United States District Court, D. New Jersey
CEVDET AKSÜT OĞULLARI KOLL. STI, Plaintiff,
ROBIN A. CAVUSOGLU, et al., Defendants.
WILLIAM J. MARTINI, U.S.D.J.
Cevdet Aksüt Oğullari Koll. Sti
(“Plaintiff”) brings this action against Huseyin
Cavusoglu and multiple associates, including American
Pistachio Commodities Corporation d/b/a Sunrise Commodities,
David Cottam, and Andrew Rosen (collectively “Sunrise
Defendants” or “Sunrise”), alleging
thirteen counts of New Jersey, federal and common law
violations, in connection with the fraudulent importation of
food products from Turkey to the United States. This matter
comes before the Court on Sunrise's motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56.
There was no oral argument. Fed.R.Civ.P. 78(b). For the
reasons set forth below, Sunrise's motion for summary
judgment is GRANTED and all outstanding
counts against Sunrise, Cottam and Rosen are
DISMISSED WITH PREJUDICE.
instant motion is the final of a trilogy of summary judgment
motions filed by the remaining Defendants in this case. The
Court previously granted summary judgment in favor of
Defendants Hinckley Allen and Mordy Dicker. Op.
(“Hinckley Op.”) ECF No. 197; Op. (“Dicker
Op.”), ECF No. 200. Where appropriate, the Court
incorporates those findings here. In general, the Complaint
alleges that Sunrise and others conspired with Cavusoglu in
operating a fraudulent enterprise that induced Turkish food
suppliers to ship their goods to Defendants for sale in the
United States. Plaintiff seeks to collect an unpaid debt of
approximately $1.1 million in connection with its business
dealings with that enterprise. The Court assumes the
parties' familiarity with the facts of this case.
The Undisputed Facts
following facts are undisputed. In the fall of 2009,
Cavusoglu, through his entity HGC Commodities Corp.
(“HGC”), ordered shipments of Turkish dried
apricots, figs and pine nuts from Plaintiff valued at
approximately $1, 125, 000. Def.'s Statement of
Undisputed Material Facts (“Def.'s
Statement”) ¶ 3, ECF No. 179-2; Pl.'s Resp. to
Def.'s Statement (“Pl.'s Resp.”) ¶
1, ECF No. 194-1. HGC sold some of the commodities from that
purchase to Sunrise. Def.'s Statement ¶¶ 4-5;
Decl. of D. Cottam (“Cottam Decl.”) ¶¶
20-21, Ex. A, ECF Nos. 179-3 & 179-4. Cavusoglu failed to
pay Plaintiff any of the money he owed, which led Plaintiff
to file suit against him and HGC in this Court. In May 2011,
the parties reached a settlement agreement, but HGC defaulted
on its payments to Plaintiff soon thereafter. The Court
entered a judgment against HGC for $1, 123, 500 in July 2011.
Dicker Op. at 1.
December 2011, Plaintiff deposed Cavusoglu as part of its
judgment enforcement effort. In that deposition, Cavusoglu
testified that Sunrise owed him $500, 000. He also testified
to other purported facts, which gave rise to Plaintiff's
second lawsuit against him for fraud. As part of that
litigation, Cavusoglu stated that he sold all of
Plaintiff's goods to Sunrise. He also produced a
settlement agreement between Sunrise, himself, his wife and
several of his corporations, in which Sunrise agreed to pay
him $500, 000 to settle a dispute. In January 2016, a jury
returned a verdict of guilty against Cavusoglu for fraud. In
May 2014, Plaintiff filed this action against multiple
individuals and entities, including Sunrise and its two
principals, Cottam and Rosen. Id. at 2.
maintains that Cavusoglu, through his various entities,
provided several other services, including warehousing
services, at Cavusoglu's Linden, New Jersey property.
See Def.'s Statement ¶¶
10-12. Sunrise held the bulk of its inventory at
the Linden property and, at times, it paid the rent and
utilities on behalf of Cavusoglu to ensure uninterrupted
access to its inventory. Id. ¶¶ 13-14.
Sunrise offset these payments from invoices it received from
Cavusoglu for other services rendered, such as trucking,
handling and packaging. Id. ¶ 15; see
Decl. of S. Soulios (“Soulios Decl.”), Ex. B,
Cavusoglu Dec. 2011 Dep. 26:1-12, ECF No. 194-4. Sunrise also
underpaid certain invoices of commodities purchases to offset
unexplained losses of its inventory at the Linden warehouse.
Def.'s Statement ¶¶ 21-22.
22, 2012, a Cavusoglu entity, Celil Ithalat Ihracat, filed a
lawsuit in New Jersey Superior Court, alleging that Sunrise
owed it $126, 000 in connection with shipments of dried
apricots. On November 8, 2012, the parties entered into
mediation guided by a retired New Jersey judge, Thomas
Olivieri of the firm Chasan Lamparello Mallon & Cappuzzo,
PC. The parties ultimately agreed to settle the dispute for
$500, 000 (the “Sunrise Settlement”), which
included the amount for the apricots and an additional $374,
000 for damages sought by another Cavusoglu entity, CNC
Trading Distribution and Warehousing, Inc., related to
packing machinery. The settlement agreement provided Sunrise
with a general release from all potential future claims by
any Cavusoglu entities, including HGC. Hinckley Op. at 2.
The Parties' Arguments
now moves for summary judgment on the remaining four claims
against it: (1) violation of the New Jersey Uniform
Fraudulent Transfer Act (“UFTA”), N.J.S.A.
25:2-20; (2) aiding and abetting fraud; (3) civil conspiracy;
and (4) accounting. See Def.'s Mem. of Law in
Supp. of Mot. for Summ. J. (“Def.'s Mem.”) 7,
ECF No. 179-1. Sunrise primarily argues that there is no
evidence in the record that supports any of these claims.
See id. at 7-9. Sunrise underscores the fact that
Plaintiff did not take a single deposition during discovery.
Id. at 7. Over six weeks after discovery closed,
Plaintiff moved to have it reopened but Magistrate Judge Falk
denied its request, a decision that Plaintiff did not appeal.
See id.; ECF No. 160. Consequently, Sunrise argues
that Plaintiff's claims fail “because Plaintiff has
failed to present anything more than speculation and
conjecture in support of its allegations.” See
Def.'s Mem. at 7.
opposes, resubmitting many of the same arguments it raised in
opposition to Dicker's motion for summary judgment.
Compare Pl.'s Br. in Opp'n to the Mot. for
Summ. J. (“Pl.'s Opp'n”) 2-6,
with Dicker Op. at 2-3. Plaintiff argues that
Sunrise engaged in a longstanding conspiracy with Cavusoglu
to defraud Turkish food importers, including Plaintiff.
See Pl.'s Opp'n at 2-9. In support of its
conspiracy theory, Plaintiff relies almost entirely on court
filings, exhibits, deposition transcripts, and trial
testimony taken from prior litigations, to which Sunrise was
not a party. See Soulios Decl., Exs. A- E, G-W. As
it did in its opposition to Hinckley Allen's motion,
Plaintiff also refers the Court's “findings”
from its opinion addressing Sunrise's motion to dismiss.
See Pl.'s Opp'n at 13. Ultimately, Plaintiff
asks this Court to infer from the facts in the record that a
material dispute exists as to the existence of a conspiracy
and allow the case to go to trial. See id. at 14-16.
Sunrise filed a reply, which mainly reiterates previous
arguments and highlights Plaintiff's procedural
deficiencies. See Def.'s Reply Br. in Supp. of
Mot. for Summ. J., ECF No. 195.
Rule of Civil Procedure 56 provides for summary judgment
“if the movant shows 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);
see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Turner v. Schering-Plough Corp., 901 F.2d
335, 340 (3d Cir. 1990). A factual dispute is genuine if a
reasonable jury could find for the non-moving party, and is
material if it will affect the outcome of the trial under
governing substantive law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The ...