COR Clearing, LLC v. Calissio Resources Group, Inc. et al

Filing 39

ORDER that Benjamin Riley's expedited motion fore leave to file amicus brief is denied. Riley's motion and brief will be construed as an objection to plaintiff's motion and considered by the Court in its ruling on plaintiff's motion to appoint a limited receiver. Ordered by Senior Judge Lyle E. Strom. (LAC)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
COR CLEARING, LLC, a Delaware )
limited liability company,
)
)
Plaintiff,
)
)
v.
)
)
CALISSIO RESOURCES GROUP,
)
INC., a Nevada corporation,
)
ADAM CARTER, an individual,
)
SIGNATURE STOCK TRANSFER,
)
INC, A Texas corporation; and )
DOES 1-50,
)
)
Defendants.
)
______________________________)

8:15CV317

ORDER

This matter is before the Court on Benjamin Riley’s
expedited motion for leave to file amicus brief (Filing No. 25).
As of the date of this order, plaintiff COR Clearing, LLC has
failed to timely file a response.1

After review of the motion,

the supporting brief, and applicable law, the Court finds as
follows.
BACKGROUND
On August 26, 2015, plaintiff COR Clearing, LLC
(“plaintiff” or “COR Clearing”) filed a suit against Calissio
Resources Group, Inc. (“Calissio”), Adam Carter (“Carter”),
Signature Stock Transfer, Inc. (“Signature Stock”), and Does 1-50
1

The local rules provide: “A brief opposing any other motion must be
filed and served within 14 days after the motion and supporting brief are
filed and served.” NECivR 7.1(b)(1)(B).

(collectively “defendants”) (Filing No. 1).

Plaintiff’s

complaint alleges three causes of action against defendants
including:

(1) a request for declaratory judgment; (2) unjust

enrichment; and (3) fraud.

See id. at 9-13.

Plaintiff alleges

“[d]efendants’ calculated scheme to defraud the marketplace and
the clearing system in order to obtain millions of dollars from
unsuspecting market participants by exploiting a weakness in the
dividend payment system of the third-party Depositary Trust
Clearing Corporation (“DTCC”).”

(Id. at 1).

On September 24, 2015, “[p]ursuant to Nebraska Civil
Rule 55.1 and Federal Rule of Civil Procedure 55(a) . . .
[p]lantiff move[d] . . . the clerk of the Court [to] enter the
default of [d]efendant Calissio . . . on the grounds and for the
reasons that . . . [d]efendant . . . ha[d] failed to plead or
otherwise defend against [p]laintiff’s [c]omplaint.”
17 at 1).

(Filing No.

On September 25, 2015, the clerk of the court entered

default against Calissio (Filing No. 19).

The plaintiff then

moved the Court for an expedited motion for an order appointing a
limited purpose receiver (Filing No. 20).

Plaintiff’s motion

requested that
[i]n the
and fair
be heard
Calissio
affected

interest of providing full
notice and opportunity to
to all parties, namely
shareholders, that may be
by the appointment of the
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Receiver and the subsequent postpayable adjustments by DTTC,
[plaintiff would provide] notice of
the appointment of the Receiver and
[any such party objecting to the
motion would be] given a chance to
be heard before th[e] Court [rules
on the motion].
(Filing No. 21 at 12).
The Court issued an order on October 20, 2015,
granting plaintiff’s request to notify any parties potentially
affected by the appointment of a receiver (Filing No. 28).

The

Court outlined the date for plaintiff to provide the notice, the
requirements of the notice, and dates in which objections and
responses should be filed.

See id.

The Court also noted the

filing of several objections already received, including Benjamin
Riley’s (“Riley”) expedited motion for leave to file amicus brief
(Filing No. 25).

See Filing No. 28 at 2 n.1.

The Court will now

address Riley’s motion in accordance with the Court’s October 20,
2015, order.2
LAW
“The extent, if any, to which an amicus curaie should
be permitted to participate in a pending action is solely within
the broad discretion of the district court.”

2

Waste Mgmt. of Pa.,

The Court’s October 20, 2015, order stated “[t]hese correspondences
and motion . . . will be considered and decided upon before the Court rules on
plaintiff’s motion for order appointing limited purpose receiver.” Id.
(emphasis added).

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Inc. v. City of York, 162 F.R.D. 34, 36 (M.D. Pa. 1995) (internal
citation omitted); see also Untied States ex rel. Gudur v.
Deloitte Consulting L.L.P., Civil Action No. H-00-1169, 2007 WL
836935, at *6 (S.D. Tex. March 15, 2007); Hoptowit v. Ray, 682
F.2d 1237, 1260 (9th Cir. 1982); Concerned Area Residents for the
Env’t v. Southview Farm, 834 F. Supp. 1410, 1413 (W.D.N.Y. 1993);
United States v. Gotti, 755 F. Supp. 1157, 1158 (E.D.N.Y. 1991);
Pa. Envtl. Def. Found. v. Bellefonte Borough, 718 F. Supp. 431,
434 (M.D. Pa. 1989); Leigh v. Engle, 535 F. Supp. 418, 420 (N.D.
Ill. 1982).

“No statute, rule, or controlling case defines a

federal district court’s power to grant or deny leave to file an
amicus brief.”

Gudur, 2007 WL 836935, at *6.

Although district courts often look to Federal Rule of
Appellate Procedure 29 for guidance, a “district court must keep
in mind the differences between the trial and appellate court
forums in determining whether it is appropriate to allow an
amicus curiae to participate.

Chief among those differences is

that a district court resolves fact issues.”

Sierra Club v.

Federal Emergency Management Agency, Civil Action No. H-07-0608,
2007 WL 3472851, at *1 (S.D. Tex. Nov. 14, 2007) (citing Leigh,
535 F. Supp. at 422).
be welcomed.”

“An amicus who argues facts should rarely

Strasser, 432 F.2d at 569.

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Factors district courts consider in admitting or
denying the presence of an amicus curiae include:

(1) “whether

the information offered through the amicus brief is ‘timely and
useful’”; and (2) “whether the [entity] seeking to file the
amicus brief is an advocate for one of the parties.”

See Sierra

Club, 2007 WL 3472851, at *2-*3 (internal citations omitted).
District courts throughout the country are split as to “the
extent to which district courts are wiling to permit the
participation of an amicus who acts primarily as an advocate for
one party.”

See id. (collecting cases and discussing various

courts’ holdings and rationales).
DISCUSSION
Riley’s brief provides four main contentions against
plaintiff’s motion to appoint a receiver.
6-10.

See Filing No. 25 at

Riley argues against the appointment of a receiver

“because there are facts and law not yet provided to this court
which are necessary for the court to take into consideration.”
Id. at 6.

Riley argues about the classification of and

applicable rules and dates governing the dividends and payments
made thereto.

See id.

By so doing Riley argues facts.

Though

the Court recognizes the timeliness and usefulness of the
information contained in Riley’s brief, the Court notes the
advocation against the plaintiff and its motion.
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It seems Riley

seeks to argue facts and to advocate.

The Court finds that such

a role is inappropriate for an amicus curiae at the district
court level.

Therefore, after reviewing the law and carefully

considering each of the factors, the Court will deny Riley’s
motion for leave to file an amicus brief.

However, although

Riley will not be designated as an amicus curiae, the information
and arguments contained within Riley’s motion and brief will be
construed as an objection to plaintiff’s motion and considered in
the Court’s resolution of plaintiff’s motion to appoint a limited
receiver.3

Accordingly,
IT IS ORDERED:
1) Benjamin Riley’s expedited motion fore leave to file

amicus brief is denied.

3

The Court again notes the filings received objecting to plaintiff’s
motion which will be utilized in the Court’s determination of plaintiff’s
motion to appoint a limited receiver. The filings received by the Court as of
the date of this order include those listed in the Court’s October 20, 2015,
order, as well as the filings of John Link (Filing No. 32), Oscar Whitley
(Filing No. 33), Randy Rosbough (Filing No. 34), Peter Suh (Filing No. 35),
and KCG Americas LLC (Filing No. 36).

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2) Riley’s motion and brief will be construed as an
objection to plaintiff’s motion and considered by the Court in
its ruling on plaintiff’s motion to appoint a limited receiver.
DATED this 29th day of October, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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