McNamara v. Voltage Pay Inc. et al

Filing 84

ORDER Granting 83 Joint Motion to Extend Expert Deadlines. Signed by Magistrate Judge George Foley, Jr on 8/3/17. (Copies have been distributed pursuant to the NEF - MMM)

Case 2:15-cv-02177-JAD-GWF Document 83 Filed 08/02/17 Page 1 of 6

Daniel M. Benjamin (Pro Hac Vice)
[e-mail]
Sara J. O’Connell (Pro Hac Vice)
[e-mail]
Edward Chang (NV 11783)
[e-mail]
MCNAMARA SMITH LLP
655 West Broadway, Suite 1600
San Diego, California 92101
Tel.: [phone]
Fax: [phone]

DAVID STEINER & ASSOCIATES, PLC
David Paul Steiner, Esq. (CA SBN 64638)
Jonathan Charles Balfus, Esq. (CA
SBN 155532)
1801 Century Park East, Suite 1600
Los Angeles California 90067
Tel: [phone]
Fax: [phone]
[e-mail]
Attorneys for all Defendants (Admitted Pro
Hac Vice)

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Abran E. Vigil (NV 7548)
[e-mail]
BALLARD SPAHR LLP
100 North City Parkway, Suite 1750
Las Vegas, Nevada 89106-4617
Tel.: [phone]
Fax: [phone]

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Attorneys for Plaintiff

L. Edward Humphrey, Esq.
Nevada Bar 9066
HUMPHREY LAW PLLC
201 W. Liberty Street, Suite 204
Reno, Nevada 89501
Tel: [phone]
Fax: [phone]
[e-mail]
Nevada Counsel of Record

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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14 THOMAS W. MCNAMARA, as the CourtAppointed Receiver for Ideal Financial
15 Solutions, Inc.; Ascot Crossing, LLC; Chandon
Group, Inc.; Bracknell Shore, Ltd.; Fiscal
16 Fitness, LLC; Avanix, LLC; Debt Elimination
Systems, LLC; US Debt Relief, LLC; Money
17 Mastery, LLC; US Debt Assistance Corp.; IWB
Services (St. Kitts); Financial Fitness, LLC;
18 Debt to Wealth, LLC (St. Kitts); Debt to
Wealth, LLC (Nevada); Ideal Goodness, LLC;
19 Dollars West, LLC; Fluidity, LLC; Newport
Sails, LLC; Shaw Shank, LLC; Bunker Hillside,
20 LLC; Funding Guarantee, LLC; Newline Cash,
LLC; Wealth Fitness, LLC; Zeal Funding
21 Services, LLC; and related subsidiaries and
affiliates,
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Plaintiff,
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v.
24 VOLTAGE PAY INC., a Canadian corporation
doing business as voltagepay.com, Voltage
25 Payments, Inc., and Voltage Pay LLC; KEVIN
LEWIS; JETY HOLDINGS, a company of
26 unknown origins; DAVID SHEHKTER;
2170773 ONTARIO LIMITED, a Canadian
27 corporation; and ROES 1-10.
Defendants.
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Case No. 2:15-cv-02177-JAD-GWF
JOINT MOTION AND STIPULATION
TO EXTEND EXPERT DEADLINES
(Fifth Request)
Related Case:
Federal Trade Commission v. Ideal Financial
Solutions, Inc. et al., District of Nevada, Case
No. 2:13-cv-00143-JAD-GWF

Case 2:15-cv-02177-JAD-GWF Document 83 Filed 08/02/17 Page 2 of 6

Pursuant to Fed. R. Civ. P. 16(b)(4), LR IA 6-1, LR IA 6-2, and LR 26-4, Plaintiff,

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2 Thomas W. McNamara (the “Receiver” or “Plaintiff”), in his capacity as the Court-Appointed
3 Receiver for Ideal Financial Solutions, Inc.; Ascot Crossing, LLC; Chandon Group, Inc.;
4 Bracknell Shore, Ltd.; Fiscal Fitness, LLC; Avanix, LLC; Debt Elimination Systems, LLC; US
5 Debt Relief, LLC; Money Mastery, LLC; US Debt Assistance Corp.; IWB Services (St. Kitts);
6 Financial Fitness, LLC; Debt to Wealth, LLC (St. Kitts); Debt to Wealth, LLC (Nevada); Ideal
7 Goodness, LLC; Dollars West, LLC; Fluidity, LLC; Newport Sails, LLC; Shaw Shank, LLC;
8 Bunker Hillside, LLC; Funding Guarantee, LLC; Newline Cash, LLC; Wealth Fitness, LLC; Zeal
9 Funding Services, LLC; and any other entities that are part of these entities’ common enterprise,
10 including their subsidiaries and affiliates (collectively the “Receivership Entities”), and
11 Defendants Voltage Pay Inc., Jety Holdings, Kevin Lewis, David Shehkter and 2170773 Ontario
12 Limited (collectively, “Defendants” and, with Plaintiff, the “Parties”) jointly stipulate and move
13 to extend certain dates included in the Court’s Scheduling Order (ECF No. 72) regarding the
14 expert witnesses in this case. This is the fifth request for an extension of time. Good causes
15 exists to support this motion, as explained below:
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A.

Completed Discovery

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The following discovery has occurred:

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Plaintiff has served Defendants with the following items:

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1.

Initial Disclosures Pursuant to Fed. R. Civ. P. 26(a)(1);

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2.

First Set of Interrogatories;

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3.

First Set of Requests for Production of Documents;

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4.

First Set of Requests for Admissions; and

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5.

Second Set of Request for Production of Documents.

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In addition, Plaintiff has produced over 40,000 pages of documents and approximately 39

25 GB of electronic data that are not conducive to Bates-stamping (i.e., zipped files, Excel files,
26 Outlook PST files, etc.).
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Plaintiff deposed Defendants David Shehkter and Kevin Lewis, in their individual

28 capacities as well as a representative of Voltage Pay Inc., Jety Holdings, and 2170773 Ontario
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Case 2:15-cv-02177-JAD-GWF Document 83 Filed 08/02/17 Page 3 of 6

1 Limited.
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Plaintiff served a subpoena upon Turin Consulting, LLC, received a declaration from

3 Turin Consulting’s witness in response, and provided a copy of that declaration to the Plaintiff.
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Plaintiff served a subpoena for documents upon “NACHA – The Electronic Payments

5 Association” (“NACHA”) on May 8, 2017, and continues to receive a rolling production of
6 documents in response, with the most recent production being made on July 28, 2017.
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Plaintiff served a subpoena upon Payment Data Systems Inc. (“PDS”) in 2013 and then

8 again on February 17, 2017, received documents in response to the subpoena, and deposed PDS’s
9 witness on March 10, 2017. Post-deposition, PDS continues to produce documents in response
10 the Plaintiff’s subpoena, with their most recent production being made on July 31, 2017.
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Defendants have served Plaintiff with the following items:

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1.

Initial Disclosures Pursuant to Fed. R. Civ. P. 26(a)(1);

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2.

First Set of Interrogatories by Defendant Voltage Pay;

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3.

First Set of Requests for Production of Documents by Defendant Voltage Pay;

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4.

Second Set of Requests for Production of Documents by Defendant Voltage
Pay;

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5.

First Set of Interrogatories by Defendant Shehkter; and

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6.

First Set of Requests for Production of Documents by Defendant Shehkter.

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Defendants have deposed Plaintiff. In addition, Defendants have produced nearly 2,000

20 pages of documents in response to Plaintiff’s request for production of documents and
21 interrogatories. Defendants have produced supplemental responses to the Plaintiff’s first set of
22 requests for admission.
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Defendants served a subpoena on Fifth Third Bank to produce certain bank records,

24 received the records, and provided a copy of the records to Plaintiff.
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At least three meet and confer conferences have taken place between the parties, as well

26 two meet and confer conferences between the Plaintiff and PDS.
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The Plaintiff disclosed two expert witnesses, and the Defendants disclosed a rebuttal

28 expert witness.
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Case 2:15-cv-02177-JAD-GWF Document 83 Filed 08/02/17 Page 4 of 6

1 B.

Incomplete Discovery

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The Parties continue to receive productions from third parties. For example, PDS has

3 committed to produce further documents and a declaration in response to the Plaintiff’s subpoena.
4 NACHA may produce further documents as well.
5 C.

Reason for Extending Discovery Plan Deadlines

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The parties wish to extend the deadline to exchange expert reports in anticipation of the

7 experts’ need to consider information within forthcoming document productions by third parties
8 in response to the Plaintiff’s subpoenas. For example, PDS is a third-party payment processing
9 company which executed many of the merchant transactions at issue in this case. Both parties
10 believe that PDS is a significant source for financial and transaction records, but they disagree on
11 the exact nature of this issue. The Receiver contends that Voltage Pay has failed to produce
12 necessary accounting records, or to justify what accounting it has provided as compared to bank
13 records. Voltage Pay contends that it no longer has access to PDS accounting data that would
14 enable it to verify with certainty specific bank activity relating to reserve balances maintained on
15 behalf of the Receivership Entities. PDS’s records may provide the basis needed to facilitate a
16 settlement between the parties, or, in the alternative, the records may become an important basis
17 of factual information for the experts’ reports in this case. Any forthcoming NACHA document
18 productions may contain relevant factual information for the experts as well. Because extending
19 the deadline to exchange reports would necessitate extending the deadlines to exchange rebuttal
20 expert reports and to take expert depositions, new deadlines are proposed for those events as well.
21 D.

Proposed Schedule for Completing All Remaining Discovery

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The Parties seek to amend the Scheduling Order to extend each deadline by ten (10) days

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Current Date

Proposed New Date

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1.

Last date to exchange expert reports

August 7, 2017

August 17, 2017

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2.

Last date to exchange rebuttal
expert reports

August 21, 2017

August 31, 2017

3.

Last date to complete expert
discovery

Sept. 4, 2017

Sept. 15, 2017

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Case 2:15-cv-02177-JAD-GWF Document 83 Filed 08/02/17 Page 5 of 6

CONCLUSION

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For the above-stated reasons, the Parties respectfully request that this Court enter an Order

3 approving this Joint Stipulation to Extend Expert Deadlines using the new deadlines noted above.
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IT IS SO STIPULATED.

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Dated: August 2, 2017

Dated: August 2, 2017

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By: /s/ Sara J. O’Connell_____
Sara J. O’Connell
McNamara Smith LLP
655 West Broadway, Suite 1600
San Diego, CA 92101
Tel.: [phone]
Fax: [phone]
[e-mail]
Attorneys for Plaintiff

By: /s/ David P. Steiner
David P. Steiner, Esq.
David Steiner & Associates
1801 Century Park East, Suite 1600
Los Angeles, CA 90067
Tel.: [phone]
Fax: [phone]
[e-mail]
Attorneys for Defendants

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ORDER
IT IS SO ORDERED:

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15 DATED: 8/3/2017
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___________________
______
HON. GEORGE FOLEY, JR.
UNITED STATES MAGISTRATE JUDGE

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