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Equitesa Equipos Y Terrenos, Sa v. Valley Enterprises of Ohio

November 3, 2011

EQUITESA EQUIPOS Y TERRENOS, SA,
PLAINTIFF,
v.
VALLEY ENTERPRISES OF OHIO, LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Greg White

MEMORANDUM OPINION & ORDER

I. Procedural Background

On July 15, 2010, Plaintiff Equitesa Equipos y Terrenos, S.A. (hereinafter "Plaintiff") filed its Complaint. (ECF No. 1.) On July 20, 2010, Plaintiff filed a verified Complaint against Defendants Valley Enterprises of Ohio, LLC ("Valley Enterprises"), Deborah Fuetter ("Mrs. Fuetter"), and Kurt Fuetter ("Mr. Fuetter"). (ECF No. 3.) Plaintiff alleged the following counts:

(1) breach of contract identified as Exhibit A against Valley Enterprises; (2) fraud sufficient to pierce the corporate veil against both Fuetters; (3) fraud against Mr. Fuetter; (4) conversion against Valley Enterprises and Mr. Fuetter; (5) seeking enforcement of a promissory note, identified as Exhibit B; and (6) seeking enforcement of a promissory note, identified as Exhibit C.

On May 31, 2011, Defendants filed a Motion for Summary Judgment. (ECF No. 23.) After being fully briefed, the motion is now ripe for consideration.

II. Summary of Facts

Despite discovery ending on April 29, 2011, the parties have attached very little by way of factual evidence to their briefs. No depositions have been filed with the Court.

On or about July 9, 2009, Plaintiff and Valley Enterprises entered into a contract, attached to the Complaint as Exhibit A, for the delivery of 170,000 metric tons of Portland grade cement to the Port of Manta, Ecuador -- the location of Plaintiff's construction business.*fn1 (ECF No. 1, Exh. A; ECF No. 12; ECF No. 23-1 at ¶9.) Mr. Fuetter, president and sole shareholder of Valley Enterprises, procured what he believed to be a cement supplier from Spain -- Patois Agencia-Madrid ("Patois") -- to facilitate delivery.*fn2 (ECF No. 23-1 at ¶¶1, 4.) On July 21, 2009, Valley Enterprises entered into a contract with Patois and Logitech. (ECF No. 23-1 at ¶7.)

Valley Enterprises received $1,110,000.00 from Plaintiff for the purchase of cement, of which $424,000.00 was wired to Patois and Logitech. (ECF No. 23-1 at ¶7.) In August of 2009, Mr. Fuetter, along with business associate Warren Jones ("Jones"), traveled to Spain to oversee the cement shipment. (ECF No. 23-1 at ¶10.) After unsuccessful attempts to meet with a representative of Patois, Mr. Fuetter became concerned that Patois and Logitech were operating a scam. (ECF No. 23-1 at ¶11.) He had Jones contact the United States Federal Bureau of Investigation (FBI) in Madrid, Spain. (ECF No. 23-1 at ¶13.) On August 10, 2009, the FBI informed Mr. Fuetter that Patois and Logitech were, indeed, fraudulent companies. (ECF No. 23-1 at ¶14.)

Mr. Fuetter informed Gabriel Verduga, a representative of Plaintiff, of the scam perpetrated by Patois and Logitech. (ECF No. 23-1 at ¶15; ECF No. 25-4.) It is unclear precisely when this information was transmitted. Mr. Fuetter asserts that he did so on August 14, 2009 -- four days after he learned of the fraud from the FBI. (ECF No. 23-1 at ¶15.) Without making any allegation about Patois or Logitech, Plaintiff argues that Mr. Fuetter became aware of the fraud before requesting and accepting final payment from Plaintiff on August 5, 2009. (ECF No. 1 at ¶¶14-20.) This is the basis of Plaintiff's fraud claim against Mr. Fuetter. A partial email attached to Plaintiff's brief in opposition appears to confirm that Mr. Fuetter informed Gabriel Verduga of the fraud. (ECF No. 25-4, Exh. D.) The date, however, is uncertain.*fn3 Id. In the email fragment, Mr. Fuetter represented that he was in contact with a "REAL producer" of cement. Id. In another email dated August 19, 2009, Mr. Fuetter indicated that he was then working with some "other supplier of cement" in Europe. (ECF No. 25-1, Exh. A.)

In September of 2009, Valley Enterprises refunded $410,000.00 to Plaintiff. (ECF No. 23-1 at ¶16.) Mr. Fuetter asserts that Valley Enterprises returned "a total of $569,507.48 to [Plaintiff]." (ECF No. 23-1 at ¶22.)

On December 23, 2009, Mr. Fuetter was contacted by agents of the Plaintiff, who insisted that they meet at a local hotel. (ECF No. 23-1 at ¶17.) One of the agents stated that he was also a representative of the government of Ecuador. (ECF No. 23-1 at ¶18.) According to Mr. Fuetter, he was told that if he did not sign two promissory notes in favor of Pedro Verdugo Cevallos, the agents would immediately go to his house to see his wife. (ECF No. 23-1 at ¶19.) Though he denies owing any debt personally to either Plaintiff or Pedro Verdugo Cevallos, Mr. Fuetter signed the promissory notes, claiming he felt intimidated. (ECF No. 23-1 at ¶¶20-21.) In an affidavit attached to Plaintiff's brief in opposition, one Tomislav Topic attests that he was present on December 23, 2009, when the promissory notes were signed. (ECF No. 25-7.) Topic further states that Mr. Fuetter signed the promissory notes of his own free will; that Mr. Fuetter did not offer any indication of discomfort; and, that Topic did not perceive any circumstances that would have led Mr. Fuetter to reasonably believe that he was under threat or undue compulsion. Id.

III. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) governs summary judgment motions and states:

A party may move for summary judgment, identifying each claim or defense -- or the part of each claim or defense -- on which summary judgment is sought. The court shall grant 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.

In considering summary judgment motions, this Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Summary judgment is appropriate whenever 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). Moreover, "the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989)(citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The non-moving party is under an affirmative duty to point out specific facts in the record which create a genuine issue of material fact. Fulson v. City of Columbus, 801 F. Supp. 1, 4 (S.D. Ohio 1992). The non-movant must show more than a scintilla of evidence to overcome summary judgment; it is not enough for the non-moving party to show that there is some metaphysical doubt as to material facts. Id. "[T]he plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery." Liberty Lobby, 477 U.S. at 257.

In other words, "[w]here 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." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776 (2007). Thus, "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court ...


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