Mattson et al v. Farudi, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARLA G. MATTSON AND JAMES E. 	)
MATTSON TRUST, 	)
)
Plaintiff, 	)
)
v. 	) CIVIL ACTION 23-0474-WS-MU
)
RAHMEEN FARUDI, et al., 	)
)
Defendants. 	)
ORDER
This matter is before the Court on the remaining parties' cross-motions for
summary judgment. (Docs. 45, 47). The parties have filed briefs and evidentiary
materials in support of their respective positions, (Docs. 45, 47, 49-51, 53), and the
motions are newly ripe for resolution. After careful consideration, the Court concludes
that the plaintiff's motion is due to be denied and that the defendants' motion is due to be
granted in part and denied in part.
BACKGROUND
According to the amended complaint, (Doc. 34), the plaintiff is the owner of
certain real property (“the Property”) in Fruitdale, Alabama. In May 2020, the plaintiff
and defendant Taruma, LLC ("Taruma") executed a lease agreement ("the Lease")
regarding the Property. The individual defendant ("Farudi") was the personal obligor on
the Lease. In October 2022, Taruma assigned its rights under the Lease to defendant
Taruma Fruitdale, LLC ("Fruitdale"). The amended complaint refers to these three
defendants collectively as "the Farudi Defendants" and appears to attribute to all of them
the acts and omissions of any of them.
The Lease required Taruma to provide and maintain property insurance on the
Property and to designate the plaintiff as an "also named insured." The Farudi defendants
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bound a policy of insurance ("the Policy") with defendant Scottsdale Insurance Company
("Scottsdale"). The Farudi defendants and Scottsdale provided the plaintiff a certificate
of insurance ("the Certificate") identifying the plaintiff as an additional insured.
While the Lease was in effect, a storm caused catastrophic damage to the
Property.1 The Farudi defendants submitted a claim, which Scottsdale honored,
disbursing the proceeds to the Farudi defendants. The Farudi defendants did not use the
proceeds to replace the damaged structures or make adequate repairs but instead pocketed
most of the proceeds and made only piecemeal and inadequate repairs (including by
reusing storm-damaged, structurally compromised materials) that did not comply with
requisite building codes and that substantially devalued the Property. The plaintiff
discovered the inadequate repairs in November 2022.
The amended complaint asserts the following causes of action against the
specified defendants:
• 	Count I 	breach of contract (Farudi defendants)
• 	Count II 	breach of contract (Scottsdale)
• 	Count III 	fraud, conversion, theft by deception, embezzlement, and unjust
enrichment (Farudi defendants)
• 	Count IV 	negligence/wantonness (Farudi defendants)
• 	Count V 	piercing the corporate veil/alter ego (Farudi defendants)
• 	Count VI 	conspiracy to commit fraud (Scottsdale and Farudi defendants)
(Doc. 34 at 5-9).
All claims as asserted against Scottsdale have been dismissed with prejudice by
previous orders. (Docs. 33, 41). Although the style of the amended complaint, like its
predecessor, names Fruitdale Pellets, LLC ("Pellets") as a fifth defendant, the Court has
already ruled that the complaint alleges no cause of action against Pellets, (Doc. 10), and
the amended complaint does not attempt to do so. This action as to Pellets is therefore
due to be dismissed with prejudice.
1 The uncontroverted evidence establishes that this event occurred in October 2020.
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The plaintiff moves for summary judgment with respect to Counts I and IV and
with respect to the fraud aspect of Count III. The Farudi defendants (hereinafter, "the
defendants") move for summary judgment in toto.
DISCUSSION
Summary judgment should be granted only if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The party seeking summary judgment bears “the initial burden to show the
district court, by reference to materials on file, that there are no genuine issues of material
fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by
“negating an element of the non-moving party’s claim”; or (2) by “point[ing] to materials
on file that demonstrate that the party bearing the burden of proof at trial will not be able
to meet that burden.” Id. “Even after Celotex it is never enough simply to state that the
non-moving party cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228
F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir.
1992); Fed. R. Civ. P. 56(c)(1).
“When the moving party has the burden of proof at trial, that party must show
affirmatively the absence of a genuine issue of material fact: it must support its motion
with credible evidence ... that would entitle it to a directed verdict if not controverted at
trial. [citation omitted] In other words, the moving party must show that, on all the
essential elements of its case on which it bears the burden of proof, no reasonable jury
could find for the nonmoving party.” United States v. Four Parcels of Real Property,
941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) (emphasis in original); accord Fitzpatrick
v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
“If the party moving for summary judgment fails to discharge the initial burden,
then the motion must be denied and the court need not consider what, if any, showing the
non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord Mullins, 228 F.3d at 1313;
Clark, 929 F.2d at 608.
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“If, however, the movant carries the initial summary judgment burden ..., the
responsibility then devolves upon the non-movant to show the existence of a genuine
issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving party fails to
make ‘a sufficient showing on an essential element of her case with respect to which she
has the burden of proof,’ the moving party is entitled to summary judgment.” Clark, 929
F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted);
see also Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly support an assertion of fact
or fails to properly address another party’s assertion of fact as required by Rule 56(c), the
court may … consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all reasonable
inferences, must be viewed in the light most favorable to the nonmovant ….”
McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).
“Therefore, the [non-movant’s] version of the facts (to the extent supported by the
record) controls, though that version can be supplemented by additional material cited by
the [movants] and not in tension with the [non-movant’s] version.” Rachel v. City of
Mobile, 112 F. Supp. 3d 1263, 1274 (S.D. Ala. 2015), aff’d, 633 Fed. Appx. 784 (11th
Cir. 2016).
“There is no burden upon the district court to distill every potential argument that
could be made based upon the materials before it on summary judgment.” Resolution
Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995); accord Gennusa v.
Canova, 748 F.3d 1103, 1116 (11th Cir. 2014). 	Moreover, “a passing reference to an
issue in a brief [i]s insufficient to properly raise that issue.” Transamerica Leasing, Inc.
v. Institute of London Underwriters, 430 F.3d 1326, 1331 n.4 (11th Cir. 2005). The Court
accordingly limits its review to those arguments the parties have expressly and
adequately advanced.
The parties agree that Alabama law governs the issues raised by their motions.
The Court therefore confines its analysis to Alabama law.
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I. Breach of Contract.
The parties agree that the elements of a contract claim under Alabama law are: (1)
a valid contract between the parties; (2) the plaintiff's performance thereunder; (3) the
defendant's non-performance; and (4) resultant damages. (Doc. 45 at 7; Doc. 47 at 6).
The defendants do not challenge the plaintiff's ability to establish the first two elements.
They deny, however, that the plaintiff can demonstrate either a breach of the contract or
any damages from such breach.
The contract at issue is the Lease, and the term at issue required Taruma, as lessee,
to maintain property insurance and to "designate the Lessor as an 'also named insured'."
(Doc. 45-1 at 3). The Court has by separate order ruled that the plaintiff is neither a
named insured nor an additional insured under the Policy. (Doc. 33 at 5-9). The plaintiff
properly relies on this ruling as demonstrating a breach of the requirement that it be so
designated. (Doc. 45 at 8-9).2 The defendants, without acknowledging either the
plaintiff's argument or the Court's ruling, in a single brief paragraph advance several
proposed means of defeating the element of breach. (Doc. 49 at 5).
First, the defendants argue there was no breach because Taruma added the plaintiff
as a certificate holder. Taruma's obligation, however, was to have the plaintiff designated
as an also named insured; as the Court's previous order explains, under governing law a
certificate of insurance cannot accomplish that feat. (Doc. 33 at 6-7).
Second, the defendants assert that the plaintiff accepted the Policy, and accepted
rent under the Lease, which conduct they say shows that (or at least creates a fact
question regarding whether) the plaintiff either accepted Taruma's performance as
satisfactory or waived the right to challenge it now. No explanation, reference to the
record, citation to legal precedent, or description of governing analytical principles
accompanies this ipse dixit, and the Court will neither speculate as to a rationale on the
defendants' behalf nor go in search of reasoning, evidence, or authority to support it.
2 Because the parties do not do so, the Court does not for present purposes distinguish
between a named insured, an additional insured, an also named insured, and an additional named
insured.
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The plaintiff identifies its damages from Taruma's breach as stemming from
inadequate repair to the Property, such that the Property fails to meet building codes and
is devalued as a result. (Doc. 45 at 6). The plaintiff identifies four exhibits with which to
support its assertion of damage. (Id. at 4, 6; Doc. 50 at 2). Exhibit 7 is a collection of
photographs showing pre-repair damage to the Property from the storm. (Doc. 45-4 at 1-
8). The plaintiff does not explain, and the Court does not discern, how these images
could suggest a diminution in value from pre-storm state to post-repair state.
Exhibit 8 is another collection of photographs, which the plaintiff fails even to
identify. (Doc. 45-4 at 9-24). Assuming for present purposes that they are pictures of the
Property post-repair, without explanation and/or additional evidence (the plaintiff
provides neither), they appear to show only cosmetic imperfections, not structurally
compromised elements or building code violations. Moreover, the plaintiff's claimed
measure of damages is the difference between the pre-storm value of the Property and its
post-repair value, and without evidence of that pre-storm value, or even appearance
(which the plaintiff fails to provide), it would be impossible to infer from Exhibit 8 that
the Property has been devalued.
Exhibit 9 is a November 2022 email from Scottsdale saying, "Looks like we
consider this [Building 5] a total loss." (Doc. 45-5 at 1). The defendants concede they
did not replace Building 5 but rather repaired it. (Doc. 47-4 at 3). Assuming for
argument that it reflects Scottsdale's judgment that Building 5 should be replaced (and
not simply a judgment that insurance proceeds should be calculated assuming
replacement), the statement might well support a reasonable inference that repair alone
would not return Building 5 to its pre-storm value. It would not, however, on its own
compel a reasonable jury to find diminished value. Even if it would do so, the
defendants' evidence that the repair work "significantly improved" Building 5, (id.),
would create a genuine issue of fact as to whether Building 5 has been, as the plaintiff
claims, devalued.
Exhibit 11 is only a proposal to erect a metal building at a cost of $168,800. (Doc.
50-1). Assuming for argument that this building would be a replacement of Building 5
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(the plaintiff offers no such evidence), the proposal cannot possibly suggest, as the
plaintiff maintains, that Building 5 "will need to be replaced"; the most it reflects is an
estimate of the cost of replacement, not the need to do so.
As the defendants note, the plaintiff's presentation is heavy on factual assertions
by counsel and light on evidence offered to support those assertions. On a plaintiff's
motion for summary judgment, evidence is indispensable. For reasons stated, the
plaintiff's limited evidence of diminished property value is inadequate to meet its heavy
burden on motion for summary judgment.
In support of their competing motion for summary judgment, the defendants argue
that the increased rent the Property commands post-repair negates any diminished value
of the Property. (Doc. 49 at 5).3 While rent may be suggestive of a property's value, the
defendants identify no authority for the unlikely proposition that it is dispositive --
especially when the rents being compared are for different moments in time, when
different market and economic conditions may be in play.
The defendants next argue that the Property was not only repaired but improved.
(Doc. 49 at 5-6). As noted, Exhibit 9 would appear to support a reasonable inference that
repair alone would not return Building 5 to its previous value, and the defendants have
not meaningfully addressed that exhibit or its implications. Nor have they shown that the
minor "improvements" their single cited exhibit vaguely identifies -- "added electrical
service and lights" in one building, (Doc. 47-6 at 2) -- necessarily outweigh any deficits
in their repair efforts.
Finally, the defendants complain that the plaintiff has never given an estimate or
itemization of claimed damages and that the plaintiff allowed Taruma to assign the leased
premises in 2022 without mentioning a need for repairs. (Doc. 49 at 7). The first
proposition is unsupported by any citation to the record, and neither proposition is
3 Annual rent under the Lease was $42,000. (Doc. 34-1 at 2). Annual rent to Pellets
under its 2023 lease is $45,000. (Doc. 47-7 at 2).
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capable of negating the element of damage or demonstrating that the plaintiff is incapable
of proving such damage at trial.
Farudi's contractual liability is based upon the following language found in the
Lease:
PERSONAL GUARANTEE BY LESSEE. This Lease Agreement
shall be personally guaranteed by Rahmeen Farudi (guarantor), referred
to as the "Guarantor(s)", and shall unconditionally guarantee the payment
of the rent along with any other financial duties or obligations. See
Bankruptcy-Insolvency cancellation clause for exception.
(Doc. 45-1 at 11). According to the defendants, the adjective "financial" modifies the
noun "obligations," such that the guaranty does not extend to Taruma's non-financial
obligation to designate the plaintiff as an also named insured. (Doc. 47 at 5-6; Doc. 49 at
7-8). According to the plaintiff, "financial" modifies only "duties," such that the guaranty
extends to all contractual obligations, not only to financial ones. (Doc. 50 at 3; Doc. 51
at 9). Both sides consider their reading too obvious to merit discussion beyond their
respective ipse dixits, and neither side even identifies, much less applies, any rules of
construction or other tools to determine the provision's meaning. Because both readings
appear defensible, and because the parties offer nothing with which to break the impasse,
neither side is entitled to summary judgment on the issue.
II. Fraud.
The parties agree that the elements of the plaintiff's fraud claim are: (1) a false
representation; (2) of a material existing fact; (3) reasonably relied upon by the plaintiff;
and (4) resulting damages. Brickhouse Capital, LLC v. Coastal Cryo AL, LLC, 393 So.
3d 467, 473 (Ala. 2023). The plaintiff asserts that Taruma, by means of the Certificate,
falsely represented that the plaintiff was an also named insured; that the plaintiff relied on
the Certificate by refraining from obtaining insurance on the Property; and that it was
damaged in that the Farudi defendants did not return the Property to its pre-storm value
and the plaintiff received no insurance proceeds with which to do so. (Doc. 45 at 10-11).
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The defendants argue that, as a matter of Alabama law, a plaintiff claiming to be
an additional insured cannot reasonably rely on a certificate of insurance identifying the
plaintiff as such in contradiction of the policy. (Doc. 49 at 8). As addressed in a
previous order, that is a generally accurate statement, but it is subject to a potential
limitation if the plaintiff was or would have been denied access to the policy. (Doc. 41 at
4-7). Because the defendants do not address this limitation, much less rule it out in this
case, they cannot obtain dismissal of the fraud claim.
The plaintiff argues that the principle stated in the preceding paragraph applies
only when the defendant making the misrepresentation is the insurer or its agent. (Doc.
50 at 3-4). The plaintiff offers no support for its position, which is at best
counterintuitive. There is no apparent reason to believe that, while one claiming to be an
additional insured cannot reasonably rely on a certificate of insurance issued by, and
received directly from, the insurer or its agent, it nevertheless can reasonably rely on the
same certificate, issued by the same insurer or agent, if it is received directly from the
named insured and only indirectly from the insurer or agent. The Court need not resolve
the plaintiff's reliance argument because, for reasons stated in Part I, the plaintiff has not
established a central premise of its damages theory: that the Property's value post-repair
is less than it was pre-storm.
The plaintiff in its motion identifies a second fraud claim within the amended
complaint: that Taruma falsely represented to the plaintiff that the insurance proceeds
were used to fully repair or replace the Property. (Doc. 45 at 11). Because the plaintiff
does no more than note this claim's existence, it cannot receive summary judgment in its
favor.
To challenge this second fraud claim, the defendants rely on a single sentence
from a witness's affidavit: "None of the Taruma defendants named in this lawsuit stole
any insurance proceeds as alleged by the plaintiff." (Doc. 47-4 at 4; Doc. 47 at 7-8; Doc.
49 at 9). The defendants assume rather than demonstrate that the plaintiff's claim
depends on proof they "stole" insurance proceeds. The Court cannot on the scant record
before it accept this assumption. It does not appear that the plaintiff under this fraud
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claim asserts entitlement to the insurance proceeds, or to any surplus proceeds left over
after the Property is restored to its pre-storm value; rather, the claim appears to be only
that the plaintiff is entitled to a return of the Property to that value.
III. Conversion.
To defeat the conversion claim, the defendants rely on the same evidence that they
"stole" no insurance proceeds. (Doc. 47 at 7-8). As their own authority reflects, one may
convert property without stealing it, (id. at 9), and the defendants' failure to address these
alternate means of accomplishing a conversion dooms their motion.
The defendants complain that the plaintiff has "offered no proof" to support its
conversion claim. (Doc. 47 at 9). As noted at the outset of the Court's discussion, the
initial burden lies with the defendants either to present evidence that negates an element
of the plaintiff's claim or to point to material in the file demonstrating the plaintiff is
incapable of supplying proof of an essential element. Until the defendants do that, the
plaintiff has no obligation to do anything at all. Because the defendants have not satisfied
their initial burden, their motion must fail regardless of the plaintiff's silence.4
IV. Theft by Deception and Embezzlement.
The defendants' only argument is that the plaintiff "has offered no evidence" to
prove these claims. (Doc. 47 at 10). As noted in Part III, this is not a winning argument
on a defense motion for summary judgment.
V. Unjust Enrichment.
The defendants' sole argument is the futile one that the plaintiff "has offered no
proof" to support this claim. (Doc. 47 at 10-11).
4 The defendants assert that the plaintiff has conducted no discovery, has identified no
experts, and "in response to discovery requests ... has not come forward with any evidence that
would substantiate any of the allegations contained in Count III." (Doc. 47 at 8). Because this is
merely the defendants' ipse dixit, it fails to show by reference to materials on file that the
plaintiff cannot meet its burden at trial.
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VI. Negligence/Wantonness.
"A mere failure to perform a contractual obligation is not a tort." Gustin v. Vulcan
Termite and Pest Control, Inc., 331 So. 3d 601, 605 (Ala. 2020) (internal quotes
omitted). The defendants, relying on this proposition, seek dismissal of Count IV in its
entirety. (Doc. 47 at 11-12). They do so without cataloguing the duties the amended
complaint alleges were tortiously breached. The Court identifies the following such
duties: (1) to add the plaintiff as an additional named insured; (2) "to see that the
insurance claim filed for damage to [the Property] was proper"; and (3) "to see that [the
plaintiff] was compensated for damages to [the Property], or alternatively that all
proceeds were spent on the replacement and proper repair of" the Property. (Doc. 34 at
7). The defendants acknowledge only the first of these. (Doc. 47 at 11). The Court
agrees that the duty to add the plaintiff as an also named insured is a duty imposed by
contract5 and that the tort claim based on failure to perform this contractual duty is
barred. However, because the defendants have not addressed the other alleged duties on
which Count IV is based, the negligence and wantonness claims survive as to them.
VII. Piercing the Corporate Veil.
The defendants acknowledge that piercing the corporate veil is appropriate under
Alabama law if the entity is inadequately capitalized, or is conceived or operated for a
fraudulent purpose, or is operated as the instrumentality or alter ego of another with
corporate control. (Doc. 47 at 12). The amended complaint alleges all three. (Doc. 34 at
7).
To negate a basis for piercing the corporate veil, the defendants rely exclusively
on testimony that Taruma "is a Nevada based LLC as a manufacturing and product
development company for charcoal grilling products" that "has filed tax returns, paid
employees, entered into contracts and operated a charcoal fuel and pellet factory in
Fruitdale, Alabama." (Doc. 47-4 at 2; Doc. 47 at 13). The defendants offer no authority
5 The plaintiff expressly so concedes. (Doc. 51 at 14).
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or explanation how such limited evidence could negate the existence of any basis for
piercing the corporate veil, and the Court will not endeavor to supply the deficiency.
The defendants also insist that the plaintiff "has no proof" of, and "can offer no
evidence" of, a basis for piercing the corporate veil. (Id.). As before, because the
defendants point to no materials in the file to support this proposition, their ipse dixit
cannot sustain their initial burden on motion for summary judgment.
VIII. Conspiracy.
Count VI alleges that the defendants conspired with Scottsdale to defraud the
plaintiff. (Doc. 34 at 8-9). The defendants argue that the Court's dismissal of this claim
as to Scottsdale compels dismissal as to them because a successful conspiracy claim
requires "concerted action by two or more" actors. (Doc. 47 at 13). And so it does, but
the defendants cite no authority for the improbable proposition that a plaintiff cannot
prove concerted action by two conspirators if one of them is, like Scottsdale, dismissed
for other reasons.
"Liability for civil conspiracy rests upon the existence of an underlying wrong[,]
and if the underlying wrong provides no cause of action, then neither does the
conspiracy." Flying J Fish Farm v. Peoples Bank, 12 So. 3d 1185, 1196 (Ala. 2008)
(internal quotes omitted). The defendants argue the plaintiff cannot prove the underlying
wrong of fraud because, as a matter of law, the plaintiff could not reasonably rely on the
Certificate as confirming its status as an insured under the Policy. (Doc. 47 at 14). As
noted in Part II, that general proposition is subject to a potential limitation if the plaintiff
was or would have been denied access to the policy, and the defendants' failure to address
that limitation precludes them from meeting their burden of showing the plaintiff cannot
prove the reliance element of its fraud claim.6
6 Scottsdale's successful motion was one for judgment on the pleadings, so the amended
complaint's failure to allege actual or inevitable refusal of access to the Policy was fatal. (Doc.
41 at 7 & n.8). The defendants' motion, in contrast, is for summary judgment, so the question is
not the adequacy of the pleading but of the evidence and briefing.
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Finally, the defendants argue they should prevail simply because the plaintiff did
not address the conspiracy claim in its opposition brief. (Doc. 53 at 7). In a word, no.
"[T]he district court cannot base the entry of summary judgment on the mere fact that the
motion was unopposed, but, rather, must consider the merits of the motion." United
States v. One Piece of Real Property, 363 F.3d 1099, 1101 (11th Cir. 2004); accord
Wappler v. Ivey, 2024 WL 3321147 at *13 (11th Cir. 2024).
CONCLUSION
This action was filed in October 2023. (Doc. 1-2 at 10). Almost two years later, it
is clear that the parties have yet to master the case -- the causes of action and their
elements, the substantive law governing their analysis, the evidence necessary and
available to prove or undermine them, and the procedural requirements for doing so.
Nevertheless, this action is bound for final pretrial conference in less than three weeks.
The Court will deal appropriately with any party appearing at the conference without a
substantially improved grasp of this case than has been thus far exhibited, or that is
responsible for producing a joint pretrial document not in full compliance with the letter
and spirit of the Court's standing order. (Doc. 25-1).7
For the reasons set forth above, the defendants' motion for summary judgment is
granted with respect to Count IV, to the extent it is based on an alleged duty to add the
plaintiff as an additional named insured, and is in all other respects denied. The
plaintiff's motion for partial summary judgment is denied. This action as to Pellets is
dismissed with prejudice.
DONE and ORDERED this 20th day of June, 2025.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE
7 As of the close of discovery two months ago, the parties had produced exactly zero
settlement proposals and had engaged in precisely zero settlement discussions. (Doc. 43). If that
count remains accurate today, the parties are already in violation of the Court's standing order.
(Doc. 25-1 at 1).
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