Securities and Exchange Commission v. Huff et al

Filing 183

ORDER permitting the SEC to file a sur-reply to 182 the Huffs' Reply in Support of 173 the Huffs' Motion for Order Enjoining Investigation and Quashing Administrative Subpoenas. Please see Order for details. Signed by Magistrate Judge Robin S. Rosenbaum on 10/2/2009. (RSR)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-60315-CIV-ROSENBAUM SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. W. ANTHONY HUFF, DANNY L. PIXLER, ANTHONY R. RUSSO, OTHA RAY MCCARTHA, and CHARLES J. SPINELLI, Defendants, SHERI HUFF, ROXANN PIXLER, MIDWEST MERGER MANAGEMENT, LLC, and BRENTWOOD CAPITAL CORPORATION, Relief Defendants. _______________________________________________/ ORDER This matter comes before the Court upon Defendant Anthony Huff's and Relief Defendant Sheri Huff's Motion for Order Enjoining Investigation and Quashing Administrative Subpoenas Issued by Plaintiff and for Other Equitable Relief [D.E. 173] (the "Huffs' Motion"). Upon review of Defendant Anthony Huff's and Relief Defendant Sheri Huff's Reply to Plaintiff's Response to Motion for Order Enjoining Investigation and Quashing Administrative Subpoenas Issued by Plaintiff and for Other Equitable Relief [D.E. 182], the Court notes that in contravention of Local Rule 7.1.C, S.D. Fla., the Huffs have, for the first time, raised new arguments in their Reply brief, which cannot fairly be considered to be "strictly limited to rebuttal of matters raised in [the SEC's

Response to the Huffs' Motion]."1 Id.; see also D.E. 182 at 1-6. For this reason alone, the Court would act well within its discretion to strike the Reply brief sua sponte. Because the new arguments purport to raise constitutional issues, however, the Court will not take this step. Nevertheless, fairness dictates that the SEC should have an opportunity to respond to the arguments raised by the Huffs for the first time in their Reply brief. Consequently, the SEC shall have until 5:00 p.m., Wednesday, October 7, 2009, to file a sur-reply, should it desire to do so. The SEC shall limit its sur-reply to addressing those matters discussed at pages 1 through 6 of the Huffs' Reply. DONE AND ORDERED in Chambers at Fort Lauderdale, Florida this 2nd day of October, 2009. ______________________________ ROBIN S. ROSENBAUM UNITED STATES MAGISTRATE JUDGE cc: All Counsel and Parties of Record

Although the Huffs describe these new arguments as "[i]mplicit in the argument made to the Court on S e p t e m b e r 25, 2009," D.E. 182 at 2, the Court disagrees with that characterization. The Court held the September 2 5 t h telephonic hearing in response to the Huffs' emergency request for a hearing on their pending Motion. Because t h e SEC had not yet had a chance to respond to the Huffs' Motion, the Court essentially limited that hearing to s e ttin g an expedited briefing schedule and maintaining the status quo while the Huffs' Motion was pending. The C o u r t did not entertain argument on the merits of the Huffs' Motion, and the Court recalls the Huffs making no c o n s titu tio n a l arguments during the September 25 t h hearing. Nor does the SEC's response to the Huffs' Motion, file d a week after the September 25 t h hearing, address any constitutional arguments, thereby suggesting that the SEC d i d not understand the Huffs to make the constitutional arguments appearing in the first six pages of their Reply.

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