United States District Court, S.D. Florida
AIM RECYCLING OF FLORIDA, LLC and LKQ PICK YOUR PART SOUTHEAST, LLC, Plaintiffs,
METALS USA, INC., UNIVERSAL SCRAP MANAGEMENT, LLC, OBED LENDIAN, and SAMUEL ABREU, Defendants.
BLOOM, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Plaintiffs AIM
Recycling of Florida, LLC (“AIM”) and LKQ Pick
Your Part Southeast, LLC's (“LKQ”)
(collectively, “Plaintiffs”) Renewed Motion for
Partial Summary Judgment as to Liability, ECF No. 
(“Plaintiffs' Motion for Summary Judgment”),
and Defendants Metals USA, Inc. (“Metals USA”)
and Obed Lendian's (“Lendian”) (collectively,
“Defendants”) Motion for Summary Judgment, ECF
No.  (“Defendants' Motion for Summary
Judgment”), (collectively, the “Motions”).
The Court has reviewed the Motions, all opposing and
supporting submissions, the record in this case, the
applicable law, and is otherwise fully advised. For the
reasons set forth below, Plaintiffs' Motion for Summary
Judgment is denied, and Defendants' Motion for Summary
Judgment is denied.
February 9, 2018, Plaintiffs initiated the instant
action against Metals USA and Samuel Abreu
(“Abreu”), alleging a multi-year conspiracy to
steal valuable scrap metal from Plaintiffs' facility, ECF
No. , and the case was originally assigned to the
Honorable William J. Zloch, ECF No. . On April 10, 2018,
Plaintiffs amended their Complaint, naming Lendian and
Universal Scrap Management, LLC (“Universal”) as
additional Defendants. ECF No.  (“Amended
Complaint”). Plaintiffs' Amended Complaint asserts
five counts: Count I (Civil RICO - Violations of 18 U.S.C.
§ 1962(c)); Count II (Civil RICO Conspiracy - Violations
of 18 U.S.C. § 1962(d)); Count III (Florida Civil RICO
and Remedies for Criminal Activities); Count IV (Florida
Civil RICO and Remedies for Criminal Activities -
Conspiracy); and Count V (Unjust Enrichment).
that the Department of Justice (“DOJ”) planned to
indict them on criminal charges, on March 1, 2019, Defendants
filed a Motion for Temporary Stay. ECF No. . On April 4,
2019, Judge Zloch granted the Motion for Temporary Stay,
pending the resolution of Defendants' parallel criminal
case. ECF No. . On June 27, 2019, the instant action was
reassigned to the undersigned. ECF No. . Moreover, on
August 26, 2019, the DOJ provided Defendants with a
declination letter, indicating that the criminal
investigation was closed and that the DOJ would not be
prosecuting. ECF No.  at 1-2. On August 28, 2019, after
being advised that the DOJ was closing its criminal
investigation into Defendants, this Court lifted the stay.
ECF No. .
this action was stayed pending Defendants' criminal
prosecution, on February 15, 2019, Plaintiffs filed a Motion
for Partial Summary Judgment as to Liability, ECF No. ,
and corresponding Statement of Material Facts in Support of
Plaintiffs' Motion for Partial Summary Judgment as to
Liability, ECF No. , which was never resolved prior to
the case being stayed.
August 29, 2019, after this Court lifted the stay, Plaintiffs
filed a Renewed Motion for Partial Summary Judgment, ECF No.
, incorporating the Statement of Material Facts from
their original Motion, ECF No. . On September 23, 2019,
Defendants filed a Motion for Summary Judgment, ECF No.
, and accompanying Statement of Material Facts, ECF No.
. On October 28, 2019, Plaintiffs moved to supplement
the summary judgment record with certified English
translations of telephone recordings of allegedly
incriminating conversations between Abreu and Lendian. ECF
No. . This Court granted Plaintiffs' motion
to supplement the summary judgment record and ordered the
parties to revise their summary judgment briefing to address
this supplemental evidence. ECF No. .
November 26, 2019, pursuant to this Court's Order,
Plaintiffs filed their Renewed Motion for Partial Summary
Judgment, ECF No. , along with their corresponding
Supplemented Statement of Material Facts, ECF No. 
(“Plaintiffs' SOF”). Plaintiffs' SOF sets
forth many facts that are premised upon adverse inferences
derived from Lendian's invocation of his Fifth Amendment
rights during his deposition due to the forthcoming criminal
prosecution. Id. at 8-11. On December 10, 2019,
Defendants filed their Response in Opposition to
Plaintiffs' Motion for Summary Judgment, ECF No. 
(“Response to Plaintiffs' Motion for Summary
Judgment”), along with their Amended Counterstatement
of Disputed Material Facts, ECF No. 
(“Defendants' CSOF”). Defendants' CSOF
included as an attachment Lendian's sworn affidavit
asserting additional facts, to which he previously could not
testify, in order to rebut the adverse inferences derived
from his prior Fifth Amendment invocation. ECF No.  at
20-30. On December 17, 2019, Plaintiffs submitted their
Reply, ECF No. .
on November 26, 2019, Defendants filed their Motion for
Summary Judgment, ECF No. , and accompanying Statement
of Material Facts, ECF No.  (“Defendants'
SOF”). On December 10, 2019, Plaintiffs filed their
Response to Defendants' Motion for Summary Judgment, ECF
No.  (“Response to Defendants' Motion for
Summary Judgment”), and their corresponding Counter
Statement of Material Facts, ECF No. 
(“Plaintiffs' CSOF”), to which Defendants
filed a Reply, ECF No. .
on the parties' statements and counterstatements of
material facts, along with the evidence in the record, the
following facts are not genuinely in dispute unless otherwise
operate an industrial scrap metal facility with approximately
forty employees. Dep. of Plaintiffs' Corp. Representative
36:5-7, ECF No.  at 42-216 (“Gerding Dep.”).
Plaintiffs' facility “takes  end-of-life crush
cars and runs them through a massive shredding operation
which separates - which hammers up the cars and separates the
metals from the car and the waste into ferrous material,
nonferrous material, and waste.” Hr'g on Mot. for
Prelim. Inj. Tr. 10:18-21,  ECF No. [264-2] (“Hr'g
Tr.”). Plaintiffs' facility primarily produces
ferrous shred, which they then sell to customers domestically
and internationally. Hr'g Tr. 14:18-20.
USA operates a metal recycling facility that buys, cuts, and
resells different kinds of metals. Dep. of Javier Fleites
21:10-22:24, ECF No. [264-3] (“Fleites Dep.”);
Dep. of Metals USA's Corp. Representative 13:16-17, ECF
No. [264-4] (“Metals Dep.”). Lendian owns Metals
USA and is involved in every aspect of Metals USA's
operation and decision making, including hiring and firing
employees, entering into contracts on behalf of the company,
and determining the market rate for materials that Metals USA
purchases. Fleites Dep. 51:16-25; Metals Dep. 107:19-21; Dep.
of Roberto Rodriguez 98:15-17, ECF No. [264-5]
December 2017, Plaintiffs' operations controller, Fritz
Gerding, noticed a significant discrepancy between the
physical amount of shred inventory stored at the facility and
the amount of inventory listed in company records for
accounting purposes. Hr'g Tr. 17:2-7; Gerding Dep.
39:14-41:24. Based on this discrepancy, Gerding and
Plaintiffs' general manager, Walter Griessier, began an
internal investigation to determine the cause of the
inventory discrepancy. Hr'g Tr. 17:18-18:3; Gerding Dep.
42:9-16. During their investigation, Gerding and Griessier
enlisted the help of another employee at Plaintiffs'
facility, Pedro Torres (“Torres”), who they felt
would provide valuable knowledge about the facility's
systems and operations. Hr'g Tr. 18:17-19:11; Gerding
Dep. 42:17-43:10. Torres operated the truck scale to measure
the incoming and outgoing weights of vehicles passing through
Plaintiffs' facility, which were then used to determine
the amount of scrap metal purchased from particular
customers. Hr'g Tr. 18:17-19:11. Ultimately, Torres
confessed to Gerding and Griessier that he was aware of a
theft scheme at Plaintiffs' facility that he had taken
part in. Hr'g Tr. 19:16-19; Gerding Dep. 43:10-17. During
his confession, Torres implicated numerous other employees
who were involved in the theft scheme, including Samuel
Abreu. Hr'g Tr. 22:1-6, 25:6-8; Gerding Dep. 58:19-60:11.
With Torres's help, Gerding and Griessier were later able
to capture Abreu on video paying Torres an envelope of $3,
000.00 in cash. Hr'g Tr. 56:3-16; Gerding Dep.
worked as a loader operator at Plaintiffs' scrap metals
facility from April 2014 to February 2018. Aff. of Samuel
Abreu, ECF No. [264-1] ¶ 2 (“Abreu Aff.”).
In April 2014, Abreu's co-worker, Jose Rodriguez,
confided in him that multiple employees at Plaintiffs'
facility had been stealing scrap metal. Id. ¶
4. Jose Rodriguez explained that the employees involved would
enter the facility with trucks early in the morning, load
those trucks with Plaintiffs' scrap metal, and then
direct those trucks out of Plaintiffs' facility to
deliver the loads of stolen scrap to a location that Abreu
later learned was Metals USA. Id. ¶¶ 4-5.
After learning about the theft scheme, Jose Rodriguez began
paying Abreu weekly for his silence, and these payments
continued until the end of 2015. Id. ¶¶
6-7. During this time, Jose Rodriguez was the “chief
person working at AIM that was in charge of stealing and
delivering these stolen goods.” Hr'g Tr.
testified that, at the end of 2015, he was approached by a
man named Ruben Encarnacion about taking over for Jose
Rodriguez in the theft operation because Jose Rodriguez had
become too unreliable. Abreu Aff. ¶ 7; Hr'g Tr.
146:15-147:9. Although he was not employed by Plaintiffs,
Encarnacion was a known broker who had previous business
interactions at Plaintiffs' facility where he
“would broker loads of cars to AIM for
shredding.” Hr'g Tr. 90:7-9. In early 2016,
Encarnacion facilitated an initial in-person meeting between
Abreu and Lendian, during which Abreu alleged that Lendian
offered him $100.00 for every ton of scrap metal stolen.
Abreu Aff. ¶¶ 8-9; Hr'g Tr. 148:9-149:5.
Defendants, however, contend that Lendian never instructed
Abreu to steal anything, nor did Lendian offer to pay Abreu
for Plaintiffs' stolen scrap. Defendants point to Metals
USA's Customer History Report, which shows the
fluctuating prices Metals USA paid per ton to Abreu on
transactions from January 2015 through December 2017. Aff. of
Obed Lendian, ECF No.  at 23, ¶ 19 (“Lendian
Aff.”); ECF No. [264-7] (“Customer History
Report”). Thereafter, Abreu took Jose Rodriguez's
place as the main orchestrator of the theft scheme at
Plaintiffs' facility and involved more employees to
expand the operation. Abreu Aff. ¶¶ 10, 12;
Hr'g Tr. 151:2-152:5.
claims that Lendian was the ringleader of the theft ring who
controlled all aspects of the scheme and instructed
Plaintiffs' employees on when to steal, the quantity to
steal, where to deliver the stolen items, and the price of
the stolen goods. Hr'g Tr. 100:23-101:13. Defendants, on
the other hand, state that Lendian had no knowledge that the
materials Abreu delivered were stolen, and that he never
instructed Plaintiffs' employees to steal anything, nor
did he have any control over the individuals participating in
the scheme. Lendian Aff. at 22, ¶¶ 12-15. The
employees who confessed their involvement in the theft ring
implicated Abreu during their confessions, not Lendian.
Hr'g Tr. 24:22-25:8; Gerding Dep. 71:15-72:8.
disagree with Plaintiffs' characterization of Metals
USA's business relationship with Abreu. It is undisputed
that Encarnacion was one of Lendian's business contacts
who, around the end of 2014, approached Lendian about serving
as a broker between Metals USA and a supplier who had scrap
metal to sell. Lendian Aff. at 22, ¶¶ 6-7; Fleites
Dep. 113:2-12. The supplier Encarnacion brokered for was
Abreu. Fleites Dep. 120:10-13; Metals Dep. 27:5-6; Rodriguez
Dep. 45:17-19. Pursuant to this agreement, Encarnacion worked
as Abreu's broker to deliver loads of ferrous scrap and
collect payments on behalf of Abreu's company. Fleites
Dep. 121:19-23; Metals Dep. 27:25-28:6; Rodriguez Dep.
46:6-15. Lendian states that, around June 2015, Abreu
approached him and told him that Encarnacion would no longer
be his broker or have authorization to collect payments on
Abreu's behalf. Lendian Aff. at 22, ¶¶ 10-11.
Thereafter, Abreu stopped using Encarnacion as a broker to
deliver loads of scrap to Metals USA. Fleites Dep. 121:3-5;
Metals Dep. 35:1-3; Rodriguez Dep. 51:3-22.
contend that Abreu was Metals USA's only customer who
delivered material that had been processed through a large
industrial shredder. Fleites Dep. 157:9-12, 161:16-19; Metals
Dep. 68:10-13. Defendants, however, dispute that the material
Abreu was selling to Metals USA was produced by a large
industrial shredder, explaining instead that the material
“could have been produced by a small shredder. . . .
Once metal has been processed through a shredder, it becomes
indistinguishable from other metal that has run through a
shredder. There is no way to determine the identity or size
of the shredder.” Lendian Aff. at 25, ¶ 34.
it is undisputed that Metals USA did not know the name of
Abreu's company, Metals USA employees understood that
Abreu owned the company responsible for making the
deliveries. Fleites Dep. 119:8-17; Metals Dep. 59:12-16;
Rodriguez Dep. 46:12-19 (“Q. How is it that you came to
understand that Ruben was working for Samuel Abreu? A.
Because Samuel was the owner of the business, the owner of
the load. Q. How did you come to know that? Who told you? A.
The people themselves who were working there. Guys from
Samuel who were coming.”). Further, the parties do not
dispute that Metals USA never recorded the driver's
license information of any of Abreu's drivers, Fleites
Dep. 33:7-14, and Defendants maintain that they were not
legally required to record such information, Lendian Aff. at
24, ¶ 30; Fleites Dep. 33:7-35:3. Instead, Defendants
allege that Metals USA was only required to record the
driver's license information for the owner of the
material being sold, which it did in Abreu's case, in
addition to keeping detailed records of each delivery Abreu
made. Lendian Aff. at 24, ¶ 30; Fleites Dep. 33:7-35:3.
primarily paid Abreu in cash for the loads of scrap sold,
although they also occasionally paid Abreu by check. Metals
Dep. 55:17-56:2; see generally Customer History
Report. Most of Metals USA's largest clients were paid in
either cash or check, based on what the owner of the company
requested, and payment would be disbursed to the owner of the
company or any individuals authorized to collect payment on
the owners' behalf. Metals Dep. 53:6-55:7. Either Abreu
or an authorized family member went to Metals USA's
facility multiple times a week to pick up Abreu's
payment. Metals Dep. 55:8-16; Rodriguez Dep. 81:25-82:10.
When collecting payment, Abreu would almost always remain in
his vehicle outside of the Metals USA yard and either Fleites
or Rodriguez would deliver the payment to him. Metals Dep.
52:20-25; Lendian Aff. at 25, ¶ 36; Rodriguez Dep.
84:18-85:2 (“Because he didn't want to get out. At
the beginning he got out once or twice but then he did not
want to get out so he would remain in his car, well-dressed.
And then I would provide him with the money outside. The
thing is that our yard has no parking. I would hand him his
money, then he would leave.”).
undisputed that Abreu made a total of 538 deliveries to
Metals USA between 2015 and 2018, for which he was paid $4,
544, 282.95. Fleites Dep. 131:20-132:5; see
generally Customer History Report. During this period,
Abreu was one of Metals USA's five largest clients.
Metals Dep. 18:12-15. Metals USA ultimately resold the scrap
metal purchased from Abreu to clients domestically and
abroad, including to Plaintiffs. Lendian Aff. at 23, ¶
21; ECF No.  at 31-33.
uncovering the theft ring and obtaining confessions from
numerous employees involved, Plaintiffs initiated the instant
action on February 9, 2018. ECF No. . Eventually, Abreu
began cooperating with the DOJ. Hr'g Tr. 111:24-112:2.
Beginning in February 2018, pursuant to this cooperation and
unbeknownst to Lendian, Abreu began recording his telephone
conversations with Lendian at the DOJ's request. Hr'g
Tr. 120:14-18, 161:2-6.
undisputed that, during these phone conversations, Lendian
suggested that Abreu flee the country rather than face years
in prison if convicted for his involvement in the theft
ring. ECF No. [264-8] at 18-20. Likewise, the
parties do not dispute the fact that Lendian stated that he
and Abreu needed to be on the “same page”
regarding their testimony as to the quality of the materials
Abreu sold to Metals USA. Id. at 64, 78. It is
further undisputed that Lendian told Abreu not to divulge the
identities of the truck drivers who worked for Abreu because
they would “give [Abreu] up.” Id. at 83.
Beyond these undisputed facts, however, the parties share
differing versions of what transpired.
one hand, Plaintiffs set forth the following facts based on
the recordings: (1) Lendian started taking steps to transfer
his assets out of the United States upon learning of this
lawsuit, ECF No. [264-8] at 45; (2) Lendian asked Abreu to
lie to his attorney to cover up for Lendian, id. at
27-28; (3) Lendian tried to destroy relevant Metals USA
records, id. at 37; (4) Lendian asked Abreu to take
the blame for the thefts and testify that Lendian did not
know that the materials were stolen, id. at 47, 70;
(5) Lendian offered Abreu $20, 000.00 for Abreu's legal
fees if Abreu agreed to use a lawyer of Lendian's
choosing, id. at 55, 72-74; and (6) Lendian
instructed Abreu to purchase a new cell phone under a false
name, ECF No. [264-9] at 2-3.
other hand, Defendants contend that the recordings support
the existence of issues of fact and present a narrative
consistent with their assertions that Defendants neither knew
of the thefts, nor directed or participated in them.
Defendants also emphasize that these recordings were taken as
a result of Abreu's cooperation with, and likely coaching
by, the federal officials in an effort to bait Lendian into
making incriminating statements. Defendants dispute the
version of facts that Plaintiffs derive from these recordings
and allege the following facts instead: (1) Lendian produced
his bank records and those records contain no proof that
Lendian transferred his assets out of the United States,
Lendian Aff. at 29, ¶ 75; (2) The transcript cited by
Plaintiffs demonstrates that, contrary to what they allege,
it was Abreu who suggested lying to his own attorney, not
Lendian, ECF No. [264-8] at 11; (3) The record indicates that
it was Abreu who sought to destroy Metals USA records,
Rodriguez Dep. 65:1-67:23, and the recording transcript cited
shows that Lendian told Abreu that he could not destroy the
records in order to avoid a confrontation with someone who
Lendian believed could exonerate him, ECF No. [264-8] at
46-47; (4) Lendian spoke with Abreu in an effort to clear his
name and the transcript contradicts Plaintiffs'
allegations that Lendian asked Abreu to take the blame for
the thefts, instead establishing that Abreu suggested that he
“bear the guilt for everything, ” id. at
46-47; (5) Lendian offered to help Abreu with his legal fees,
but the offer was not conditioned upon a lawyer of
Lendian's choosing, and the recording transcript contains
no support for this alleged conditional offer, id.
at 55, 72-74; and (6) There is no indication in the recording
transcript cited that Lendian instructed Abreu to purchase a
new cell phone under a false name, ECF No. [264-9] at 2-3.
Defendants also note that the recordings support the
following facts: (1) Neither Lendian nor Abreu indicated that
Lendian “orchestrated” the theft scheme, see
generally ECF Nos. [264-8] & [264-9]; (2) Neither
Lendian nor Abreu indicated that Lendian was a
“ringleader, ” see generally id.; (3)
Neither Lendian nor Abreu indicated that Lendian directed
Abreu to steal from Plaintiffs, see generally id.;
(4) Neither Lendian nor Abreu indicated that Lendian knew the
material purchased from Abreu was stolen, see generally
id.; (5) Neither Lendian nor Abreu suggested that
Lendian was responsible for Abreu's thefts, see
generally id.; (6) Lendian did not know any of the
alleged participants in the theft scheme, id. at 65;
and (7) Lendian did not know that the materials were stolen,
id. at 70.
standard of review on cross-motions for summary judgment does
not differ from the standard applied when only one party
files such a motion. See Am. Bankers Ins. Grp. v. United
States, 408 F.3d 1328, 1331 (11th Cir. 2005). A court
may grant a motion for summary judgment “if the movant
shows that 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 parties may support their
positions by citations to materials in the record, including,
among other things, depositions, documents, affidavits, or
declarations. See Fed. R. Civ. P. 56(c). An issue is
genuine if “a reasonable trier of fact could return
judgment for the non-moving party.” Miccosukee
Tribe of Indians of Fla. v. United States, 516 F.3d
1235, 1243 (11th Cir. 2008) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is
material if it “might affect the outcome of the suit
under the governing law.” Id. (quoting
Anderson, 477 U.S. at 247-48).
views the facts in the light most favorable to the non-moving
party, draws “all reasonable inferences in favor of the
nonmovant and may not weigh evidence or make credibility
determinations, which ‘are jury functions, not those of
a judge.'” Lewis v. City of Union City,
Ga., 934 F.3d 1169, 1179 (11th Cir. 2019) (quoting
Feliciano v. City of Miami Beach, 707 F.3d 1244,
1252 (11th Cir. 2013)); Davis v. Williams, 451 F.3d
759, 763 (11th Cir. 2006); see also Crocker v.
Beatty, 886 F.3d 1132, 1134 (11th Cir. 2018)
(“[W]e accept [the non-movant's] version of the
facts as true and draw all reasonable inferences in the light
most favorable to him as the non-movant.”). “The
mere existence of a scintilla of evidence in support of the
[non-moving party's] position will be insufficient; there
must be evidence on which a jury could reasonably find for
the [non-moving party].” Anderson, 477 U.S. at
252. “If more than one inference could be construed
from the facts by a reasonable fact finder, and that
inference introduces a genuine issue of material fact, then
the district court should not grant summary judgment.”
Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d
989, 996 (11th Cir. 1990). The Court does not weigh
conflicting evidence. See Skop v. City of Atlanta,
Ga., 485 F.3d 1130, 1140 (11th Cir. 2007) (quoting
Carlin Comm'n, Inc. v. S. Bell Tel. & Tel.
Co., 802 F.2d 1352, 1356 (11th Cir. 1986)).
moving party shoulders the initial burden to demonstrate the
absence of a genuine issue of material fact. Shiver v.
Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a
movant satisfies this burden, “the nonmoving party
‘must do more than simply show that there is some
metaphysical doubt as to the material facts.'”
Ray v. Equifax Info. Servs., LLC, 327
Fed.Appx. 819, 825 (11th Cir. 2009) (quoting Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986)). Instead, “the non-moving party
‘must make a sufficient showing on each essential
element of the case for which he has the burden of
proof.'” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). The non-moving party
must produce evidence, going beyond the pleadings, and by its
own affidavits, or by depositions, answers to
interrogatories, and admissions on file, designating specific
facts to suggest that a reasonable jury could find in the
non-moving party's favor. Shiver, 549 F.3d at
1343. Yet, even where a non-movant neglects to submit any
alleged material facts in dispute, a court must still be
satisfied that the evidence in the record supports the
uncontroverted material facts proposed by the movant before
granting summary judgment. Reese v. Herbert, 527
F.3d 1253, 1268-69, 1272 (11th Cir. 2008); United States
v. One Piece of Real Prop. Located at 5800 S.W. 74th Ave.,
Miami, Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004)
(“One Piece of Real Prop.”). Indeed,
even “where the parties agree on the basic facts, but
disagree about the factual inferences that should be drawn
from those facts, ” summary judgment may be
inappropriate. Warrior Tombigbee Transp. Co., Inc. v. M/V
Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983).
“cross motions for summary judgment may be probative of
the nonexistence of a factual dispute, but this procedural
posture does not automatically empower the court to dispense
with the determination whether questions of material fact
exist.” Ga. State Conference of NAACP v. Fayette
Cty. Bd. of Comm'rs, 775 F.3d 1336, 1345-46 (11th
Cir. 2015). Indeed, even where the issues presented on
motions for summary judgment overlap, a court must consider
each motion on its own merits, “resolving all
reasonable inferences against the party whose motion is under
consideration.” S. Pilot Ins. Co. v. CECS,
Inc., 52 F.Supp.3d 1240, 1243 (N.D.Ga. 2014) (citing
Am. Bankers Ins. Grp., 408 F.3d at 1331). In
particular, where “the parties respond to each
respective summary judgment motion with disputes as to the
‘undisputed' facts, add ‘material
facts' of their own, and then repl[y] with subsequent
objections to the other party's additional facts, ”
the mere filing of cross motions for summary judgment is not
conclusive. Id. Thus, where the parties disagree as
to the facts, summary judgment cannot be entered unless one
of the parties meets its burden of demonstrating that
“there is no dispute as to any material facts with the
evidence and all inferences drawn therefrom viewed in the
light most favorable” to the non-moving party.
Shook v. United States, 713 F.2d 662, 665 (11th Cir.
1983) (citing M/V Nan Fung, 695 F.2d at 1296-97).
Motion for Summary Judgment argues that no genuine issue of
material fact exists as to any of the elements of their
federal and Florida RICO claims in Counts I, II, III, and IV
of their Amended Complaint. Plaintiffs' arguments rely in
part on adverse inferences derived from Lendian's prior
invocation of his Fifth Amendment rights during his
deposition, which they contend the Court should consider
instead of Lendian's subsequent affidavit submitted at
summary judgment. Defendants, on the other hand, move for
summary judgment on all counts of Plaintiffs' Amended
Complaint, arguing that Plaintiffs cannot establish the
enterprise and continuity elements of their RICO claims and
that they cannot establish a benefit conferred by Plaintiffs
on their unjust enrichment claim. Defendants' Motion for
Summary Judgment relies heavily on the statements set forth
in Lendian's affidavit, which they contend the Court may
properly consider as a valid withdrawal of a prior Fifth
Amendment invocation. Thus, before examining the merits of
the Motions, the Court must first address the propriety of
the withdrawal of Lendian's Fifth Amendment invocation
and his subsequent summary judgment affidavit.
Withdrawal of Lendian's Fifth Amendment Invocation and
argue that the Court should draw adverse inferences against
Defendants and that Lendian's affidavit should be
disregarded for two reasons: (1) Lendian invoked the Fifth
Amendment during his testimony at the preliminary injunction
hearing and at his deposition and he should not now be
allowed to submit an affidavit at summary judgment asserting
facts he previously refused to provide, and (2) Lendian's
statements in his affidavit are stale, self-serving,
conclusory, and have no probative value as competent summary
judgment evidence. Defendants argue against drawing adverse
inferences, stating that Lendian's affidavit is
permissible here because a party may properly withdraw a
Fifth Amendment invocation in certain circumstances.
Fifth Amendment Invocation and Withdrawal
United States Supreme Court has explained that the Fifth
Amendment protects an individual from self-incrimination, in
part, by affording the privilege “not to answer
official questions put to him in any  proceeding, civil or
criminal, formal or informal, where the answers might
incriminate him in future criminal proceedings.”
Baxter v. Palmigiano, 425 U.S. 308, 316 (1976)
(quoting Lefkowitz v. Turley, 414 U.S. 70, 77
(1973)); see also Davis-Lynch, Inc. v. Moreno, 667
F.3d 539, 547 (5th Cir. 2012) (“As a preliminary
matter, it should be noted that a party may invoke the
privilege against self-incrimination in a civil
proceeding.” (footnote omitted)); Wehling v.
Columbia Broad. Sys., 608 F.2d 1084, 1086 (5th Cir.
1979) (“[I]t is clear that the Fifth
Amendment would serve as a shield to any party who feared
that complying with discovery would expose him to a risk of
self-incrimination. The fact that the privilege is raised in
a civil proceeding rather than a criminal prosecution does
not deprive a party of its protection.”).
“Accordingly, a party may invoke the Fifth Amendment
privilege during the discovery process to avoid answering
questions at a deposition, responding to interrogatories or
requests for admissions, or to produce documents.”
Davis-Lynch, Inc., 667 F.3d at 547 (footnote
constitutionally protected, a civil litigant's invocation
of the privilege against self-incrimination during the
discovery process is far from costless.” United
States v. Certain Real Prop. & Premises Known as
4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78, 82 (2d
Cir. 1995) (“Certain Real Prop.”).
“[D]istrict courts possess wide discretion in response
to a party's invocation of the Fifth Amendment.”
Sec. & Exch. Comm'n v. Monterosso, 746
F.Supp.2d 1253, 1262 (S.D. Fla. 2010) (citing Sec. &
Exch. Comm'n v. Colello, 139 F.3d 674, 677 (9th Cir.
1998); Wehling, 608 F.2d at 1089). Further, the
Eleventh Circuit has stated that, in a civil action,
“the court may draw adverse inferences against a party
that invokes the Fifth Amendment.” Eagle Hosp.
Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298,
1304 (11th Cir. 2009); Arango v. U.S. Dep't of the
Treasury, 115 F.3d 922, 926 (11th Cir. 1997)
(“[T]he Fifth Amendment does not forbid adverse
inferences against civil litigants . . . who assert the
privilege against self- incrimination. A party who asserts
the privilege may not ‘convert [it] from the shield
against compulsory self-incrimination which it was intended
to be into a sword whereby [he] would be freed from adducing
proof in support of a burden which would otherwise have been
his.'” (citations omitted)). Accordingly, “a
‘party who asserts the privilege against
self-incrimination must bear the consequence of lack of
evidence,' and the claim of privilege will not prevent an
adverse finding or even summary judgment if the litigant does
not present sufficient evidence to satisfy the usual
evidentiary burdens in the litigation.” Certain
Real Prop., 55 F.3d at 83 (citations omitted).
the Supreme Court has also emphasized that the Constitution
limits “the imposition of any sanction which makes
assertion of the Fifth Amendment privilege
‘costly.'” Spevack v. Klein, 385
U.S. 511, 515 (1967). Moreover, under certain case-specific
circumstances, a party may withdraw its invocation of the
Fifth Amendment privilege against self-incrimination in a
civil case. See Davis-Lynch, Inc., 667 F.3d at 547
(“Courts have weighed the specific facts of each case
in which a civil litigant has attempted to withdraw his
invocation of the Fifth Amendment privilege.”);
Sec. & Exch. Comm'n v. BIH Corp., No.
2:10-CV-577-FTM-29, 2013 WL 6571472, at *2 (M.D. Fla. Dec.
13, 2013) (“Withdrawal ‘is dependent on the
particular facts and circumstances of each case.'”
(quoting Sec. & Exch. Comm'n v. Smart, 678
F.3d 850, 855 (10th Cir. 2012))). “Given this
consideration - and because all parties should have a
reasonable opportunity to litigate a civil case fully -
courts should seek out ways to permit ‘as much
testimony as possible to be presented in the civil
litigation, despite the assertion of the
privilege.'” Davis-Lynch, Inc., 667 F.3d
at 547 (quoting Certain Real Prop., 55 F.3d at 84).
As such, courts must “carefully balance the interests
of the party claiming protection against self-incrimination
and the adversary's entitlement to equitable treatment.
Because the privilege is constitutionally based, the
detriment to the party asserting it should be no more than is
necessary to prevent unfair and unnecessary prejudice to the
other side.” Monterosso, 746 F.Supp.2d at 1262
(citations omitted); Wehling, 608 F.2d at 1088.
Generally, “[t]he court should be especially inclined
to permit withdrawal of the privilege if there are no grounds
for believing that opposing parties suffered undue prejudice
from the litigant's later-regretted decision to invoke
the Fifth Amendment.” Conversely, withdrawal is not
permitted if the litigant is trying to “abuse,
manipulate or gain an unfair strategic advantage over
opposing parties.” The timing and circumstances under
which a litigant withdraws the privilege are relevant factors
in considering whether a litigant is attempting to abuse or
gain some unfair advantage.
Davis-Lynch, Inc., 667 F.3d at 547 (footnotes
omitted). Thus, “a party may withdraw its assertion of
the Fifth Amendment privilege, even at a late stage in
litigation, if circumstances indicate that (1) the litigant
was not using the privilege in a tactical, abusive manner,
and (2) the opposing party would not experience undue
prejudice as a result.” Id. at 548 (citing
Sec. & Exch. Comm'n v. Graystone Nash, Inc.,
25 F.3d 187, 193 (3d Cir. 1994)).
the end, exactly how a trial court should respond to a
request to withdraw the privilege - or indeed, more
generally, how it should react to any motion precipitated by
a litigant's assertion of the Fifth Amendment in a civil
proceeding - necessarily depends on the precise facts and
circumstances of each case.” Certain Real
Prop., 55 F.3d at 85. In making this determination,
however, courts must be cautious not to, “through
inappropriate procedural remedies or unwarranted sanctions,
unduly burden litigants' valid attempts to seek the
protection that the privilege against self-incrimination
provides.” Id. “Therefore, a party may
withdraw its invocation of the Fifth Amendment privilege,
even at a late stage in the process, when circumstances
indicate that there is no intent to abuse the process or gain
an unfair advantage, and there is no unnecessary prejudice to
the other side.” Davis-Lynch, Inc., 667 F.3d
at 548; Smart, 678 F.3d at 854-55 (“But
‘to prevent a party from converting the Fifth Amendment
privilege from its intended use as a shield against
compulsory self-incrimination into an offensive sword,'
‘a district court may strike conclusory testimony if
the witness asserts the Fifth Amendment privilege to avoid
answering relevant questions, yet freely responds to
questions that are advantageous to his cause.'”
(citing United States v. $148, 840 in U.S. Currency,
521 F.3d 1268, 1277 (10th Cir. 2008))).
first argue that the Court should draw adverse inferences
against Defendants based on Lendian's prior, repeated
Fifth Amendment invocations. Thus, Plaintiffs contend that
the Court should disregard Lendian's affidavit because
permitting Lendian to submit an affidavit on issues that were
previously said to be privileged in order to defeat summary
judgment would be prejudicial to Plaintiffs. Defendants argue
that Lendian's affidavit is a valid and permissible
withdrawal of his prior Fifth Amendment invocation after
learning that the DOJ was declining prosecution and closing
the pending criminal investigation. Likewise, Defendants
state that Lendian is available for a deposition, should
Plaintiffs wish to take it instead of continuing to reply on
stale adverse inferences.
many Circuits across the country have addressed the
withdrawal of a prior Fifth Amendment invocation, the
Eleventh Circuit has not specifically addressed the issue.
See, e.g., Davis-Lynch, Inc., 667 F.3d at
546 n.10 (collecting cases); Graystone Nash, Inc.,
25 F.3d at 190-92 (collecting cases). However,
“district courts possess wide discretion in response to
a party's invocation of the Fifth Amendment.”
Monterosso, 746 F.Supp.2d at 1262. Moreover, the
Fifth Circuit has previously recognized the
balance-of-interests approach in responding to parties'
Fifth Amendment invocations, explaining that courts should
“measure the relative weights of the parties'
competing interests with a view toward accommodating those
interests, if possible . . . [to] ensure that the rights of
both parties are taken into consideration before the court
decides whose rights predominate.” Wehling,
608 F.2d at 1088; Graystone Nash, Inc., 25 F.3d at
191 (“In a civil trial, a party's invocation of the
privilege may be proper, but it does not take place in a
vacuum; the rights of the other litigant are entitled to