Post by kenshin7 on Apr 15, 2010 19:55:21 GMT -5
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,
Plaintiffs,
vs.:
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:
INTRODUCTION:
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.
THE PARTIES:
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
By: [Signed]
A. CLIFTON HODGES
Attorneys for Plaintiffs
DEMAND FOR JURY TRIAL
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,
Plaintiffs,
vs.:
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:
INTRODUCTION:
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.
THE PARTIES:
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
By: [Signed]
A. CLIFTON HODGES
Attorneys for Plaintiffs
DEMAND FOR JURY TRIAL
