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					Case 9:03-cv-80612-KAM        Document 1814         Entered on FLSD Docket 03/14/2007            Page 1 of 10



                                 UNITED STATES DISTRICT COURT
                                 SOUTHERN DISTRICT OF FLORIDA

                             Case No. 03-80612-CIV-MARRA/JOHNSON
     ________________________________________________
                                                        )
     SECURITIES AND EXCHANGE COMMISSION,                )
                                                        )
                  Plaintiff,                            )
                                                        )
                         v.                             )
                                                        )
     MICHAEL LAUER,                                     )
     LANCER MANAGEMENT GROUP, LLC, and                  )
     LANCER MANAGEMENT GROUP II, LLC,                   )
                                                        )
                  Defendants,                           )
     and                                                )
                                                        )
     LANCER OFFSHORE, INC.,                             )
     LANCER PARTNERS, LP,                               )
     OMNIFUND, LTD.,                                    )
     LSPV, INC., and                                    )
     LSPV, LLC,                                         )
                                                        )
                  Relief Defendants.                    )
     _________________________________________________)

      PLAINTIFF SECURITIES AND EXCHANGE COMMISSION’S MOTION TO STRIKE
       IN ITS ENTIRETY DEFENDANT MICHAEL LAUER’S REQUEST FOR COURT TO
           TAKE JUDICIAL NOTICE AND JOINDER IN SUPPORT OF RECEIVER’S
      MEMORANDUM OF LAW IN OPPOSITION TO LAUER’S REQUEST FOR JUDICIAL
                      NOTICE AND MOTION TO STRIKE REPORT

            Plaintiff Securities and Exchange Commission hereby files its Motion to Strike in its

     Entirety Defendant Michael Lauer’s Request for Court to Take Judicial Notice (DE 1800) and

     Joinder in Support of Receiver’s Memorandum of Law in Opposition to Lauer’s request for

     Judicial Notice and Motion to Strike to Report. [DE 1812]. Lauer’s Request for Judicial Notice

     is procedurally defective, because the Court should not take Judicial Notice of it since its contents

     are in dispute. In addition, the Court should strike Lauer’s Request for Judicial Notice as it is
Case 9:03-cv-80612-KAM            Document 1814             Entered on FLSD Docket 03/14/2007                    Page 2 of 10



     scandalous (as that term is defined by Federal Rule of Civil Procedure 12(f)), since without any

     legitimate basis he tries to paint counsel for the SEC in a false light.

             Lauer’s purported premise for Judicial Notice is that the representations made during the

     July 10, 2003 ex parte hearing ruined him and the Funds. This specious claim is belied by the

     fact that instead of contesting the SEC’s evidence, he consented to a Preliminary Injunction.

     Lauer choose to consent, instead of facing the mountain of evidence that the SEC provided to the

     Court, which showed that the SEC “is likely to succeed in showing that [Lauer] violated the

     federal securities laws”, that Lauer is “likely to continue [his] violations unless the Court issues

     an ex parte Temporary restraining Order” and that the “entry of the ex parte Order requested by

     the Commission will serve the public interest in protecting the public from continued violations of

     the securities laws.” [DE 19 at 3]. In addition, after full briefing from both parties, the Court has

     ruled against Lauer on virtually every matter that he complains about, specifically that the Court

     should not have entered an injunction against him and venue was improper in the Southern

     District of Florida. [DE 375 & 491 at 3-4]. 1 Lauer clearly does not like the outcome of the

     Court’s rulings on these matters, but this does not mean that any unethical conduct occurred.

             Moreover, Lauer’s bad faith in bringing his Motion for Judicial Notice is transparent on its

     face when one considers that he waited more than three and half years, and after the SEC filed for




     1
       After having many months to prepare his defense and rebut the SEC’s case, Lauer moved to dissolve the
     Preliminary Injunction, but the Preliminary Injunction stayed fully in place. [DE 178 & 375]. The Court refused to
     dissolve the Preliminary Injunction against Lauer because he did “not present any evidence to show that the
     evidence offered in support of the SEC’s Emergency Motion for Temporary Restraining Order (DE 11) and
     disclosed to Lauer prior to his consent to the preliminary injunction is inaccurate.” [DE 375 at 5, emphasis added].
     Consequently, the Court found that “Defendants violated federal securities laws, that if the injunction were dissolved
     Lauer, individually or through the Defendants and Relief Defendants, would likely further violate federal securities
     laws and that continuation of the preliminary injunction benefits the public interest.” [Id., at 6].




                                                               2
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     summary judgment, before leveling his charges of purportedly unethical behavior. Lauer clearly

     realizes that he cannot kill the SEC’s message (that he violated the anti-fraud provision o the

     federal securities laws), so he is trying to kill the messenger.

            For all of these reasons, the Court should strike Lauer’s Motion for Judicial Notice.

                                                   BACKGROUND

            On July 8, 2003, the provided the Court with its complaint against Lauer and others, its

     motion and memorandum of law in support in support of ex parte relief, and thousands of pages

     of evidence in support. [DE 1, 11, & 14-17]. Collectively, these filings demonstrated that Lauer

     violated the anti-fraud provisions of the federal securities laws. On July 10, 2003, the Court held

     an ex parte hearing and heard testimony and heard argument from SEC’s counsel on whether a

     temporary restraining order was appropriate. That same day, the Court entered a TRO against

     Lauer and others and appointed a Receiver, Marty Steinberg, over the Funds, because, among

     other reasons, the SEC had demonstrated that it “is likely to succeed in showing that [Lauer]

     violated the federal securities laws”, that Lauer is “likely to continue [his] violations unless the

     Court issues an ex parte Temporary restraining Order” and that the “entry of the ex parte Order

     requested by the Commission will serve the public interest in protecting the public from

     continued violations of the securities laws.” [DE 19 at 3]. The TRO froze Lauer’s assets and

     enjoined him from future violations of the anti-fraud provisions of the federal securities laws.

     The Court also set a hearing just eight days later to allow Lauer to contest the SEC’s charges.

     Instead, of facing this mountain of evidence, Lauer consented to the entry of a Preliminary

     Injunction that continued the blanket freeze against his assets and enjoined him from future

     violations of the anti-fraud provision of the federal securities laws. [DE 22].




                                                        3
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             Unhappy with the prohibitions contained in the Preliminary Injunction, Lauer sought to

     modify the asset freeze on seemingly countless occasions and moved to dissolve the Preliminary

     Injunction. Despite Lauer’s vigorous efforts, the blanket asset freeze remains in place, and the

     Court refused to dissolve the Preliminary Injunction because Lauer did “not present any

     evidence to show that the evidence offered in support of the SEC’s Emergency Motion for

     Temporary Restraining Order (DE 11) and disclosed to Lauer prior to his consent to the

     preliminary injunction is inaccurate.” [DE 375 at 5, emphasis added]. Indeed, the Court found

     that “Defendants violated federal securities laws, that if the injunction were dissolved Lauer,

     individually or through the Defendants and Relief Defendants, would likely further violate federal

     securities laws and that continuation of the preliminary injunction benefits the public interest.”

     [Id., at 6]. Lauer also moved to transfer venue in this matter, which after full briefing, was also

     rejected by the Court. [DE 491 at 3-4]. In addition, Lauer acted in bad faith and failed to take

     part in the discovery by violating numerous Court Orders, including the Preliminary Injunction.

             After Lauer’s deliberate delays, discovery in the matter has been completed. On January

     18, 2007 the SEC filed a comprehensive motion for summary judgment against Lauer. On

     January 30, 2007, after the SEC filed its motion for summary judgment and nearly three and

     half years after the ex parte hearing, Lauer filed a rambling diatribe with the SEC’s Office of

     Inspector General accusing the SEC’s attorneys of purportedly unethical conduct that supposedly

     occurred at the ex parte hearing. 2 On February 27, 2007, Lauer filed a motion requesting that the

     Court take judicial notice of the unsworn letter he sent to the SEC’s Office of Inspector General,

     for the express purpose that “the Court consider at the present, as [his Opposition to the SEC’s


     2
       Lauer ipso facto declares that undersigned counsel is liable for the statements made at the ex parte hearing, even
     though undersigned counsel did not make any statements at the hearing.




                                                              4
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     Motion for Summary Judgment] is also about to be filed.” [DE 1800 at 2].

                                               MEMORANDUM OF LAW

                A.       The Court Should Not Take Judicial Notice of Lauer’s Letter

                The Court should not take judicial notice of Lauer’s letter, because, among other reasons,

     Lauer’s purported evidence is disputed. Federal Rule of Evidence 201 governs when judicial

     notice can be taken of adjudicative facts and states in pertinent part that:

                Rule 201. Judicial Notice of Adjudicative Facts . . .

                (b) Kinds of facts. A judicially noticed fact must be one not subject to
                reasonable dispute in that it is either (1) generally known within the territorial
                jurisdiction of the trial court or (2) capable of accurate and ready determination
                by resort to sources whose accuracy cannot reasonably be questioned. . .

                (e) Opportunity to be heard. A party is entitled upon timely request to an
                opportunity to be heard as to the propriety of taking judicial notice and the
                tenor of the matter noticed. In the absence of prior notification, the request
                may be made after judicial notice has been taken. . . .

                (g) Instructing jury. In a civil action or proceeding, the court shall instruct the
                jury to accept as conclusive any fact judicially noticed. [Emphasis added].


                In interpreting Rule 201, Courts have held that information similar to what Lauer is

     requesting (that he has asked for investigation or that the SEC’s attorneys supposedly lied) should

     not be judicially noticed. For example, McCorstin, Jr. v. U.S. Department of Labor, et al., 630

     F.2d 242, 244 (5th Circuit 1980), 3 the Fifth Circuit stated that:

                 In his request for judicial notice under Federal Rule of Evidence 201, the plaintiff
                 asked the court to take notice that Sofia Petters committed perjury in her affidavit for
                 the Department of Labor. The rule permits the court to take judicial notice of facts
                 "generally known within the territorial jurisdiction of the trial court or capable of
                 accurate and ready determination by resort to sources whose accuracy cannot
                 reasonably be questioned." An allegation of perjury clearly is not contemplated
                 by the judicial notice rule. See generally 21 C. Wright & K. Graham, Federal

     3
         The case is binding precedent on this Court. See Bonner v. Prichardt, 661 F.2d 1206, 1207 (11th Cir. 1981).




                                                                 5
Case 9:03-cv-80612-KAM             Document 1814            Entered on FLSD Docket 03/14/2007                     Page 6 of 10



               Practice and Procedure §§ 5104-5106 (1977)).

     Hence, the Court should not take judicial notice of Lauer’s letter, since it is disputed and not the

     type of information contemplated by the judicial notice rule.

              B.       The Court Should Strike Lauer’s Notice and Letter Because It Is Scandalous

              Fed.R.Civ.P. Rule 12 allows this Court to strike any pleading, such as Lauer’s Request for

     Judicial Notice, that contains scandalous matter. In pertinent part Fed.R.Civ.P. Rule 12 states

     that:

              (f) Motion to Strike. Upon motion made by a party before responding to a
              pleading or, if no responsive pleading is permitted by these rules, upon motion
              made by a party within 20 days after the service of the pleading upon the party or
              upon the court's own initiative at any time, the court may order stricken from
              any pleading any insufficient defense or any redundant, immaterial, impertinent,
              or scandalous matter. 4 [Emphasis added].

     Under Federal Rule of Civil Procedure 12(f) the district court may sua sponte "order stricken

     from any pleading ... any redundant, immaterial, impertinent, or scandalous matter." McCorstein,

     630 F.2d at 244 (where Fifth Circuit held not an abuse of discretion for the trial court to order pro

     se defendant’s request for judicial notice stricken); Agran v. Isaacs et al., 306 F.Supp. 945, 947-

     48 (N.D. Ill. 1969) (on the Court’s motion struck from the record accusations of professional

     ethics violations made against Judges pursuant to 12(f)). Moreover, Courts have a duty “in seeing

     that completely irresponsible and unsubstantiated charges are neither entertained nor

     indiscriminately circulated.” Id., at 949.

              Furthermore, in situations similar to this one, Courts have sua sponte stricken from the

     record notices that are unprofessional, harassing and irrelevant to litigation. As stated in Pigford

     4
       Although Rule 12(f) applies by its terms only to "pleadings," courts occasionally have applied the Rule to filings
     other than those enumerated in Rule 7(a) of the Federal Rules of Civil Procedure. Cobell v. Norton, 213 F.R.D. 33
     (D.D.C. 2003) (considering Rule 12(f) motion to strike plaintiffs' response to defendant's historical accounting plan).




                                                                6
Case 9:03-cv-80612-KAM                Document 1814              Entered on FLSD Docket 03/14/2007    Page 7 of 10



     v. Veneman, 225 F.R.D. 54, (D.D.C. 2005):

                  Rule 12(f) of the Federal Rules of Civil Procedure provides that a court may strike
                  any matter that is "redundant, immaterial, impertinent, or scandalous." Fed.R.Civ.P.
                  12(f). Although striking filings is generally disfavored as an extreme remedy, a
                  court has "liberal discretion" to strike such filings as it deems appropriate under Rule
                  12(f). Stanbury Law Firm v. IRS, 221 F.3d 1059, 1063 (8th Cir. 2000); see 2
                  MOORE'S FEDERAL PRACTICE § 12.37[1] at 12-93 to 12-94 (3d ed. 2002). The
                  word "scandalous" in Rule 12(f) "generally refers to any allegation that
                  unnecessarily reflects on the moral character of an individual or states anything in
                  repulsive language that detracts from the dignity of the court." 2 MOORE'S
                  FEDERAL PRACTICE § 12.37[3] at 12-97; see also In re TheMart.com Inc.
                  Securities Litigation, 114 F.Supp.2d 955, 965 (C.D.Cal. 2000) ("scandalous"
                  includes allegations that cast "a cruelly derogatory light on a party or other person").
                   Mr. Myart's insinuations "improperly cast[ ] a derogatory light" on a dedicated
                  government attorney who has done his best to navigate the deep and murky waters
                  of this litigation. 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
                  FEDERAL PRACTICE & PROCEDURE § 1382 (3d ed. 2004). The current
                  accusations, and others, which too often have been contained in superfluous and
                  inappropriate filings, have no place in this Court and will be stricken.

     As in Pigford, Lauer’s notice and letter improperly cast the SEC’s attorneys in a derogatory light.

      Consequently, the Court should strike Lauer’s notice, because it is scandalous as that term is

     defined by Fed.R.Civ.P. 12(f).

                While it is true that motions to strike are generally viewed with disfavor and infrequently

     granted, they should be granted in situations like this one where "it can be shown that no evidence

     in support of the allegation would be admissible." 5 Eskofot A/S v. E.I. Du Pont De Nemours &

     Company, 872 F. Supp. 81, 93 (S.D.N.Y. 1995) (citing Lipsky v. Commonwealth United Corp.,

     551 F.2d 887, 893 (2d Cir.1976)). Case law makes clear that the evidence Lauer has requested

     the Court to take judicial notice of (an investigation) is not admissible. See In re Merrill Lynch &

     Co., Inc. Research Reports Securities Litigation, 218 F.R.D. 76, 78 (S.D.N.Y. 2003) (“references



     5
         In addition, the Court has “liberal discretion” to strike. Pigford, 225 F.R.D. at 58.




                                                                    7
Case 9:03-cv-80612-KAM            Document 1814            Entered on FLSD Docket 03/14/2007                   Page 8 of 10



     to preliminary steps in litigations and administrative proceedings that did not result in an

     adjudication on the merits or legal or permissible findings of fact are, as a matter of law,

     immaterial under Rule 12(f) of the Federal Rules of Civil Procedure”); see also Ledford v. Rapid-

     American Corp., 1988 WL 3428, at *1-2 (S.D.N.Y. 1988) (relying on Lipsky and striking

     allegations in a complaint that referred to an investigation and report by the New York State

     Division of Human Rights which was a non-adjudicative step in the administrative proceeding

     where there had been no findings of fact).

             C.       Substantively Lauer’s Letter is Wildly Off-the-Mark

              Par for the course, Lauer’s letter is long on ad hominem attacks and short on substance. 6

     In essence, Lauer is trying to collaterally attack many of the Court’s Orders, including the TRO,

     Preliminary Injunction, Omnibus Order denying his motion to transfer venue, and motion to

     dissolve the preliminary injunction. To the extent Lauer’s accusations were not fully briefed in

     pleadings filed in connection with these Orders, they have been addressed in other pleadings or

     are issues that relate to the SEC’s Motion for Summary Judgment.                          For example, Lauer

     previously argued to this Court that counsel for the SEC should not have informed Chief Judger

     Zloch that he “demonstrated a complete and utter disregard for the law over [an] extended period

     of time.” [DE 1708 at 4-5]. As previously stated by undersigned counsel in the SEC’s response

     to these specious charges, the statement is completely true and accurate. For more than three

     years Lauer demonstrated a “complete and utter disregard for the law” by running the Lancer

     entities as a fraud and engaging in hundreds, if not thousands, of unlawful transactions to


     6
       Lauer’s thirty-plus pages of rambling diatribe repeat his frivolous accusations. Consequently, undersigned counsel
     will not address these ad hominem attacks and rehash all of the reasons Lauer’s allegations are false, except to
     categorically state that undersigned counsel believes that Lauer’s accusations are patently false.




                                                              8
Case 9:03-cv-80612-KAM            Document 1814            Entered on FLSD Docket 03/14/2007                   Page 9 of 10



     accomplish his scheme, which netted him tens of million of dollars. 7 [See DE 1711 at 2-3].

             In reality, Lauer’s request for judicial notice is an entirely improper attempt to evade the

     page restriction on the length of his response in opposition to the SEC’s Motion for Summary

     Judgment through using an unsworn letter. Notably, even if Lauer executed his letter under oath,

     it would not change anything since the Court has already properly ruled that he cannot submit an

     affidavit in opposition to the SEC’s Motion for Summary Judgment (DE 1572 at 2)).

                                           Compliance with S.D. Fla. Local Rules

             On March 14, 2007, undersigned counsel conferred with Lauer to determine if he opposed

     the SEC’s Motion to Strike. Lauer responded back that same day via email that he does oppose

     the SEC’s requested relief.

             In conclusion, based on the foregoing and the Receiver Opposition and Motion to Strike

     (DE 1812), the Court should strike in its entirety Lauer’s Request for Judicial Notice from the

     Record. A proposed order is attached.

                                                         Respectfully submitted,

     Dated: March 14, 2007                          By: s/ Christopher E. Martin
                                                        Christopher E. Martin
                                                        Senior Trial Counsel
                                                        SD Fla. Bar. No. A5500747
                                                        Direct Dial No.: (305) 982-6386

                                                         Attorney for Plaintiff
                                                         SECURITIES AND EXCHANGE COMMISSION
                                                         801 Brickell Avenue, Suite 1800
                                                         Miami, Florida 33131
                                                         Telephone: (305) 982-6300
                                                         Facsimile: (305) 536-4154



     7
      Lauer tries to twist the statement by counsel for the SEC to mean that the SEC was claiming that Lauer had been
     convicted criminally in other matters, which the quoted statement clearly does not.




                                                              9
Case 9:03-cv-80612-KAM        Document 1814         Entered on FLSD Docket 03/14/2007          Page 10 of 10




                                        CERTIFICATE OF SERVICE

             I HEREBY CERTIFY that on March 14, 2007, I electronically filed the foregoing

      document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document

      is being served either via transmission of Notices of Electronic Filing generated by CM/ECF or

      on March 15, 2007 as specified below, on all counsel of record or pro se parties identified on the

      attached Service List in the manner specified, either via transmission of Notices of Electronic

      Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who

      are not authorized to receive electronically Notices of Electronic Filing.

                                                    s/ Christopher E. Martin
                                                    Christopher E. Martin

                                               SERVICE LIST

                        Securities and Exchange Commission v. Michael Lauer, et al.
                                Case No. 03-80612-CIV-MARRA/JOHNSON
                          United States District Court, Southern District of Florida

      Marty Steinberg, Receiver
      Craig V. Rasile, Esq.
      Hunton & Williams LLP
      1111 Brickell Avenue, Suite 2500
      Miami, Florida 33131-1802
      Service by U.S. Mail

      Michael Lauer, pro se
      7 Dwight Lane
      Greenwich, CT 06831
      Service by FedEx




                                                       10
Case 9:03-cv-80612-KAM       Document 1814-2        Entered on FLSD Docket 03/14/2007            Page 1 of 2



                               2UNITED STATES DISTRICT COURT
                               SOUTHERN DISTRICT OF FLORIDA

                             Case No. 03-80612-CIV-MARRA/JOHNSON
     ________________________________________________
                                                        )
     SECURITIES AND EXCHANGE COMMISSION,                )
                                                        )
                  Plaintiff,                            )
                                                        )
                         v.                             )
                                                        )
     MICHAEL LAUER,                                     )
     LANCER MANAGEMENT GROUP, LLC, and                  )
     LANCER MANAGEMENT GROUP II, LLC,                   )
                                                        )
                  Defendants,                           )
     and                                                )
                                                        )
     LANCER OFFSHORE, INC.,                             )
     LANCER PARTNERS, LP,                               )
     OMNIFUND, LTD.,                                    )
     LSPV, INC., and                                    )
     LSPV, LLC,                                         )
                                                        )
                  Relief Defendants.                    )
     _________________________________________________)

       ORDER GRANTING PLAINTIFF SECURITIES AND EXCHANGE COMMISSION’S
         MOTION TO STRIKE IN ITS ENTIRETY DEFENDANT MICHAEL LAUER’S
                REQUEST FOR COURT TO TAKE JUDICIAL NOTICE

             THIS CAUSE is before the Court upon a Motion filed on March 14, 2007 by Plaintiff

     Securities and Exchange Commission to strike in its Entirety Defendant Michael Lauer’s

     Request for Court to Take Judicial Notice and Joinder in Support of Receiver’s Memorandum of

     Law in Opposition to Lauer’s Request for Judicial Notice and Motion to Strike Report. [DE      ].

     The Court finds that good cause exists for this motion and, being otherwise fully advised of the

     record, it is hereby:
Case 9:03-cv-80612-KAM       Document 1814-2        Entered on FLSD Docket 03/14/2007          Page 2 of 2



            ORDERED AND ADJUDGED that the SEC’s Motion is GRANTED. Michael Lauer’s

     Request for Court to Take Judicial Notice is hereby stricken from the record. The Clerk is asked

     to remove this document from the docket.

            DONE AND ORDERED in Chambers at West Palm Beach in the Southern District of

     Florida, this ____ day of March, 2007.


                                          _________________________________________
                                          KENNETH A. MARRA
                                          UNITED STATES DISTRICT JUDGE

     Copies to:

     Christopher E. Martin, Esq.
     Attorney for Plaintiff
     SECURITIES AND EXCHANGE COMMISSION
     801 Brickell Avenue, Suite 1800
     Miami, Florida 33131
     Tel: (305) 982-6386
     Fax: (305) 536-4154

     Marty Steinberg, Receiver
     Craig V. Rasile, Esq.
     Hunton & Williams LLP
     1111 Brickell Avenue, Suite 2500
     Miami, Florida 33131-1802

     Michael Lauer, pro se
     7 Dwight Lane
     Greenwich, CT 0683




                                                    2

				
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