Olympic Forest Products, Ltd. v. Cooper

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0603n.06
Filed: July 15, 2005
No. 04-1819
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
OLYMPIC FOREST PRODUCTS,
LTD.,
Plaintiff-Appellant, ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
v. EASTERN DISTRICT OF MICHIGAN
JOHNNY COOPER, et al., OPINION
Defendants-Appellees.
________________________________/
Before: CLAY and SUTTON, Circuit Judges; REEVES, District Judge.*
DANNY C. REEVES, District Judge. Plaintiff-Appellant Olympic Forest Products,
Ltd. (“Olympic”) appeals the district court’s final judgment. For the reasons that follow, we
AFFIRM the judgment of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of the alleged tortious acts of Defendant-Appellee Johnny Cooper
(“Cooper”) and the entities of which he was the former President and sole owner, Wolverine
Auto Purchasing, Inc. (“Wolverine”) and International Vehicle Importers, Inc. (“IVI”).
*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
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Wolverine was engaged in the business of buying and reselling vehicles, and IVI was in the
business of importing vehicles into the United States. At the time of the transactions involved
in this litigation, Cooper ran all operations at Wolverine.
Olympic is the assignee and affiliate of Swathmore Auto Group (“Swathmore”). During
the relevant time period, Swathmore was in the business of importing vehicles from Canada to
the United States for resale. The business was operated, in part, through a nominee corporation:
Dealers Wholesale Depot Company (“DWD”).
In April 2000, Cooper represented to DWD and Swathmore that Cooper, Wolverine
and/or IVI were able to purchase twenty-three new Harley Davidson Motorcycles and resell
them to an Arizona Dealership at a profit of at least $400.00 per motorcycle, with a ten day turn-
around. Based on these representations, Swathmore and DWD agreed to purchase the
motorcycles and complete the proposed resale. Wolverine invoiced Swathmore and DWD for
eleven motorcycles (a total of $204,750.00) on April 17, 2000, and twelve motorcycles (a total
of $216,500.00) on April 25, 2000. Pursuant to these invoices, Swathmore transferred
$421,250.00 to Wolverine’s bank account. Subsequently, IVI imported the motorcycles.
Wolverine then sold them to an Arizona dealership.
Wolverine did not immediately pay the net proceeds of the motorcycles, plus the agreed
profits, to Swathmore or DWD. Instead, some months later, Wolverine paid Swathmore a total
of $77,000.00 in four installments (for four motorcycles). Cooper acknowledged that it was his
decision not to pay the remainder of the sums due to Swathmore and DWD.
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Within six months of the transaction, Wolverine and IVI sold substantially all of their
assets to Adesa Importation Services, Inc. (“Adesa”). At closing, which occurred on December
21, 2000, Wolverine and IVI received $2.5 million from Adesa. Of this amount, $1.4 million
was paid to secured creditors and the balance was paid to trade creditors. Olympic contends that
approximately $500,000.00 of trade debt – including the monies owed to DWD and Swathmore
– was left unpaid. The Defendants-Appellees concede that Wolverine owes Olympic money.
On October 30, 2001, Olympic filed suit against Cooper, IVI, Wolverine, Adesa and
Robert Bolenbaugh (a salesman for Wolverine). Subsequently, Adesa and Bolenbaugh were
dismissed by agreement. On July 15, 2002, Cooper moved for summary judgment with respect
to all claims asserted against him. He argued that, as a corporate officer, he was shielded from
liability and that a statutory conversion claim could not attach to him. On March 14, 2003, the
district court granted Cooper’s motion. Specifically, it concluded that Olympic had not produced
sufficient evidence to hold Cooper personally liable. In addition, the district court found that
Olympic had only pled a claim of statutory conversion and had failed to present evidence to
support this claim against Cooper. Olympic then filed a motion to reconsider, arguing that the
district court improperly applied the corporate shield defense to the claims against Cooper and
improperly dismissed its conversion claim. Specifically, Olympic asserted that it had alleged
both a statutory and common law conversion claim and that the court failed to address the
viability of its common law claim. The district court denied this motion.
Based on admissions made by Cooper, Olympic then moved for summary judgment
against Wolverine and IVI. The district court ultimately granted this motion after both entities
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failed to respond. The resulting judgment effectively brought the case to an end below and this
appeal followed.1
STANDARD OF REVIEW
A district court’s grant of summary judgment is reviewed de novo. Martin v. Indiana
Michigan Power Co., 381 F.3d 574, 578 (6th Cir. 2004). Summary judgment is proper where
no genuine issue of material fact exists and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). In considering such a motion, the court must view the
evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue is
“whether the evidence presents sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
DISCUSSION
Olympic contends that the district court erred in finding as a matter of law that Cooper
was shielded by the corporate veil. It asserts that this action should be remanded so that it may
proceed against Cooper on claims of conversion, fraud and civil conspiracy.2 In response, the
Defendants argue that the district court properly dismissed Cooper because Olympic failed to
1
Olympic’s appeal relates only to the dismissal of its claims against Cooper.
2
Olympic also asserts that the district court improperly dismissed its conversion claim, arguing that
the court failed to consider the viability of a common law claim of conversion. The Defendants argue that
Olympic did not allege a common law claim in its complaint. Therefore, they assert that the court properly
dismissed this claim inasmuch as Olympic failed to present sufficient evidence to sustain the only claim
alleged ( i.e., the statutory conversion claim).
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present sufficient evidence to pierce the corporate veil. Alternatively, they contend that even if
the district court erred, this Court should affirm the dismissal of Olympic’s claims against
Cooper because there is insufficient evidence in the record to create a genuine issue of material
fact with respect to the conversion, fraud and civil conspiracy claims.
A. Piercing the Corporate Veil
In dismissing Olympic’s claims against Cooper, the district court concluded that Cooper
was not liable for the acts of the corporate Defendants. Specifically, the court concluded that
Olympic failed to offer evidence that would support piercing the corporate veil and holding
Cooper personally liable for the acts of Wolverine and IVI. In support of its position that the
district court erred, Olympic contends that Cooper should not have been dismissed because he
personally participated in the wrongful conduct.
The law treats a corporation as an entirely separate entity from its stockholders, even
where only one person owns all the corporation’s stock. Foodland Dist. v. Al-Naimi, 559
N.W.2d 379 (Mich. App. 1996). As a general rule, shareholders, directors and officers of a
corporation cannot be held personally liable for the corporation’s acts or debts, unless unusual
circumstances justify disregarding the corporate entity. Bitar v. Wakim, 572 N.W.2d 191 (Mich.
1998). However, where the corporate fiction is used to subvert justice, the corporate identity
may be ignored. Id. This concept is commonly referred to as piercing the corporate veil and is
typically used “to protect a corporation’s creditors . . . when there is a unity of interest of the
stockholders and the corporation and where the stockholders have used the corporate entity in
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an attempt to avoid legal obligations.” Allstate Ins. Co. v. Citizens Ins. Co., 325 N.W.2d 505,
508 (Mich. App. 1982).
Under Michigan law, the following elements must be satisfied in order to pierce the
corporate veil:
First, the corporate entity must be a mere instrumentality of another entity or
individual. Second, the corporate entity must be used to commit a fraud or
wrong. Third, there must have been an unjust loss or injury to the plaintiff.
SCD Chemical Dist., Inc. v. Medley, 512 N.W.2d 86 (Mich. App. 1994). It should also be noted
that when corporate officials participate individually in fraudulent or tortious conduct, they may
be held personally responsible, regardless of whether they are acting on their own behalf or on
behalf of the corporation. Attorney General v. Ankersen, 385 N.W.2d 658 (Mich. App. 1986).
Here, the district court held that Olympic failed to present sufficient evidence to pierce
the corporate veil. Specifically, the court held that Olympic had not demonstrated that “Cooper
used his corporations as a mere instrumentality to suit his own improper purposes.” Further, it
noted that there was no evidence indicating that Cooper ignored corporate formalities or blurred
the distinction between the corporations and himself.
Although the district court did not specifically address whether Cooper personally
engaged in fraudulent or illegal activity, it is apparent from the record that the evidence was
insufficient regarding this issue. In support of its position that Cooper engaged in fraudulent or
wrongful conduct, Olympic states that “Cooper admitted that he personally engaged in the
concealment of money he knew to belong to Olympic.” (Appellant’s Br. at 16-17). However,
after examining the portions of the record cited by Olympic, it does not appear that Cooper
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admitted to concealing money that belonged to Olympic. Rather, Cooper acknowledged that a
debt was owed to Olympic and that there were insufficient funds to pay it.3 This is the only
evidence cited by Olympic to support its contention that Cooper personally engaged in
fraudulent or illegal activity. And, based on this evidence, we cannot conclude that there is
sufficient evidence of fraudulent or wrongful conduct to impose personal liability on Cooper.
As noted by the district court, “the mere fact that Defendant Cooper made a business decision
not to pay a debt does not indicate that he was using his companies as a mere instrumentality.”
Likewise, the fact that Cooper decided not to pay the monies owed to Wolverine and/or IVI does
not indicate that he actively engaged in the concealment of money. Thus, the district court did
not err in finding there was insufficient evidence to pierce the corporate veil and impose personal
liability on Cooper.
However, even if the district court erred in its piercing the corporate veil analysis,
Olympic has not suffered any prejudice inasmuch as there is insufficient evidence to create a
genuine issue of material fact with respect to the alleged conversion, fraud and civil conspiracy
claims.
B. Conversion
The district court concluded that Olympic had only pleaded a claim for statutory
conversion and had failed to present sufficient evidence to sustain this claim. Olympic contends,
3
Cooper testified that his initial reason for not paying the debt was that he had intended to sue Olympic
for its alleged attempts to “steal” Wolverine’s employees. He indicated that he elected to pay other creditors
because he believed that the monies owed to Olympic would be offset by the future judgment against it.
Although Cooper’s rationale for not paying the money may have been unreasonable, it appears that Cooper
simply made a business decision to pay other creditors before Olympic. Contrary to the representations made
by Olympic, Cooper did not admit that he personally engaged in the concealment of money that he knew
belonged to Olympic.
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however, that it also pleaded a cause of action for common law conversion and that the district
court failed to consider the viability of this claim. We agree with the district court’s conclusion
that Olympic only pleaded a statutory conversion claim and did not produce evidence to create
a material issue of fact regarding this issue.
Count II of the Complaint sets forth Olympic’s conversion claim. This Count provides,
in relevant part, that:
22. Olympic hereby incorporates its allegations contained in paragraphs 1
through 21 as if set forth herein in their entirety.
23. Cooper, Bolenbaugh, Wolverine and/or IVI wrongfully converted and/or
stole at least $344,250 of funds belonging to Swathmore.
24. Pursuant to M.C.L. 600.2919a, Olympic (as Swathmore’s assignee) may
recover three times the amount of actual damages sustained . . . plus
reasonable costs and fees.
The clear language of the relevant section of the Complaint does not allege a claim for common
law conversion. Instead, the Complaint specifically references the statutory section applicable
to conversion. Further, in paragraph 24, Olympic demands treble damages, which is derived
from M.C.L. § 600.2919a.
Additionally, Olympic’s failure to address the viability of a common law conversion
claim in response to Cooper’s motion for summary judgment is a further indication that it never
intended to proceed against Cooper under that claim. In his motion, Cooper sought a judgment
in its favor on all claims, specifically addressing the issue of statutory conversion. In opposing
the motion, Olympic never asserted that Cooper failed to address its separate common law
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conversion claim. For these reasons, we agree with the district court and conclude that Olympic
failed to allege a claim based upon common law conversion.
Apart from the current claim based on Michigan common law, the district court was also
correct in concluding that Olympic failed to present sufficient proof to support its claim of
statutory conversion. In Michigan, a statutory claim of conversion consists of knowingly
buying, receiving, or aiding in the concealment of stolen, embezzled, or converted property.
M.C.L. § 600.2919a. The Michigan courts have held that simply retaining a particular item or
sum does not amount to “buying, receiving or aiding in the concealment of stolen, embezzled
or converted property.” Lawsuit Financial v. Curry, 683 N.W.2d 233 (Mich. App. 2004) (citing
Hovanesian v. Nam, 539 N.W.2d 557 (Mich. App. 1995)). In this case, Olympic contends that
it gave money to the Defendants-Appellees and they, in turn, failed to give it back in accordance
with the terms of the contract. Such allegations are insufficient to support a statutory conversion
claim.
C. Fraud
Likewise, while the record may support a claim for breach of contract, it does not support
a corresponding claim of fraud. In Crews v. General Motors Corp., 253 N.W.2d 617 (Mich.
1977), the Michigan Supreme Court held that a tort action will not lie based solely on
nonperformance of a contractual duty. Under the contract in issue in this case, the parties agreed
that Olympic (or its affiliates) would transfer money to the Defendants for the purchase of
motorcycles. In turn, the Defendants agreed to resell the motorcycles and pay Olympic the
proceeds, plus any net profits. It is undisputed that the sole factual allegation of misconduct
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supporting Olympic’s claims is that the Defendants failed to re-pay all of the money owed to
Olympic pursuant to their agreement. As such, the contract between the parties is the sole source
of any duty that the Defendants owed to Olympic. Under these circumstances, Olympic cannot
maintain an action for fraud separate from the breach of contract claim.4
While the dissent asserts that the district court erred in dismissing Olympic’s fraud claim
against Cooper based on his individual actions, it is apparent that the evidence presented by
Olympic does not support such a claim. No evidence was presented that Cooper knew at the
time his company contracted with Swathmore/DWD that payments would not be made pursuant
to their agreement. And again, while his subsequent decision to withhold such payments may
constitute a breach of contract on behalf of the company, it is axiomatic that not every breach
of contract constitutes a claim for fraud. The fact that Wolverine and IVI used monies received
from the subsequent sale of the business to pay secured and trade creditors rather than
Swathmore/DWD does not alter this analysis. Here, the fraud claim against Cooper fails for lack
of proof under Rule 56 of the Federal Rules of Civil Procedure.5
D. Civil Conspiracy
4
Although the Michigan courts have held that a plaintiff may pursue a claim of fraud in the
inducement extraneous to an action for breach of contract, Olympic has not alleged that the Defendants-
Appellees made misrepresentations to induce Olympic into entering into this contract. See e.g., Huron Tool
and Engineering Co. v. Precision Consulting Services, Inc., 532 N.W.2d 541, 546 (Mich. App. 1995).
5
Neither Citizens Ins. Co. of Am. v. Delcamp Truck Ctr., Inc., 444 N.W.2d 210, 213 (Mich. Ct. App.
1989), nor Trail Clinic, P.C. v. Bloch, 319 N.W.2d 638, 642 (Mich. Ct. App. 1982), alters this analysis. Both
cases discuss individual liability for conversion. Where, as here, the conversion claim was properly dismissed
– as the dissent concedes – the claim may not be revived by simply calling it fraud or civil conspiracy. These
are separate and distinct claims with separate and distinct elements that must be alleged and supported by
relevant evidence if summary judgment is to be avoided.
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Inasmuch as Olympic failed to allege facts to support claims for conversion and fraud,
the civil conspiracy claim likewise fails. See Magid v. Oak Park Racquet Club Associates, Ltd.,
269 N.W.2d 661, 664 (Mich. App. 1978) (an allegation of conspiracy, standing alone, is not
actionable).
CONCLUSION
We AFFIRM the judgment of the district court.
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CLAY, Circuit Judge, concurring in part and dissenting in part. I concur in the majority
opinion insofar as it affirms summary judgment in Cooper’s favor on Olympic’s conversion
claim. That claim was properly dismissed because the most reasonable interpretation of
Olympic’s complaint is that it alleges only a claim of statutory conversion and Olympic does not
contest the dismissal of its claim for statutory conversion. As to the fraud and civil conspiracy
claims, however, I must respectfully dissent because in my view there are genuine issues of
material fact such that a trial on those claims is required. Fed. R. Civ. P. 56. In particular, it is
my view that Cooper may be held individually liable for the torts of the entities that he
represented in an official capacity (Wolverine and IVI). Furthermore, regardless of whether
Cooper can be held liable for Wolverine’s and IVI’s tortious conduct, he can be held liable for
tortious conduct in which he actively participated. In other words, the majority’s veil-piercing
analysis does not, as its opinion suggests, resolve this case.
We review de novo a district court’s decision to grant summary judgment. Cockrel v.
Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir. 2001). Summary judgment must be
granted if the pleadings and evidence “show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c).
A dispute over a material fact is only a “genuine issue” if a reasonable jury could find for the
nonmoving party on that issue. Cockrel, 270 F.3d at 1048 (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). In reviewing the district court's grant of summary judgment,
this Court must view all the facts and the inferences drawn therefrom in the light most favorable
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to the nonmoving party. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)).
Generally, the denial of a motion to reconsider is reviewed for an abuse of discretion.
Northland Ins. Co. v. Stewart Title Guar. Co., 327 F.3d 448, 454 (6th Cir. 2003) (citing
GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 832 (6th Cir.1999)). However, when a
Rule 59(e) motion seeks reconsideration of a grant of summary judgment, this Court conducts
a de novo review using the same legal standard employed by the district court. Id. at 454-55
(citing Smith v. Wal- Mart Stores, Inc., 167 F.3d 286, 289 (6th Cir. 1999); Columbia Gas
Transmission, Corp. v. Limited Corp., 951 F.2d 110, 112 (6th Cir. 1991)).
The district court granted Defendant Cooper summary judgment on Olympic’s claims for
breach of contract, conversion, fraud, civil conspiracy, and constructive trust on the ground that
Cooper was an officer of Wolverine and IVI, and Olympic had failed to allege facts showing that
it was appropriate to pierce these entities’ corporate veils in order to hold Cooper liable for their
actions. The district court, however, construed Plaintiff’s complaint too narrowly and the
majority has now repeated the error. A fair reading of the complaint shows that Olympic seeks
to impose liability not only on Wolverine and IVI, but on Cooper personally for his own actions.
The allegations concerning breach of contract, conversion, fraud, civil conspiracy, and
constructive trust make no distinction between Cooper’s capacity as a representative of
Wolverine and IVI and his personal capacity. Accordingly, even accepting the district court’s
conclusion, adopted by the majority here, that veil-piercing is inappropriate to hold Cooper liable
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for Wolverine and IVI’s actions, this holding would not preclude Olympic from seeking to
impose liability on Cooper for his own actions.
Michigan law clearly distinguishes between a corporate officer’s liability for his own
tortious conduct and the ability to hold a corporate officer liable for the actions of the
corporation through veil-piercing. The Michigan Court of Appeals has held that “[i]t is beyond
question that a corporate employee or official is personally liable for all tortious or criminal acts
in which he participates, regardless of whether he was acting on his own behalf or on behalf of
the corporation.” Attorney General v. Ankersen, 385 N.W.2d 658, 673 (Mich. Ct. App. 1986)
(citations omitted); see also Citizens Ins. Co. of Am. v. Delcamp Truck Ctr., Inc., 444 N.W.2d
210, 213 (Mich. Ct. App. 1989) (“When conversion is committed by a corporation, the agents
and officers of the corporation may also be found personally liable for their active participation
in the tort, even though they do not personally benefit thereby.”) (citations omitted); Trail Clinic,
P.C. v. Bloch, 319 N.W.2d 638, 642 (Mich. Ct. App. 1982) (“This Court has held that where a
defendant acts on his own behalf or as an officer or agent of a corporation he is personally liable
for the torts in which he actively participated.”) (citations omitted). The personal liability of a
corporate officer “is not a question of piercing the corporate veil.” Ankersen, 385 N.W.2d at
673.
Thus, in Citizens, the court held that a company president, sued by an insurance company
for failing to return an overpayment, could be held personally liable for the amount converted
because he had actively participated in the conversion. Citizens Ins., 444 N.W.2d at 213.
Similarly, in Trial Clinic, the court held that a director and shareholder of a medical clinic could
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be held personally liable for converting reimbursement checks, because the evidence established
that he had actively assisted with the conversion and “acted either in behalf of one of the
companies he was associated with or for his own interest.”6 Trail Clinic, 319 N.W.2d at 642.
Here, Olympic alleges that Cooper actively participated in the torts of conversion, fraud, and
civil conspiracy. Olympic claims that Cooper was personally involved in converting hundreds
of thousands of dollars in proceeds from the motorcycle sale and misrepresented that he would
pay Swathmore this money within ten days of Swathmore fronting the money for the deal.
Indeed, Cooper has admitted that it was his “sole decision” not to pay Swathmore the money it
was owed. The record, viewed in the light most favorable to Olympic, reflects that on April 17,
2000, Wolverine and IVI invoiced DWD and Swathmore, via 11 invoices, a total of $204,750
for 11 Harley Davidson motorcycles. On April 25, 2000, Swathmore was invoiced for another
12 motorcycles in the amount of $216,500. Swathmore wire-transferred payment for these
invoices to Wolverine on April 27, 2000.
When Wolverine and/or IVI failed to remit payments owed to Swathmore under the resale
agreement, Barrie Kurdzeil, a representative of Swathmore, contacted Johnny Cooper by
telephone. Cooper acknowledged that Wolverine and IVI were long overdue in returning these
funds to Swathmore and DWD. Cooper also stated that he had used the funds in other deals
several times since completing the motorcycle deal. Cooper claimed that, pursuant to a business
6
The majority suggests Citizens and Trail Clinic are irrelevant to the case at bar because they involved
conversion claims. It should be clear from my discussion that I do not point out these cases for their treatment
of the plaintiffs’ conversion claims, but rather because they illustrate a general principle of Michigan tort law,
namely, that a corporate officer’s individual liability “is not a question of piercing the corporate veil.”
Ankersen, 385 N.W.2d at 673.
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plan he had developed for Wolverine, DWD agreed to have the proceeds from the motorcycle
deal reinvested, although there is nothing in writing to that effect.
Despite Cooper’s assurances that the funds would be forwarded, he paid
Swathmore/DWD only $77,000. Swathmore/DWD is owed over $350,000 (the cost of the
motorcycles less $77,000) plus profits. Cooper claims that he stopped repaying
Swathmore/DWD when he began contemplating legal action against DWD, which he believed
was “poaching Wolverine’s employees and using the business plan developed by Cooper (for
Wolverine) to set up a competing business.” Def’s Br. at 4. Within six months of the
motorcycle transaction, Cooper negotiated the sale of his businesses to Adesa Importation
Services, Inc. (“Adesa”). The proceeds that Wolverine and IVI grossed from the sale were used
to repay outstanding bank loans and secured creditors, and the remaining monies were used to
pay their accounts payable (trade creditors). Cooper was $500,000 short in its ability to pay all
of the trade creditors, including the debt to Swathmore/DWD. Cooper never received any money
from the sale of his businesses to Adesa. Viewed in the light most favorable to Olympic, these
facts arguably suggest that Cooper actively participated in the torts of conversion, fraud, and
civil conspiracy to defraud, the last of which claims Olympic no longer pursues. In particular,
these facts could support a reasonable fact-finder’s inference that Cooper had the specific intent
to defraud. The majority reaches a contrary conclusion by engaging in fact-finding of its own.
It is not for us to decide whether Cooper had the intent to defraud; our charge is limited to
determining whether a reasonable jury could so find. Because on this record a reasonable jury
could find in Olympic’s favor, the fraud and conspiracy claims should proceed to trial.
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Accordingly, I submit that the district court erred in dismissing the fraud and civil
conspiracy claims with respect to Cooper individually. I therefore part ways with my colleagues;
I would reverse the district court’s grant of summary judgment to Cooper on Olympic’s fraud
and civil conspiracy claims and would remand the case for trial on those claims.
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