Shafirovich v. Saleh

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALEXANDER J. SHAFIROVICH 	CIVIL ACTION
VERSUS 	NO: 24-238
MOHAMAD SALEH 	SECTION: “H”
ORDER AND REASONS
Before 	the 	Court 	is 	Plaintiff 	Alexander 	Shafirovich’s 	Motion 	for
Summary Judgment (Doc. 34). For the following reasons, Plaintiff’s Motion is
DENIED.
BACKGROUND
This action arises from an alleged breach of a Promissory Note and Act
of Continuing Guarantee. Plaintiff Alexander J. Shafirovich alleges that on
February 5, 2022, Defendant Mohamad Saleh and non-party John Shalbey
(“Shalbey”) 	executed 	an 	Act 	of 	Continuing 	Guarantee 	of 	a 	debt 	totaling
$1,400,000.00. In May 2022, Plaintiff, Defendant, and non-party Nidal Jaber
(“Jaber”) signed a Promissory Note to Shalbey (“the Shalbey Note”), becoming
solidary co-obligors for all amounts due.
Plaintiff claims that he made a payment totaling $378,000.00 to Shalbey
to retire the debt and that he was subrogated to Shalbey’s rights. Plaintiff
asserts that this entitles him to receive Defendant’s virile share of the debt,
$126,000.00, along with attorney’s fees incurred from seeking enforcement of
the Shalbey Note. On January 24, 2024, Plaintiff filed suit to recover these
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amounts. 	On 	December 	30, 	2024, 	Plaintiff 	filed 	the 	instant 	Motion 	for
Summary Judgment. Defendant opposed. (Doc. 37).
The Court stayed this matter from April 28, 2025 to June 26, 2025 after
Defendant filed a Notice of Bankruptcy. Once the stay was lifted, the Court
reset this Motion’s submission date to August 27, 2025. Defendant obtained
new counsel on August 24, 2025 and requested leave to supplement his
Opposition, arguing that new evidence had come to light since filing his
original memorandum. The Court granted Defendant leave to supplement his
Opposition, permitted Plaintiff to file a supplemental reply, and reset the
Motion’s submission date to September 24, 2025.
LEGAL STANDARD
Summary 	judgment 	is 	appropriate 	“if 	the 	pleadings, 	depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”1 A genuine issue of
fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”2
“In reviewing a summary judgment motion, the court must ‘refrain from
making credibility determinations or weighing the evidence’ and must view
the facts in the light most favorable to the non-moving party and draw all
reasonable inferences in its favor.”3 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
1 Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
2 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
3 Devon Enters., LLC v. Arlington Indep. Sch. Dist., 541 Fed. App’x 439, 441 (5th Cir. 2013).
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showing the existence of a genuine issue for trial.”4 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.”5 “In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the non-
movant would bear the burden of proof at trial.”6 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.”7 Additionally, “[t]he 	mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.”8
LAW AND ANALYSIS
Plaintiff avers that summary judgment is appropriate because there are
no genuine disputes of fact on his breach of contract claim. Defendant opposes
Plaintiff’s Motion, asserting that an issue of material fact exists as to whether
Plaintiff has already been paid in full for Defendant’s debt.9 Defendant offers
4 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
5 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
6 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
7 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
8 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
9 Defendant’s Supplemental Opposition contests most, if not all, of Plaintiff’s factual
allegations. However, Defendant attached a Statement of Contested Material Facts to his
original Opposition wherein he admitted twelve of Plaintiff’s thirteen stated material facts
but denied that Defendant still owed Plaintiff a debt. Plaintiff contends that despite the
contested facts asserted in Defendant’s Supplemental Opposition Memorandum, Local Rule
56.2 binds Defendant to his prior admissions for the purposes of this Motion given
Defendant’s failure to attach a new Statement of Contested Material Facts. Because the
Court finds that a genuine issue of material fact exists as to at least one element of
Plaintiff’s claim, the Court need not consider the other arguments raised in Defendant’s
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an affidavit from Jaber, who states that in May 2023 he paid Plaintiff cash for
“all 	outstanding 	notes 	on 	behalf 	of 	himself 	and 	Mohamad 	Saleh 	due 	to
Alexander Shafirovich,” including all amounts owed in relation to the Shalbey
Note.10 Jaber further attests that Plaintiff did not give him a receipt for this
cash 	transaction. 	Defendant 	also 	submits 	an 	affidavit 	from 	Michael
Schexnayder, 	who 	states 	that 	he 	attended 	the 	May 	2023 	meeting 	and
witnessed a series of cash transactions between Plaintiff and Jaber, including
a payment of more than $250,000.00 in satisfaction of his and Defendant’s debt
for the Shalbey note.11
In reply, Plaintiff argues that the alleged payment of a debt is an
affirmative 	defense 	that 	was 	not 	raised 	in 	Defendant’s 	Answer 	and 	is,
therefore, waived. Plaintiff further argues that the affidavits Defendant offers
do not establish that any payment was made on Defendant’s behalf, that his
story is “implausible,” and there is no documentary evidence of the alleged
payment. Plaintiff offers his own declaration in which he insists no cash
payment ever occurred.
Under Louisiana law, solidary obligors are each liable for their virile
share of a debt.12 “A solidary obligor who has rendered the whole performance,
though subrogated to the right of the obligee, may claim from the other obligors
no more than the virile portion of each.”13 Payment of a debt extinguishes the
obligation, and payment “may be rendered by a third person, even against the
will 	of 	the 	obligee, 	unless 	the 	obligor 	or 	the 	obligee 	has 	an 	interest 	in
Supplemental Opposition or whether he is bound to the admissions in his Statement of
Material Facts.
10 Doc. 37-2.
11 Doc. 37-4.
12 LA. CIV. CODE art. 1804.
13 Id.
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performance by only the obligor.”14 Therefore, if Jaber satisfied Defendant’s
debt to Plaintiff, Plaintiff could not succeed on his claim. 15
As to Plaintiff’s argument that Defendant waived his affirmative defense
of payment, the Court notes that Defendant raises his affirmative defense of
payment for the first time in his Opposition. While an affirmative defense
should be raised in a responsive pleading pursuant to Federal Rule of Civil
Procedure 8(c), the Fifth Circuit rejects waiver arguments when a defendant
raises its affirmative defense on summary judgment so 	long as “(1) the
defendant raised the affirmative defense ‘at a pragmatically sufficient time,’
and (2) the plaintiff ‘was not prejudiced in its ability to respond.’”16 The Court
finds that the defense was raised at a pragmatically sufficient time, and
Plaintiff 	was 	given 	a 	fair 	opportunity 	to 	respond 	in 	his 	Reply 	and
Supplemental Reply.
Turning 	to 	Plaintiff’s 	argument 	that 	Defendant’s 	affidavits 	are
insufficient to establish whether a payment was made on Defendant’s behalf,
the parties provide competing affidavits supporting their allegations. “Faced
with these competing affidavits, because the Court must avoid weighing the
evidence and making credibility determinations, the Court finds that summary
judgment is inappropriate.”17 Accordingly, the Court finds that there is a
genuine dispute of material fact as to whether Defendant still owes Plaintiff
his virile share of the $378,000.00 debt.
14 Id. at arts. 1854–55.
15 See Mack Energy Co. v. Red Stick Energy, LLC, No. 16-1696, 2019 WL 2714865, at *5 (W.D.
La. May 1, 2019) (holding that a whether the defendant owed a debt to the plaintiff or
whether the debt had been remitted was a genuine issue of material fact that precluded
summary judgment).
16 Walton v. City of Verona, 82 F.4th 314, 324 (5th Cir. 2023) (quoting Motion Med Techs.,
L.L.C., v. Thermotek, Inc. 875 F.3d 765, 771–772 (5th Cir. 2017)).
17 Trosclair v. Offshore Marine Contractors, Inc., No. 11-2324, 2012 WL 2339668, at *5 (E.D.
La. June 19, 2012).
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CONCLUSION
For the foregoing reasons, the Motion is DENIED.
New Orleans, Louisiana this 26th day of March, 2026.
______________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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