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Al-Sabah v. Agbodjogbe

United States District Court, D. Maryland

January 14, 2019

ALIA SALEM AL-SABAH, Plaintiff,
v.
JEAN AGBODJOGBE, et al., Defendants.

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge.

         Plaintiff Alia Salem Al-Sabah, a citizen of Kuwait, filed suit in March 2017 against multiple defendants, including Jean Agbodjogbe; Nandi Scott; N&A Kitchen, LLC (“N&A Kitchen”); N&A Kitchen II, LLC; 5722 York Road, LLC; 9 Jewels, LLC; and ASA Foundation, Inc. ECF 1. She alleged, inter alia, that Agbodjogbe “orchestrated” a “scheme” by which he “misappropriate[d] millions of dollars entrusted to him” by plaintiff for “investment opportunities” and for charity. Id. ¶ 1. Subject matter jurisdiction is founded on diversity of citizenship, pursuant to 28 U.S.C. § 1332.

         In a nine-count Amended Complaint filed in November 2017 (ECF 76), plaintiff alleges claims of fraudulent misrepresentation (Count I); fraudulent concealment (Count II); conversion (Count III); civil conspiracy (Count IV); detrimental reliance (Count V); unjust enrichment (Count VI); breach of contract (Count VII); and breach of agency duties (Count VIII). She also seeks a declaratory judgment (Count IX) (see Id. ¶¶ 46-93). Plaintiff seeks actual damages, punitive damages, and other equitable relief. Id. at 20-22.[1]

         After the parties had completed most discovery, plaintiff moved for partial summary judgment (ECF 115) against Agbodjogbe under Fed.R.Civ.P. 56, with respect to Count I (fraudulent misrepresentation) and Count VII (breach of contract). The motion for summary judgment is supported by a memorandum of law (ECF 115-1) (collectively, “Motion”) and several exhibits. ECF 115-2 to ECF 115-9. Defendants have filed an opposition to the Motion (ECF 116, “Opposition”), accompanied by multiple exhibits. See ECF 116-1 to ECF 116-4.[2] Plaintiff replied (ECF 120, “Reply”) and submitted additional exhibits. ECF 120-1 to ECF 120-5.[3]

         No hearing is necessary to resolve the motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion as to Count VII (breach of contract) but deny it as Count I (fraudulent misrepresentation).

         I. Factual Summary

         Al-Sabah first met Agbodjogbe in 2014 while she was visiting her daughter in Baltimore and went to his restaurant, Nailah's Kitchen. ECF 76, ¶ 14. While there, she purchased $8, 000 of Halal food to donate to members of a local Mosque whose kitchen was destroyed in a fire. Id.

         Agbodjogbe subsequently asked plaintiff to invest in his “fledging restaurant business, ” and she did. Id. ¶ 16. He also purported to help her with the creation of investment entities and charitable endeavors. See, e.g., id. ¶¶ 18, 23-26. Al-Sabah asserts that between October 2014 and January 2015, she transferred more than $3 million to Agbodjogbe for investment. Id. ¶ 26. However, according to Al-Sabah, he used most of these funds for his own financial gain. Id. ¶¶ 28-40.

         For example, Agbodjogbe formed a new entity, N&A Kitchen, for his restaurant partnership with Al-Sabah. Id. ¶ 18. He allegedly represented to plaintiff that she was a member and 50% owner of N&A Kitchen. Id. ¶ 19. However, the Complaint alleges that Agbodjogbe is the sole member of N&A Kitchen and may be its sole owner as well. Id. ¶ 29. Consequently, Al-Sabah asserts that when Agbodjogbe used her funds to purchase buildings through N&A Kitchen, “he effectively appropriated them for his own gain by putting them out of Ms. Al-Sabah's reach.” Id. ¶ 29.

         Denying these allegations, Agbodjogbe asserts that plaintiff “seeks to re-write history by claiming that the money she gifted to [him] was actually intended to be invested on her behalf, rather than given to [him] for his own investments.” ECF 116 at 1-2. For example, in early 2015, Agbodjogbe purchased a residential property located at 103 Mt. Wilson Lane, Baltimore, Maryland, for $470, 000 in cash, using a portion of an $825, 000 wire he received from Al-Sabah. ECF 115-1 at 2. Agbodjogbe claims that plaintiff authorized him “to use some of these funds to purchase a home for his family.” ECF 115-2 at 3. But, Al-Sabah maintains that she “had no knowledge of when the house was purchased, or that the purchase was funded with her money, and specifically denies that she ever authorized Agbodjogbe to buy himself a half-million-dollar home using her money.” Id. at 2-3.

         In deposition, Al-Sabah testified that she became suspicious of Agbodjogbe in April 2016, ECF 116-1 at 3, p. 185, and stopped transferring money to him. ECF 76, ¶ 41; ECF 116-1 at 3, p. 185 (“I told him no more investments, finish.”). She “demanded documentation relating to the entities purportedly formed and the transactions purportedly entered into by Mr. Agbodjogbe on her behalf.” ECF 76, ¶ 41; see also ECF 116-1 at 3, p. 185 (“I want to see papers”). According to Al-Sabah, her requests for documentation “were met with further delays and misrepresentations, ” and eventually Agbodjogbe “became completely unresponsive to [her] attempts to communicate with him.” Id.

         On July 13, 2016, defendant Nandi Scott, who is married to Agbodjogbe, e-mailed Al-Sabah. See ECF 115-5 at 2. Scott claimed that Agbodjogbe “took out a loan against [their] home last year” and “has now defaulted on the loan.” Id. She requested $350, 000, explaining that if the loan is “not paid by Friday our home will go into foreclosure and we will be evicted.” Id. She asked Al-Sabah to call her, id., but Al-Sabah “never responded to the e-mail.” ECF 115-6 at 3.

         The same day that Al-Sabah received Scott's email, she “telephoned Agbodjogbe seeking additional information regarding the alleged foreclosure/eviction scenario.” ECF 115-1 at 5. That night Agbodjogbe left her a WhatsApp voice message, explaining that the bank would evict him and his family from their home if they failed to make their upcoming loan payment.[4] He stated, ECF 115-7 at 5 (Transcription of voice message, prepared by plaintiff's counsel):

Salaam Alaikum, sister. It's 11:00 o'clock here. I'm a little bit tired. On my way home. Mashallah, Nandi's father bring us another $100, 000. So, that's $200, 000 he give us. And, my friend give me also today a check for [$]85, 000. So, we [are] only short $165, 000. And, like I told Nandi, whatever Allah decide, I will accept it. This is not the end of the world. Mashallah, if you can help us for the sake of the children, Alhamdulillah, you know we'll really appreciate it. And whatever we have to do, we'll pay it back. But, you know, I was telling you this morning, ah, Allah already made a decision if the house going to be sold, it's going to be sold. If the house won't be sold, then Allah say we'll keep it-we'll keep it. So, you know, I understand her as a woman, but I want her belief to be stronger to know that everything was planned by Allah. You know, and this is the end result, Alhamdulillah. . . . So, Inshallah you know we have up until Friday morning at 10:00 o'clock, that's when the eviction, and the lawyer for the bank say if we bring the cashier's check by 8:30 - 9:00 o'clock, he'll stop the eviction and we'll pay the lawyer fee which is like $4, 000 that I have. And, you know, we only short $165, 000. So, Mashallah, if you can do it for the sake of the children, Alhamdulillah. I really appreciate you. And, uh, I was very upset, you know, with her for her, you know, calling you and sending you e-mails because she don't have no place doing that. I'm the man of the house. I should find a way to do, eh, fix it. You know, Alhamdulillah. You know, I'll wait for your call or your response, Inshallah. And, if it's possible before Friday 8:30 -9:00 o'clock, Alhamdulillah. Salaam Alaikum.

         “Despite [plaintiff's]” misgivings, in July 2016, “through one of her charities, ” Al-Sabah provided Scott and Agbodjogbe “an interest free loan in the amount of $150, 000.00, secured by a check of $150, 000.00 drawn on the N&A Kitchen deposit account.” ECF 76, ¶ 43; see ECF 115-4 (Agbodjogbe deposition) at 13 (stating that the loan was made in 2016); ECF 116-1 (Al-Sabah deposition) at 3, p. 185 (stating the loan was made in July 2016). Notably, Agbodjogbe has said, ECF 115-4 at 15: “I believe it was a one year free interest loan”); see also ECF 115-9 (N&A Kitchen's bank statement reflecting receipt of $150, 000 from Al-Sabah).

         Agbodjogbe is allegedly the sole member of N&A Kitchen. ECF 76, ¶ 6. He acknowledges that the $150, 000 represented a loan and not a gift. At his deposition, Agbodjogbe said: “The money was lended [sic] to me. It was not gifted to me. It was lended to me.” ECF 115-4 at 14. Moreover, he admits that he has not yet repaid the loan. Id. (acknowledging three times that he still owed the money). Notably, at his deposition, Agbodjogbe was asked: “[S]o you still owe the money?” Id. at 15. He responded: “Totally correct and it would be paid if -- if things get better.” Id.

         The following exchange is also pertinent, id.:

[Plaintiff's Counsel]: Well, you owe the money regardless, right?
[Agbodjogbe]: Correct.
[Plaintiff's Counsel]: You borrowed the money: you owe the money.
[Agbodjogbe]: No doubt about it.

         II.

         Standard of Review

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate only “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.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); see also Formica v. Aylor, 739 Fed. App'x 745, 754 (4th Cir. 2018); Iraq Middle Mkt. Dev. Found. v. Harmoosh, 848 F.3d 235, 238 (4th Cir. 2017). The nonmoving party must demonstrate that there are disputes of material fact so as to preclude the award of summary judgment as a matter of law. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also Gordon v. CIGNA Corp., 890 F.3d 463, 470 (4th Cir. 2018).

         The Supreme Court has clarified that not every factual dispute will defeat a summary judgment motion. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

         A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. at 248. There is a genuine issue as to material fact “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018); Sharif v. United Airlines, Inc., 841 F.3d 199, 2014 (4th Cir. 2016); Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016); Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013). On the other hand, summary judgment is appropriate if the evidence “is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 252. And, “the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id.

         Notably, “[a] party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings,' but rather must ‘set forth specific facts showing that there is a genuine issue for trial.'” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)), cert. denied, 514 U.S. 1042 (2004); see also Celotex, 477 U.S. at 322-24. And, the court must view all of the facts, including reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd., 475 U.S. at 587; accord Variety Stores, Inc., 888 F.3d at 659; Gordon, 890 F.3d at 470; Roland v. United States Citizenship & Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017); Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).

         The district court's “function” is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; accord Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Thus, in considering a summary judgment motion, the court may not make credibility determinations. Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007). Therefore, in the face of conflicting evidence, such as competing affidavits, summary judgment ordinarily is not appropriate, because it is the function of the fact-finder to resolve factual disputes, ...


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