Below are a few paragraphs from this ORDER, it was merely a matter of time until it was denied, as it was specious from its beginning.
Defendants Gilmond, Trudy Gilmond, LLC, and Napier assert counterclaims for breach of contract and setoff; Defendant Miller asserts counterclaims for breach of contract, tortious interference, conversion, and setoff; and Defendants Aaron Andrews, Shara Andrews, Innovation Marketing LLC, Brockett, and Gates assert identical versions of counterclaims for breach of contract, tortious interference, money had and received, 42 U.S.C. § 1983, and unfair trade practices. The Receiver has moved to dismiss all counterclaims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim.
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Defendants Aaron Andrews, Shara Andrews, Innovation Marketing, Brockett, and Gates all assert identical counterclaims for tortious interference (with contract). Defendants allege that they each had a contract with NxPay, and that the Receiver somehow “interfered” with that contract by accepting the funds that NXPay turned over to the Receivership pursuant to this Court’s Order. (SEC Action, Doc. No. 146). The Receiver, however, cannot be liable for tortious interference simply by doing his job as Receiver as ordered and authorized by this Court.
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Defendants Gilmond, Gilmond LLC, Miller and Napier claim they are entitled to a setoff for (1) amounts they paid to RVG to purchase bids and participate in the Affiliate program; (2) the amount of the costs and expenses they incurred as a Zeek Affiliate; (3) the reasonable value of their time in performing or operating as a Zeek Affiliate; and (4) the amount of taxes they paid on income they received as a Zeek Affiliate.
This claim fails for several reasons. First, the Complaint in this matter is clear that the Receiver is seeking Defendants’ net winnings, which are by definition the amount they received from RVG less the amount they paid in to RVG. The dollar amount provided in the Complaint as to each named Defendant represents that Defendant’s net winnings, and so the Receiver has already set off the amount these Defendants paid in to RVG. There is nothing further to set off in this regard. Second, as to the Defendants’ purported costs and expenses and the reasonable value of their time for performing as a Zeek Affiliate, these requests for payment needed to be filed with the Receiver in the Claims Process, as discussed above. Since they were not, and the Bar Date has passed, these items may not be included in a setoff as a matter of law.
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IT IS THEREFORE ORDERED that the Receiver’s Consolidated Motion to Dismiss Defendants’ Counterclaims. (Doc. No. 59) is hereby GRANTED.