Securities And Exchange Commission v. Son et al

Filing 83

ORDER DENYING MOTION FOR ENLARGEMENT OF TIME TO SERVE DEFENDANT JIN K. CHUNG; DISMISSING WITHOUT PREJUDICE CLAIMS AGAINST DEFENDANT JIN K. CHUNG. Signed by Judge Maxine M. Chesney on July 1, 2011. (mmclc1, COURT STAFF) (Filed on 7/1/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

For the Northern District of California

United States District Court

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SECURITIES AND EXCHANGE
COMMISSION,

No. C-09-2554 MMC
ORDER DENYING MOTION FOR
ENLARGEMENT OF TIME TO SERVE
DEFENDANT JIN K. CHUNG;
DISMISSING WITHOUT PREJUDICE
CLAIMS AGAINST DEFENDANT JIN K.
CHUNG

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Plaintiff,
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v.
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PETER C. SON, et al.,
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Defendants.
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Before the Court is plaintiff Securities and Exchange Commission’s (“SEC”) Motion

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for Enlargement of Time to Serve Defendant Jin K. Chung, filed June 21, 2011, by which

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the SEC seeks to extend the deadline to serve Jin K. Chung (“Chung”) from June 30, 2011

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to September 30, 2011. Having read and considered the motion, the Court rules as

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follows.

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The instant action was filed over two years ago. To date, the SEC has been unable

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to serve Chung, the sole remaining defendant, who, according to the SEC, has resided in

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South Korea “since the filing of this action” (see Eme Decl. ¶ 2), and there is no showing

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the SEC is likely to effectuate service on Chung in the near future, let alone by September

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30, 2011 (see id. ¶¶ 2-5). The SEC nonetheless seeks a further extension of time to serve

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Chung, for the asserted reason that if its claims against Chung are dismissed, even without

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prejudice, the refiling of such claims “could be curtailed by the application of the statute of

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limitations.” (See Pl.’s Mot. at 2:18-20.) The Court is not persuaded.

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First, as the SEC correctly observes, its claims against Chung for equitable relief,

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specifically, its claims for injunctive relief and for disgorgement, are not subject to any

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statute of limitations. See SEC v. Rind, 991 F.2d 1486, 1491-92 (9th Cir.) (holding “no

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statute of limitations” applicable to action brought by the SEC for injunctive relief and

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disgorgement), cert. denied, 510 U.S. 963 (1993).

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Second, although the SEC, noting its complaint also includes a claim for statutory

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penalties, asserts such claim is or could be found to be subject to the five-year statute of

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limitations set forth in 28 U.S.C. § 2462, such concern does not, as a practical matter,

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appear well-founded. In particular, § 2462 provides as follows:

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Except as otherwise provided by Act of Congress, an action, suit or
proceeding for the enforcement of any civil fine [or] penalty . . . , pecuniary or
otherwise, shall not be entertained unless commenced within five years from
the date when the claim first accrued, if, within the same period, the offender .
. . is found within the United States in order that proper service may be made
thereon.

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See 28 U.S.C. § 2462 (emphasis added). The SEC fails to explain how such five-year
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limitations period will apply to its claim against Chung, given that, to date, such alleged
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“offender” cannot be found in the United States.
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Accordingly, the motion is hereby DENIED, and the SEC’s claims against Chung are
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hereby DISMISSED without prejudice.
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IT IS SO ORDERED.
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Dated: July 1, 2011
MAXINE M. CHESNEY
United States District Judge

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