DEFENSES

EIGHTH JUDICIAL DISTRICT COURT

IN AND FOR CLARK COUNTY, STATE OF NEVADA

CHARLIE O. EZUMA                                     §

Plaintiff,                                                  §

§

v.                                                              §     Case No. A-21-832654-C Dept No. 29

§

JASON BERENSON                                         §

Defendant.                                              §

NOTICE OF MOTION TO STRIKE DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES

You are notified that on ____________________ (date), at __________ (time), or as soon thereafter as Plaintiff can be heard, in Courtroom ___ of the Eighth Judicial District Court for Clark County at ______________________________________________________ (address).

Plaintiff will bring on for hearing this Motion to Strike Defendant’s Answer and Affirmative Defenses for the reasons stated in the attached Affidavit and Motion.

Dated:

Respectfully Submitted,

______________________________

Charlie O. Ezuma

9745 Grand Teton Drive, 2104

Las Vegas, Nevada 89166

Insert Phone Number

Insert Email

EIGHTH JUDICIAL DISTRICT COURT

IN AND FOR CLARK COUNTY, STATE OF NEVADA

CHARLIE O. EZUMA                                     §

Plaintiff,                                                  §

§

v.                                                              §     Case No. A-21-832654-C Dept No. 29

§

JASON BERENSON                                         §

Defendant.                                              §

MEMORANDUM IN SUPPORT OF MOTION TO STRIKE DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES

NOW COMES Charlie O. Ezuma, Plaintiff, and brings this Motion to Strike Defendant’s Answer and Affirmative Defenses against Jason Berenson, Defendant, and hereby avers as follows:

STATEMENT OF FACTS

  1. During the first week of April 2021, Plaintiff, the owner of XTS Cloud LLC (“XTS”), discovered that Defendant had been, among other things, embezzling money from the XTS Bank of America business checking account. Defendant is not and has never been an authorized signer on the account.
  2. Defendant has provided no evidence that he is an owner of XTS. His recent February 20, 2021 bankruptcy filings show that he did not disclose any ownership interest in XTS or any other business entity in his financial disclosure before the San Francisco bankruptcy court.
  3. On April 9, 2021, Plaintiff filed a civil complaint against Defendant for breach of fiduciary duty relating to Defendant’s embezzlement, in addition to his theft of XTS company assets, which were moved without authorization to an uninsured, non-commercially zoned, storage unit at Defendant’s personal residence.
  4. On around April 14, 2021, Plaintiff filed a criminal complaint against Defendant with Las Vegas Metropolitan Police Department (“LVMPD”) relating to the embezzlement of funds from the XTS Bank of America business checking account. Plaintiff provided LVMPD with copies of checks that Defendant had made out to himself, signed, and cashed into his personal checking account (Exhibit A).
  5. Immediately after being served with the civil complaint, Defendant continued to make unauthorized charges on the XTS Bank of America business credit card (evidence), which he had stolen from the XTS office, located at 5550 Painted Mirage Rd, Las Vegas, 89149. Evidence of those unauthorized transactions were provided to LVMPD on April 27, 2021 at 12.53pm via email.
  6. Defendant is a full-time employee and lead network administrator of United Layer LLC (“UL”), a web hosting company based out of San Francisco.
  7. In November of 2020 Defendant, acting as an agent of UL, offered to sell Plaintiff web hosting services in UL’s San Francisco data center. Plaintiff agreed, and paid Defendant $1,800 to host a virtual machine in UL’s data center, in addition to managing Plaintiff’s Microsoft 365 account for his other business. The virtual machine was to be used to store Plaintiff’s sensitive 2017 – 2018 client IRS files.
  8. Defendant insisted that Plaintiff pay with cash, since Defendant was going through a chapter 7 bankruptcy proceeding, and he did not want to complicate matters for his employer UL.
  9. Plaintiff paid Defendant $1,800 cash, and a contractual relationship between Plaintiff and UL was formed. The contractual relationship was formed between Plaintiff and UL, and not Defendant, as Defendant was merely an employee acting on behalf of UL. 
  10. Plaintiff’s virtual machine was hosted at UL’s San Francisco data center, located at 200 Paul Ave Suite 106, San Francisco, CA 94124.
  11. The virtual machine had an IP address of: 207.7.131.85
  12. The IP address 207.7.131.85 is registered to United Layer LLC.
  13. Defendant and UL maintained Plaintiff’s virtual machine for several months.
  14. On April 15, 2021, Defendant or UL revoked access to Plaintiff’s virtual machine without explanation or notice, which contained sensitive client IRS files. This was in violation of the service agreement between Plaintiff and UL.
  15. In a telephone call on April 15, 2021, Defendant told Plaintiff that if he did not drop the lawsuit against Defendant, then Defendant would not give Plaintiff back his IRS client files, the virtual machine, or domain names belonging to Plaintiff’s accounting practice. 
  16. In a telephone call on April 15th, 2021, Defendant informed Plaintiff that if Plaintiff did not drop the criminal complaint against Defendant, then Defendant would sell Plaintiff’s clients’ social security numbers, bank account numbers, and IRS tax files on the internet.
  17. On April 19, 2021 at 1.03pm PST, Plaintiff sent an email to Defendant’s attorney’s, requesting that Defendant return Plaintiff’s IRS client files. The request was ignored by Defendant and his attorneys.
  18. On April 30, 2021 at 9.42am PST, Plaintiff sent an email to UL kindly requesting that the stolen virtual machine, IRS client files, and other stolen IT assets be returned (Evidence). This is the only communication between Plaintiff and UL subsequent to the filing of the original Complaint.
  19. On April 30, 2021 at 3.10pm PST, Plaintiff received an email from Defendant’s attorney, providing the administrative passwords to the stolen Microsoft Office 365 accounts that were being withheld by Defendant and UL. In the same email, Defendant’s attorney Kevin Hejmanowski stated that “The domains have not been transferred anywhere and Jason can transfer them to you if you would like”. This was in reference to Defendant and UL still being in possession of Plaintiff’s IT assets, and their desire to return said assets.
  20. In a second email, on April 30, 2021 at 3.11pm PST, Defendant’s attorney, Kevin Hejmanowski, stated that “Additionally, Jason is in the process of backing up the VM onto a USB drive and that will be mailed to you”. This was in reference to Defendant and UL still being in possession of Plaintiff’s virtual machine, and IRS client files, and their desire to return said assets.
  21. The domain names and virtual machine data that Mr. Defendant’s attorney stated would be mailed back to Plaintiff, was never returned. As of the date of this filing, Defendant and UL have still not returned Plaintiff’s IRS client files, virtual machine, and two domain names belonging to Plaintiff’s accounting practice. 
  22. On May 3, 2021 at 4.07pm, Plaintiff received an email from Defendant’s attorney, Leah Martin, stating that Defendant would return Plaintiff’s stolen IRS files, virtual machine, domains, and administrative passwords if Plaintiff agreed to drop the lawsuit and criminal complaint against Defendant (Exhibit).
  23. In the same email on May 3, 2021 at 4.07pm, Defendant’s attorney acknowledged that, in addition to being in possession of IT assets stolen from Plaintiff’s accounting practice, that Defendant is indeed in possession of assets that had been stolen from XTS (Exhibit).
  24. To date, neither Defendant, UL, or his attorney’s have provided any explanation for the continued withholding of Plaintiff’s IT assets, or the XTS assets, beyond using them as a tool for leverage in negotiating a settlement.
  25. Defendant has acknowledged that he is keeping XTS’s company assets in a residential storage facility at his personal residence. The assets are not covered by insurance since they are not being properly stored in a commercial facility. Defendant’s actions show a reckless disregard and demonstrate breach of fiduciary duty.
  26. On the evening of April 10, 2021, Defendant appeared at Plaintiff’s personal residence intoxicated and made threats against Plaintiff, stating that if Plaintiff did not drop the lawsuit, then he would ‘have serious problems’. Defendant waited outside Plaintiff’s door for over 15 minutes making threats and being generally belligerent and unruly. Defendant also claimed that he only took the XTS money and assets because he has over $50,000 in IRS tax debts that were not discharged in bankruptcy, and that if Plaintiff was his ‘real friend’ he would help him pay it off. This was witnessed by two of Plaintiff’s guests.
  27.  Since being served with the initial Complaint, Defendant has made multiple telephone calls to members of Plaintiff’s family, making threats of violence against Plaintiff, and demanding that Plaintiff withdraw his valid criminal and civil complaints.
  28. On April 12, 2021, two days after being served with Plaintiff’s Complaint, Defendant deleted evidence relating to this case, including all XTS emails, company files, and financial records (Exhibit). Defendant did this to conceal his illegal activities and to destroy evidence.
  29. This is not the first time that Defendant has perpetrated fraud against Plaintiff. On October 20, 2020, Defendant stated in a sworn affidavit, that on or around April 16, 2020, Defendant stole Plaintiff’s identity, including drivers license copy, and social security number, and used it to obtain a lease for equipment from Geneva Capital LLC, a leasing company located in Douglas County Minnesota. In the affidavit, Defendant admitted to forging Plaintiff’s signature in order to obtain approval for a commercial lease application (Exhibit).
  30. In the abovementioned case, Defendant was found guilty and ordered to pay an almost $20,000 civil judgement to Geneva Capital LLC (Exhibit) including replevin for the stolen machine that Defendant initially refused to return to Geneva Capital.
  31. The case against Defendant, which was initiated by Geneva Capital LLC, in 2020, is almost identical to this current case, whereby; Defendant has attempted to illegally withhold business assets that do not belong to him. There is a clear pattern of behavior here.
  32. After the Plaintiff in the aforementioned case, Geneva Capital LLC, discovered Defendant’s fraud, they dismissed their complaint against Plaintiff with prejudice and apologized from wrongfully brining suit against Plaintiff.
  33. Defendant has shown a systematic pattern of malicious behavior against Plaintiff, which includes fraud, identity theft, theft of personal assets, theft of business assets, threats, and intimidation.
  34. In Defendant’s Answer to Complaint (reference), he claims that he is indeed a part owner of XTS since he formed the LLC with Plaintiff in May of 2017. However, in the financial disclosure of Defendant’s recent chapter 7 bankruptcy proceedings during November 2020 – February 2021, (Exhibit), Defendant failed to disclose to the bankruptcy court that he had any financial interest in XTS or any other business interests. Defendant’s concealment of assets from the San Francisco bankruptcy court further demonstrates Defendant’s willingness to lie under oath, and to provide false and misleading statements to the court when it suits him.
  35. In prior court proceedings during 2020, Defendant claimed that he was a resident of Nevada. In Defendant’s answer to Plaintiff’s Complaint, Defendant once again claimed that he was a resident of Nevada. In Defendant’s recent February 20, 2021 chapter 7 bankruptcy filing, which took place in San Francisco, Defendant claimed he was a resident of California in order to take advantage of San Francisco’s higher income limits, so that he could more easily obtain a chapter 7 discharge. This again shows Defendant’s willingness to lie under oath and commit fraud when it suits him, in addition to venue shopping.
  36. In Defendant’s Answer to Plaintiff’s Complaint, Defendant denies using a stolen XTS check book to write and cash checks to himself. Plaintiff has shown through evidence (Exhibit) that Defendant did indeed write and cash checks to himself using a stolen XTS check book, and that both the civil and criminal complaints are warranted.
  37. Plaintiff has also shown that Defendant continued to make personal charges using the XTS business credit card after he was served with the initial Complaint.
  38. Any and all statements made by Plaintiff regarding Defendant, are accurate and based on admissible evidence.

LEGAL ARGUMENT

  • This Motion is brought before this Honorable Court pursuant to Rule 12(f) of the Nevada Justice Court Rules of Civil Procedure which states as follows: “Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
  • Plaintiff incorporates into this Motion the facts contained in the Affidavit attached to this Motion.
  • In his Answer, Defendant denies the facts and claims made by Plaintiff in the Original Complaint. The Answer is made in bad faith as it contains various falsities. Defendant denies the facts and the claims while Plaintiff has overwhelming evidence against him.
  • In his Answer, Defendant goes ahead and alleges that damages suffered by Plaintiff are as a result of Plaintiff’s actions. Plaintiff has evidence to prove that the damages suffered by Plaintiff are as a result of Defendant’s actions. On the other hand, Defendant has provided no proof to show that the damages suffered by Plaintiff are as a result of Plaintiff’s actions.
  • In his Answer, Defendant states that all acts he committed were taken to protect his assets. Defendant has not specified the actions he committed to protect his assets.
  • In pleadings filed before this Honorable Court, Defendant has committed perjury contrary to NRS 199.120 which describes perjury as lying under oath. Plaintiff has proof of perjury by Defendant.
  • In his Answer, Defendant relies upon the doctrine of unclean hands. Defendant ought to prove that there was egregious misconduct on the part of Plaintiff constituting unclean hands. Defendant ought to prove that misconduct on Plaintiff’s part caused him harm that warrants the dismissal of Plaintiff’s Original Complaint on the basis of unclean hands. Defendant has not proved any misconduct on Plaintiff’s part that would amount to unclean hands, warranting dismissal of Plaintiff’s Original Complaint.
  • Plaintiff reaffirms that all facts and claims made in his Original Complaint are true. Plaintiff has evidence to prove all facts and claims made in the Original Complaint. Defendant has not provided any evidence to refute any of Plaintiff’s claims.
  • Plaintiff has a contractual relationship with United Layer LLC. Plaintiff has proof of contractual relationship between him and United Layer LLC. As such he has a right to communicate with a party with whom Plaintiff has a contractual relationship with in regard to the terms agreed upon in the contract.
  • Plaintiff has never harassed or made any threats to Defendant. Defendant has not provided any proof of harassment or any threats made to him by Plaintiff.

REASONS WHEREFORE, Plaintiff respectfully requests this Honorable Court to grant this Motion to Strike Defendant’s Answer and Affirmative Defenses and issue an Order to that effect.

Dated:

Respectfully Submitted,

______________________________

Charlie O. Ezuma

9745 Grand Teton Drive, 2104

Las Vegas, Nevada 89166

Insert Phone Number

Insert Email

VERIFICATION

I, Charlie O. Ezuma, being duly sworn depose and say that I am the Plaintiff in the above entitled action, that I have read the foregoing Motion to Strike Defendant’s Answer and Affirmative Defenses and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.

_________________________________

(Sign in the presence of a Notary Public)

Sworn to and subscribed before me this _____ day of ____________________, 2021.

______________________________

Notary Public

________________________________________

(Printed name of Notary Public)

My Commission Expires: ____________________

CERTIFICATE OF SERVICE

            I hereby certify that a true and correct copy of the foregoing document was sent on the (Date) day of (Month) (Year) by regular U.S. mail, by facsimile, or certified mail, return receipt requested, to the following parties or attorneys of record:

            Leah Martin, Esq., Attorney at Law

            Nevada Bar No. 7982

            Kevin Hejmanowski, Esq.

            Nevada Bar No. 10612

            LEAH MARTIN LAW

            3100 W Sahara Ave. #202

            Las Vegas, Nevada 89102

            Telephone: (702) 420-2733

            Facsimile: (702) 330-3235

            lmartin@leahmartinlv.com

            khejmanowski@leahmartinlv.com

Dated:

Respectfully Submitted,

______________________________

Charlie O. Ezuma

9745 Grand Teton Drive, 2104

Las Vegas, Nevada 89166

Insert Phone Number

Insert Email

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