Securities and Exchange Commission v. McDuff et al
ORDER Accepting 72 Findings and Recommendations. The court denies 61 Motion to Set Aside Judgment. The court prospectively certifies that any appeal of this action would not be taken in goodfaith. (Ordered by Judge Sam A Lindsay on 10/17/2016) (epm)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
SECURITIES AND EXCHANGE
GARY L. MCDUFF, et al.,
Civil Action No. 3:08-CV-526-L
Before the court is Defendant Gary L. McDuff’s (“Defendant”) Motion to Set Aside Void
Judgment for Defective Service of Process Under Rule 60(b)(4) (Doc. 61), filed June 8, 2016. On
September 20, 2016, Magistrate Judge Renée Harris Toliver the entered Findings, Conclusions and
Recommendation of the United States Magistrate Judge (“Report”), recommending that the court
deny the Motion to Set Aside Void Judgment for Defective Service of Process Under Rule 60(b)(4).
As of the date of this order, no objections to the Report were received.
After reviewing the motion, briefs, record in this case, and Report, the court determines that
the findings and conclusions of the magistrate judge are correct, and accepts them as those of the
court. Accordingly, the court denies the Motion to Set Aside Void Judgment for Defective Service
of Process Under Rule 60(b)(4) (Doc. 61).
The court prospectively certifies that any appeal of this action would not be taken in good
faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. 24(a)(3). In support of this certification, the court
accepts and incorporates by reference the Report and the court’s order accepting the Report. See
Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir. 1997). Based on the foregoing orders, the
Order – Page 1
court concludes that any appeal of this action would present no legal point of arguable merit and
would therefore be frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). In the event of
an appeal, Plaintiff may challenge this certification by filing a separate motion to proceed in forma
pauperis on appeal with the clerk of the United States Court of Appeals for the Fifth Circuit. See
Baugh, 117 F.3d at 202; Fed. R. App. 24(a)(5).
It is so ordered this 17th day of October, 2016.
Sam A. Lindsay
United States District Judge
Order – Page 2
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