RUBINSKY v. ZAYAT

Filing 38

OPINION. Signed by Judge William J. Martini on 6/4/15. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:14-01540 (WJM)

HOWARD RUBINSKY,
Plaintiff,

OPINION
v.
AHMED ZAYAT a/k/a EPHRAIM ZAYAT,
Defendant.

WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Howard Rubinsky brings this breach of contract and unjust enrichment
action against Defendant Ahmed Zayat. Plaintiff alleges that Defendant owes him $1.65
million under a personal services contract. Specifically, Plaintiff claims that Defendant
incurred a gambling loss on Plaintiff’s line of credit at Tradewinds, a Costa Rica-based
sports betting site, and that Defendant never repaid Plaintiff for that debt. Defendant
moves for summary judgment under Federal Rule of Civil Procedure 56, arguing that
Plaintiff’s claims are time-barred. There was no oral argument. Fed. R. Civ. P. 78(b).
For the below reasons, Defendant’s motion is GRANTED and judgment is entered on
Defendant’s behalf.
I.

BACKGROUND

The following facts are undisputed. Plaintiff Howard Rubinsky is a Florida
resident. D.’s R. 56.1 Stmt. (“D.’s Stmt.”) ¶ 1; ECF No. 33. Defendant Ahmed Zayat is
a New Jersey resident and a citizen of the United States and Egypt. D.’s Stmt. ¶ 3.
Tradewinds is a Costa Rican-based sports betting site where bets are placed via the
Internet and telephone.
Plaintiff previously made his living by acting as a matchmaker between gamblers
and gambling sites such as Tradewinds. D.’s Stmt. ¶ 2. Plaintiff owned a “player list” of
sports betters from all over the world, and provided the list to Tradewinds free of cost.
Tradewinds, in turn, marketed its facility to these prospective gamblers. Id. ¶ 10.
Tradewinds would then pay Plaintiff a commission of up to forty percent on the losses of
individuals on his player list. Id.
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The record is unclear as to whether Plaintiff’s role as a gambling matchmaker also
included maintaining a personal line of credit for certain gamblers. However, Plaintiff
alleges that, in 2003, he arranged for Defendant to use his line of credit at Tradewinds.
Declaration of Stephen Wagner (“Wagner Decl.”) Ex. C (“Rubinsky Dep.”) 52:1-7;
52:20-22; 55:1-7, ECF No. 30-7. Plaintiff admits that Defendant never asked him to put
up a line of credit for him at Tradewinds. D.’s Stmt. ¶ 6. Plaintiff claims that Defendant
lost over $2 million on Plaintiff’s line of credit. Rubinsky Dep. 56:6-20. Plaintiff
testified that Defendant paid back a portion of the loss. Id. 56:21-59:14. However,
Plaintiff maintains that when Defendant stopped making payments, Tradewinds withheld
the remaining $1.65 million owed from Plaintiff’s commissions. Id. 79:14-80:14; 81:1482:4.
In 2005, Plaintiff hired an attorney and an investigator to pursue recovery of the
alleged debt from Defendant. D.’s Stmt. ¶ 11; Pl.’s Resp. to D.’s R. 56.1 Stmt. (“Pl.’s
Resp. Stmt.”) ¶ 11, ECF No. 33; Rubinsky Dep. 118:8-137:4; Wagner Decl. Ex. D, ECF
No. 30-8. In 2008, the parties exchanged a number of text messages. Wagner Decl. Ex.
M, ECF No. 30-17. For instance, on April 6, 2008, Plaintiff received the following series
of text messages from Defendant:
9:30:09 a.m.: Good morning, Howie, feel better, take care of yourself . . . .
I will meet your friends, give me their number and I will coordinate directly
with them as my.
9:30:13 a.m.: Constantly changes my trip to Celveland, was not good, they
got me more confused, one fucker hinks I have a rare form of cancer and
they are all wrong,
9:30:18 a.m.: I will mail you checks evvery Friday, just give me an
address, I will not postdate checks, why?? No reasons, I am not obliged to
pay anything.
9:30:23 a.m.: Is just helping you out, don’t own a soul anythings, God
knows how much I helped everone, I am not responiable if your friends are
crooks and robbed Y.
9:30:27 a.m.: Our money, I did my part and YOU KNOw that , , , I am
more than generous, I love you and help you as a friend and a good decent
Yidddish boy, good luck,
9:30:30 a.m.: So text me your friends contacts and I will call them
sometime this week, and give an address every Thursday to Fed Exp, a
heck for you, and I promised to.
9:30:33 a.m.: Help you in this mess.
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Id. 13:20-15:5 (mistakes in original).
Plaintiff filed the instant action on March 11, 2014, alleging claims for breach of
contract and unjust enrichment. He seeks to recover $1.65 million from Defendant.
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides for summary judgment “if the
pleadings, the discovery [including, depositions, answers to interrogatories, and
admissions on file] and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (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). A defendant is entitled to
summary judgment on statute of limitations grounds where there is no genuine dispute of
material fact as to when the limitations period began to run, and based on that accrual
date the defendant is entitled to judgment as a matter of law. Bensel v. Allied Pilots
Ass’n, 387 F.3d 298, 304 (3d Cir. 2004); see also Fed. R. Civ. P. 56(a).
Initially, the moving party has the burden of demonstrating the absence of a
genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party
has met this burden, the nonmoving party must identify, by affidavits or otherwise,
specific facts showing that there is a genuine issue for trial. Id. The opposing party must
do more than just rest upon mere allegations, general denials, or vague statements.
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). Rather, to withstand a proper
motion for summary judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the moving party. Anderson, 477
U.S. at 256–57.
III.

DISCUSSION

Plaintiff asserts claims for breach of contract and unjust enrichment against
Defendant. Defendant argues that Plaintiff’s claims accrued, at the latest, when Plaintiff
hired an attorney and an investigator to recover the alleged debt in 2005. Accordingly,
because Plaintiff did not file his Complaint until March 11, 2014, Defendant maintains
that Plaintiff’s claims are time-barred. In response, Plaintiff argues that this action
actually arises from the exchange of text messages on April 6, 2008. Specifically,
Plaintiff argues that those text messages constituted a written promise by Defendant to
pay Plaintiff the $1.65 million allegedly owed. Plaintiff thus contends that his claims are
timely.
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The parties agree that New Jersey law applies to Plaintiff’s claims. Under New
Jersey law, a six-year state of limitations applies to breach of contract and unjust
enrichment claims. N.J. Stat. Ann. § 2A:14-1. The clock begins to tick on the date that
the cause of action accrues. Id. A breach of contract claim generally accrues when the
defendant breached the contract. Peck v. Donovan, 565 F. App’x 66, 69 (3d Cir. 2012)
(citing Sodora v. Sodora, 768 A.2d 840, 842 (N.J. Super. Ct. Ch. Div. 2000). An unjust
enrichment claim accrues when the plaintiff last renders the services that form the basis
of the plaintiff’s claim. See Baer v. Chase, 392 F.3d 609, 622 (3d Cir. 2004) (citing
Rabinowitz v. Mass. Bonding & Insurance Co., 197 A. 44, 47 (N.J. 1938)).
In certain circumstances, the discovery rule will delay accrual “until the injured
party discovers, or by an exercise of reasonable diligence and intelligence should have
discovered that he may have a basis for an actionable claim.” Peck, 565 F. App’x at 70
(quoting Lopez v. Swyer, 300 A.2d 563, 565 (N.J. 1973). Because most contract actions
rely upon the principal that the parties to the agreement know the terms of their contract
and can detect a breach with reasonable diligence, the discovery rule generally does not
apply to contract actions. Morris v. Fauver, 707 A.2d 958, 972 (N.J. 1998). Courts have
also held that the discovery rule does not apply to unjust enrichment claims. See, e.g.,
Baer, 392 F.3d at 623.
The Court finds that Plaintiff’s claims accrued, at the latest, in 2005 and will grant
Defendant’s motion. According to Plaintiff’s own version of events, Plaintiff provided
the line of credit at Tradewinds for Defendant – and Defendant allegedly lost over $2
million on that line of credit – in 2003. Rubinsky Dep. 52:1-7; 52:20-22; 55:1-7.
Further, Plaintiff testified that by 2005, Defendant had stopped making any payments to
Tradewinds and Plaintiff had paid for at least a portion of Defendant’s debt through his
commissions. Id. 78:01-79:13. And, in 2005, Plaintiff hired an attorney and an
investigator to help him pursue the debt, because Defendant had not responded to him.
Id. 78:01-79:13; 118:8-137:4; see also Wagner Decl. Ex. D. Thus, at the very latest,
Plaintiff’s claims accrued in 2005 – more than six years before Plaintiff filed the
Complaint on March 14, 2011. Moreover, Plaintiff has not presented any evidence that
would toll or restart the statute of limitations. The record contains no indication that
Defendant actively misled Plaintiff regarding Plaintiff’s claims or otherwise reasonably
prevented Plaintiff from filing a timely complaint. See Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994); Blystra v. Fiber Tech. Group, Inc.,
407 F. Supp. 2d 636, 645 (D.N.J. 2005).
Perhaps recognizing the difficulty of surmounting Defendant’s statute of
limitations defense, in his opposition, Plaintiff amends his theory of the case.
Specifically, Plaintiff argues that this action actually arises from Defendant’s April 6,
2008 text messages, in which Defendant “promised in writing” to make weekly payments
to Plaintiff. Pl.’s Am. Opp’n Br. 15, ECF No. 35. This argument fails because Plaintiff
has produced no evidence from which a reasonable jury could conclude that
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consideration existed for that alleged agreement. See Starr v. Katz, No. 91-3365, 1994
WL 548209, at *13 (D.N.J. Oct. 5, 1994) (“It is common sense as well as a common law
rule that performance completed before a promise is made cannot be a bargained-for
exchange for that promise.”). Additionally, under New Jersey law, an acknowledgement
or promise to pay a debt will only restart the statute of limitations if it is unconditional
and in a signed writing. N.J. Stat. Ann. § 2A:14-24. Here, Defendant explicitly stated in
his text messages that he does not owe Plaintiff – or anyone – any money, but that he
would be willing to help Plaintiff. Rubinsky Dep. 137:6-144:25; Wagner Decl. Ex. M
14:7-18 (stating “I am not obliged to pay anything” and “don’t own a soul anythings”).
Accordingly, no reasonable jury could conclude that Defendant made an unconditional
promise to pay the alleged debt.
IV.

CONCLUSION

For the above reasons, Defendant’s motion for summary judgment is GRANTED.
An appropriate order follows.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: June 4, 2015

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