deli opposition sec continuance show_temp[1]

8/7/2019 Deli Opposition SEC Continuance Show_temp[1]

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Robert H. Bretz, Esq.California Bar No. 55087578 Washington Blvd. #843Marina del Rey, California 90292(310) 578-1957Attorney for Defendant

IN THE UNITIED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

* * *

SECURITIES AND EXCHANGECOMMISSION,

Plaintiff,

vs.

MARCO GLISSON,

Defendant.

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Case No.: 2:09-cv-00104-LDG-GWF

DEFENDANT GLISSONS OPPOSITIONTO PLAINTIFFS MOTION FOR

CONTINUANCE OF DATE FOR FILING

JOINT PRE-TRIAL ORDER (First Request);DECLARATION OF GLISSONS

COUNSEL,ROBERT H. BRETZ

Date of Hearing: No Hearing Date Set

Time of Hearin :

MARCO GLISSON, through his attorney of record, responds and objects to Plaintiff

Securities and Exchange Commissions (SEC) Motion For Continuance Of Date For Filing

Joint Pre-Trial Order (First Request) dated and filed January 27, 2011 (the Motion), as follows.

On January 13, 2011, the Court denied the Plaintiffs motion to extend the additional

discovery period previously permitted by the Court pertaining to Marco Glissons activities in

2010. On January 31, 2011, Plaintiff filed a subsequent motion to extend the discovery date

(and/or for clarification of the Courts October 29, 2010 Order permitting certain limited,

additional discovery) which motion remains pending before the Court. The reason given by the

Plaintiff for the approximately five month continuance in the preparation and filing of the joint

pre-trial order sought by the instant Motion is the Plaintiffs need to examine the additional bank

account discovery to be obtained by the Plaintiff if the pending motion is granted by the Court so

Case 2:09-cv-00104-LDG-GWF Document 59 Filed 02/07/11 Page 1 of 11


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that Plaintiff can obtain information as a result of their defective, out-of-time subpoenas seeking

bank account information for the 2010 time period.1

to further extend the additional discovery cut-off date to accommodate the Plaintiffs defective,

out-of-time third party discovery requests, the instant Motion will be moot.

If the Court denies the pending motion,

The Court has previously denied the Plaintiffs motion for summary judgment. If the

Court denies the pending motion for an extension of the additional discovery cut-off date, the

instant Motion will be moot; and the parties would proceed to prepare and file the joint pre-trial

order followed by trial setting in this case. As explained in Glissons opposition to the pending

motion, Glisson is opposed to any further delay in preparation for trial and trial of this case.

Glisson recognizes that if there is any substantial delay in the Courts ruling on the pending

motion and the instant Motion, there may be a legitimate need to continue the date for the filing

of the parties joint pre-trial order - - for 30-45 days - - to accommodate the Plaintiffs need for

adequate time to accomplish such preparation activity. If, the Court should nevertheless grant

the Plaintiffs pending motion, extending the period for further, additional discovery to the

Plaintiffs requested February 21, 2011 cut-off date; then, in any event, the Plaintiff has not made

1The Plaintiffs reply to Glissons opposition to Plaintiffs motion to further extend the discovery cut-off date or

for clarification, due February 3, 2011, was filed the following day (the Reply). Tellingly, there was no effort in

the Memorandum or the supporting Declaration to support the argument that Plaintiff was genuinely confused about

the need to complete discovery by January 26, 2011, seemingly rendering moot that aspect of the motion. The Court

previously denied the Plaintiffs prior motion to extend the discovery cut-off date; and should likewise deny this

latest effort for reconsideration. Plaintiff admits in the Reply that they didnt comply with the timely notice to

opposing counsel requirement as to three of the subpoenas, but claims that they gave notice for the other three

subpoenas. However, no proof of service is provided by Plaintiff as to any of the subpoenas. The Plaintiffs Reply

focuses on the absence of prejudice resulting from their mistake (citing a single Tennessee court decision) Glissons

focus is, rather, on the Court granting further special dispensation to the Plaintiff for subpoenas that failed to evenfollow the requirements of the FRCP as to notice to opposing counsel. The Court should not reward the Plaintiff,

again extend the discovery cut-off date, in respect of subpoenas that do not comply with the Rules. The Plaintiff

admits that there was no specific request for bank documents in their request for production and/or subpoena; but

argue they were diligent because they get to pick and chose what type of discovery they use. The Plaintiffs only

argument for their delay in issuing the subpoenas beyond the applicable discovery cut-off date, is that because, after

the deponents testified to bank accounts in existence in 2010, they had to wait five days to read such testimony in

the transcript of such testimony before they could issue the subpoenas. Does this make sense, is this good cause?



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any showing as to why the continuance of the date for the filing of the joint pre-trial order should

exceed 30-45 days following the Plaintiffs requested February 21, 2011 discovery cut-off date.2

THE PLAINTIFFS MOTION NEEDS TO BE CONSIDERED IN

LIGHT OF THE FACTS AND CIRCUMSTANCES WHICH THEPLAINTIFF DID NOT REPORT TO THE COURT SO AS TO BETTER

UNDERSTAND THE MERITS OF THE ARGUMENTS SET FORTH INTHE MOTION

In the Motion, the Plaintiff argues that,

Glissons conduct in 2010 is almost identical to the conduct alleged in the

Complaint, and appears to contravene Glissons sworn declaration in opposition

to summary judgment [that in 2009 he had no intention to sell any more shares ofCMKM stock in the future]. Plaintiffs Motion page 1/20-22.

When the foregoing is considered in light of the facts and circumstances which the

Plaintiff did not include or otherwise address in the Motion, the Court will hopefully conclude

that the foregoing is no basis for determining that this case should be further delayed because the

Plaintiff actually needs more time (let alone five months) to analyze any bank information

concerning Glissons activities in 2010 and/or for the Plaintiff to decide, following such further

analysis, whether or not to seek to amend the Complaint in this action to include Glissons

activities in 2010.

The Plaintiff argues that Glissons sale of CMKM stock in 2010 appears to contravene

his statement in his Declaration dated November 13, 2009 that he did not intend to sell any

CMKM stock in the future, including because CMKM was defunct and there was no way for

CMKM shareholders to sell and transfer shares of CMKM stock (because there was no transfer)

agent for CMKM stock). Motion, page 1/lines 20-26.

CMKM has not been an operating company for years (and was not operating in 2009),

and is, therefore, considered to be defunct. No one can argue with that fact. See Plaintiffs

2The Plaintiffs argument that they need five (5) months to examine the bank information obtained as a result of

the their defective, out-of-time subpoenas to three financial institutions and incorporate such information into their

pre-trial submission is not supported by any factual submission by Plaintiff and is, on its face, unreasonable.

Setting aside the question as to whether such information is even relevant to the SECs case (See Glissons

opposition to the pending motion, section III, page 5), there is only one bank that will produce any information in

response to the subject defective out-of-time subpoenas showing the deposit of proceeds from the sale of CMKM

stock in 2010. See the accompanying Bretz Declaration.



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Motion at page 1 referring to Glissons Declaration dated November 13, 2009, and suggesting

that Glissons defunct statement was not accurate. Glissons statement was then and continues

to be accurate.

At the time of Glissons November 2009 statement, CMKM had no transfer agent, so itwas not possible for shareholders to purchase and sell CMKM stock and cause such change of

ownership to be registered and consummated on the companys books and records (and new

certificates issued reflecting such transactions) because there was no company performing such

stock registration and transfer services.

Glissons statement in his November 2009 Declaration accurately reflected the status of

matters, as it affected the ability of shareholders to sell and purchase CMKM stock, at the time.

As the Plaintiff knows, having taken the testimony of Aaron White in Portland in January

2011 as the designated representative for TransferOnline, Inc. and otherwise, TransferOnline was

appointed stock transfer agent for shares of CMKM by the company on April 1, 2010; and has

acted as independent transfer agent for CMKM stock from that date to the present. See

TransferOnlines web site at http://www.transferonline.com/. Upon the appointment of

TransferOnline as transfer agent for CMKM stock (thereby permitting the shareholders to wind

down their positions in the stock as they saw fit), stockholders like Glisson who were

previously not able to purchase or sell CMKM stock, as a result of the lack of such appointed

stock transfer agent, now had the opportunity and choice to do so starting in April 2010.

Like any CMKM stockholder in November 2009 who did not contemplate or intend to

sell CMKM, because they couldnt, when the opportunity presented itself following the

appointment of TransferOnline in April 2010, Glisson re-evaluated his options and what made

sense for him at the time. This change of circumstances in April 2010 does not mean that

Glissons statement about his intentions in November 2009 was not truthful (or dictate further

investigation by the Plaintiff in 2011 of events they have known about since April 2010 when



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they started monitoring sales of CMKM stock including by Glisson [and his wife] through the

records of TransferOnline).

At his deposition on January 11, 2011, Glisson testified that he had not purchased any

CMKM stock in 2010 (but that he had sold CMKM stock in 2010).

The factual basis for the Plaintiffs (civil injunction) claims against Glisson is that he was

more than an investor - - that he was a broker/dealer - - that from 2005-2007 Glisson bought

and sold CMKM stock in such quantities and with such frequency during portions of such

extended period of time (much like a professional securities broker/dealer would do all the time

as part of their business activities) and should be found to be a securities broker/dealer

requiring his offers and sales of CMKM stock to be registered under Section 5 of the Securities

Act of 1933 (because he was not entitled to the private investor exemption from such

registration requirement). See the parties respective motion for summary judgment

submissions.

It is certainly not clear from the Plaintiffs Motion why they think that sales of CMKM stock by

Glisson in 2010 requires an amendment to the existing Complaint and/or why they now need an

extended period of time to analyze additional bank information concerning such 2010 activity

(which Glisson has testified occurred) before making a decision about how to proceed in this

case. (The Plaintiffs complaint already asks for astronomical monetary damages in the form of

fines, penalties and disgorgement).

If there was anything about Glissons sales of CMKM stock in 2010 that constituted a

violation of the registration provisions of Section 5, then such continued activity in 2010 is

indicative of reasonable likelihood that, unless enjoined, such activity will continue in the

future; and proof of such continued activity for purposes of justifying the injunction sought by

. . .



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the Plaintiff in this action would not seem to require amendment of the existing Complaint.3

Finally, the Plaintiffs argument, that the extended delay being sought by their motion

will not delay the trial of this case, does not pass the straight face test. See Plaintiffs Motion

on page 2/lines 19-20 (Thus, extending the time for the final pretrial order to June 30, 2011,

should not otherwise delay the trial of this matter).

The bottom line is that the Plaintiffs Motion does not present any sufficient basis for the

Court to grant the (initial, further) delay the Plaintiff is seeking. This case should now proceed

forward in the normal course.

THIS CASE SHOULD PROCEED FORWARD TO TRIALIN THE NORMAL COURSE

The Complaint in this case was filed on January 15, 2009 (the activities covered by the

Complaint took place in 2005-2007). This case has been pending for more than two years. The

last day to amend pleadings and add parties was June 11, 2009. The original discovery cut-off

date for the case was September 9, 2009 which was more than 16 months ago (and was

subsequently extended to January 26, 2011). See the Courts scheduling Order dated April 28,

2009, and Order dated October 29, 2010.

If and when the Plaintiff ever makes a semblance of a for good cause showing (which it

has not done so far with its more discovery/investigation needed and possible amendment

arguments), Glisson hopes the Court will reject any such request for delaying the trial of this

case.

. . .

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3Plaintiff appears to agree with this analysis, Glissons trading in 2010 is part and parcel of the claims against him

as set forth in the Complaint, in their Reply. See Reply to opposition to Plaintiffs motion to again extend the

discovery date at page 4/lines 13-14.



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CONCLUSION

The Plaintiff should abide by the extended discovery cut-off date in this case (discovery

to be completed by January 26, 2011). The deadline for the submission of the parties joint pre-

trial order in this case (30 days after the close of discovery) should have taken place by

November 9, 2009; and should not now be further extended (to permit Plaintiff five more months

to investigate its case and decide whether or not to seek to amend the Complaint (which, in any

event, should not be permitted at this point of the proceedings). This case should proceed to trial

in the normal course in accordance with the applicable rules of this Court and the Courts

Scheduling Order.

The Court is respectfully requested to deny the Plaintiffs Motion.

DATED this 7th day of February, 2012.

Respectfully submitted,

_/s/:Robert H. Bretz, Esq.

Robert H. Bretz, Esq.

California Bar No. 55087

578 Washington Blvd. #843Marina del Rey, California 90292

(310) 578-1957Attorney for Defendant



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DECLARATION OF ROBERT BRETZ, ESQ.

I, ROBERT H. BRETZ, ESQ., hereby declare, as follows:

1. I am attorney of record for Marco Glisson and I am otherwise competent to provide

the within testimony based on my own personal knowledge or upon information and belief as

indicated herein.

2. I am advised by the Glissons, that the only bank to which the Plaintiffs six defective,

out-of-time subpoenas were directed where proceeds of the sale of CMK stock in 2010 was

deposited is SunTrust Bank

3. It is estimated that the time the Plaintiff will need to analyze and consider the

documents and information received as a result of the SunTrust Bank subpoenas, and incorporate

such information into the Plaintiffs portion of the joint pre-trial order, is 1-5 days at the most.

4. From my reading of the Plaintiffs Motion, the need to analyze, consider and

incorporate such bank account information/documents into the Plaintiffs portion of the joint pre-

trial order, is the only reason proffered as to why the Plaintiff is seeking a continuance for the

filing of the parties joint pre-trial order. See Plaintiffs Motion at page 2/lines 9-10 (The

Commission needs additional time to analyze the bank records to include them in any pretrial

order).

5. CMKM has not been an operating company for years, and is, therefore, considered

defunct. No one can argue with that fact. See Plaintiffs Motion at page 1 referring to

Glissons Declaration dated November 13, 2009, suggesting that Glissons defunct statement

is not accurate - - it was then and is now accurate.

6. At the time of Glissons November 2009 statement, CMKM had no transfer agent, so

it was not possible for shareholders to purchase and sell CMKM stock and cause such change of



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ownership to be registered and consummated on the companys books and records (and new

certificates issued reflecting such transactions) because there was no company performing such

registration and transfer services.

7. Glissons statement in his November 2009 Declaration accurately reflected the status

of matters, as it affected the ability of shareholders to sell and purchase CMKM stock, at the

time.

8. As the Plaintiff knows, having recently taken the testimony of Allen White in

Portland in January 2011 as the designated representative for TransferOnline, Inc. and otherwise,

TransferOnline was appointed stock transfer agent for shares of CMKM by the company on

April 1, 2010; and has acted as independent transfer agent for CMKM from that date to the

present.

9. Upon the appointment of TransferOnline as transfer agent for CMKM stock,

stockholders like Glisson who were previously not able to purchase or sell CMKM stock, as a

result of the lack of such appointed stock transfer agent, now had the opportunity and choice to

do so starting in April 2010.

10. At his deposition in on January 11, 2011, where I appeared on behalf of Mr. Glisson,

Glisson testified that he had not purchased any CMKM stock in 2010 (but that he had sold

CMKM stock in 2010).

11. The factual basis for the Plaintiffs argument in this case that Glisson is more than

an investor - - that he is a broker/dealer - - is that from 2005-2007 Glisson bought and sold

CMKM stock in such quantities and with such frequency during portions of such extended

period of time (much like a professional securities broker/dealer would do as part of their

business activities) that he should be found to be a securities broker/dealer requiring his



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registration and such and requiring that his offers and sales of CMKM securities be registered

under Section 5 of the Securities Act of 1933 (because he was not entitled to the private

investor exemption from such registration requirement). See the parties respective motion for

summary judgment submissions.

12. It is certainly not clear from the Plaintiffs Motion why they think that sales of

CMKM stock by Glisson in 2010 requires an amendment to the existing Complaint and/or why

they need to wait to do so and/or why they need an extended period of time to analyze additional

bank information concerning such 2010 activity (which Glisson has testified took place) before

proceeding to amend the Complaint.

13. In the 2nd Quarter of 2010, shortly after the appointment of TransferOnline and the

resumption of trading in CMKM stock, Paris Wynn, Esq. called and reported to me that the

Plaintiff was monitoring the trading of CMKM stock including by Glisson (and his wife); and,

accordingly, the Plaintiffs argument that they need to delay the trial in this case because they

need more time to investigate such 2010 trading activity strikes me as disingenuous.

14. If there was anything about Glissons sales of CMKM stock in 2010 that constituted

a violation of the registration provisions of Section 5, then such continued activity in 2010 is

indicative of reasonable likelihood that, unless enjoined, such activity will continue in the

future; and proof of such continued activity for purposes of justifying the injunction sought by

the Plaintiff in this action would not seem to require amendment of the existing Complaint.

15. The Plaintiffs argument, that the extended delay being sought by their Motion will

not delay the trial of this case, does not, in my experience and opinion, pass the straight face

test. See Plaintiffs Motion at page 2/lines 19-20 (Thus, extending the time for the final pretrial

order to June 30, 2011, should not otherwise delay the trial of this matter).



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16. The Complaint in this case was filed on January 15, 2009. This case has been

pending for more than two years. The last day to amend the pleadings and add parties was June

11, 2009. The original discovery cut-off date for the case (last date to complete discovery)

was September 9, 2009 (which was more than 16 months ago). See the Courts scheduling Order

dated April 28, 2009. It is now 2011.

This Declaration is made and given under penalty of perjury under the laws of the

United States. This Declaration is executed in Los Angeles County, California, on February 7,

2011.

/s/:Robert H. Bretz, Esq.ROBERT H. BRETZ, ESQ.


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