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www.clayro,com
PaulS.Hugel
Partner
hugel
@ clayro.com
February 4,2019
DearJudgeM iddlebrooks:
W earetheattorneysforM ellen,lnc.(ttM el1en''),aNew York based family-owned
diam ond dealerwhich w asthevictim ofScottM eyrow itz'sfraud. Iam writing to provide
the Courtw ith a victim im pactstatem enton behalfofM ellen and to inform the Court
regardingM eyrowitz'slong history offraud and perjury,which includesfalsestatements
he m ade under oath to yourH onorduring hisplea allocution in thiscase.
ln late 2014,M eyrow itzknew from anotherdealerthatM ellen ow ned a 4.05 carat
internallyflawlessheart-shaped bluediymond (RtheDiam ondn).M eyrowitzcontacted
theownerofBiltm oreLoan and Jewelry (KBiltmoren),apawnshop in Arizona,about
pawning the Diam ond.M eyrow itz told Biltm ore'sowner thata friend ofhisin M innesota
namedJoseph Gutekunstowned theDiamond and thatGutekunstwished to pawn itto
raisem oney forhisbusiness.
Case 9:18-cr-80216-DMM Document 33 Entered on FLSD Docket 02/19/2019 Page 2 of 24
ï, H on. Donald M .M iddlebrooks
February4,2019
Page2
As soon asM eyrow itzreceived the D iam ond from M ellen,he sentitto Biltm ore,
whereGutekunst,posing astheDiam ond'sowner,pawned itin exchangefora $1million
loan.Gutekunstimmediatelywired almosta11ofthismoneyto M eyrowitz A few m onths
.
M ellen then retained our 1aw firm to recoverthe D iam ond from M eyrow itz. O ur
investigation ofM eyrow itz turned up num erouslegalclaim sagainsthim by other dealers
fornotreturning diamondsand jewelry theyentrusted to him.Based upon M eyrowitz's
history ofsim ilarconductand hisactionshere,we quickly concluded thatM ellen had
been thevictim ofa con.W ereported M eyrowitz'stheftoftheD iam ond to the N ew York
County DistrictAttorney'sO ffice and to the United StatesAttorney'sO ffice in M iam i.
Based upon M eyrowitz'sfalse affidavit,M ellen com m enced a second law suitin
U.S.DistrictCourtin M innesota againstM eyrowitz and G utekunst. M ellen obtained a
Case 9:18-cr-80216-DMM Document 33 Entered on FLSD Docket 02/19/2019 Page 3 of 24
# Hon.DonaldM .M iddlebrooks
February 4,2019
Page 3
TRO freezing Gutekunst'ssafe depositbox and an order to have the safe depositbox
opened and inspected.Atthatpoint,M ellen learned thatthe Diam ond w asnotin there
(and in facthad neverbeen in M innesota). W ethen deposedM eyrowitz, who invoked his
Fifth Amendmentprivilegein responseto allquestionsabouttheDiamond.
Id p IA
W hileM ellen w asfortunate to recover theproperty thatM eyrow itz stole from
him ,hisothervictim sthatw e know abouthave notbeen so fortunate. Although
M eyrowitzobtained $1.3 million from Biltmorethrough thepawn ofM ellen'sdiam ond
and stole$900,000from M s.PappasandM r.Brendelthrough hisfraudulentinvestment
schem es,littleifany ofthatm oney hasbeen recovered. Thisisperhapsexplained by the
website ofLawrence A.Caplan,an attorney who recently appeared in the Southern
DistrictofFlorida on behalfofM eyrowitz.M r.Caplan'swebsite statesthathe specializes
in uoffshore AssetProtection''and thathe advisesclientson how to transferassets ttto an
offshoretrusteethatisnotsubjecttothegeneraljurisdiction ofU.S.courts,whileatthe
sam etime providing ready accessto those sam eassets.''3
M eyrowitz'sPerjury DuringHisChangeofPleaHearing
A consistentpattern in M eyrow itz'sfraud ishispanache forfabricating elaborate
storiesblaming othersforhismisdeeds.Hedid thiswhen M ellen sued him (claimingthat
thelawsuitwasaploy by M ellen to stealM eyrowitz'sclient). Hedid thisthroughouthis
Texasbankruptcy proceeding (whereatasinglehearingheblamedrepeated violation of
courtorderson hisCPA'Shealth,hisaccounts being frozen and an Ebola outbreak in
Africal.4Hedid thisduringhisarbitration with Brendel.(ççgM r.M eyrowitztook no
responsibility forthe com plicationswhich heclaim ed to besethim .H econtinually blam ed
othersforeach problem .''Id 40). Hehascontinued thispattern beforethisCourt.
3 l
attp://wwur.seûlucliatrtlst.coln M r.Caplan recently represented M eyrowitz in a case in
thiscourtbeforeJudgeM arra,Akyrowitz z.Brendej 16-cv-81793-KAM . In thatcase,
both M r.M eyrowitz and M r.Caplan w ere sanctioned underRule 11 forûtw illful
litigation m isconduct''and foractionsthatKw ere undertaken in bad faith,were
vexatious,and unnecessarilymultiplied thislitigation.''(DktNo.98 atp.23).
4 See,In re ScottB Afeyrowitz,CaseNo.06-31660,DktNo.416 (N.D.Tex.Bankr.)
.
Case 9:18-cr-80216-DMM Document 33 Entered on FLSD Docket 02/19/2019 Page 6 of 24
H on.D onald M .M iddlebrooks
February 4,2019
Page 6
TranscriptofM eyrow itz Change ofPlea Hearing D ec. 13,2018 atpp.8 and 12.
W hen the Courtasked M eyrow itz ifhe had com m itted thecrim e alleged by the
Governm ent,M eyrowitz launched in a ram bling and com pletely false story blam ing
M ellen forhiscrim e.
A. Yes,sir.
N o portion ofwhatM eyrow itz told the Courtistrue.M ellen ow ned the Diam ond
and sentitdirectly to M eyrow itz afterM eyrow itz signed an agreem entw ith M ellen
prom ising to return the Diam ond on dem and.M eyrowitznevertried to m ake any
paym entto M ellen fortheD iam ond. H isonly responseto M ellen'srepeated dem ands
thathe return orpay forthe Diam ond wasto 1ie to him , 1ie to him som e m ore,and to
then stop responding altogether.W hen M ellen sued him , M eyrowitz resum ed lying to
M ellen and to the court.
Even ashe pleaded guilty,M eyrow itzlied to the Courtin an attem ptto garner
sympathy and to m inim ize responsibility forhisvenaland outrageousbehavior. H e isan
unrepentantcareercrim inalwho deservesno sym pathy.Thenature and extentofhisfalse
statem ents to the Courtamply warrantdenialofcreditforacceptance ofresponsibility at
hissentencing.
Very truly yours
PaulS.H ugel
Defendants.
COM ES NOW the Defendants, SCOTT B.M EYROW ITZ and SSB IN TERN A TIONAL,
LLC,by and through the undersigned counsel,and hereby files this,their Answer and A ffinnative
DefendantsfurtherassertthatthisCourtlacksjurisdictionovertheclaim assertedinCount1,
asthe resatissue isnotIocated within the State ofFlorida.
Andrew M .Schwartz,#.,d.
4755 Technolou rfW.y,Suite103
Boca Raton,FL 33431
Exh.A.
Case 9:18-cr-80216-DMM Document 33 Entered on FLSD Docket 02/19/2019 Page 9 of 24
As the Defendants'eighth separate and distinctaffirm ative defense, the Defendants assert
that Plaintiff's failure to prove a prim a facie claim for relief entitles the Defendants to
judgmentintheirfavor.
9. As the Defendants' ninth separate and distinct affirmative defense, the Defendants assert
factualim possibility.
l0. A s the Defendants'tenth separate and distinct affirmative defense, the Defendants assert
fraud.
As the Defendants'eleventh separate and distinctaffirm ative defense, the Defendants assert
DefendantSCOTT M EYROW ITZ entered into an agreementw ith the Plaintiffto procure a
$t1'' which indicated thatSCOTT M EYROW ITZ would be the purchaser ofthe ring atissue fora
Invoice attached hereto, and thereafter the Plaintiff wrongfully repudiated the purchase and sale
agreem ent, dem anded disclosure of SCOTT M EY ROW ITZ'S investor, and upon information and
belief intended to end-around SCOTT M EYROW ITZ entirely and contact SCO'TT
M EYROW ITZ'S investor for purposes of wrongfully interfering with SCOTT M EYRO W ITZ'S
advantageous business relationships w ith his existing clients and investors and to prevent SCOTT
M EYROW ITZ from receiving a substantialcomm ission he was to receive in connection w ith the
Andrew M .Schwartz,#.z4.
4755 Technolov p'ay,Suite 103
BocaRaton,FL 33431
Case 9:18-cr-80216-DMM Document 33 Entered on FLSD Docket 02/19/2019 Page 10 of 24
closing ofthe transaction noted in the attached lnvoice. The Defendants believe thatatalltim esthe
Plaintiffentered into the foregoing agreement in bad faith,based upon false representations oftheir
intention to consummate the purchase transaction (while actually intending notto perform when
representations regarding future performance were made),and took action solely to discoverthe
identity of SCOTT M EYROW ITZ'S investors and clients,for purposes of seeking to contact said
partiesdirectly and thereby tortiously interfere with SCOTT M EYROW ITZ'S advantageousbusiness
relationships.
Further factual support for the foregoing defenses willbe obtained via discovery in this
discovery in thiscauseprogresses.
W H EREFOR E having responded to the claim s of the Plaintiff,the Defendants dem and
Defendantsdemandatrialbyjuryonallmatterssotriablebyright.
CERTIFICATE O F SERVICE
l H EREBY C ER TIFY that a true and correct copy of the foregoing has been
electronically tsled and furnished to:G ary A .W oodseld,Esq.,Haile,Shaw & Pfaffenberger,
660 U .S. H ighw ay O ne, 3rd Floor, North Palm Beach, Florida 22408
(-
ç'w'oodGeldrzhaileshaw.coln and bpetroniral,l
nailesllaw.coml (Counselfor Plaintifg, Seth
Langer R osenberg,Esq.and PaulS.H ugel,Esq.,Claym an & Rosenberg,LLP,305 M adison
Avenue,Suite 1301,New York,NY l0165 (roselxbery.i
và,clayro.conxand hugelf
- .ilclayro.com)
t
(Co-counselforPlaintiffperMotiontoAppearProHac Vice)onthis251ndayofJanuary,2016.
AN DR EW M .SCH W AR TZ,P.A .
4755 Technology W ay,Suite 103
Boca Raton,Florida 33431
(561)347-6767-Telephone
(561)347-6768-Facsimile
By: /s/ Andrew M .Schw artz.Esq.
Andrew M Schwartz,#.zl.
4755 Technolov l'
F/y,Suite 103
Boca Raton,FL 33431
9
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Case 9:18-cr-80216-DMM Document 33 Entered on FLSD Docket 02/19/2019 Page 11 of 24
CASE 0:16-cv-O0206-DSD-DTS Document1-6 Filed 01/29/16 Page 1 of2
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1. Pursuantto the Court-sJanuary 11.2016 Orderlhefeby state thatthe 4.05 carat
bluediamond ring thatisthe subiectofthisaction (the --Ring*')ispresently in the possession of
Joseph Gutekunst.who holdsthe Ring on my behalfand atmy direction. -l'lw ring iscurrently
locatcd at:W'
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leyrow itz
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Case 9:18-cr-80216-DMM Document 33 Entered on FLSD Docket 02/19/2019 Page 12 of 24
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Case 9:18-cr-80216-DMM Document 33 Entered on FLSD Docket 02/19/2019 Page 13 of 24
For purposes of the summary judgmentmotions, The transaction between Goldstein and Gutekunst
the follow ing facts are not genuinely disputed. was com pleted on M arch 2, 20l5, the term s of
M ellen is a wholesale diam ond dealer specializing w hich are set forth in a pawn ticket signed by
in colored and otherhigh-quality diam onds.ln June G utekunst. Biltm ore w ired the $ 1 m illion to
2013,M ellen acquired the diamond atissue - a Gutekunstthenextday,andhe(**5) il nmediately
tlawless,four-carat blue heart-shaped stone - by transferred $955,000 to M eyrowitz. Biltmore
purchasing it from another diam ond dealer in bought the diam ond outright from G utekunst on
Case 9:18-cr-80216-DMM Document 33 Entered on FLSD Docket 02/19/2019 Page 15 of 24
Page 3 of12
247F.Supp.3d 1084,*1088;20l7U.S.Dist.LEXIS44522,**5
November 18, 2015, for a sale price of $l.3 Relying on the good faith purchaser rule,Biltm ore
m illion.This suitfollow ed severalm onths later to arguesthatithasgood title to the diam ond because
determine law fulownership ofthe diam ond. M eyrowitz obtained voidable title through a
''transaction ofpurchase''underU.C.C.j 2-403(1).
Thatsection provides,in pertinentpart:
D ISC USSIO N A person w ith voidable title has power to
transfergood title to a good faith purchaser for
lt is undisputed that M ellen owned the diam ond value.W hen goodshave been delivered undera
when itwas given to M eyrow itz on mem o.M ellen transaction ofpurchase the purchaser has such
argues that neither M eyrow itz nor Gutekunst pow er even though . . . the delivery was
acquired any ownership rights in the diam ond,and
Biltm ore cannotshow thatitobtained good title to procuredthroughfraudg.)
the diam ond as a good faith purchaser forvalue or U.C.C.j2-403(1)(d).M ellen argues,correctly,that
through an entrustm ent or consignment under the k 2-40341) does not apply because neither
Unifonu Commercial Code (U.C.C.). Mellen M eyrowitz nor Gutekunst obtained the diam ond
further argues that Biltlnore's counterclaim s for underatransaction ofpurchase.
slander and tortious interference failas a m atter of
1aw (*1089) becauseMellen isthetrueownerof A transaction of purchase is lim ited to those
the dialuond. situations in which a person delivers goods
''intending forthe subsequentsellerto be the owner
Biltm ore initially asserted that the dispute is ofthegoods.''Touch ofClas. %Leasing v.Mercedqj kz
governed by Article 2 ofthe U .C.C.,which covers #cnz Credit.248 N. J.Super.426,591 A.2d 661.
transactions in goods by m erchants. Biltm ore 667 (N.J.Super.Ct.App.Div. 19911.''Applying
argued that ithad good title to the diam ond under that definition(**7j to the case at bar, no
both the ''good faith purchaser rule'' provided in 'transaction ofpurchase'occurred because itisclear
U.C.C.j 2-403(1) and the ''entrustmentnlle''set from the record that gMellenj never intended for
forth in j2-403(21.Biltmorenow takestheposition (Meyrowitzq to become the owner of the
thatArticle 9 ofthe U.C.C.,w hich covers secured (dqiamond.' ' Zaretsky v. William Goldber?
transactions, governs the dispute. Biltm ore argues Diamond Corp..820 F.3d 513,525 (2d Cir.2016).
that Mellen's delivery of the diamond tog**6q Rather,M ellen gave it to M eyrow itz ''on mem o,''
M eyrowitzconstitutesaconsignmentunderj9-201 and the expressterm s ofthe agreem entpreclude the
and Biltm ore therefore has good title to the finding that M eyrowitz w as to have an ownership
diam ond as a purchaser for value ofgoods from a interestin the diam ond.
consignee under i 9-319. Despite taking the
position that Article 9 controls,Biltm ore does not The diam ond was given to M eyrow itz ''cm ly for
waive any prior argulnents made under Article 2. exam ination and inspection by prospective
The Court therefore w ill address the argum ents purchasers,upon the expresscondition thatal1such
m adeundereach article.l luerchandiseshallremain theproperty of(M ellenj.''
Meyrowitz''acquiregdqno rightorauthority tosell,
pledge, hypothecate or otherwise dispose of the
1.Biltm oreD id NotO btain G ood Title to the gdiamondl,orany pa14 thereof,by memorandum or
Diam ond UnderU.C.C.$ 2-403(1) otherwiseg.j''A sale of the diamond could occur
''only if and when gMellenj agreegd) and
gM eyrowitzj shallhave received from gM ellenja
'Arizona, where Biltmore is located, has adopted the relevant separate invoice.'
provisionsoftheU.C.C.atissueinthiscase,ashasNew Yorkwhere
'The diamond w as to be returned
Mellenresides.See/5.
,
.44,5.
,..j.
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42::7.
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49-1.47n2102(A)(7-%,47.
s2 )#; to M ellen ''on dem and,in fullin its originalform .''
,:.
N.
s.
Y.UCC âk2-403,9-1024204,?. -..
7.
12.
Case 9:18-cr-80216-DMM Document 33 Entered on FLSD Docket 02/19/2019 Page 16 of 24
Pagc4 of 12
247F.Supp.3d l084,#1089;2017U.S.Dist.LEXIS 44522,**7
The m em o concludes by m aking clear that it ''is purchase.''Am. Standard. 643 F.2d at 268. The
NOT an INVOICE orBILL ofSalel.j''(Doc 1 at record show s that in giving the diam ond to
9.) M eyrowitz on m em o, M ellen never intended for
M eyrowitz (orGutekunst)to becomethe ownerof
ln short,the m emo could notbe m ore explicitthat the diam ond, and M ellen reserved unilateral
the transaction betw een M ellen and M eyrowitz w as
authority to determ ine whether a future sale ofthe
not one of ''purchase.'' Stated differently, in diam ond w ould occur.This is clear on the face of
delivering the diam ond to M eyrowitz on m em o, the m em o,and courts interpreting sim ilar language
Mellenneverg**8)intendedforhim tobecomethe have found that it precludes a ''transaction of
owner (*l090j of the diamond.Thus,even if purchase'' in the w holesale diam ond m arket. See
Biltm ore was a good faith purchaserforvalue,any Zaret skv,820 F.3d at525 (finding thatbecausethe
title M eyrowitz mighthave had in the diam ond was m em o stated that the possessor of the diam ond
void,notvoidable,and good title could notpass to ' 'acquiregd) no rightor authority to sell,pledge,
Biltmoreunderj2-403411.SeeZaretslq.820F.3d hypothecate orotherwise dispose''ofthe diam ond,
at525. no transaction of purchase occurred and he ''could
not pass good title to subsequent bona fide
The Fifth Circuit m ade this clear in American purchasers for val ue under section 2-403(11''), .
Standard Credit,lnc.v.NationalCement Co.,643 Kim berly tfrEuropean D iamonds,lnc.v.Burbank.
F.2d248(5th Cir.1981).Thecourtexplained thata 684 F.2d 363.366 (6th Cir. 1982) (m emo stating
''transaction of purchase'' occurs where the
thatthe possessorofthe diamond ''acquiregd)no
deliverer of the goods intended, how ever right or authority to sell, pledge, hypothecate or
m isguidedly, that the subsequent seller would otherwise dispose''ofthe diam ond show s that she
bccom e thc owner of the goods.643 F.2d at 268. ''had no title,nordid she have authority to passtitle
Thus, ''the con artist who fraudulently induces a
m anufacturer to delivergoodsto him by m eansofa
togthesubsequent(**10)buyerl'').
forged check hasvoidable title because he obtained Because M eyrowitz did not obtain the diam ond
delivery through a transaction ofpurchaseg.l''1d. through a ''transaction of purchase,'' he had only
Under j 2-403(1),''the defects in the con artist's void title to the stone and could notpass good title
voidable title would be cured by a sale to a good to Biltm ore even itw as a good faith purchaser for
faith purchaser for value, and the good faith value.Thus,Biltmore's'
'attemptto shoehorn gitsq
purchaserwouldobtaincleartitlel.j'' case within the confines ofsection 2-403(11 fails.''
Zaretslqv,820 F.3d at526.
W here thecon artist,however,''m erely convertsthe
goods to his own use after having obtained
possession of them in som e m anner other than II.Biltm ore Did NotO btain G ood Title to the
through a transaction ofpurchase,he doesnoteven Diam ond UnderU.C.C.1 2-403(2)
have voidable title;instea4 he has void title,and
cannot pass good title even to a good faith Section 2-403(2) of the U.C.C. is known as the
purchaserforvalue.''1d.(emphasisadded).Thisis ''entnzstmentrule.''Thesectionprovidesthat''gajny
becauseag**9j ''purchaserofgoodsacquires(only entrusting of possession of goods to a m erchant
theqtitlewhichhistransferorhad orhad powerto w ho deals in goodsofthatkind gives him powerto
transferg.l''U.C.C.j2-403(11. transfer allrights of the entruster to a buyer in the
ordinary course of business.''IJ.C.C.j-2-403(2).
ldere,there is no genuine dispute that M eyrowitz The entrustm ent rule ''is designed to enhance the
obtained possession of the diam ond via ''som e reliability ofcommercialsalesby merchants(who
m anner other than through a transaction of dealwi th thekind ofgoodssold on a regularbasis)
Case 9:18-cr-80216-DMM Document 33 Entered on FLSD Docket 02/19/2019 Page 17 of 24
Page 5 of 12
247F.Supp.3d 1084,*1090)2017U.S.Dist.LEXIS 44522,**l0
while shifting the risk of loss g*l09lj through buy thediam ond in the ordinary course ofbusiness.
fraudulenttransfer to the owner ofthe goods,who Biltm ore does not dispute that M ellen never
can select the m erchant to whom he entnlsts his entrusted the diam ond to G utekunst,or that he is
Property.'' Porter v. Wertz, 53 N .Y .2d 696. 421 not a diamond merchant (Biltmore was told that
N.E.2d 500.500-01,439 N.Y.S.Zd 105 (N.Y.Ct. Gutekunst was in the vitam in supplem entbusiness
App.1981).In order for the buyer to have good buthe in factsellsallergy drops).(Docs.129,142
title under j 2-403(21, three conditions must be !! 11-13.
) Rather, Biltmore contends that these
met:(1)thegoodsmustbe entrustedto amerchant, factsare irrelevantbecause M eyrowitz wasthe one
(2)the merchantmustdealin goodsofthatkind, who sold the diam ond to Biltm ore through a
and (3)thebuyermustpurchasethegoodsfrom the purported agency relationship with G utekunst.
m erchantin theordinary course ofbusiness.U.C.C. Biltm ore asserts that M eyrow itz's alleged transfer
j24 0342). of the diam ond to Biltm ore through his agent
Gutekunstisprotected by the entrustm entrule.The
For example,ifg**11) the OW IICr of a new car Courtdisagrees.
takes it back to the dealership for service and the
dealer puts it on the car 1ot and sells it to an The plain language of the rule provides that
unsuspecting buyer, the entrustm ent nlle would entrusting goods''to a m erchantw ho deals in goods
give good title to the buyer.The originalowner,of of that kind gives him the pow er to transfer''the
course, would have various claim s for dam ages goods to a buyer. U. C.C. k 2-403(2) (emphasis
against the dealership, but the owner would bear added).The entnstmentrul e''ismeanttosafeguard
the risk of lossby entrusting possession ofthe car unsuspecting buyers who purchase goods from
to the dealership.The innocentbuyer,by contrast, m erchants in good faith.'' Great Am. lns. Co. v.
would not suffer the loss given his reasonable Nextdav Network H ardware Corp.,73 F.Supp.3d
expectation thatthe dealership had clear title to the 636,640 (D.M d.2014)(emphasisadded).Thesal e
car and the right to sell it because the dealership of goods from t
he m erchanthi m sel fis an essential
regularly ''dealsin goodsofthatkindl.q''U.C.C.j underpinning of the entnlstment nlle. This is
2-403421. because the rule's purpose is to ''facilitate the free
flow of goods based on a buyer's reasonable
The resultwould be different,how ever,ifthebuyer expectationthatamerchant(**13q in possessionof
bought the car from the salesm an at a vacant goods it ordinarily sells has title to them .''Lakes
parking 1ot not know ing he was em ployed by the Gas Co.v.Clark OiITradin. t Co.,875 F.Supp.2d
dealership. lt is ''well settled that ô 2-40342) 1289,1305 (D.Kan.20124.Thispurposewould be
protects 'only persons who buy in the ordinary defeated if,as Biltm ore contends,the entrustm ent
course outof inventor/''from a merchant who rule were to protect the purchase of a rare $2
deals in goods ofthatkind.Evergreen M ar.Corp. m illion diam ond from an apparent vitam in
p.Six ConsignmentsofFrozenScallops,4F.3d90, salesm an.
97n.8(1stCir.1993)(quotingj2-403(2)cmt.3). The narrow detinition of a ''merchantthatdeals in
goods of that kind'' supports (*10921 this
A .TheD iam ond W as NotEntrusted to conclusion. Unlike the general definition of
G utekunstand H e ls Nota M erchant ''merchant'' in j 2-1Q4, which includes the
m erchant's own skill or knowledge that might not
M ellen argues that Biltm ore's claim to good title be apparentto a buyer,the concern of j 2-403(2)is
under the entrustm ent nlle fails because M ellen with a nan-ower class of m erchants based on
neverentrusted the diam ond to Gutekunst,he isnot appearances.''An individualbuying a productfrom
adiamond merchant,and Biltmoredid(**12q not an apparent dealer in such goods expects to get
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good title.'' 1d. (citation omitted). Thus, one from M eyrow itz,to whom the stone w as entrusted,
''expectsto getgood title when buying a shiny new nor did Biltm ore buy the diamond from som eone it
carfrom aGeneralMotorsdealer,gbutjonebuying knew to be an agent of M eyrow itz. G oldstein
goods from a m ere warehousem an trying to recover testified thathe believed M eyrowitz w asbrokering
storage costs knows thatthe seller is dealing w ith the sale ofthe diam ond forGutekunst,notthe other
som ebody else's goods.''16i The entrtlstm ent nlle way around. (Doc. 24-2 !( 6. ) M eyrowitz told
would notapply even if,unbeknownstto the buyer, Goldstein that Gutekunst wanted to sell the
the car in factbelonged to the dealership and w as diam ond to get m oney to expand his vitam in
sold by thewarehousem an atitsrequest. business.(f#.)Goldstein madedearthattheinitial
paw n transaction w as with Gutekunst, not
ln short,j2-403(2)''enablesa merchanttotransfer
M eyrowitz (id.! 9),and Goldstein wired the $l
rights to an entrusted good only ifthe person is a m illion loan directly to Gutekunst's bank account
'merchant'who'dealsingoods(**14) ofthatkind,' (Doc.127-1 at236-37).Goldstein furthertestified
in thiscase diamondsorotherhigh-endjewelry.'' thathe later purchased the diam ond outrightfrom
Zaretsky 820 F.3d at 520.Biltm ore'
s purchase of
Gutekunstfor$1.3 million (Doc.24-2! 10),and
the diamond from Gutekunstis notprotected by j again the money was sentdirectly his way (Doc.
.
Biltm ore asserted at oral argulnent that it would M isc.2d 168.28l N.Y.S.Zd 400.404 (N.Y.Civ.
have been easy for Biltm ore to believe it was Ct.19674.
buying the diam ond from M eyrowitz because he
Biltm ore contendsthatitdoes notm atterthatitwas
was involved in the transaction,had dealings with
m isled into believing Gutekunst owned the
the Gemological lnstittlte ofAmerica (GlA),and diamond because in reality Gutekunst was
the pawn ticketstates thatGutekunstwaseitherthe
M cyrowitz's agent and Biltm ore therefore
ow ner of the diam ond or authorized to act on
purchased the diam ond from M eyrow itz.A lthough
the(**l5) owner'sbehalf (Doc.127-1at235.)But itm ay be true that the entrustm ent rule protects a
the undisputed evidence show s that Biltm ore did
buyerw ho reasonably knowshe is dealing with the
not actually believe it w as buying the diam ond
lawful agent or em ployee of a m erchant of goods
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But even if Biltm ore had purchased the diam ond loan orrisk forfeiting the diam ond to B iltm ore after
believing Gutekunstg**l9) was M eyrowitz's the loan's 90-day m aturity date unless the
agent,the entrustm entnlle stillwould notapply.A redemption period was extended,as occurred here.
buyer in the ordinary course ofbusiness ''does not (1d.4 Gutekunst made multiple $40,000 interest
include a person thatacquiresgoods ...assecurity paymentsto ' '
keeptheloan/pawnopen.''(Doc.127-
for or in total or partial satisfaction of a m oney 1 at246.)M oreover,Goldstein - an experienced
debt.''1d.Biltm ore contends thatitdid notacquire diamond trader and pawnbroker has him self
the diamond in thismanner(Doc.l41 at 13),but test
ifi
ed that the paw n transaction was not
therecord show sotherwise. converted to a purchase until he forgave the $1
million loan onNovember18,2015.(Doc.24-2!1
Biltluore acquired the diam ond as security for the l1.
)Similarly,Biltmoreaffinnatively allegesin its
$1million loan itextended to Gutekunstaspal4of (*1095) third-party complaint that Gutekunst
the pawn transaction on M arch 2,2015.The pawn conspired to ' 'initially(**2lj pawn thediamond''
ticket's security interest provision m akes this and then later to ''convertthe pawn to an outright
abundantly clear(Doc.127-lat235): salestransaction.''(Doc.6lat18,!70.)
SECURITY INTEREST: To secure my Despite Biltluore's contention thatitpurchased the
paym entofthis Loan and Security Agreem ent, diam ond on M arch 2, 2015, the undisputed
I (Joe Gutekunst) hereby grant Lender evidence show s that the diam ond w as pledged as
(Biltmorej a security interestin the pledged security forthe $1million loan and Biltmore later
goodsdescribed herein ....1prom ise to pay to forgave the loan when it bought the diam ond
the Lender,on orbefore the M aturity D ate,the outright. These facts preclude a finding that
Am ountFinanced,plus allaccrued interestand Biltm oreboughtthe diam ond in the ordinary course
fees set forth in this Loan and Security
ofbusinessunderj2-403(21.
Agreem ent.
ln sum m ary, none of the conditions of the
W hen Biltm ore later purchased the diam ond entrustm entrule can be m etgiven thatthe diam ond
outright for $1.3 million, it paid an additional wasnotentrusted to Gutekunst,he isnota diam ond
$250,000andforgavethe$1million loan($50,000 m erchant,and the diam ond w as notbought in the
waswithheldasinterestontheloan).(Doc.24-2! ordinary courseofbusiness.U.C.C.i2-403(21.
1l.) Because a buyer in the ordinary course of
business doesg**20) not include someone who
acquires goods ''as security for or partial 111.Biltm oreDid NotO btain G ood Title to the
satisfaction of a m oney debt,'' Biltm ore does Diamond Under U.C.C.j9-319
qualify forprotectionunderj2-403(21.
Biltm ore argues that M ellen's transfer of the
Biltlnore claim s that it actually purchased the diam ond to M eyrowitz on m em o constitutes a
diam ond when G utekunst pawned it on M arch 2, consignment under U.C.C. j 9-102(1 420), and
2015,because the U .C.C.deem s a ''pledge''to be a M eyrowitz therefore transfen-ed good title to
purchase and pawn transactions are considered Biltmore as a consignee underIJ-.C.C.# 9-319(a).
purchases under Arizona law. (Doc. 14l at 13 Thatsection provides,with certain exceptions,that
(citing U.C.C.j l-20l(b)(29)-(30);A.R.S.j 44- a purchaser of goods ''from a consignee . is
1621(91.)Butthepawnticketundisputedlyincludes deem ed to have rights and title to the goods
a provision creating a security interest in the identicalto those the consignorhad orhad pow erto
diamond.(Doc.127-1at235.)Although Gutekunst transfer.''The purpose of kk %102(a)(20) and @--
had no obligation to fully redeem the pledged 3194@)is''toprotectgeneralcreditorsg**221 ofthe
diam ond, he prom ised to m ake paym ents on the
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consignee from claim s of consignors that have (*1096j Asexplained above,andpursuantto the
undisclosed consignm ent arrangem ents w ith the express terms ofthe memo (Doc.1 at9),M ellen
consignee thatcreate secretlienson the inventory.'' delivered the diam ond to M eyrow itz only for
Overton v.ArtFin.PartnersLLC. 166 F.Supp.3d ''exam ination and inspection'' by others, not
388.402 (S.D.N ,Y.20161. purchase.The diam ond atalltimes was to ''rem ain
thepropertyof(Mellenj''andhadtobereturned''in
f'
ull in its original fonu.''The m em o m akes clear
A .TheTransaction Between M ellen and that M eyrow itz acquired ''no right or authority to
M eyrowitz W asN ota C onsignm ent
sell...orotherwise dispose ofthediamond.''(/#.
The parties agree that the term s ''on m emo''and (emphasis addedl.
) Given these provisions within
the fourconzersofthe m em o which governs the
''consignm ent'' often are used interchangeably in transaction between M ellen and M eyrow itz - it
the diamond trade, and M ellen itself has referred
cannot reasonably be said that the diam ond was
generally to the transaction with M eyrow itz as a given to M eyrowitz ''for the purpose of sale.''See
''consignment.''Butthis use of ''the tel'm alone is Glenshaw Glass Co.n 67 F.3d at 476. , ln re
not 'm agical.'''ln re Citation Corp.,349 B.R.290.
Greenline,390 B.R.at579.
296 (Bankr. N.D. Ala. 20061. M ellen notes,
correctly,thatitsuse ofthe tenu isno substitute for lt is worth noting that the m em o contains an
the provisions of the m em o govem ing the integration clause,which provides thatthe term s of
transaction orthe legaldetinition of''consignm ent'' the m em o ''represent the entire contract with
in j9-102(a)(20),which requiresthatthe goodsbe respectthe gdiamond)and (**24) which cannotbe
delivered to the merchant ''for the purpose of varied by oral statem ents . . . or any contrary
salel-j'' custom of the trade.''(Doc.l at9.) Thus,even if
the transaction hasbeen called a ''consignm ent''and
Biltm ore contendsthateven though M eyrow itz had
the term isused interchangeably with ''on m em o''in
no authority to sellthe diam ond,itnonethelesswas the diam ond trade, this does not convel't the
given to him ''forthe pulpose of sale''because the
transaction to one for''thepurposeofsale''underj .
end goalofthe transaction was''the ultim ate sale of
9-102(a)(20).
thediamond.''(Doc.139at7.)Butitiswellsettled
thatthere isno consignmentunderj 9-102(a)(20) In summaly, the transaction wasnota consignm ent
where, as in this case, a merchant ''is merely under j 9-102(a)(20), and Biltm ore therefore does
entrusted with temporary possession of the not have good title to the diamond under k 9-
gowner'sjgoodsand hasno authority to sellthem.'' 319(aj,given thatM eyrowitz had no authority to
Glenshaw Glass Co. v. Ontario Grape Growers' sell the diam ond, title always rem ained w ith
M ldz. Bd.s 67 F.3d 470, 476 (3d Cir. 1995) M ellen, and M ellen m aintained the right to recall
(applyingthepredecessorg**23jtoj9-102(a)(20), the diamond atany time.Seeln re Citation,349
formerj2-326(34). ,seeEvergreen,4F.3dat97n.8 B.R. at 296-97 (finding no consignment given
(''ëW 1e join those courts which have held that similartermsin theagreementdespitethefactthat
tem porary entrustm ents of possession by a bailee, it contained ''som e fonu of the tenu consign 68
withoutmore,arenot' saleson consignm ent,'within times''l; see also ztwec/é'/c'
p. 820 F.3d at 516
the meaning of U.C.C. k 2-326.'' ) (citations (refeningto a memo asa''consignmentagreement''
omitted). Similarly, where the intention of the but finding that the subsequent seller had no
owner''wasfortheidenticalthing to bereturned in authority to sellortransfertitleto thediamondl4 .
R eplevin,and Conversion
B.Biltm oreD id NotBuy the Diam ond from a
Consignee In count one of its com plaint, M ellen seeks a
declaratoly judgment under 28 U.S.C. j 2201
The plain language of k 9-319(a) limits its declaring thatitisthe law fulownerofthe diam ond.
application to purchasers of goods from a (Doc.1 at6,!! 18-22.
)Section 220l(a)provides
''consignee,''which means ''a merchantto (whomj thatin a case ofactualcontroversy within g**261
goodsaredelivered in aconsignment.''U.C.C.j9- itsjurisdiction,afederalcourt,uponthefil ingofan
102(a)(19).Here,even if the transaction between appropriate pleading, 'may declare the rights and
M ellen and M eyrow itz constituted a otherlegalrelations ofany interested party seeking
consignment,(**25) Biltmore stillwould nothave such adeclarationl.l''ln itsreplevin claim asserted
obtainedgood titletothediamond underj 9-3l9(a) in counttw o,M ellen seeks an order for the return
because itboughtthe diam ond from Gutekunst- ofthe diamond.(1d.!!(23-27.)Mellen assel'ts a
not M eyrowitz, the ''consignee.'' Because the conversion claim in count three, seeking dam ages
evidence,even when construed in Biltm ore's favor, should Biltmore failto retul'n the diamond.(1d.!!
shows that diam ond was not delivered to 28-32.)
M eyrowitz on consignment under j 9-102(a)(20)
and Biltm ore did not otherwise buy the diam ond ln their summary judgment briefs, the parties
address issues concerning lawfulownership of the
from a consignee,Biltmore did notobtain good title
underj9-3194a).5 diamond and Biltm ore's affinuative defenses and
claim to good title under the Uniform Comm ercial
Code.Neitherside,how ever,addressed the specific
1V .Biltm oreD id NotObtain Good Title to the claim s asserted by M ellen in its complaint:
Diamond UnderU.C.C.:9-317 declaratory judgment, replevin, and conversion.
The Courttherefore directed the parties to address
Relying on its assertion that the transaction theseclaimsatoralargument.(Doc.l50.)
between M ellen and M eyrowitz was a
consignm ent,Biltm ore contends that it purchased The parties agreed that if the ow nership issue is
the diam ond free and clear ofany security interest resolved on summary judgment,the Courtmay
M ellen m ighthave had in the diamond underk 9- grant relief on the declaratory judgment claim
317, which (*10971 governs the priority of asseted in countone ofthe complaint(Doc.1!!
com peting security interests in goods.As explained 18-22) by declaring one of the parties to be the
above, however, the transaction w as not a lawful owner of the diamond.See 28 U.S. C. j
consignment.M oreover,M ellen is the rightfultitle 2201. Biltm ore m ade clear at oral argum ent that
ownerofthe dialnond,notone with a m ere security resol ution of the declaratory(**27) judgment
interestin the stone. claim would be dispositive as to w ho w ill obtain
possession ofthe diam ond going forw ard and there
therefore is no need to address the replevin claim
V.M ellen'sClaim sfor Declaratory Judgm ent, once law ful ownership is decided. M ellen
confirmed that it has elected the retul' n of the
diam ond as a remedy and doesnotseek a trialand
123at6.)TheCourtdidnoteinthepreliminaryinjunctionorderthat
M ellen delivercd thc diamond to Meyrowitz 'to display it to an award of dam ages on the replevin and
potcntialbuycrs'(Doc.54at8n.7),butthisisconsistentwiththe conversion clai
m s.See A.R.S.kk 12-1307,- 1310.
expresstermsofthememo and,asexplainedabovesdoesnotrender Based on these agreem ents and concessi
ons, and
thetransactionaconsignmentunder1..
%.l-
Q-
7..
(g.
1(70. forreasonsstated above,the Courtgrants summ al'
y
5Giventhisconcltlsion,thcCoultneednotreachMellen'sother judgment on the declaratoly judgment claim in
argtlmcntsrclating to.U.
-9-l02(a)(20)and9-319(a).
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favor of M ellen,declares M ellen to be the law ful rem ained the property of M ellen,Biltm ore cannot
ownerofthe dialnond,orders thatM ellen is legally create a triable issue as to whether the statem ent
entitled to possession and return of the diam ond that the diam ond was stolen was either false or
from Biltm ore, and otherwise denies sum mary m ade with m alice orforan improperpurpose.
judgmenton the replevin and conversion claims
asserted by M ellen. The(**29j Court grants summary judglnent in
favorofM ellen on Biltm ore'scounterclaim s.
D ouglasL.Rayes