United States Securities and Exchange Commission v. Icon World Corporation et al
Opinion and ORDER denying 4 Motion for Preliminary Injunction and Granting 58 Motions for Default Judgment. It appearing from the current status of the case that Plaintiff is unable to make the showings necessary for issuance of a preliminary in junction, the Motion for Preliminary Injunction is denied without prejudice. The Motion for Default Judgments is granted and, contemporaneously with this Order, enters judgments by default under Fed. R. Civ. P. 55(b)(2) against Defendants Jeffery Za morsky and Jesse Aguilar. Because judgments will completely resolve the case as it relates to these Defendants, and the Court finds no just reason to delay entry, the judgments shall be certified pursuant to Fed.R.Civ.P. 54(b). Upon the representat ions by the Plaintiff that it does not intend to pursue the claims against Defendants Icon and Sunco, those claims are Dismissed without Prejudice pursuant to Fed. R. Civ. P. 41(a)(2). The caption of this case is amended to remove Defendants Icon and Sunco, by Judge Marcia S. Krieger on 03/31/09.(wjc, )
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Action No. 08-cv-01088-MSK-CBS UNITED STATES SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. ICON WORLD CORPORATION, (dba ICON WORLD RESOURCES and ICON CORPORATION), SUNCO RESOURCES, LLC., JEFFREY M. ZAMORSKY, JESSE ANTHONY "TONY" AGUILAR, and CHRISTINE M. ZAMORSKY (aka CHRISTINE M. AGUILAR), Defendants. ______________________________________________________________________________ OPINION AND ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS FOR DEFAULT JUDGMENT ______________________________________________________________________________ THIS MATTER comes before the Court pursuant to the Plaintiff's Motion for Preliminary Injunction (# 4); and the Plaintiff's Motion for Default Judgments (# 58) against Defendant Jeffery Zamorsky and Defendant Jesse Aguilar.1 The Court understands that the Plaintiff intends to dismiss (# 63) claims against Defendants Icon World Corporation and Sunco Resources, LLC without prejudice, and intends to effect service on Defendant Christine Zamorsky within the time period provided by the Magistrate Judge's March 20, 2009 Minute Order (# 66). It appearing from the current status of the case that the Plaintiff is unable to make the
To the extent the Motion for Default Judgments is referred to the Magistrate Judge, that reference is withdrawn.
showings necessary for issuance of a preliminary injunction,2 the Motion for Preliminary Injunction (# 4) is DENIED without prejudice. As to the Motions for Default Judgment against Defendants Jeffery Zamorsky and Jesse Aguilar, the Court finds that both Defendants were served with process (# 12, 22); that both Defendants have failed to appear or defend in this action; and that the Clerk of the Court has entered the default of both Defendants (# 40, 48). Having considered the factual showings by the Plaintiff as to both liability and damages, and finding those showings to be unrebutted and legally sufficient to entitle the Plaintiff to the most of the items of requested relief,3 the Motion for Default Judgments (# 58) is GRANTED and, contemporaneously with this Order, enters judgment by default under Fed. R. Civ. P. 55(b)(2) against Defendants Jeffery Zamorsky and
Specifically, as to Defendants Icon and Sunco, the Plaintiff's dismissal of the claims against them prevents the Plaintiff from showing a likelihood of success on the merits. As to Defendants Jeffery Zamorsky and Jesse Aguilar, the Court enters final and permanent injunctive relief against them, rending any preliminary injunctive relief moot. As to Defendant Christine Zamorsky, the Plaintiff represents that Ms. Zamorsky is presently incarcerated and thus, is unable to continue to meaningfully engage in the conduct sought to be enjoined. Should the Plaintiff conclude that Ms. Zamorsky has resumed a course of conduct that poses a threat of imminent, irreparable harm, the Plaintiff may renew its request for preliminary injunctive relief. The Court declines to include a civil penalty as a component of the default judgment. The Plaintiff does not specify the amount of the penalty it requests against each Defendant, nor does it expressly address the factors justifying such an amount. The Court is not inclined to assess a penalty in an abstract amount without specific guidance from the parties, particularly where the motion for default judgment fails to give the Defendants adequate notice of the amount of the penalty sought.
Jesse Aguilar. Because these judgments will completely resolve the case as it relates to these Defendants, and the Court finds no just reason to delay entry, the judgments shall be certified pursuant to Fed. R. Civ. P. 54(b). Upon the representation by the Plaintiff that it does not intend to pursue the claims against Defendants Icon and Sunco, those claims are DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 41(a)(2). The caption of this case is AMENDED to remove Defendants Icon and Sunco. Dated this 31st day of March, 2009 BY THE COURT:
Marcia S. Krieger United States District Judge
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