United States District Court, D. Maryland
Lipton Hollander United States District Judge.
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.
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.
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. Plaintiff replied (ECF 120,
“Reply”) and submitted additional exhibits. ECF
120-1 to ECF 120-5.
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).
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.
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.
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.
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.
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.”
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.
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. 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.
[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
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.
following exchange is also pertinent, id.:
[Plaintiff's Counsel]: Well, you owe the money
[Plaintiff's Counsel]: You borrowed the money: you owe
[Agbodjogbe]: No doubt about it.
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).
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).
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.
“[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).
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, ...