Boyd v. Wells Fargo Financial Bank, Inc. et al

Filing 34

ORDER granting Wells Fargo Bank, N.A.'s 27 Motion for Summary Judgment. The parties shall have seven days from today's date to provide evidence as to whether WFFBI is a legal entity capable of being sued. Signed by Judge Lisa G. Wood on 10/23/2017. (ca)

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3in t^t ?l9[mteb States! Btsitnct Conrt for tfie ^ontl^rnt Btotrtcf of 4g>eorsta Pntttofottli Btbtotott MICHAEL BOYD, Plaintiff, CV 216-151 V. WELLS FARGO FINANCIAL BANK, INC., WELLS FARGO BANK, N.A., Defendants. ORDER This matter comes before the Court on Defendant Wells Fargo Bank, N.A.'s 27). This Motion has been fully briefed and is now ripe for review. ('"WFBNA") For the Motion for Summary Judgment reasons set forth below, the (Dkt. Motion No. will be GRANTED. FACTUAL BACKGROUND Plaintiff August 2009, Michael Boyd Defendant published Plaintiff's indebtedness to Dkt. No. 1-1, p. 127 asserts 51 that false at statements various credit 3. Plaintiff various times regarding reporting agencies. asserts that statements adversely affected his ability to obtain a loan. 5[ A0 72A (Rev. 8/82) 5. Plaintiff further asserts that he in notified the these Id. various credit reporting agencies that these statements were false but that Defendant failed to correct the faulty information. 5 7. PROCEDURAL HISTORY This case has a procedural history dating back to 2009. September 4, 2009, Plaintiff filed a complaint against On Wells Fargo Financial Bank, Inc. (^"WFFBI") in the State Court of Glynn County. Dkt. No. 1-1 p. 6; Dkt. Nos. 27-1, 30-1 1 1. Defendants were named. falsely communicated Equifax Information including a statement Id. That Complaint alleged that WFFBI material information Services, that No other about Experian, Plaintiff was Plaintiff and indebted Dkt. No. 1-1 p. 6; Dkt. Nos. 27-1, 30-1 12, to Transunion, to WFFBI. In an attempt to serve WFFBI, Plaintiff delivered the Complaint to Mary Glembin, an employee of WFFBI in Minnehaha County, South Dakota. No. 1-1, p. 9; Dkt. Nos. 27-1, 30-1 1 4. in the case, and the state WFFBI never appeared court entered favor of Plaintiff on November 5, 2014. Dkt. default judgment in Dkt. No. 1-1, pp. 11- 12; Dkt. Nos. 27-1, 30-1 1 5-6. On April 5, 2016, WFBNA moved to set aside the judgment on the basis that WFFBI did not exist and that WFBNA was unaware of the suit when default judgment was entered. 90-91. Dkt. No. 1-1, pp. The state court accordingly set aside the judgment on August 12, 2016. Id. at 104; Dkt. Nos. 27-2, 30-1 1 7. On August 11, 2016, Plaintiff moved to add WFBNA as a party in the state court action. Dkt. No. 1-1, p. 110. The state court granted this request, without explaining its reasoning. 111. p. Defendant ultimately removed the action to this Court on November 11, 2016, and this Court denied Plaintiff's motion to remand. Dkt. No. 1; Dkt. No. 25. LEGAL STANDARD Summary judgment is required where ^^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." Civ. P. 56(a). A fact is ^'material" if it ^^might affect the outcome of the suit under the governing law." Grp. V., (quoting Anderson (1986)). Fed. R. v. 658 F.3d 1282, 1307 Liberty Lobby, Inc., FindWhat Inv'r (11th 477 Cir. 2011) U.S. 242, 248 A dispute is "genuine" if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In making this determination, the court is to view all of the evidence in the light most favorable to the nonmoving party and draw Johnson v. all reasonable Booker T. inferences Washington in Broad. that Serv., party's Inc., favor. 234 F.3d 501, 507 (11th Cir. 2000). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. V. Catrett, 477 U.S. 317, 323 (1986). Celotex Corp. The movant must show the court that there is an absence of evidence to support the nonmoving party's case. Id. at 325. If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson, 477 U.S. at 257. The nonmovant may satisfy this burden in two ways. First, the nonmovant ^^may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was ^overlooked or ignored' by the moving party, who has thus failed to meet the initial burden of showing an absence of evidence." Fitzpatrick v. City of Atlanta, 2 F.Sd 1112, 1116 {'llth Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332 (Brennan, J., dissenting)). Second, the nonmovant "may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency." Id. at 1117. Where the nonmovant attempts to carry this burden instead with nothing more "than a repetition of his conclusional allegations, summary judgment for the defendants [is] not only proper but required." Morris v. Ross, 663 F.2d 1032, 1033-34 (llth Cir. 1981) (citing Fed. R. Civ. P. 56(e)). DISCUSSION Defendant moves for summary judgment, arguing that it was sued after the statute of limitations had run and that the claims do not relate back to those filed before the limitations period had run. Dkt. No. 4. Plaintiff added^ WFBNA on August 17, 2016, asserting claims under the Fair Credit Reporting Act (^'FCRA"),^ actions which that has a allegedly two-year occurred statute in of limitations, for August 2009. 15 U.S.C. § 1681p(l); Dkt. Nos. 27-1, 30-1 SISI 3, 8. Because the statute of limitations has run. Plaintiff can only bring claims against WFBNA if they relate back to those filed against WFFBI in August 2009 according to Federal Rule of Civil Procedure 15(c). In federal court^, claims asserted after the running of the statute of limitations against a new defendant relate back to those filed when (1) the before claim its running arose out against of the a different same defendant transaction or occurrence as that alleged in the original complaint; (2) the new defendant received notice of the action within ninety days^ of the original complaint; and (3) the new defendant knew within ^ The result is the same regardless of whether WFBNA was added or substituted. ^ Though the complaint does not make clear what claims are asserted. Plaintiff maintains in his briefs that he brought both FCRA and defamation claims. The addition of the defamation claim does not save Plaintiff. The applicable Georgia statute of limitations is one year. O.C.G.A. § 9-3-33. ^ Because the Federal Rules do not apply in state court, the State Court of Glynn County has not addressed whether Plaintiff s claims against WFBNA relate back to those filed against WFFBI, contrary to Plaintiffs speculation. ^ The presumptive time of serving a defendant was 120 days before 2015. change has no bearing on a case like the present one. The ninety days of the original complaint that the action would have been brought against it but for a mistake concerning the proper party's identity. Fed. R. Civ. P. 15(c)(1)(C)(i)-(ii). Plaintiff easily satisfies the first requirement: both the original claim against WFFBI and the new claim against WFBNA arose out of a Wells Fargo entity's allegedly false statements to various credit reporting agencies regarding Plaintiff's debt status. Dkt. Nos. 27-1, 30-1 SIS 3, 11. But Plaintiff does not fare so well for the second and third requirements. As already found by the state court, WFBNA (and WFFBI, for that matter) had not received notice of the claim filed in September 2009 when default judgment was entered in 2014—much less within ninety days of the complaint. 108. That judgment. when is Id. its the employee, to Mary court, accept related entity." court Glembin, which service set received aside the default found, on receive O.C.G.A. § 9-11-4(e)(1). the Complaint in This argument already lost ^'Mary behalf Dkt. No. 1-1, p. 108. statutorily authorized to itself. state Dkt. No. 30 p. 2. state authorized the Plaintiff asserts that Defendant received notice September 2009. in why Dkt. No. 1-1, p. 104- of Glembin any was Wells not Fargo- Mere employees are not service for the corporation Neither is her awareness of a lawsuit imputed to her employer, especially where Glembin has not been employed at WFBNA since November 2009. Dkt. No. 1-1, p. 84. Plaintiff has provided no evidence that Glembin was anything but a mere employee. Defendant has shown through the affidavits Trent of WFBNA employees Arndt and Enrique Lopez (Dkt. Nos. 1-1, pp. 83-86) that Glembin was a Loan Servicing Specialist 3—not a president, officer, or registered agent for service. Plaintiff has provided no evidence to contradict this showing. Nothing in the record indicates that she was authorized to receive service of process or held a position that would bind prejudiced her in actual employer. defending occurred nine years ago. a Moreover, suit for which WFBNA would actions be allegedly Defendant's argument that evidence and witnesses of the underlying facts have dissipated is persuasive. As a result. Defendant did not receive notice of the action within the appropriate time, and Plaintiff fails to satisfy the second requirement for relation back. Failure of any of the three requirements dooms the relation back. No But Plaintiff also fails to meet the third requirement. evidence Plaintiff Even has would assuming WFBNA, the events that been have that sued it itself suggest showing but Gemblin's complaint would produced for a knowledge lacked to that WFBNA WFBNA mistake could details that of it knew in be the was that identity. imputed to underlying the proper defendant. The complaint did not detail communications between Wells Fargo entities and the credit reporting agencies. Thus, Plaintiff's those filed claims against against WFFBI, and WFBNA do not relate back to Defendant's Motion for Summary Judgment will be GRANTED. CONCLUSION For Bank, the N.A.'s GRANTED. reasons Motion set for forth Summary above, Defendant Judgment (Dkt. Wells No. Fargo 27) is It is the Court's understanding that Defendant WFFBI has been deemed a but concede so. nonexistent entity. Plaintiff's briefs all The parties shall have seven days from today's date-to provide evidence as to whether WFFBI is a legal entity capable of being sued. SO ORDERED, this 23^^ day of October, 2017. LISA GODBEY WOOD, JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA

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