Federal Trade Commission v. Consumer Defense LLC et al
Filing
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ORDER Denying 154 Motion to Quash Subpoenas and 159 Motion to Compel Production of Records from the Receiver. Signed by Magistrate Judge Peggy A. Leen on 2/22/2019. (Copies have been distributed pursuant to the NEF - MR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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FEDERAL TRADE COMMISSION,
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Plaintiff,
ORDER
v.
(Mot Quash Subpoenas – ECF No. 154)
(Mot Compel – ECF No. 159)
CONSUMER DEFENSE LLC, et al.,
Defendants.
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Case No. 2:18-cv-0030-JCM-PAL
Before the court is defendant Jonathan Hanley’s Motion to Quash Subpoenas
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(ECF No. 154).
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Production of Records from the Receiver (ECF No. 159). The court has considered the motions,
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plaintiff’s Opposition to the Motion to Quash Subpoenas (ECF Nos. 163), the Receiver’s
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Opposition to the Motion to Compel (ECF No. 166), and Hanley’s Reply to the Receiver’s
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Opposition (ECF No. 173).
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Also before the court is defendant Jonathan Hanley’s Motion to Compel
BACKGROUND
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This is an action filed by plaintiff, Federal Trade Commission (“FTC”) under Section 13(b)
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of the Federal Trade Commission Act and the 2009 Omnibus Appropriations Act, as clarified and
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amended. On January 10, 2018, the district judge entered an ex parte temporary restraining order
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(“TRO”) at the request of the FTC freezing the defendants’ assets, appointing a receiver, and
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granting other equitable relief against the defendants.
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On February 15, 2018, the district judge held a hearing on an order to show cause why a
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preliminary injunction should not be issued against the defendants. Following the hearing, he
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entered a preliminary injunction (ECF No. 55). The preliminary injunction made findings of fact
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and prohibited the defendants, their officers, agents, employees and attorneys, and all other persons
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in active concert or in participation with them from engaging in specified business activities. The
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preliminary injunction also prohibited the defendants, their officers, agents, employees and
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attorneys, and other persons in active concert or in participation with them from collection of
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advanced fees, required certain specified disclosures, and the release of customer information. The
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preliminary injunction imposed an asset freeze, specified the duties of asset holders and other third
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parties, required certain financial disclosures, foreign asset repatriation, and that the defendants
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not interfere with repatriation. The preliminary injunction also permitted the FTC to obtain
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consumer credit reports and directed the defendants, their officers, agents, employees and attorney
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and all other persons in active concert or participation with them to preserve records and report
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new business activity. Additionally, the preliminary injunction continued the receivership and
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outlined the duties and authority of the receiver, ordered the transfer of receivership property to
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the receiver and required the defendants to immediately provide the receiver with information, and
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cooperate with the receiver. Finally, the preliminary injunction imposed a stay prohibiting and
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enjoining the defendants and all others acting for or on behalf of those seeking to establish or
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enforce any claim right or interest by or on behalf of the defendants from taking action that would
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interfere with the exclusive jurisdiction of this Court over the Assets or Documents of the
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Receivership Entities.
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On August 2, 2018, the court approved the parties’ stipulated discovery plan and
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scheduling order which requested special scheduling review. The discovery plan and scheduling
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order (ECF No. 121) established a March 15, 2019 discovery cutoff and an April 15, 2019 deadline
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to file dispositive motions. On December 26, 2018, the court granted the parties’ Stipulation
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(ECF No. 170) extending the discovery cutoff until June 14, 2019, with dispositive motions due
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July 15, 2019. See Scheduling Order (ECF No. 171).
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Pro se defendant Jonathan Haley seeks to quash two non-party subpoenas the FTC served
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on The Los Angeles Rams and the University of Utah arguing the FTC is engaging in a fishing
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expedition, the documents sought are not relevant and the discovery requested creates an undue
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burden. The FTC opposes the motion arguing neither of the non-parties has claimed compliance
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with the subpoenas would create an undue burden, and that the subpoenas were narrowly tailored.
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The FTC served these subpoenas to identify the purchaser of football tickets and source of payment
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of those tickets based on information provided by the Receiver. Haley’s purchase and use of the
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tickets is relevant to whether he has violated the TRO and PI, and undermine claims made in his
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motion for release of funds for living and legal expenses. The FTC’s opposition outlines other
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reasons why discovery sought be these subpoenas is relevant. The RAMs produced four pages of
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documents responsive to the subpoena served on it and the University of Utah produced nine pages.
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The FTC also maintains the motion to quash was filed in the wrong court and that Hanley has no
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standing to seek to quash.
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Hanley’s Motion to Compel seeks an order compelling the court appointed Receiver,
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Thomas McNamara (“McNamara”) to produce email accounts over which the Receiver has had
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full administrative control based on the Receiver’s report of January 24, 2018. Hanley says he has
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requested production of and access to these email accounts which are crucial to his affirmative
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defenses “specifically, that dilatory actions of third parties directly obstructed corporate
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Defendants ability to effectively do their job.” Additionally, the emails will show that several of
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the FTC declarants perjured themselves and mislead the court. He believes there is a strong
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possibility that this perjury occurred at the direction of, or assistance of FTC investigators.
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The Receiver opposes the motion arguing that he had a productive relationship with the
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Hanley’s counsel, but since counsel was granted leave to withdraw “that has not been the case”
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with Mr. Hanley. Counsel for the Receiver claims Hanley has been demanding, belligerent and
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has threatened to sue FTC declarants and third parties, issued sweeping discovery across the
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country and promised to make things “complex very quickly.” The Rules Hanley cites in his
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motion only apply to parties and the Receiver is not a party and therefore not subject to the Rules
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cited in support of Hanley’s motion.
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Additionally, the Receiver represents that on December 8, 2018 he produced copies of the
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limited Receivership Entities’ emails in his possession requesting that Hanley withdraw his motion
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to compel. Counsel for the Receiver also explained to Hanley that he had previously provided
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Hanley with copies of every email account that had been copied, and that he should be able to get
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a copy of the mailboxes from the FTC. Counsel for the FTC therefore requests that the motion be
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denied and sanctions in the form of attorneys’ fees and costs incurred be assessed to deter future
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misconduct that wastes judicial resources and the assets of the Receivership Estate. The opposition
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is supported by the declaration of counsel and multiple exhibits.
DISCUSSION
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Having reviewed the moving and responsive papers the court finds both motions are
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meritless. The subpoenas issued to the Rams and the University of Utah were issued to out-of-
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state non-parties who have not objected to producing the requested documents or claimed that
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compliance with the subpoenas would create an undue burden. The FTC has articulated multiple
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persuasive reasons why the discovery sought is relevant.
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Hanley’s motion to compel does not attach a copy of the discovery request showing it was
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served on either a party or non-party for the emails he seeks in discovery either under a Request
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for Production served under Fed. R. Civ. P. or a subpoena served under Fed. R. Civ. P. 45. Hanley
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has also not complied with the requirements of Local Rule 26-7 (b) &(c). Moreover, the
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declaration of counsel for the Receiver indicates that the emails in the Receiver’s possession which
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were obtained from the FTC were either produced or available through the FTC. The Receiver
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asks for attorneys’ fees to deter Hanley from wasting judicial resources and dissipating
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receivership assets by filing unnecessary unfounded motions.
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The court finds that both motions are indeed a waste of judicial resources and an
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unnecessary dissipation of the assets of the receivership estate. Hanley is warned that sanctions
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will be imposed for any future abusive litigation misconduct requiring the court, the parties, or
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non-parties to expend unnecessary resources on motion practice. Hanley may obtain discovery
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authorized by the Federal Rules of Civil Procedure. He may not, however, serve discovery
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requests on parties or non-parties “for any improper purpose, such as to harass, cause unnecessary
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delay, or needlessly increase the cost of litigation” nor may he serve discovery that is
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“unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior
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discovery in the case, the amount in controversy, and the importance of the issues at stake in the
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action.” Fed. R. Civ. P 26(g)(B).
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IT IS ORDERED that:
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1. Hanley’s Motion to Quash Subpoenas (ECF No. 154) is DENIED.
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2. Hanley’s Motion to Compel Production of Records from the Receiver (ECF No. 159)
is DENIED.
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3. Hanley is warned that filing of frivolous motions, motions which do not comply
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with the requirements of the Federal Rules of Civil Procedure and the Local Rules
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of Practice, and/or motions filed for any improper purpose is abusive litigation
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conduct which may result in the imposition of monetary and other sanctions,
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including reasonable costs and attorneys’ fees caused by the violation, up to and
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including a recommendation to the district judge of case dispositive sanctions.
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DATED this 22nd day of February 2019.
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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE
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