Securities and Exchange Commission v. McGinn, Smith & Co, Inc. et al

Filing 806

ORDER - ORDERED that Timothy McGinn and Nancy McGinn either notify the court and opposing counsel of their intention not to respond to the SEC's motion or file their response(s) within FOURTEEN (14) DAYS of this Orders filing date; and it is further ORDERED that if Timothy McGinn and/or Nancy McGinn file(s) a response, the SEC may file a reply within SEVEN (7) DAYS from the filing of the response(s). Signed by Chief Judge Gary L. Sharpe on 12/12/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,

1:10-cv-457
(GLS/CFH)

v.
MCGINN, SMITH & CO., INC,
et al.,
Defendants,
LYNN A. SMITH, and NANCY
MCGINN,
Relief
Defendants,
and
GEOFFREY R. SMITH, Trustee of
the David L. and Lynn A. Smith
Irrevocable Trust U/A 8/04/04,
and U.S. ATTORNEY’S OFFICE
FOR ND/NY,
Intervenors.
________________________________
ORDER
Currently before the court is, among other things, plaintiff Securities
and Exchange Commission’s (SEC) motion for summary judgment made
pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No.

708.) Defendants’ response papers were to be filed on or before August
11, 2014. (Dkt. No. 776.) Despite the passage of the due date,
defendants Timothy M. McGinn and Nancy McGinn have neither filed a
response to the motion, nor notified the court of their intent to forego
opposition to the motion, as is required by this District’s Local Rules. See
N.D.N.Y. L.R. 7.1(b)(3). In an abundance of caution, and particularly in
light of Nancy McGinn’s pro se status, the court will afford Timothy
McGinn and Nancy McGinn a final extension of time either to respond to
the pending motion for summary judgment or notify the court of his or her
intent not to oppose the motion.
The local rules of this district provide that:
[w]here a properly filed motion is unopposed and the
[c]ourt determines that the moving party has met its
burden to demonstrate entitlement to the relief
requested therein, the non-moving party’s failure to
file or serve any papers as this Rule requires shall be
deemed as consent to the granting or denial of the
motion, as the case may be, unless good cause is
shown.
Id. While Timothy McGinn and Nancy McGinn’s failure to properly oppose
the motion does not assure that the motion will be granted, their failure is
not without consequences. By opting not to submit a response, Timothy

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McGinn and Nancy McGinn have left the facts set forth in the SEC’s
statement of material facts unchallenged. Courts in this district have not
hesitated to enforce L.R. 7.1(a)(3) by deeming facts set forth in the moving
party’s statement of material facts as conceded. 1
Therefore, the court will allow Timothy McGinn and Nancy McGinn
FOURTEEN (14) DAYS from the filing of this Order to file a response to
the SEC’s motion or notify the court of his or her intent not to oppose the
motion.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Timothy McGinn and Nancy McGinn either notify the
court and opposing counsel of their intention not to respond to the SEC’s
motion or file their response(s) within FOURTEEN (14) DAYS of this
Order’s filing date; and it is further
ORDERED that if Timothy McGinn and/or Nancy McGinn file(s) a
response, the SEC may file a reply within SEVEN (7) DAYS from the filing
of the response(s); and it is further
ORDERED that the Clerk of the Court provide a copy of this Order to

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“The [c]ourt shall deem admitted any properly supported facts set forth in the Statement of
Material Facts that the opposing party does not specifically controvert.” N.D.N.Y. R. 7.1(a)(3).

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the parties in accordance with the local rules

IT IS SO ORDERED.
December 12, 2014
Albany, New York

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