You're viewing Docket Item 69 from the case Securities and Exchange Commission v. Jenkins. View the full docket and case details.

Download this document:




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Case 2:09-cv-01510-GMS Document 69 Filed 10/29/10 Page 1 of 3





JOHN W. SPIEGEL (Pro Hac Vice)
[email protected]
GREGORY J. WEINGART (Pro Hac Vice)
[email protected]
MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue
Thirty-Fifth Floor
Los Angeles, CA 90071-1560
Telephone:
(213) 683-9100
Facsimile:
(213) 687-3702
Attorneys for Defendant
MAYNARD L. JENKINS

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

SECURITIES AND EXCHANGE
COMMISSION,

Plaintiff,

v.

MAYNARD L. JENKINS,
Defendant.



CASE NO. CV-09-01510-PHX-GMS
NOTICE OF MOTION AND MOTION BY
DEFENDANT MAYNARD L. JENKINS
FOR A CONTINUANCE PURSUANT TO
RULE 56(F) OF THE FEDERAL RULES
OF CIVIL PROCEDURE


12089000.1





DEFENDANT’S NOTICE OF MOTION & MOTION
FOR CONTINUANCE PURSUANT TO FRCP 56(F)

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Case 2:09-cv-01510-GMS Document 69 Filed 10/29/10 Page 2 of 3



PLEASE TAKE NOTICE that on December 10, 2010 at 9:00 a.m. in Courtroom

602 of the United States District Court for the District of Arizona, located at 401 W.
Washington Street, Phoenix, Arizona, or as soon thereafter as counsel may be heard,
Defendant Maynard L. Jenkins will, and hereby does, move, pursuant to Rule 56(f) of the
Federal Rules of Civil Procedure, for a continuance of the hearing on and this Court’s
consideration of Plaintiff Securities and Exchange Commission’s Motion for Partial
Summary Judgment (the “SEC’s Motion”), in order to “enable affidavits to be obtained,
depositions to be taken, or other discovery to be undertaken.” Fed. R. Civ. P. 56(f)(2).
In his Opposition to the SEC’s Motion, Mr. Jenkins requests that the Motion be

denied on the ground that Plaintiff has failed to establish that the undisputed facts support
grant of the Motion and also requests that the Court deny the Motion under Rule 56(f).
This Motion is made as an alternative to the Court’s denial of the SEC’s Motion and in the
event that the Court believes that a formal Motion is required to obtain a continuance
under Rule 56(f).

This Motion for Continuance is based upon this Notice of Motion and Motion, the

attached Memorandum of Points and Authorities, and the Memorandum of Points and
Authorities and Declaration of Gregory J. Weingart filed by Mr. Jenkins in opposition to
the SEC’s Motion, the pleadings and records on file in this action, and such further
argument as may be offered in any Reply or at the time of the hearing on this Motion.



DATED: October 29, 2010





12089000.1



Munger, Tolles & Olson LLP

By: /s/ Gregory J. Weingart
Gregory J. Weingart

Attorneys for Defendant
Maynard L. Jenkins

2

DEFENDANT’S NOTICE OF MOTION & MOTION
FOR CONTINUANCE PURSUANT TO FRCP 56(F)

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Case 2:09-cv-01510-GMS Document 69 Filed 10/29/10 Page 3 of 3



MEMORANDUM OF POINTS AND AUTHORITIES

Rule 56(f) of the Federal Rules of Civil Procedure states that if a party opposing a
summary judgment motion “shows by affidavit that, for specific reasons, it cannot present
facts essential to justify its opposition,” the Court may: “(1) deny the motion; (2) order a
continuance to enable affidavits to be obtained, depositions to be taken, or other discovery
to be undertaken; or (3) issue any other just order.” Fed. R. Civ. P. 56(f). Because the
purpose of Rule 56(f) is “to provide an additional safeguard against an improvident or
premature grant of summary judgment,” courts have generally applied the rule “with a
spirit of liberality.” See C. Wright, A. Miller & M. Kane, Federal Practice and
Procedure § 2740, at 402 (3d ed. 1998).

Mr. Jenkins’ memorandum filed concurrently in opposition to the SEC’s Motion

for Partial Summary Judgment and the supporting Weingart Declaration set forth in detail:
(1) the specific information that Mr. Jenkins expects to obtain that would potentially raise
genuine issues of material facts sufficient to defeat the SEC’s Motion; (2) the specific
individuals from whom Mr. Jenkins expects to obtain that information; and (3) the reasons
why additional time is necessary to obtain such information under present circumstances.

For these reasons, in the event that the Court does not deny the SEC’s Motion for
the reasons set forth in Mr. Jenkins’ Opposition, by this Motion Mr. Jenkins requests that
the Court continue the hearing on and its consideration of the Motion for the reasons
stated.

DATED: October 29, 2010


Munger, Tolles & Olson LLP

By: /s/ Gregory J. Weingart
Gregory J. Weingart

Attorneys for Defendant
Maynard L. Jenkins

3

DEFENDANT’S NOTICE OF MOTION & MOTION
FOR CONTINUANCE PURSUANT TO FRCP 56(F)




12089000.1