Securities & Exchange Commission v. BIH Corporation et al

Filing 145

OPINION AND ORDER granting in part and denying in part 100 Plaintiff's Motion to Strike Defendant Burmaster's Amended Answer and Affirmative Defenses to Complaint and Crossclaim Against BIH Corporation; granting in part and denying in part 102 Plaintiff's Motion to Strike Defendant Hayter's Amended Answer and Affirmative Defenses to Complaint. See Opinion and Order for details. Signed by Judge John E. Steele on 3/25/2013. (AAA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
vs.

Case No.

2:10-cv-577-FtM-29DNF

BIH CORPORATION, WAYNE A. BURMASTER,
EDWARD A. HAYTER, NORTH BAY SOUTH
CORPORATION,
BIMINI
REEF
REAL
ESTATE, INC., RIVERVIEW CAPITAL
INC., CHRISTOPHER L. ASTROM, DAMIAN
B. GUTHRIE, BARON INTERNATIONAL
INC., THE CADDO CORPORATION, BEAVER
CREEK FINANCIAL CORPORATION,
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Plaintiff Securities and
Exchange Commission’s Motion to Strike Defendant Wayne A. Burmaster
Jr.’s Amended Answer and Affirmative Defenses to Complaint and
Crossclaim Against BIH Corporation (Doc. #100) filed on May 29,
2012 and Plaintiff Securities and Exchange Commission’s Motion to
Strike Defendant Edward W. Hayter’s Amended Answer and Affirmative
Defenses
Defendants

to

Complaint
Burmaster

(Doc.
and

#102)

Hayter

filed

filed

a

on

May

joint

30,

2012.

Response

in

Opposition (Doc. #108) on August 8, 2012.
Plaintiff filed a Complaint (Doc. #1) alleging violations of
the Securities Act and the Exchange Act.

In response, defendants

Burmaster and Hayter joined by other defendants filed a Motion to
Transfer or Dismiss (Docs. ##28, 29), which was denied (Doc. #45).

Burmaster and Hayter then joined the other defendants in filing an
Answer

and

Affirmative

Defenses

(Doc.

#61).

Subsequently,

Burmaster filed an Amended Answer and Affirmative Defenses to
Complaint and Crossclaim Against BIH Corporation (Doc. #93) and
Hayter filed an Amended Answer and Affirmative Defenses (Doc. #95).
Now, plaintiff seeks to strike Burmaster’s counter claims and third
party

complaints

as

well

as

most

of

Hayter

and

Burmaster’s

affirmative defenses.
I.
Under Fed. R. Civ. P. 12(f), “the Court may order stricken
from any pleading any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”

Motions to strike

are disfavored, and will be denied unless the allegations have no
possible relation to the controversy, may confuse the issues, or
may cause prejudice to one of the parties.

Reyher v. Trans World

Airlines, Inc., 881 F. Supp. 574, 576 (M.D. Fla. 1995).
“An affirmative defense is generally a defense that, if
established, requires judgment for the defendant even if the
plaintiff can prove his case by a preponderance of the evidence.”
Wright v. Southland Corp., 187 F.3d 1287, 1302 (11th Cir. 1999).
Affirmative

defenses

are

subject

to

the

general

pleading

requirements of Rule 8 of the Federal Rules of Civil Procedure.
Rule 8(b)(1)(A) requires that a party “state in short and plain
terms its defenses to each claim asserted against it.”

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Fed. R.

Civ. P. 8(b)(1)(A).

As with any pleading, an affirmative defense

must give the plaintiff “fair notice” of the nature of the defense
and the grounds upon which it rests, Bell Atl. Corp. v. Twombly,
550 U.S. 544, 553 (2007), and state a plausible defense, Ashcroft
v. Iqbal, 556 U.S. 662, 680 (2009).
II.
Burmaster has responded to the Complaint (Doc. #1) with
thirty-eight affirmative defenses, labeled ¶¶ 52-89.

(Doc. #93.)

Hayter has similarly responded to the Complaint with forty-three
affirmative defenses, labeled ¶¶ 52-94.

(Doc. #95.)

Many of the

affirmative defenses in Burmaster’s Amended Answer and Affirmative
Defenses are identical to Hayter’s.

Plaintiff seeks to strike all

but one affirmative defense in each of defendants’ responses.

The

Court will address these affirmative defenses below, grouping
together certain defenses when appropriate.
A.

Affirmative Defenses that are not Actual Defenses

The following affirmative defenses in Burmaster’s Amended
Answer and Affirmative Defenses are denials rather than affirmative
defenses:
56.

The SEC’s demand for disgorgement against Burmaster
appears improper since there is no allegation that he
earned any money from the sale of securities.

57.

The SEC’s request for a permanent injunction appears
improper since there is no likelihood that Burmaster will
engage in any further unintentional violations of the
law.
-3-

58.

The SEC’s request for a penny stock bar appears improper
since there exists no allegation that Burmaster
previously engaged in any improper activities relating to
a stock.

62.

Burmaster did not personally engage in any securities
fraud violations and, since any activities were not
intentional, if a violation occurred Burmaster is not a
proper party.

63.

The SEC has not alleged sufficient allegations to pierce
the corporate veil of any entity Burmaster may be
affiliated with.

65.

Burmaster acted in good faith as to any activity he
engaged in.

67.

No allegations made
misrepresentations.

70.

The alleged statements made in press releases or via
dissemination on websites were true at the time that they
were made and there was no obligation to update forward
looking statements.

71.

The SEC paraphrasing of press releases changed their
meaning and exaggerated their meaning for the purpose of
enhancing the allegations in the Complaint. The press
releases, when read in their totality, indicate accurate
events with only non-material mistakes therein.

75.

All of Burmaster’s activities were done in a corporate
capacity rather than in an individual capacity.

77.

Any monies recurred by Burmaster was in the form of
recompense rather than stock sales and therefore not
subject to fine or penalty.

78.

Burmaster did not sell any stock in his personal capacity
and, therefore, is not subject to fine or penalty.

86.

The SEC improperly lumped together the alleged actions of
each of the defendants and attributed them to all
defendants.

87.

The SEC’s request for injunctive relief should be
dismissed because they have an adequate remedy at law and
there is no likelihood that Burmaster will commit any
further violations if he did commit a violation.

by

-4-

the

SEC

constitute

material

88.

The Commission may not use disgorgement punitively. The
Commission has not alleged any connection between the
alleged fraudulent acts and any money paid to Burmaster.
Indeed, it has not alleged Burmaster personally received
anything.

The following affirmative defenses in Hayter’s Amended Answer
and

Affirmative

Defenses

are

denials

rather

than

affirmative

defenses:
57.

The SEC’s demand for disgorgement against Hayter appears
improper since there is no allegation that he earned any
money from the sale of securities.

58.

The SEC’s request for a permanent injunction appears
improper since there is no likelihood that Hayter will
engage in any further unintentional violations of the
law.

59.

The SEC’s request for a penny stock bar appears improper
since there exists no allegation that Hayter previously
engaged in any improper activities relating to a stock.

63.

Hayter did not personally engage in any securities fraud
violations
and,
since
any
activities
were
not
intentional, if a violation occurred Hayter is not a
proper party.

64.

The SEC has not alleged sufficient allegations to pierce
the corporate veil of any entity Hayter may be affiliated
with.

66.

Hayter acted in good faith as to any activity he engaged
in.

68.

No allegations made
misrepresentations.

71.

The alleged statements made in press releases or via
dissemination on websites were true at the time that they
were made and there was no obligation to update forward
looking statements.

72.

The SEC paraphrasing of press releases changed their
meaning and exaggerated their meaning for the purpose of
enhancing the allegations in the Complaint. The press

by

-5-

the

SEC

constitute

material

releases, when read in their totality, indicate accurate
events with only non-material mistakes therein.
77.

Any monies recurred by Hayter was in the form of
recompense rather than stock sales and therefore not
subject to fine or penalty.

78.

Hayter did not sell any stock in his personal capacity
and, therefore, is not subject to fine or penalty.

86.

The SEC improperly lumped together the alleged actions of
each of the defendants and attributed them to all
defendants.

87.

The SEC’s request for injunctive relief should be
dismissed because they have an adequate remedy at law and
there is no likelihood that Hayter will commit any
further violations if he did commit a violation.

88.

The Commission may not use disgorgement punitively. The
Commission has not alleged any connection between the
alleged fraudulent acts and any money paid to Hayter.
Indeed, it has not alleged Hayter personally received
anything.

89.

The SEC is not entitled to a penny stock bar.

90.

The SEC is not entitled to penalties.

91.

There is no case in controversy warranting declaratory
relief.

94.

Any violation of the statutes was solely technical and
was harmless and immaterial.

These defenses are, in effect, denials because they allege
defects in plaintiff’s prima facie case.

See In re Rawson Food

Serv., Inc., 846 F.2d 1343, 1349 (11th Cir. 1988) (“A defense which
points out a defect in the plaintiff's prima facie case is not an
affirmative defense.”).

However, when a party incorrectly labels

a “negative averment as an affirmative defense rather than as a
specific denial[,] . . . the proper remedy is not [to] strike the

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claim, but rather to treat [it] as a specific denial .”

Gonzalez

v. Spears Holdings, Inc., No. 09-60501-CIV, 2009 WL 2391233 (S.D.
Fla. July 31, 2009)(citation omitted); Pujals ex rel. El Rey De Los
Habanos, Inc. v. Garcia, 777 F. Supp. 2d 1322, 1328 (S.D. Fla.
2011).

Therefore, the Court will treat Burmaster’s Affirmative

Defenses ¶¶ 56, 57, 58, 62, 63, 65, 67, 70, 71, 75, 77, 78, 86, 87,
88 and Hayter’s Affirmative Defenses ¶¶ 57, 58, 59, 63, 64, 66, 68,
71, 72, 77, 78, 86, 87, 88, 89, 90, 91, 94 as denials and will not
strike them.
B.

Affirmative Defenses Previously Decided by the Court or
Waived

The following affirmative defenses in Burmaster’s Amended
Answer and Affirmative Defenses are defenses that have been waived
or previously denied by the Court:
52.

The Complaint fails to state a claim upon which relief
may be granted.

59.

This Court lacks personal jurisdiction over Burmaster.

61.

Venue is improper in Florida when, during the material
times of the allegations herein, no conduct occurred in
Florida.

81.

The SEC did not allege sufficient facts to show scienter.

82.

The SEC did not allege sufficient facts to show damage.

85.

Pursuant to the Federal Rules of Civil Procedure
12(b)(6), 9(b), and 10, the Complaint fails to state a
claim upon which relief could be granted and fails to
plead fraud with the requisite degree of particularity
for alleged violations of the Securities Act and the
Exchange Act.
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The following affirmative defenses in Hayter’s Amended Answer
and Affirmative Defenses are defenses that have been waived or
previously denied by the Court:
53.

The Complaint fails to state a claim upon which relief
may be granted.

60.

This Court lacks personal jurisdiction over Hayter.

62.

Venue is improper in Florida when, during the material
times of the allegations herein, no conduct occurred in
Florida.

81.

The SEC did not allege sufficient facts to show scienter.

82.

The SEC did not allege sufficient facts to show damage.

85.

Pursuant to the Federal Rules of Civil Procedure
12(b)(6), 9(b), and 10, the Complaint fails to state a
claim upon which relief could be granted and fails to
plead fraud with the requisite degree of particularity
for alleged violations of the Securities Act and the
Exchange Act.

These defenses are issues already raised, argued, and decided
by this Court in its prior Opinion and Order (Doc. #45), or have
been waived because they were not raised in defendants’ motion to
dismiss (Docs. ##28, 29), Fed. R. Civ. P. 12(h)(1).
strike is appropriate here.

A motion to

See, e.g., Heller Fin., Inc. v.

Midwhey Powder Co., Inc., 883 F.2d 1286, 1294-95 (7th Cir. 1989).
Therefore, the Court will strike Burmaster’s Affirmative Defenses
¶¶ 59, 61, 81, 82, 85 and Hayter’s Affirmative Defenses ¶¶ 60, 62,
81, 82, 85.
C.

Legally Insufficient or Irrelevant Defenses

Plaintiff seeks to strike the following affirmative defenses

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in Burmaster’s Amended Answer and Affirmative Defenses as legally
insufficient or irrelevant:
68.

No investor relied on the allegations made by the SEC
when deciding whether to make an investment and,
[therefore], any erroneous information was not material.

69.

Investors who invest in securities that are traded over
the counter are sophisticated investors who would not
plausibly
have relied
on
the
alleged
incorrect
information cited by the SEC.

73.

Any damage to investors was caused by the SEC, not by
Burmaster, in that the SEC knowingly suspended trading of
the stock leaving shareholders without an ability to sell
their stock.

79.

Any and all damages were caused by third parties over
which Burmaster has no control.

83.

No harm to the investors resulted from any acts or
omission of Burmaster.

84.

This enforcement action and the relief sought by the
Plaintiff has hurt the shareholders of BIH and will
continue to harm them. The action is not in the best
interests of investors generally or the BIH shareholders
specifically and therefore is contrary to public policy.

Plaintiff seeks to strike the following affirmative defenses
in Hayter’s Amended Answer and Affirmative Defenses as legally
insufficient or irrelevant:
69.

No investor relied on the allegations made by the SEC
when deciding whether to make an investment and,
[therefore], any erroneous information was not material.

70.

Investors who invest in securities that are traded over
the counter are sophisticated investors who would not
plausibly
have relied
on
the
alleged
incorrect
information cited by the SEC.

74.

Any damage to investors was caused by the SEC, not by
Hayter, in that the SEC knowingly suspended trading of
the stock leaving shareholders without an ability to sell
their stock.
-9-

79.

Any and all damages were caused by third parties over
which Burmaster has no control.

83.

No harm to the investors resulted from any acts or
omission of Hayter.

84.

This enforcement action and the relief sought by the
Plaintiff has hurt the shareholders of BIH and will
continue to harm them. The action is not in the best
interests of investors generally or the BIH shareholders
specifically and therefore is contrary to public policy.

In support, plaintiff asserts that it is not seeking damages
and “‘does not need to prove investor reliance, loss causation, or
damages’ in actions under Sections 10(b) and 17(a).”
p. 8 n. 4.)

The Court agrees.

(Doc. #100,

See SEC v. Goble, 682 F.3d 934, 943

(11th Cir. 2012)(“Because this is a civil enforcement action
brought by the SEC, reliance, damages, and loss causation are not
required

elements.”)(citations

omitted).

Additionally,

these

defenses are irrelevant as to Count I because Section 5 imposes
strict liability.

See SEC v. Simmons, No. 8:04-CV-2477-T-17MAP,

2008 WL 7935266, at *14 (M.D. Fla. Apr. 25, 2008)(citing Swenson v.
Engelstad, 626 F.2d 421, 424 (5th Cir. 1980)).

Therefore, the

Court will strike Burmaster’s Affirmative Defenses ¶¶ 68, 69, 73,
79, 83, 84 and Hayter’s Affirmative Defenses ¶¶ 69, 70, 74, 79, 83,
84.
D.

Laches

Burmaster’s Affirmative Defense ¶ 74 and Hayter’s Affirmative
Defense ¶ 75 state that:
74.

The action is barred by the doctrine of laches.

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75.

The action is barred by the doctrine of laches.

Plaintiff asserts that the laches defense does not apply to
the government, (Doc. #100, p. 9; Doc. #102, p. 7), and defendants
respond that there are exceptions to that general rule, (Doc. #108,
p. 5).

Because there are exceptions to the general rule, United

States v. Delgado, 321 F.3d 1338, 1349 (11th Cir. 2003), the Court
can not strike on the basis that this issue is insufficient as a
matter of law.
the

theory

However, defendants do not allege any facts as to

and

applicable

exception

which

would

establish

a

plausible defense. The motion will be granted without prejudice to
filing an amended affirmative defense.
E.

Remainder of the Affirmative Defenses
(1)

Plaintiff

Burmaster Affirmative Defense
Affirmative Defense ¶ 54
argues that

the

following

¶

53

and

affirmative

Hayter

defenses

should be stricken because the defense is irrelevant to defendants
Burmaster and Hayter:
53.

There is no such thing as a relief defendant where the
SEC did not include any allegations against said
defendants under any Count in the Complaint.

54.

There is no such thing as a relief defendant where the
SEC did not include any allegations against said
defendants under any Count in the Complaint.

Defendants Burmaster and Hayter are not relief defendants and
have no standing to raise this defense on behalf of the relief
defendants. Therefore, the motion to strike is granted as to these
affirmative defenses.
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(2)

Burmaster Affirmative Defense
Affirmative Defense ¶ 55

¶

54

and

Hayter

Plaintiff seeks to strike the following affirmative defenses:
54.

The Complaint is barred by the Plaintiff’s failure to
join indispensable parties such as Cris Galo (Christian
Gallo).

55.

The Complaint is barred by the Plaintiff’s failure to
join indispensable parties such as Cris Galo (Christian
Gallo).

In support, plaintiff argues that because defendants failed to
raise this defense in their motion to dismiss (Docs. ##28, 29), it
has been waived.

The Court disagrees.

The defense of failure to

join a party under Fed. R. Civ. P. 19 may be raised, “in any
pleading allowed or ordered under Rule 7(a),” “by a motion under
Rule 12(c),” or “at trial,” Fed. R. Civ. P. 12(h)(2), and is not
among the defenses waived by Fed. R. Civ. P. 12(h)(1).

Therefore,

the motion to strike is denied.
(3)

Burmaster Affirmative Defense ¶¶ 55, 80 and Hayter
Affirmative Defense ¶¶ 56, 80

Plaintiff seeks to strike the following affirmative defenses:
55.

The SEC’s demand for disgorgement is unconstitutional as,
if a violation of the Securities Act did occur, any socalled disgorgement should be awarded to and distributed
to the shareholders that purchased the stock.

80.

The Securities Act and the Exchange Act, as applied to
Burmaster, are unconstitutional.

56.

The SEC’s demand for disgorgement is unconstitutional as,
if a violation of the Securities Act did occur, any socalled disgorgement should be awarded to and distributed
to the shareholders that purchased the stock.

80.

The Securities Act and the Exchange Act, as applied to
Hayter are unconstitutional.
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The Court finds these affirmative defenses contain no factual
allegations which would establish a plausible defense and are
insufficiently pled for purposes of Fed. R. Civ. P. 8.

The motion

to strike will be granted without prejudice to filing amended
affirmative defenses.
(4)

Burmaster Affirmative Defense
Affirmative Defense ¶ 61

¶

60

and

Hayter

Plaintiff seeks to strike the following affirmative defenses:
60.

This Court lacks subject matter jurisdiction over this
action.

61.

This Court lacks subject matter jurisdiction over this
action.

Subject matter jurisdiction is not an affirmative defense, and
must be raised by a motion to dismiss.

The motion to strike will

be granted.
(5)

Burmaster Affirmative Defense
Affirmative Defense ¶¶ 65, 93

¶

64

and

Hayter

Plaintiff seeks to strike the following affirmative defenses:
64.

Burmaster properly relied on opinions of licensed legal
counsel in taking the actions he did and, therefore, did
not knowingly engage in any unlawful or improper conduct.

65.

Hayter properly relied on opinions of licensed legal
counsel in taking the actions he did and, therefore, did
not knowingly engage in any unlawful or improper conduct.

93.

Any action taken related to the stock was done on good
faith reliance on the advice of legal counsel.

The Court finds these affirmative defenses contain sufficient
factual allegations to establish a plausible defense and are
sufficiently pled for purposes of Fed. R. Civ. P. 8.
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The motion to

strike will be denied as to these affirmative defenses.
(6)

Burmaster Affirmative Defense
Affirmative Defense ¶ 73

¶

72

and

Hayter

Plaintiff seeks to strike the following affirmative defenses
as legally insufficient:
72.

The Complaint is barred by the safe harbor provisions of
the Private Securities Litigation Reform Act of 1995.

73.

The Complaint is barred by the safe harbor provisions of
the Private Securities Litigation Reform Act of 1995.

“The [Private Securities Litigation Reform Act] applies only
to private actions, not to actions filed by the SEC.”

SEC v.

Betta, No. 09-80803-Civ, 2010 WL 963212, at *5 (S.D. Fla. March 15,
2010)(citations omitted).

Therefore, the motion to strike is

granted as to these defenses, which are stricken with prejudice.
(7)

Burmaster Affirmative Defense
Affirmative Defense ¶ 76

¶

76

and

Hayter

Plaintiff seeks to strike the following affirmative defenses:
76.

All allegations that parties or non parties raised rights
under
the
Fifth
Amendment
during
administrative
proceedings constitute immaterial, irrelevant, and
prejudicial material that is inappropriately contained in
the Complaint.

76.

All allegations that parties or non parties raised rights
under
the
Fifth
Amendment
during
administrative
proceedings constitute immaterial, irrelevant, and
prejudicial material that is inappropriately contained in
the Complaint.

Since this is not an affirmative defense and would be more
appropriately addressed in a motion to strike, as Hayter has filed
(Doc. #94), the motion to strike will be granted.

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(8)

Burmaster Affirmative Defense
Affirmative Defense ¶ 92

¶

89

and

Hayter

Plaintiff seeks to strike the following affirmative defenses:
89.

Burmaster reserves the right to raise additional defenses
that are not presently known to him as a result of the
lack of discovery materials provided to him.

92.

Hayter reserves the right to raise additional defenses
that are not presently known to him as a result of the
lack of discovery materials provided to him.

Since this is not an affirmative defense, and defendants have
not cited to any federal rule which allows a “placeholder,” the
motion to strike the affirmative defenses will be granted.
III.
Burmaster, in his Amended Answer and Affirmative Defenses to
Complaint and Crossclaim Against BIH Corporation (Doc. #93), brings
three counter claims against plaintiff under the Right to Financial
Privacy Act and the Privacy Act of 1974 as well as three third
party complaints for indemnification and contribution against the
United States of America, Trust Services, S.A., and Cassandra
Armento.1

Plaintiff moves to strike and in support argues that:

(1) pursuant to Section 21(g) of the Securities Exchange Act of
1934, Burmaster is not allowed to bring counter claims and third
party claims without plaintiff’s consent, which has not been given;
and (2) the deadline to add parties expired more than a year before
the counter claims and third party claims were filed. (Doc. #100.)

1

No proof of service has been filed as to the third party
complaints.
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Burmaster makes the following arguments in response: (1) Section
21(g) only applies to equitable actions and, here, the SEC is also
seeking legal remedies; (2) Section 21(g) only applies to actions
filed under the Exchange Act; (3) the Right to Financial Privacy
claims are authorized by statute; and (4) plaintiff’s counsel
cannot deny the request to pursue the claims.

(Doc. #108.)

Section 21(g) of the Exchange Act provides:
Notwithstanding the provisions of section
1407(a) of Title 28, or any other provision of
law, no action for equitable relief instituted
by the Commission pursuant to the securities
laws shall be consolidated or coordinated with
other actions not brought by the Commission,
even though such other actions may involve
common
questions
of
fact,
unless
such
consolidation
is
consented
to
by
the
Commission.
15 U.S.C. § 78u(g).

While no federal circuit court of appeals has

considered whether Section 21(g) applies when the SEC seeks both
legal and equitable relief, many district courts have considered
the issue and have held that Section 21(g) does apply.

See, e.g.,

SEC v. Wealth Mgmt. LLC, No. 09-C-506, 2009 WL 3765395 (E.D. Wis.
Nov. 9, 2009)(collecting cases); SEC v. Bradt, 93-8521-CIVGONZALEZ,
1995 WL 215220 (S.D. Fla. March 7, 1995)); see also SEC v.
Weintraub, No. 11-21549-CIV, 2011 WL 4346580 (S.D. Fla. Sept. 16,
2011). The Court similarly finds that Section 21(g) is not limited
to actions where the SEC only seeks equitable relief.
Burmaster’s remaining arguments are unavailing.

First, the

application of Section 21(g) does not seem limited to Exchange Act
-16-

claims as it applies more generally to actions “instituted by the
Commission pursuant to the securities laws.”

15 U.S.C. § 78u(g).

Second, Section 21(h)’s application of the Right to Financial
Privacy Act of 1978, 12 U.S.C. § 3401 et seq., to the SEC does not
effect the application of Section 21(g).

Third, Burmaster’s

assertion that “[c]ounsel for the SEC does not maintain authority
to deny the request himself,” (Doc. #108, p. 2), fails to show that
consent has been given.

Therefore, because Section 21(g) prevents

Burmaster from bringing his counter claims and third party claims
without the consent of plaintiff and no such consent has been
given, the Court will strike Burmaster’s counter claims and third
party complaints.
Accordingly, it is now
ORDERED:
1.

Plaintiff Securities and Exchange Commission’s Motion to

Strike Defendant Wayne A. Burmaster Jr.’s Amended Answer and
Affirmative

Defenses

to

Complaint

and

Crossclaim

Against

BIH

Corporation (Doc. #100) and Plaintiff Securities and Exchange
Commission’s Motion to Strike Defendant Edward W. Hayter’s Amended
Answer and Affirmative Defenses to Complaint (Doc. #102) are
GRANTED in part and DENIED in part.
2.

Burmaster’s Affirmative Defenses ¶¶ 56, 57, 58, 62, 63,

65, 67, 70, 71, 75, 77, 78, 86, 87, 88 and Hayter’s Affirmative
Defenses ¶¶ 57, 58, 59, 63, 64, 66, 68, 71, 72, 77, 78, 86, 87, 88,

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89, 90, 91, 94 will be treated as denials and as such will not be
stricken.
3.

Burmaster’s Affirmative Defenses ¶¶ 53, 59, 60, 61, 68,

69, 72, 73, 76, 79, 81, 82, 83, 84, 85, 89 and Hayter’s Affirmative
Defenses ¶¶ 54, 60, 61, 62, 69, 70, 73, 74, 76, 79, 81, 82, 83, 84,
85, 92 will be stricken with prejudice.
4.

Burmaster’s

Affirmative

Defenses

¶¶

55,

74,

80

and

Hayter’s Affirmative Defenses ¶¶ 56, 75, 80 will be stricken
without prejudice to filing amended affirmative defenses as to
these defenses within FOURTEEN (14) DAYS of this Opinion and Order.
5.

Burmaster’s counter claims and third party complaints are

stricken.
DONE AND ORDERED at Fort Myers, Florida, this 25th day of
March, 2013.

Copies:
Counsel of record
Pro se parties

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