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Diallo v. Fishman

March 31, 2008


The opinion of the court was delivered by: Townes, District Judge


In a complaint, dated March 6, 2001, plaintiff, Boubacar Diallo, sues defendants, Irena Fishman ("Irena") and Harris Fishman ("Harris"), alleging causes of action for violations of the Lanhan Act (15 U.S.C. § 1125), breach of contract, unfair competition, fraud, conversion, breach of express warranty, and breach of implied warranty of merchantability. All claims arise out of two alleged transactions involving the sale of containers of Marlboro cigarettes by Irena. The case was tried before the Court without a jury.

As more fully explained below, the Court concludes, based upon the evidence and testimony presented at trial, that plaintiff does not have standing to bring this action. Accordingly, judgment is entered in favor of defendants and against plaintiff. Pursuant to Federal Rule of Civil Procedure 52(a), the Court makes the following findings of fact and conclusions of law.


On January 10, 2000, people came to the home of husband and wife, Harris and Irena. Harris, who was home alone, testified that they left $10,000 as a deposit for cigarettes that they wished to purchase from Irena. The only person in the group that Harris recognized was a person named Gibril Abdalla. On March 23, 2000, Harris picked up $28,780 on his wife's behalf. (19-20.)*fn1 He received $50,000 on Irena's behalf on March 24, 2000. On September 14, 2000, Gibril Abdalla left $20,000 with him for Irena. (21.) (See plaintiff's trial exhibits 1-4.) At trial, Harris was unable to identify plaintiff as someone who had ever visited his home or left money with him for Irena. (22.) Harris was not involved in any way in Irena's business. (23.) He provided receipts for each sum of money that he received.

Plaintiff testified via an interpreter. He claimed to be a citizen of Guinea who came to the United States in January 2000 looking for a commodity to export to West Africa. He decided to export cigarettes. (24.) According to him, he left the money (for which receipts 1-3 were written) with Harris as payment for cigarettes he wished to purchase from Irena. (29-33.) Plaintiff did not meet or speak with Irena about the purchase. He communicated his request to Mohammad Hissorou, who then communicated with Gibril Abdalla, who communicated with Irena. (39.) On direct examination, plaintiff testified that the money used to purchase the cigarettes was from his bank account in Africa. He intended to pay with money he left at home and cash he brought with him. (29.) When asked by Irena on cross-examination how he was able to bring such large sums of cash into the country, plaintiff stated that he collected the cash from people in the United States who owed it to him. (70.)

Though no terms of any contract were ever placed on the record at trial, plaintiff testified that a twenty-foot container of cigarettes was sent to Africa soon after he made the cash payments. He alleged that he had paid all but $40,000 for the twenty-foot container before he received it. (36.) Although he admitted that he did not inspect the first container, he testified that the cigarettes in the container were "not good"; they were non-conforming. (34.) Since the cigarettes were not satisfactory, plaintiff reached an agreement with the Fishmans that he would send the container and its contents to them in the United States and Irena would return the money. (34.) He never sent the container because "he" would not let him. (41.) Mamadou Diallo advised plaintiff that he would keep the container and try to sell it, but it was never sold. (75.)

After the twenty-foot container arrived in Africa, plaintiff claims that even though he was dissatisfied with the product, he gave Harris an additional sum of $20,000. He was unable to produce a receipt for that amount at trial. (42.) Although he could not remember the date, plaintiff testified that he subsequently returned to the United States. After arrival, he went to the defendants' home, where he met Irena and spoke with her for the first time. (43.) He testified that Irena orally agreed to sell him a bigger container of cigarettes if he paid her $42,000 more.

(44.) Harris was present during their conversation, but he was making coffee or tea. (48.) Mohammad Hissorou was also there, and he interpreted for plaintiff, who spoke French, and for Irena, who spoke English. (51-53.) Plaintiff alleges that he paid the defendants a total of $150,000 for cigarettes. Hissorou testified about what he recalled concerning the alleged oral contract, though he could not recall the contract price. (58.) Although Hissorou was alleged to be present for every contact between the Fishmans and plaintiff, he did not testify about any cash payments that he witnessed the plaintiff make to either defendant. (51-60.)

Plaintiff testified that he gave Irena the additional amount of $42,220 in cash on a day when he "went to a house and . . . happened to use the basement." Gibril and Hissorou were also present. (78.) Plaintiff was also unable to produce a receipt for that payment at trial.

At some point, plaintiff again returned to Africa, but he could give no dates. While he was there, the second container arrived. He, Mamadou Diallo, an inspector, named Jean Marc Darees, and others opened the container in Bangul sometime in 2001. (63.) From that container, the inspector took six packs of cigarettes and he gave plaintiff four packs. Mamadou took those four packs from plaintiff, who kept nothing for himself. (66.)

Irena was employed as a broker who would approach merchants to find desired products for her customers. If she supplied the goods, she received a commission. (116.) She testified that she became involved with the two sales at issue when Gibril called her while she was in Europe. He told her that he was leaving a deposit with her husband for the purchase of cigarettes. (160.) Irena was told that she was dealing with African brokers, a group of three or four men who were acting for a principal. Gibril, with whom she had worked before, was the only one who ever spoke to her. (153, 163.) He asked her for counterfeit cigarettes and brought her samples of what he wanted. (160-61.) She asked Gibril to introduce his principal buyer to her, and Mamadou Diallo came to her home, introduced himself, and negotiated the purchase of the second container of fresh, original cigarettes. (106.) Irena and Mamadou reduced their agreement to a signed writing, dated July 14, 2000. (See defendants' Exhibit 2.) Mamadou Diallo did not pay any money for the purchase of the second container of cigarettes. (113.) Mamadou wanted Irena to give him the original bill of lading before he paid, and she refused. Her answer to the complaint contained a fourth affirmative defense that her contract was with Mamadou and that plaintiff has no standing to bring this action. She also testified credibly that she never had any agreement with plaintiff and he never gave her money. (110.) Because she believed Gibril was the broker for Mamadou, she paid Gibril $6,000 after the agreement with Mamadou was signed. (131, 133-34.)

Defendants' Exhibit 9, the deposition testimony of Matar Sosseh, a customs agent in Africa, is particularly revealing. Mamadou and Sosseh are good friends. He asked if he could put Sosseh's name on both the twenty-foot and forty-foot containers to pick them up. Sosseh agreed. Plaintiff's Exhibits 6 and 7, the respective bills of lading, are each in the name of Matar Sosseh. When the second container arrived, Mamadou did not have the funds to pay, so the container remained on the docks. Sosseh attempted to borrow money to help Mamadou get the container so he could sell it and give Sosseh a percentage of the profit. (230.) His efforts were not successful. The container of cigarettes was finally sold to one Ismail Sibi, who paid "5,000" in demurrage when no one else paid for the container in the time agreed upon. (235-36.)

This Court had the opportunity to observe and hear the testimony of the four witnesses who testified at trial. Upon consideration of all of the evidence presented in the case, this Court finds that the only witnesses who testified credibly were Harris Fishman and Irena Fishman. Their testimony was supported by the deposition of Matar Sosseh, the only witness who was in ...

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