NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ERIC S. GOLDSCHMIDT, et al.,

 Plaintiffs,

 v.

IRWIN BODEK, et al.,

 Defendants.

 CIVIL ACTION NO. 10-6581 (MLC)

 O P I N I O N

THE PLAINTIFFS, Eric S. Goldschmidt and Pamela Goldschmidt 

(“the Goldschmidts”), bring this action against the defendants, 

Irwin Bodek and Hylee Bodek (“the Bodeks”). (See generally dkt. 

entry no. 1, Compl.) The Goldschmidts allege that in April of 2005 

the Bodeks executed a promissory note for $60,000 in favor of the 

Goldschmidts, who acted as the trustees of the “Goldschmidts and 

Associates Profit Sharing Plan” (“the Plan”). (Id. at First Count 

¶ 6.) The Goldschmidts allege that the Bodeks thereafter executed 

a series of fourteen addenda to the promissory note, whereby the 

Bodeks borrowed an additional $147,500. (Id. at First Count 

¶¶ 11-12.) The alleged terms of the promissory note and the 

addenda (collectively, “the Note”) are set forth in the Complaint. 

(See id. at First Count ¶¶ 7-11.)1

 

1 The Goldschmidts allege that they, acting in their 

individual capacity, reimbursed the Plan and have thus assumed the 

Plan’s rights, title, and interest in the Note. (Compl. at First 

Count ¶ 17.)

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THE GOLDSCHMIDTS seek damages under two Counts, which both 

appear to arise under New Jersey law. (See generally Compl.; see 

also dkt. entry no. 17-4, Goldschmidts’ Br. (arguing, by reference 

to New Jersey law for summary judgment in the Goldschmidts’ favor 

and against the Bodeks on all Counts in the Complaint).) The First 

Count sounds in breach of contract, and relates to the Note and the 

Bodeks’ alleged failure to remit payments upon it. (See Compl. at 

First Count ¶¶ 6-18.) The Second Count sounds in unjust 

enrichment, and arises from the same facts as the First Count. 

(Id. at Second Count ¶¶ 1-2 (repeating the allegations set forth in 

the First Count and concluding that “[a]s a result of the 

foregoing, the Bodeks have been unjustly enriched.”).)

THE GOLDSCHMIDTS now move for summary judgment in their favor 

and against the Bodeks on the breach of contract claim and, in the 

alternative, the unjust enrichment claim. (See dkt. entry no. 17,, 

Mot.; see generally Goldschmidts’ Br.) The Bodeks oppose the 

Motion. (See generally dkt. entry no. 20, Bodeks’ Opp’n Br.)

THE COURT will resolve the Motion on the papers and without 

oral argument pursuant to Local Civil Rule 78.1(b).

IT APPEARS THAT the Bodeks have asserted fraud, duress, and 

undue influence as affirmative defenses to this action. (See dkt. 

entry no. 7, Answer, at 3-4.) It appears further that the 

allegations cited through their opposition to the Motion support 

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those affirmative defenses. (See Bodeks’ Opp’n Br. at 1, 3-5 

(arguing, inter alia, that the Bodeks “were an elderly couple whose 

financial situation had grown dire”, that the contract between the 

Bodeks and the Goldschmidts was a sham arrangement, and that the 

Bodeks would not have accepted the loan but for the Goldschmidts’ 

promises that no demands for payment would be made until after the 

Bodeks’ respective deaths).) 

WHETHER the Bodeks contracted with the Goldschmidts subject to 

fraud, duress, or undue influence is a question of fact that must 

be decided at trial. See Maynard v. Durham & S. Ry. Co., 365 U.S. 

160, 162 (1961) (indicating that questions of “fraud, duress, or 

undue influence” are questions of fact rather than law); Rutan v. 

Johnson & Johnson, 231 F. 369, 373 (3d Cir. 1916); Sentinel Ins. 

Co., Ltd. v. Earthworks Landscape Constr., L.L.C., 24 A.3d 823, 828 

(N.J. App. Div. 2011); see also Goldman v. Bequai, 19 F.3d 666, 675 

(D.C. Cir. 1994) (“Whether a plaintiff is subject to undue 

influence is a question of fact . . . and, as Williston notes . . . 

‘every case is different from every other case, and must depend 

largely on its own circumstances.’”) The Court will thus deny the 

Motion insofar as it concerns the First Count.

THE COURT earlier noted that the resolution of the Motion, 

insofar as it concerns the Second Count, turns on whether the 

contract between the parties was valid. (See dkt. entry no. 19, 

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Order to Show Cause at 2-3.) It appears that the parties do not 

agree whether they were bound by an express, valid contract. 

(Compare Goldschmidts’ Br. at 7 (asserting that the parties were 

bound by an express, valid contract), with Bodeks’ Opp’n Br. at 1-5 

(arguing, by reference to facts of record, that the contract 

between the parties rests on facts that may constitute fraud, 

duress, or undue influence).) The Court will accordingly deny the 

Motion insofar as it concerns the Second Count.

THE COURT will issue an appropriate Order.

 s/ Mary L. Cooper .

MARY L. COOPER

United States District Judge

Date: August 2, 2012

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