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Safa v. City of Philadelphia

United States District Court, E.D. Pennsylvania

May 29, 2015

SAFA, et al., Plaintiffs
CITY OF PHILADELPHIA, et al. Defendants.




Plaintiffs, Imad Safa (“Imad”) and Mohammad Safa (“Mohammad”) (collectively, “the Safa brothers” or “the brothers”) along with their company, Exotic Diamond Jewelers of Philadelphia, LLC (“Exotic Diamond Jewelers”), brought this action against Defendants, the City of Philadelphia (“the City”), Detective Frank Straup (“Straup”), a number of John Doe defendants, United Express Jewelry, Israel Nisanov, Gabriel Nisanov, Yellow Gold, Inc., Italy in Gold Star, Inc., Aslan Bawabeh, David Bawabeh, Gerald Schembri, G.S. Consultant Group, Inc., Hillel Jack Attali, and Haviv Kassab seeking monetary relief relating to a series of events that culminated in criminal charges being lodged against the Safas.[1] The parties have consented to magistrate judge jurisdiction. (Doc. No. 82.) All Defendants except Detective Straup and the City of Philadelphia (the “Defendants”) have settled or have otherwise been dismissed from the action. (Doc. No. 91.) Presently before the Court is their Motion for Summary Judgment, (“MSJ, ” Doc. No. 94), “Plaintiffs’ Memorandum of Law in Opposition to the Defendant’s [sic] Motion for Summary Judgment, ” (“Resp., ” Doc. No. 97), and “Defendants’ Reply Brief in Support of Their Motion for Summary Judgment.” (“Reply, ” Doc. No. 100.) For the reasons set forth below, we will grant their motion.


On August 6, 2013, Plaintiffs filed their Complaint in the Court of Common Pleas of Philadelphia County. (Doc. No.1) On August 26, 2013, the case was removed to the Eastern District of Pennsylvania given the existence of federal question jurisdiction. (Id.) On September 18, 2013, Plaintiffs filed their First Amended Complaint, (Doc. No. 14). On March 24, 2014, they filed a Second Amended Complaint, (Doc. No. 39). Finally, on January 12, 2015, they filed a Third Amended Complaint.[2] (Doc. No. 90.) In that the Defendants’ Motion addresses only the liability of the City and Straup, the following recitation of the Complaint will address the claims against just these two defendants.

Plaintiffs assert that Straup is liable for a variety of constitutional claims under 42 U.S.C. § 1983 (“Section 1983”) including malicious prosecution, unlawful arrest, unlawful search and seizure, conspiracy, and First Amendment retaliation. Plaintiffs have also pursued state law torts claims of malicious prosecution, false imprisonment and unlawful arrest, conspiracy, intentional infliction of emotional distress, assault and battery, and conversion. (Compl., ¶ 131-161, 187-208.) The brothers claim that the city is liable for malicious prosecution and intentional infliction of emotional distress under Pennsylvania law, for the Section 1983 claims under a theory of Monell liability[3], and for “[c]onspiracy as to [c]riminal [c]harges” under state law.[4](Compl., ¶ 136-140, 158-161, 187-198.) We note that Plaintiffs, in their Response and as confirmed at oral argument, have stipulated to the dismissal of their assault and battery, intentional infliction of emotional distress, and conspiracy claims. (Resp., at 13-14.) We also note that Plaintiffs’ Monell and malicious prosecution claims against the City were effectively abandoned in that the Plaintiffs have not opposed the Motion for Summary Judgment as to those claims.[5] These abandoned claims are dismissed. Accordingly, the remainder of this opinion only addresses the claims against Straup.

The essence of the Complaint as concerns Straup is predicated upon the notion that a number of jewelry wholesalers, who had placed jewelry with Plaintiffs’ father on “memo” or consignment, had conspired to use the Philadelphia police to obtain a return of that jewelry and money owed on those transactions by pursuing criminal charges against the Plaintiffs, who they suspected had possession of the jewelry and were selling it in their shop. Straup is said to be complicit by knowingly or recklessly pursuing a search, seizure, arrest, and criminal charges against the brothers.

The Defendants filed their Motion for Summary Judgment on February 13, 2015. (MSJ, Doc. No. 94.) Plaintiffs filed a responsive brief opposing Defendants’ Motion on March 13, 2015. (Resp., Doc. No. 97.) Defendants filed their Reply on April 10, 2015. (Reply, Doc. No. 100.) We held oral argument on May 13, 2015. The claims that remain are ripe for resolution.


A. The Key Actors

Given the number of parties originally named in this litigation, we begin our factual discussion with a description of the individuals and businesses whose actions are elemental to the disposition of this Motion. The Plaintiffs, Imad and Mohammad Safa, are brothers. They run Exotic Diamond Jewelers, a retail jewelry store, in Philadelphia. They had previously been involved in the jewelry business with their father, Jamal Safa, who ran New Diamond City, [7] a retail jewelry store in the Bronx, New York.

A number of New York City jewelry wholesalers did business with New Diamond City. They included Aslan and David Bawabeh of Italy in Gold Star Inc.; Haviv Kassab of Yellow Gold, Inc.; Israel and Gabriel Nisanov of United Express Jewelry; Boris Gulkarov of ABG, Inc.; Rafakov Alverz of L & A Jewelry; Arkadiy Gabrilou of United A&S Jewelry; Yakoub Sarbar of Sardell Jewelry, Inc.; Elie Hanond of Elegant Jewelry Inc.; Diamond Kingdom; and Renee Design Inc.

B. The Wholesalers & New Diamond City

New Diamond City received jewelry items from the wholesalers through a process certain of the parties have referred to as “consignment” but which, as became clear during this litigation, differs slightly from a conventional consignment relationship. The wholesalers would place their jewelry with New Diamond City with the understanding that they would be merchandised at the New Diamond City shop and the wholesalers would be paid for the goods in installments. (Kassab Dep., at 22-25.) It was also understood that if the wholesalers wanted their goods returned, they could call upon New Diamond City to return them in the more traditional consignment manner. (Id.) These arrangements were memorialized in documents that varied as to descriptiveness and sophistication. (Kassab Dep., at 28, Doc. No. 94-14 to 94-19.) For the sake of brevity and consistency, we refer to these arrangements as “consignment” as that is how the parties have characterized them.

The wholesalers claimed that by the early Spring of 2010, they had consigned hundreds of thousands of dollars’ worth of merchandise to New Diamond City and that New Diamond City stopped making payments on the consigned goods. (Kassab Dep., at 41-42; D. Bawabeh Dep., at 15-16). The wholesalers then found that the store had unexpectedly shuttered and Jamal Safa had left for Lebanon. (Imad Dep., at 19.) The wholesalers met to determine how best to resolve the debt incurred by New Diamond City and, in April 2010, retained counsel and a private investigator, Gerald Schembri, to aid in the recovery of the merchandise. (Nisanov Dep., 34-37.)

Meanwhile, in early 2011, Imad and Mohammad opened their store, Exotic Diamond Jewelers, on South Street in Philadelphia. (Imad Dep., at 21.) At about the same time, through the efforts of Schembri and an associate of Gabriel Nisanov, the wholesalers learned that the brothers had opened the Philadelphia store which they understood contained a quantity of the jewelry they had consigned to New Diamond City. (Nisanov Dep., at 37, 41-44.) The wholesalers believed that the brothers used that same inventory they had consigned, or part of it, to start their Philadelphia business. (Id., at 41; Kassab Dep., at 43.)

Schembri contacted the Philadelphia Police at some point in April 2011. (Straup Dep., at 16.) He was put in contact with Detective Straup who began a criminal investigation, where he interviewed witnesses, gathered documents, visited the store, and applied for the warrants that are the subject matter of this lawsuit. (Id., at 16-31; Doc. No. 94-4, Doc. No. 94-5, Doc. No. 94-6.)

C. The Search Warrant

Straup then prepared a search warrant which contained his affidavit of three and a half pages briefly setting out his experience in “investigating white collar crimes” for some 13 years prior to 2010 and generally making reference to specialized training he had dealing with white collar crime. (Doc. No. 94-4.)

He described his contact with Schembri and certain of the wholesalers. As set out in his affidavit, Straup reported, based on information from the wholesalers, that they had placed substantial quantities of jewelry on consignment with New Diamond City. (Id.) Straup explained that at the end of March 2010, New Diamond City had become seriously delinquent in its payments, that the shop closed, and that the “owners disappeared taking with them all of the jewelry that was consigned to them by the ten [wholesalers].” (Id.) Straup then related that these wholesalers had “design[ed] and create[d] their own jewelry line and therefore most of the items [were] one of a kind and unique to the individual designers.” (Id.) He also set out that he had been provided with receipts for “all of the consigned jewelry.” (Id.)

Straup then went on and gave summaries of specific interviews that he undertook with three of the wholesalers, Gabriel Nisanov of United Express Jewelry, Rafakov Avnerz of L & A Jewelry, and Boris Gulkarov of ABG, Inc. (Id.) The affidavit sets out that Nisanov told Straup that, in early 2010, he (Nisanov) had provided additional jewelry to “Mike and Mark” – Americanized names used by the plaintiffs – given their previously reliable payment history. (Id.) Despite this history, Nisanov claimed that New Diamond City had accumulated outstanding delinquencies in excess of $160, 000. (Id.) Straup then reported that Nisanov detailed how the store had closed and he had lost contact with the owners until he later “learned that the owners of New Diamond City were going to open a store at 316 South Street in Philadelphia.” (Id.) Nisanov’s partner went to the store in May of 2011 and, as Nisanov told Straup, this partner identified several unique pieces of Nisanov’s jewelry on display in the store, which still had their tags appended to them. (Id.) Photographs were taken of that jewelry and these photographs, as reported in the affidavit, were shown to Straup as were catalogs which showed his merchandise. (Id.) Straup confirmed the information by visiting the store and saw for himself jewelry that appeared to match that of photos provided by Nisanov. (Id.)

The affidavit goes on by including a summary of the statements that Straup took of Boris Gulkarov, the owner of ABG, Inc. (Id.) As reflected in the affidavit, Gulkarov told Straup that he had an outstanding balance with New Diamond City of some $6, 770 and that he was pursuing collection in March 2010 when “Mark” requested an additional $36, 503 in jewelry. (Id.) Gulkarov rejected this request until Mark paid him on the outstanding consignment. (Id.) Gulkarov returned the next day and was now told that Jamal Safa had to make an emergency trip to Lebanon to attend to Mark’s ill grandfather. (Id.) Mark then told Gulkarov to come back at the end of the month when he would be paid. (Id.) Gulkarov returned at the end of the month and found the business closed. (Id.) He was unable to track down the owners. (Id.) Gulkarov provided Detective Straup with descriptions of some of the jewelry items he had with New Diamond City. (Id.)

The affidavit also summarized Straup’s interview with Rafakov Avnerz of L & A Jewelry. (Id.) As set out in the affidavit, Avnerz similarly reported to Straup that he had placed about $35, 000 in outstanding balances with New Diamond City when he was contacted in March of 2010 by Mark and asked for additional merchandise. (Id.) Avnerz told Mark that he would not provide the requested jewelry, valued at approximately $15, 000, given the outstanding balance of $35, 000. (Id.) Mark assured him that New Diamond City would pay the remainder of the balance once his father returned from Lebanon. (Id.) Consequently, Avnerz delivered an additional quantity of jewelry on March 4, 2010. (Id.) Avnerz returned to the store two weeks later and found that the store was closed and the owners had disappeared. (Id.) He later learned about the Philadelphia store. (Id.) He then went to the store and asked the Safa brothers to pay the obligation or return the merchandise but the two brothers “laughed at him and made him leave.” (Id.) Detective Straup concluded his affidavit by indicating that he “checked with the Pennsylvania Department of State and learned that Exotic Diamond Jewelers of Philadelphia, LLC was registered on 3-7-11 with a business office at 523 South 4th Street.” (Id.)

Straup first sought and obtained the approval of an Assistant District Attorney for the warrant application. (Straup Dep., at 102-03.) Upon receiving that approval, Straup swore to the affidavit of probable cause on June 16, 2011 and the search ...

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