Robert Maxwell's motions for additional living expenses and
attorneys' fees will be denied. The factual background is this
matter is discussed in my published Opinion Commodity Futures
Trading Commission v. American Metal Exchange Corp. appearing
at 693 F. Supp. 168 (D.N.J. 1988), and I need not repeat it
Standard of Review
In considering this summary judgment motion, I shall keep in
mind the Rule 56 standard of review. Rule 56 of the Federal
Rules provides that "judgment . . . shall be rendered forthwith
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.Pro. 56(c). The moving party has the initial burden
of demonstrating this summary judgment standard, See Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
585-86, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986), which
can be accomplished by simply pointing out to the Court that
there is an absence of evidence to support the nonmoving
party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106
S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986); see also Peters Tp.
School Dist. v. Hartford Acc. & Indem. Co., 833 F.2d 32, 34
(3rd Cir. 1987).
In opposing summary judgment, the nonmoving party must come
forward with evidence supporting a claim that there is a
genuine issue of material fact in dispute which requires
resolution by the trier of fact. First Nat'l Bank v. Cities
Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d
569 (1968). The judge's role is "not to weigh the evidence and
determine the truth of the matter," but to determine whether
the evidence may reasonably be resolved in favor of either
party. Metzger v. Osbeck, 841 F.2d 518, 519 (3rd Cir. 1988).
"Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge." Williams v. Borough of West
Chester, 891 F.2d 458, 460 (3rd Cir. 1989) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986)). All inferences to be drawn from the facts should
be resolved in favor of the nonmoving party. Peters Tp. School
Dist., 833 F.2d at 34.
With these standards in mind, I turn to a discussion of the
legal and factual issues involved in these motions.
I. Motion for Summary Judgment Against All Defendants on Count
II of the First Amended Complaint
The plaintiffs have moved for summary judgment on Count II of
the First Amended Complaint for Injunctive and Ancillary
Equitable Relief under Section 4b(A) of the Commodity Exchange
Act, 7 U.S.C. § 6b(A) (1988). The plaintiffs request such
relief against the defendants, American Metals Exchange
Corporation, ("AME"), Anglo-Swiss Metals Ltd., ("Anglo-Swiss"),
F.C. & M. Investment Corp., ("FC & M"), Trans World Metals
Corp., ("TWM"), Amalgamated Redemption Centers, Inc.,
("Amalgamated"), Robert Maxwell, Bill Frank, and Michael
Jebrock. Robert Maxwell is the only defendant who has opposed
Section 4b(A) of the CEA provides that
[i]t shall be unlawful . . . (2) for any person in
or in connection with any order to make . . . any
contract of sale of any commodity for future
delivery . . . [which] may be used for (a) hedging
any transaction in interstate commerce in such
commodity or, . . . (c) delivering any
such commodity sold, shipped, or received in
interstate commerce. . . .
(A) to cheat or defraud or attempt to cheat or
defraud such other person.
7 U.S.C. § 6b(A) (1988). This section declares it unlawful for
any person to deceive or defraud any other person in connection
with the making of a contract for the sale of any commodity for
future delivery. Saxe v. E.F. Hutton & Co., Inc.,