SWIFT v. PANDEY et al

Filing 264

OPINION. Signed by Chief Judge Jose L. Linares on 05/22/2018. (ek)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ROBERT SWIFT,

Civil Action No.: 13-650 (JLL)
Plaintiff,

OPINION

V.

RAMESH PANDEY, et at.,
Defendants.

LINARES, Chief District Judge.

This matter comes before the Court by way of Defendants Rarnesh Pandey and Bhuwan
Pandey’s Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 and Local
Rule of Civil Procedure 56.1 (ECF No. 255).

Pro se Plaintiff Robert Swift has submitted

Opposition (ECF No. 259), to which Defendants have replied. (ECF No. 262). The Court decides
this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For
the reasons set forth below, the Court denies Defendants’ Motion for Summary Judgment.

I.

BACKGROUND1

The Court has set forth, at length, the factual and procedural background as it pertains to
this action in its Opinions dated August 10, 2016, March 27, 2017, August 31, 2017, and October
12, 2017. (ECF Nos. 165, 197, 222, 229). Accordingly, the Court need not restate, and hereby
incorporates, same herein. Thus, the Court will only set forth the relevant factual and procedural
background as it pertains to Defendants’ Motion for Summary Judgment.
This case revolves around a transfer of assets and interest between Xechern India to
Xechern International, Inc. (“Xechern International”).

(Def. SMF

¶

It is undisputed that

4).

Defendant Rarnesh served as its Chief Executive Officer, President, and Chairman of the Board of
Directors. (Def SMF

¶

1). Defendant Bhuwan served as the company’s General Manager and

Director as well as Vice President of International Operations. (Id).
Plaintiff joined Xechem International’s board of directors in May 2017, which is also the
year he became the company’s chief operating officer.

(Def. SMF

¶

At that time, both

5).

Defendants Rarnelis and Bhuwan were removed from all their positions at Xechem International.
(Id.). Defendant Rarnesh had full control of Xechern International prior to his ouster. (P1. SMF

¶

5). Public filings with the Securities and Exchange Commission show that Defendant Rarnesh had
transferred 66 and 2/3% of Xechern India stock to Xechern International. (P1. SMF

¶ 8).

Based

on these filings, Plaintiff believed that Xechem India was a subsidiary of Xechem International.

These background facts are taken from the Defendants’ statements of undisputed material facts, pursuant to Local
Civil Rule 56.1. (ECF No. 255. Ptaintiffs Rule 56.1 Statement of Undisputed Facts (“Def. SMF”)), as well as
Plaintiff’s Statement of Undisputed Material Facts (ECF No. 259 (“P1. SMf”)). To the extent that Plaintiff admits to
any Material Facts as stated by Defendants, the Court will cite only to “Def SMF” and the relevant paragraph number.
The Court will “disregard all factual and legal arguments, opinions and any other portions of the 56.1 Statement which
extend beyond statements of facts.” G/obespctni’itata, Inc. v. Tex. Instrument, Inc.. 2005 U.S. Dist. LEXIS 27820. at
*10 (D.N.J. Nov. 10. 2005): see also L. Civ. R. 56.1 (“Each statement of material facts
shall not contain legal
argument or conclusions of law.”).
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.

.

.

(P1. SMF

¶

11). Plaintiff also raised $7.1 million, by way of private placement for Xechern

International, in an attempt to expand Xechern International’s business. (P1. SMf

¶ 16).

Later in

2007, Plaintiff learned that the purported transfer of interest in Xechern India never took place.
(P1. SMF

SMf

¶ 6).

J 22).

Thereafter, in 200$. Xechem International filed for bankruptcy protection. (Def.

In 2011, Plaintiff purchased all rights, title and interest in any and all assets of Xechern

International at a public bankruptcy auction. (Def. SMf

¶J 7).

Accordingly, Plaintiff brought this action on January 31, 2013.

(ECF No. 1).

After

substantial motion practice and numerous amendments, Plaintiffs Third Amended Complaint
(ECF No. $5 (“TAC”)) became the operative complaint. TAC contains six counts asserting the
following causes of action: Count I

—

“Quantum Meruit by [Defendant] Ramesh;” Count II

“Quantum Meritit by [Defendant] Bhuwan;” Count III

Count IV

—

—

“Quantum IVleruit by Xechem India;”

“Unjust Enrichment by [Defendant] Ramesh:” Count V

[Defendant] Bhuwan;” and Count VI

—

—

—

“Unjust Enrichment by

“Unjust Enrichment by Xechern India.” (See general/v

TAC). Plaintiff previously moved for partial summary judgement on November 9, 2015. (ECF
No. 113), but this Court administratively terminated same, without prejudice, as it was made
without the requisite leave to file such a motion in contravention of the pretrial scheduling order.
(ECF No. 116).

Plaintiff was finally granted leave to file his Motion for Partial Summary

Judgment and filed same on November 7, 2016. (ECF No. 174). Said Motion sought the entry of

an Order granting judgment as a matter of law on claims of promissory estoppel, equitable
estoppel, and unjust enrichment. (Id.). This Court denied Plaintiffs Motion on the grounds that
Plaintiff never pled causes of action for promissory estoppel and equitable estoppel. (ECf No.

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197). Additionally, this Court held that Plaintiff failed to show that he was entitled to summary
judgment on his

unjust

enrichment claim as his Motion failed to show that the requisite elements

for such a claim were met. (Id.).
Plaintiff once again moved for partial summary judgment with respect to his unjust
enrichment claim only on July 7, 2017. (ECF No. 216). This Court denied Plaintiffs Motion,
finding that genuine issues of material fact were present such that summary judgment could not be
entered in his favor.

(ECF Nos. 222, 223).

On September 8, 2017, filed a Motion for

Reconsideration. (ECF No. 224). The Court denied said Motion for Reconsideration, finding that
Plaintiff could not carry the requisite burden. (ECf Nos. 228, 229). On April 4, 2018, Defendants
filed the within application for summary judgment, which Plaintiff opposes. (ECF Nos. 225, 259,
respectively)
II.

LEGAL STANDARD

Summary judgment is appropriate when, drawing all reasonable inferences in the non
movant’s favor, there exists no “genuine dispute as to any material fact” and the movant is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). “[T]he moving party must show that the non-moving party has failed to
establish one or more essential elements of its case on which the non-moving party has the burden
of proof at trial.” McCabe v. Ernst & Young, LLP, 494 F.3d 418,424 (3d Cir. 2007) (citing Celotex
Coip.

1’.

Catrett, 477 U.S. 317, 322-23 (1986)).

The Court must consider all facts and their reasonable inferences in the light most favorable
to the non-moving party. See Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). If a
reasonable juror could return a verdict for the non-moving party regarding material disputed

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factual issues, summary judgment is not appropriate. See Anderson, 477 U.S. at 242-43 (“At the
summary judgment stage, the trial judge’s fttnction is not himself to weigh the evidence and
deterniine the truth of the matter but to detenuine whether there is a genuine issue for trial.”).
III.

ANALYSIS

The Court must once again deny summary judgment in this case, as Defendants’ current
Motion for Summary Judgment as to Plaintiffs unjust enrichment claims suffers from the same
infirmities that Plaintiffs previous Motion suffered from.2 To succeed on a claim for unjust
enrichment under New Jersey law, “a plaintiff must show both that defendant received a benefit
and that retention of that benefit without payment would be unjust.” VRG Corp. v. GKN Realt’
Coip.. 135 N.J. 539, 554 (1994); see also Callano v. Oakwood Fai* Homes Coip., 91 N.J. Super.
105, 108 (App. Div. 1966). Additionally, for an unjust enrichment claim to succeed, there must
be a showing that “the plaintiff expected remuneration from the defendant, or ifthe true facts were

known to plaintiff he would have expected remuneration ftom defendant, at the time the benefit
was conferred.” Callano, 91 N.J. Super. at 109 (emphasis added); see also VRG Coip., 135 N.J.
at 554.
Here, once again, even if the Court were to accept every single one of Defendants’ and
Plaintiffs Statement of Undisputed Material F acts as true,3 Defendants are not entitled tojudgrnent
as a matter of Yaw. Instead, the Court finds that said Statements of Undisputed Material Facts
further affirm that genuine issues of material fact are present. A review of Defendants’ Statements
of Undisputed Material Facts show that Xechern International was run by Defendants and engaged

2

The Court would be remiss not to mention the fact that neither party cites to any relevant law in support of their
various positions.
The Court notes that that both Def SMF and P1. SMF are blanket statements with no citation to the record to support
such statements.
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in business in India.

(Def. SMF

¶

1-2). Additionally, Def. SMF indicates that money was

transferred from Xechem International to Xechern India to cover operational expenses. (Def. SMF

¶ 3).

Moreover, both parties’ Statements of Undisputed Material Facts indicate that Plaintiffjoined

Xechem International’s board in 2007, and purchased same in 2011 at a public bankruptcy auction.
(Def. SMF ¶J 5, 7; P1. SMF ¶J 22, 27). Finally, P1. SMF establishes that Xechem India was without
business income and that Xechern India received $977,394 from Xechem International. (P1. SMF
¶26).
The Court cannot, based on the aforementioned Statement of Undisputed Material Facts
and the record before it, grant Defendants’ motion. This is because none of these facts indicate
that Defendants’ are entitled to judgment in their favor as a matter of law. Rather, the record
before the Court is riddled with genuine issues of material fact. Indeed, even if the Court were to
accept all Defendants’ contentions as true, many questions remain unanswered. It is impossible
to ascertain from said record whether or not Defendants received a benefit. As this Court explained
before, Plaintiff seems to argue that Defendants benefited from the aforementioned transfer of
assets and purported loan from Xechern International to Xechem India. Previously, the Court
observed that Plaintiff failed to explain how these transactions actually benefited Defendants and
did not provide any evidence to show that Defendants enjoyed any benefits from same. Here, it is
Defendants, who now have the burden as movants, that have failed to show that they did not
receive a benefit from the transactions. Thus, this Court concludes that a genuine issue of material
fact exists as to whether Defendants ever received a benefit from the subject transactions.
Similarly, said record does not establish whether or not Plaintiff ever expected to receive
remuneration for said transfer of assets. As explained in this Court’s numerous opinions, for

6

Plaintiff to succeed on these claims he must show that he expected to receive remuneration. The
record before the Court indicates that Plaintiff uncovered the transfer of assets in 2007 and
purchased Xechem International in 2011. That is all that can be gleaned from same. As the
movants, it is Defendants burden that Plaintiff did not expect remuneration in connection with the
transfer of assets, McCctbe, 494 F.3d at 424, which they have failed to do. As such, the Court must
deny Defendants’ Motion for Summary Judgment as to Plaintiffs unjust enrichment claims.
The Court reaches the same conclusion with respect to Defendants’ Motion for Summary
Judgment as to Plaintiffs quantttm meritit claims. To recover on the theory of quasi-contract, a
plaintiff must prove “that the defendant

...

received a benefit, and that retention of the benefit

without payment therefor would be unjust.” Ca/lana v. Oalcvvood Park Homes Corp., 91 N.J.
Super. 105, 108 (App. Div. 1966). Quantum merttit, or breach of implied contract, is a form
of quasi-contract. Kopin v. Orange Products, Inc.. 297 N.J. Super. 353, 367 (App. Div. 1997).
“Quasi-contracts are imposed by law to bring about justice, without reference to the parties’
intent.” Kopin, N.J. Super. at 366-67. Thus, quantum merttit enables a party to recover the
reasonable value of services rendered in the absence of a contract governing wages or
remuneration. Id. at 367.
Once again, summary judgment may not issue in Defendants’ favor. As noted above, the
record before the Court does not establish that Defendants did not receive a benefit. Moreover,
the record is devoid of any evidence that retention of the purported benefit to Defendants would
not result in an injustice to Plaintiff The Court reiterates that, as the movants, it is their burden to
show that the evidence entitles them to judgment as a matter of law, and they have failed to do so.

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As such, the Court must deny Defendants’ Motion for Summary Judgment with respect to
Plaintiffs

quantwn

meritit clailTis.

IV.

CONCLUSION

For the aforementioned reasons, Defendants’ Motion for Summary Judgment is hereby
denied. An appropriate Order accompanies this Opinion.

DATED: Mayç, 2018
OS L.IXNJARES
ief Judge, United States District Court

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