United States District Court, E.D. Michigan, Southern Division
GALEANA TELECOMMUNICATIONS INVESTMENTS, INC., Plaintiff/Counter-Defendant,
AMERIFONE CORP., Defendant/Counter-Plaintiff, and FIRST INTERNATIONAL EXCHANGE GROUP, INC., et al. Defendants.
& ORDER (1) GRANTING DEFENDANTS AMERIFONE AND
BEYDOUN'S MOTION FOR SUMMARY JUDGMENT (Dkt. 88); (2)
GRANTING DEFENDANT OSEFF'S MOTION FOR SUMMARY JUDGMENT
(Dkt. 83); (3) GRANTING DEFENDANTS DALALY AND FIEG'S
MOTION FOR SUMMARY JUDGMENT (Dkt. 87); (4) DENYING
PLAINTIFF/COUNTER-DEFENDANT GALEANA'S MOTION FOR SUMMARY
JUDGMENT AGAINST AMERIFONE AND BEYDOUN (Dkt. 85); AND (5)
DENYING PLAINTIFF GALEANA'S MOTION FOR SUMMARY JUDGMENT
AGAINST DALALY AND FIEG (Dkt. 90)
MARK A. GOLDSMITH, UNITED STATES DISTRICT JUDGE.
matter is before the Court on five motions for summary
judgment filed by the parties. Defendants Amerifone
Corporation (“Amerifone”) and Issam Beydoun have
filed a motion for summary judgment regarding Plaintiff
Galeana Telecommunications Investments, Inc.'s
(“Galeana”) claims of breach of contract, fraud,
and concert of action (Dkt. 88). Defendant Harold Oseff has
filed a motion for summary judgment on Galeana's claims
of fraud and concert of action (Dkt. 83). Defendants First
International Exchange Group, Inc. (“FIEG”) and
Dhafir Dalaly have also filed a motion for summary judgment
regarding Galeana's fraud and concert-of-action claims
turn, Galeana has filed a summary judgment motion, both as
Plaintiff and Counter-Defendant, against Amerifone and
Beydoun (Dkt. 85). As Plaintiff, Galeana seeks summary
judgment on its breach-of-contract, fraud, and
concert-of-action claims. As Counter-Defendant, Galeana seeks
summary judgment on Amerifone and Beydoun's fraudulent
inducement claim. Galeana has also filed a motion for summary
judgment on its fraud and concert-of-action claims against
FIEG and Dalaly (Dkt. 90).
issues have been fully briefed, and a hearing was held on
September 28, 2017. For the reasons discussed below, the
Court grants the motions of Amerifone, Beydoun, Oseff, FIEG,
and Dalaly, and denies Galeana's motions.
is a telecommunications investor and the parent company of
MetroBeam Wireless Telecommunications
(“MetroBeam”), which also operates as Kulacom
Jordan (“Kulacom”). Amerifone Mot. for Sum. Judg.
¶¶ 2-3. Fouad Alaeddin (“Fouad”) is the
majority owner of Galeana, and Hazim Alaeddin
(“Hazim”) is both the CEO of MetroBeam and
Galeana's managing director. Id. ¶¶
Beydoun is an officer and shareholder of Amerifone, which
invests in the telecommunications industry. Id.
¶ 1. Harold Oseff was a shareholder at Seyburn Kahn, a
Michigan law firm. Oseff Mot. for Sum. Judg. ¶ 7. After
Beydoun hired Seyburn Kahn to incorporate and represent
Amerifone, Oseff also served as Amerifone's attorney,
secretary, and general counsel, all without receiving pay.
Id. ¶¶ 7-8. Dhafir Dalaly is the owner of
FIEG, a financial services company. Id. ¶¶
28. Dalaly also owned Atlantic Bank. Id. ¶ 29.
provided broadband services in the Kingdom of Jordan, but
those services became less commercially viable after the
introduction of 3G and 4G services in the country.
Id. ¶¶ 3-4. As a result, Galeana decided
to pursue a license to provide 3G and 4G services.
Id. ¶ 5. After some communication between
Galeana and Amerifone, Oseff, at Kulacom's request, wrote
a letter dated June 26, 2012 to Hazim. Id. ¶
17. The purpose of the letter was to persuade Jordan's
Telecommunications Regulatory Commission (“TRC”)
to issue a 3G license. Amerifone Mot. for Sum. Judg. ¶
20. The letter explained that Amerifone's U.S. investors
“have indicated that they desire to have the
opportunity to invest up to USD $100, 000, 000 in companies
with bona fide telecommunications licenses[, ]” but
that those investors did not want to fund the investments
until Kulacom had obtained a 3G license; the letter further
explained that the identities of the investors could not be
revealed due to non-disclosure agreements. Oseff Letter, Ex.
8 to Amerifone Mot. for Sum. Judg. (Dkt. 88-9).
December 6, 2012, Jordan announced that it would accept bids
for a 3G and 4G license. Oseff Mot. for Sum. Judg. ¶ 41.
Galeana and Amerifone began negotiating a stock purchase
agreement for the purchase of Kulacom shortly after this
announcement; the parties executed the agreement on January
8, 2013. Id. ¶¶ 42, 44. The agreement had
multiple conditions precedent; notably, the TRC's
acceptance of the licensing bid was a precondition to
closing. Purchase Agreement, Ex. 12 to Oseff Mot. for Sum.
Judg., ¶ 4.2 (Dkt. 83-13). If the conditions precedent
were met, Amerifone would purchase MetroBeam for $40 million.
Id., ¶ 3. A subsequent amendment to the
agreement, entered on September 3, 2013, shifted some
contractual responsibilities to Amerifone. Amendment to
Purchase Agreement, Ex. 14 to Oseff Mot. for Sum. Judg.,
¶ 1 (Dkt. 83-15). For example, Amerifone - not Galeana -
would be responsible for submitting the bid to the TRC in a
manner acceptable to the TRC. Id. At some point
during these negotiations, Amerifone apparently told Galeana
that part of the funding for the bid would come from a
settlement of a lawsuit in Lebanon, see Fouad Email
to Oseff, Ex. 15 to Amerifone Mot. for Sum. Judg. (Dkt.
88-16), though the record is sparse on details regarding the
details of that supposed promise.
Amerifone and MetroBeam submitted bids for a
telecommunications license: Amerifone for ninety million
Jordanian Dinars (“JD”) (approximately $127
million) and MetroBeam for seventy million JD (approximately
$99 million). Amerifone Mot. for Sum. Judg. ¶ 55.
Amerifone's bid included a guarantee of fifteen million
JD from Atlantic Bank, Oseff Mot. for Sum. Judg. ¶ 56,
even though Atlantic Bank had previously been ordered by the
State of Michigan to cease and desist doing business as a
bank due to money laundering activity,  Galeana Mot. for
Sum. Judg. against FIEG, ¶¶ 5-6 (Dkt. 86). Upon
submission of the bids, the TRC alerted Amerifone that its
submission was unacceptable and requested that the bid bond
come from a Jordanian bank or that a letter of credit be
submitted in a form acceptable to a Jordanian bank. Galeana
Mot. for Sum. Judg. against Amerifone ¶ 5 (Dkt. 85).
Ultimately, the TRC awarded the license to a third provider,
a company called Zain, based on its bid of 160 million JD
(approximately $225 million). Amerifone Mot. for Sum. Judg.
¶ 61. After the bid was awarded to Zain, the chairman of
the TRC left the Commission to become a consultant with Zain.
Id. ¶ 63.
filed suit in November 2015, asserting a breach of contract
claim against Amerifone and various misrepresentation claims
against Amerifone, FIEG, Beydoun, Oseff, and Dalaly. In an
August 2016 opinion, the Court dismissed several of the
claims. See Galeana Telecommunications Investments, Inc.
v. Amerifone Corp., 202 F.Supp.3d 711 (E.D. Mich. 2016).
Galeana's only remaining claims are breach-of-contract
and fraud claims against Amerifone and Beydoun, its fraud
claim based on the June 2012 letter against Oseff, various
fraud claims against Dalaly/FIEG, and a concert-of-action
claim against all parties. Also remaining is Amerifone's
counterclaim for fraud against Galeana.
STANDARD OF REVIEW
motion for summary judgment under Federal Rule of Civil
Procedure 56 shall be granted “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). A genuine dispute of material fact exists
when there are “disputes over facts that might affect
the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “[F]acts must be viewed in the light most
favorable to the nonmoving party only if there is a
‘genuine' dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007).
“Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
the movant satisfies its initial burden of demonstrating the
absence of any genuine issue of material fact, the burden
shifts to the nonmoving party to set forth specific facts
showing a triable issue of material fact. Scott, 550
U.S. at 380; Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The nonmoving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts, ” Scott, 550 U.S. at 380
(quoting Matsushita, 475 U.S. at 586), as the
“mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment, ”
id. (quoting Anderson, 477 U.S. at 247-248)
(emphasis in original); see also Babcock & Wilcox Co.
v. Cormetech, Inc., 848 F.3d 754, 758 (6th Cir. 2017)
(“A mere scintilla of evidence or some metaphysical
doubt as to a material fact is insufficient to forestall
Amerifone and Beydoun Motion
Galeana claims remain active against Defendants Amerifone and
Beydoun: breach of contract, fraud, and concert of action.
Amerifone and Beydoun seek summary judgment on all three
Breach of Contract
breach claim is grounded in Amerifone and Beydoun's
failure to provide a bid bond from a suitable financial
institution in support of the bid. In attacking the breach
claim, Amerifone and Beydoun focus on one issue: whether
there is any evidence that the alleged breach caused any
damage. Amerifone and Beydoun argue that Galeana was not
harmed by the alleged breach of the contract, because the
ninety million JD bid would have been rejected due to
Zain's bid of 160 million JD. In support, Defendants
point to an email from Fouad, the managing partner of
Galeana, acknowledging that the TRC used Amerifone and
MetroBeam to push Zain to a bid of 160 million JD. Email from
Fouad, Ex. 24 to Amerifone Mot. for Sum. Judg., at 3 (cm/ecf
page) (Dkt 88-25) (“[T]he TRC used both of us to push
Zain to offer I [sic] higher bid outside the process (JD
160M).”). Amerifone also points to Hazim's
admission that the failure to supply a proper bid bond had
nothing to do with the loss of the bid. Hazim Dep., Ex. 2 to
Amerifone Mot. for Sum. Judg., at 224 (Dkt. 88-3) (confirming
that the chairman of the TRC had said the “offer will
not be refused due to not submitting bank bond”).
Additionally, Amerifone observes that the chairman of ...