INGE JOHNSON, District Judge
Pending before the court is SEC's motion for, in the event of an adverse ruling on the merits, an injunction continuing the asset freeze pending appeal (doc. 119 and 123). Defendant Scrushy filed a response (doc. 115) to the SEC's motion, and SEC filed a reply to defendant Scrushy's submission (doc. 120). The court has reviewed all of the parties' submissions.
It appears that the SEC filed the identical motion twice, once on May 6, 2003 (doc. 119) and once on May 7, 2003 (doc. 120).
The documents appear to be numerically out-of-order. The SEC originally filed its motion by faxing it to the court's chambers. However this court accepts no pleadings by fax except by specific instruction, which is applicable only to the pleading to which it pertains. Defendant Scrushy correctly filed with the clerk his response to plaintiffs faxed motion, thus his pleading was numbered by the clerk in the order it was filed. It was not until after defendant Scrushy had already filed his response to the SEC's motion that the SEC correctly filed its motion, twice. See note 1.
The SEC asserts that a freeze of defendant Scrushy's assets should be entered by this court pending disposition of an appeal by the SEC to the Eleventh Circuit of this court's order staying this action and lifting the asset freeze. As grounds for this motion, SEC argues that "[t]he Commission has alleged, and the evidence establishes, that defendant Scrushy orchestrated one of the largest financial frauds in American history, causing investors billions of dollars in losses." (docs. 119 and 123 at 2). Accordingly, the SEC's motion is based upon the same evidence and arguments as for the general freeze order that they have previously sought.
However, for the same reasons as set forth in the Memorandum Opinion entered by this court contemporaneously denying the SEC's motion for a freeze of Scrushy's assets, this court is of the opinion that the SEC's motion is due to be denied. This court found that the SEC had failed to present sufficient evidence to warrant the issuance of a freeze of defendant Scrushy's assets (doc. 124). There is no reason for this court to now enter a freeze order pending appeal to the Eleventh Circuit when this court has already found that the present circumstances of the case fail to warrant a freeze.
Accordingly, this court is of the opinion that SEC's motion is due to be DENIED. It is therefore ORDERED that the SEC's motion is DENIED.
DONE and ORDERED.