Vietnam Land v. Tran

Filing 110

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 107 Amended Memorandum and Recommendations, granting 74 MOTION for Summary Judgment , denying 75 MOTION to Dismiss Third-Party Complaint, denying 76 MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
March 18, 2016

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
VIETNAM LAND

David J. Bradley, Clerk

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Plaintiff,

v.

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JIMMY TRAN,

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Defendant,
v.

HOANG-YEN THI DANG,
Third-Party Defendant.

Civil Action No. H-14-957

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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION

Pending before the court is the Magistrate Judge's Amended
Memorandum and Recommendation, the objections of Plaintiff Vietnam
Land and the response to the objections filed by Defendant Tran.
The court has conducted a de novo review of the pleadings and
finds that the affidavits submitted by Vietnam Land fail to raise
a triable issue of fact.

The affidavit of Hoa Huu Pham, which was

executed prior to the filing of this lawsuit, simply states that he
has "full knowledge about all the facts stated in this lawsuit.

I

hereby state that all the facts stated in this lawsuit are true and
correct." 1
averment

This conclusory affidavit fails to rebut any factual

made

by

Defendant

Tran

in

support

of

his

motion

for

See Doc. 68-1, Ex. 1 to Pl.'s Objections to Am. Mem & Rec., Aff.
of Hoa Huu Pham p. 1. The affidavit is dated May 23, 2011.
A copy is
attached to Plaintiff's amended complaint filed November 12, 2012.
See Doc.
6-1, Aff. of Hoa Huu Pham p. 1.

summary judgment because it was executed three years before Tran's
affidavit. 2

The additional affidavits of Hoa Huu Pham and Tam Van

Dinh, also executed prior to the filing of this lawsuit,
raise

any

fact

issue

of

fiduciary duty, theft,

fraud,

breach

of

contract,

breach

that Tran does not contest.
do not

raise

of

conversion or embezzlement as they merely

state that Tran signed checks on behalf of Vietnam Land,

documents

fail to

a

Finally,

triable

unverified,

issue

of

fact

on

a fact

untranslated
any claim.

Plaintiff has failed to rebut Tran's summary judgment evidence and
summary judgment in his favor is appropriate.
The Amended Memorandum and Recommendation is ADOPTED.
SIGNED at Houston, Texas, this

/Bfh

day of March, 2016.

SIM LAKE
UNITED STATES DISTRICT JUDGE

2

See Doc. 74-1, Ex. 1 to Tran's Mot. for Summ. J., Aff. of Jimmy
Tran executed May 4, 2015.

2