doc 82 sec response to summary judgment

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. CASE NO. 2:15-cv-2451-CJB-SS RONALD L. BLACKBURN, ANDREW V. REID, BRUCE A. GWYN, MICHAEL A. MULSHINE, LEE C. SCHLESINGER, SAMUEL E. WHITLEY, AND TREATY ENERGY CORPORATION, Defendants.

PLAINTIFFS RESPONSE IN OPPOSITION TO THE RULE 56 MOTION FOR SUMMARY JUDGMENT OF RONALD LEE BLACKBURN, ANDREW V. REID,

BRUCE GWYN AND MICHAEL A. MULSHINE

Plaintiff Securities and Exchange Commission (Plaintiff, SEC, or Commission)

files its Response in Opposition to the Rule 56 Motion for Summary Judgment filed by

Defendants Ronald Lee Blackburn, Andrew V. Reid, Bruce Gwyn and Michael A. Mulshine

(together, Treaty Officer Defendants) [Doc. 74] (Motion), and in support thereof,

respectfully shows as follows:

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only where there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Treaty Officer Defendants, as the movants,

bear the initial burden of demonstrating the absence of any material fact. See Celotex, 477 U.S. at

323. If the moving party fails to meet this initial burden, the motion must be denied, regardless

of the nonmovants response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

Case 2:15-cv-02451-CJB-SS Document 82 Filed 08/04/15 Page 1 of 4

SEC v. Blackburn, et al. Page 2 PLAINTIFFS RESPONSE TO TREATY OFFICERS MOTION FOR SUMMARY JUDGMENT

This burden is not satisfied with some metaphysical doubt as to the material facts, by

conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. Id.

(internal quotations and citations omitted). Plainly, a conclusory assertion that the nonmoving

party has no evidence is insufficient to discharge the movants burden. Celotex, 477 U.S. at 328

(White, J. concurring); St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 (5th Cir.

2005). Only when the moving party satisfies this initial burden of production does the burden

shift to the opposing party to establish that a genuine issue of material fact exists. Little, 37 F.3d

at 1075; First Natl Bank v. Cities Serv. Co., 391 U.S. 253, 289 (1968).

ARGUMENTS AND AUTHORITIES

The first 24 pages of the Treaty Officer Defendants 25 page motion for summary judgment

consist of a frivolous and abusive rant1 centering on an unsupported (and untrue) belief that the SEC

[filed its] complaint at the behest of individuals with a personal agenda and was associating with

persons abusing its process. (See Defs. Motion at p. 8.) Not a single sentence relates to any

pending claim or defense, and cannot be considered for determining whether summary judgment is

appropriate. See Tucker v. SAS Institute, Inc., 462 F. Supp. 2d 715, 723 (N.D. Tex. [Dallas]

2006) (Unless the assertions contained in the [] brief are supported by accurate citations to the

record, they are merely unsubstantiated assertions which are not competent summary judgment

evidence.); Calbillo v. Cavender Oldsmobile, Inc., 288 F. 3d 721, 725 (5th Cir. 2002). The

Court should disregard all uncited allegations contained within the brief and the accompanying

Statement of Uncontested Facts, which are not supported by a single citation to evidence. FED. 1 Throughout their motion and in other public filings with this Court, Defendants have made repeated unsubstantiated and impertinent allegations of misconduct by Commission staff and have demonstrated a bizarre obsession with the Commission staff attorney who investigated this matter. See Defs. uncited Statement of Uncontested Facts (nearly all of which facts the SEC contests, and half of which center on a particular SEC attorney). These allegations and personal attacks on counsel are frivolous, defamatory, and abusive, and have nothing to do with the merits of SECs enforcement action. The SEC reserves the right to raise these issues in a separate Motion for Sanctions under Rule 11(c).



R. CIV. P. 56(c)(3) (The court need consider only the cited materials, but it may consider other

materials in the record.); Forsynth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994) (unsubstantiated

assertions are not summary judgment evidence); Mitchell v. Toledo Hosp., 964 F.2d 577, 585

(6th Cir. 1992) (holding that conclusory allegations and subjective beliefs . . . are wholly

insufficient evidence[].).

The substance of defendants argument in support of their summary judgment motion

begins on page 25 and consists of three short paragraphs.2 In support of their motion, the Treaty

Officer Defendants merely state the phrase That did not happen, and nothing else, as to each of

the SECs claims. Defendants do not attach any relevant evidence or point to any evidence in the

record to support their motion.3

The federal summary judgment standard imposes upon the movant the initial responsibility

of informing the district court of the basis for its motion, and identifying those portions of the

[record] which it believes demonstrate the absence of a genuine issue of material fact. Celotex

Corp., 477 U.S. at 323. A mere conclusory statement that the other side has no evidence is not

enough to satisfy a movants burden. Ashe v. Corley, 992 F.2d 540, 544 (5th Cir. 1993); Thomas v.

Abbott, 2009 WL 900740 (E.D. Tex. Mar. 30, 2009), at 2 (denying summary judgment when

defendant merely stated that Plaintiff cannot produce support for an essential element of her

claim). Here, Defendants are one step removed from alleging no evidence: they merely deny

2 Although Defendants moves only for summary judgment under Rule 56 (See Defs. Motion [Doc. 74]), their brief in support of the Rule 56 Motion, cites Rule 12(f) and asks the Court to strike various paragraphs of the Complaint, based only on the unsubstantiated assertion that the calumny regarding Blackburn had nothing to do with the securities laws and similar conclusory and uncited statements. The Court should disregard this mini- motion within the brief. 3 The few documents defendants attach to their motion have no relation or relevance to any pending claim, and appear to be offered in support of the aforementioned irrelevant rant.



that the alleged violation occurred. Defendants have not met their burden under the well-established

summary judgment standard, and the Court must deny Defendants motion.

CONCLUSION

For the foregoing reasons, the Court should: (1) deny the Treaty Officer Defendants

Motion for Summary Judgment; and (2) grant the SEC such other relief as it may be entitled. A

proposed Order is attached to this motion.

Dated: August 4, 2015 Respectfully submitted,

s/Jennifer D. Brandt Jennifer D. Brandt Trial Attorney Texas Bar No. 00796242

U.S. Securities and Exchange Commission Burnett Plaza, Suite 1900 801 Cherry Street, Unit #18 Fort Worth, Texas 76102-6882

Direct phone: (817) 978-6442 Fax: (817) 978-4927 [email protected]

COUNSEL FOR PLAINTIFF

CERTIFICATE OF SERVICE

I certify that on August 4, 2015, I electronically submitted the foregoing document with

the clerk of court for the U.S. District Court, Eastern District of Louisiana, using the electronic case filing system of the court. I hereby certify that I have served all counsel according to Fed. R. Civ. P. 5(b)(2).

s/Jennifer D. Brandt Jennifer D. Brandt


doc 82 sec response to summary judgment

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