Securities And Exchange Commission v. Amundsen

Filing 46

ORDER DENYING MOTION TO VACATE INJUNCTION FOR LACK OF SUBJECT-MATTER JURISDICTION AND VACATING HEARING by Hon. William Alsup denying 40 Motion to Vacate.(whalc2, COURT STAFF) (Filed on 3/2/2012) (Additional attachment(s) added on 3/2/2012: # 1 Certificate/Proof of Service) (wsn, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,

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No. C 83-00711 WHA

ORDER DENYING MOTION TO
VACATE INJUNCTION FOR LACK OF
SUBJECT-MATTER JURISDICTION
AND VACATING HEARING

v.
JOSEPH S. AMUNDSEN,
Defendant.

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/

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Defendant Joseph S. Amundsen has filed a motion to vacate the injunction entered in this

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matter in 1983. The issues raised in this motion are the same as the issues raised in Mr.

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Amundsen’s previous motion to vacate the injunction, which was denied. Mr. Amundsen

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appealed the denial of that order. That appeal is still pending before our court of appeals. Thus,

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for the reasons set forth below, the instant motion is DENIED for lack of subject-matter

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jurisdiction.

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In the recent order resolving plaintiff’s motion for contempt, it was determined that

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defendant’s auditing of financial statements of broker-dealers destined for filing with the

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Commission constituted appearing or practicing before the Commission (Dkt. No. 39). In that

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order, Mr. Amundsen was made aware that if he were so inclined, he could file a “cogent and

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persuasive motion to modify the scope of the injunction” (Dkt. No. 39 at 3). The order also stated

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that Mr. Amundsen “would be well-advised to retain counsel” to advise him on any such motion.
Mr. Amundsen did not retain counsel. He did not file a motion to modify the scope of the

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injunction. Instead, proceeding pro se, he filed another motion to vacate the injunction (Dkt. No.

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40).

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On October 4, 2010, proceeding pro se, Mr. Amundsen filed his first motion to vacate the

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injunction (Dkt. No. 5). He raised three arguments in favor of vacating the injunction. First, that

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he had been rehabilitated, as evidenced by his thirty years of “good behavior.” Second, that the

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injunction was improper in light of the unfulfilled requirements of Section 7 of the Securities Act

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of 1933. Third, that the Commission had given him bad legal advice regarding the settlement

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agreement and that he was denied his “right of due process to understand the judgment” (Dkt. No.

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5). Mr. Amundsen’s first motion to vacate the injunction was denied because he did not make a
showing, as is required under Federal Rule of Civil Procedure 60(b)(5), that conditions had

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For the Northern District of California

United States District Court

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changed, warranting vacating the injunction (Dkt. No. 14). Continuing to proceed pro se, Mr.

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Amundsen filed a notice of appeal, seeking reversal of that order, raising the same arguments as

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he did in the motion to vacate, and also arguing that he had been in compliance with the

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injunction. That appeal is still pending.

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“Once a notice of appeal is filed, the district court is divested of jurisdiction over the

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matters being appealed.” Natural Res. Def. Council v. Sw. Marine, Inc., 242 F.3d 1163, 1166 (9th

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Cir. 2001). The purpose of this rule is to, “promote judicial economy and avoid confusion that

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would ensue from having the same issues before two courts simultaneously. The principle of

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exclusive appellate jurisdiction is not, however, absolute. The district court retains jurisdiction

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during the pendency of an appeal to act to preserve the status quo.” Ibid.

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Mr. Amundsen’s instant motion to vacate presents the same issues that are currently

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pending before our court of appeals. And providing Mr. Amundsen with the relief he seeks —

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vacating the injunction — would not be an act to “preserve the status quo.” The instant motion

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asserts three bases for vacating the injunction. First, Mr. Amundsen argues that the Commission

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attorneys provided him with bad legal advice as they “knew or should have know [sic] that there

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was no basis in law or in fact for this injunction and were in direct violation of 41 C.F.R. 60.250,

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the government’s pledge to help Vietnam Vets.” Second, Mr. Amundsen asserts violations of

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Section 7 of the Securities Act of 1933 and resulting invalidity of the injunction. Third, he argues
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that there is no probable cause to continue the injunction as “there has never been any intent to

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violate the injunction” (Dkt. No. 40).

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Mr. Amundsen’s instant motion to vacate the injunction presents the same issues that are

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pending on appeal. Thus, Mr. Amundsen’s motion to vacate the injunction is DENIED for lack of

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subject-matter jurisdiction. The hearing set for March 8, 2012, is VACATED.

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IT IS SO ORDERED.

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Dated: March 2, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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