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

1 Robert H. Bretz, Esq.

California Bar No. 55087
2 578 Washington Blvd. #843
Marina del Rey, California 90292
3 (310) 578-1957
Attorney for Defendant
4

5 IN THE UNITIED STATES DISTRICT COURT

6 FOR THE DISTRICT OF NEVADA
7 * * *
8
SECURITIES AND EXCHANGE ) Case No.: 2:09-cv-00104-LDG-GWF
9 )
COMMISSION, ) DEFENDANT GLISSON’S OPPOSITION
10 ) TO PLAINTIFF’S MOTION FOR
Plaintiff, ) CONTINUANCE OF DATE FOR FILING
11 ) JOINT PRE-TRIAL ORDER (First Request);
vs. ) DECLARATION OF GLISSON’S
12 ) COUNSEL,
MARCO GLISSON, ) ROBERT H. BRETZ
13 )
Defendant. ) Date of Hearing: No Hearing Date Set
14 )
Time of Hearing:
15

16
MARCO GLISSON, through his attorney of record, responds and objects to Plaintiff

17 Securities and Exchange Commission’s (“SEC”) Motion For Continuance Of Date For Filing
18 Joint Pre-Trial Order (First Request) dated and filed January 27, 2011 (the “Motion”), as follows.
19
On January 13, 2011, the Court denied the Plaintiff’s motion to extend the additional
20
discovery period previously permitted by the Court pertaining to Marco Glisson’s activities in
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22 2010. On January 31, 2011, Plaintiff filed a subsequent motion to extend the discovery date

23 (and/or for clarification of the Court’s October 29, 2010 Order permitting certain limited,
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additional discovery) which motion remains pending before the Court. The reason given by the
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Plaintiff for the approximately five month continuance in the preparation and filing of the joint
26
pre-trial order sought by the instant Motion is the Plaintiff’s need to examine the additional bank
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28 account discovery to be obtained by the Plaintiff if the pending motion is granted by the Court so

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1 that Plaintiff can obtain information as a result of their defective, out-of-time subpoenas seeking
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bank account information for the 2010 time period. 1 If the Court denies the pending motion,
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to further extend the additional discovery cut-off date to accommodate the Plaintiff’s defective,
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5 out-of-time third party discovery requests, the instant Motion will be moot.

6 The Court has previously denied the Plaintiff’s motion for summary judgment. If the
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Court denies the pending motion for an extension of the additional discovery cut-off date, the
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instant Motion will be moot; and the parties would proceed to prepare and file the joint pre-trial
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order followed by trial setting in this case. As explained in Glisson’s opposition to the pending
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11 motion, Glisson is opposed to any further delay in preparation for trial and trial of this case.

12 Glisson recognizes that if there is any substantial delay in the Court’s ruling on the pending
13 motion and the instant Motion, there may be a legitimate need to continue the date for the filing
14 of the parties’ joint pre-trial order - - for 30-45 days - - to accommodate the Plaintiff’s need for
15 adequate time to accomplish such preparation activity. If, the Court should nevertheless grant
16 the Plaintiff’s pending motion, extending the period for further, additional discovery to the
17 Plaintiff’s requested February 21, 2011 cut-off date; then, in any event, the Plaintiff has not made
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19

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20 The Plaintiff’s reply to Glisson’s opposition to Plaintiff’s 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
21 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
22 previously denied the Plaintiff’s 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 didn’t comply with the timely notice to
23 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 Plaintiff’s Reply
24 focuses on the absence of prejudice resulting from their mistake (citing a single Tennessee court decision) Glisson’s
focus is, rather, on the Court granting further special dispensation to the Plaintiff for subpoenas that failed to even
25 follow 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
26 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 Plaintiff’s only
27 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
28 the transcript of such testimony before they could issue the subpoenas. Does this make sense, is this “good cause”?

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1 any showing as to why the continuance of the date for the filing of the joint pre-trial order should
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exceed 30-45 days following the Plaintiff’s requested February 21, 2011 discovery cut-off date. 2
3
THE PLAINTIFF’S MOTION NEEDS TO BE CONSIDERED IN
4
LIGHT OF THE FACTS AND CIRCUMSTANCES WHICH THE
5 PLAINTIFF DID NOT REPORT TO THE COURT SO AS TO BETTER
UNDERSTAND THE MERITS OF THE ARGUMENTS SET FORTH IN
6 THE MOTION
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In the Motion, the Plaintiff argues that,
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“Glisson’s conduct in 2010 is almost identical to the conduct alleged in the
9 Complaint, and appears to contravene Glisson’s sworn declaration in opposition
to summary judgment [that in 2009 he had no intention to sell any more shares of
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CMKM stock in the future]”. Plaintiff’s Motion page 1/20-22.
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When the foregoing is considered in light of the facts and circumstances which the
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Plaintiff did not include or otherwise address in the Motion, the Court will hopefully conclude
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that the foregoing is no basis for determining that this case should be further delayed because the
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Plaintiff actually needs more time (let alone five months) to analyze any bank information
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concerning Glisson’s activities in 2010 and/or for the Plaintiff to decide, following such further
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analysis, whether or not to seek to amend the Complaint in this action to include Glisson’s
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activities in 2010.
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The Plaintiff argues that Glisson’s sale of CMKM stock in 2010 “appears to contravene”
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his statement in his Declaration dated November 13, 2009 that he did not intend to sell any
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CMKM stock in the future, including because CMKM was defunct and there was no way for
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CMKM shareholders to sell and transfer shares of CMKM stock (because there was no transfer)
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agent for CMKM stock). Motion, page 1/lines 20-26.
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CMKM has not been an operating company for years (and was not operating in 2009),
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and is, therefore, considered to be “defunct”. No one can argue with that fact. See Plaintiff’s
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26 The Plaintiff’s 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
27 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 SEC’s case (See Glisson’s
28 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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1 Motion at page 1 referring to Glisson’s Declaration dated November 13, 2009, and suggesting
2 that Glisson’s “defunct” statement was not accurate. Glisson’s statement was then and continues
3 to be accurate.
4 At the time of Glisson’s November 2009 statement, CMKM had no transfer agent, so it
5 was not possible for shareholders to purchase and sell CMKM stock and cause such change of
6 ownership to be registered and consummated on the company’s books and records (and new
7 certificates issued reflecting such transactions) because there was no company performing such
8 stock registration and transfer services.
9 Glisson’s statement in his November 2009 Declaration accurately reflected the status of
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matters, as it affected the ability of shareholders to sell and purchase CMKM stock, at the time.
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As the Plaintiff knows, having taken the testimony of Aaron White in Portland in January
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2011 as the designated representative for TransferOnline, Inc. and otherwise, TransferOnline was

14 appointed stock transfer agent for shares of CMKM by the company on April 1, 2010; and has
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acted as independent transfer agent for CMKM stock from that date to the present. See
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TransferOnline’s web site at “http://www.transferonline.com/”. Upon the appointment of
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TransferOnline as transfer agent for CMKM stock (thereby permitting the shareholder’s to “wind
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19 down” their positions in the stock as they saw fit), stockholders like Glisson who were

20 previously not able to purchase or sell CMKM stock, as a result of the lack of such appointed
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stock transfer agent, now had the opportunity and choice to do so starting in April 2010.
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Like any CMKM stockholder in November 2009 who did not contemplate or intend to
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sell CMKM, because they couldn’t, when the opportunity presented itself following the
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25 appointment of TransferOnline in April 2010, Glisson re-evaluated his options and what made

26 sense for him at the time. This change of circumstances in April 2010 does not mean that
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Glisson’s statement about his intentions in November 2009 was not truthful (or dictate further
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investigation by the Plaintiff in 2011 of events they have known about since April 2010 when

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1 they started monitoring sales of CMKM stock including by Glisson [and his wife] through the
2
records of TransferOnline).
3
At his deposition on January 11, 2011, Glisson testified that he had not purchased any
4

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

6 The factual basis for the Plaintiff’s (civil injunction) claims against Glisson is that he was
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more than an “investor” - - that he was a “broker/dealer” - - that from 2005-2007 Glisson bought
8
and sold CMKM stock in such quantities and with such frequency during portions of such
9
extended period of time (much like a professional securities broker/dealer would do all the time
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11 as part of their business activities) and should be found to be a securities “broker/dealer”

12 requiring his offers and sales of CMKM stock to be registered under Section 5 of the Securities
13
Act of 1933 (because he was not entitled to the private “investor” exemption from such
14
registration requirement). See the parties’ respective motion for summary judgment
15
submissions.
16

17 It is certainly not clear from the Plaintiff’s Motion why they think that sales of CMKM stock by
18 Glisson in 2010 requires an amendment to the existing Complaint and/or why they now need an

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

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

21 case. (The Plaintiff’s complaint already asks for astronomical monetary damages in the form of

22 fines, penalties and disgorgement).

23 If there was anything about Glisson’s sales of CMKM stock in 2010 that constituted a

24 violation of the registration provisions of Section 5, then such continued activity in 2010 is
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indicative of “reasonable likelihood” that, unless enjoined, such activity will continue in the
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future; and proof of such continued activity for purposes of justifying the injunction sought by
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. . .

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 Case 2:09-cv-00104-LDG-GWF Document 59 Filed 02/07/11 Page 6 of 11

1 the Plaintiff in this action would not seem to require amendment of the existing Complaint. 3
2
Finally, the Plaintiff’s argument, that the extended delay being sought by their motion
3
will not delay the trial of this case, does not pass the “straight face” test. See Plaintiff’s Motion
4

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

6 should not otherwise delay the trial of this matter”).

7
The bottom line is that the Plaintiff’s Motion does not present any sufficient basis for the
8
Court to grant the (initial, further) delay the Plaintiff is seeking. This case should now proceed
9
forward in the normal course.
10

11 THIS CASE SHOULD PROCEED FORWARD TO TRIAL

IN THE NORMAL COURSE
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The Complaint in this case was filed on January 15, 2009 (the activities covered by the
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14 Complaint took place in 2005-2007). This case has been pending for more than two years. The

15 last day to amend pleadings and add parties was June 11, 2009. The original discovery cut-off
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date for the case was September 9, 2009 which was more than 16 months ago (and was
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subsequently extended to January 26, 2011). See the Court’s scheduling Order dated April 28,
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19
2009, and Order dated October 29, 2010.

20 If and when the Plaintiff ever makes a semblance of a for “good cause” showing (which it
21 has not done so far with its “more discovery/investigation needed” and “possible amendment”
22 arguments), Glisson hopes the Court will reject any such request for delaying the trial of this
23 case.
24
. . .
25
. . .
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3
28 Plaintiff appears to agree with this analysis, Glisson’s 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 Plaintiff’s motion to again extend the
discovery date at page 4/lines 13-14.

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1 CONCLUSION
2 The Plaintiff should abide by the extended discovery cut-off date in this case (discovery
3
to be completed by January 26, 2011). The deadline for the submission of the parties’ joint pre-
4
trial order in this case (30 days after the close of discovery) should have taken place by
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6 November 9, 2009; and should not now be further extended (to permit Plaintiff five more months

7 to investigate its case and decide whether or not to seek to amend the Complaint (which, in any
8
event, should not be permitted at this point of the proceedings). This case should proceed to trial
9
in the normal course in accordance with the applicable rules of this Court and the Court’s
10
Scheduling Order.
11

12 The Court is respectfully requested to deny the Plaintiff’s Motion.

13 DATED this 7th day of February, 2012.

14
Respectfully submitted,
15
_
16 /s/:Robert H. Bretz, Esq.
17
Robert H. Bretz, Esq.
California Bar No. 55087
18 578 Washington Blvd. #843
Marina del Rey, California 90292
19 (310) 578-1957
20
Attorney for Defendant

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1 DECLARATION OF ROBERT BRETZ, ESQ.

2
I, ROBERT H. BRETZ, ESQ., hereby declare, as follows:
3
1. I am attorney of record for Marco Glisson and I am otherwise competent to provide
4
the within testimony based on my own personal knowledge or upon information and belief as
5

6 indicated herein.

7 2. I am advised by the Glissons, that the only bank to which the Plaintiffs six defective,
8
out-of-time subpoenas were directed where proceeds of the sale of CMK stock in 2010 was
9
deposited is SunTrust Bank
10
3. It is estimated that the time the Plaintiff will need to analyze and consider the
11

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

13 such information into the Plaintiff’s portion of the joint pre-trial order, is 1-5 days at the most.
14
4. From my reading of the Plaintiff’s Motion, the need to analyze, consider and
15
incorporate such bank account information/documents into the Plaintiff’s portion of the joint pre-
16

17
trial order, is the only reason proffered as to why the Plaintiff is seeking a continuance for the

18 filing of the parties’ joint pre-trial order. See Plaintiff’s Motion at page 2/lines 9-10 (“The
19
Commission needs additional time to analyze the bank records to include them in any pretrial
20
order”).
21
5. CMKM has not been an operating company for years, and is, therefore, considered
22

23 “defunct”. No one can argue with that fact. See Plaintiff’s Motion at page 1 referring to

24 Glisson’s Declaration dated November 13, 2009, suggesting that Glisson’s “defunct” statement
25
is not accurate - - it was then and is now accurate.
26
6. At the time of Glisson’s November 2009 statement, CMKM had no transfer agent, so
27
it was not possible for shareholders to purchase and sell CMKM stock and cause such change of
28

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1 ownership to be registered and consummated on the company’s books and records (and new
2
certificates issued reflecting such transactions) because there was no company performing such
3
registration and transfer services.
4

5 7. Glisson’s statement in his November 2009 Declaration accurately reflected the status

6 of matters, as it affected the ability of shareholders to sell and purchase CMKM stock, at the
7
time.
8
8. As the Plaintiff knows, having recently taken the testimony of Allen White in
9
Portland in January 2011 as the designated representative for TransferOnline, Inc. and otherwise,
10

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

12 April 1, 2010; and has acted as independent transfer agent for CMKM from that date to the
13
present.
14
9. Upon the appointment of TransferOnline as transfer agent for CMKM stock,
15
stockholders like Glisson who were previously not able to purchase or sell CMKM stock, as a
16

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

18 do so starting in April 2010.

19
10. At his deposition in on January 11, 2011, where I appeared on behalf of Mr. Glisson,
20
Glisson testified that he had not purchased any CMKM stock in 2010 (but that he had sold
21

22
CMKM stock in 2010).

23 11. The factual basis for the Plaintiff’s argument in this case that Glisson is more than
24
an “investor” - - that he is a “broker/dealer” - - is that from 2005-2007 Glisson bought and sold
25
CMKM stock in such quantities and with such frequency during portions of such extended
26
period of time (much like a professional securities broker/dealer would do as part of their
27

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

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1 registration and such and requiring that his offers and sales of CMKM securities be registered
2
under Section 5 of the Securities Act of 1933 (because he was not entitled to the private
3
“investor” exemption from such registration requirement). See the parties’ respective motion for
4

5 summary judgment submissions.

6 12. It is certainly not clear from the Plaintiff’s Motion why they think that sales of
7
CMKM stock by Glisson in 2010 requires an amendment to the existing Complaint and/or why
8
they need to wait to do so and/or why they need an extended period of time to analyze additional
9
bank information concerning such 2010 activity (which Glisson has testified took place) before
10

11 proceeding to amend the Complaint.

12 13. In the 2nd Quarter of 2010, shortly after the appointment of TransferOnline and the
13
resumption of trading in CMKM stock, Paris Wynn, Esq. called and reported to me that the
14
Plaintiff was monitoring the trading of CMKM stock including by Glisson (and his wife); and,
15
accordingly, the Plaintiff’s argument that they need to delay the trial in this case because they
16

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

18 14. If there was anything about Glisson’s sales of CMKM stock in 2010 that constituted
19
a violation of the registration provisions of Section 5, then such continued activity in 2010 is
20
indicative of “reasonable likelihood” that, unless enjoined, such activity will continue in the
21

22
future; and proof of such continued activity for purposes of justifying the injunction sought by

23 the Plaintiff in this action would not seem to require amendment of the existing Complaint.
24
15. The Plaintiffs argument, that the extended delay being sought by their Motion will
25
not delay the trial of this case, does not, in my experience and opinion, pass the “straight face”
26
test. See Plaintiff’s Motion at page 2/lines 19-20 (“Thus, extending the time for the final pretrial
27

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

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1 16. The Complaint in this case was filed on January 15, 2009. This case has been
2
pending for more than two years. The last day to amend the pleadings and add parties was June
3
11, 2009. The original discovery cut-off date for the case (“last date to complete discovery”)
4

5 was September 9, 2009 (which was more than 16 months ago). See the Court’s scheduling Order

6 dated April 28, 2009. It is now 2011.

7
This Declaration is made and given under penalty of perjury under the laws of the
8
United States. This Declaration is executed in Los Angeles County, California, on February 7,
9
2011.
10

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

ROBERT H. BRETZ, ESQ.
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