Replies to post #308508 on CMKM Diamonds Inc. (fka CMKX)

[janice shell]

LOLOLOLISSIMO!! As expected...

[fung_derf]

WHAT???? They're not going to just roll over and pay?? Those sneaky SOB's! How dare they?!!
So does this mean, no money again this week?...I wonder how long they'll hold a Ferrari?

[jimmym4]

Gotta Love it!!..They seem to be running for the hills hiding behind immunity..LOL
??

[Investorman]

Plaintiffs’ allegations similarly do not contain any facts that plausibly show that there is a trust fund containing funds from naked short sellers and others that was gathered to benefit CMKM shareholders.

With respect to the key allegation that there was “a settlement with the illegitimate brokers, dealers, market makers, hedge funds, and other persons and entities that had engaged in naked short selling,” the complaint does not identify a single party to the settlement (it does not even say whether the Commission was a party) or provide anything other than the most general terms – persons who engaged in naked short selling agreed to pay negotiated amounts in return for a promise of no prosecution.

[dia duit]

And there it is....... let the tantrums commence!

A. Plaintiffs’ Claim for Declaratory Relief Should be
Dismissed Because it is Either Barred by Sovereign
Immunity or Brought Against the Wrong Defendants . . . . . . . . . 5
B. Plaintiffs’ Complaint Should Be Dismissed in its Entirety
Because Plaintiffs Have Failed to State a Plausible Claim . . . . . . 6
C. Plaintiffs’ Bivens Claim Should Be Dismissed Because
Plaintiffs Have Not Alleged that Defendants Were
Either Personally Involved in, or Caused Plaintiffs to
Be Subjected to, a Constitutional Deprivation . . . . . . . . . . . . . . . . 9
D. The Complaint Fails to Set Forth Facts Sufficient to
Overcome Defendants’ Qualified Immunity . . . . . . . . . . . . . . . . 10

2 As is evident from public filings, the SEC has brought a civil enforcement
action against CMKM and other related persons alleging that CMKM officers
oversaw a complex scheme to issue and sell unregistered CMKM stock and to
manipulate CMKM’s stock price and volume through false statements from
January 2003 through May 2005. SEC v. CMKM Diamonds, Inc., No. 2:08-CV-
00437 (D. Nev.). The SEC did not bring any claims against alleged naked short
sellers. While the SEC has obtained judgments requiring substantial payments of
disgorgement and civil penalties against several defendants, Plaintiffs never
mention this action in the Complaint or otherwise suggest the funds at issue were
obtained through the SEC’s lawsuit.

35. The Complaint does not allege why the DTCC or the
United States government would have put money in a trust for CMKM
shareholders or why the DTCC or Treasury Department would hold assets from
CMKM in trust.2 It is also not clear whether the Complaint is alleging that these
funds are in the same trust as the alleged funds from naked short sellers.
Without specifying what funds it is discussing, the Complaint continues by
alleging that the SEC “reserved unto itself the sole and absolute discretion to
determine when moneys collected pursuant to the scheme set forth above would
and could be released for distribution.” Complaint ¶ 36. Plaintiffs also allege that
“[d]emand for release of said moneys has been repeatedly presented to the
Securities and Exchange Commission without result.” Complaint ¶ 37. Allegedly,
agents of the SEC and the Department of Justice have said the money would be
released soon, but allegedly the governmental agents knew those statements, made
“at the specific direction of the named Defendants,” were false. Complaint ¶ 37.
The Complaint then concludes that “withholding distribution of said moneys,
without compensation and without due process of law, amount[s] to a taking of the
property of the individual Plaintiffs.” Complaint ¶ 37.

5
The Complaint purports to state two causes of action, both against all
Defendants. First, the Complaint seeks a declaration that Defendants wrongfully
“cause[d] certain acts and omissions to proceed in such manner” to “prevent the
distribution of moneys held for the benefit of Plaintiffs,” and that their actions
caused Plaintiffs “to be deprived of property without just compensation and
without due process of law.” Complaint ¶ 53. Second, the Complaint alleges that
Defendants violated Plaintiffs’ “Fifth Amendment right to be secure in their
property, free from taking without just compensation and without due process of
law,” and that Defendants’ actions caused Plaintiffs and all persons similarly
situated to suffer damages “in excess of 3.87 Trillion Dollars.” Complaint ¶¶ 56,
58.

[TSXminer]

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