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Miller v. Butler

United States District Court, D. New Jersey

February 14, 2014

ANDREW S. MILLER, Plaintiff,


ROBERT B. KUGLER, District Judge.

This matter comes before the Court on the motion of Andrew Miller ("Plaintiff") for partial summary judgment. For the reasons expressed herein, Plaintiff's motion will be GRANTED.


In 2005, Plaintiff, through his limited liability company, Miller Energy, entered into an agreement with Dennis Butler ("Defendant") to purchase and resell investments at a profit, forming Miller/Butler, LLC. Plaintiff's Statement of Undisputed Material Facts ("SUMF") ¶¶ 1, 4.[1] The LLC Agreement provided that each member would contribute "[o]ne half of the amounts necessary for each transaction" entered into under the Agreement. Id . ¶ 5. At the time, Plaintiff's business was located in Denver, Colorado, and Defendant's business was located in Marlton, New Jersey. Sec. Am. Compl. ¶¶ 1-2. Throughout their business relationship, Defendant identified investments to pursue, while Plaintiff's role what that of an investor. SUMF ¶¶ 8-9.

In November, 2006, Defendant contacted Plaintiff, and recommended that they purchase a portfolio of Citibank-originated loans together (the "Citi File"). Id . ¶¶ 6, 14. Defendant was to purchase the Citi File from Matterhorn Financial, a debt acquisition and resale entity that he had transacted several prior deals with, and which is no longer in existence. Id . ¶¶ 12-13. Defendant informed Plaintiff that the file could be "flipped" quickly and they could realize a large profit. Id . ¶ 15. By way of an email sent on November 14, 2006, Defendant solicited a wire transfer of $168, 658.54 from Plaintiff, which would represent half of the purchase price of $337, 317.08 for the Citi File. Id . ¶¶ 20-21. Plaintiff responded, requesting that Defendant "affirm that this money is also governed by our operating agreement." Id . ¶ 22. Plaintiff also requested that Defendant "confirm with me that your money is also wired. I would like your confirmation that you invested the same amount that I did." Id . ¶ 23. Defendant replied to the email, writing "Confirmation Below." Id . ¶ 24. In the text of Plaintiff's prior message, Defendant had inserted the word "Confirmed" immediately following Plaintiff's request for confirmation that the investment was governed by the LLC Agreement. Id . He also inserted the words "will do" after the sentence where Plaintiff requested confirmation that Defendant had invested the same amount as Plaintiff. Id.

Plaintiff wired the money, at Defendant's request, to a Bank of America account in Marlton, New Jersey. Id . ¶¶ 25-26. The Bank of America account was in the name of "Universal Payment Processing, " which was a sole proprietorship owned by Defendant, and used by him for both business and personal purposes. Id . ¶ 27. Defendant did all of his business through the Bank of America account. Id . ¶ 29.

On November 15, 2006, Defendant contacted Plaintiff by email, telling him that he had not yet competed the Citi File purchase, but that "I plan on finishing this deal today." Id . ¶ 31. Plaintiff requested that he be informed when the transaction was closed, and also asked for a copy of the contract and a closing statement. Id . ¶ 32. On November 22, 2006, Defendant faxed Plaintiff a copy of an executed Purchase Agreement, indicating a sale of the Citi File from Matterhorn Financial to Miller/Butler LLC. Id . ¶ 35. The document sent from Defendant to Plaintiff lists a closing date of November 13, 2006, and a purchase price of $337, 318.31. Id . ¶¶ 36-37. The Purchase Agreement indicated that if Miller/Butler LLC failed to "fund by November 18, 2006 or purchaser and Seller enter into a new purchase agreement for the same accounts prior to November 17, 2006, " the Agreement would be "null and void." Id . ¶ 38. No funds were wired out of Defendant's Bank of America account until November 28, 2006, when he transferred $128, 836.86 from that account to an escrow account designated by Matterhorn Financial. Id . ¶ 42. That transaction is described in Defendant's bank records as "For Purchase of Cit Y Financial." Id . Defendant testified that he never used other accounts for file purchases or wire transfers, and no other wire transfers were made out of the Bank of America account for purchase of the Citi File in the weeks before or after November 28, 2006. Id . ¶¶ 46-47.

Ultimately, the parties were unable to resell or collect on the majority of the Citi File. Id . ¶ 56. Plaintiff filed suit, asserting claims for breach of contract, breach of implied covenant of good faith and fair dealing, breach of fiduciary duty, accounting, fraudulent concealment by a fiduciary, equitable fraud, conversion, constructive trust, and unjust enrichment. Pursuant to an Opinion and Order issued on November 16, 2012, this Court denied a motion filed by Defendant to dismiss the complaint, rejecting arguments by Defendant that the statute of limitations barred this suit, that Plaintiff lacked standing, and that the Court lacked personal jurisdiction over Defendant. See ECF Doc. No. 20. Pursuant to an Opinion and Order dated January 15, 2014, this Court denied a motion filed by Defendant for summary judgment based upon the assertion that Plaintiff's claims were time-barred by application of Colorado's statute of limitations. See ECF Doc. No. 51.


The court should grant a motion for summary judgment when the moving party "shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). An issue is "material" to the dispute if it could alter the outcome, and a dispute of a material fact is "genuine" if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986); Matsushida Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986) ("Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'") (quoting First Nat'l Bank of Arizona v. Cities Serv. Co. , 391 U.S. 253, 289 (1968)). In deciding whether there is any genuine issue for trial, the court is not to weigh evidence or decide issues of fact. Anderson , 477 U.S. at 248. Because fact and credibility determinations are for the jury, the non-moving party's evidence is to be believed and ambiguities construed in its favor. Id . at 255; Matsushida , 475 U.S. at 587.

Although the movant bears the burden of demonstrating that there is no genuine issue of material fact, the non-movant likewise must present more than mere allegations or denials to successfully oppose summary judgment. Anderson , 477 U.S. at 256. The nonmoving party must at least present probative evidence from which the jury might return a verdict in his favor. Id . at 257. The movant is entitled to summary judgment where the non-moving 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 Corp. v. Catrett , 477 U.S. 317, 322 (1986).


Plaintiff moves for summary judgment on his claims for breach of contract, breach of fiduciary duty, and fraud. The Court finds that Plaintiff is entitled to summary judgment on his theory of breach of contract, and because these claims are asserted in ...

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