The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER DENYING MOTION FOR SUMMARY JUDGMENT [Dkt. No. 17]
Presently before the court is a Motion for Summary Judgment brought by Plaintiff James. H. Donell, Receiver for NewPoint Financial Services Inc. ("Donell" or "the Receiver"). Having considered the parties' submissions*fn1 and heard oral argument, the court adopts the following order.
The following facts are not in dispute. John Farahi was the co-owner, president, secretary, and treasurer of NewPoint Financial Services, Inc. ("NewPoint"). (Decl. Davidson, Exh. D, Plea Agreement for Defendant John Farahi ("Farahi Plea Agreement"), at 28.) NewPoint, controlled by Farahi, offered and sold millions of dollars of debentures to numerous investors. (Id. at 29.)
Farahi generally used investor funds to make interest and principal repayments to previous investors, to pay personal expenses, and to finance higher-risk futures options. (Id. at 30.) In other words, Farahi was engaged in a Ponzi scheme, which is "any sort of fraudulent arrangement that uses later acquired funds or products to pay off previous investors." (Decl. Grobstein ¶ 13; In re Agricultural Research Technology Group, Inc., 916 F.2d 528, 531 (9th Cir. 1990).) As a result of the Ponzi scheme and fraud, NewPoint Entity investors lost millions of dollars.
In his plea agreement, Farahi admitted that the scheme began "on a date unknown but at least as early as in or about November 2005." (Farahi Plea Agreement at 28.) In the fall of 2008, Farahi suffered approximately $30 million in losses resulting from options trading. (Id. at 30.) Farahi continued to use investors funds to pay back prior investors, among other things. (Id.)
Defendant Tahmineh Rashidi Ghadrdan ("Ghadrdan") invested a total of one million dollars between 2002 and 2003. Between 2003 and 2005, she received payments totaling $1,134,481.10, with the last payment being made on January 24, 2005. (Exh. 4.) On November 11, 2008, she invested $200,000 with Parsi Investments LLC, one of the entities through which Farahi conducted the fraud. (Reply Exh. 3.) Between 2008 and 2009, Ghadrdan received payments totaling $206,468.15, including a payment of $198,856.39 on June 4, 2009. Additionally, Defendant's company Fruit Atlantic, LLC ("Fruit"), also a Defendant, received payments totaling $4,590.31, although it had made no investment. (Decl. Grobstein ¶ 16., Exh. 2.)
This court appointed Donell as Receiver of NewPoint and its affiliates and subsidiaries on January 8, 2010.
Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All reasonable inferences from the evidence must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986).
If the moving party does not bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 323.
Once the moving party meets its burden, the burden shifts to the nonmoving party opposing the motion, who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. Summary judgment is warranted if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. A genuine issue exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and material facts are those "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. There is no genuine issue of fact "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
It is not the court's task "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996). Counsel has an obligation to lay out their support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). The court "need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not ...