Brock v. Bank of America, N.A.
Filing
19
ORDER granting Defendant's 11 Motion for Summary Judgment. Signed by Judge Richard W. Story on 05/17/12. (sk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
EDWARD T. BROCK,
Plaintiff,
v.
BANK OF AMERICA, N.A.,
Defendant.
:
:
:
:
:
:
:
:
:
:
CIVIL ACTION NO.
2:11-CV-00083-RWS
ORDER
This case comes before the Court on Defendant Bank of America, N.A.’s
Motion for Summary Judgment (“Def.’s Mot. for Summ. J.”) [11]. After
reviewing the record, the Court enters the following Order.
Background
On June 17, 2010, Plaintiff filed this action in the Superior Court of
Barrow County, Georgia, seeking to recover moneys owed on a $45,000.00
certificate of deposit (“CD”), which Plaintiff allegedly obtained from Defendant
and which Defendant allegedly mishandled or misplaced. (Compl., Dkt. [1-4]
¶¶ 1-4.) Specifically, Plaintiff alleges that he discovered documentation of the
CD among his legal papers in 2008, some years after he allegedly purchased it,
AO 72A
(Rev.8/82)
at which time he presented it to personnel at Defendant’s branch in Winder,
Georgia. (Id. ¶ 2.) Plaintiff alleges that due to the age of the CD, Defendant’s
personnel informed Plaintiff they would have to examine their records to ensure
that the CD had not been cashed out or renewed. (Id. ¶ 3.) When Plaintiff
failed to receive any further correspondence from Defendant regarding the CD,
Plaintiff returned to Defendant’s Winder, Georgia bank branch, at which time
he allegedly was informed that Defendant’s personnel had lost the CD. (Id. ¶
4.) Plaintiff’s Complaint followed, and Defendant timely removed the action to
this Court on the basis of diversity jurisdiction. (Notice of Removal, Dkt. [1].)
Defendant now moves for summary judgment, arguing that Plaintiff has failed
to produce any evidence–short of his own, self-serving deposition testimony–to
support his claim that Defendant mishandled or lost a $45,000.00 CD issued by
Defendant to Plaintiff. (See generally Mem. of Law in Supp. of Def.’s Mot. for
Summ. J. (“Def.’s Mem.”), Dkt. [11-1].)
The undisputed facts are as follows. Plaintiff testified at his deposition
that he purchased a $45,000.00 CD from Defendant. (Def.’s SMF Ex. A, Dkt.
[11-3] at 8 of 20, 4/14/2011 Dep. of Edward T. Brock (“Pl.’s Dep.”), at 17:110.) Aside from this deposition testimony, Plaintiff has put forward no other
2
AO 72A
(Rev.8/82)
evidence that he purchased the purported CD from Defendant. (Id. at 10 of 20,
Pl.’s Dep., at 19:16-20.) Nor has Plaintiff produced any evidence regarding the
date, month, or year in which he allegedly made the purchase. (Id. at 7 of 20,
Pl.’s Dep., at 15:12-25.) Plaintiff agrees with Defendant that bank customers
generally receive monthly, quarterly, or annual account statements regarding
CD accounts, and that a primary purpose of holding cash in a CD is to benefit
from the accumulation of interest. (Def.’s SMF, Dkt. [11-2] ¶¶ 6, 8; Pl.’s Resp.
to Def.’s SMF, Dkt. [17] ¶¶ 6, 8.) Plaintiff, however, does not recall ever
receiving any account statement regarding the purported CD, nor does he recall
ever receiving any interest distributions from it. (Def.’s SMF, Dkt. [11-2] ¶¶ 67, 9; Pl.’s Resp. to Def.’s SMF, Dkt. [17] ¶¶ 6-7, 9.)
Plaintiff testified in his deposition that he discovered documentation of
the CD among his files at his home. (Def.’s SMF Ex. A, Dkt. [11-3] at 11 of
20, Pl.’s Dep., at 20:3-16.) He does not recall when he made this alleged
discovery or what the account number was on the alleged CD. (Def.’s SMF,
Dkt. [11-2] ¶ 10.) At the time of the alleged discovery, Plaintiff did not call
Defendant or notify anyone else, verbally or in writing, that he had discovered
3
AO 72A
(Rev.8/82)
documentation of the alleged CD. (Id. at 11-12 of 20, Pl.’s Dep., at 20:1721:2.)
Plaintiff further testified at his deposition that after he discovered the CD
documentation, he took it to Defendant’s Winder, Georgia branch and presented
it to an employee of Defendant by the name of “Pam”;1 he does not recall,
however, and has presented no evidence regarding, the date or year in which he
allegedly presented the documentation to Defendant. (Def.’s SMF, Dkt. [11-2]
¶ 14.) Plaintiff contends that after he presented the CD documentation to
Defendant, Defendant misplaced it. Plaintiff did not inform anyone other than
“Pam” that he had presented the alleged CD to Defendant or that Defendant had
allegedly misplaced it. (Def.’s SMF Ex. A, Dkt. [11-3] at 14-15 of 20, Pl.’s
Dep., at 14:4-15, 15:10-15.) Nor did Plaintiff file a written complaint with
Defendant after the documentation allegedly was lost. (Id. at 15 of 20, Pl.’s
Dep., at 15:19-21.)
1
There is some indication in Plaintiff’s deposition that the last name of this
employee was “Hill,” but Plaintiff testified that he was not sure of her last name.
(Def.’s SMF Ex. A, Dkt. [11-3] at 12 of 20, Pl.’s Dep., at 21:15-21, & at 14 of 20,
Pl.’s Dep., at 23:11-22.)
4
AO 72A
(Rev.8/82)
Defendant has searched its records and found nothing regarding any CD
issued in Plaintiff’s name by Defendant or any of its predecessor banks. (Def.’s
SMF, Dkt. [11-2] ¶ 16; Pl.’s Resp. to Def.’s SMF, Dkt. [17] ¶ 16.) Plaintiff has
not identified or produced any personal financial records or other documentary
evidence suggesting that he ever purchased a $45,000.00 CD from Defendant or
any of its predecessors. (Def.’s SMF, Dkt. [11-2] ¶ 17; Pl.’s Resp. to Def.’s
SMF, Dkt. [17] ¶ 17.) Accordingly, the only evidence in the record to support
Plaintiff’s allegations that he purchased a $45,000.00 CD from Defendant,
which Defendant subsequently mishandled or misplaced, is Plaintiff’s
deposition testimony to this effect. Defendant thus contends, as stated above,
that Plaintiff has failed to produce sufficient evidence to raise a triable issue of
fact, and therefore that Defendant is entitled to judgment as a matter of law.
(See generally Def.’s Mem., Dkt. [11-1].)
Discussion
I.
Summary Judgment Legal Standard
Federal Rule of Civil Procedure 56 requires that summary judgment be
granted “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 of law.” Fed. R. Civ. P.
5
AO 72A
(Rev.8/82)
56(a). “The moving party bears ‘the initial responsibility of informing the . . .
court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue
of material fact.’” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259
(11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal quotations omitted)). Where the moving party makes such a showing,
the burden shifts to the non-movant, who must go beyond the pleadings and
present affirmative evidence to show that a genuine issue of material fact does
exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
The applicable substantive law identifies which facts are material. Id. at
248. A fact is not material if a dispute over that fact will not affect the outcome
of the suit under the governing law. Id. An issue is genuine when the evidence
is such that a reasonable jury could return a verdict for the non-moving party.
Id. at 249-50.
Finally, in resolving a motion for summary judgment, the court must
view all evidence and draw all reasonable inferences in the light most favorable
to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296
6
AO 72A
(Rev.8/82)
(11th Cir. 2002). But, the court is bound only to draw those inferences which
are reasonable. “Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no genuine issue for trial.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations
omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met
its burden under Rule 56(a), the nonmoving party “must do more than simply
show there is some metaphysical doubt as to the material facts”).
II.
Defendant’s Motion for Summary Judgment [11]
The Court agrees with Defendant that Plaintiff has failed to produce
sufficient evidence to raise a triable issue of material fact and survive
Defendant’s Motion for Summary Judgment. As the Background section
demonstrates, the only evidence Plaintiff has presented to support his
allegations that he purchased a $45,000.00 CD from Defendant, which
Defendant subsequently misplaced, is his own deposition testimony that these
events in fact occurred. This testimony certainly is evidence that the Court is
7
AO 72A
(Rev.8/82)
bound to consider, and in the light most favorable to Plaintiff for purposes of
summary judgment. Newsome, II v. Chatham Cnty. Detention Ctr., 256 F.
App’x 342, 346 (11th Cir. 2007) (“[F]or purposes of summary judgment, there
is nothing inherently wrong with ‘self-serving testimony,’ and it may not be
disregarded by the district court in determining whether there is a genuine
dispute of fact on a material issue in the case.”). In this case, however,
Plaintiff’s testimony alone, does not create a substantial conflict in evidence and
therefore does not give rise to a triable issue of fact. See, e.g. United States v.
Davis, 809 F.2d 1509, 1512 (11th Cir. 1987) (“To create a jury question, the
conflicting evidence must be ‘substantial.’”) (citation omitted).
Aside from Plaintiff’s testimony, there is no evidence in the record that
the alleged CD ever existed, much less that it was misplaced by Defendant.
Plaintiff has presented no evidence regarding when he allegedly purchased the
CD, when he discovered the alleged CD documentation, or when he presented
that documentation to Defendant. Similarly, there is no evidence regarding the
alleged CD’s account number, and Plaintiff does not recall ever receiving
account statements or interest distributions. Defendant has no record that
Plaintiff ever held a CD with Defendant or any of its predecessor banks.
8
AO 72A
(Rev.8/82)
Plaintiff has produced no witnesses to attest to any of his allegations. Given the
record as a whole, and the overwhelming evidence contradicting Plaintiff’s
allegations, no reasonable jury could find in Plaintiff’s favor. Accordingly, the
Court finds that Defendant’s Motion for Summary Judgment is due to be
GRANTED.
Conclusion
In accordance with the foregoing, Defendant’s Motion for Summary
Judgment [11] is GRANTED.
SO ORDERED, this 17th day of May, 2012.
________________________________
RICHARD W. STORY
United States District Judge
9
AO 72A
(Rev.8/82)
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?