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Fiscus v. Combus Finance AG

November 20, 2007

MICHAEL FISCUS, PLAINTIFF,
v.
COMBUS FINANCE AG, A SWISS CORPORATION, D/B/A COMBUS GMBH, D/B/A THE COMBUS GROUP; ROLF SCHNELLMANN; MULTIFORUM AG, A SWISS CORPORATION; ROLF HAENNI A/K/A ROLF HANNI DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

[relates to Docket Item #62]

HON. JEROME B. SIMANDLE

OPINION

I. INTRODUCTION

In this action, Plaintiff Michael Fiscus filed suit against three Swiss nationals -- Rolf Schnellmann ("Schnellmann"), Flurin von Planta ("von Planta"), and Rolf Haenni ("Haenni") -- and three Swiss corporations -- ComBus Finance AG ("ComBus"), Global Research AG ("Global Research"), and Multiforum AG ("Multiforum") [Docket Item 1]. The plaintiff's complaint arises out of a transaction in which Mr. Fiscus allegedly tendered to defendants shares of stock in a company called eVentures Group, Inc. ("eVentures") but did not receive payment from the defendants. The complaint contains allegations of securities fraud, common law fraud, breach of contract, breach of fiduciary duty, and negligence. (Compl. ¶¶ 26-45.) In its July 22, 2004 Opinion and Order [Docket Items 13 and 14], the Court dismissed defendants von Planta and Global Research for lack of personal jurisdiction. The Court subsequently denied Schnellmann's motion to dismiss for lack of personal jurisdiction, finding that, unlike von Planta and Global Research, Schnellmann had purposefully availed himself of the privilege of conducting business in New Jersey [Docket Items 37 and 38].

Presently before the Court is Schnellmann's motion for summary judgment [Docket Item 62]. Plaintiff responded to Schnellmann's motion by moving for a continuance pursuant to Federal Rule of Civil Procedure 56(f) [Docket Item 68]. On August 10, 2007, the Court denied Plaintiff's motion for a continuance, noting that Plaintiff had been afforded ample discovery time and had failed to present any explanation to justify his request for additional time, but gave Plaintiff twenty additional days to submit evidence and arguments in opposition to Schnellmann's motion. [Docket Items 73 and 74].

To this date, Plaintiff has not submitted any evidence or additional arguments in opposition to Schnellmann's summary judgment motion, and in its September 17, 2007 letter, the Court informed the litigants that it would consider Schnellmann's motion unopposed and address it on the merits. For the following reasons, the Court will dismiss Plaintiff's claims against Schnellmann.

II. BACKGROUND

A. Facts

In 1999, Plaintiff was in possession of more than 2,000,000 shares of stock in eVentures, a company at which he had at certain times served as an officer. (Compl. ¶¶ 1, 11.) Because the stock was not registered under United States securities laws, Plaintiff's ability to transfer the shares was subject to various restrictions imposed by the securities laws. (Id. at ¶ 11.) When Plaintiff sought to sell some of his shares in eVentures and began looking for a buyer who was willing to purchase the stock subject to these restrictions, Peter Schnellmann, who performed accounting work for eVentures, informed Plaintiff that his brother, Rolf Schnellmann, might be interested in purchasing the stock. (Schnellmann's Statement of Material Facts ¶ 1.) Fiscus and Rolf Schnellmann met once in New York City to discuss the potential sale of Fiscus' stock. (Id. at ¶ 2.)

Between late 1999 and May 2002, Plaintiff and the defendants engaged in a series of negotiations concerning the sale of the stock. (Compl. ¶ 12.) At first, it was Plaintiff's impression that Multiforum and Haenni, who Plaintiff believes was an officer or principal at Multiforum, would purchase the eVentures stock. (Id. at ¶¶ 7, 13.) For reasons that are not entirely clear in the record, Plaintiff claims that in March 2000, he was informed by Schnellmann, von Planta, and ComBus that there were "problems with Haenni," and that Multiforum would not purchase Plaintiff's shares.*fn1 (Id. at ¶ 14.) Instead, the parties determined that Global Research would act as the escrow agent for the sale and would purchase the shares from Fiscus for investment. (Id. at ¶ 16; Schnellmann's Statement of Material Facts ¶ 4.) Schnellmann's role in the Fiscus-Global Research transaction was apparently that of acting as a "sales representative." (Def.'s Br. Ex. F at 25.)

According to Plaintiff, after these lengthy negotiations, he entered into a written agreement (the "Letter Agreement") with Global Research under which Global Research would purchase from Plaintiff 100,000 shares of eVentures stock for $10 per share, for a total sale price of $1,000,000.00. (Compl. ¶ 19.) The Letter Agreement, which was signed by Fiscus and by von Planta on behalf of Global Research, contains a clause providing that the Letter Agreement "represents the entire agreement between the parties with respect to the transaction described herein." (Def.'s Br. Ex. L.) The Letter Agreement also provides that it is to be "governed by and construed in accordance with the laws of the State of Delaware." (Id.) The agreement is dated May 17, 2000, and was signed by von Planta on June 9, 2000, and by Fiscus on June 12, 2000. (Id.) According to Plaintiff, the Letter Agreement is the "only one contract . . . that matters" to the stock transfer transaction around which this case centers. (Def.'s Br. Ex. K at 29.)

Schnellmann, by contrast, contends that an additional contract was signed by the parties in relation to the stock transfer transaction. According to Schnellmann, on May 23, 2000, Plaintiff's then-attorney, Stephan Dennis, Esq., sent by facsimile to both Fiscus and Schnellmann an escrow agreement (the "Escrow Agreement") pertaining to the stock transfer transaction. (Schnellmann's Statement of Material Facts ¶ 5.) The Escrow Agreement identifies Global Research as the escrow agent for the transaction and identifies as the "Sales Representative" a company called Makro Options Trading AG ("Makro"). (Def.'s Br. Ex. G.) Schnellmann is listed as Makro's representative in the agreement. (Id.) The Escrow Agreement contains a forum selection clause providing that the agreement "is subject to Swiss Law" and that the "[e]xclusive place of jurisdiction for both Parties is Zürich." (Id.) According to Schnellmann, the copy of the Escrow Agreement sent by facsimile by Mr. Dennis to Schnellmann and Fiscus on May 23 contains Fiscus' signature.*fn2 (Schnellmann's Statement of Material Facts ¶ 8.) Plaintiff contends that he never signed the Escrow Agreement and that his signature on the agreement is a forgery.*fn3 (Def.'s Br. Ex. K at 72-73.) Fiscus makes this claim notwithstanding that his own attorney had sent the Escrow Agreement to Schnellmann containing what appears to be Fiscus' own signature.

According to Plaintiff, after the Letter Agreement was signed, he tendered to Defendants 100,000 shares of eVentures stock in compliance with the parties' agreement, but has not received payment for the shares. (Compl. ΒΆΒΆ 21, 23.) Instead, Plaintiff alleges that between July 2000 and June 15, 2002, "defendants (and particularly defendant Von Planta) sent and made a series of 'lulling' communications by fax, email and telephone" reassuring Plaintiff that they would pay Plaintiff in the ...


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