Free Motion to Dismiss Counts/Claims - District Court of Arizona - Arizona

1 MICHAEL A. PIAZZA, Cal. Bar No. 235881
GREGORY C. GLYNN, Cal. Bar No. 039999
2
3 Attorneys for Plaintiff
Securities and Exchange Commission
4 Randall R. Lee, Regional Director _
Briane Nelson Mitc ell, Associate Regional Director
5 5670 Wilshire Boulevard, ll"' Floor
Los Angeles, California 90036-3648
6 Telephone: 323 965-3890
Facsimile: 323 965-3908
7
8
UNITED STATES DISTRICT COURT
9 .
DISTRICT OF ARIZONA
10
11
SECURITIES AND EXCILANGE Case No. CV 03-1862-PI~IX- FIM
12 COMMISSION,
REQUEST BY PLAINTIFF SECURITIES AND
13 Plaintiff, E`xcrIANc;1i) COMMISSIEN To DISMISS
ITHOUT REJUDICE LAIMS FOR
14 v. DISGORGEMENT, PREJUDGMENT
INTEREST AND CIVIL PENALTY AGAINST
15 MILLENNIUM CAPITAL HEDGE DEFENDANTS MILLENNIUM CAPITAL
16 FUND, L.P.; MILLENNIUM CAPITAL HEDGE FUND, L.P., AND MILLENNIUM
GROUP, LLC; and ANDREAS F. CAPITAL GROUP, LLC
ZYBELL,
17 (Ruta 4l(a)(2), Fed. R. cw. P.)
18 Defendants. T _ I
ria
19 Date: November 15, 2005
Time: 9:30 a.m.
20 Place: Courtroom #506
Fifth Floor
21 Sandra Day O’Connor Courthouse
‘ 401 W. Washington Street
22 Phoenix, Arizona
23
24
25 TO THE PARTIES AND TO THEIR COUNSEL OF RECORD:
26 Plaintiff Securities and Exchange ("Commission") hereby moves this Honorable
5 27 Court, pursuant to Fed. R. Civ. P. 4l(a)(2), to dismiss without prejudice the
28 Commission’s claims for disgorgement, prejudgment interest, and a civil penalty against
Case 2:03-cv-01862-FJIVI Document 81 Filed 11/O4/2005 Page 1 of 2

1 Defendant Millennium Capital Hedge Fund, L.P., ("Fund") and Millennium Capital
2 Group, LLC, (“1\¢fLLC”).
3 This Motion to dismiss claims is based on the fact that the Fund currently has no
4 assets, all of its assets having been distributed to its investors by Lawrence I. Warfield,
5 CPA, the Disbursing Agent appointed by this Court. The Fund is also in delinquent status
6 with the State of Nevada, having made no required filings since October 15, 2003, shortly
7 after the filing of this litigation. MLLC has no assets and also is defunct. ‘MLLC was
8 administratively dissolved by the State of Florida on October 1, 2004 for failure to file an
9 annual report}
10 The Commission’s claims against Andreas F. Zybell for disgorgement,
H prejudgment interest and civil penalty are being separately resolved by a Consent to a
12 Final Judgment of Disgorgement, Prejudgment Interest, and Penalty.
13 Dated: November 3 , 2005
14 Respectfully submitted,
=· g-• . 11
16 A 6 ey for Plrzldnti la
17 Se rities and Exch ge Commission
1 8 C:\Mi1lennium\Peadings\Reques1 to Dismiss Disgorgemcnt Claims Under Rule 41()(2).wpd
19
20 ' On November 19, 2003, pursuant to Consents executed by each of the
Defendants, this Court entered Final Judgments of Permanent Injunction and Other Relief
21 Against the Fund and MLLC, along with Defendant Andreas F. Zybell, enjoining them
22 from further violations of Sections 5(a) and 5(c) ofthe Securities Act of 1933 ("Securities
Act’), 15 U.S.C. §§ ’77e(a) & 7’7e(c), the antifraud provisions of Section 17(a) of the
23 Securities Act, 15 U.S.C. § 77q(a), and Section 10(b) of the Securities Exchange Act of
24 1934 ("Exchange Act"), 15 U.S.C. § 78j(b), and Rule 10b-5 thereunder, 17 C.F.R. §
240.10b—5. MLLC and Zybell were also enjoined from further violations of the antifraud
25 provisions of Sections 206(l) and 206(2) of the Investment Advisers Act of 1940
("Advisers Act"), 15 U.S.C. §§ 80b-6(I) & 80b-6(2), The Frmd was further enjoined by
26 consent from further violations of Section 7(a) of the Investment Company Act of 1940
27 (“Investment Company Act"), 15 U.S.C. § 80a-7(a). All of these Injunctions remain in
full force and effect.
28
2
Case 2:O3—cv-01862-FJIVI Document 81 Filed 11/O4/2005 Page 2 of 2 e

Case 2:03-cv-01862-FJM

Document 81

Filed 11/04/2005

Page 1 of 2

Case 2:03-cv-01862-FJM

Document 81

Filed 11/04/2005

Page 2 of 2