Kubek v. Teachers Retirement, et al

Filing 145

OPINION. Signed by Honorable Judge Myron H. Thompson on 8/8/2011. (br, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

RISOLETA M. KUBEK,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
NORA KUBEK JONES,
et al.,
Defendants.

CIVIL ACTION NO.
2:04cv29-MHT
(WO)

OPINION
This lawsuit is now before the court on defendant
Universal Surety of America’s motion for summary judgment
against plaintiff Risoleta M. Kubek.

For the reasons

that follow, the motion shall be granted.
Kubek

brought

this

lawsuit

against

a

number

of

defendants, alleging that each played a role in depriving
her of benefits she was entitled to receive under the
retirement and life-insurance policies of her deceased
ex-husband.
Jones

According to Kubek, defendant Nora Kubek

amended

Kubek’s

ex-husband’s

beneficiary

designations by falsely obtaining a “Limited Power of

Attorney”

and

a

Cancellation.”

“Notice
Both

of

Survivor

documents

were

Benefits

purportedly

authorized by the ex-husband and notarized by defendant
Tina Carter, who served as Universal Surety’s principal.
Kubek

seeks

derivative

to

recover

claim

theory

from

Universal

based

on

the

Surety
alleged

acknowledgment of these two documents.

on

a

false

Kubek asserts

jurisdiction under 28 U.S.C. §§ 1331 (federal question),
1332 (diversity), and 1367 (supplemental).
Rule 56(a) of the Federal Rules of Civil Procedure
provides

that

summary

judgment

is

appropriate

where

“there is no genuine dispute as to any material fact and
that the movant is entitled to judgment as a matter of
law.”

Universal Surety contends that it is entitled to

summary judgment because it has submitted an affidavit of
Carter (now known as Tina Carter McCaskill), in which she
states that she did not acknowledge the documents and, in
fact,

was

not

even

present

2

when

the

documents

were

purportedly notarized.

Thus, Universal Surety contends

that it has no derivative liability.
In response, Kubek contends that the Carter affidavit
confirms her “allegation that the signature of [Kubek’s
ex-husband] was a forgery.” (Doc. No. 139).
that

Carter’s

whereabouts

were

unknown

Asserting

prior

to

the

filing of the affidavit in October 2009, Kubek requested
more time for discovery to inquire into the relationship,
if any, between Jones and Carter.

During a July 28,

2011, conference call, Kubek informed the court that
further discovery regarding Universal Surety’s motion was
no longer necessary.

Kubek has submitted no additional

evidence relating to Universal Surety’s liability.
Thus, the undisputed evidence before the court is as
follows.

Carter attests that she neither notarized nor

acknowledged the disputed documents.
no

evidence

to

contest

Carter’s

Kubek has provided
affidavit.

It

is

therefore undisputed that Carter did not acknowledge the
two documents.

Because Universal Surety’s liability is

3

conditioned upon a finding that Carter failed to perform
the duties of a notary public, there is nothing to
support Kubek’s derivative-liability claim.
An appropriate judgment will be entered granting
Universal Surety’s summary-judgment motion.

Universal

Surety’s crossclaim against Carter is still pending
DONE, this the 8th day of August, 2011.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE