affirming award of summary judgment for defendant where plaintiff failed to provide nonspeculative evidence of damages
How later courts described this case
- affirming award of summary judgment for defendant where plaintiff failed to provide nonspeculative evidence of damages
- affirming award of summary judgment for defendants where plaintiff “failed to offer any nonspeculative evidence demonstrating the existence of a genuine dispute of material fact”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
)
MATTHEW E. ORSO, in his capacity as court- )
appointed Receiver for Rex Venture Group, LLC )
d/b/a ZeekRewards.com, )
)
Plaintiff, )
)
vs. )
) ORDER
TODD DISNER, in his individual capacity and in his
)
capacity as trustee for Kestrel Spendthrift Trust;
)
TRUDY GILMOND; TRUDY GILMOND, LLC; ) No. 3:14-cv-91
JERRY NAPIER; DARREN MILLER; RHONDA )
GATES; DAVID SORRELLS; INNOVATION
)
MARKETING, LLC; AARON ANDREWS; SHARA
)
ANDREWS; GLOBAL INTERNET FORMULA,
)
INC.; T. LEMONT SILVER; KAREN SILVER;
)
MICHAEL VAN LEEUWEN; DURANT
)
BROCKETT; DAVID KETTNER; MARY
)
KETTNER; P.A.W.S. CAPITAL MANAGEMENT
)
LLC; LORI JEAN WEBER; and a Defendant Class
)
of Net Winners in ZEEKREWARDS.COM;
)
)
Defendants.
)
This matter is before the Court upon the Receiver’s Motion for Summary Judgment
against Remaining Defendants Disputing Receiver’s Net Winnings Calculations, filed August
28, 2019. (Doc. No. 258). Ninety-seven of the Net Winners failed to respond to the Receiver’s
motion after the Court’s issuance of a Roseboro notice, and the Court entered an Order on
December 3, 2019 granting the Receiver’s motion as to these Net Winners. (Doc. No. 316).
Defendant Martin Postal filed a pro se response in opposition to the Receiver’s motion (Doc. No.
298), and the Receiver filed a Reply (Doc. No. 307). This Order addresses the Receiver’s
motion as to Postal only.
The factual background of the ZeekRewards Ponzi scheme is set forth in detail in the
Summary Judgment Order entered on December 29, 2016 (the “2016 Summary Judgment
Order”) in favor of the Receiver against the named Defendants in this action. (Doc. No. 142). In
the same Order, the Court also granted summary judgment against the Net Winner Class as to all
liability issues.1 These judgments were finalized in the Final Judgment Order. (Doc. No. 148).
The only remaining issue left to resolve in this case is the actual amount of money that
each of the remaining members of the Net Winner Class is required to return. To facilitate
resolution of this issue, the Court entered an Order on Process for Determining the Amount of
Final Judgments against Net Winner Class Members (“Process Order”). (Doc. No. 153). The
Process Order provided a procedure allowing Net Winners to dispute the calculations offered by
the Receiver, including recourse to a special master to adjudicate disputes concerning the
amounts of net winnings. Defendant Postal did not seek referral to the special master appointed
by the Court.
It is well-settled that “[a] party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of [his] pleadings,’ but rather must
‘set forth specific facts showing that there is a genuine issue for trial.’” Bouchat v. Baltimore
Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (citing Fed. R. Civ. P. 56(e),
Matsushita Elec. Indus. Co., 475 U.S. 574 586-87 (1986)). Where the party opposing summary
judgment fails to respond to a summary judgment motion with evidence demonstrating the existence
of a genuine dispute of material fact, summary judgment is appropriate. See Bouchat, 346 F.3d at 525
(affirming award of summary judgment for defendants where plaintiff “failed to offer any
nonspeculative evidence demonstrating the existence of a genuine dispute of material fact”); Dash v.
1 Certain members of the Defendant class appealed the Court’s 2016 Summary Judgment Order. Despite finding that
this Court had erred in certain respects, the Fourth Circuit nonetheless affirmed. See Bell v. Brockett, 922 F.3d 502
(4th Cir. 2019).
Mayweather, 731 F.3d 303, 333 (4th Cir. 2013) (affirming award of summary judgment for
defendant where plaintiff failed to provide nonspeculative evidence of damages); see also Process
Order (Doc. No. 153) at 5 (specifying that responding class members must provide a specific
alternative calculation supported by evidence, and that “in responding to the Receiver’s calculation
of their Net Winnings, the Net Winners must “set forth specific facts that go beyond the mere
existence of a scintilla of evidence.” (citing Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir.
2013))).
The Response offers no evidence to support an alternative calculation of Postal’s net
winnings. However, Postal appears to contest liability by stating that he “believed the company
was totally above board and honest” and took “compliance courses” offered by ZeekRewards.
See Response. This Court has already issued a judgment establishing the liability of Net Winners,
including Postal. See 2016 Summary Judgment Order (Doc. No. 142); see also Affidavit of Matthew
E. Orso, Exhibit A to Memorandum in Support of Receiver’s Motion for Summary Judgment
Against Remaining Net Winners, (Doc. No. 259), (establishing that Postal is a member of the Net
Winner Class and the amount of his net winnings). Postal’s unsupported denial of liability is
insufficient to prevent summary judgment in the Receiver’s favor. Accordingly,
IT IS THEREFORE ORDERED that the Receiver’s Motion for Summary Judgment
against Remaining Defendants Disputing Receiver’s Net Winnings Calculations is hereby
GRANTED as to Defendant Postal in the amount of $40,000.
Signed: January 9, 2020
babar Mabe
Graham C. Mullen af
United States District Judge mt