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 Mordy Dicker, a
former principal of American Pistachio Commodities
Corporation d/b/a Sunrise Commodities
(“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
Dicker'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,
Dicker's motion for summary judgment is
GRANTED and all outstanding claims and
cross-claims against him are DISMISSED WITH
general, the Complaint alleges that Dicker 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
and procedural history of this case.
following facts are undisputed. In the fall of 2009,
Cavusoglu ordered shipments of Turkish dried apricots and
pine nuts from Plaintiff valued at approximately $1, 125,
000. See Def.'s Statement of Material Facts Not
in Genuine Dispute (“Def.'s Statement”)
¶ 4, ECF No. 174-2; Pl.'s Resp. to Def.'s
Statement of Material Facts (“Pl.'s Resp.”)
¶ 1, ECF No. 190. Cavusoglu failed to pay Plaintiff any
of the money he owed, which led Plaintiff to file suit
against him and his company, HGC Commodities Corp.
(“HGC”), in this Court. See Def.'s
Statement ¶ 14; Pl.'s Resp. ¶ 2. In May 2011,
the parties reached a settlement agreement, but HGC defaulted
on its payments to Plaintiff soon thereafter. Def.'s
Statement ¶ 16; Pl.'s Resp. ¶ 3. The Court
entered a judgment against HGC for $1, 123, 500 in July 2011.
Def.'s Statement ¶ 17; Pl.'s Resp. ¶ 3.
December 2011, Plaintiff deposed Cavusoglu as part of its
judgment enforcement effort. In that deposition, Cavusoglu
testified that Sunrise owed him $500, 000. See
Def.'s Statement ¶ 18; Pl.'s Resp. ¶ 3. He
also testified to other purported facts, which gave rise to
Plaintiff's second lawsuit against him for fraud.
See Def.'s Statement ¶¶ 18, 20;
Pl.'s Resp. ¶ 3. As part of that litigation,
Cavusoglu stated that he sold all of Plaintiff's goods to
Sunrise. See Def.'s Statement ¶ 21;
Pl.'s Resp. ¶ 4. 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. See Def.'s Statement
¶ 24; Pl.'s Resp. ¶ 5. In January 2016, a jury
returned a verdict of guilty against Cavusoglu for fraud.
See Decl. of S. Reba in Supp. of the Mot. for Summ.
J. (“Reba Decl.”), Ex. G, ECF No. 174-6.
2014, Plaintiff filed this action against multiple
individuals and entities, including Cavusoglu, his family
members and several of his corporations (“Cavusoglu
Defendants”, Sunrise and its two principals
(“Sunrise Defendants”), the law firm Hinckley
Allen & Snyder LLP, and Dicker. See Def.'s
Statement ¶ 29; Pl.'s Resp. ¶ 6. Dicker was not
an employee or otherwise affiliated with Sunrise in 2009 when
Plaintiff contracted with Cavusoglu and HGC. See
Def.'s Statement ¶ 39; Pl.'s Resp. ¶ 6.
During his 2011 deposition, however, Cavusoglu testified that
in 2005 Dicker advised him to close one of his businesses,
CNC Warehousing and Distribution (“CNC”),
“to get rid of [his] debts.” See
Def.'s Statement ¶ 36; Pl.'s Resp. ¶ 8;
Reba Decl., Ex. D, Cavusoglu Dep. 28:7-19.
now moves for summary judgment on the remaining four claims
against him, which are: (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 Mem. of Law on
Behalf of Def. Dicker's Mot. for Summ. J.
(“Dicker's Mem.”) 1, ECF No. 174-1. Dicker
primarily argues that he cannot be held liable for any of the
remaining claims against him because each requires that he
“was aware of, and participated in, the actions which
form the basis of the cause of action.” See
id. at 7. It is undisputed that Dicker left Sunrise in
2007 and it is further undisputed that the conduct giving
rise to Plaintiff's cause of action occurred in 2009.
See id. at 7-8. Consequently, Dicker had no
knowledge of Cavusoglu's fraudulent conduct toward
Plaintiff and the Court, therefore, should grant summary
judgment in his favor. See id. 8-12.
opposes, arguing that the evidence in the record establishes
a long-running fraudulent scheme, whereby Sunrise and Dicker
supported the defrauding of Turkish food importers that
resulted in illegal profits for all involved. See
Pl.'s Br. in Opp'n to the Mot. for Summ. J.
(“Pl.'s Opp'n”) 2-6, ECF No. 189.
Plaintiff repeatedly cites to its Complaint as supporting
evidence of a conspiracy between Cavusoglu, Sunrise and
Dicker. See id. 6-9. Plaintiff argues that there are
material facts in dispute, most notably that Dicker's
involvement with Sunrise and Cavusoglu prior to 2007 shows
that he conspired with them in the fraudulent scheme, which
became the proximate cause for Plaintiff's injury.
See id. at 10-13. Plaintiff further argues that
Dicker's departure from Sunrise in 2007 does not insulate
him from liability as a conspirator because precedent holds
that a conspirator may be liable for any act of any other
conspirator made in furtherance of the conspiracy. See
id. at 13-14. Finally, Plaintiff submits that the
imputation doctrine bars summary judgment here because Dicker
was both the principal and agent of his fellow conspirators.
See id. 14-15. Dicker filed a reply, which primarily
reiterates his original points. See Reply Mem. of
Law in Further Supp. of Mot. for Summ. J.
(“Dicker's Reply”), ECF No. 193.
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 Court considers all
evidence and inferences drawn therefrom in the light most
favorable to the non-moving party. Andreoli v.
Gates, 482 F.3d 641, 647 (3d Cir. 2007).
the non-moving party receives the benefit of all factual
inferences in the court's consideration of a motion for
summary judgment, the nonmoving [sic] party must
point to some evidence in the record that creates a genuine
issue of material fact.” Berckeley Inv. Grp., Ltd.
v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006) (citation
omitted). “In this respect, summary judgment is
essentially ‘put up or shut up' time for the
non-moving party: the non-moving party must rebut the motion
with facts in the record and cannot rest solely on assertions
made in the pleadings, legal memoranda, or oral
argument.” Id. (citation omitted). “In
addition, if the non-moving party has the burden of proof at
trial, that party must set forth facts ‘sufficient to
establish the existence of an element essential to that
party's case.'” Id. (quoting
Celotex, 477 U.S. at 322).
initial matter, the Court notes, as it previously has, that
Plaintiff's citations to the Court's July 2015
opinion addressing Dicker's motion to dismiss do not
constitute evidentiary support at summary judgment.
See Op. 7-8, Jan. 19, 2018, ECF No. 197. The
inferences that the Court must make from allegations
in a complaint at the Rule 12 stage are wholly separate from
the inferences a court makes based on evidentiary support