United States District Court, W.D. North Carolina, Charlotte Division
U.S. COMMODITY FUTURES TRADING COMMISSION, Plaintiff,
JONATHAN DAVEY, Defendant.
J. Conrad, Jr. United States District Judge
MATTER is before the Court on Defendant's Motion to Stay,
(Doc. No. 160), and Platintiff's Motion for Summary
Judgment, (Doc. No. 157).
asks the Court to stay this matter pending resolution of his
collateral attack on his criminal conviction, which has yet
to be filed. This matter was stayed several years pending the
criminal prosecutions of those involved in the Black Diamond
Ponzi scheme. (Doc. No. 69: Order). The direct appeals of all
criminal defendants are complete and the Court previously
lifted the stay in this matter in 2015. (Doc. No. 130). The
Court finds that Defendant may assert any defenses he has in
this civil action without prejudice to his collateral attack
on his criminal conviction. Therefore, the Court will deny
Defendant's motion to stay.
accordance with Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), the Court advises Defendant, who is
proceeding pro se, of the heavy burden that he carries in
responding to Plaintiff's Motion for Summary Judgment.
judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A factual dispute is genuine “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
material only if it might affect the outcome of the suit
under governing law. Id.
movant has the “initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (internal citations
this initial burden is met, the burden shifts to the
nonmoving party. The nonmoving party “must set forth
specific facts showing that there is a genuine issue for
trial.” Id. at 322 n.3. The nonmoving party
may not rely upon mere allegations or denials of allegations
in his pleadings to defeat a motion for summary judgment.
Id. at 324. The nonmoving party must present
sufficient evidence from which “a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248; accord Sylvia Dev.
Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th Cir.
Defendant has any evidence to offer to show that there is a
genuine issue for trial, he must now present it to this Court
in a form which would otherwise be admissible at trial, i.e.,
in the form of affidavits or unsworn declarations. Federal
Rule of Civil Procedure 56(c) provides that:
(1) Supporting Factual Positions. A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible
Evidence. A party may object that the material cited to
support or dispute a fact cannot be presented in a form that
would be admissible in evidence.
(3) Materials Not Cited. The court need consider
only the cited materials, but it may consider other materials
in the record.
(4) Affidavits or Declarations. An affidavit or
declaration used to support or oppose a motion must be made
on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or ...