Rehman v. Anjum et al

Filing 41

OPINION AND ORDER granting 37 Motion for Partial Summary Judgment. What remains in this case are plaintiffs claims for money lentand money paid (Counts VIII and IX), and defendants counter-claims for declaratory judgment, breach of fiduciary duty, fraud, and forgery (Counts I through IV). Discovery has closed in this case; accordingly, any further dispositive motions must be filed by February 4, 2013. If no such motions are filed, this case will be set for trial. Dispositive motions to be filed by 2/4/2013. Signed by Senior Judge James T Moody on 12/4/12. (mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
AZIZ U. REHMAN,
Plaintiff and
Counter-Defendant,
v.
LIAQAT A. ANJUM and
SAMINA IFTIKHAR,
Defendants and
Counter-Claimants.

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No. 3:10 CV 220

OPINION and ORDER
I.

BACKGROUND
This case arises out of a dispute between plaintiff Aziz U. Rehman and his sister

and brother-in-law, Samina Iftikhar and Liaqat A. Anjum. Plaintiff contends that
defendants entered into an oral agreement with him to file a lawsuit against a third
party, Chaudhry, and then split the proceeds of that litigation with him. (DE # 1 at 2.)
Plaintiff further contends that Anjum signed a document (the “Litigation Agreement,”
DE # 37-2 at 3), which memorialized the parties’ alleged oral agreement to form the
partnership. (DE # 1 at 2.) Plaintiff claims that he also lent Anjum and/or the
partnership $30,000 and $81,000, but has not been repaid those amounts of money. (DE
# 1 at 12.)
Defendants contend that they did not enter into any agreement to form a
partnership with plaintiff, to file suit against Chaudhry, or to split any profits of the
litigation with plaintiff. (DE # 37-2 at 1, Anjum’s Aff. ¶¶ 3, 4, 7; DE # 37-3 at 1, Iftikhar’s

Aff. ¶¶ 3, 4, 7.) Defendants further contend that Anjum never signed the Litigation
Agreement (DE # 37-2 at 1, Anjum’s Aff. ¶ 8; DE # 37-3 at 1), and argues that the
signature that appears on the Agreement was forged.
Plaintiff filed a fourteen-count complaint against defendants, seeking dissolution
of the partnership and the appointment of a receiver (Count I), seeking an accounting of
the partnership (Count II), alleging breach of the partnership agreement (Count III),
alleging breach of fiduciary duty (Count IV), alleging breach of contract (Count V),
alleging promissory estoppel (Count VI), alleging quantum meruit (Count VII),
claiming money lent (Count VIII), claiming money paid (Count IX), fraud (Count X),
alleging constructive fraud (Count XI), requesting the imposition of a constructive trust
(Count XII), alleging deception under the Indiana Crime Victim’s Relief Act (Count
XIII), and alleging civil conspiracy (Count XIV). (DE # 1.) Defendants filed a counterclaim, seeking a declaratory judgment (Count I), alleging breach of fiduciary duty
(Count II), alleging fraud (Count III), and alleging forgery (Count IV). (DE # 6.)
Defendants have moved for partial summary judgment on all of plaintiff’s claims
except those entitled “money lent” (Count VIII) and “money paid” (Count IX).1 (DE
# 37.) Though plaintiff was initially represented by counsel, he was proceeding pro se by
the time defendants moved for partial summary judgment. Accordingly, defendants
sent plaintiff the notice of motion for summary judgment that this district requires be

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Defendants also purport to seek summary judgment on Count I of their own
counter-claim, but they do not develop this argument in any meaningful way in their
brief.
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mailed to pro se litigants. (DE # 38.) Plaintiff did not respond to the motion for partial
summary judgment. The motion is now ripe for ruling.
II.

LEGAL STANDARD
Defendants have moved for partial summary judgment. FEDERAL RULE OF CIVIL

PROCEDURE 56 requires the entry of summary judgment, after adequate time for
discovery, against a party “who 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).
“[S]ummary judgment is appropriate–in fact, is mandated–where there are no disputed
issues of material fact and the movant must prevail as a matter of law. In other words,
the record must reveal that no reasonable jury could find for the non-moving party.”
Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations
and quotation marks omitted).
The moving party bears the initial burden of demonstrating that these
requirements have been met. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th
Cir. 2010). “[T]he burden on the moving party may be discharged by ‘showing’–that is,
pointing out to the district court–that there is an absence of evidence to support the
nonmoving party’s case.” Celotex, 477 U.S. at 325. Once the moving party has met his
burden, the non-moving party must identify specific facts establishing that there is a
genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986);
Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex, 477 U.S. at 324).
In doing so, the non-moving party cannot rest on the pleadings alone, but must present
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fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of
Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing the facts presented on a motion
for summary judgment, the court must construe all facts in a light most favorable to the
non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC
Penney Life Ins. Co., 158 F.3d 966 (7th Cir. 1998); Doe, 42 F.3d at 443.
Because plaintiff failed to file a response to defendants’ motion for partial
summary judgment, defendants are entitled to summary ruling on the motion – that is,
a ruling without the benefit of plaintiff’s response. However, plaintiff’s failure to
respond does not automatically result in summary judgment for defendants. Wienco,
Inc. v. Katahn Assoc., Inc., 965 F.2d 565, 568 (7th Cir. 1992). Rather, the court must still
“make the further finding that given the undisputed facts, summary judgment is proper
as a matter of law.” Id. Accordingly, the court’s task is to examine the factual record in
this case to determine whether defendants have met their burden of demonstrating a
lack of genuine issues of material fact warranting summary judgment in its favor.
III.

DISCUSSION
A.

Counts I - V & XII

In Counts I - V and XII of his complaint, plaintiff seeks dissolution of the
partnership and the appointment of a receiver (Count I), seeks an accounting of the
partnership (Count II), alleges breach of the partnership agreement (Count III), alleges
breach of fiduciary duty based on the parties’ statuses as partners in a partnership
(Count IV), alleges breach of contract based on the partnership agreement (Count V),

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and seeks the imposition of a constructive trust on all property of the partnership
(Count XII). All of these counts presuppose the existence of a partnership.
Defendants have successfully pointed out plaintiff’s lack of evidence on the
existence of a partnership for purposes of their summary judgment motion. The only
evidence in the record relevant to the existence of a partnership is a copy of the
partnership agreement and Anjum’s affidavit that his signature on the document is
forged. Plaintiff has provided no evidence to create a genuine issue of material fact as to
the legitimacy of the signature, so there is no genuine issue of material fact as to the
existence of the partnership, and summary judgment is appropriate as to Counts I-V
and XII.
B.

Count VI

In Count VI of his complaint, plaintiff claims promissory estoppel, based on
promises made to him by defendants related to the litigation they planned to initiate
against Chaudhry. The existence of a promise is a necessary element of a claim for
promissory estoppel. Hinkel v. Sataria Distr. & Packaging, Inc., 920 N.E.2d 766, 771 (Ind.
Ct. App. 2010).
Defendants have successfully pointed out plaintiff’s lack of evidence on the
existence of promises made to plaintiff for purposes of their summary judgment
motion. The only evidence in the record relevant to the existence of promises made or
not made are the affidavits of Iftikhar and Anjum, in which they state that they never
made promises to plaintiff regarding the litigation. Plaintiff has provided no evidence

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to create an issue of fact as to the existence or non-existence of such alleged promises, so
summary judgment is appropriate as to Count VI.
C.

Count VII

In Count VII of his complaint, plaintiff sues under the theory of quantum meruit
claiming that he conferred benefits onto defendants in connection with the partnership.
A party may recover under the theory of unjust enrichment, or quantum meruit,
whether or not a contract exists. Troutwine Estates Dev. Co., LLC, v. Comsub Design &
Eng’g, Inc., 854 N.E.2d 890, 897 (Ind. Ct. App. 2006). Under this theory, a party may be
permitted to recover the value of services rendered just as if there had been a true
contract. Id. For recovery under quantum meruit, it must be demonstrated that a benefit
was rendered to another party at the express or implied request of that party, that
allowing the defendant to retain the benefit without paying for it would be unjust, and
that the plaintiff expected payment. Id.
Defendants have successfully pointed out plaintiff’s lack of evidence on the
existence of benefits conferred by plaintiff onto defendants, and plaintiff has provided
no evidence to create an issue of fact as to this issue. With no evidence of benefits
conferred, the court cannot permit plaintiff to recover the value of services rendered.
Accordingly, summary judgment is appropriate as to Count VII.
D.

Counts X & XI

In Counts X and XI of his complaint, plaintiff claims that defendants committed
fraud and constructive fraud by essentially representing to plaintiff that they would
proceed with litigation against Chaudhry together, splitting the profits and expenses
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and forming a new company to pursue a hotel development business together, and that
defendants would repay plaintiff the money he loaned them.
A claim of fraud may not be premised on future conduct, broken promises, or
statements of existing intent which are not executed. Wallem v. CLS Industs., Inc., 725
N.E.2d 880, 889 (Ind. Ct. App. 2000) (employer’s statements to employee regarding
future bonuses insufficient to support fraud claim). The same is true of a claim for
constructive fraud. Fiederlein v. Boutselis, 952 N.E.2d 847, 860 (Ind. Ct. App. 2011).
Defendants’ allegedly fraudulent conduct all consists of future conduct. Accordingly,
plaintiff’s fraud and constructive fraud claims fail as a matter of law and summary
judgment as to Counts X and XI is appropriate.
E.

Count XIII

In Count XIII of his complaint, plaintiff alleges deception under the Indiana
Crime Victim’s Relief Act, IND. CODE § 34–24–3–1 et seq., claiming that defendants made
false or misleading written statements to plaintiff with the intent of obtaining plaintiff’s
property.
Defendants have successfully “pointed out” plaintiff’s lack of evidence on the
existence of false or misleading written statements. To the extent plaintiff refers to the
alleged partnership agreement, Anjum swears in his affidavit that his signature on the
document is forged and plaintiff has provided no evidence to create a genuine issue of
material fact as to the legitimacy of the signature. In sum, there is no genuine issue of
material fact as to the existence of false or misleading written statements, and summary
judgment is appropriate as to Count XIII.
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F.

Count XIV

In Count XIV of his complaint, plaintiff alleges that defendants engaged in a civil
conspiracy against him. Under Indiana law, a civil conspiracy is a combination of two
or more persons who engage in a concerted action to accomplish an unlawful purpose
or to accomplish some lawful purpose by unlawful means. KMK v. AK, 908 N.E.2d 658,
663-64 (Ind. Ct. App. 2009).
Defendants have successfully pointed out plaintiff’s lack of evidence that
defendants acted with an unlawful purpose or accomplished some lawful purpose by
unlawful means. Plaintiff has provided no evidence to create a genuine issue of material
of fact as to this issue. Accordingly, summary judgment is appropriate as to Count XIV.
IV.

CONCLUSION
For the foregoing reasons, defendants’ motion for partial summary is

GRANTED. (DE # 37.) What remains in this case are plaintiff’s claims for “money lent”
and “money paid” (Counts VIII and IX), and defendants’ counter-claims for declaratory
judgment, breach of fiduciary duty, fraud, and forgery (Counts I through IV).
Discovery has closed in this case; accordingly, any further dispositive motions
must be filed by February 4, 2013. If no such motions are filed, this case will be set for
trial.
SO ORDERED.
Date: December 4, 2012
s/James T. Moody________________
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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