            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 10, 2009

                                     No. 08-10709                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



IP FUND 1, INC., et al.

                                                   Plaintiffs
v.

MICHAEL E. KELLY, et al.

                                                   Defendants

ERNEST BUSTOS

                                                   Appellant
v.

SECURITIES AND EXCHANGE COMMISSION

                                                   Intervenor - Appellee




     Appeal from the United States District Court for the Northern District of
                           Texas No. 3:07-cv-01556-P


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
        On September 5, 2007 the Securities and Exchange Commission filed a
suit in the Northern District of Illinois against Michael E. Kelly alleging that

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                 No. 08-10709

Kelly perpetrated a scheme that defrauded investors of $450 million through the
sale of “universal leases.” One week later, IP Fund 1, Inc.—a corporation formed
by Appellant Ernest Bustos for the purpose of representing investors against
and recovering lost investments from Kelly, and of which Bustos is sole
shareholder—sued Kelly in the Northern District of Texas. The suit requested
the district court to appoint as temporary receiver Resorts Management Group
LLC, a corporation also formed by Bustos and of which he is the registered
agent, principal, chairman, and secretary.
      The SEC sought to intervene. On December 6, 2007 the district court
granted the SEC’s motion to intervene, declined IP Fund 1's request to appoint
RMG LLC as temporary receiver, and allowed the SEC limited discovery to
investigate Bustos’ role in selling universal lease investments, in forming IP
Fund 1 and RMG LLC, and in requesting that RMG be appointed as temporary
receiver.
      On December 26, 2007 Bustos filed in his own name a “motion to stay,”
seeking to vacate the December 6 order. In a March 7, 2008 order, the district
court found that Bustos lacked standing to contest the order because he was not
a party to the case and struck his motion. Bustos requested reconsideration and
on June 19, 2008 the district court struck Bustos’ motion for reconsideration.
Bustos now appeals.
      The SEC argues and we agree that we lack jurisdiction over Bustos’
appeal. Under 28 U.S.C § 1291 the orders striking Bustos’ motion to stay and
motion for reconsideration were not “final.” Bustos may seek to intervene under
F ED. R. C IV. P. 24. Bustos may also challenge any discovery directed at him
when he is subpoenaed. Bustos argues that we have jurisdiction under 28
U.S.C. § 1292(b). But the district court made no finding that “an immediate
appeal from the order may materially advance the ultimate termination of the



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litigation” from which we could exercise our discretion to permit appeal.
AFFIRMED.




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