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Rubinsky v. Zayat

United States District Court, D. New Jersey

June 4, 2015

HOWARD RUBINSKY, Plaintiff,
v.
AHMED ZAYAT a/k/a EPHRAIM ZAYAT, Defendant.

OPINION

WILLIAM J. MARTINI, District Judge.

Plaintiff Howard Rubinsky brings this breach of contract and unjust enrichment action against Defendant Ahmed Zayat. Plaintiff alleges that Defendant owes him $1.65 million under a personal services contract. Specifically, Plaintiff claims that Defendant incurred a gambling loss on Plaintiff's line of credit at Tradewinds, a Costa Rica-based sports betting site, and that Defendant never repaid Plaintiff for that debt. Defendant moves for summary judgment under Federal Rule of Civil Procedure 56, arguing that Plaintiff's claims are time-barred. There was no oral argument. Fed.R.Civ.P. 78(b). For the below reasons, Defendant's motion is GRANTED and judgment is entered on Defendant's behalf.

I. BACKGROUND

The following facts are undisputed. Plaintiff Howard Rubinsky is a Florida resident. D.'s R. 56.1 Stmt. ("D.'s Stmt.") ¶ 1; ECF No. 33. Defendant Ahmed Zayat is a New Jersey resident and a citizen of the United States and Egypt. D.'s Stmt. ¶ 3. Tradewinds is a Costa Rican-based sports betting site where bets are placed via the Internet and telephone.

Plaintiff previously made his living by acting as a matchmaker between gamblers and gambling sites such as Tradewinds. D.'s Stmt. ¶ 2. Plaintiff owned a "player list" of sports betters from all over the world, and provided the list to Tradewinds free of cost. Tradewinds, in turn, marketed its facility to these prospective gamblers. Id. ¶ 10. Tradewinds would then pay Plaintiff a commission of up to forty percent on the losses of individuals on his player list. Id.

The record is unclear as to whether Plaintiff's role as a gambling matchmaker also included maintaining a personal line of credit for certain gamblers. However, Plaintiff alleges that, in 2003, he arranged for Defendant to use his line of credit at Tradewinds. Declaration of Stephen Wagner ("Wagner Decl.") Ex. C ("Rubinsky Dep.") 52:1-7; 52:20-22; 55:1-7, ECF No. 30-7. Plaintiff admits that Defendant never asked him to put up a line of credit for him at Tradewinds. D.'s Stmt. ¶ 6. Plaintiff claims that Defendant lost over $2 million on Plaintiff's line of credit. Rubinsky Dep. 56:6-20. Plaintiff testified that Defendant paid back a portion of the loss. Id. 56:21-59:14. However, Plaintiff maintains that when Defendant stopped making payments, Tradewinds withheld the remaining $1.65 million owed from Plaintiff's commissions. Id. 79:14-80:14; 81:14-82:4.

In 2005, Plaintiff hired an attorney and an investigator to pursue recovery of the alleged debt from Defendant. D.'s Stmt. ¶ 11; Pl.'s Resp. to D.'s R. 56.1 Stmt. ("Pl.'s Resp. Stmt.") ¶ 11, ECF No. 33; Rubinsky Dep. 118:8-137:4; Wagner Decl. Ex. D, ECF No. 30-8. In 2008, the parties exchanged a number of text messages. Wagner Decl. Ex. M, ECF No. 30-17. For instance, on April 6, 2008, Plaintiff received the following series of text messages from Defendant:

9:30:09 a.m.: Good morning, Howie, feel better, take care of yourself.... I will meet your friends, give me their number and I will coordinate directly with them as my.
9:30:13 a.m.: Constantly changes my trip to Celveland, was not good, they got me more confused, one fucker hinks I have a rare form of cancer and they are all wrong,
9:30:18 a.m.: I will mail you checks evvery Friday, just give me an address, I will not postdate checks, why?? No reasons, I am not obliged to pay anything.
9:30:23 a.m.: Is just helping you out, don't own a soul anythings, God knows how much I helped everone, I am not responiable if your friends are crooks and robbed Y.
9:30:27 a.m.: Our money, I did my part and YOU KNOw that... I am more than generous, I love you and help you as a friend and a good decent Yidddish boy, good luck,
9:30:30 a.m.: So text me your friends contacts and I will call them sometime this week, and give an address every Thursday to Fed Exp, ...

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