority. The Funds are EARMARKED FOR BONA FIDE CMKX SHAREHOLDERS...and are READY FOR DISTRIBUTION...so "the problem" as it pertains to these funds has to be resolved...again...a matter of "When" and not "If". The timing of this "Motion To Dismiss" is just is too coincidential...and thus makes me feel what I wrote within this post.
All of the above is IMHO...so please take it as such.
God Blesss Attorney Hodges and the entire "Al Hodges Team"!...God Bless all of "The Bona Fide CMKXers"!...and GOD BLESS THOSE WITH "RIGHTEOUS" INTENT!!!
06/17/2010 ORDER by Judge James V. Selna to Continue Deadlines and Hearing on Motion to Dismiss 8 . The Court orders as follows... ° 1. The hearing date of July 19, 2010 is vacated. 2. Plaintiffs opposition to the Motion to Dismiss will be due no later than July 12, 2010. ° Defendants reply brief will be due no later than July 19, 2010. 3. The hearing on defendants Motion to Dismiss is hereby continued to August 2, 2010 at 1:30 p.m. (db) (Entered: ° 06/18/2010) ° end
Key Points to Al Hodges "Motion to Dismiss" (MTD):
Subj: From The MTD
At some point prior to June 1, 2004, the SEC, in concert with the 21 Department of Justice of the United States (hereinafter "DOJ"), entered into an 22 agreement with Robert A. Maheu and others, to utilize CMKM Diamonds, Inc. for 23 the purpose of trapping a number of widely disbursed entities and persons who 24 were believed to be engaged in naked short selling of CMKM Diamonds, Inc. stock 25 and cellar boxing the company. The SEC and the DOJ, with assistance from the 26 Department of Homeland Security, believed and developed evidence that said 27 short sellers were utilizing their activities to illegally launder monies, wrongfully 28 export monies, avoid payment of taxes, and to support foreign terrorist operations. Page 7 of 20 PLAINTIFFS' DISCLOSURES
During the period from November, 2004, through April, 2005, CMKM 28 Diamonds, Inc. negotiated the sale of some of its Saskatchewan, Canada mineral Page 8 of 20 PLAINTIFFS' DISCLOSURES SUBMITTED IN COMPLIANCE WITH FEDERAL RULE OF CIVIL PROCEDURE 26(a)(1) Case 8:10-cv-00031-JVS-MLG Document 13 Filed 07/12/10 Page 12 of 23 Page ID #:90 claims to three Chinese domiciled corporations, with the advice and consent, inter 2 alia, of the SEC. Proceeds from the consummation of such sales were placed into 3 a frozen trust for disbursal at a later time.
During the period from March, 2004, through August, 2006, on behalf of 5 CMKM Diamonds, Inc., Robert A. Maheu, with assistance from others, negotiated 6 a settlement with the illegitimate brokers, dealers, market makers, hedge funds, 7 and other persons and entities that had engaged in naked short selling of CMKM 8 Diamonds, Inc. stock and cellar boxing the company. In exchange for a United 9 States Government promise of no prosecution for such sales, the wrongdoers each 10 promised to pay negotiated amounts to a frozen trust for disbursal at a later time.
ANDRÉ 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, v. CHRISTOPHER COX et al., Defendants. ))))))))))) No. SACV 10-31 JVS (MLGx) Date: August 2, 2010 Time: 1:30 p.m. Hon. James V. Selna
DEFENDANTS’ REPLY TO OPPOSITION TO MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES Case 8:10-cv-00031-JVS-MLG Document 14 Filed 07/19/10 Page 1 of 4 Page ID #:102
MEMORANDUM OF POINTS AND AUTHORITIES
Defendants’ Motion to Dismiss addresses multiple fundamental deficiencies in Plaintiffs’ Complaint. However, Plaintiffs’ Opposition fails to address those deficiencies in any meaningful way. While Plaintiffs’ Opposition provides long discussions of basic legal principles, they consistently fail to show that their Complaint contains the type of allegations required by those legal principles. Accordingly, the Complaint should be dismissed.
A. Plaintiffs’ Claim for Declaratory Relief Should Be Dismissed Because It Is Either Barred by Sovereign Immunity or Brought Against the Wrong Defendants. As explained in the Motion to Dismiss, a claim for declaratory relief against Defendants in their official capacities is barred by sovereign immunity. (Motion, pp. 5-6) Also, to the extent Plaintiffs’ claims against Defendants in their individual capacities seek a declaratory judgment, the Complaint has failed to state a claim because it names the wrong defendants. Plaintiffs’ Opposition does not substantively address the issues presented in Defendants’ motion. Instead, Plaintiffs incorrectly argue that sovereign immunity does not bar the declaratory judgment claim because underlying jurisdiction exists under Bivens. (Opp., pp. 11-12) 1 To the contrary, there is no underlying source of jurisdiction here. Plaintiffs have not demonstrated a waiver of the government’s sovereign immunity such that they can seek declaratory relief from defendants in their official capacities. The Declaratory Judgment Act, 28 U.S.C. ¶ 2201, is not an independent source of federal jurisdiction. The purpose of the Act is merely to provide an additional remedy once jurisdiction is found to exist on another ground. Benson v.State Bd. of Parole and Probation, 384 F.2d 238, 239 (9th Cir. 1967), cert. denied, 391 U.S. 954 (1968). Here, plaintiffs assert jurisdiction for 1 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,403 U.S. 388 (1971) Case 8:10-cv-00031-JVS-MLG Document 14 Filed 07/19/10 Page 2 of declaratory relief under Bivens, which cannot be pled against defendants in their official capacities. Absent some other underlying basis for jurisdiction, plaintiffs may not seek relief under the Declaratory Judgment Act.
B. Plaintiffs’ Complaint Should Be Dismissed in Its Entirety Because Plaintiffs Have Failed to State a Plausible Claim. Plaintiffs’ Complaint should be dismissed because it does not contain factual allegations “sufficient to plausibly suggest” a viable claim that these particular Defendants took steps to prevent Plaintiffs from receiving funds in which Plaintiffs had a property interest. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 1952 (2009). Despite Plaintiffs claim that they “have met and exceeded this standard,” they fail to point to a single factual allegation supporting that claim. (Opp., p. 15) Instead of citing any allegations that would provide a basis to believe the Defendants improperly withheld the purported funds, Plaintiffs’ Opposition provides (p. 15) only the conclusory statement that “they were victims of an unprivileged, substantive deprivation of the rights to their property” and “their injuries were brought about by the Defendants’ acts under color of law.” Those conclusions are wholly insufficient under Iqbal.
C. Plaintiffs’ Bivens Claim Should Be Dismissed Because Plaintiffs Have Not Alleged That Defendants Were Either Personally Involved In, or Caused Plaintiffs to Be Subjected to, a Constitutional Deprivation. Plaintiffs’ Bivens claim must be dismissed because the Complaint does not contain any factual allegations detailing Defendants’ direct involvement in the general matters asserted against the SEC. In responding to that argument, Plaintiffs simply state that Defendants, as chairman and commissioners of the SEC, had “ultimate exclusive authority for approval or disapproval of all actions taken by the SEC.” (Opp., p. 18) Plaintiffs, however, have not alleged facts demonstrating that any of the Defendants directly took any action or made any decision regarding the alleged funds. Plaintiffs ignore the well established rule that respondeat superior, or supervisory liability, does not apply in an individual capacity suit under Bivens. As the Supreme Court reiterated in Iqbal, a supervisor’s mere knowledge and acquiescence in their subordinate’s conduct fails to demonstrate a Constitutional violation. Iqbal, 129 S.Ct. at 1949. Instead, the supervisor’s liability must stem from his or her own misconduct. Id. Thus, Plaintiffs have not satisfied the pleading requirements mandated by the Iqbal decision.
D. The Complaint Fails to Set Forth Facts Sufficient to Overcome Defendants’ Qualified Immunity. Finally, Plaintiffs’ Complaint fails to set forth facts sufficient to overcome Defendants’ qualified immunity. In this case, it is not even necessary to address whether a constitutional right was “clearly established” because the facts alleged do not show that Defendants violated a constitutional right at all. Plaintiffs’ Fifth Amendment due process and takings claims cannot succeed because Plaintiffs’ have not alleged facts sufficient to establish that they have a property interest in the funds they allege Defendants withheld. Plaintiffs’ Opposition ignores this argument, which alone warrants dismissal.
CONCLUSION For these reasons and those set forth in Defendants’ Motion to Dismiss, Plaintiffs’ action must be dismissed in its entirety.
Dated: July 19, 2010 ANDRÉ BIROTTE JR. United States Attorney LEON W. WEIDMAN Assistant United States Attorney Chief, Civil Division /s/ KEITH M. STAUB Assistant United States Attorney Attorneys for Defendants 3 Case 8:10-cv-00031-JVS-MLG Document 14 Filed 07/19/10 Page 4 of 4 Page ID #:105
David Anderson, et al. v. Christopher Cox, et al., SAVC 10-31 JVS (MLGx) Tentative 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.
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 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, 2010, 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 wrongdoers promised to pay certain amounts to a frozen trust in exchange of 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.” 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.” Id. (quoting Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987)).
Via Manny, founder of pb 29 who attended the hearing. The MTD was neither denied nor approved...it was amended for an additional 45 days so that both sides can provide more facts. Al told Manny that he does NOT expect that this to go that long at all. Manny said the judge listened very intently to everything Al had to say. He literally put on a seminar for all the back-story of CMKX and the travesty dealt the shareholders. When he brought up Robert Maheu the judge stopped him and asked if it was one and the same Maheu...and Al replied it was. The attorney for the SEC was woefully unprepared according to Manny...and afterwards Al concurred. He had NO idea what Al was speaking of. When the subject of the Bivens was brought up, the judge queried Al about whether he was suing the entire SEC or just the commissioners individually. Al explained it was just the commissioners and then Al mentioned the issue of "sovereign immunity" the SEC attorney didn't even know what it meant. In short: Manny said Al was incredibly informative and the judge took every word in very carefully. The attorney for the SEC was clearly not able to keep up, nor was he anywhere near as informed or prepared. Al told Manny afterward he wishes the motion would have been denied but based on the preponderance of evidence he presented...he does NOT expect this to ever go the additional 45 days. Update via cell phone from the car, so I am sure Manny will add more later. pr
Post by misisipiflyer on Aug 2, 2010 19:18:05 GMT -5
Do you think this is over? Do you really think this was all planned? Do you think that the SEC was going to put their top notch attorneys on a case that is already been decided? Think about this for a minute, Judge sees Al on one side who is extremely knowledgeable, smart, professional and has all he needs to move forward, then you look at the governments defense and they see a lawyer who use to plea bargaining every case and who can't even keep up with lawyer jargon.
This is just another conformation that this is TOTALLY a timed event and they just aren't ready yet.
Post by misisipiflyer on Aug 2, 2010 19:20:29 GMT -5
Manny who was at the hearing: Al was amazing. Judge didn’t even understand some of the stuff. The judge asked for the 45 day extension. Robert Mahue set everything up. Al has all the evidence – that all brokers/bankers were told by Mahue to pay up or go to jail – they paid up and the money is sitting in the trust. The attorney for the gov’t didn’t have a clue – did not have facts etc., he asked what sovereign immunity. Manny met w/Hodges and Dennis Smith before – they are honest/up-standing people. Hodges doesn’t think it will go the 45 days—but who knows. Treffry and Reece Hamilton (plaintiffs were also there).
Post by misisipiflyer on Aug 2, 2010 19:21:52 GMT -5
oldepro Diamond Hunter « Thread Started Today at 7:03pm »
From August 2 2010 Judge Selna grants Hodges plea for extension. The following I just got off the phone with my wife and a shareholder named Protocol. I dis the best I could.
oldepro: carol: hodges got extension,leave to plea : granted motion to extended 30/45 days. hodges said in open court sting. sec seemed surprised. SEC says this is all news to me. PROTOCOL: treffery there. small group. sec says trust is irrelevant. sec says bivins sovereign immunity, only thing that counts. hodges to resumit with further details, not sure if that's evidence. SEC attorney said judge says 'i found it quite educational.' oldepro: on the phone now oldepro: SEC claims bivens not justifiable oldepro: nothing else matters oldepro: ALL basically read and defended his suit
oldepro: SEC stonewalling everything but bivens
SEC taking it lightly. Why are we here. stoic judge. stone faced, fair. he knew of maheu, judge off to side 5 young people, law student types. were at 3 previous cases they watched. protocol watched them. when our case came up, they all pulled out notebooks. protocol at court with my wife, he is from orange county. al mentioned. dtcc is one of the trustee. and judge asked who dtcc was.
carol now ' sec wants more time, much new info, to them.al relaxed after court. Wyatt and resse there.
flips recapped what he heard on the MP3 from hearing...
This is flips comment earlier today...
After the SEC Attorney spoke, the Judge asked that if a more precise complaint was filed, would SEC agree that this could move forward on an Individual Capacity. The SEC attorney said yes and then asked for 30 days to respond to that complaint. The Judge then asked Al Hodges how long he needed to write up the more precise complaint, and he replied 45 days. The Judge thus dismissed the case against the SEC under their Offical Capacity and Al Hodge will write up and more precise complaint under their Individual Capacity. ALL IMO!!!
morethanfishin provided her notes from transcribing the MP3... transcribed 8/3/10
AH: Good Afternoon your Honor, A. Clifton Hodges on behalf of the plaintiffs, two of whom are in the courtroom today, Mr. Hamilton and Mr. _____________
Judge: Good afternoon, welcome.
SEC; Good afternoon your Honor, this is U.S. Attorney Keith Stavron (??) on behalf of the Federal defense.
Judge: Good afternoon Have you had a chance to review the tentative ??
Both say yes your honor
Judge: Mr. Hodges I think I would kike to hear from you first please
AH: your Honor, first of all let me concede the point raised in your tentative that this is not your usual Bivens case. That is clear for everyone I think. As a house keeping matter on page one there is a typographical error, in the middle paragraph the Administrative Law Judge’s finding was in 2005 not in 2010.
Judge: Thank you.
AH: Having said that, let me refer you to the second issue raised by the government first. It asks the question whether or not there are property rights at issue in this case. And very simply what we have alleged is , let me back up a second. We have alleged a scheme, in effect a sting operation, judged from the outside not from the inside. Basically the sting operation was an operation put into effect through the Office of Homeland Security, the Department of Justice, and the SEC Commissioners. What we have alleged is that the SEC Commissioners as opposed to the Agency itself, coordinated with these other institutions and at their request and in concert with them began a program, whereby, this company was raided. The SEC Commission was fully aware, at all times, of the amount of naked shorting going on in this company. The then Chairman of the commission has been quoted on several occasions as saying this was the most heavily naked shorted company in the history of the world. As we have alleged in our complaint one day, which I believe was in April 2005, some more than 90 billion shares of this company were traded in one day. I have testimony from, which is not alluded to in our current complaint, but I can provide testimony from registered NSASDA companies, that were in business at this time, who report that they were told “it’s free money”. You can sell as many shares as you can find buyers for and put all of the money in your pocket. You don’t ever have to buy the share. They were on a no borrow list to begin with, at that point in time, which was in 2005 primarily. And if you were going to borrow shares as a legitimate broker in that point in time, they had a $2.50 requirement for borrowing. You can imagine with some, I think they averaged during that time 17 billion shares a day being sold, this is an enormous amount of money for people to be borrowing shares to be sold into the market. They were being sold for nothing, that is how they drove this company into the ground. They did it because there was evidence by the government, and by others, associated both directly and indirectly with the government, that this money was being sent offshore. It was being accumulated by hedge funds offshore, it was being sent to Iraq, it was being sent to Iran , it was being sent to Afghanistan, it was being sent to Hezbollah, this was one of the means in which these terrorist organizations were utilizing them to fund their operations. Having said that, I recognized when I prepared this complaint at the time the company was being de-listed, and the time this original agreement was made, we did not have a basis to sue the SEC, the SEC commissioners, or anybody else. Because in fact, as the Court correctly points out, in regard to (quoted a case) it said the shareholders don’t have a right, they don’t have a property interest. If they did not have that right at the time the agreement was made, at the time the original ultra _______ criminal acts by these Commissioners took place. However, what this complaint speaks to is at quite a later date after the company was de-listed in October of 2005, and they stipulated to that delisting, Then we go forward and what immediately happened was a Task Force, including one primary and past board of director members, Mr. Bob Mahue, who is no longer with us unfortunately, became the head of that Task Force. His appointed duties, and the Task Force appointed duties, were to have the shareholders pull copies of their shares, pull certificates for every share that was legitimately then owned because it had been bought and paid for, and based upon that share certificate pull, then turn around and liquidate the company. At the time the company decided it was going to liquidate itself and distribute its remaining assets to its shareholders the property rights attached to each of the shareholders because at that point in time, this was in early 2006, they had a right to believe that what was in their future was a distribution, a prorate per share distribution of the assets that the company then owned. The company then owned all of these monies that had been accumulated and put into trusts. The company also owned shares of stock in a company called Entourage and they had other assets. They did not have any substantial liabilities. So the share holders, from that point forward, had a property right that is protectable under the Constitution. It is that claim that we are basing our complaint. Having said that, once we get past the property rights issue, I certainly understand the Courts concern and I have reviewed my complaint, about, perhaps the use of some in artful language when I referred to the SEC rather than specifying that it was the SEC commissioners that we are aiming this at. The reason we are aiming only at the SEC commissioners is because under the statutory scheme that was set up after the Great Depression, the SEC commission and commissioners individually have the sole and exclusive right to make the decisions. For example with this firm, when this company was de-listed in October of 2005, it was pursuant to an Administrative Law Hearing that took place here in Los Angeles, a full day down in Federal Court, that I attended. The Administrative Law Judge then rendered a tentative decision. It was her decision but it was tentative in the sense that it had no power and had no effect. The only time that it became effective was when the company became de-listed on October 24th or 25th of that year when the Commission met and together agreed that this company should be de-listed. They are the only people who have the power to make these kinds of decisions. They are the people who spoke to the other governmental agencies and to the people representing, at least ostensibly the company at that point in time, with this agreement to utilize this company without knowledge to the shareholders as part of a sting operation to trap all of these hedge fund people. That started way back in 2004. But it was those commissioners acting in an improper and ___________ and probably criminal way because their mandate under the law is to protect the shareholders. They were doing exactly the opposite. They were entering into an agreement they knew way going to damage he shareholders, it was going to drive this company out of business, which it did, and without notice in a big secret. It was only those commissioners who took that action that we are aiming this complaint at. We have named the commissioners that have sat since that time because it is our position that having denied these people payment these commissioners have signed on ratifying the acts of their fellow criminals or miscreants, at least, and at the end of the day refuse to release this money. Money that has been colleted. We are not suing the SEC, we aren’t suing the government.
Judge: who, in your analysis, is the trustee of the funds? Who holds the funds?
AH: There are actually several trustees who hold the funds, one of whom is currently the DTCC. I only say that because I know the funds are on deposit with the DTCC.
Judge: OK spin that out for me.
AH: The deposit for a trust, clearing corporation, they are the clearing house for all the financial transactions basically that they placed in __________
Judge: Privately or publicly?
AH: They are a private company but they act a public one.
Judge: As opposed to governmental
AH: It is not a governmental agency in the same sense that the Federal Reserve Banks are not government.
Judge: What document governs the terms under which they hold those funds?
AH: A trust agreement.
AH: Between the people who provisionally set this up
Judge: Who are?
AH: One of whom was Bob Mahue.
Judge: As an employee of the SEC?
AH: Not as an employee of the SEC in any sense of the word, he was at one time on the Board of Directors of the company CMKX Diamonds.
AH: He never acted on behalf of the SEC.
Judge: What control does the sec have over this trust fund?
AH: They don’t have any direct control over the trust fund. The agreement, however, that was originally entered into, as I understand the testimony of my, what I have been able to accumulate without the opportunity to do actual discovery, my understanding is that Bob Mahue and several of his associates entered into a deal first with the Department of Justice, they got the SEC on board through the commissioners by talking to several of them. Primarily Christopher Cox.
Judge. Who is a defendant, a named defendant who used to be the Chairman?
AH: The essence of the agreement they made was that in order to make this sting effective the company would go and pump its stock,which it did, the government would assist in that operation, which it did
AH: There is evidence that they paid for some of the expenses associated with a car, a drag racing car that had CMKX painted on the outside of it that was being very publicly bandied about the internet and raced in various jurisdictions. One of their ex-employees a gentleman named Roger Glenn, an attorney, he used to be an attorney in New York with the law firm _______________ signed on to increase the stock at the request of the SEC, I am told. He came on to or into CMKX in 2004. When he arrived there the number of authorized shares for the company some where of 100 or 200 billion, I forget exactly what, when he left some nine or ten months later the number of authorized shares had illegally and improperly, under every law that I am aware of at least, had been raised to 800 billion shares. And this company eventually sold some 700 billion shares of stock. And there is over that many outstanding ____________, 703 billion plus.
Judge: Why isn’t your client against the clearing house acting as trustee for these funds?
AH: Because that would be like suing the escrow company.
Judge: Yeah but the escrow company has the funds.
AH: As I started to say, here is the simple answer, your Honor, as I started to say a few minutes ago and I probably did not finish. The original agreement, there was a war that ensued after the sting got under operation because what the sting always contemplated was that Mr. Maheu would collect all of these bad doers, the hedge fund people and people like T.D. Waterhouse and all the other stock brokerage houses around who were naked shorting this company, collect them all in a big room and offer them a deal for two reasons. First of all to collect money for CMKX for what had been done to them. And second of all to teach these people a lesson that there were people out there watching what was going on. Hopefully that would head them off from continuing in such illicit and illegal and improper behavior. That was in fact done and I have a witness that was there when it was done. They had a room about three times the size of your courtroom in which they had representative from all of these brokerages from all over the world. They watched a video presentation, because Mr. Mahue, as the court may be aware, was at one time closely associated with the CIA, Howard Hughes and all kinds of other people.
Judge: I was going to ask you whether that was the same Bob Maheu.
AH: It is indeed the same one, a gentleman I happened to make acquaintances with in the 70’s to my good fortune. At any rate all of these people were in this room and were shown a video and a slide presentation of all of the evidence of their wrongdoing and they were offered an opportunity to either step up and sign away your money and pay a reasonable amount for each transaction you did illegally and improperly or go walk out of here and get prosecuted and go to jail because what you did was criminal. Every single person in that room stepped up and made a deal. After that time there became a big conflict between the SEC commissioners and the other governmental entities who were supporting the SEC commissioners about who was going to have the right to release this money to the shareholders and when. My understanding is that it went on for some number of months but ultimately the SEC commissioners prevailed and convinced Mr. Maheu and his associates that it had to be their decision because only they and the rest of the government could determine when this ting had fulfilled its function. That was the basis on which he gave them the power to make this decision about when the money is to be released. It is my understanding that every trust that is currently being held for release of this money is being held by a person who is sworn to observe that requirement. That the SEC, the US government whoever ____ this payment, goes first. Since my information is that was the SEC commissioners that have this power, this is why they are the defendants in this case.
Judge: Let’s return to your Bivens theory, it is taking a headpoint
AH: this money was supposed to have been released within a year of the time the company was originally de-listed in October of 2005. This is now almost October of 2010, some 4 years past that time. It is taking only because they refuse, not withstanding information they have continued to give to ____________, they continue to refuse to release this money. If they don’t release they money then it is a taking. Because they are preventing what is rightfully ours for us to receive. That is why it is a taking.
Judge: Thank You
AH. You are welcome
Judge: Mr. Saton (?)
SEC: Thank you your Honor. I have to admit most of what I just heard I heard for the first time because most of it wasn’t in the claim.
Judge: I found it very educational.
SEC Indeed. True or not I don’t know but we are here to discuss what is in the complaint today. We’re not here to give oral argument and give testimony to facts no one has any idea about, certainly not myself. We are here to talk about what is in the complaint, whether it was properly pled under rule 8, the ___decision and _________. As this Court pointed out in its tentative it is not properly pled.
Judge: Yeah I am satisfied with that in the tentative. The case would be for the plaintiff to dismiss the plead to re-plead. I guess what I am really interested in is whether this is an appealance claim given the nature of the asset ad whether sovereign immunity applies.
SEV: Well I suppose they can sue a government official under Bivens for any violation of civil rights whether it has to do with money or not. I don’t know any distinguishing facts in this case that would prevent them from being sued individually under Bivens if there are sufficient facts.
Judge: Well if you concede in theory that a Constitution violation of the taking clause could be asserted against an individual an individual government worker.
SEC: Well I haven’t researched that so I don’t know the answer to that specifically. We asserted on our brief the original invest property because pursuant to the complaint the SEC had the discretion to release funds, if in fact there are these funds in existence, that discretion alone, under the case law that we cited suggests that they don’t have the property rights. But the answer to your question is I don’t know.
Judge: Well there are two questions I guess. One is there a property right and is the contingent asset, if you will, subject to distribution to the plaintiffs at the will of the commission. But there is a separate issue is whether the nature of the relief sought here is such that it can only be asserted against the commissioners in their official capacity.
SEC Well, I don’t think the government has a way of stopping the release in official capacity or in any way.
Judge: Well I understand that, the issue is, is there some manner which these crimes could be asserted against the individual defendants in their individual capacities or is the relief sought by definition relief that can only be sought in their official capacity in which case there can be no private claim they would be entitled to sovereign immunity in their official capacity
SEC That may be the case, I don’t know the answer to that. I think the court is inclined to be consistent with its tentative as far as the pleading requirements. I think the plaintiffs have an opportunity to re-plead to amend the complaint. We will certainly deal with the issue that the Court raised on further briefing, I imagine there will be an additional motion to dismiss in the future. But that being said clearly these are high level government officials, they don’t deserve to be sued and discovery taken of them. I am not specific, obligations have been made by some.and none have been made to a distant point. I hears some issues were addressed during oral argument that I didn’t see in the complaint, even assuming those are true there is nothing specific to these SEC commissioners other than the fact that they some how have the sole discretion to make every single decision at the SEC. I don’t buy that.
Judge: Mr. S---- it might be easier to assess whether claims can be asserted against the commissioners as individuals if we have a complaint that complies with __________.
SEC That may be true, yes. If it’s in a fact complied and fitting the requirements of _________ and it can pass qualified immunity which also remains in the court obviously doesn’t need to address right now. But if and when the Court decides it’s been properly pled then I think qualified immunity should be addressed.
Judge: Well what I am going to do is dismiss with ________ to re-plead for failure to meet the Rule 8 requirements. Again not to dismiss the claims against them in their official capacity as a matter of sovereign immunity and leave the other issues until we have pleading that passes muster.
AH: Agree you Honor.
SEC I would only ask you honor the government have 30 days to respond and to ________ people. Thank you.
Judge: Mr. Hodges
AH: I certainly recognize, your Honor, the need to be more specific in the complaint and I appreciate the Courts willingness to give us the opportunity if that is the Courts
Judge: I understand you want
AH 45 days with the
Judge: any objections?
SEC None your Honor
Judge You have 30 days to respond by answering in a motion
AH; That is fine your Honor
Judge: OK we will modify the tentative accordingly
Post by travelbugaz on Aug 4, 2010 10:29:46 GMT -5
(11:13 AM) LUCY_N_DA_SKY1: MINUTES IN CHAMBERS ORDER RE SURREPTITIOUS RECORDING OF HEARING held before Judge James V. Selna: It has come to the Court's attention that the 8/2/10 hearing on Government's Motion to Dismiss was surreptitiously recorded (11:14 AM) LUCY_N_DA_SKY1: and that the recording was posted to the internet. Tape recording of court sessions is strictly prohibited. (11:14 AM) WiseMan378: i knew that was gonna happen ... wow!!! (11:14 AM) cityslicker19: rut roh (11:14 AM) lluark13: uh oh!!!!!!!!!! (11:14 AM) LUCY_N_DA_SKY1: Counsel are instructed to advise their clients of the Local Rule. In the future, the Court will take additional steps to ensure compliance (11:14 AM) jacbert: oh my (11:14 AM) LUCY_N_DA_SKY1: wooops (11:14 AM) UCROCKS: awww...that's illegal...lmao!! (11:14 AM) WiseMan378: somebody is in trouble (11:16 AM) LUCY_N_DA_SKY1: MINUTES of Motion Hearing held before Judge James V. Selna: Cause called and counsel state their appearances. The Court's tentative ruling is issued. Counsel make their arguments (11:16 AM) Wheres-da-BEEF: SEC prolly fuming that this is starting to leak out! the recording being the beginning of a huge chit storm heading their way if they don't settle! Just my opinion (11:17 AM) LUCY_N_DA_SKY1: Motion to Dismiss Case is GRANTED . Plaintiffs are granted 45 days to replead. Defendants are granted 30 days to respond (11:17 AM) LUCY_N_DA_SKY1: hehe thats all there is
OOOOOOPS... guess we learned a few clandestine techniques studying the master for years. Gotta love IBM
Notice re: Recording « Thread Started Today at 1:47pm »
-------------------------------------------------------------------------------- TO ALL SHAREHOLDERS
Please be advised as follows:
Case Name: David Anderson et al v. Christopher Cox et al [8:10-cv-00031-JVS-MLG]
MINUTES IN CHAMBERS ORDER RE SURREPTITIOUS RECORDING OF HEARING held before Judge James V. Selna: It has come to the Court's attention that the 8/2/10 hearing on Government's Motion to Dismiss was surreptitiously recorded, and that the recording was posted to the internet. Tape recording of court sessions is strictly prohibited. (Local Rule 83-6.1.) Counsel are instructed to advise their clients of the Local Rule. In the future, the Court will take additional steps to ensure compliance.re: Order on Motion to Dismiss Case, Motion Hearing.(twdb)
PHOTOGHRAPHS AND/OR RECORDINGS OF ANY KIND ARE PROHIBITED – PLEASE COMPLY WITH THE RULES