Securities And Exchange Commission
Filing
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ORDER RE RELIEF FROM FINAL JUDGMENT. Signed by Judge James Donato on 9/1/2021. (jdlc1S, COURT STAFF) (Filed on 9/1/2021)
Case 3:09-cv-02611-VRW Document 21 Filed 09/01/21 Page 1 of 3
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SECURITIES AND EXCHANGE
COMMISSION,
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Plaintiff,
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v.
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ORDER RE RELIEF FROM FINAL
JUDGMENT
ZNEXT MINING CORPORATION, INC.,
et al.,
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United States District Court
Northern District of California
Case No. 09-cv-02611-VRW (JD)
Defendants.
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This case for civil securities fraud closed in 2010 upon entry of a final judgment of
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permanent injunction and other relief by a now-retired district judge. Dkt. Nos. 15, 17.1 Pro se
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defendant Elvira Gamboa, who the SEC identified as defendant ZNext Mining Corporation’s
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founder, and sole shareholder and controller, see Dkt. No. 1 ¶ 11, has filed a motion seeking relief
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from the 2010 judgment. Although Gamboa cited only California state procedural rules, the Court
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construes the motion as a request for relief from judgment under Rule 60 of the Federal Rules of
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Civil Procedure. See Erikson v. Pardus, 551 U.S. 89, 94 (2007). The Court was randomly
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assigned the motion as the District’s General Duty Judge in July 2021. Relief is denied.
Gamboa’s motion, which runs to approximately 65 pages with attachments, is a
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hodgepodge of contentions to the effect that she did not violate the securities laws. Among other
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allegations, Gamboa says that an “imposter” appeared as her at an SEC hearing in Los Angeles
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that preceded the final judgment, and that “stock bashers” in a “broiler room” were working to
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The initial final judgment, Dkt. No. 15, was amended to correct a calculation error of no
materiality here, Dkt. No. 17.
Case 3:09-cv-02611-VRW Document 21 Filed 09/01/21 Page 2 of 3
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destroy her “good name.” Dkt. No. 18 ¶ 7 (ECF p. 7).2 Gamboa also says that she had a “massive
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brain hemorrhage” and “sub-arachnoid aneurism” in 2008, which affected her ability to defend
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against the SEC action. Id. ¶ 6 (ECF p. 8). She is particularly concerned about a reduction in
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Social Security benefits that started in 2010 in connection with “SEC Garnishment.” Id. ¶ 7
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(ECF p. 8).
The SEC responded to the motion with a detailed statement of events relating to the 2010
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final judgment. See Dkt. No. 19. The SEC described Gamboa’s efforts to evade service before
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entry of judgment, and her “campaign to subvert collection” afterwards. Id. at 4. The SEC
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eventually referred the judgment to the Department of Treasury for debt collection, which
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included an offset of Social Security benefits. Id. at 4-5.
Gamboa does not meaningfully dispute the SEC’s statements. Instead, the reply papers
United States District Court
Northern District of California
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focus again on “stock bashers” who are said to have “brazenly loathed” her, and similar
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allegations. Dkt. No. 20 ¶ 2 (ECF p. 7). The reply also claims that she participated in the first
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heart and lung transplant in 1981 at Stanford University Medical School, and in the discovery of
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“HIV Antibodies.” Id. ¶¶ 4-6 (ECF pp. 8-11).
Overall, the motion is an inchoate mass of often unintelligible statements, some of which
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strain credulity. The only allegation that gives potential pause is Gamboa’s claim of a brain
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hemorrhage and aneurism in 2008, but this is less than it appears. Gamboa indicates that she
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recovered from the event by the end of 2009. See Dkt. No. 18 ¶ 6 (ECF pp. 8, 17); Dkt. No. 20 at
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ECF p. 21. In addition, Gamboa gives no good reason for why she waited 11 years before raising
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a health concern as a possible basis of unwinding the final judgment. The record provides no
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evidence that she was medically incapable of seeking relief before filing this motion in July 2021.
Rule 60(b) identifies several grounds that might afford relief from a final judgment: (1)
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mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due
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diligence could not have been discovered before the court's decision; (3) fraud by the adverse party;
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The paragraph numbering is not always consistent in the motion, and so ECF page numbers are
provided for clarity.
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Case 3:09-cv-02611-VRW Document 21 Filed 09/01/21 Page 3 of 3
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(4) the judgment is void; (5) the judgment has been satisfied; (6) any other reason justifying relief.
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Fed. R. Civ. P. 60(b).
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Nothing in the motion presents a good reason for relief under these provisions.
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Subsections (1), (2), and (3) do not apply because they must be raised within one year after the
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entry of judgment. Fed. R. Civ. P. 60(c)(1); In re Gilman, 887 F.3d 956, 964 n.8 (9th Cir. 2018) (the
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one-year rule is a “hard limit”). There is no indication that Gamboa was unaware of the entry of final
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judgment. To the contrary, she acknowledges that she knew in 2010 that her Social Security checks
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were reduced as a result of debt collection on the judgment amount. See, e.g., Dkt. No. 18 ¶ 7
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(ECF p. 8). In addition, the initial final judgment has a proof of service indicating that it was served
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United States District Court
Northern District of California
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on ZNext’s business address. See Dkt. No. 15 at 7-8.
So too for subsection (b)(4). This claim may be raised only within a “reasonable time”
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after judgment, Fed. R. Civ. P. 60(c)(1), which is determined by “the facts of each case, taking into
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consideration the interest in finality, the reason for delay, the practical ability of the litigant to
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learn earlier of the grounds relied upon, and prejudice to the other parties.” Lemoge v. United
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States, 587 F.3d 1188, 1196 (9th Cir. 2009) (citation omitted). Nothing in the record before the
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Court indicates any “extraordinary circumstances” that might excuse Gamboa’s 11-year delay in
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bringing this motion. See United States v. Holtzman, 762 F.2d 720, 725 (9th Cir. 1985). The
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interests of finality, and potential prejudice to the government, further weigh against relief under
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subsection 60(b)(4). The same goes for subsection 60(b)(6) as a potential basis for relief.
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Consequently, Gamboa is not entitled to relief from the judgment under Rule 60. The
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motion is denied. Gamboa is advised that she may not file any further motions in this case without
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the Court’s prior approval. Motions filed in violation of this order will be summarily terminated.
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IT IS SO ORDERED.
Dated: September 1, 2021
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JAMES DONATO
United States District Judge
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