Morsch v. JP Morgan Chase Bank, N.A.
Filing
48
ORDER denying 38 Motion for summary judgment; denying 25 Motion for summary judgment. Signed by Judge Paul G. Byron on 11/7/2018. (SCM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JENNIFER WILLIAMS MORSCH,
Plaintiff,
v.
Case No: 6:18-cv-148-Orl-40DCI
JP Morgan Chase Bank, N.A.,
Defendant.
/
ORDER
This cause is before the Court without oral argument on the following:
1. Defendant JPMorgan Chase Bank, N.A.’s Motion for Entry of Summary
Judgment on its Third Affirmative Defense (Doc. 25), filed July 26, 2018;
2. Defendant JPMorgan Chase Bank, N.A.’s Motion for Entry of Summary
Judgment on All Counts of the Complaint (Doc. 38), filed September 10, 2018;
3. Jennifer William Morsch’s Response in Opposition to JPMorgan Chase Bank,
N.A.’s Motion[s] for Summary Judgment (Doc. 41), filed October 7, 2018; and
4. Defendant JPMorgan Chase Bank, N.A.’s Reply in Further Support of its
Motions for Summary Judgment (Doc. 45), filed October 25, 2018.
Upon consideration and review of the record as cited by the parties in their
respective briefs, Chase’s motions are due to be denied.
I.
BACKGROUND
This dispute arises out of the mysterious disappearance of personal property
stored inside a safe deposit box. According to the evidence, which the Court must view
in the light most favorable to the non-movant, on April 16, 2003, Plaintiff Jennifer Morsch
(“Morsch”) entered into a lease agreement with Washington Mutual Bank (“WAMU”) to
rent safe deposit box 00Z0064 (the “Leased Box”) (Doc. 37-1, pp. 11–13; Doc. 1-1, pp.
12–13 (the “2003 Lease Agreement”)). Pursuant to the 2003 Lease Agreement, Morsch
agreed to be “bound by . . . all amendments thereto.” (Doc. 1-1, p. 12). She also agreed
to be bound by WAMU’s Account Disclosures and Regulations, which provided in
pertinent part, that “[WAMU]’s liability with respect to any claim arising out of the [2003]
[L]ease [Agreement] w[ould] be limited to $10,000.00.” (Id.; Doc. 25-3, pp. 78).
After executing the 2003 Lease Agreement, Morsch received two keys to the
Leased Box and began storing property, including jewelry, family heirlooms, gold coins,
and cash. (Doc. 37-1, pp. 15, 18, 20–95 (describing each item stored in the Leased Box)).
The Leased Box was secured by a two-key system, wherein Morsch used one of her keys
along with a corresponding key held by the bank. (Id. at p. 98). The Leased Box was
physically located in WAMU’s vault near the top center of all the safe deposit boxes. (Doc.
25-2, p. 17). Therefore, a bank employee always had to use a stepladder to pull out the
inner container and hand it down to Morsch. (Doc. 37-1, pp. 98, 113–14).
Morsch accessed the Leased Box on multiple occasions over the course of thirteen
years. (Id. at 96). Aside from allowing bank personnel to assist her in opening the Leased
Box, Morsch never gave custody or control of her keys to any other individual. (Doc. 251, pp. 9, 12). Nor did Morsch authorize anyone access to the Leased Box. (Id.; Doc. 371, p. 105).
In 2008, Defendant JPMorgan Chase Bank, N.A. (“Chase”) purchased and
assumed certain WAMU assets from the Federal Deposit Insurance Corporation,
including the Leased Box. (Doc. 25, p. 4; Doc. 38, p. 4). Following Chase’s assumption
2
of WAMU’s assets, Morsch visited Chase to access the Leased Box in 2009 and 2012.
(Doc. 37-1, pp. 97, 100–101, 108, 158). Morsch does not recall why she accessed the
Leased Box in 2009, but in 2012, she accessed the box to deposit several rare, collectible
gold coins. (Id. at pp. 97, 101–04). Morsch did not remove anything from the Leased Box,
which contained the following “Property”:
a. one (1) Gold Eagle coin valued at $1,000.00;
b. one (1) gold link bracelet with gold charms valued at
$1,000.00;
c. one (1) pair of one carat diamond earrings valued at
$2,000.00;
d. one (1) gold heart bracelet valued at $700.00;
e. one (1) pair of one-half carat diamond earrings valued at
$1,000.00;
f. one (1) set of Tiffany earrings and necklace set valued at
$2,000.00;
g. one (1) diamond cascade necklace and earrings set
valued at $1,500.00;
h. one (1) antique diamond accent watch valued at
$1,500.00;
i. one (1) gold watch valued at $500.00;
j. one (1) one-half carat diamond necklace valued at
$700.00;
k. one (1) three-quarter carat diamond pear shaped ring
valued at $5,000.00;
l. one (1) diamond wedding band valued at $1,000.00;
m. one (1) gold wedding band valued at $500.00;
n. one (1) diamond cocktail ring valued at $1,000.00;
o. one (1) ruby and diamond ring valued at $1,000.00;
p. one (1) man’s one carat diamond ring valued at $3,000.00;
q. one (1) one-half carat diamond ring valued at $1,000.00;
r. one (1) antique diamond ring valued at $1,000.00;
s. one (1) birthstone with diamond accent ring valued at
$700.00;
t. one (1) birthstone diamond ring valued at $500.00;
u. one (1) one carat diamond necklace valued at $1,500.00;
v. one (1) three carat diamond and gold necklace valued at
$10,000.00;
w. one (1) sapphire stone necklace valued at $1,500.00;
x. miscellaneous collectable gold coins valued at
$20,000.00;
3
y. miscellaneous cash in U.S. currency
$40,000.00; [and]
z. one (1) slide bracelet valued at $1,500.00.
valued
at
(Doc. 25-2, p. 18; Doc. 37-1, pp. 20–95).
Three years later, Chase issued an updated Safe Deposit Agreement that states,
in relevant part:
By signing the Safe Deposit Contract Card (“Contract”) or
using the Safe Deposit Box services - such as paying the
annual rent, setting up a PIN, receiving two safe deposit box
keys, and accessing the box - the person or persons (“you”)
agree to lease a safe deposit box (“box”) identified on the
Contract with JPMorgan Chase, National Association (“Bank”
“we” or “us”).
*
*
*
THE BANK WILL NOT BE LIABLE FOR INDIRECT,
SPECIAL, CONSEQUENTIAL OR EMOTIONAL DAMAGES
REGARDLESS OF THE FORM OF ACTION. YOU AGREE
AND REPRESENT THAT THE AGGREGATE VALUE OF
THE CONTENTS OF THE BOX WILL NOT EXCEED $25,000
AT ANY TIME AND BASED ON THIS REPRESENTATION
FURTHER ACKNOWLEDGE AND AGREE THAT THE
BANK'S MAXIMUM LIABILITY, IF ANY, WILL BE LIMITED
TO $25,000 WITH RESPECT TO ANY CLAIM ARISING OUT
OF, OR OTHERWISE CONNECTED WITH, THIS
AGREEMENT, THE BOX OR ITEMS STORED IN THE BOX.
*
*
*
You agree not to use the box to store money, coin, currency
unless it is of a collectible nature, and you assume all risks
and hold the Bank harmless of any losses or alleged loss of
said money, coin or currency.
(Doc. 25-3, pp. 93–94).
According to Chase’s Product Manager, Geoffrey Andrews (“Andrews”), Chase
mailed Morsch a copy of the 2015 Lease Agreement along with a letter notifying her that
the 2015 Lease Agreement would go into effect on her 2015 annual renewal date. (See
4
Doc. 25-3, pp. 8; see id. at p. 81 (the “2015 Letter”)). Morsch testified, however, that she
never received the 2015 Letter or the 2015 Lease Agreement. (Doc. 25-1, pp. 7, 11; Doc.
37-1, pp. 111, 152).
Morsch did not access the Leased Box between 2012 and 2016, but she continued
to make rental payments. (Doc. 37-1, p. 96; Doc. 25-3, p. 109). On Friday, August 3,
2016, Morsch returned to Chase to withdraw cash from the Leased Box. (Doc. 37-1, p.
109). Morsch entered the vault with a bank employee and attempted to use her key to
open the Leased Box, but it would not open. (Id. at pp. 109–11, 113). When the Leased
Box would not open, the bank employee advised Morsch that “they were going to have to
drill into [her] box.” (Id. at pp. 112, 115). Chase then scheduled an appointment to drill
into the box on Friday, August 5, 2016 at 9:00 a.m. (Id.).
Morsch returned to Chase for her scheduled appointment and met with three
individuals—two Chase employees (“Chase Employees”) and an individual that Chase
hired to drill into the box. (Id. at pp. 117–18). Once inside the vault, Morsch noticed that
Chase did not intend to drill into the Leased Box. (Id.) Instead, Chase planned to drill into
safe deposit box number “64” 1, which was in a different location than the Leased Box. (Id.
at pp. 118). When Morsch informed the Chase Employees that the Leased Box was
“never located” where they intended to drill, the Chase employees told Morsch that, as of
2012, the Leased Box had been rented by someone else. (Id. at pp. 118–19). Morsch
1
The full number of “Box 64” is unclear from Morsch’s deposition. However, based on
the deposition testimony of Chase’s branch manager, Elaine Meister (“Meister”), it
appears that the full number for “Box 64” is “40064.” (See Doc. 40, p. 54).
5
asked the Chase Employees when they moved the Leased Box, to which they replied,
“we never moved it.” (Id. at p. 119). 2
Morsch insisted that the Leased Box belonged to her. (Id.). Despite Morsch’s
insistence, one of the Chase Employees asked her whether she wanted them to drill into
Box 64. (Id.). Morsch responded, “if you’re saying that’s where it is, yes.” (Id.). Chase
drilled into Box 64, but it was empty. (Id. at p. 120). Chase refused to drill into the Leased
Box. (Doc. 40, p. 54).
Morsch filed suit against Chase on December 19, 2017, seeking damages and
specific performance. (Doc. 2). In the Complaint, Morsch asserts claims for: negligenc e
(Count I), civil theft - conversion (Count II), specific performance (Count III), breach of
contract (Count IV), and negligent misrepresentation (Count V). (Doc. 2). On February 5,
2018, Chase filed an Answer to the Complaint, asserting four affirmative defenses. (Doc.
7). Chase now seeks summary judgment as to its third affirmative defense, arguing that
Morsch’s purported damages are limited pursuant to an agreement she entered into with
Chase. (Doc. 25 (“First Motion”)). For reasons specified in detail below, Chase also
moves for summary judgment as to all of Morsch’s claims. (Doc. 38 (“Second Motion”)).
Morsch opposes both motions. (Doc. 41).
II.
STANDARD OF REVIEW
A court may only “grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
2
According to Elaine Meister, when Chase Bank acquired the safe deposit boxes from
WAMU, Chase Bank did not move any of the safe deposit boxes. (Id. at pp. 47–48).
But on some unspecified date, Chase Bank did relabel the safe deposit boxes to
replace all letters with numbers. (Id.). Morsch’s safe deposit box was relabeled from
00Z0064 to 40064. (Id. at pp. 41, 48).
6
of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of “citing to
particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations . . . , admissions,
interrogatory answers, or other materials” to support its position that it is entitled to
summary judgment. Fed. R. Civ. P. 56(c)(1)(A). “The burden then shifts to the nonmoving party, who must go beyond the pleadings, and present affirmative evidence to
show that a genuine issue of material fact exists.” Porter v. Ray, 461 F.3d 1315, 1320
(11th Cir. 2006). “The court need consider only the cited materials” when resolving a
motion for summary judgment. Fed. R. Civ. P. 56(c)(3); see also HRCC, LTD v. Hard
Rock Café Int’l (USA), Inc., 703 F. App’x 814, 816–17 (11th Cir. 2017) (per curiam)
(holding that a district court does not err by limiting its review to the evidence cited by
the parties in their summary judgment briefs). 3
An issue of fact is “genuine” only if “a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
determining whether a genuine dispute of material fact exists, the Court must read the
evidence and draw all factual inferences therefrom in the light most favorable to the nonmoving party and must resolve any reasonable doubts in the non-movant’s favor.
Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1136 (11th Cir. 2007). Summary judgment
should only be granted “[w]here the record taken as a whole could not lead a rational
3
“Unpublished opinions are not controlling authority and are persuasive only insofar
as their legal analysis warrants.” Bonilla v. Baker Concrete Constr., Inc., 487 F.3d
1340, 1345 (11th Cir. 2007).
7
trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
I.
DISCUSSION
A.
Chase’s First Motion
In its First Motion, Chase moves for summary judgment on its third affirmative
defense. (Doc. 25). Chase argues that, pursuant to the 2015 Lease Agreement: (1)
Morsch’s purported damages are limited to $25,000; and (2) Morsch is precluded from
seeking damages for any lost cash or currency. (Doc. 25, pp. 3, 8–12). Alternatively,
Chase argues that Morsch’s damages are limited to $10,000 pursuant to the 2003 Lease
Agreement. (Id. at pp. 3, 12).
In response, Morsch argues that her damages are not limited by the 2015 Lease
Agreement because she never received nor executed the agreement. (Doc. 41, pp. 2,
20). However, this argument lacks merit for two reasons. First, Morsch did not need to
execute the 2015 Lease Agreement for it to bind her because she expressly agreed to be
“bound by . . . all amendments” to the 2003 Lease Agreement. (See Doc. 1-1, p. 12).
Second, under Florida law, when an item is properly mailed, there exists a rebuttable
presumption that the item was received by the addressee. Konst v. Fla. E. Coast Ry., 71
F.3d 850, 851 (11th Cir. 1996).
Here, Andrews affirms that on April 1, 2015, Chase mailed Morsch a copy of the
2015 Lease Agreement. (See Doc. 25-3, p. 8; see id. at p. 91). Andrews also avows that
a review of Chase’s mailing matrix shows that Chase properly mailed the correspondenc e
to the address at which Morsch resided. (See Doc. 25-3, p. 8; see also id. at p. 99).
Morsch concedes that she lives at, and receives mail at, the residence where Chase sent
8
the 2015 Lease Agreement. (Doc. 25-1, pp. 7, 11; Doc. 37-1, pp. 111, 152). Therefore,
it is presumed that Morsch received it.
In an attempt to rebut this presumption, Morsch denies receiving the 2015 Lease
Agreement. (Doc. 37-1, p. 152). Without more, however, Morsch’s mere denial of receipt
is wholly insufficient to rebut the presumption that she received it. In re Farris, 365 F.
App’x 198, 200 (11th Cir. 2010) (explaining that “[t]he mere denial of receipt, without more,
is insufficient to rebut the presumption”). Accordingly, the Court finds that the 2015 Lease
Agreement was properly mailed to, and presumptively received by, Morsch.
The Court’s analysis does not end there. In her response, Morsch also argues that
her damages are not limited by the 2015 Lease Agreement because some of her claims
concern actions that Chase took before the 2015 Lease Agreement became effective.
(Doc. 41, p. 27). In reply, Chase contends that Morsch has neither alleged nor offered
evidence showing that its “purported ‘overt acts’ occurred in any time other than 2016.”
(Doc. 45, pp. 3–4). Chase is mistaken.
Although the Complaint is far from a model of clarity, Morsch alleges that the
conduct underlying some of her claims occurred “on or before August 5, 2016.” 4 For
instance, under her negligence claim, Morsch alleges that Chase owed her a duty “to
exercise reasonable care in the maintenance of[,] and management of access to[,]” her
safe deposit box. (Doc. 2, ¶ 22). Morsch alleges that, “[o]n or before August 5, 2016,
C[hase] beached its duty . . . when it allowed unknown third parties and/or Chase
employees to physically access [her] box and either remove its contents and/or place its
4
See, e.g., Doc. 2, ¶ 23 (alleging that the conduct underlying Morsch’s claim for
negligence occurred on or before August 5, 2016); see also id., ¶ 26 (incorporating
the foregoing allegation into Morsch’s claim for conversion and civil theft).
9
contents into another box to which [she] lacks access.” (Doc. 2, ¶¶ 23, 26, 27). As a result,
Morsch allegedly lost access to and possession of the contents placed in her box. (Id. ¶¶
24, 29).
In support, Morsch proffered testimonial and documentary evidence. The
evidence, which the Court views in the light most favorable to Morsch, shows that Morsch
entered into a lease agreement with WAMU (now Chase) to rent the Leased Box in 2003.
(Doc. 1-1, pp. 12–13). For several years Morsch deposited Property into the Leased Box
and made all required rental payments. (Doc. 37-1, pp. 20–95; Doc. 25-3, p. 109). When
Morsch went to access the Leased Box in 2016, Chase admitted to renting the Leased
Box to another individual in 2012, thereby allowing that individual to access said box.
(Doc. 37-1, p. 119). Chase refused to give Morsch access to the Leased Box and failed
to produce her Property when requested. (Doc. 40, p. 54). As a result, Morsch lost access
to and possession of the Property. (Doc. 25-2, p. 18; Doc. 37-1, pp. 20–95).
From this evidence, a reasonable jury could conclude that Chase’s purported
negligent acts occurred in 2012. Thus, material issues of fact remain as to whether
Morsch’s purported damages are limited by the 2015 Lease Agreement. 5 Accordingly,
Chase’s motion for summary judgment on its third affirmative defense is due to be
denied. 6
5
Because material issues of fact remain as to whether Morsch’s alleged damages are
limited by the 2015 Lease Agreement, the Court does not address Chase’s alternative
argument that the 2003 Agreement applies.
6
Chase Bank posits that, if the “Court accepts the argument that the alleged acts that
caused Morsch’s purported losses occurred in 2012, then all of her non-contract
claims (Counts I, II, III, and V) should be dismissed in their entirety because all of
those claims would be barred by the four-year statute of limitations.” (Doc. 45, p. 4).
However, the Court makes no factual finding as to whether Chase’s alleged acts
10
B.
Chase’s Second Motion for Summary Judgment
In its Second Motion, Chase first moves for summary judgment on all of Morsch’s
claims that require proof of damages—specifically, her claims for negligence, conversion,
civil theft, breach of contract, and negligent misrepresentation. 7 (Doc. 38, pp. 14–18). In
doing so, Chase contends Morsch is not qualified to testify regarding the value of any of
the alleged missing or stolen Property because she is not an expert and merely relies on
her own “subjective personal opinions.” (Id. at pp.16–18). Chase argues that “since
[Morsch] cannot value the [P]roperty,” she cannot establish the damages element for her
claims. (Doc. 38, pp. 18). The Court disagrees.
Under Florida law, “[a]n owner is always competent to give h[er] opinion on the
value of h[er] property.” Sparger v. Newmar Corp., No. 12-81347-CIV, 2014 WL 3928556,
at *6 (S.D. Fla. Aug. 12, 2014) (quoting Meredith v. Hardy, 554 F.2d 764, 765 (5th Cir.
1977)); 8 Ames v. Winnebago Indus., Inc., No. 5:04-cv-359OC10GRJ, 2005 WL 2614614,
at *3 (M.D. Fla. Oct. 14, 2005). The owner need not be an expert, she need only be
familiar with the characteristics of the property, have knowledge or acquaintance with its
occurred in 2012. The Court merely observes that material issues of fact remain that
preclude summary judgment. Because genuine issues of material fact exist, the Court
need not reach the merits of Chase’s statute of limitations argument.
7
See generally, Small Bus. Admin. v. Echevarria, 864 F. Supp. 1254, 1264 (S.D. Fla.
1994) (outlining the elements of civil theft and conversion); Rollins, Inc. v. Butland,
951 So.2d 860, 876 (Fla. 2d DCA 2006) (listing the elements for breach of contract);
Paterson v. Deeb, 472 So.2d 1210, 1214 (Fla. 1st DCA 1985) (providing the elements
for negligence); Alexander/Davis Props., Inc. v. Graham, 397 So. 2d 699 (Fla. 4th
DCA 1981) (listing the elements of negligent misrepresentation).
8
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit
handed down before October 1, 1981.
11
uses and purposes, and experience in dealing with it. See Hill v. Marion Cty., 238 So. 2d
163, 166 (Fla. 1st DCA 1970) (“[A]n owner of property may testify as to its value, although
not qualified as an expert.”); see also Neff v. Kehoe, 708 F.2d 639, 644 (11th Cir. 1983)
(concluding that the owner of a coin collection was permitted to give his lay opinion of its
value).
Here, it is undisputed that Morsch is the owner of the alleged missing or stolen
Property. Therefore, Morsch is qualified to offer her opinion as to the value of her
Property, provided she can lay a proper foundation. Chase argues that Morsch “has no
idea of the value of the [Property]”, and that she is merely “guessing,” therefore she
cannot lay a proper foundation to testify regarding damages. The Court is unpersuaded.
While some of Morsch’s valuations of the Property appear to be based on speculation,
(see, e.g., Doc. 37-1, pp. 34, 45), other valuations appear to be based on her personal
knowledge (see, e.g., id. at pp. 45–48, 79–81, 89–90). As such, the Court cannot
conclude, as a matter of law, that Morsch is unable to establish damages.
The Court finds it necessary to hear Morsch’s testimony at trial. See United States
v. Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010) (stating questions that turn on
the existence of an adequate foundation and context are often best determined by
considering the evidence in proper context at trial). If Morsch can lay a proper foundation
regarding the value of her Property, Chase will have the opportunity to cross-examine
her. However, if Morsch cannot lay a proper foundation regarding the value, her testimony
as to topics on which she lacks personal knowledge will be excluded if Chase raises a
proper objection.
12
Next, Chase moves for summary judgment as to Morsch’s claim for civil theft. A
cause of action for civil theft under Florida law “derives from two statutory sources: the
criminal section setting forth the elements of theft, and the civil section granting private
parties a cause of action for a violation of the criminal section.” Palmer v. Gotta Have it
Golf Collectibles, Inc., 106 F. Supp. 2d 1289, 1303 (S.D. Fla. 2000) (quoting Ames v.
Provident Life & Accident Ins. Co., 942 F. Supp. 551, 560 (S.D. Fla. 1994), aff’d, 86 F.3d
1168 (11th Cir. 1996)). Thus, to maintain a cause of action for civil theft, a plaintiff “must
show by ‘clear and convincing evidence’ an injury caused by the defendant's violation of
one or more of the provisions of the criminal theft laws found in Fla. Stat. §§ 812.012–
037.” Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1326–27 (11th Cir. 2006) (quoting
Fla. Stat. § 772.11).
Morsch does not cite a specific criminal statute, but she appears to allege a
violation of the criminal theft statute, Fla. Stat. § 812.014. Therefore, to succeed on her
claim for civil theft, Morsch must demonstrate that Chase: (1) knowingly obtained or used,
or endeavored to obtain or use, the plaintiff’s property; (2) with felonious intent; (3) to
either temporarily or permanently (a) deprive the plaintiff of its right to benefit from the
property, or (b) appropriate the property to the defendant’s own use or to the use of
anyone not entitled to the property. United Techs. Corp. v. Mazer, 556 F.3d 1260, 1270
(11th Cir. 2009) (citing Fla. Stat. §§ 772.11 (providing civil remedy for theft or exploitation),
812.014(1) (criminal theft statute)). Felonious intent “is the intent to deprive another of its
property” and is often difficult to demonstrate by direct proof, therefore, it “may be shown
by circumstantial evidence” and drawing inferences from the surrounding factual
circumstances. R&M Mktg., Inc. v. Best Buy Auto of Tampa Bay, Inc., No. 8:16-CV-46-T-
13
TBM, 2017 WL 2869541, at *3 (M.D. Fla. Apr. 12, 2017) (quoting Wachovia Bank N.A. v.
Tien, 658 F. App’x. 471, 475 (11th Cir. 2016)) (denying summary judgment on civil theft
claim because the issues of “intent and credibility [are] question[s] that must be decided
by the fact-finder”).
Chase argues that Morsch “cannot prove civil theft because there is no evidenc e
of [felonious] intent.” (Doc. 38, pp. 18–19). The Court disagrees. When the evidence is
construed in Morsch’s favor, as it must be for purposes of summary judgment, it reflects
that Morsch leased a safe deposit box at Chase. (Doc. 1-1, pp. 12–13). Over the course
of several years, Morsch deposited her Property into the safe deposit box. (Doc. 37-1, pp.
20–95). Morsch never gave her safe deposit keys to any other individual. (Doc. 25-1, pp.
9, 12). Nor did she grant anyone permission to access her safe. (Id.; Doc. 37-1, p. 105).
There were only two ways to access the safe: either by using Morsch’s key along with the
corresponding key held by Chase, or by drilling into it, which seems like something only
Chase could do. (Doc. 40, p. 26; Doc. 37-1, p. 98). When Morsch accessed her safe
deposit box in 2012, she deposited several rare gold coins, but did not remove anything.
(Doc. 37-1, pp. 97, 101–104). At that time, Morsch’s box contained Property worth over
$100,000. (Doc. 25-2, p. 18). Yet, when Morsch went to the bank in 2016, the box which
Chase insists belongs to her was completely empty. (Doc. 37-1, p. 120). Consequently,
Morsch no longer has possession of her Property. (Doc. 25-2, p. 18; Doc. 37-1, pp. 20–
95). From this evidence, a reasonable jury could conclude that Chase took Morsch’s
Property out of the safe deposit box, and that it did so with the intent to deprive her of it.
See R&M Mktg., Inc, 2017 WL 2869541, at *4. Accordingly, Chase’s motion for summary
judgment on Morsch’s claim for civil theft is due to be denied.
14
As to its final argument, Chase asserts that Morsch’s claim for specific
performance—wherein she seeks a Court order directing Chase to give her access to the
Leased Box—fails because Morsch has an adequate remedy at law (i.e., her various
claims for money damages). (Doc. 38, pp. 19–20). Chase further argues that Morsch’s
request for specific performance is not permissible because another customer is renting
the Leased Box, and the Court cannot order that customer to open the box since the
customer is not a party to this lawsuit. (Doc. 45, p. 11). However, questions of fact remain
as to whether Morsch can establish damages and whether another customer is renting
the Leased Box. Accordingly, the Court will deny Chase’s motion for summary judgment
on Morsch’s claim for specific performance.
In sum, there are simply too many issues of material fact to grant Chase’s motions
for summary judgment. This case should properly be resolved by a jury.
III.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Defendant JPMorgan Chase
Bank, N.A.’s Motion for Entry of Summary Judgment on its Third Affirmative Defense
(Doc. 25), and its Motion for Entry of Summary Judgment on All Counts of the Complaint
(Doc. 38) are DENIED.
15
DONE AND ORDERED in Orlando, Florida on November 7, 2018.
Copies furnished to:
Counsel of Record
Unrepresented Parties
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?