United States District Court, W.D. 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,
TODD DISNER, in his individual capacity and in his capacity as trustee for Kestrel Spendthrift Trust; TRUDY GILMOND; TRUDY GILMOND, LLC; 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.
C. Mullen, United States District Judge
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
Michael J. Giello filed a pro se response in
opposition to the Receiver's motion (Doc. No. 272), and
the Receiver filed a Reply (Doc. No. 292). This Order
addresses the Receiver's motion as to Giello only.
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. These judgments
were finalized in the Final Judgment Order. (Doc. No. 148).
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 Giello
disputed the Receiver's calculations and the Receiver
responded by reducing his calculated net winnings and
corresponding pre-judgment interest to a total of $26,
859.02. Defendant Giello did not seek referral to the special
master appointed by the Court.
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.
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))).
Giello's response makes two claims, neither of which
demonstrate the presence of any dispute as to any material
fact. First, the Response disputes the Receiver's
calculation as to Giello's net winnings by claiming that
Giello paid in money to set up accounts for his parents and
his wife. These claims are unsupported by any evidence, and
in any case the Court has already rejected these types of
arguments. See Process Order at ¶ 5 (“In
calculating any alternate amount of Net Winnings, a Net
Winner Class member may only include money paid into
RVG/ZeekRewards and received from ZeekRewards for the
particular class member's usernames… No.
“expenses” or “setoffs” are permitted
to be deducted from this amount, including…paying for
the accounts of others”).
also claims that, while he “did receive some commission
payments, ” he “honestly [does] not believe that
the collective amount of commission payments that [he]
received came anywhere close” to the $35, 020.74
calculation offered by the Receiver. See Doc. No.
272 at p. 1. Again, the Response offers no evidence to rebut
the Receiver's calculation; even if the Response can be
construed as being a formal declaration, a singular uncertain
statement cannot suffice as substantive evidence disputing
the Receiver's calculation. 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
Giello in the amount of $26, 859.02.
 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 ...