Federal Trade Commission v. Revmountain LLC et al

RESPONSE to 66 Motion to Dismiss

D. Nev.September 26, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Byron Z. Moldo bmoldo cr,ecjlaw.com a i ornia Bar 0 52 Admitted Pro Hac Vice ERVIN COHEN & JESSUP LLP 9401 Wilshire Boulevard, Ninth Floor Beverly Hills, California 90212-2974 Telephone (310) 273-6333 Facsimile (310) 859-2325 Bart K. Larsen blarsen cr,klnevada.com Neva a a 53 KOLESAR & LEATHAM 400 S. Rampart 9145 vard, Suite 400 Las Vegas, NV Telephone 702) 362-7800 Facsimile ( 02) 362-9472 Attorneys for Joshua Teeple, Permanent Receiver UNITED STATES DISTRICT COURT DISTRICT OF NEVADA, SOUTHERN DIVISION ~ FEDERAL TRADE COMMISSION, , Plaintiff, v. REVMOLJNTAIN, LLC, a Nevada 'i limited liability company, et al. Defendants. Case No. 17-CV-02000-APG-GWF RESPONSE OF JOSHUA TEEPEE, PERMANENT RECEIVER, TO DEFENDANT REVGUARD, LLC'S, DEFENDANT REVLIVE! LLC'S AND DEFENDANT ROADRUNNER BC2, LLC' S COMBINED MOTION TO DISMISS __ The Hon. Andrew P. Gordon Joshua Teeple, Permanent Receiver ("Receiver"), herewith submits his response to the Motion to Dismiss ("Motion") filed by Defendants RevGuard, LLC, ~ ~ RevLive!, LLC, and Roadrunner B2C, LLC ("RevEntities"), and states as follows: 1. Joshua Teeple is the duly appointed, qualified and acting Permanent ~ ~ Receiver pursuant to this Court's September 1, 2017 Preliminary Injunction with 16177.1:4151980.1 Case 2:17-cv-02000-APG-GWF Document 84 Filed 09/26/17 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Asset Freeze, Appointment of Receiver, and Other Equitable Relief as to Defendants Blair McNea, Jennifer Johnson, and Entity Defendants ("Order"). 2. On September 8, 2017, the RevEntities filed the Motion. 3. Prior to the Receiver's appointment, one or more of the RevEntities ~ conducted some of their business operations at 6260 Lookout Road, Boulder, ~ Colorado ("Boulder Premises"). 4. Following his appointment the Receiver assumed possession and control of the Boulder Premises, and remains in possession and control of the Boulder Premises. 5. The Receiver discovered that RevGuard, LLC ("RevGuard") previously executed a written lease agreement, dated June 22, 2007, and amendments thereto, with a term that expired December 31, 2018 ("Lease"). At the present time the monthly rent of RevGuard pursuant to the Lease is $12,829.90. 6. The Boulder Premises contain furniture, equipment, computers, and other items of personal property ("Personal Property") that possesses value that can be sold for the benefit of the creditors of the receivership estate. 7. At the present time none of the RevEntities are operating at the Boulder ~ Premises. Therefore, there is no further need to occupy the Boulder Premises, and the Receiver concluded that it was in the best interests of the receivership estate to immediately vacate the Boulder Premises, and reject the Lease. 8. An offer to purchase the Personal Property from the Receiver was_ _ submitted by Hyde Engineering +Consulting ("Hyde"), a current tenant at the Boulder Premises. In addition, Hyde proposed to acquire possession of space on the first floor of the Boulder Premises that RevGuard currently occupies pursuant to the Lease. 9. The Receiver notified the landlord of the Boulder Premises that, subject ~ to the approval of this Court, he intended to sell the Personal Property to Hyde, abandon the Boulder Premises, and reject the Lease. The Receiver's goal was to 16177.1:4151980.1 2 Case 2:17-cv-02000-APG-GWF Document 84 Filed 09/26/17 Page 2 of 4 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vacate the Boulder Premises by no later than September 30, 2017. 10. In order to accomplish the foregoing transaction as quickly as possible, on September 20, 2017, the Receiver's counsel prepared and circulated to all counsel a proposed stipulation. Counsel for the RevEntities responded and informed the Receiver that due to the pending Motion, his clients objected to the proposed stipulation. 1 1. While the Receiver is not taking a position in response to the Motion, until this Court issues a ruling, administrative expenses associated with occupancy of the Boulder Premises will continue to be incurred including but not limited to rent. Therefore, the Receiver respectfully requests that this Court expedite its consideration of the Motion. DATED: September 26, 2017 Respectfully submitted, ERVIN COHEN & JESSUP LLP 16177.1:4151980.1 By: /s/ Byron Z. Moldo BYRON Z. MOLDO Attorneys for. Joshua Teeple, Permanent Receiver 3 Case 2:17-cv-02000-APG-GWF Document 84 Filed 09/26/17 Page 3 of 4 1 2 3 4 5 6 7 g 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 9401 Wilshire Boulevard, Ninth Floor, Beverly Hills, CA 90212-2974. On September 26, 2017, I served true copies of the following documents) described as RESPONSE OF JOSHUA TEEPEE, PERMANENT RECEIVER, TO DEFENDANT REVGUARD, LLC'S, DEFENDANT REVLIVE! LLC'S AND DEFENDANT ROADRUNNER BC2, LLC'S COMBINED MOTION TO DISMISS on the interested parties in this action as follows: Blaine T Welsh Blaine.Welsh@usdoj.gov, CaseView.ECF@usdoj.gov, eunice.jones@usdoj.gov, sue.knightausdoj.gov Eric W. Swanis swanise@gtlaw.com, heilichj@gtlaw.com, jacksonsa@gtlaw.com, lvlitdock@gtlaw.com Ronald D Green, Jr rdg@randazza.com, ecf@randazzacom, trey-rothell-2425@ecf.pacerpro.com Eric D. Done ehone@dickinsonwright.com, LV_LitDocket@dickinsonwright.com, bdonaldson@dickinsonwright.com, lstewart@dickinsonwright.com Peter Alan Davidson pdavidson@ecjlaw.com, Imacdonald@ecjlaw.com Byron Z. Moldo bmoldo@ecjlaw.com Bart K Larsen blarsen@klnevada.com, jierien@klnevada.com, mbarnes@klnevada.com, usdistrict@klnevada.com Gabriel A. Blumberg gblumberg@dickinson-wright.com, LV_LitDocket@dickinsonwright.com, bdonaldson@dickinsonwright.com, lstewart@dickinson-wright.com Sarah Waldrop swaldrop@ftagov, rkiml@ftc.gov Rachel Hirsch rhirsch@ifrahlaw.com, docketing@ifrahlaw.com Richard B Newman rnewman@hinchnewman.com Michelle Schaefer mschaefer@ftc.gov Giovanni Michael Ruscitti gmr@bhgrlaw.com, djm@bhgrlaw.com Claude Wild, III cwild@claudewildlaw.com BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the documents) with the Clerk of the Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Participants in the case who are not registered CM/ECF users will be served by mail or by other means permitted by the court rules. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on September 26, 2017, at Beverly Hills, California. /s/ Lore Pekrul Lore Pekrul 16177.1:3701910.1 Case 2:17-cv-02000-APG-GWF Document 84 Filed 09/26/17 Page 4 of 4