Johannes Baumgartner Wirtschafts-Und Vermögensberatung v. Salzman

969 F. Supp. 2d 278, 2013 WL 4735655, 2013 U.S. Dist. LEXIS 125528
CourtDistrict Court, E.D. New York
DecidedSeptember 3, 2013
DocketNo. 08-CV-2582 (JS)(AKT)
StatusPublished
Cited by22 cases

This text of 969 F. Supp. 2d 278 (Johannes Baumgartner Wirtschafts-Und Vermögensberatung v. Salzman) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johannes Baumgartner Wirtschafts-Und Vermögensberatung v. Salzman, 969 F. Supp. 2d 278, 2013 WL 4735655, 2013 U.S. Dist. LEXIS 125528 (E.D.N.Y. 2013).

Opinion

MEMORANDUM & ORDER

SEYBERT, District Judge:

Pending before the Court are the following: (1) Magistrate Judge A. Kathleen Tomlinson’s Report and Recommendation (“R & R”) that the motion for partial default judgment filed by Plaintiffs Johannes Baumgartner Wirtschafts-Und Vermógensberatung GmbH (“JBWV”) and Holger' Knut Theiler (“Theiler,” and together with JBWV, “Plaintiffs”) on their claims for fraud, conversion, unjust enrichment, conspiracy, and gross negligence against Defendants Aykut Hasan Bolükbasi (“Bolükbasi”), Murat Ozkan (“Ozkan”), and Hakan Metin (“Metin”) be granted in part and denied in part (Docket Entries 247, 329) and Bolükbasi, Ózkan, and Metin’s objections thereto (Docket Entry 347); (2) Judge Tomlinson’s R & R that Plaintiffs’ motion for final partial default judgment on their claims for breach of contract, securities fraud, and violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) against Defendants Peter Schmidt (“Schmidt”), Ambiente GmbH (“Ambiente”), Moritz Johannes Wagner (“Wagner”), Carter Bailey Oppenheim & Dryfus Inc. (“CBOD”), J. Greenbaum (“Greenbaum”), John Ralston (“Ralston”), Karen Slacum a/k/a Karen [282]*282Slocumb (“Slacum”), Agents for Delaware Corporations (“ADC”), Hiiseyin Coban (“Coban”), Boliikbasi, Ozkan, and Metin be granted in part and denied in part (Docket Entries 306, 333) and Plaintiffs’ and Boliikbasi, Ozkan, and Metin’s objections thereto (Docket Entries 343, 347); (3) Plaintiffs’ unopposed motion to reinstate their claims against Defendants Stanley P. Salzman (“Salzman”), Stanley P. Salzman P.C. (“Salzman P.C.”), and Friesner & Salzman P.C. (together, the “Salzman Defendants”) (Docket Entry 315); (4) Plaintiffs’ motion to reinstate their claims against Defendants Martin Brian Tobias-Gibbins (“Gibbins”) and Meytec Capital Holdings Limited (“Meytec”) (Docket Entry 311); and (5) Gibbins and Meytee’s cross-motion to declare the settlement agreement between Plaintiffs and Gibbins and Meytec breached (Docket Entry 319).

For the following reasons, the Court SUSTAINS Boliikbasi, Ozkan, and Metin’s objections to Judge Tomlinson’s R & Rs and OVERRULES Plaintiffs’ objections; ADOPTS IN PART Judge Tomlinson’s R & Rs; DENIES Plaintiffs’ motions for default judgment; DENIES Plaintiffs’ motions to reinstate their claims against the Salzman Defendants and Defendants Gibbins and Meytec; and DENIES Defendants Gibbins and Meytec’s motion to enforce the settlement agreement.

BACKGROUND

The Court assumes familiarity with the underlying facts of this case, which are detailed in both of Judge Tomlinson’s R & Rs. Thus, this section will be limited to this case’s lengthy procedural history.

Plaintiffs commenced this action on June 27, 2008, asserting violations of RICO, federal securities laws, and New York state common law arising out of a purported advanced fee fraud.1 On September 10, 2008, the Clerk of the Court noted the default of Defendants CBOD, Greenbaum, and Ralston (Docket Entries 11-13), and, on September 11, 2008, Plaintiffs filed a motion for a partial default judgment against those defendants on their state law fraud, conversion, unjust enrichment, conspiracy, and gross negligence claims (Docket Entry 14), which the undersigned referred to Judge Tomlinson for an R & R (Docket Entry 26). Judge Tomlinson issued her R & R on August 14, 2009, recommending that the Court enter a partial default judgment against these defendants on those claims but defer calculating damages until resolution of the entire case. (Docket Entry 57.) The Court adopted this R & R in its entirety on September 10, 2009, 2009 WL 2998958. (Docket Entry 60.)

On September 11, 2009, Plaintiffs moved for leave to file a Second Amended Complaint2 which set forth additional defendants.3 (Docket Entry 62.) Judge [283]*283Tomlinson granted that motion on September 17, 2009. (Docket Entry 63.) Thereafter, Plaintiffs voluntarily dismissed the claims against Marilyn Salzman with prejudice (Docket Entry 86), against the Salzman Defendants without prejudice (Docket Entry 128), against Universal Metal without prejudice (Docket Entry 171), against BHW, Postbank, Kaubisch, and Kroner without prejudice (Docket Entry 235), and against the FIFO Defendants with prejudice (Docket Entry 253). Plaintiffs also consented to the entry of judgment against Gibbins and Meytec in the amount of $7,536,345.00. (Docket Entry 234.)

In the interim, Plaintiffs requested that the default of Defendants Slacum and ADC be entered by the Clerk of the Court and moved for a partial default judgment against Slacum and ADC on their state law fraud, conversion, unjust enrichment, conspiracy, and gross negligence claims. (Docket Entries 73, 77.) The Clerk of the Court noted their defaults (Docket Entries 75-76), and the Court referred the motion for a partial default judgment to Judge Tomlinson for an R & R (Docket Entry 91). Judge Tomlinson issued an R & R on August 24, 2010, 2010 WL 3937300, recommending that the Court enter a partial default judgment against these defendants on these claim but defer calculating damages until resolution of the entire case. (Docket Entry 217.) Plaintiffs filed objections to Judge Tomlinson’s R & R to the extent that she recommended deferring the calculation of damages and the entry of judgment. . (Docket Entry 220.) The Court sustained Plaintiffs’ objections, thus overruling the portion of Judge Tomlin-son’s R & R that recommended delaying an assessment of damages, and granted Plaintiffs’ motion for a partial default judgment in its entirety. (Docket Entry 240.) A partial judgment was entered against Slacum and ADC jointly and severally in the amount of $3,600,000 in liquidated damages plus $821,982.42 in statutory interest in favor of JBWV and in the amount of $200,000.00 in liquidated damages plus $68,301.33 in statutory interest in favor of Theiler. (Docket Entry 240.)

Plaintiffs filed similar motions for partial default judgment against Defendants Ambiente, Schmidt, Veli, Kocabas, Coban, Karli, and Wagner (Docket Entries 145, 149, 157, 173, 184, 189) after receiving certifications of their respective defaults from the Clerk of the Court (Docket Entries 138-39, 141, 143, 153, 169, 180). These motions were all referred to Judge Tomlinson for R & Rs. (Docket Entries 154, 177, 187, 194.) Judge Tomlinson issued three separate R & Rs addressing these motions on February 24, 2011 (Docket Entries 262-64), which the Court adopted in their entirety (Docket Entry 269). That Order concluded, in relevant part, as follows:

1. A partial default judgment is entered in Plaintiffs’ favor, and against Defendants Ambiente GMBH, Peter Schmidt, Muhsin Karakurt a/k/a Muhsin Veli, Mehmed Kocabas, Hüseyin Coban, Ali Karli, Moritz Johannes Wagner d/b/a C.B.O.D. Serviceburo Germany, on the state law claims of fraud, conversion, unjust • enrichment, conspiracy and gross negligence.
[284]*2842. Defendants Ambiente GMBH, Peter Schmidt, Muhsin Karakurt a/k/a Muhsin Veli, Mehmed Kocabas, Hüseyin Coban, Ali Karli, Moritz Johannes Wagner d/b/a C.B.O.D. Serviceburo Germany; Carter Bailey Oppenheim & Dryfus, Inc., J. Greenbaum, and John Ralston are jointly and severally liable:
a.

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969 F. Supp. 2d 278, 2013 WL 4735655, 2013 U.S. Dist. LEXIS 125528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johannes-baumgartner-wirtschafts-und-vermogensberatung-v-salzman-nyed-2013.