Free Motion to Vacate - District Court of Colorado - Colorado

Case 1:03-cv-01338-REB-MEH

Document 117

Filed 10/18/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.: 03-CV-1338-REB-OES SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. GLEN W. HILKER, and LARRY M. BAKER, Defendants, TRICORD LLC and BROOKSHIRE DEVELOPMENT CO. LLC, Relief Defendants.

AMENDED UNOPPOSED MOTION TO VACATE TRIAL PREPARATION CONFERENCE AND TRIAL DATES

Plaintiff, Securities and Exchange Commission, hereby moves this Honorable Court to vacate the Trial Preparation Conference and Trial dates. Pursuant to D.C. Colo. L. Civ. R. 7.1A, Plaintiff has conferred with John F. Sullivan, Esq., counsel for Defendant Glen W. Hilker and Tricord LLC, and both parties consent and agree with the instant motion. Defendant Larry M. Baker, pro se, consents and agrees with the instant motion. unrepresented by counsel. Brookshire Development Co. LLC is currently

However, Larry M. Baker currently owns and controls

Brookshire and consents and agrees to the instant motion on behalf of Brookshire.1

Corporations generally must appear through a licensed attorney and cannot appear pro se. Eagle Associates v. Bank of Montreal, 926 F.2d 1305, 1308 (2nd Cir. 1991); SEC v. Research Automation Corporation, 521 F.2d 585, 589 (2nd Cir. 1975); Woodford Manufacturing Co. v. A.O.Q., Inc., 772 P.2d 652, 653 (Colo.App. 1988). However,

1

Case 1:03-cv-01338-REB-MEH

Document 117

Filed 10/18/2005

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In its Trial Preparation Conference Order (Docket No. 95), the Court set the Trial Preparation Conference for October 21, 2005 at 10:00 a.m. and reaffirmed the trial date for November 7, 2005 at 9:00 a.m. Due to recent settlements in the case, those two dates should be vacated. On October 13, 2005, the Court entered the Order of Permanent Injunction as to Glen W. Hilker (Docket No. 110) and the Order and Judgment as to Relief Defendant Tricord LLC (Docket No. 109). The only remaining issue relating to Defendant Hilker is the civil penalty amount. Plaintiff will move the Court for a hearing to decide the civil penalty amount in the near future. relating to Tricord LLC. Yesterday, Plaintiff filed its "Unopposed Motion for Entry of Order of Permanent Injunction as to Larry M. Baker" (Docket No. 113). If the Court enters the proposed Order of Permanent Injunction, the only remaining issue relating to Defendant Baker will be the civil penalty amount. Plaintiff will move the Court to decide the civil penalty amount in the near future.2 The only other remaining defendant is Relief Defendant Brookshire Development Co LLC. Plaintiff currently seeks disgorgement of ill-gotten gains from Brookshire. After the entry of Judgment, no issues remain

However, Plaintiff is in the process of requesting authority from the Securities and Exchange Commission to resolve the case against Brookshire without the need for a because Brookshire is currently unrepresented, Plaintiff's counsel received the consent and agreement of Larry M. Baker who is currently the only member of the LLC and its sole-owner.
2

In his Consent, Defendant Baker expressly waived any right to a hearing to determine the civil penalty amount, agreeing that the Court may determine the amount based upon the pleadings filed at the appropriate time.

2

Case 1:03-cv-01338-REB-MEH

Document 117

Filed 10/18/2005

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trial.3 Plaintiff will inform the Court regarding the status of its case against Brookshire as soon as possible. At that time, it is anticipated that Plaintiff will also move the Court to decide the penalty amounts against Defendants Hilker and Baker, respectively. WHEREFORE, based on the foregoing, Plaintiff respectfully moves the Court to vacate the Trial Preparation Conference date currently set for October 21, 2005, and the Trial date currently set for November 7, 2005. DATED: October 18, 2005 Respectfully submitted,

s/ Thomas J. Krysa Thomas J. Krysa, Esq. Securities and Exchange Commission 1801 California Street, Suite 1500 Denver, CO 80202 Telephone: (303) 844-1000 Facsimile: (303) 844-1068 Email: [email protected] Attorney for Plaintiff Securities and Exchange Commission

3

As the Court is aware, the Securities and Exchange Commission is made up of five Commissioners appointed by the President. In the instant case, Commission approval is required in order for the SEC staff to take the desired action to resolve the matter against Brookshire without the need for a trial. 3

Case 1:03-cv-01338-REB-MEH

Document 117

Filed 10/18/2005

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CERTIFICATE OF SERVICE

I hereby certify that on October 18, 2005, I presented the foregoing to the Clerk of the Court for filing and uploading to the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected]

and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants by U.S. Mail postage prepaid: Larry M. Baker, Pro Se 204 E. Weile, Unit 3 Spokane, WA 99208

s/ Thomas J. Krysa Thomas J. Krysa, Esq. Securities and Exchange Commission 1801 California Street, Suite 1500 Denver, CO 80202 Telephone: (303) 844-1000 Facsimile: (303) 844-1068 Email: [email protected] Attorney for Plaintiff Securities and Exchange Commission