United States District Court, E.D. Louisiana
ORDER & REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE.
the Court is a Motion for Summary Judgment
(Rec. Doc. 146) filed by Plaintiff, Robert
Najor (“Plaintiff), and a Motion for Partial
Summary Judgment (Rec. Doc. 154) filed
by Defendant Huyen T. Nyugen, in her capacity as Trustee of
the Nguyen Family Trust (“Defendant Trustee”) on
Count Four of Plaintiff's Amended Complaint (Rec. Doc.
128). Both motions are opposed and supported by various
oppositions, replies, and sur-replies. Having considered the
motions and legal memoranda, the record, and the applicable
law, the Court finds that both motions should be
AND PROCEDURAL BACKGROUND
litigation derives from a default judgment rendered in this
Court on November 9, 2017, against Hai Nguyen
(“Judgment Debtor”) and the Nguyen Family Trust
(“the Trust”) by and in favor of Robert Najor
(“Plaintiff”). (Rec. Doc. 80).
April 5, 2013, Plaintiff instituted an action against
Judgment Debtor and Plaquemines Clay Co., LLC to recover
payment owed on a promissory note dated February 22, 2012.
(Rec. Doc. 1, at 3). This Court entered a default judgment in
favor of Plaintiff and against Judgment Debtor and
Plaquemines Clay Co., LLC on March 14, 2014. (Rec. Doc. 23).
Thereafter, Plaintiff filed suit against Judgment Debtor and
the Trustee of the Trust, and the case was consolidated with
the action instituted on April 5, 2013. (See Rec.
16, 2017, default was entered against Judgment Debtor and
Defendant Trustee. (Rec. Doc. 69). This Court held an
evidentiary hearing on October 18, 2017. (Rec. Doc. 75).
Plaintiff's counsel submitted a Trial Exhibit containing,
among other things, a copy of a purported cash sale in 2002
of property located at 1725 Lakeshore Drive in New Orleans,
Louisiana (“the Property”) from an entity
entitled National Marine Financing Corporation
(“National”) to the Trust. (Rec. Doc. 77, at 1).
Judgement Debtor was the President of National. The cash sale
specifically names Huyen Nguyen as the Trustee of the Trust
and appears to list her mailing address as that of the
Property where service upon Defendant Trustee was executed.
(See Rec. Doc. 77, at 1).
November 9, 2017, this Court entered a judgment against
Judgment Debtor and the Trust. (Rec. Doc. 80). On October 5,
2018, this Court granted Defendant Trustee's motion for a
new trial. (See Rec. Docs. 84, 94). This Court
subsequently granted Defendant Trustee's Motion to
Alter, Clarify or Amend Judgment (Rec. Doc. 98),
concluding that the Court's October 5, 2018 Order had the
effect of granting a new trial on all issues and entirely
setting aside the Court's November 9, 2017 Judgment.
(Rec. Doc. 139).
then filed an amended complaint on January 16, 2019 stating
seven possible claims for relief. Defendant Trustee responded
with a Motion to Dismiss Counts One, Four, Six, and Seven of
the amended complaint. On April 15, 2019, the Court issued an
Order & Reasons granting Defendant Trustee's Motion
to Dismiss regarding Counts One, Six, and Seven, but
specifically retaining jurisdiction over Plaintiff's
Count Four, which alleged the sale of the Property in 2002 to
Defendant Trustee was a simulation resulting in an absolute
or relative nullity (Rec. Doc. 141).
judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56); Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact
exists, a court considers “all of the evidence in the
record but refrains from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co.
v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398
(5th Cir. 2008). All reasonable inferences are drawn in favor
of the nonmoving party, but a party cannot defeat summary
judgment with conclusory allegations or unsubstantiated
assertions. Little, 37 F.3d at 1075. A court
ultimately must be satisfied that “a reasonable jury
could not return a verdict for the nonmoving party.”
Delta, 530 F.3d at 399.
dispositive issue is one on which the moving party will bear
the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a
directed verdict if the evidence went uncontroverted at
trial.'” Int'l Shortstop, Inc. v.
Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir.
1991). The nonmoving party can then defeat the motion by
either countering with sufficient evidence of its own, or
“showing that the moving party's evidence is so
sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.”
Id. at 1265.
dispositive issue is one on which the nonmoving party will
bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence
in the record is insufficient with respect to an essential
element of the nonmoving party's claim. See
Celotex, 477 U.S. at 325. The burden then shifts to the
nonmoving party, who must, by submitting or referring to
evidence, set out specific facts showing that a genuine issue
exists. See Id. at 324. The nonmovant may not rest