Opinion
No. 01 Civ. 9649 (JFK) (FM).
January 6, 2005
HUGHES HUBBARD REED LLP, New York, New York, Of Counsel: Daniel H. Weiner, Nicolas Swerdloff, for Plaintiff.
CUBITT CUBITT, Bad Axe, Michigan, Of Counsel: H. Dale Cubitt, for Principal Defendants.
John W. Tulac (in propria persona), Claremont, California, for Nominal Defendant.
OPINION
This dispute involves the diversion of $16 million from Banco Union S.A.E.C.A. ("Banco Union") and Banco Oriental S.A.I.F.E.C.A. ("Banco Oriental"), two Paraguayan banks in liquidation. During March and April of 2000, the funds were transferred to trust accounts maintained by Nominal Defendant John W. Tulac, Esq. ("Tulac") at Citibank in New York. Thereafter, $14 million of the $16 million was transferred to Citibank accounts maintained by Principal Defendant Paraguay Humanitarian Foundation ("PHF"), and over $1 million of the $16 million to other accounts maintained or controlled by Principal Defendants Avijos, Inc. ("Avijos"), Jose M. Avila ("Avila"), CQZ Holding Corp. ("CQZ Holding") and Nominal Defendant Tulac.
On November 1, 2001, Plaintiff Banco Central de Paraguay ("Banco Central"), claiming to be the assignee of the two liquidated banks, commenced this action to recover the $16 million. Banco Central alleges conversion and constructive trust claims against all defendants, and a conspiracy claim against the principal defendants. On September 13, 2002, the principal defendants filed their answer, affirmative defenses, counterclaim and a now-discontinued third-party complaint against Citibank. Tulac simultaneously filed his answer and interpleader counterclaim. Upon leave of Magistrate Judge Maas, Banco Central filed an amended complaint adding principal defendants Ronald L. Wolfson ("Wolfson") and Jorge Ralph Gallo Quintero ("Quintero") on July 10, 2003. Principal Defendants have filed an answer to the amended complaint and amended affirmative defenses.
Four motions are now before the Court. Banco Central moves for summary judgment on Count One of its amended complaint, which alleges conversion of the $16 million against all defendants. The principal defendants move for summary judgment dismissing Banco Central's claims and awarding costs and attorney's fees. Tulac moves for judgment on the pleadings, or, alternatively, summary judgment, for discharge under the interpleader and dismissal of Banco Central's claims against him.
Background
Banco Central is the highest banking authority in Paraguay and has been characterized by one of its directors as "the Paraguyan equivalent of the Federal Reserve Bank." (Weiner Affid., Exh. Q, ¶ 3). Under Paraguayan law, one of Banco Central's duties is to supervise the liquidation of failed Paraguayan banks through the Superintendent of Banks of Paraguay ("Superintendent"). (Id.). The Superintendent appoints the liquidators and supervises the liquidation while reporting back to Banco Central. (Id.). There is some dispute among the parties concerning Banco Central's role in this process. Banco Central claims that it supervises the liquidation through the Superintendent. (Pl. Rule 56.1 Stmt. in Support of Motion ¶¶ 1-2). Nominal defendant Tulac does not dispute the substance of this statement. (Tulac Resp. to Pl. Rule 56.1 Stmt. ¶ 1). Principal defendants, however, claim that Banco Central is not the Federal Reserve equivalent and that the superintendent has the "full authority" over the liquidated banks. (Def. Ans. To Pl. Rule 56.1 Stmt. ¶¶ 1-2).
In 1998, Banco Central placed Banco Union and Banco Oriental in liquidation. In March 2000, the liquidators of the two banks, presumably appointed by the Superintendent, appointed Juan Fernando Rodriguez Leith ("Rodriguez Leith") power of attorney of Banco Union and Ramon Alberto Guillen Ortiz ("Guillen Ortiz") power of attorney of Banco Oriental. (Cubitt Affd., Exh. B C). The duration of these appointments was until the termination of a so-called "Reserved Funds Investment Program," or until specified dates in April 2001, whichever occurred first. (Weiner Affd., Exh. Z). At some point, presumably before March 2000, Rodriguez Leith signed a pre-agreement to form a joint venture between the "CQZ Project Manager" and the "D.F.M. Foundation" for work on a "project management plan in Paraguay" and other South and Central American countries. (Cubitt Affd., Exh. F). This pre-agreement was signed by Rodriguez Leith, defendant Quintero (a director and officer of defendant CQZ Holding Corp.), defendant Avila (a director and officer of defendant Avijos), and Julio Gonzalez Ugarte ("Gonzalez Ugarte"). Gonzalez Ugarte was a member of the Banco Central board of directors.
On March 13, 2000, Rodriguez Leith, acting on behalf of both banks, signed a letter of intent directed to Quintero referencing the placement of the $16 million in a Paraguayan humanitarian project. (Weiner Affd., Exh. G). The next day, Rodriguez Leith and Quintero apparently entered into a "Joint Venture" referencing the $16 million placement. (Id. at Exh. H). This Joint Venture provides that "in the event that the investment plan is not carried out, instruments deposited in the form of cash and/or demand draft shall be reimbursed without suffering damage or loss of value for any reason whatsoever." (Id. ¶ 5).
According to the principal defendants, Guillen Ortiz transferred authority to act on behalf of Banco Union to Rodriguez Leith. Defendants submit a document that appears to memorialize the transfer, but the document is in Spanish with no translation. (Cubitt Affd., Exh. C).
In the copy of the Joint Venture submitted to the Court, Quintero's signature does not appear above his signature line. (Weiner Affd., Exh. H).
Soon after the execution of the letter of intent and Joint Venture, the transfers of funds at issue in this dispute occurred. On March 17, 2000, $2 million was transferred from Banco Union to a Citibank trust account in the name of "CQZ Holding Project Trust." ("CQZ Trust Account"). On April 11, 2000, $6.1 million was transferred from Banco Union to another Citibank trust account maintained by nominal defendant Tulac ("Trust Account"). The same day, $7.9 million was transferred from Banco Oriental to the Trust Account. Later in the year, $14 million was transferred from the Trust Account to accounts maintained by PHF at Citibank. Over $1 million was transferred from the CQZ Trust Account to other accounts maintained or controlled by Avijos, Avila (the president of Avijos and secretary of PHF), CQZ Holding and Nominal Defendant Tulac. (Pl. Rule 56.1 Stmt. in Support of Motion ¶ 3).
On June 28, 2000, Rodriguez Leith sent a "Donation Letter" addressed to "CQZ Humanitarian Foundation" (the former name of defendant PHF), which the letter defined as "a United States charitable organization formed to fund humanitarian projects in Paraguay and possibly other South American and Central American nations." (Cubitt Affd., Exh. G). Rodriguez Leith extended a "contribution" of $4 million and a "no-interest" loan of $10 million to the CQZ Humanitarian Foundation for feasibility studies, a proposed hospital project and infrastructure development in Paraguay. (Id.). On June 29, 2000, Rodriguez Leith and the CQZ Humanitarian Foundation (PHF) executed the $10 million loan agreement. (Id.). It appears the transfer of $14 million of the $16 million from the Trust Account to the Citibank accounts maintained by PHF occurred on the same day as the execution of the loan agreement. (Id., Amended Cmplt. ¶ 22). On October 19, 2000, Rodriguez Leith wrote PHF and informed the directors that the parties responsible for the $10 million loan wished to cancel the note and contribute the money to PHF. (Cubitt Affd., Exh. I)
Also occurring in 2000 was the issuance of two checks by defendant Avijos (Avila's company). (Weiner Affd., Exh. J-K). The first, for $2 million, was dated March 13, 2000 and made payable to Banco Union. This check was dated on the same day that Quintero and Rodriguez Leith signed the letter of intent and four days before the $2 million transfer from Banco Union. The second check, for $14 million, was dated October 19, 2000 and made payable to Rodriguez Leith. Avijos's account did not, and still does not, have sufficient funds to cover these checks. (Weiner Affd., Exh. L). Defendants claim that the giving of a check (presumably even those that bounce as high as a Baltimore chop) in South America and elsewhere signifies the giving of a guaranty, even though "this is not the way we do things in the U.S." (Def. Ans. to Pl. 56.1 Stmt. ¶ 4).
In January 2001, the Paraguayan press reported that $16 million was missing from Banco Union and Banco Oriental. Soon thereafter, the liquidators of the banks were replaced. Plaintiffs allege that Avila, working in concert with Ugarte, then concocted phony guarantees issued by ABN-AMRO Bank ("ABN") in favor of Banco Union and Banco Oriental. Defendants emphasize that the phony ABN guarantees actually were provided by Banco Central. (Def. Reply Mem. in Support at 3). In their depositions, both Avila and Tulac testified that Ugarte appeared to be the brains behind the guarantees. (Weiner Affd., Exh. A at 131-46; Exh. D at 353-55). Avijos (Avila's company) sent contracts to the new liquidators pursuant to which Avijos would purchase the guarantees from Banco Union and Banco Oriental, thereby providing an avenue for returning the $16 million. It appears that Avila, on behalf of Avijos, entered into the contracts with the liquidators on March 16, 2001. (Cubitt Affd., Exh. J, K). Principal defendants submitted these contracts as part of their opposition papers to Banco Central's summary judgment motions, but failed to submit English translations of the documents.
On April 13, 2001, Tulac sent a letter to the new liquidators in which he informed them that "[p]ursuant to a written agreement between each bank and Avijos, Inc., the banks were guaranteed repayment of a liquidated amount, including principal and all accrued interest." (Weiner Affd., Exh. N). Tulac stated that he was "instructed to settle these two contracts" and that once the banks were paid in full, they would "no longer be a part of the project development." (Id.). On April 27, 2001, Tulac wrote to Citibank in Paraguay to ask for information necessary to send payments to Banco Union and Banco Oriental "in settlement of their contracts with Avijos." (Id., Exh. P.). On May 1, 2001, the Banco Union liquidator acknowledged receipt of an April 30, 2001 letter from Tulac that discussed "the probable sending of the funds that were transferred to [Tulac's] account at Citibank." (Id., Exh. O). The Banco Union liquidator requested an exact date for the transfer. (Id.). The transfer was never made.
This April 30, 2001 letter does not appear in the record.
On September 10, 2001, in separate documents, Banco Union and Banco Oriental assigned all their rights and claims in connection with the diverted funds to Banco Central. (Weiner Affd., Exh. R). Defendants claim that these assignments are invalid because they were not notarized in accordance with Paraguayan law. (Def. Mem. in Support at 6-7). On November 1, 2001, Banco Central commenced this action. On November 15, 2001, the Court entered an order of attachment of the nearly $14.1 million in the Citibank trust accounts. These funds remain frozen pursuant to the Court's order.
In November 2001, new liquidators were appointed. In January 2004, these liquidators, on behalf of Banco Union and Banco Oriental, executed ratifications of the assignments to Banco Central and submitted declarations to the Court fully supporting the prosecution of this action by Banco Central. (Swerdloff Affd., Exh. A-B).
Discussion
I. Legal Standards
Banco Central and the principal defendants have submitted motions for summary judgment. Tulac has submitted alternative motions for judgment on the pleadings or summary judgment. The latter motion includes a declaration by Tulac and two exhibits not attached to, or incorporated in, the pleadings. In his reply papers, Tulac refers to his declaration and to the exhibits in support of contentions appearing in the Rule 12(c) motion (Tulac's Reply Brief, dated Feb. 19, 2004, at 3-4). Because Tulac has presented, and relied upon, material outside the pleadings, the Court will treat his alternative motions as one motion for summary judgment under Rule 56. See Sira v. Morton, 380 F.3d 57, 66 (2d Cir. 2004).
The Court may grant summary judgment only if the moving party is entitled to judgment as a matter of law because there is no genuine dispute as to any material fact. See Silver v. City Univ. of New York, 947 F.2d 1021, 1022 (2d Cir. 1991); Montana v. First Fed. Sav. Loan Ass'n, 869 F.2d 100, 103 (2d Cir. 1989); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986). The role of the Court on such a motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight, 804 F.2d at 11;see also First Fed. Sav. Loan Ass'n, 869 F.2d at 103 (stating that to resolve a summary judgment motion properly, a court must conclude that there are no genuine issues of material fact, and that all inferences must be drawn in favor of the non-moving party).
The movant bears the initial burden of informing the court of the basis for its motion and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions to file, together with affidavits, if any," that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the movant meets this initial burden, the party opposing the motion must then demonstrate that there exists a genuine dispute as to the material facts. See id.; Silver, 947 F.2d at 1022.
The opposing party may not solely rely on its pleadings, on conclusory factual allegations, or on conjecture as to the facts that discovery might disclose. See Gray v. Town of Darien, 927 F.2d 69, 74 (2d Cir. 1991). Rather, the opposing party must present specific evidence supporting its contention that there is a genuine material issue of fact. See Celotex Corp., 477 U.S. at 324; Twin Labs. Inc. v. Weider Health Fitness, 900 F.2d 566, 568 (2d Cir. 1990). To show such a "genuine dispute," the opposing party must come forward with enough evidence to allow a reasonable jury to return a verdict in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Cinema North Corp. v. Plaza at Latham Assocs., 867 F.2d 135, 138 (2d Cir. 1989). If "the party opposing summary judgment propounds a reasonable conflicting interpretation of a material disputed fact," then summary judgment must be denied. Schering Corp. v. Home Insur. Co., 712 F.2d 4, 9-10 (2d Cir. 1983).
II. Banco Central's Motion
Banco Central has moved for summary judgment on its conversion claim, which is Count One of the Amended Complaint. In order to state a cause of action for conversion, "a plaintiff must establish legal ownership of a specific identifiable piece of property and the defendant's exercise of dominion over or interference with the property in defiance of the plaintiff's rights." Di Siena v. Di Siena, 266 A.D.2d 673, 674, 698 N.Y.S.2d 93, 95 (3d Dep't 1999). "Wrongful intent is unnecessary. All that the owner need show is that he has been deprived of his property by the defendant's unauthorized exercise of dominion and control over it." Filner v. Shapiro, 633 F.2d 139, 141-42 (2d Cir. 1980). A limitation is that "[a] cause of action for conversion cannot be predicated on a mere breach of contract." Fesseha v. TD Waterhouse Investor Services, Inc., 305 A.D.2d 268, 269, 761 N.Y.S.2d 22, 24 (1st Dep't 2003).
Banco Central alleges that it has the superior right of possession to the $16 million. Banco Central initiated this lawsuit pursuant to assignments of rights from Banco Union and Banco Oriental on September 10, 2001. The new liquidators ratified these assignments in January 2004. Furthermore, Banco Central contends, defendants have admitted that the liquidated banks were entitled to the return of the money. For example, Avila testified at his deposition:
Q: So they never got their money back because the Paraguay Humanitarian Foundation wants to do this project in Paraguay. Is that what you're telling me?
A: No. We are going to return the whole amount of money with or without the project, in Paraguay.
(Weiner Affd., Exh. A at 129). Quintero also testified to the same effect at his deposition:
Q: So am I correct in understanding that the intention was that the money would be returned to the two Paraguayan banks without the loss of any value?
A: Yes.
. . .
Q: When you said you wanted him [Tulac] to make settlement arrangements for making settlement with the two banks, did you mean to return the $16,000,000?
A: To set up so we could give them assistance so they can get the $16,000,000 back plus interest.
(Id., Exh. C at 80, 102). Nominal defendant Tulac added another variation on this theme with respect to the funds transferred to a PHF trust account:
Q: So there would be no disbursements for the 14 million —
A: There would be no disbursements from there. It was ultimately contemplated the 14 million would be disbursed back.
Q: To Paraguay?
A: To Paraguay.
(Id., Exh. D at 167-68).
Banco Central also alleges that the defendants failed to return the money upon demand, even though the money resided in trust accounts under defendants' control. Consequently, Banco Central argues, summary judgment on its conversion claim is warranted.
The principal defendants attempt to stave off summary judgment with several arguments that attempt to generate a dispute of fact. First the defendants attack the assignments, both here and in their own motion for summary judgment, by challenging their validity under Paraguayan law. (Pr. Def. Mem. in Support at 5; Pr. Def. Rep. Mem. at 4; Pr. Def. Mem. in Opp. at 4). Defendants cite a June 2002 e-mailed "Memorando" (in Spanish) from Alfredo Kronawetter, who is purportedly an attorney in Paraguay. (Pr. Def. Mem. in Support at Exh. E). This memorandum is accompanied by an unsigned, undated, and uncertified English translation. First, the Memorando is hearsay that would be inadmissible at trial. Second, even a ninth-grader in the first month of Spanish 101 can see that the translation bears no resemblance to any portion of the Memorando. The translation discusses the notarization of certain documents. The Memorando appears to discuss the jurisdiction of the Paraguayan courts, and who has the ultimate authority to act on behalf of banks in liquidation. The Court therefore disregards this evidence and rejects principal defendants' argument that the assignment were invalid.
Principal Defendants sent a declaration by Mr. Kronawetter to the Court on May 24, 2004 (this time with a proper English translation) that makes the same statement with regard to notarization. This declaration was submitted over four months after the close of briefing and will not be considered.
Principal defendants also argue that "the liquidators of the two banks, the power of attorney for the two banks, the president and director and several other directors of [Banco Central] were all involved from the beginning." (Pr. Def. Mem. in Opp. at 2). While this statement is highly general, it is clear from the submitted papers that Banco Union power of attorney Rodriguez Leith, purportedly acting on behalf of both banks, was highly involved in the transfers. Gonzalez Ugarte, a director on Banco Central's board, also had some involvement, judging from his execution of the Pre-Agreement.
Even if the Court gives the non-movant defendants the benefit of the doubt and assumes arguendo that their initial possession of the $16,000,000 was proper, it is hornbook law that when the dispossessed party makes a demand on his goods, an absolute and unqualified refusal to surrender the goods constitutes conversion. Prosser and Keeton on the Law of Torts 99 (5th ed. 1984); see, e.g., Schwartz v. Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir. 1993) ("Where the original possession is lawful, a conversion does not occur until defendant refuses to return the property after demand or until he sooner disposes of the property."). Banco Central's action for conversion gives notice of an adverse claim to the $16,000,000 and fulfills the demand requirement. See Chemical Bank v. Soc'y Brand Indus., Inc., 624 F. Supp. 979, 983 (S.D.N.Y. 1985). Defendants' general assertions concerning the involvement of Ugarte and the liquidators do not change this analysis.
Principal Defendants next contend that Avijos has assumed responsibility for the funds and owes Banco Central the $16,000,000. Defendants contend that Avijos assumed this responsibility by way of fraudulent checks for $2,000,000 and $14,000,000. Defendants' (unsubstantiated) argument bears repeating: "Although this is not the way we do things in the U.S., it is common in South America and elsewhere in the world to give your check as your guarantee." (Pr. Def. Mem. in Opp. at 2). This argument is far-fetched in the extreme.
In the next sentence of their brief, Principal defendants contend that Rodriguez Leith, on behalf of the banks, "gifted" the $16,000,000 to PHF. (Id. at 2-3). Principal defendants refer to Rodriguez Leith's $4,000,000 contribution and $10,000,000 loan that later became a contribution itself. (Cubitt Affd. at Exh. G, I). This argument is also without merit. A gift requires donative intent. Muserlian v. C.I.R., 932 F.2d 109, 113 (2d Cir. 1991). Defendants conceded repeatedly on deposition that the banks were entitled to the return of the $16,000,000. Furthermore, the Joint Venture between Rodriguez Leith (on behalf of the banks) and Quintero (on behalf of CQZ Holding Trust) makes clear that the money must be "reimbursed" to the banks if the investment plan was not carried out. (Weiner Affd., Exh. H). There was no "gift."
The Court has considered the Principal defendants' remaining arguments and finds them unsubstantiated and therefore without merit. In fact, Principal Defendants' papers contain very few citations to the record. Far more often than not, Principal defendants merely make conclusory "pound the table" statements with no evidentiary support whatsoever. Plaintiffs' motion for summary judgment on Count I of its Amended Complaint is therefore granted with respect to the Principal Defendants.
Nominal defendant Tulac, who held the trust accounts at Citibank that housed the $16,000,000, fares better than his co-defendants because Banco Central's motion papers in support of summary judgment barely discuss his role. Banco Central merely rebuts his arguments against conversion in their reply papers. This is not enough for summary judgment with respect to him. Tulac has produced the Trust Agreements that state that he "has no knowledge of or participation in any investment program arranged by [CQZ Holding Corp.]." His receipt of monies into the trust account was pursuant to this agreement. While there is no doubt that Tulac wrote letters in April 2001 purporting to arrange for a reimbursement of funds that never took place, Banco Central points to no clear evidence in its moving papers that Tulac acted outside the scope of the trust agreements. The motion for summary judgment on Count I of the Amended Complaint is denied with respect to Tulac.
III. Principal Defendants' Motion
The principal defendants have moved for summary judgment on all three counts on Banco Central's Amended Complaint. Obviously, the motion on Count I is denied because the Court has already granted summary judgment to Banco Central as against the principal defendants on this Count. The motions on Counts II and III are also denied.
The principal defendants' motion is fatally flawed by its noncompliance with Local Rule 56.1 of this District's Local Civil Rules. According to Rule 56.1(a), "there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion." The principal defendants submitted no statement at all until the reply papers stage — a clear violation of the Rule. The Court will overlook this failing because of its broad discretion to excuse violations of the local rules. See Wight v. Bankamerica Corp., 219 F.3d 79, 85 (2d Cir. 2000). On the other hand, the submitted statement contains a flaw that the Court cannot overlook.
Rule 56.1(d) provides that "[e]ach statement by the movant or opponent pursuant to Rule 56.1(a) and (b) . . . must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e)." As previously discussed, Principal Defendant's papers are notable for their lack of citations. Principal Defendant's Rule 56.1 statement contains only three cited sentences in fifteen paragraphs — and the citations are to one declaration by defendant Avila. This six-paragraph declaration states that Avila attended a meeting with Ugarte, Rodriguez Leith, and Guillen Ortiz in 2000, that he gave the two checks "in accordance with South American customs" and that Avijos has entered into a contract with Banco Union and Banco Oriental stipulating that jurisdiction over this matter was in Paraguay.
The jurisdiction issue appears in Principal Defendants' papers from time to time, but it is a non-starter. This is a tort action, not a contract action. While it is true that an action in conversion will not lie for a mere breach of contract, the plaintiff may bring a conversion claim when the breach "result[s] in some `wrong' that is separately actionable." Wechsler v. Hunt Health Systs., Ltd., 330 F. Supp. 2d 383, 431-432 (S.D.N.Y. 2004). Banco Central has chosen to sue in tort, and a contract with Banco Union and Banco Oriental that provides for jurisdiction in Paraguay does not govern Banco Central's conversion claims. Principal Defendants indeed submitted these contracts as exhibits to their opposition papers. Unfortunately, the contracts are in Spanish, and Principal Defendants neglected to provide translations.
The point of Local Rules such as Rule 56.1(d) is to compel the movant to "specif[y] the material facts and direct the district judge and the opponent of summary judgment to the parts of the record which the movant believes support his statement." Jackson v. Finnegan, Henderson, Farabow, Garrett Dunner, 101 F.3d 145, 150-51 (D.C. Cir. 1996). The Court's role is not to wander aimlessly through the record in search of evidence that substantiates the allegations in the Rule 56.1 statement. When the movant is responsible for forcing the Court into this role, the Court is completely justified in denying the motion in its entirety. Principal defendants' motion is denied.
IV. Tulac's Motion for Summary Judgment
Tulac's Rule 56.1 statement, which is titled "Statement of Undisputed Facts" — while properly submitted with the initial moving papers — suffers from the same debilitating failing as the principal defendant's statement. With the exception of the fourth paragraph, none of the eight paragraphs in the statement contain citations to the record. The only citations are to letters issued by Citibank in May 2002 that terminated Tulac's accounts and instructed him to conduct his banking business elsewhere. (Tulac Notice of Motion, Exh. 1-2). Banco Central, by contrast, makes a number (cited) assertions of fact in its Rule 56.1 Statement in Opposition. These facts at least permit an inference that Tulac had some role in the diversion. Tulac's motion for summary judgment, which incorporates his motion for judgment on the pleadings, is denied.
V. Conclusion
Banco Central's motion for summary judgment on Count I of its Amended Complaint is granted as to the principal defendants and denied as to nominal defendant Tulac. The remaining motions are denied.
Banco Central is directed to settle a judgment consistent with this decision on seven days' notice to the principal defendants. If the parties cannot agree on a judgment, they shall submit proposed judgments to the Court no later than February 1, 2005.
The parties are directed to appear at a conference on March 8, 2005 at 9:45 a.m. in order to discuss any issues remaining in this action.
SO ORDERED.