Securities & Exchange Commission v. BIH Corporation et al

RESPONSE to Motion re MOTION for Reconsideration re Order on Motion for Reconsideration

M.D. Fla.July 31, 2014

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION CASE NO. 2:10-CV-577-FTM-29 DNF SECURITIES AND EXCHANGE COMMISSION, ) ) Plaintiff, ) v. ) ) BIH CORPORATION, ) WAYNE A. BURMASTER, JR., ) EDWARD W. HAYTER, ) NORTH BAY SOUTH CORPORATION, ) BIMINI REEF REAL ESTATE, INC., ) RIVERVIEW CAPITAL INC., ) CHRISTOPHER L. ASTROM, and ) DAMIAN B. GUTHRIE, ) Defendants, ) ) BARON INTERNATIONAL, INC., ) THE CADDO CORPORATION, and ) BEAVER CREEK FINANCIAL CORPORATION, ) ) Relief Defendants. ) ________________________________________________) PLAINTIFF SECURITIES AND EXCHANGE COMMISSION’S RESPONSE TO EDWARD HAYTER’S MOTION FOR RECONSIDERATION OF ORDER DIRECTING HIM TO PROVIDE NAME OF TRUST SERVICES REPRESENTATIVE AND REPLY IN SUPPORT OF SEC’S RENEWED MOTION TO STRIKE TRUST SERVICES FROM HAYTER’S LIST OF TRIAL WITNESSES Plaintiff Securities and Exchange Commission hereby responds to Defendant Edward W. Hayter’s Motion for Reconsideration of Order Directing Him to Provide the Name of the Trust Services Representative and files its Reply in support of the SEC’s Renewed Motion to Strike Trust Services from Hayter’s List of Trial Witnesses. On July 10, 2014, the Court gave Hayter seven days to identify the name of the individual who will testify as a custodian of records on Case 2:10-cv-00577-JES-DNF Document 214 Filed 07/31/14 Page 1 of 3 PageID 4900 2 behalf of Trust Services.1 [See DE 205, pp. 8-9]. Despite three weeks passing, no such notice has been received. Hayter’s arguments for failing to comply with this Court’s July 10th Order are unavailing. He claims he does not know the identity of the Trust Services representative, since just days before trial he has yet to serve a trial subpoena on it. Hayter gives no reason for why he has waited so long to serve a trial subpoena on Trust Services, especially since he has had months to serve a trial subpoena, as months ago this matter was specially set for a jury trial beginning on August 5th. Any prejudice is of Hayter’s own making, because if he had acted diligently he could have served a trial subpoena on Trust Services months ago. Also, Hayter does not present any arguments in his Motion for Reconsideration that he could not have asserted earlier. Hence, there is no basis for the Court to reconsider its prior Order. Because Hayter failed to abide by the Court’s July 10th Order and has not served a trial subpoena on it, the Commission cannot depose anyone from Trust Services. Accordingly, the Court should deny Hayter’s Motion for Reconsideration and grant the Commission’s Renewed Motion to strike Trust Services from Hayter’s List of Trial Witnesses. Respectfully submitted, July 31, 2014 By: s/Christopher E. Martin Christopher E. Martin Senior Trial Counsel martinc@sec.gov Arizona Bar No. 018486 Direct Dial No.: (305) 982-6386 Patrick R. Costello Senior Trial Counsel Florida Bar No. 75034 Telephone: (305) 982-6380 1 Besides merely stating he is not a member of ECF, Hayter does not give any support for his claim that he did not receive the Court’s July 10th until 12 days after it was issued or why he waited at least another four days before responding. Case 2:10-cv-00577-JES-DNF Document 214 Filed 07/31/14 Page 2 of 3 PageID 4901 3 Facsimile: (305) 536-4154 E-mail: costellop@sec.gov Attorneys for Plaintiff SECURITIES AND EXCHANGE COMMISSION 801 Brickell Avenue, Suite 1800 Miami, Florida 33131 Telephone: (305) 982-6300 Facsimile: (305) 536-4154 CERTIFICATE OF SERVICE I hereby certify that on July 31, 2014, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following: Mark David Hunter, Esq. Leser Hunter Taubman & Taubman, PLLC 255 University Drive Coral Gables, FL 33134 Tel: (305) 629-8816 Fax: (305) 629-8877 Counsel for Defendants Bimini Reef Real Estate, Inc., Riverview Capital Inc., Christopher L. Astrom, and Damian B. Guthrie and that on same date, I served the foregoing document and the notice of electronic filing by UPS overnight mail, and U.S. Mail to the following non-CM/ECF participants: Edward Hayter, pro se 2167 East 21st Street, #103 Brooklyn, NY 11229 s/Christopher Martin Christopher Martin Case 2:10-cv-00577-JES-DNF Document 214 Filed 07/31/14 Page 3 of 3 PageID 4902