United States District Court, N.D. Georgia, Atlanta Division
SUZHOU ALLPRO CERTIFIED PUBLIC ACCOUNTANTS CO., LTD., as Bankruptcy Administrator of SURE HEAT MANUFACTURING SUZHOU CO. LTD., Plaintiff,
SURE HEAT MANUFACTURING, INC., SHM INTERNATIONAL CORPORATION, MICHAEL R. MULBERRY, MICHAEL S. MULBERRY, and HARRY CLIFFORD VILLERS, Defendants.
Richard W. Story, United States District Judge
case is before the Court at summary judgment. The Court
considers Plaintiff's Motion for Partial Summary
Judgment [188, 189], Sure Heat Defendants'
Motion for Summary Judgement , and Defendant
Villers' Motion for Summary Judgment . The Court
further considers Sure Heat Defendants' additional
Motions: for Reconsideration ; to Strike Memorandum of
Law in Support of Plaintiff's Motion for Partial Summary
Judgment ; to Strike Exhibit 66 to Plaintiff's
Statement of Additional Material Facts ; to Strike
Plaintiff's Response to Defendants' Motions for
Summary Judgment . As well as Defendant Villers'
additional Motion to Strike Memorandum of Law in Support of
Plaintiff's Motion for Partial Summary Judgment  and
Request for Oral Argument on his Motion for Summary Judgment
. After a review of the record, the Court enters the
case arises out of an import-export business arrangement
between the parties. The parties have detailed the slew of
complicated facts repeatedly in their various motions and
statements of material facts. The Court does not need to do
so again here. Instead, the Court will frame this Order with
a brief overview of the case, using undisputed facts from the
parties' statements of facts. Any specific facts
necessary to the Court's findings will be addressed in
the Analysis section of this Order.
pertinent issues before the court at summary judgment concern
the boundaries of the corporate form's limited liability.
Defendant Michael R. Mulberry (“Mulberry”) is the
president and a director of all three corporations involved
in this action, Sure Heat Manufacturing, Inc. (“Sure
Heat US”), Sure Heat Manufacturing, (Suzhou) Co. Ltd.
(“Sure Heat China”), and SHM International
Corporation (“SHM”). (Pl.'s Statement of
Material Facts (“Pl.'s SMF”), Dkt 
¶¶ 3, 10; Sure Heat Defs.' SMF, Dkt. [186-2]
¶ 9.) He is also the majority owner of all three
companies as a 100% owner of SHM and 80% owner of Sure Heat
US, which is the sole owner of Sure Heat China. (Pl.'s
SMF, Dkt  ¶¶ 9, 17; Sure Heat Defs.' SMF,
Dkt. [186-2] ¶ 8.) After forming Sure Heat U.S. in 1982,
Mulberry incorporated Sure Heat China in 2004 as a wholly
owned subsidiary to manufacture and sell gas-powered
products, including barbecue grills, heaters, and hearth
products to retailers. (Pl.'s SMF, Dkt. 
¶¶ 3, 8, 26.) Mulberry later incorporated SHM in
2010 to execute a similar role as Sure Heat US, although the
exact business is unclear. (Pl.'s Statement of Additional
Material Facts (“Pl.'s SAMF”), Dkt [198-1]
other individual Defendants, Michael Scott Mulberry
(“MSM”) and Harry Clifford Villers
(“Villers”), similarly hold central roles in Sure
Heat U.S. and Sure Heat China. MSM is the corporate secretary
and vice president of operations of Sure Heat US. (Pl.'s
SMF, Dkt.  ¶4.) Further, the Michael Scott Mulberry
Trust owns 10% of the shares of Sure Heat US. (Id.
¶ 18.) He is also vice president of manufacturing, and
oversaw management of Sure Heat China. (Id.
¶¶ 4, 12.) Villers is a director of Sure Heat China
and was the general manager from 2004 to 2010. (Id.
¶¶ 13, 14.)
bankruptcy proceeding under the Law of the People's
Republic of China on Enterprise Bankruptcy was commenced by
its creditors against Sure Heat China on January 8, 2014.
(Pl.'s SMF, Dkt.  ¶136.) Plaintiff Suzhou
Allpro Certified Public Accountants Co., Ltd.
(“Plaintiff” or the “Administrator”)
was appointed as “Bankruptcy Administrator” to
liquidate the bankruptcy estate. (Id. ¶137.)
Plaintiff now seeks to collect on Sure Heat US's debt to
Sure Heat China-$5, 215, 854 in current accounts payable and
$15, 000, 000 in long-term debt, or a total of $20, 215, 854.
(Id. ¶¶ 49, 50.)
Third Amended Complaint , Plaintiff brings claims for
Breach of Contract (Counts I and II); Unjust Enrichment
(Count III); Money Had and Received (Count IV); Conversion
(Count V); Alter Ego Liability (Counts VI and VII);
Fraudulent Inducement (Count VIII); Negligent
Misrepresentation (Count IX); Breach of Fiduciary Duty (Count
X); and Civil Conspiracy (Count XI), against some or all of
the Defendants. Defendants Sure Heat US, Mulberry, and MSM
(collectively the “Sure Heat Defendants”) now
move for summary judgment , Defendant Villers similarly
moves for summary judgment , and Plaintiff moves for
partial summary judgment . The Court will consider each
in turn, but will begin with the various motions filed by
parties in connection with their motions for summary
Sure Heat Defendants' Motion for Reconsideration
request that the Court reconsider its October 2, 2018 Order
 addressing discovery disputes of the parties.
Defendants argue that the Court did not follow the procedures
outlined in the Standing Order Regarding Civil Litigation
because the Court ruled on the dispute based upon the
submissions of the parties and did not allow further briefing
or a hearing or a telephone conversation. In fairness to
Defendants, the Standing Order filed in this case would have
led them to this conclusion. However, since this case has
been pending, the Court entered a new Standing Order that
appears on the Court's website, and the procedure in the
new Standing Order was followed in this case.
fairness, the Court still considers Defendants' motion
for reconsideration on the merits. Under the Local Rules of
this Court, “[m]otions for reconsideration shall not be
filed as a matter of routine practice[, ]” but rather,
only when “absolutely necessary.” LR 7.2(E),
N.D.Ga. Such absolute necessity arises where there is
“(1) newly discovered evidence; (2) an intervening
development or change in controlling law; or (3) a need to
correct a clear error of law or fact.” Bryan v.
Murphy, 246 F.Supp.2d 1256, 1258-59 (N.D.Ga. 2003).
Defendants have not offered a proper reason for the Court to
reconsider its prior decision. Defendants' Motion for
Reconsideration is, therefore, DENIED.
Sure Heat Defendants' Motion to Strike Memorandum of
Law in Support of Plaintiff's Motion for Partial
Summary Judgment 
request that the Court strike Plaintiff's memorandum
because it exceeds the page limit. Defendants reach this
conclusion based on the Plaintiff having incorporated facts
from its Statement of Undisputed Facts rather than including
a full “Facts” section in its memorandum.
Defendants argue that this violates the Court's Standing
Order provision regarding Motions for Summary Judgment,
section II(g)(I), which provides, “All citations to the
record evidence should be contained in each party's
brief, not just in the parties statement of undisputed (or
disputed) facts.” Defendants interpret this as
requiring a party to actually state all of the facts in the
brief, as well as in the statement of undisputed facts. That
is not the intent of this provision. This provision addresses
citations. The intent of the provision is to require a party
to provide a citation to the record for facts stated in the
brief. It is not a requirement that every fact be restated in
the brief. While the Court appreciates Defendants'
concern that a party might game the system and gain pages
using this approach, under the circumstances of this case,
the Court does not find there to be an abuse. And certainly,
it is not a violation of the Order. Accordingly,
Defendants' motion is DENIED.
Sure Heat Defendants' Motion to Strike Exhibit 66 to
Plaintiff's Statement of Additional Material Facts
attached as an exhibit to its Statement of Additional
Material Facts an email chain. Defendants moved to strike the
exhibit as unauthenticated double hearsay. However, under
Fed.R.Civ.P. 56(c)(2) a valid objection may be raised when
the material “cannot be presented in a form that would
be admissible in evidence.” In its response  to
the motion, Plaintiff makes the case that it will be able to
present the evidence in an admissible form at trial.
Therefore, the motion is DENIED.
Sure Heat Defendants' Motion to Strike
Plaintiff's Response to Defendants' Motions for
Summary Judgment 
seek to strike Plaintiff's response to their motions for
summary judgment because the response exceeds the applicable
page limitation. Defendants point out that Plaintiff included
13 numbered paragraphs that were single-spaced. Local Rule
5.1C requires, with limited exceptions, that all documents be
double-spaced. Defendants also complain about Plaintiff
filing a six-page Statement of Additional Material Facts
[198-1]. It appears that Plaintiff did not follow the rules
by failing to double-space the numbered paragraphs. Rather
than striking the response, the Court treats Plaintiffs
response to this motion as a request for an extension of the
page limitation and grants the request. As for the statement
of additional facts, Local Rule 56.1(2)(b) authorizes a
statement of additional facts. Therefore, the motion to
strike the statement of additional facts is
Defendant Villers' Motion to Strike Memorandum of Law
in Support of Plaintiff's Motion for Partial Summary
Villers adopts the motion of the Sure Heat Defendants to
strike the memorandum of law . For the same reasons that
the motion of the Sure Heat Defendants is denied, Defendant
Villers' motion is DENIED.
Defendant Villers' Request for Oral Argument on his
Motion for Summary Judgment 
Villers has requested oral argument on his motion for summary
judgment. A hearing on this issue is unnecessary. Therefore,
this motion is DENIED.
Motions for ...