BLUESTAREXPO, INC. v. Enis

United States District Court

for the

Southern District of Florida

BluestarExpo, Inc., Plaintiff, )

)

v. ) Civil Action No. 21-20875-Civ-Scola

)

Jay L. Enis and others, )

Defendants. )

Omnibus Order on Motions for Summary Judgment

Plaintiff BluestarExpo, Inc., seeks to recover $300,000 in payments and

$35 million in lost profits from individual Defendants Jay L. Enis, Grovind

Srivastava, and Syed Ali Abbas; and entity Defendants The Enis Family Trust

(the “Trust”), Soleil Chartered Bank, and R & T Pharmacy Corp. (2nd Am.

Compl. (“Compl.”), ECF No. 33.) Previously, the Court dismissed several of the

seventeen counts set forth in the complaint, some in their entirety, some as to

only certain Defendants. (Court’s Order of Part. Dismissal, ECF No. 44.) Later,

the Court struck Soleil’s answer and the Clerk entered a default against it,

thus rendering moot issues regarding Soleil’s liability as to counts one, two,

eleven, fifteen, sixteen, seventeen, at least as far as the cross motions for

summary judgment are concerned. (Court’s Order Adopting Rep & Rec., ECF

No. 153.) The following claims, then, are at issue with respect to the pending

and fully briefed cross motions for summary judgment and the indicated

Defendants:

Count Defendant

One: Fraudulent misrepresentation Srivastava and Abbas

Four: Civil theft The Trust

Seven: Unjust enrichment The Trust

Eight: Breach of Contract Enis and R&T

Eleven: Civil conspiracy All Defendants (except Soleil)

Sixteen: Florida’s Deceptive and Unfair Enis, and R&T

Trade Practices Act

The parties each claim, in their respective motions, that there are no

issues of material fact and that they are each entitled to summary judgment as

a matter of law regarding the relevant claims. Enis, R&T, and the Trust

(collectively, the “Enis Defendants”) filed a joint motion, claiming Bluestar has

been unable to adduce evidence establishing its claims for civil theft, unjust

enrichment, breach of contract, civil conspiracy, or FDUTPA. (Enis Defs.’ Mot.

for Summ. J., ECF No. 118.) Srivastava and Abbas filed a joint motion,

captioned as a motion for summary judgment, but arguing that the counts

against them, for fraudulent misrepresentation and civil conspiracy should be

dismissed. (Srivastava and Abbas’s Mot. for Summ. J., ECF No. 112.)

Conversely, Bluestar has filed a motion for summary judgment, arguing that

the record clearly establishes its entitlement to judgment in its favor on all

remaining counts. (Pl.’s Mot. for Summ. J., ECF No. 115.) All three motions are

fully briefed and ripe for the Court’s review. For the following reasons, the

Court denies Bluestar and Srivastava and Abbas’ motions in their entireties

(ECF Nos. 112, 115) and grants in part and denies in part the Enis

Defendants’ motion (ECF Nos. 118).

1. Background

Several months into the COVID-19 pandemic, Farris Hussain and Perry

Crooke, through Bluestar, their North Carolina company, incorporated in

Delaware in April 2020, began negotiating a deal involving the purchase and

immediate resale of thirty-million boxes of powder-free nitrile examination

gloves. To that end, Bluestar says it intended to purchase the gloves from Wish

Paradise Corp., a Taiwanese company, for $250 or $285 million, and then

resell them, upon receipt, to a buyer that Bluestar had already lined up. (Pl.’s

Stmt. of Facts ¶ 8, ECF No. 116; Enis Defs’ Stmt. of Facts ¶5, ECF No. 117.)

Bluestar maintains it expected the profit on the deal would be at least $30

million. (Pl.’s Stmt. ¶ 13.) Bluestar did not, however, have access to the funds,

itself, necessary to purchase the gloves. (Enis Defs.’ Stmt. ¶ 10.)

Much of the parties’ dispute centers on whether Bluestar’s negotiations

with Wish ever actually ripened into a contract. Bluestar says that a key

component of its purported agreement with Wish was its proffering of “a bank

comfort letter from a U.S.-chartered bank to Wish showing Bluestar’s ability to

tender $250,000,000 in payment.” (Pl.’s Stmt. ¶ 10.) The Defendants question

whether this was really part of Wish’s requirements. (Enis Defs.’ Resp. to Pl.’s

Stmt. ¶ 10, ECF No. 129.) In any event, in its quest for a comfort letter,

Bluestar was introduced to Enis, a Florida citizen, residing in Miami Beach,

and his company, R&T, a pharmaceutical company located in Brooklyn, New

York, in May or June 2020, through a mutual acquaintance—Crooke’s travel

agent. (Pl.’s Stmt. ¶¶ 3, 6, 11.) According to Bluestar, Enis represented himself

and R&T Pharmacy “as multibillionaires and transactional lenders who could

fund Bluestar’s transaction with Wish.” (Id. ¶ 14.) The Defendants, however,

dispute this, maintaining that Enis never agreed to “fund” the transaction,

instead only agreeing, through R&T, to provide a bank comfort letter,

“confirming the availability of $250,000,000 in funds.” (Enis Defs.’ Resp. Stmt.

¶ 14.) Bluestar says that, in exchange for the comfort letter and the funding, it

agreed to pay Enis 45% of all profits which it estimated would range between

$12 and $14 million. (Pl.’s Stmt. ¶ 17.) While the Defendants do not dispute

the percentage breakdown, they insist any profits were to be paid to R&T, as

opposed to Enis himself, and that neither Enis nor R&T ever agreed to fund the

transaction. (Enis Defs.’ Resp. Stmt. ¶¶ 12, 17.) Enis acknowledges that

Bluestar specifically wanted a comfort letter from a United States chartered

bank. (Enis Dep. 21:3–5, ECF No. 114-2.)

To procure the comfort letter, Enis reached out to a contact in Brooklyn,

Rabbi Abraham Nussenzweig, for help. (Pl.’s Stmt. ¶ 20.) Nussenzweig, put

Enis in contact with Abbas, whose title was “director of Middle East north

Africa trade,” at either Soleil Bank or its affiliate. (Id. ¶ 23; Srivastava and

Abbas’s Resp. to Pl.’s Stmt. ¶ 5, ECF No. 125, 2.) This was Enis’s first contact

with Soleil Bank, a bank registered and licensed under the laws of the Union of

the Comoros—a group of islands off the eastern coast of Africa. (Pl.’s Stmt. ¶¶

4, 24.) Ultimately, Enis obtained a draft comfort letter from Soleil Bank,

forwarding it to Bluestar on June 27, 2022. (Enis Defs.’ Stmt. ¶ 29.) The letter

read as follows: “We, Soleil Chartered Bank, hereby confirm, with full bank

responsibility and liability on behalf of our client account name R&T Pharmacy

Corp. having account no: 2001RNTPHR7ETS8 has cash funds and/or credit

line the amount of USD 250,000,000.00 (USD Two Hundred and Fifty Million

Only).” (Enis Defs.’ Resp. Stmt. ¶ 28.)

Enis asked Hussain and Crooke to review the draft, with blank signature

lines provided for Srivastava and Abbas, and to confirm if it was acceptable.

(Enis Defs.’ Stmt. ¶ 29.) On the letter, Srivastava is identified as “Managing

Director” and Abbas as “Director – MENA Trade Finance.” (ECF No. 1-3.) The

letter’s footer also indicates Soleil Bank is registered in Comoros. (Enis Defs.’

Stmt. ¶ 32.) Bluestar determined that the letter “seem[ed] like it was what

[Bluestar] want[ed] it to say” and wired out $300,000—the amount Bluestar

says it understood to be its portion of the fee for the issuance of the letter. (Id.

¶¶ 36–7.) Bluestar maintains Enis said that he had already sent $625,000 to

Soleil Bank, in payment for the letter, and told Bluestar to send its share of the

fee—the $300,000—to his family trust. (Pl.’s Stmt. ¶ 41.) Enis denies telling

Bluestar that he sent the $625,000, maintaining that “as of that time, he

already paid” what he refers to as “the $250,000 initial payment” to Soleil

Bank. (Enis Defs.’ Resp. Stmt. ¶ 41.) Regardless, Enis received the executed

comfort letter from Soleil, signed by both Srivastava and Abbas, with the exact

same verbiage as the draft, and then forwarded it to Bluestar. (Enis Defs.’

Stmt. ¶ 40.) Although the timing of the parties’ payments and transfers is

contested, it is undisputed that Bluestar wired $300,000 to the Trust and that

the Trust wired $250,000 to Soleil Bank, or to an account associated with a

Soleil Bank affiliate.

Bluestar says that, ultimately, Wish rejected the letter, complaining that

Soleil Bank was not a reputable bank. (Pl.’s Stmt. ¶ 47.) The Defendants

dispute this, maintaining Wish never even received the letter, much less

rejected it. (Enis Defs.’ Resp. ¶ 47.) Wish’s involvement or non-involvement

notwithstanding, Bluestar maintains the letter was fraudulent because, in

reality, R&T had neither $250 million in funds nor a $250 million credit line.

(Pl.’s Stmt. ¶ 28.) Bluestar, additionally, complains that Soleil Bank itself also

never had control of funds that would be required to back a $250 million credit

line. (Id. ¶ 33.) Further, says Bluestar, all of the Defendants were well aware of

these purported deficiencies and misrepresentations. (Id. ¶ 32, 34.) To be clear,

the Defendants do not dispute that R&T was unable to fund a $250 million

transaction with its own funds. (Enis Defs.’ Resp. ¶ 32.) Instead, at the heart of

the parties’ dispute is whether the comfort letter represented that it could:

Srivastava and Abbas maintain that the letter’s reference to a credit line relates

to the collateral of the transaction—the $250 million worth of nitrile gloves

(Srivastava and Abbas’s Resp. to Stmt. ¶ 37); while Enis testified, along these

same lines, that he only deals with “transaction financing” and that, typically,

the credit in a given deal will depend on the transaction itself (Enis Dep. 13:2–

8).

As a result of these events, Bluestar seeks not only the return of the

$300,000 it paid for the purportedly bogus comfort letter but also the tens of

millions of dollars it says it lost out on as a result of the comfort letter’s

triggering the collapse of its deal with Wish.

2. Legal Standard

Summary judgment is proper if following discovery, the pleadings,

depositions, answers to interrogatories, affidavits and admissions on file show

that there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986); Fed. R. Civ. P. 56. “An issue of fact is ‘material’ if, under the

applicable substantive law, it might affect the outcome of the case.” Hickson

Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir.2004). “An issue of

fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact

to find for the nonmoving party.” Id. at 1260. All the evidence and factual

inferences reasonably drawn from the evidence must be viewed in the light

most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S.

144, 157 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th

Cir. 2004).

Once a party properly makes a summary judgment motion by

demonstrating the absence of a genuine issue of material fact, whether or not

accompanied by affidavits, the nonmoving party must go beyond the pleadings

through the use of affidavits, depositions, answers to interrogatories,

admissions on file and other documents, and designate specific facts showing

that there is a genuine issue for trial. Celotex, 477 U.S. at 323–24. The

nonmovant’s evidence must be significantly probative to support the claims.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court will not

weigh the evidence or make findings of fact. Anderson, 477 U.S. at 249;

Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). Rather, the

Court’s role is limited to deciding whether there is sufficient evidence upon

which a reasonable juror could find for the nonmoving party. Id. “If more than

one inference could be construed from the facts by a reasonable fact finder,

and that inference introduces a genuine issue of material fact, then the district

court should not grant summary judgment.” Bannum, Inc. v. City of Fort

Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990).

3. Analysis

A. Piercing the Corporate Veil

As an initial matter, the Enis Defendants and Bluestar disagree as to

whether R&T’s corporate veil can be pierced such that Enis can be held liable

for R&T’s debts. The Enis Defendants seek summary judgment in their favor on

this issue, arguing that Bluestar has failed to provide any record evidence that

would support a finding of alter-ego liability. (Enis Defs.’ Mot. at 22.) In

responding, Bluestar seems to conflate two separate issues: Enis’s individual

liability, on the one hand, versus Enis’s alter-ego liability for R&T’s debts, on

the other. (Pl.’s Resp. at 14–16.) Because the Court agrees with the Enis

Defendants, that Bluestar has not come forward with any evidence that R&T is

the mere alter ego or instrumentality of Enis, it grants summary judgment in

their favor on this issue.

To begin, “[a] mere instrumentality finding is rare.” Segal v. Forastero,

Inc., 322 So. 3d 159, 163 (Fla. 3d DCA 2021) (cleaned up). In order to pierce

R&T’s corporate veil, Bluestar has to prove three factors: (1) Enis “dominated

and controlled [R&T] to such an extent that [its] independent existence, was in

fact non-existent” and Enis was in fact R&T’s alter ego; (2) R&T’s “corporate

form must have been used fraudulently or for an improper purpose”; and (3)

“the fraudulent or improper use of [R&T’s] corporate form caused injury to

[Bluestar].” Gasparini v. Pordomingo, 972 So. 2d 1053, 1055 (Fla. 3d DCA

2008).

Bluestar’s attempt to marshal record evidence sufficient to pierce R&T’s

corporate veil stumbles out of the gate, with the first factor. In seeking to

establish Enis’s domination and control, such that R&T had no separate

existence independent from Enis, Bluestar points to various factors: R&T’s

insolvency as of 2018; R&T’s abandonment of its primary place of business in

Brooklyn; Enis’s receipt of payment, through the Trust, rather than R&T, of the

$300,000 from Bluestar; Enis’s failure to make clear, in his email exchanges

with Bluestar, that “he was acting solely in his role as president of defunct

R&T”; and Enis’s use of an email address associated with a private merchant

bank Enis was affiliated with rather than with an R&T domain name. (Pl.’s

Resp., ECF No. 128, 15.) While these aspects of R&T and Enis’s relationship

with R&T hint at a poorly run, sloppily maintained, and apparently collapsing

corporate entity, they fall short of setting forth facts, even read in the light

most favorable to Bluestar, from which the Court could infer that R&T actually

had no existence apart from Enis. See Hilton Oil Transport v. Oil Transport Co.,

S.A., 659 So. 2d 1141, 1152 (Fla. 3d DCA 1995) (recognizing that facts showing

a shareholder’s operating his company in a “loose and haphazard manner”

does “not justify the imposition of personal liability against [the shareholder]”);

cf. Am. Intern. Group, Inc. v. Cornerstone Businesses, Inc., 872 So. 2d 333, 337

(Fla. 2d DCA 2004) (finding that a payment to a parent company, rather than

to its subsidiary, is insufficient to support disregarding the corporate form of

the subsidiary). This is especially so in light of record evidence showing that (1)

R&T maintained its own financial documents (e.g., ECF No. 114-4, 114-13); (2)

R&T filed its own tax returns (Enis Dep. 33:12–13); (3) R&T had its own bank

accounts (ECF No. 114-13); (4) R&T had been formed in 2016 and purchased

by Enis in 2018, operating, largely, as “pharmacy that specializes in

compounding prescriptions” as well as being “in the business of procuring

[personal protective equipment]” (Enis Dep. at 31:3–6, 18–23; 33:18–19); and

(5) R&T, at least at one point, employed a pharmacist and compounder (Id. at

31:9–14). These undisputed facts all show that R&T had “conducted significant

business undertakings,” and therefore had its own, separate identity, apart

from Enis. Segal, 322 So. 3d at 163 (concluding that, even where a contractual

obligation had been signed by a corporate entity that, at the time, had no

assets, business, or bank account, piercing the corporate veil was nonetheless

improper because the entity had been previously actively engaged in

commercial business).

As to the second and third elements, Bluestar’s showing also falls short.

Instead of identifying facts establishing that Enis specifically used R&T’s

corporate form fraudulently or for an improper purpose and that this use, in

particular, caused Bluestar’s injury, Bluestar instead argues, circularly, that

Enis should be held liable, for R&T’s debts, “because [Enis] conducted the

fraud not on his own behalf, but on the behalf of a bankrupt company over

which he was the sole owner and business-decision maker that he used as his

instrumentality.” (Pl.’s Resp. at 15.) While the Court agrees, as set forth below,

that the record establishes the need for a trial to determine genuine issues of

material fact with respect to Bluestar’s allegations of Enis and R&T’s improper

conduct, Bluestar fails to show, separate and apart from those issues, how

Enis’s use of the corporate form itself actually facilitated that conduct. In short,

Bluestar’s showing, as to the second and third elements, is purely conclusory

and bereft of any factual support.

As a final note, the Court recognizes that Bluestar, in addressing the

Enis Defendants’ alter-ego arguments, intermingles issues that relate to Enis’s

liability for his own conduct. Nothing about the Court’s analysis, above, as to

declining to disregard R&T’s corporate form, should be read to absolve Enis for

his own conduct.

B. Breach of Contract

Through its breach-of-contract claim, Bluestar describes the obligations

of “Enis/R&T” as having three facets: (1) “Enis/R&T’s promise to provide a

valid comfort letter truthfully stating that R&T had $250,000,000.00 in cash

funds available for the transaction with Wish”; (2) “the actual transfer of

$250,000,000.00 to Soleil to help facilitate the transaction between Bluestar

and Wish”; and (3) “transferring $250,000,000.00 to Wish for [the] impending

transaction.” (Compl. ¶ 69.) Bluestar alleges “Enis/R&T” breached their

agreement on two fronts: by failing to (1) provide a valid comfort letter and (2)

transfer $250 million to Soleil on Bluestar’s behalf. (Compl. ¶ 70.) In its

motion for summary judgment on its breach-of-contract claim, Bluestar’s

argument focuses on “Enis and/or R&T’s” obligation to provide funding for

Bluestar’s purchases of the gloves from Wish, making only passing reference to

its allegation that Enis and R&T also breached their agreement to provide a

valid comfort letter. (Pl.’s Mot. ¶¶ 41–42 (“Bluestar and [Enis] agreed that Enis

and/or R&T would provide funding for Bluestar’s purchase of $250 million in

nitrile gloves . . . .”) (“Enis and R&T’s failure to supply the funds necessary to

close on the transaction with Wish amounted to a material breach.”).) The

target of the Enis Defendants’ motion, on the other hand, is a bit broader. The

Enis Defendants argue Bluestar has failed to set forth any evidence

establishing that (1) Bluestar had any agreement with Enis individually; (2) the

comfort letter was fraudulent; or (3) Bluestar suffered lost-profit damages.

(Enis Defs.’ Mot. at 16–19.)

On the offensive side, Bluestar has failed to establish its entitlement to

summary judgment against either Enis or R&T on its breach-of-contract claim.

Bluestar acknowledges that it and Enis disagree as to the nature of their

agreement. Bluestar maintains that “[i]t is patently obvious to any observer

that the contract between Bluestar and Enis contemplated Enis and R&T’s

putting up funds to purchase $250 million in nitrile gloves.” (Pl.’s Mot. ¶ 10.) In

contrast, and as Bluestar points out, Enis insists and has testified that he

would receive a share of the proceeds for “providing a value” and “being able to

give [Bluestar] a bank comfort letter.” (Enis. Dep. 22:22–23:2; see also id. at

97:10–20 (referring to the value of Enis’s “intellectual capital” in facilitating the

transaction).) Despite the divergent record evidence, Bluestar maintains it is

nonetheless entitled to summary judgment on its breach of contract count

because “[i]t would be impossible for a reasonable jury to conclude that the

contract was anything other than . . . Enis and R&T[’s] providing the funds in

exchange for a large share of the profits.” (Pl.’s Mot. ¶ 10.) Indeed, says

Bluestar, no reasonable jury would believe that Bluestar agreed to pay Enis

such an “exorbitant amount of money” for simply referring Bluestar to a bank.

(Id. ¶ 41.) Further says Bluestar, Enis’s position is additionally undercut by

“his representation to Bluestar that Soleil Bank was reserving the credit facility

against [Enis’s] funds.” (Id. ¶ 41.)

Despite Bluestar’s characterization of Enis’s understanding of the

parties’ agreement as being absurd, the Court finds no way around this being a

credibility issue and, therefore, improper for a determination on a summary-

judgment basis. Viewing this evidence in the light most favorable to Enis and

R&T, a fact finder could choose to credit Enis’s testimony and find that, indeed,

the parties agreed that Enis or R&T would be compensated millions of dollars,

assuming the deal with Wish proceeded, for simply introducing Bluestar to a

bank that would provide the comfort letter and lending Enis or R&T’s expertise

and knowledge to the transaction. Other than Bluestar’s conclusory insistence

that it would be impossible for a reasonable jury to believe Enis’s testimony,

Bluestar provides no actual support for its position: even if a jury were to agree

with Bluestar that such an agreement might be irrational, it does not

necessarily follow that that jury would have to find that the parties in this case

acted reasonably or wisely. That is, parties are free to enter into lopsided or ill-

advised contracts if they so choose. Ultimately, then, Bluestar has failed to

demonstrate an absence of a genuine issue of material fact regarding its

version of what the parties actually agreed to. Because of Bluestar’s failure to

establish the nature of the contract, for the purposes of summary judgment, it

has also failed to show an absence of material fact regarding Enis and R&T’s

alleged breach of that contract or Bluestar’s entitlement to damages.

On the flip side, Enis and R&T maintain they are entitled to summary

judgment themselves on three distinct aspects of Bluestar’s breach-of-contract

claim: (1) whether Enis himself entered into any agreement with Bluestar; (2)

whether the comfort letter was fraudulent; and (3) whether Bluestar is entitled

to recover lost-profit damages based on the arrangement with Wish falling

apart. The Court finds the Enis Defendants fall short on establishing their

entitlement to summary judgment on the first two issues but agrees Bluestar

has failed to ward off summary judgment regarding its claims for lost profits.

As to Enis’s purported lack of individual liability, on Bluestar’s breach-

of-contract claim, the Enis Defendants point to evidence they say conclusively

shows that any agreement Bluestar might have had was with R&T and not with

Enis. For example, they proffer a draft joint-venture agreement that presented

R&T as the contracting party and Bluestar’s acknowledgment that the draft

agreement was consistent with Bluestar’s understanding of its agreement with

R&T. (Enis Defs.’ Stmt. ¶¶ 27–8.) The Enis Defendants also refer to Bluestar’s

testimony that it understood Enis to speak on behalf of R&T. (Id. ¶ 26.) The

Court agrees that these facts do indeed indicate that Bluestar likely believed it

had entered into a contract with R&T. The Court disagrees, however, that facts

showing Bluestar may have had an agreement with R&T necessarily preclude

an alternative or additional agreement that Bluestar may have had with Enis,

individually. The Enis Defendants also highlight Bluestar’s complaint

allegations, which repeatedly attribute the relevant breach-of-contract conduct

to “Enis/R&T,” as foreclosing Enis’s individual involvement. (Compl. ¶¶ 69–71.)

While the pleading is perhaps inartful, the Court is not convinced, without

more, that it shows that only R&T, and not Enis, entered into an agreement

with Bluestar for the purposes of summary judgment.

As to the second issue, according to the Enis Defendants, the only

circumstance Bluestar could point to in support of its claim that the comfort

letter was fraudulent or not valid “was the fact that Soleil is a bank registered

in the Union of Comoros.” (Enis Defs.’ Mot. at 17.) This is wholly inaccurate.

The Court finds no shortage of record evidence that shows the comfort letter

could have been fraudulent, on other bases: R&T had a negative net worth of

$1,234,419 as of December 31, 2019 (Pl.’s Add’l Facts ¶ 3, ECF No. 127, 11);

R&T reported income losses of $341,799 and $654,892 on its 2018 and 2019

tax returns, respectively (id.); and Enis agreed that R&T did not “have the

financial capacity to finance, on its own, a quarter-of-a-billion dollar

transaction to purchase latex gloves” (Enis Dep. 45:17–22). This evidence,

when read in the light most favorable to Bluestar, as the nonmoving party,

could be inferred to be directly at odds with the representations in the comfort

letter that R&T had, in July 2020, “cash funds and/or [a] credit line in the

amount of USD 250,000,000.00” through a purported account held by Soleil.

(Compl. ¶ 14.) Accordingly, summary judgment in the Enis Defendants’ favor

on this issue is not warranted.

Conversely, the Court agrees that Enis and R&T are entitled to summary

judgment on the issue of whether Bluestar is entitled to lost-profit damages.

Bluestar’s breach-of-contract claim rests on its allegations that “Enis/R&T”

breached the parties’ agreement in two ways: (1) failing to provide a valid

comfort letter; and (2) not transferring $250 million to Soleil on Bluestar’s

behalf. In order to succeed in its quest for lost profits, Bluestar must submit

“concrete evidence of causation.” Kaplan v. Nautilus Ins. Co., 861 F. App’x 798,

806 (11th Cir. 2021) (unpublished). In arguing causation, Bluestar centers its

position on the resale value of the gloves, had it received them “on or around

the time of the contract with Wish.” (Pl.’s Resp. at 16.) As Bluestar frames it,

Bluestar “would have been able to achieve millions of dollars in profits had it

been able to close on the deal with Wish.” (Id. at 17.) But Bluestar skips a step:

it fails to show, “with reasonable certainty that . . . the defendant’s action

caused the damage.” Kaplan, 861 F. App’x at 805 (cleaned up). That is,

Bluestar must first show, with evidence that rises above just speculation, that

Wish would have, indeed, sent the gloves had Enis or R&T provided a valid

comfort letter and transferred $250 million to Soleil on Bluestar’s behalf.

Record evidence of this, however, falls far short, as explained below.

First, Bluestar, in responding to the Enis Defendants’ motion for

summary judgment, relies heavily on what it describes as “undisputed evidence

that it was under contract with Wish to purchase $250 million of nitrile

gloves.” (Pl.’s Resp. at 16.) In support, Bluestar references a document titled

“SALES CONTRACT,” dated July 31, 2020. (Pl.’s Mot. for Summ. J., Ex. 5,

Sales Contract, ECF No. 114-5.) Although not a model of clarity, that document

purports to be an agreement between Bluestar and Wish, under which Bluestar

agrees to purchase and Wish agrees to sell thirty million boxes of various sizes

of “Nitrile Medical Grade Pow[d]er Free Disposable Examination Gloves” for

$285 million. (Id. at 2.) According to the document, the “[d]elivery schedule” is

“5 working days after receiving the balance payment.” (Id.) The mechanism or

structure of the payment is not entirely clear as the agreement says “[t]he

actual contract value shall be paid by two parties according to the settlement

and contract with goods quantity that is accepted, delivered and signed by the

person that is authorized by two parties.” (Id. at 5.) The delivery location is

identified as Long Beach, California and requires that, “[a]fter the two parties

sign the Contract”—the contract appears to be signed by representatives from

both Bluestar and Wish—“[Bluestar] will transfer by wire 100% of the contract

value BY CASH (TT) immediately when [Wish] provides all shipping documents,

SGS REPORTS and all necessary export documents.” (Id. (capitalization and

wording as in original).) It’s not entirely clear how many units Wish agreed to

ship, or when, because in one place the contract appears to require that the

“first shipment has to guarantee at least 3,000,000 cartons”—the equivalent of

thirty million boxes—which “will be ready to delivery in 7 days after contract

takes effect and receive THE DOWN PAYMENT.” (Id. at 6 (capitalization and

wording as in original).) Elsewhere, in contrast, the agreement requires the first

shipment to contain only a “minimum quantity of 20000 cartons.” (Id.)

Regardless, however, of these apparently inconsistent provisions, what is clear

is that there is no contingency involving any of the Defendants or even a

comfort letter, generally, or the transfer of funds to a bank, submitted on

behalf of Bluestar. Accordingly, while this document might help support

Bluestar’s claim that it had an agreement to purchase the gloves from Wish, it

does not show that Enis or R&T’s failure to either provide a valid comfort letter

or to transfer $250 million to Soleil actually caused Wish to renege on the

purported deal.

Correspondingly, to the extent Bluestar looks, instead, to some other

arrangement it says it had with Wish—either apart from or in addition to the

written contract—the evidence on which it relies to establish that alleged

transaction is also far too speculative to support a claim for lost profits. In

addition, that purported transaction, itself, is incompatible with the very

written contract Bluestar maintains it entered into with Wish on July 31,

described above.

For example, in Hussain’s affidavit, he maintains that a “condition

precedent to Bluestar’s agreement with Wish was that Bluestar provide Wish

with a proof of funds letter to demonstrate to Wish that Bluestar had control of

cash or lines of credit that would enable Bluestar to purchase $250,000,000.00

of nitrile gloves with capital under its control.” (Hussain Aff. ¶ 6, ECF No. 114-

1.)1 Bluestar’s reliance on this evidence is unavailing. To begin with, Hussain

provides no evidentiary support for his conclusory description of what he

claims was a condition precedent to Bluestar and Wish’s consummation of

their written agreement. Indeed, the written contract appears to indicate that

any modification “or supplement” to the terms of the July 31 contract would

have to be in writing in order to be given effect. (Sales Contract at 8.)

Furthermore, even if there was such an agreement, regarding the condition

precedent, even Bluestar does not specify anywhere in the record that the

1 In their response to Bluetar’s motion for summary judgment, the Enis Defendants ask the

Court to disregard Hussain’s affidavit. (Enis Defs.’ Resp. at 13.) Any parts of the affidavit upon

which the Court relied were not, ultimately, prejudicial to the Enis Defendants. The Court thus

finds the request moot.

comfort letter, cash, or line of credit was uniquely tied to Enis or R&T. In other

words, Bluestar fails to present any evidence that its inability to procure the

comfort letter or funds from Enis or R&T, specifically, resulted in the collapse

of the Wish deal as opposed to its inability to procure such a comfort letter or

funds at all. Ultimately, Bluestar’s “unsupported allegations” fall far short of

qualifying as the type of “concrete evidence of causation” that could establish

Enis or R&T’s liability for Bluestar’s lost profits when its deal with Wish fell

apart.

Bluestar also points to Enis’s deposition testimony as evidentiary

support for Enis and R&T’s lost-profits liability. In that testimony, Enis

recounts Crooke’s representation that he had a seller, a buyer, and that Crooke

himself was able to finance the deal “as an experienced importer.” (Enis Dep. at

21:1–2.) Enis further conveyed, in that testimony, that Crooke’s “only request”

was for Enis to “get a chartered US bank to provide either . . . a bank comfort

letter or a letter of credit.” (Id. at 21:3–5.) But Bluestar fails to explain how this

testimony, without more, establishes that Enis’s failure to fulfill Crooke’s

request was the event that resulted in Wish’s refusing to fulfill its obligation to

send the gloves to Bluestar, as required by the parties’ written contract. Why

couldn’t Bluestar, once things went south with Enis and R&T, get a comfort

letter or letter of credit elsewhere? Bluestar never says. Or, if Wish really did

require the comfort letter or letter of credit from Enis or R&T, before it would go

forward with the contract, then Bluestar’s arrangement with Wish was indeed

purely speculative at that point.2 And such an inchoate agreement would be

wholly insufficient to support a claim for lost profits. In the end, Bluestar

cannot have it both ways: under the written contract it has presented, there is

no contingency involving Enis or R&T; or, putting aside the written contract,

Bluestar has presented nothing more than a speculative arrangement that

ultimately fell through. Either way, Bluestar has failed to come forward with

evidence to combat the Enis Defendants’ showing that there is no genuine

2 Certainly Hussain’s deposition testimony seems to support the speculative nature of the

arrangement with Wish. For example, when asked if the contract with Wish had ever been

finalized, Hussain responded that he didn’t think so. (Hussain Dep. 206:25–207:4 .) Hussain

also agreed “that no executed contract exists” and that Hussain knew that Bluestar “needed to

have a comfort letter” before Wish would enter into any agreement, clearly acknowledging that

the parties were merely “in discussions about entering into a contract.” (Hussain Dep. 210:18–

20; 230:4–11.) Hussain even stated, with no equivocation, that Bluestar knew it had to first

prove to Wish that Bluestar was “capable of $250 million worth of business,” before Wish

would even provide documentation showing that Wish actually had thirty million boxes of

gloves on hand. (Hussain Dep. 259:17–260:4–10.) Furthermore, Bluestar, even in its own

motion for summary judgment, concedes that ‘[i]n order to close on the transaction, Wish

required Bluestar to produce a letter from a U.S.-chartered bank showing funds of $250 million

to finance the transaction.” (Pl.’s Mot. at 5.)

issue of fact regarding Bluestar’s failure to show its entitlement to lost profits

on its breach-of-contract claim.

In summary, then, the Court agrees that Enis and R&T are entitled to

summary judgment in their favor with respect to Bluestar’s claim for lost-profit

damages, arising from its breach-of-contract claim. With respect to all other

issues raised as to Bluestar’s breach-of-contract claim, however, the Court

denies the parties’ cross motions for summary judgment.

C. FDUTPA

Both Bluestar as well as Enis and R&T move for summary judgment in

their respective favors on Bluestar’s FDUTPA claim. Neither party’s efforts hit

the mark.

Bluestar, in cursory fashion, argues it should prevail on its FDUTPA

claim against Enis and R&T because “Enis and R&T deliberately

misrepresented their ability to finance a purchase of $250 million of nitrile

gloves” and strung “Bluestar along by securing the fraudulent Soleil Letter

purporting to show $250 million in liquid fund at Soleil Bank in the form of

actual funds in an account or a credit line in favor of R&T,” which resulted in

“trick[ing] Bluestar into wiring $300,000 to the Trust in exchange for a

worthless piece of paper.” (Pl.’s Mot. at 18.) Bluestar’s faint outline in support

of its FDUPTA claim falls far short of establishing an absence of any genuine

issues of material fact entitling it to judgment as a matter of law.

As the Court set forth in its order on the Defendants’ motion to dismiss,

“[i]n order to assert a claim for damages under FDUTPA, the plaintiff must

establish: (1) a deceptive act or unfair practice; (2) causation; and (3) actual

damages.” Baptist Hosp., Inc. v. Baker, 84 So. 3d 1200, 1204 (Fla. 1st DCA

2012) (cleaned up). As the Court further expounded, to satisfy the causation

element, a plaintiff must “prove that an objectively reasonable person would

have been deceived” by the deception or unfair act. Fitzpatrick v. Gen. Mills,

Inc., 635 F.3d 1279, 1283 (11th Cir. 2011). Bluestar fails to even mention this

requirement, never mind show that the record conclusively establishes it in

Bluestar’s favor. Without more, then, Bluestar’s motion regarding its FDUTPA

claim falls short.

The Enis Defendants’ motion is equally inadequate. The Enis Defendants

maintain that “the undisputed evidence in this case refutes not only Bluestar’s

allegations that Enis and R&T engaged in fraudulent acts, but also any

suggestion that an objectively reasonabl[e] person would have been deceived.”3

3 Although neither party raises the issue, the Court notes that FDUTPA claims are not limited

to suits against corporate entities alone. Indeed, “it has long been the law in Florida that in

(Enis Defs.’ Mot. at 21.) In support of their argument, the Enis Defendants

point out that “Enis never told Bluestar that he was going to transfer cash into

an account at Soleil” and that Enis made it “clear” “that R&T was obtaining a

[comfort letter] to confirm that funds could be made available in the form of

cash or credit line.” (Id.) As for the letter itself, the Enis Defendants say that,

because Bluestar received a draft of it, before paying for it, Bluestar cannot

claim to have been deceived. Additionally, say the Enis Defendants, Bluestar’s

own recognition that Soleil’s registration in Comoros should have been a red

flag, shows that it was not objectively reasonable for Bluestar to have been

deceived. (Id.) The Court is not persuaded.

To be sure, there appears to be no real dispute that Enis, either on his

own or through R&T, caused Bluestar to part with $300,000 in exchange for

the comfort letter. And, as set forth above, in section 3.B., Bluestar has

presented evidence that, when read in the light most favorable to it, shows that

the comfort letter could have, indeed, been fraudulent: not long before the

letter was issued, R&T had a negative net worth of over $1 million; R&T had

reported income losses between $300 and $700 thousand on its two prior tax

returns; and Enis testified that R&T did not have the financial capacity to

finance, on its own, a quarter-of-a-billion-dollar transaction to purchase latex

gloves. Nor is the Enis Defendants’ reliance on Hussain’s testimony,

acknowledging that Soleil’s registration in Comoros should have been a “red

flag,” enough to entitle them to summary judgment. Without more, the Enis

Defendants fail to connect the dots between something Bluestar recognizes, in

hindsight, as a red flag, on the one hand, and a showing that, based on this

one red flag, it was not probable that an objectively reasonable person would

have been deceived, on the other. Instead, in order to prevail, on summary

judgment, the Enis Defendants would have to show that all of the information

known or reasonably available to Bluestar, in the context of the transactions at

issue, would have prevented a reasonable consumer from being deceived. See

Piescik v. CVS Pharm., Inc., 576 F. Supp. 3d 1125, 1132 (S.D. Fla. 2021)

(Middlebrooks, J.) (recognizing that courts “should take into account all the

information available to consumers and the context in which that information

is provided and used” in evaluating FDUTPA claims). In short, the Enis

order to proceed against an individual,” as opposed to a corporate entity, for a FDUTPA

violation, an aggrieved party must only allege facts showing that “the individual was a direct

participant in the improper [corporate] dealings.” KC Leisure, Inc. v. Haber, 972 So. 2d 1069,

1074 (Fla. 5th DCA 2008). In other words, under FDUTPA, it is unnecessary to pierce the

corporate veil where an individual defendant was, as alleged here, a direct participant in the

complained of dealings. Id. (citing Rollins, Inc. v. Heller, 454 So. 2d 580, 582 (Fla. 3d DCA

1984)).

Defendants also come up short in establishing their entitlement to summary

judgment.4

D. Civil Theft

The Enis Defendants and Bluestar also both claim entitlement to

summary judgment in their respective favors on Bluestar’s civil-theft claim

against the Trust. The Enis Defendants argue Bluestar cannot prevail on its

claim for civil theft for two main reasons: Bluestar has not set forth any

evidence showing that (1) it expected the Trust to hold the $300,000 transfer

for Bluestar’s benefit; or (2) that the Trust acted with felonious intent to

commit theft. (Enis Defs.’ Mot. at 14–15.) Conversely, Bluestar maintains that,

based on the record, no reasonable jury could possibly return a verdict in favor

of the Trust. (Pl.’s Mot. at 12–13.) Once again, the Court does not find

Bluestar’s perfunctory presentation convincing: not only does it fail to

affirmatively establish the absence of any genuine issue of material fact as to

all the elements of its civil theft, but it fails to come forward with any evidence

at all that it had an immediate right to possess all the funds at the time of the

alleged civil theft. Conversely, the Court agrees with Enis that the record—

including, importantly, Bluestar’s own testimony—establishes that Bluestar

has not identified evidence showing that it had an immediate right to possess

the $300,000 payment to the Trust.

“Under Florida law, a plaintiff in an action for conversion or civil

theft must establish,” among other elements, “possession or an immediate right

to possession of the converted property at the time of the conversion.” U.S. v.

Bailey, 419 F.3d 1208, 1212 (11th Cir. 2005). In its complaint, Bluestar says it

was induced into wiring $300,000 to the Trust as “the purported cost of

transferring $250,000,000.00 to Soleil.” (Compl. ¶ 42.) In briefing, testimony,

and its statement of facts, Bluestar recharacterizes the $300,000 as

representing its share of the total cost of getting the comfort letter from Soleil.

(E.g., Pl.’s Mot. ¶ 32 (“[Enis] required that Bluestar wire $300,000 to the Trust

as payment for the ‘fee’ for the issuance of the fraudulent bank comfort

letter.”); Pl.’s Stmt. of Facts ¶ 41 (“Enis represented to Bluestar that he had

already remitted $625,000 to Soleil Bank for issuance of the Soleil Letter and

4 Although Bluestar does not seek lost profits on its FDUTPA claim in its complaint, it appears

to claim entitlement to them in its motion for summary judgment. (Pl.’s Mot. at 18.) Aside from

lacking record support for its entitlement to lost profits, such damages, in any event, are not

recoverable under FDUTPA. Diversified Mgt. Sols., Inc. v. Control Sys. Research, Inc., 15-81062-

CIV, 2016 WL 4256916, at *5 (S.D. Fla. May 16, 2016) (Middlebrooks, J.) (recognizing that lost

profits, as a “quintessential example of consequential damages,” are not recoverable under

FDUTPA). Accordingly, the Court grants summary judgment in Enis and R&T’s favors with

respect to any claim Bluestar intended to seek to lost profits on its FDUTPA claim.

requested a remittance of $300,000 to the Trust as payment of approximately

half of the free.”); Hussain Aff. ¶ 16 (“Enis request[ed] remittance of $300,000

to pay for partial payment of the $625,000 fee Soleil Chartered Bank charged

for the letter and for reserving against Mr. Enis’ funds.”). Bluestar further

elaborated that Enis relayed that “he had already paid $625,000 to Soleil

Chartered Bank and instructed [Bluestar] to reimburse him for half of the fee

by wiring $300,000 to his family trust.” (Hussain Aff. ¶ 16.) Regardless,

though, of what Bluestar really thought the fee was for or what Enis actually

told them it was for, there is not a single allegation indicating that Bluestar

transferred the funds to the Trust to hold in escrow or to hold for a particular

purpose. While there are certainly facts presented from which a jury might

infer that the Defendants, or a subset thereof, wrongfully induced Bluestar to

part with its $300,000, Bluestar’s entitlement to those funds is yet to be

determined. In other words, not a single fact has been adduced to show that at

the time of the purported theft, or conversion, that Bluestar had an immediate

right to possession of the $300,000.

Accordingly, the Court grants summary judgment in favor of the Trust on

Bluestar’s claim for civil theft.

E. Unjust Enrichment

The parties next cross claim for summary judgment on Bluestar’s

unjust-enrichment claim against the Trust. The Enis Defendants maintain the

Trust should be granted summary judgment on this count because (1) the

Trust did not actually “retain” those funds and (2) Bluestar actually received

“the exact benefit it was expecting in exchange for the $300,000.00 it wired to

the Trust.” (Enis Defs.’ Mot. at 15.)5 In its motion, in contrast, Bluestar

maintains that the “record incontrovertibly demonstrates that Enis’[s] actions

as settlor of the Trust resulted in the Trust’s unjust enrichment.” (Pl.’s Mot. at

14.) Both motions miss the mark.

“A claim for unjust enrichment under Florida law requires showing that:

(1) plaintiff has conferred a benefit on defendant; (2) defendant voluntarily

5 The Enis Defendants also argue that Bluestar’s equitable claim for unjust enrichment fails

because Bluestar has adequate legal remedies at its disposal, to collect on the $300,000. First,

this is a misapplication of the law: a correlation between the injury and damages sought is not

the point. Rather, it is the wrongful conduct, underlying under the claims that should be

compared. See, e.g., Nelson v. Mead Johnson Nutrition Co., 09-CV-61625, 2010 WL 11457652,

at *6 (S.D. Fla. Mar. 9, 2010) (Cohn, J.) (recognizing that the plaintiff’s unjust-enrichment

claim was not available because it sought “recovery for the exact same wrongful conduct” as in

her other claims) (emphasis added). Further, the Court already addressed this issue in ruling

on the Defendants’ motion to dismiss and, without more, it is too late for them to seek

reconsideration of that decision now.

accepted and retained that benefit; and (3) the circumstances are such that it

would be inequitable for defendant to retain it without paying the value

thereof.” OJ Commerce, LLC v. Ashley Furniture Indus., Inc., 817 F. App’x 686,

692 (11th Cir. 2020). Once again, for the same reasons as set forth in the

sections above, regarding Bluestar’s attempt to have summary judgment

entered in its favor on its FDUTPA and civil-theft claims, Bluestar’s motion is

bereft of support. While it indeed appears there is no dispute that Bluestar

transferred $300,000 to the Trust, Bluestar fails to show that the record

conclusively establishes—at least for the purposes of summary judgment—that

the Trust retained all of the transfer for its own benefit or that it would be

inequitable for the Trust to retain any portion of the fee. Even Bluestar

acknowledges that the Trust sent at least $250,000 of the funds to Soleil. (Pl.’s

Stmt. of Facts ¶ 43.) And Enis says he sent the $250,000 on to Soleil, on

Bluestar’s behalf. (Enis Dep. at 25:9–18.) While the parties do not appear to

dispute that the Trust retained the remaining $50,000, the Court is

nonetheless unable to deduce, at least from Bluestar’s briefing, that, for the

purposes of summary judgment, it would be inequitable for the Trust to retain

that amount.

At the same time, the Enis Defendants’ motion also falls short. Simply

because the Trust transferred $250,000 of the $300,000 to Soleil doesn’t mean

it didn’t “retain” the funds for its own use. “Retain” in this context simply

means that the defendant used the funds for its own benefit—not that it

retained them in perpetuity. And, because there is evidence in the record, as

set forth in the previous sections, from which a jury could infer that Enis knew

Soleil was not legitimately entitled to the $250,000 “fee,” the Trust is unable to

show that it was equitable for it to retain the funds. This is even more so for

the $50,000 that the Trust does not dispute retaining.

Accordingly, the Court denies both motions for summary judgment

regarding Bluestar’s unjust enrichment claims.

F. Fraudulent Misrepresentation

Next, both Bluestar, on the one hand, and Srivastava and Abbas, on the

other, seek summary judgment in their respective favors on Bluestar’s claim for

fraudulent misrepresentation. As a starting point, Srivastava and Abbas’s

motion is wholly inadequate: (1) they failed to file, on the docket, an

accompanying statement of material facts, as required by Local Rule 56.1,

when they submitted their motion for summary judgment; (2) in their motion,

instead of seeking summary judgment, they instead submit that Bluestar’s

claims should be “dismissed”; and (3) their motion is virtually devoid of any

substance or cohesive argument that would entitle them to summary judgment

on Bluestar’s fraudulent-misrepresentation claim. For these reasons, the Court

denies their motion in its entirety. Bluestar, on the other hand, argues that it is

entitled to summary judgment, in its favor, because, among other reasons, the

comfort letter, signed by both Srivastava and Abbas, “was undeniably false.”

(Pl.’s Mot. at 10.) While there is evidence from which a fact finder could infer

the letter presented a false statement, there is also evidence, when read in the

light most favorable to Srivastava and Abbas, that could lead to the conclusion

that it was not necessarily false or, even if it was, Bluestar has not shown that

the record establishes Srivastava and Abbas knew of the falsity.

“[T]here are four elements of fraudulent misrepresentation: (1) a false

statement concerning a material fact; (2) the representor’s knowledge that the

representation is false; (3) an intention that the representation induce another

to act on it; and (4) consequent injury by the party acting in reliance on the

representation.” Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010) (emphasis in

original). The relevant statement, at the center of Bluestar’s claim, was

presented in the July 28, 2020, letter in which Srivastava and Abbas aver that

Soleil Bank’s “client account name R & T Pharmacy Corp” had “cash funds

and/or credit line in the amount of USD 250,000,000.00.” (ECF No. 1-3.)

Bluestar maintains this was demonstrably false because (1) neither Enis nor

R&T ever deposited any funds into an account at Soleil Bank prior to July 28,

2020; (2) R&T suffered an operating loss of $660,053 in 2019 and had a

negative net worth as of December 31, 2019; (3) R&T was incapable of

financing a transaction of $250 million; and (4) Soleil Bank never had control

of $250,000,000 such that it could back a credit line in that amount in favor of

R&T. (Pl.’s Mot. at 10–11.) Bluestar also submits that Srivastava and Abbas’s

knowledge that their representation was false has been established because

they “knew” that R&T did not have $250 million in funds because R&T had

never deposited any funds in Soleil Bank. (Id. at 11.) The Court finds Bluestar

misses the mark on a few fronts.

First, reading the facts in the light most favorable to Srivastava and

Abbas, the Court is not convinced Bluestar has established an absence of any

genuine issues as to a material fact regarding the falsity of the statement. Left

out of Bluestar’s presentation is Srivastava and Abbas’s contention that the

“credit line” referred to in the comfort letter is based on the value of the

collateral involved in the transaction—the purported $250 million worth of

nitrile gloves. (Srivastava and Abbas’s Resp. Stmt. ¶ 37.) As Srivastava testified,

in general, Soleil Bank’s issuance of a “proof of fund letter . . . will depend on

the transaction collateral.” (Srivastava Dep. 53:2–4, ECF No 114-21.) Referring

to the comfort letter here, specifically, Srivastava also said that the reference to

“credit line” in the letter “depends on the collateral.” (Id. at 59:18–20.)

Srivastava repeated the point, emphatically, insisting that “the credit line is

based on the collateral of the transaction,” elaborating that there “can be so

many ways of doing the transaction.” (Id. at 85:9–10, 18–19.) Abbas testified

similarly, for example, explaining that, “[i]n transactions normally the product

is the collateral,” referring specifically, as relates to the purported transaction

in this case, to the gloves. (Abbas Dep. at 28:13–20, 30:7–8, ECF No. 114-3

(“Like I said, the gloves are the collateral.”), 32:4 – 5 (“[T]he product is the

collateral in these deals.”). While Srivastava and Abbas’s explanations may

ultimately fail to impress a jury, by not addressing this ambiguity—or even

mentioning it—Bluestar leaves the Court unable to conclude, as Bluestar

urges, that there is insufficient evidence in the record upon which a reasonable

juror could find in Srivastava and Abbas’s favor.

Further, even if the record did establish the falsity of the statement, for

the purposes of summary judgment, Bluestar falls short of showing that

Srivastava and Abbas knew that the statement was false. Bluestar concludes

Srivastava and Abbas were aware of the letter’s falsity because they “knew their

representation that R&T has $250 million in funds was false because R&T had

never deposited any funds in Soleil Bank.” (Pl.’s Mot. at 11.) Among other

infirmities, however, Bluestar’s premise is flawed – the letter says only that

R&T has “cash funds and/or credit line [sic] in the amount of USD

250,000,000.00” (emphasis added); the letter doesn’t affirmatively say that R&T

actually has $250 million in cash. Because Bluestar neglects to address the

disjunctive aspect of the statement, it leaves open the possibility that

Srivastava and Abbas believed that R&T’s purported credit line was valid, thus

demonstrating a lack of knowledge. This too dooms Bluestar’s efforts to have

summary judgment entered in its favor on this count.

G. Civil Conspiracy

All three parties, or groups of parties, seek summary judgment in their

favors on Bluestar’s civil conspiracy count. As a starting point, because

Bluestar has not established summary judgment in its favor on any of the

underlying tort counts, it cannot, therefore, establish summary judgment in its

favor on its civil conspiracy claim. The flipside to this, of course, is that, to the

extent the Defendants’ motions seek summary judgment in their favor because

Bluestar has failed to establish any of the underlying tort counts against them,

their motions similarly fail: liability as to the underlying torts will be decided

through trying this case in front of a jury. Additionally, however, the Enis

Defendants seek summary judgment in their favor on this count for other

reasons, arguing that Bluestar “wholly fails to show that Enis, R&T, or the

Trust reached any sort of agreement with Soleil, or anyone else for that matter,

to engage in unlawful acts.” (Enis Defs.’ Mot. at 19.) The Court is not

convinced.

In support of their motion, the Enis Defendants rely on Hussain’s

deposition testimony where he says he does not have any evidence that, for

example, either R&T or the Trust entered into an agreement with Soleil to

defraud Bluestar. (Hussain Dep. 256:1–12.) They also point to Hussain’s

admitting that, other than the fact of Soleil’s registration in Comoros, Bluestar

does not have any evidence that Enis and Soleil entered into an agreement or

“secret deal” to defraud Bluestar either. (Hussain Dep. 254:19–255:25.)

According to the Enis Defendants, “[t]hese admissions—paired with the mere

conclusory suggestion that the Defendants should have known that Soleil was

purportedly a fraudulent bank—based solely on the fact that Soleil was

‘registered in Comoros’—are insufficient to establish the existence of a genuine

fact for trial.” (Enis Defs.’ Mot. at 19–20.) The Court finds the analysis, as far it

goes, flawed.

First, the testimony they highlight says nothing about any agreement any

of the Enis Defendants might have had with Srivastava or Abbas or among

each other. Additionally, the record is chock full of facts that, when read in the

light most favorable to Bluestar, circumstantially support agreements between

each of the Enis Defendants and others in the case. See Republic of Panama v.

BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 950 (11th Cir. 1997)

(recognizing that a civil-conspiracy “agreement need not be established by

direct evidence,” but “may be inferred from the conduct of the participants”). As

set forth above, the record contains evidence from which a jury could find (1)

the comfort letter was fraudulent (see sections 3.B., C., and F.); (2) that Enis

and R&T arranged with Abbas to procure the comfort letter; (3) Abbas and

Srivastava signed the letter; (4) Enis had Bluestar wire $300,000 to the Trust,

for procuring the comfort letter; and (5) Enis then sent $250,000 of that to a

bank account associated with Abbas or Srivastava or a company connected to

them. This is enough circumstantial evidence, when read in the light most

favorable to Bluestar, to foreclose summary judgment in the Enis Defendants’

favor based on their argument that there is no evidence establishing an

agreement to do an unlawful act.

4. Conclusion

For the reasons set forth above, the Court denies Bluestar and

Srivastava and Abbas’s motions for summary judgment in their entireties (ECF

Nos 112, 115) and grants in part and denies in part the Enis Defendants’

motion (ECF No. 118). The Court grants summary judgment in the Enis

Defendants’ favor with respect to only the following: Bluestar’s claim for civil

theft against the Trust; Enis’s alter-ego liability for the debts of R&T; and

Bluestar’s claims for lost profits. The Court denies the Enis Defendants’ motion

in all other respects. Because the Court denies Srivastava and Abbas’s motion

for summary judgment in its entirety, it denies as moot Bluestar’s motions to

strike both their motion and their untimely statement of facts (ECF Nos. 120,

131). To the extent Bluestar still seeks sanctions and its fees, associated with

these motions, it can refile a separate motion, in compliance with the Federal

and Local Rules, seeking that relief.

By way of a summary, the following claims remain for determination

through trial:®

Eleven: Civil conspiracy Enis, R&T, the Trust, Srivastava,

ENP [ed aoag □□

Done and ordered, at Miami, Florida, on September 22, 2022.

{Robert N. Lf Jr.

United States District Judge

6 As explained above, a clerk’s default was entered against Soleil Bank regarding the claims

remaining against it: fraudulent misrepresentation; negligent misrepresentation; civil

conspiracy; negligent retention; FDUTPA; and false information negligently supplied. (ECF No.

154.)