Williams v. Ying Zhou

PAUL WILLIAMS and MAKSWILL GRP. CORP. Plaintiffs, v. YING ZHOU, GUOLIANG TIAN, and JIHAHAO¹ INT'L GRP., LTD. Defendants.

Civ. No. 14-5544 (KM) (MAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

May 29, 2020

OPINION

KEVIN MCNULTY, U.S.D.J.:

This matter between Plaintiffs, Paul Williams and Makswill Group Corporation ("Makswill"), and the Defendants, Ying Zhou, Guoliang Tian, and Jiahao International Group, Ltd. ("Jiahao") has been pending since September 2014. It is an object lesson in the consequences of failure to embody a commercial relationship in a clear written contract. This action, moreover, has been plagued by procedural missteps from counsel on both sides. By way of background to Defendants' renewed motion for summary judgment and the Plaintiffs' cross-motion for summary judgment, I highlight some of this matter's relevant procedural history.

The parties have collectively moved (or attempted to move) for summary judgment eight times. (See DE 10; DE 121 & 122; DE 133 & 134; DE 138 & 139; DE 168; DE 176; DE 189; DE 194) All but the currently pending motions have been terminated or denied by this Court, often for failure to comply with the Local Civil Rules of this district and the Federal Rules of Civil Procedure. (See DE 72; DE 127; DE 150; DE 164; DE 165; DE 166; DE 185) For example,on March 14, 2016, when administratively terminating the first summary judgment motion, I admonished the plaintiff as follows:

The motion for summary judgment was filed some 7 days after the complaint had been answered. It is premature, and it lacks the statement of undisputed facts as required by Local Rule 56.1. It raises multiple issues of fact about the formation of the alleged contract, in advance of any discovery. . . . The court may deny or defer summary judgment motion when opposing discovery has not had the opportunity for discovery so it can marshal the necessary facts. See Fed. R. Civ. P. 56(d). Leave to file summary judgment motions shall be sought from the Magistrate Judge when discovery is complete.

(DE 72)

Three years later, I provided additional guidance. For clarity, I outlined exactly what was deficient about the motions as submitted, this time focusing on the Defendants:

THIS MATTER having come before the Court upon the motion of Plaintiffs Paul F. Williams ("Williams") and Makswill Group Corporation ("Makswill") (DE 133) for summary judgment and. the motion of Defendants Ying Zhou ("Zhou"), GuoliangTian ("Tian"), and Jihahao International Group, Ltd. ("Jihahao") for summary judgment (DE 138, 139); and

IT APPEARING that Local Civil Rule 56.1(a) requires that a motion for summary judgment include a numbered statement of material facts, cited to the relevant portions of the record, and that the opposition to a motion for summary judgment include a responsive statement of material facts; and

IT FURTHER APPEARING that, under Local Civil Rule 56.1(a), "[e]ach statement of material facts shall be a separate document (not part of a brief] and shall not contain legal arguments or conclusions of law"; and

IT FURTHER APPEARING that Defendants' motion (DE 138, 139) for summary judgment does not include a statement of material facts not in dispute pursuant to Local Civil Rule 56.1; and

IT FURTHER APPEARING that Defendants' opposition (DE 142 to 146) to Plaintiffs motion for summary judgment does not furnish a responsive statement of material facts not in dispute pursuant to Local Civil Rule 56.1; . . . .

(DE 150) I therefore ordered the Defendants' motion for summary judgment stricken. (Id.) I further ordered that the Defendants' papers in opposition to Plaintiffs' motion be stricken and granted leave to refile an opposition that conformed with L. Civ. R. 56.1. Ultimately, this order had no effect on the parties' compliance. Both sides' briefing failed to conform with Fed. R. Civ. P. 56 and L. Civ. R. 56.1. Therefore, on March 25, 2019, I issued an opinion and order outlining in detail how the parties failed to comply with the local rules and I ultimately denied the Plaintiffs' motion for summary judgment. (DE 164 at 4-7, 19; DE 165)

Six weeks later, on May 14, 2019, Defendants filed another motion for summary judgment. (DE 168) Plaintiffs then cross-moved for summary judgment. (DE 176) Again, these motions failed to meaningfully comply with Rule 56 or Local Rule 56.1. Therefore, at a conference held on October 8, 2019, Magistrate Judge Hammer outlined the deficiencies in the papers that were hampering the Court's efforts to identify the material facts that remained in dispute. The motions were then administratively terminated. (DE 185) Judge Hammer issued an order, which would be redundant in most cases, requiring that any subsequent summary judgment motion conform to the rules:

As discussed during the telephone conference held on the record on October 8, 2019, any renewed motion for summary judgment shall be filed by November 15, 2019, any opposition shall be filed by December 15, 2019, and any reply shall be filed by January 7, 2020. If the parties file cross-motions for summary judgment, they shall strictly adhere to Local Civil Rule 7.1(h). So Ordered by Magistrate Judge Michael A. Hammer on 10/9/2019

(DE 186) Defendants then sought an extension to file a "revised" summary judgment motion. (DE 187) Judge Hammer granted that request and again reminded the parties that "All papers must comply with Local Civil Rules 7.1, 7.2, and 56.1." (DE 188)

This Court has given ample warning(s) that it expects counsel to comply with applicable rules when submitting motions for summary judgment. Now pending before this Court is the Defendants' renewed motion for summaryjudgment (DE 189) on all Counts of the Amended Complaint (DE 81) and Plaintiffs' cross-motion for summary judgment (DE 194).

These motions, too, fall well short of procedural requirements, though not quite as far short as their predecessors. I have more or less thrown up my hands at this point and considered the motions as presented.

I. Background²

The parties have revised prior briefing but only incompletely corrected the flaws specifically identified by this Court. For example, the brief submitted by Mr. Irwin on behalf of Defendants makes factual assertions that are not cited to the statement of material facts (where indeed they do not appear), or to the record. (Compare DSOF with DE 189 at 3-9.) Likewise, the Defendants often fail to cite to any evidence when denying Plaintiffs' statement of material facts. (See DRSOF, passim.) Plaintiffs for their part frequently refer to facts in their cross-motion that do not appear in their statement of facts, or cite to facts without reference to any supporting evidence in the record. (Compare PSOF with DE 194-1 at 12-21)³

In general, I give no weight to any factual statements made by either party that are not properly cited to the record. See L. Civ. R. 56.1(a). Where record support is apparent, however, I have tried to cite it on my own.

a. The Parties

Plaintiff Paul Williams is a consultant who owns a New Jersey-based business, plaintiff Makswill Group Corporation. (PSOF ¶ 1) His business is listed as that of an Authorized Representative under the Antigua Citizenship by Investment Program ("CIP"). (Id.) CIP offers a path to Antiguan citizenship to foreign persons who invest in Antigua through such vehicles as the National Development Fund, real estate investments, or business investments.⁴

Plaintiffs allege that the Defendants "are in the business of placing Chinese nationals in other countries - whether for study or residency - via immigration policies in those countries." (PSOF ¶ 2) (citing to Zhou Dep., p. 38: 7 - 17, 43: 21 - 25; Tian Dep. Pt. I, p. 16:1-3, 63:12-21). As in their prior briefing, Defendants claim to "dispute" this fact, although they again fail to point the Court to any contrary evidence.

In any event, Defendants' response makes clear that there is no dispute as to the following: Defendants Mr. Tian and Mrs. Zhou assist foreign nationals with two forms of immigration consultancy services—one for study and the other for residency through financial investment programs. (See id.; DRSOF ¶ 2). Indeed, in his deposition, Mr. Tian affirmed that, when he met Mr. Williams, he told Williams that his business "involved securing applications for economic citizenship for Chinese nationals for different countries around the world and [he was] considering Antigua." (Tian Dep., p. 63: 12-21).⁵

On the same topic, Defendants claim that there is a factual dispute as to whether Ms. Zhou is in the business of placing Chinese nationals in foreign countries. (DRSOF ¶ 2 (citing nothing in the record)) Again, the alleged dispute is difficult to pinpoint; Ms. Zhou herself testified in her deposition that when she does educational consulting, she assists foreign applicants with visa applications, and she acknowledges that she engages in "immigration type consultancy services." (Zhou Dep., p. 38:1-17).

The affidavits and depositions continue to clash, however, as to whether Mr. Tian and Ms. Zhou were business partners, or, relatedly, whether they represented to Mr. Williams that they were business partners.

Ms. Zhou asserts that she is not involved in Mr. Tian's business except as his English-Mandarin interpreter. (Zhou Dep., pp. 38:2, 35:20; see also Zhou Dep., pp. 35:12-25, 36:1-25, 37:1-2 (Ms. Zhou affirming that her only job for Mr. Tian and Jiahao was to act as a translator, and that, to this day, her business relationship with Mr. Tian is only as his interpreter)). Mr. Tian also testified that he is the sole owner of Jiahao and that it has eight employees, none of whom is Ms. Zhou. (Tian Dep., pp. 16-17; DSOF ¶ 4). Mr. Tian needed a translator because he does not speak or read English. (DE 189 at 6)⁶

By contrast, Plaintiffs continue to point to evidence that Ms. Zhou allowed Mr. Williams to believe that she was Mr. Tian's business partner. Plaintiffs cite an initial email exchange between Mr. Williams and Ms....