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Cevdet Aksut Ve Ogullari Koll.Sti v. Cavusoglu

United States District Court, D. New Jersey

January 29, 2018

ROBIN A. CAVUSOGLU, et al., Defendants.


          WILLIAM J. MARTINI, U.S.D.J.

         Plaintiff 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.

         I. BACKGROUND

         The 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.

         A. The Undisputed Facts

         The 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.

         In 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.

         Sunrise 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.[1] 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.

         On June 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.

         B. The Parties' Arguments

         Sunrise 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.

         Plaintiff 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.


         Federal 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 ...

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