Securities And Exchange Commission v. The Children's Internet, Inc. et al

Filing 336

ORDER re 280 DENYING DEFENDANT POYNER'S THIRD REQUEST TO EXTEND TEMPORARY CONTINUANCE OF HEARING FOR CONTEMPT AND SETTING DATE FOR CONTEMPT HEARING Motion Hearing set for 5/11/2010 09:00 AM.. Signed by Judge Claudia Wilken on March 2, 2010. (cwlc1, COURT STAFF) (Filed on 3/2/2010)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. CORT POYNER, et al., Defendants. / SECURITIES AND EXCHANGE COMMISSION, Plaintiff, No. C 06-06003 CW ORDER DENYING THIRD REQUEST TO EXTEND TEMPORARY CONTINUANCE OF HEARING FOR CONTEMPT AND SETTING DATE FOR CONTEMPT HEARING IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

On June 3, 2009, Plaintiff Securities and Exchange Commission filed a motion for an order of civil contempt against Defendant Cort L. Poyner. An evidentiary hearing on the motion was set for On December 3, 2009 and January 15, 2010, the

December 4, 2009.

Court granted Mr. Poyner's requests to continue the hearing based upon the declarations of Thomas J. LoSavio, his attorney, and Marcie McNeely, who has power of attorney for Mr. Poyner, indicating that he was hospitalized and in critical condition. In

the January 15, 2010 Order, the Court ordered Mr. LoSavio to file a report from Mr. Poyner's treating physician or physicians regarding his medical condition by February 16, 2010. On February 16, 2010, Mr. LoSavio filed a declaration requesting a third continuance. Plaintiff opposes the continuance

and requests that a hearing date be set with deadlines for discovery. For the reasons stated below, the Court denies Mr.

LoSavio's request for a third continuance and sets a new date for the evidentiary hearing.

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Mr. LoSavio failed to follow the Court's order to file reports from Mr. Poyner's physician or physicians. Instead, he submits

another declaration from Ms. McNeely who states that Mr. Poyner was released from the hospital on February 12, 2010, but will require in-home nursing care and monitoring for the next six weeks due to treatment for complications from his transplanted kidney. Ms.

McNeely also declares that Mr. Poyner recently suffered two strokes which rendered him unable to control much of the right side of his body such that he is unable to speak clearly or walk without assistance. She also states that Mr. Poyner was in the hospital

from October 14 to December 14, 2009 for emergency surgery to replace a heart valve and was readmitted on January 5, 2010, for possible pneumonia. Mr. LoSavio also files a letter dated February 11, 2010 from Nancy Johnson, Registered Nurse and Clinical Director of the Kidney and Pancreas Transplant Institute. Ms. Johnson states that Mr.

Poyner had been hospitalized since January 29, 2010 for a severe kidney rejection and has been responding well to the current treatment. Although Ms. Johnson's letter supplies some

corroboration of Ms. McNeely's description of Mr. Poyner's poor health, it fails to corroborate all of the medical problems Ms. McNeely describes. Plaintiff correctly concludes that the evidence submitted indicates that Mr. Poyner is out of the hospital, fails to provide a specific prognosis and does not indicate that he cannot provide deposition testimony if the deposition is taken near his home. Therefore, the Court grants Plaintiff's request to set a new date for an evidentiary hearing. The hearing date is May 11, 2010 2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

at 9 a.m.

Mr. Poyner is ordered to notice and complete, at least

two weeks before the hearing, all depositions that he will use at the evidentiary hearing. Mr. Poyner also is ordered to provide to

Plaintiff, at least two weeks before the date of the hearing, copies of any hearing exhibits, including financial information and explanations for cash transfers that the Court previously ordered. Plaintiff must provide Mr. Poyner with copies of its exhibits, at least two weeks before the date of the hearing.

IT IS SO ORDERED.

Dated: March 2, 2010

CLAUDIA WILKEN United States District Judge

3